MCOCA Court Judgment J Dey Murder Case

1
{ Received on : 03/12/2011
{ Registered on : 14/12/2011
MCOC SPECIAL CASE NO.19/2011 {
Decided on : 02/05/2018
{
{ Duration : 6 5 0
{ Years Months Days

{ Received on : 21/02/2012
Decided on : 02/05/2018
{
{ Duration : 6 2 11
{ Years Months Days
{ Received on : 05/08/2016
Decided on : 02/05/2018
{
{ Duration : 1 8 27
{ Years Months Days
IN THE COURT OF MCOC SPECIAL JUDGE AT GREATER BOMBAY
(Exclusive Special Court constituted for the cases under
MCOCA/TADA/POTA AND OTHER SESSIONS CASES
against the accusedRajendra Sadashiv Nikalje @ Chhota Rajan)
MCOC SPECIAL CASE NO.19 OF 2011
ALONG WITH
ALONG WITH
(CNR NO. MHCC020108492011)
The Central Bureau of Investigation,
New Delhi (RC1 (S)2016/SCU.V /SCII /
CBI /New Delhi), [Earlier, the State of
Maharashtra, at the instance of Inspector of
Police, DCB CID, Mumbai, C.R.No.57/2011,
Powai Police Station C.R. No.256/2011] .... Prosecution
Versus
Rohee Tangappan Joseph @ Rohi @ Satish
Kalya @ Sir and 10 ors. .... Accused
2
I N D E X
SR.NO. TOPIC PAGE

1 Prosecution case. 10
2 Points for determination. 21
3 Details of the witnesses examined on behalf of 23
the prosecution.
4 Details of the important documents relied upon 41
by the prosecution.
5 Details of the documents relied upon by the 53
Defence.
6 Discussion regarding point no.1 (Homicidal 53
death).
6A Objections regarding the recovery of the lead 67
(Article247) from the body of J.Dey.
7 Discussion regarding point nos.2 & 3 (Conspiracy 72
& murder).
7A Events which took place after the receipt of 73
information of the incident and objections raised
by the defence about the registration of the FIR,
spot of the incident and the finding of the lead
near the spot of the incident, etc.
7B Objections regarding the arrest of the accused 116
no.1Rohee Tangappan Joseph @ Satish Kalya,
accused no.2Anil Waghmode & accused no.3
Abhijit Shinde.
7C Objections regarding the arrest of the accused 129
no.4Nilesh Shedge.
7D Objections regarding the arrest of the accused 131
no.5Arun Dake, accused no.6Mangesh Aagvane
& accused no.7Sachin Gaikwad.
7E Objections regarding the arrest of the accused 137
no.9Deepak Sisodiya.
7F Objections regarding the arrest of the accused 138
no.10Paulson Palitara.
3
7G Objections regarding the arrest/taking into 141

custody of the accused no.11Ms.Jigna Vora &
accused no.12Chhota Rajan.
8 Consideration and analysis of the evidence.
9 Law relating to criminal conspiracy. 142
10 Concept of reasonable doubt and benefit of 153
doubt.
11 Roles attributed to each of the accused person. 158
12 Antecedents of the accused persons. 162
13 Confession made by the accused no.5Arun
Dake.
13A Gist of the confession made by the accused no.5 168
Arun Dake.
13B Assessment of the statements made by the 173
accused no.5Arun Dake.
13C Evidence regarding voluntary nature & 176
truthfulness of the confession made by the
13D Analysis of the above evidence. 196
13E Retraction of the confession made by the accused 237
no.5Arun Dake.
14 Confession made by the accused no.9Deepak
Sisodiya.
14A Gist of confession made by the accused no.9 241
Deepak Sisodiya.
accused no.9Deepak Sisodiya.
14C Evidence regarding the voluntary nature and 247
truthfulness of the confession made by the
accused no.9Deepak Sisodiya.
14D Analysis of the above evidence. 272
14E Retraction of the confession made by the accused 289
no.9Deepak Sisodiya.
15 Confession made by the accused no.10
Paulson Palitara.
4
15A Gist of confession made by the accused no.10 292

Paulson Palitara.
accused no.10Paulson Palitara.
16 Extrajudicial confessions made by the
16A Evidence regarding the various extrajudicial 298
confessions made by the accused no.12Chhota
Rajan.
16B Analysis of the above evidence. 327
17 Evidence regarding recovery of various mobile 360
phones, SIM cards and other articles during the
personal search of the accused persons and
recovery of the revolver, cartridges, empties,
motorcycles and the Qualis vehicle on the basis
of the disclosure statements made by some of the
accused persons.
17A Evidence in the form of CA/Ballistic reports. 369
17B Evidence in the form of Call Detail Records and 370
use of mobile numbers by the accused persons.
17C Evidence in the form of CCTV footage. 382
17D Evidence regarding interception of the phone call 384
made by the accused no.12Chhota Rajan to
PW.90Manoj Shivdasani.
17E Evidence regarding report of the voice analysis of 399
the voice sample of the accused no.12Chhota
Rajan.
17F Evidence regarding visit of J.Dey to London and 401
Philippines.
17G Evidence regarding visit of J.Dey to the Uma 406
Palace Bar and Restaurant on 07/06/2011.
17H Evidence of witness who heard the sound of 411
firing.
18 Objections regarding seizure of articles from
the person of the accused at the time of their
arrest.
5
18A Objections regarding seizure from the accused 412

no.1Rohee Tangappan Joseph @ Satish Kalya.
18B Objections regarding seizure from the accused 419
no.2Anil Waghmode.
18C Objections regarding seizure from the accused 420
no.4Nilesh Shedge.
18D Objections regarding seizure from the accused 421
nos.5,6 & 7.
18E Objections regarding recovery of the IPhones 429
and IPad from the accused no.12Chhota Rajan
and the data retrieved from the IPhone (Article
291).
19 Objections regarding recoveries made from
the accused persons in view of their
disclosure statement.
19A Objections regarding recovery of the revolver, 437
cartridges and empties from the accused no.1
Rohee Tangappan Joseph @ Satish Kalya.
19B Objections regarding recovery of the Qualis 472
vehicle (Article236) at the instance of the
accused no.2Anil Waghmode.
19C Objections regarding recovery of the motorcycle 479
(Article261) and raincoat (Article254) at the
instance of the accused no.4Nilesh Shedge.
19D Objections regarding recovery of the motorcycle 489
(Article240) at the instance of the accused no.6
Mangesh Aagvane.
19E Objections regarding recovery of the motorcycle 498
(Article233) at the instance of the accused no.7
Sachin Gaikwad.
19F Objections regarding recovery of the mobile 507
phone (article228) and Global roaming SIM
card (Article229) at the instance of the accused
no.10Paulson Palitara.
20 Objections regarding interception of the phone 507
call made by the accused no.12Chhota Rajan to
PW.90Manoj Shivdasani.
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21 Objections regarding the CDRs and use of some 508
of the mobile numbers by the accused persons.
22 Analysis of the corroborative evidence.
22A Analysis of the corroborative evidence with 525
respect to the confession made by the accused
no.5Arun Dake.
22B Analysis of the corroborative evidence with 536
respect to the various extrajudicial confessions
made by the accused no.12Chhota Rajan.
22C Analysis of the other corroborative evidence. 540
23 Other submissions made by the Defence. 542
24 Discussion regarding point nos.4 & 5 (Offences 554
under the Arms Act,1959).
25 Discussion regarding point no.6 (Offence under 558
the Bombay Police Act,1951).
26 Discussion regarding point nos.7 to 9 (Offences 561
under the MCOC Act,1999).
27 Discussion regarding point no.10 (Offence 588
u/s.201 of the IPC).
28 Hearing on the point of sentence. 589
29 Operative part of the judgment. 592
(S.S. ADKAR)
Date : 02/05/2018 Exclusive Special Court constituted for the cases
under MCOCA/TADA/POTA AND OTHER SESSIONS CASES
Place : Mumbai against the accusedRajendra Sadashiv Nikalje @ Chhota Rajan
7
Exh1714
IN THE COURT OF MCOC SPECIAL JUDGE AT GREATER BOMBAY
(Exclusive Special Court constituted for the cases under
MCOCA/TADA/POTA AND OTHER SESSIONS CASES
against the accusedRajendra Sadashiv Nikalje @ Chhota Rajan)
ALONG WITH
ALONG WITH
(CNR NO. MHCC020108492011)
The Central Bureau of Investigation,
New Delhi (RC1 (S)2016/SCU.V /SCII /
CBI /New Delhi), [Earlier, the State of
Maharashtra, at the instance of Inspector of
Police, DCB CID, Mumbai, C.R.No.57/2011,
Powai Police Station C.R. No.256/2011] .... Prosecution
Versus
1) Rohee Tangappan Joseph @ Rohi @

Satish Kalya @ Sir,
age: 42 years, occupation: Painter, r/o.
Nityanand Chawl, Jawahar Nagar, Golibar
Road, Khar (E), Mumbai (presently lodged
at Mumbai Central Prison).
2) Anil Bhanudas Waghmode,
age: 44 years, occupation: Transport
Business, r/o. Amboli Naka, Bhendivali
Chawl, Chawl no.313, Andheri (West),
Mumbai400 058 (presently lodged at
Mumbai Central Prison).
3) Abhijit Kashinath Shinde,
age: 32 years, occupation: Nil, r/o. Sion
Laxmibaug Kadarbhai Chawl, Room
No.105, Mumbai (presently lodged at
Mumbai Central Prison).
8
4) Nilesh Narayan Shedge @ Bablu,
age: 40 years, occupation: Vegetable
vendor and the property broker, r/o. Sion
Laxmibaug, behind branch of Shivsena,
Kadarbhai chawl, Room No.116, Mumbai
400 022 (presently lodged at Mumbai
Central Prison).
5) Arun Janardan Dake,
age: 35 years, occupation: Service, r/o.
Subhashchandra Bose Nagar, Chembur, Lal
Dongar, Mumbai400 071 (presently
lodged at Mumbai Central Prison).
6) Mangesh Damodar Aagvane @ Mangya,
age: 31 years, occupation: Manager,
Delight Galaxy Caterers. r/o. Gyan Ashram,
Mahakali Gufa, Opp. Canosa High School,
Andheri (East), Mumbai (presently lodged
at Mumbai Central Prison).
7) Sachin Suresh Gaikwad,
age: 33 years, occupation: Mathadi worker,
r/o. Sindhi Society, Chembur, Navjavan
Mitra Mandal, Chembur, Mumbai71
(presently lodged at Mumbai Central
Prison).
8) Vinod Gowardhandas Asrani @ Vinod
Sindhi @ Vinod Chembur.
(Now deceased) – abated.
9) Deepak Dalvirsingh Sisodiya,
age: 45 years, occupation: Business, r/o.
Jitpurnegi, Rampur Road, Haldvani, Village
Jitpur, Dist.Nainital, State : Uttarakhand
(presently on bail).
10) Paulson Joseph Palitara,
age: 52 years, occupation: Business, r/o.
Emma Towers, 101, 15th Road, Behind
HDFC Bank, Chembur, Mumbai400 071
9
11) Ms. Jigna Jitendra Vora,
age: 42 years, occupation: Healing
meditation, r/o. Block No.11, Savita
Building, Shrimad Rajchandra Marg, Off
Tilak Road, Ghatkopar (E), Mumbai
12) Rajendra Sadashiv Nikalje @ Chhota

Rajan @ Nana @ Seth @ Sir,
age: 61 years, occupation: Business at
Australia, r/o. 6/192 & 6/120, Tilak Nagar
Colony, Chembur, Mumbai400 089.
(Presently lodged at Tihar Jail, Jail No.2,
New Delhi). …. Accused
And
13) Nayansingh Pratapsingh Bista ....Wanted accused no.1
14) Ravi Ram Rattesar ....Wanted accused no.2
CORAM : HIS HONOUR THE SPECIAL JUDGE
MCOCA/SUSCA/POTA/NIA/TADA
SHRI S.S. ADKAR.
(COURT ROOM NO.57)
DATED : 02/05/2018.
SPP Shri P.D. Gharat for CBI/prosecution
Advocate Shri S.M. Deshpande for accused nos.1,6 and 7.
Advocate Shri Avinash Rasal for accused no.2.
Advocate Shri Prakash Shetty for accused nos.5 & 11.
Advocate Shri Anshuman Sinha & Advocate Shri Hasnain Kazi for accused
nos.3,4 & 12.
Advocate Shri Rajendra Rathod for accused nos.9 & 10.
JUDGMENT
1. Before stating anything about the case, this Court deems it fit to first
acknowledge the efforts made by the prosecution and the defence to
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ensure that the trial of this case is completed smoothly and at the earliest.
At times, there were situations in this case which had the potential of
derailing the trial. But the learned Advocates from both the sides by using
their experience and acumen ensured that the trial once started was never
derailed and that all the roadblocks were successfully overcome. This
Court received full cooperation from the prosecution and the defence.
The work ethics and conduct of the learned SPP Shri P.D. Gharat,
Advocate Shri Avinash Rasal, Advocate Shri Prakash Shetty, Advocate Shri
Anshuman Sinha a/w. Advocate Shri Hasnain Kazi, Advocate Shri Santosh
M. Deshpande and Advocate Shri Rajendra Rathod were exemplary.
PROSECUTION CASE
2. All the accused herein are charged of committing the offences
punishable u/s.120B, 302 of the Indian Penal Code (Hereinafter referred
to as “IPC”) r/w. sections 3(1)(i), 3(2) & 3(4) of the Maharashtra Control
Of Organized Crime Act,1999 (Hereinafter referred to as the “MCOC
Act,1999”). Additionally, the accused no.1 is also charged for the offences
u/s. 3, 25 & 27 of the Arms Act,1959 and u/s. 37(1A) & 135 of the
Bombay Police Act,1951 (Now known as the Maharashtra Police Act).
Similarly, the accused nos.1 to 5, 9 & 10 are also charged for the offence
u/s.201 of the IPC.
3. The case of the prosecution is that the accused no.12Rajendra

Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir (Hereinafter
referred to as “Chhota Rajan”) is the head of the Organized Crime
Syndicate of which the other accused persons are members. Jyoti
Nipendra Kumar Dey @ J.Dey (Hereinafter referred to as “J.Dey”) was a
senior Journalist in the daily 'MidDay'. He used to report matters relating
to the underworld. J.Dey had written several articles against the accused
11
no.12Chhota Rajan. He had also written two books namely “Zero Dial”
and “Khallas” making some negative references to the accused no.12
Chhota Rajan. J.Dey was in process of getting two more books published,
one of which was titled as “ChindiRags to Riches” and another book was
relating to his arch rival Dawood Ibrahim. As per the prosecution, the
book “ChindiRags to Riches” was the story of the rise of accused no.12
Chhota Rajan in the underworld.
4. It is the case of the prosecution that the accused no.12Chhota

Rajan did not like the comments made by J.Dey in some of the articles
written and posted by him relating to him. Also, the accused no.12Chhota
Rajan did not like the fact that in the articles written by J.Dey, he was not
only shown in bad light but he was also shown to be in a weaker position
than his arch rival Dawood Ibrahim. As per the prosecution, the word
“chindi” means “to abuse and insult” and such term is used to refer to a
person who is below par or of low standard. It is also the further case of
the prosecution that in the book “ChindiRags to Riches” J.Dey was going
to expose the fake patriotism of the accused no.12Chhota Rajan and his
desire to secure himself and amass wealth for his family. The book also
proposed to disclose that the accused no.12Chhota Rajan had no concern
for those who gave their lives for his cause. The contents of the said book
were somehow leaked and came to the knowledge of the accused no.12
Chhota Rajan. He then tried to persuade J.Dey to desist from writing
anything against him. But J.Dey did not succumb to the pressure exerted
by the accused no.12Chhota Rajan.
5. On 30/05/2011 and 02/06/2011, J.Dey wrote two news articles

(Exh.752 colly) against the accused no.12Chhota Rajan in the daily 'Mid
Day'. These stories were titled as “DID RAJAN PLAN HIT ON KASKAR?”
12
and "FEARING DGANG BACKLASH... RAJAN GANGSTERS OFF TO

'PILGRIMAGES'”. These articles infuriated the accused no.12Chhota
Rajan. As the accused no.12Chhota Rajan feared that if he was portrayed
in such a manner he would loose his hold and influence in the underworld
and that the Society will stop fearing him thereby adversely affecting his
illegal activities which would ultimately cause financial loss to him, a
conspiracy was hatched at his instance to eliminate J.Dey.
6. In pursuance of the conspiracy, the accused no.12Chhota Rajan

contacted the accused no.1Rohee Tangappan Joseph @ Satish Kalya.
Thereafter, the accused no.1Rohee Tangappan Joseph @ Satish Kalya
roped in the accused nos.2 to 7 for completing the task. After that, on the
instructions of the accused no.12Chhota Rajan he went to Chembur and
collected Rupees Two lacs and one global roaming SIM card from an
unknown person. The accused no.1Rohee Tangappan Joseph @ Satish
Kalya took the accused no.2Anil Waghmode, the accused no.3Abhijit
Shinde and the accused no.4Nilesh Shedge along with him to Nainital.
From there, he obtained two revolvers and cartridges from the accused
no.9Deepak Sisodiya and the wanted accused no.1Nayansingh Bista.
7. On the instructions of the accused no.12Chhota Rajan, on

07/06/2011, the deceased accused no.8Vinod Asrani called J.Dey and
PW.73Sanjay Prabhakar to the Uma Palace Bar and Restaurant, Mulund
for the identification of J.Dey by the accused no.2Anil Waghmode and the
accused no.5Arun Dake and accordingly, the identity of J.Dey was fixed.
Thereafter, on 09/06/2011, the accused no.1Rohee Tangappan Joseph @
Satish Kalya and the accused no.2Anil Waghmode kept a watch on J.Dey
near his Office for confirmation of the target. On 10/06/2011, the accused
nos.1 to 7 kept a watch on the house of the mother of J.Dey at Ghatkopar
13
(W) but they did not find J.Dey there. Therefore, they tried to find J.Dey
near his Office. But J.Dey was not found there also.
8. On 11/06/2011, when the accused nos.1 to 7 were again keeping a
watch on the house of the mother of J.Dey at Ghatkopar (W), they saw
J.Dey there in the afternoon. When J.Dey went out on his motorcycle, they
followed him on three motorcycles and one Qualis vehicle. At about 03:00
pm, when J.Dey was driving his motorcycle and when he was near the
gate of Crisil House Building, Hiranandani Garden, Powai, Mumbai and
when J.Dey reached near the D'Mart Shopping Mall at Powai, the accused
no.1Rohee Tangappan Joseph @ Satish Kalya who was the pillion rider
on the motorcycle which was being driven by the accused no.5Arun Dake
fired one round at J.Dey. When J.Dey stopped his motorcycle, the accused
no.1Rohee Tangappan Joseph @ Satish Kalya fired four more rounds at
J.Dey from his revolver. Thereafter, all of them fled from that spot on their
respective vehicles. J.Dey was rushed to the Hiranandani Hospital, Powai
where he was declared brought dead.
9. At about 03:00 pm to 03:30 pm, PW.1Sandip Shikhre who was

working an Assistant to PI (Law and Order), Police Station, Powai
received a telephonic information about the incident and he intimated this
fact to PW.2PI Tivatane who was attached to the Police Station, Powai.
PW.2PI Tivatane made the station diary entry (Exh.294) about the receipt
of the information and then proceeded towards the spot along with
PW.137PSI Rane. In the meantime, PW.3Prakash Vaval and PW.85HC
Kashinath Jadhav, who were assigned the duty as Beat Marshals in that
area, on receiving telephonic information about the incident from one Shri
Kishor Bhosle who was working as an orderly of the Senior PI, Police
Station, Powai went to the spot and ensured that the spot of the incident
14
was secured by keeping the general public away from the spot. When
PW.2PI Tivatane and PW.137PSI Rane reached the spot, they came to
know that J.Dey was taken to the Hiranandani Hospital, Powai with the
help of security guards PW.23Sanjay Singh and PW.24Zakirullah Qureshi
of the Hiranandani area. After instructing PW.3Prakash Vaval not to
permit the general public to come near the spot, both of them went to the
Hiranandani Hospital, Powai where they were informed by the Doctor that
J.Dey had expired (brought dead) before he could be admitted in the
Hospital. On seeing the bullet marks on the body of J.Dey, PW.2PI
Tivatane, directed PW.137PSI Rane to record the FIR. Accordingly, the
FIR (Exh.290) bearing crime no.256/2011 was registered with the Police
Station, Powai against unknown persons. On the directions of PW.2PI
Tivatane, the inquest panchanama (Exh.305) was drawn by PW.137PSI
Rane in presence of panch PW.5Girish Mishra and Shri Prakash Wadkar
who were called for. PW.8Bhushan Kumar was called to the Hospital for
taking the photographs (Exh.489 colly) of the dead body of J.Dey.
PW.137PSI Rane seized the clothes which J.Dey was wearing at the time
of the incident and other articles found on his person vide seizure
panchanama (Exh.306). Thereafter, PW.2PI Tivatane and PW.137PSI
Rane returned to the spot along with one person by name Javed Ahmed
Mohd. Ibrahim Ansari who showed the spot to them. The spotcumseizure
panchanama (Exh.1377) was prepared, PW.137PSI Rane seized the
Pulsar motorcycle of J.Dey (Article39), the lead (Article215) which was
found near the spot, the helmet of J.Dey (Article36) etc.. After the
proceedings on the spot were complete, PW.2PI Tivatane and PW.137PSI
Rane returned to the Police Station, Powai and a station diary entry
(Exh.295) was made regarding the above mentioned proceedings.
10. On the next day, i.e. on 12/06/2011, the investigation was

15
transferred to Crime Branch in view of the gravity of the offence and the
case was renumbered as crime no.57/2011 of Crime Branch, Mumbai.
PW.141PI Gosavi and PW.142API Datir were the Investigating Officers
and PW.133API Gopale, PW.134PI Pasalwar and PW.136PI Shripad Kale
assisted in the investigation.
11. During the course of the investigation, on 26/06/2011, the accused
no.1Rohee Tangappan Joseph @ Satish Kalya, the accused no.2Anil
Waghmode and the accused no.3Abhijit Shinde were arrested by PW.136
PI Kale. On the day same day, the accused no.4Nilesh Shedge was
arrested by PW.133API Gopale and the accused no.5Arun Dake, the
accused no.6Mangesh Aagvane & the accused no.7Sachin Gaikwad were
arrested by PW.134PI Pasalwar. Various mobile phones and SIM cards
were seized from the person of the accused nos.1,2,4 to 7. In view of the
disclosure statement made by the accused no.1Rohee Tangappan Joseph
@ Satish Kalya the revolver, 20 cartridges and 5 empties which were used
in the crime were recovered. Similarly, in view of the disclosure
statements made by the accused nos.2,4,6 and 7, the motorcycles and the
Qualis vehicle used by the accused nos.1 to 7 at the time of the incident
were also recovered. Also, the interrogation of the accused nos.1 to 7
revealed that the crime in question was an organized crime which was
committed at the instance of the accused no.12Chhota Rajan who was
absconding at that time. During the course of the investigation, the
deceased accused no.8Vinod Asrani was arrested on 02/07/2011 by
PW.133API Gopale.
12. During the investigation, it was also revealed that the deceased
accused no.8Vinod Asrani had called J.Dey for dinner at Uma Palace Bar,
Mulund on 07/06/2011 at about 08:30 pm to facilitate his identification
16
by the accused persons for the purpose of eliminating him. Similarly, the
accused no.9Deepak Sisodiya and the wanted accused no.1Nayansigh
Bista had provided the revolver and bullets to the accused no.1Rohee
Tangappan Joseph @ Satish Kalya thereby facilitating the organized crime
of committing murder of J.Dey. It was revealed that the accused no.10
Paulson Palitara had provided global SIM cards and Rs.2 Lacs to the
members of the Organized Crime Syndicate for facilitating their
communication with each other and particularly with the accused no.12
Chhota Rajan and for financing and facilitating the activities of the
Organized Crime Syndicate. It was also revealed that the accused no.11
Ms.Jigna Vora had provided important information about J.Dey such as
his photograph, motorcycle number, addresses and timing etc., to the
accused no.12Chhota Rajan for facilitating his identification for the
commission of his murder.
13. During the course of the investigation, the statement of witnesses
including the witnesses to whom the accused no.12Chhota Rajan had
made extrajudicial confession were recorded, confessional statements of
the accused nos.5,9 & 10 u/s.18 of the MCOC Act,1999 were recorded, the
CDRs of the mobile numbers and the mobile phones used in committing
the offence were collected and the Test Identification Parade was held.
The revolver, cartridges and the empties recovered at the instance of the
accused no.1Rohee Tangappan Joseph @ Satish Kalya and other seized
articles were sent for chemical/ballistic analysis.
14. As prima facie, it was a case of an organized crime committed by the
Organized Crime Syndicate of the accused no.12Chhota Rajan, the
proposal for approval was forwarded to the Competent Authority (Joint
Commissioner of Police, Brihan Mumbai) by PW.142API Datir for
17
invoking the provisions of the MCOC Act,1999. Accordingly, on

07/07/2011, the approval u/s.23(1) of MCOC Act,1999 (Article285) was
granted by the Competent Authority (Joint Commissioner of Police, Brihan
Mumbai) for the prosecution of the accused persons for the offences under
the MCOC Act,1999 and on the same day, the investigation of the case
was transferred to PW.143ACP Duraphe. After PW.143ACP Duraphe took
over the investigation, the accused no.9Deepak Sisodiya was brought to
Mumbai from Nainital and after interrogation he was arrested on
22/07/2011. The accused no.10Paulson Palitara was arrested on
05/09/2011 by PW.133API Gopale and the accused no.11Ms.Jigna Vora
was arrested on 25/11/2011 by PW.143ACP Duraphe. In view of the
disclosure statement made by the accused no.10Paulson Palitara, one
mobile and one Global roaming SIM card was recovered. The sanction
u/s.23(2) of the MCOC Act,1999 (Exh.250) was issued by PW.149CP
Patnaik on 13/10/2011. The necessary sanction (Exh.252) under the Arms
Act,1959 was also granted by PW.154DCP Smt.Sheela Sail. After the
arrest of the accused no.11Ms.Jigna Vora, fresh sanction u/s.23(2) of the
MCOC Act,1999 (Exh.251) was issued by PW.149CP Patnaik.
15. After the investigation was completed, the chargesheet u/s.173(2)
of the Cr.P.C.,1973 came to be filed against the accused nos.1 to 12. That
case was registered as MCOC Special Case no.19/2011. Thereafter, the
further investigation was carried out in so far as the accused no.11
Ms.Jigna Vora was concerned and the supplementary chargesheet was
filed against her. That case was registered as MCOC Special Case
no.07/2012.
16. It may be noted that the accused no.12Chhota Rajan was arrested
in October 2015 at Bali, Indonesia and then he was brought to India and
18
lodged at Tihar Jail, New Delhi in connection with Case

No.RC.7(A)/2015/SCU.V/SCII/CBI/New Delhi. On 06/01/2016, the
Hon'ble Lt.Governor, New Delhi passed order u/s.268 Cr.P.C.,1973 by
which the accused no.12Chhota Rajan was directed not to be moved out
of the Tihar Jail, New Delhi on the ground there was a threat to his life.
17. At this stage, it is necessary to state that prior to the arrest of the
accused no.12Chhota Rajan, this matter was being dealt with by the
regular MCOC Court. The then learned Presiding Officer had framed
charge against the accused nos.1 to 7 and 9 to 11 vide Exh.208. They had
pleaded not guilty and claimed to be tried. As the accused no.8 had
expired, the proceedings as against him stood abated. After framing the
charge, six witnesses were examined by the prosecution. But thereafter, as
the accused no.12Chhota Rajan came to be arrested in October 2015, the
trial could not proceed for some time. After the accused no.12Chhota
Rajan was brought to India from Bali, Indonesia the State of Maharashtra
thought it proper to constitute a Special Court for dealing with all the
cases in which the accused no.12Chhota Rajan was allegedly involved as
there were many cases registered against him. Also, the State of
Maharashtra was of the view that all the matters involving the accused
no.12Chhota Rajan should be transferred to the CBI for further
investigation. Accordingly, vide notification dated 29/01/2016 this Special
Court was constituted for dealing with all the cases under
MCOC/TADA/POTA/SESSIONS involving the accused no.12Chhota
Rajan. This Special Court started functioning from 01/02/2016. Similarly,
all the cases under MCOC/TADA/POTA/SESSIONS registered against the
accused no.12Chhota Rajan were transferred to the CBI for further
investigation.
19
18. The accused no.12Chhota Rajan was taken in judicial custody in
connection with this case on 07/01/2016 and thereafter, the further
investigation was carried out u/s.173(8) of Cr.P.C.,1973. During the
further investigation, one Ravi Ram Rattesar who was earlier identified as
a prosecution witness by the DCB, CID was arrayed as the wanted accused
no.2. After the further investigation was completed, the supplementary
chargesheet was filed against the accused no.12Chhota Rajan. That case
was registered as MCOC Special Case no.15/2016.
19. It may be noted that by the order dated 07/07/2017 a nonbailable
warrant was issued against the wanted accused no.2Ravi Ram Rattesar
for securing his presence. But his presence could not be secured.
Therefore, by the order dated 31/07/2017, a standing nonbailable
warrant was issued against him. Thereafter, proclamation was issued
against him on 10/10/2017. But the wanted accused no.2Ravi Ram
Rattesar failed to appear before this Court. As such, a red corner notice
was issued against him. Thereafter, the location of the wanted accused
no.2Ravi Ram Rattesar was traced at UAE and the extradition
proceedings were initiated against him. But till the time of this judgment
he was not brought to India.
20. After the prosecution filed the supplementary chargesheet against
the accused no.12Chhota Rajan on 05/08/2016, this Court framed the
charge against him for the offences u/s. 120B, 302 & 109 of the IPC r/w.
3(1)(i), 3(2) & 3(4) of the MCOC Act,1999 vide Exh.438. On explaining
the charge in vernacular, the accused no.12Chhota Rajan pleaded not
guilty and claimed to be tried.
21. It may also be noted that after the charge was framed against the
20
accused no.12Chhota Rajan an opportunity was granted to him and to all
the other accused to crossexamine the witnesses who were examined
earlier. Accordingly, some of the witnesses were recalled and cross
examined.
22. The prosecution has examined 155 witnesses and relied upon
various documents. The prosecution closed its evidence by filing pursis
(Exh.1548). Thereafter, the statement of the accused nos.1 to 7, 9 to 12
u/s.313(b) of Cr.P.C.,1973 was recorded vide Exhs.1567 to 1571,
Exh.1577, Exh.1578, Exh.1572, Exh.1573, Exh.1576 and Exh.1591
respectively. In addition, the accused persons were directed/permitted to
file written statement u/s.313(5) of Cr.P.C.,1973 in order to ensure that
complete opportunity is given to them to explain any circumstance
appearing in evidence against them. But only the accused nos.1,2 and 3
filed their written statements (Exh.1567A, Exh.1568A and Exh.1573A
respectively). The remaining accused persons made a statement that they
did not want to file any written statement. This fact has been recorded in
the roznama dated 29/01/2018 & 31/01/2018.
23. Heard both sides. The learned SPP and the learned Advocates for
the defence have orally advanced their arguments in detail. By filing
written notes of arguments they have also raised certain other points. This
Court has perused the written notes of arguments filed on behalf of the
prosecution (Exh.1691) and on behalf of the accused nos.1,6 and 7
(Exh.1702), the accused nos.3 and 4 (Exh.1707 and 1708), the accused
nos.5 and 11 (Exh.1677 and 1711) and the accused no.12 (Exh.1705). In
view of the provisions of section 172(2) of Cr.P.C.,1973, this Court has
also gone through the available Police diaries of this case. Both the sides
have relied upon various case laws in support of their arguments. They are
21
being considered at appropriate places in the judgment.
24. In the light of the facts of the case and the submissions made on
behalf of the parties, the following points arise for consideration and the
findings thereon are recorded as under, for the reasons to follow:
SR.NO. POINTS FINDINGS
1 Whether it is proved that the death of J.Dey was Yes.
homicidal?
2 Whether it is proved that the accused nos.1 to 7 Yes.
and 9 to 12, the deceased accused no.8 along with Except as
the wanted accused nos.1 & 2, agreed to commit against the
an illegal act i.e. to commit or caused to be commit accused
the murder of J.Dey on 11/06/2011 at about nos.10 & 11.
03:00 pm at Crisil House Building out gate,
Hiranandani Garden, Powai and thereby the
accused nos.1 to 7 and 9 to 12 have committed an
offence u/s.120B of the IPC?
the wanted accused nos.1 & 2, in pursuance to the against the
above mentioned criminal conspiracy, committed accused nos.9,
or caused to be committed the murder of J.Dey on 10 & 11.
11/06/2011 at about 03:00 pm at Crisil House
Building out gate, Hiranandani Garden, Powai and
thereby the accused nos.1 to 7 and 9 to 12 have
committed an offence u/s.302 r/w 120B of the
IPC?
4 Whether it is proved that in furtherance of the Yes.

criminal conspiracy and during the course of same
transaction the accused no.1 on 11/06/2011 did
possess a firearm viz.. revolver without any valid
license and thereby the accused no.1 has
committed an offence u/s.3 punishable u/s.25
(1B)(a) of the Arms Act,1959?
22
5 Whether it is proved that in furtherance of the Yes.

use a firearm viz.. revolver without any valid
license for committing the murder of J.Dey and
thereby the accused no.1 has committed an offence
u/s.5 punishable u/s. 27 of the Arms Act,1959?
6 Whether it is proved that in furtherance of the No.

possess firearm viz.. revolver in contravention of
the prohibitory order issued on 21/05/2011 by the
Office of the Commissioner of Police, Mumbai and
the accused no.1 has thereby committed an offence
punishable u/s.37(1)(a) r/w. 135 of the Bombay
(Maharashtra) Police Act,1951?
7 Whether it is proved that the accused no.12 along Yes.
with the accused nos.1 to 7, the accused nos.9 to Except as
11, the deceased accused no.8 along with wanted against the
accused nos.1 & 2 being the members of the accused nos.9,
Organized Crime Syndicate as defined u/s.2(f) of 10 & 11.
the MCOC Act, 1999 headed by the accused no.12
did conspire to continue unlawful activity and to
commit organized crime as defined u/s.2(e) of the
MCOC Act, 1999 i.e. on 11/06/2011 at about
03:00 pm at Crisil House Building out gate,
Hiranandani Garden, Powai, committed murder of
J.Dey by using firearm with the objective of
gaining pecuniary benefits or gaining undue
economic or other advantage and thereby the
accused nos.1 to 7 and the accused nos.9 to 12
have committed an offence punishable u/s.3(1)(i)
of the MCOC Act,1999?
the wanted accused nos.1 & 2 conspired, abetted against the
and/or facilitated the commission of the aforesaid accused nos.
organized crime and/or acts preparatory to 10 & 11.
organized crime and thereby the accused nos.1 to
23
7 and 9 to 12 have committed an offence

punishable u/s.3(2) of the MCOC Act, 1999?
9 Whether it is proved that the accused nos.1 to 7, Yes.
the accused nos.9 to 12, the deceased accused no.8 Except as
and the wanted accused nos.1 & 2, during the against the
period of 10 years preceding to 11/06/2011 accused nos.
formed an Organized Crime Syndicate as defined 10 & 11.
u/s.2(f) of MCOC Act, 1999 under leadership of
the accused no.12 and the accused nos.1 to 7,
accused nos.9 to 12 were members of said
Organized Crime Syndicate and thereby the
accused nos.1 to 7 and 9 to 12 have committed an
offence punishable u/s.3(4) of the MCOC Act,
1999?
10 Whether it is proved that in furtherance of the No.

transaction the accused nos.1 to 5, 9 and 10
destroyed the mobile phones and SIM card used in
the crime with the intention of screening the
offender from legal punishment and thereby the
accused nos.1 to 5, 9 and 10 have committed an
offence punishable u/s.201 of the IPC?
11 What order? As per final
order.
REASONS
25. In order to prove its case, the prosecution has examined the
following witnesses:
SR. PW NAME EXH. ROLE

NO. NO. NO.
1 1 Sandip Rangnath Shikhre 288 Assistant to Police Inspector who

received the information about
24

NO. NO. NO.
the incident on phone and

forwarded the said information
to the PI, Police Station, Powai.
(PW.2)
2 2 Mahavir Neminayh 289 Police Inspector on whose

Tivatane information the FIR was
registered. (Informant)
3 3 Prakash Ramchandra 297 Day Beat Marshal in whose

Vaval presence the lead found near the
spot, motorcycle & helmet of
J.Dey were seized.
4 4 Bapusaheb Dnyaneshwar 299 Police Officer who deposited the

Pawar Xray plates, 5 bottles & letters
and the death certificate of
J.Dey given by the Doctor in the
Police Station, Powai.
5 5 Girish Ramdhari Mishra 304 Panch witness.
6 6 Suhas Purushottam Joshi 340 He prepared the sketch map of

the spot of the incident.
7 7 Ms.Shubha Sharma 479 Wife of J.Dey.
8 8 Bhushan Kumar Singh 488 He took photographs of the dead

body of J.Dey.
9 9 Malang Ismail Sheikh 492 Panch witness.
10 10 Habib Jamal Mansuri 503 Panch witness.
11 11 Vikram Gulabchand Jain 511 Panch witness.
12 12 Mohd. Ayub Mohd. Umar 518 Panch witness.

Mogal
25

NO. NO. NO.
13 13 Manik Kapurchand Raja 525 Panch witness.
14 14 Arshad Ahmed Memon 537 His documents were used for

obtaining the SIM card of mobile
no.9987917765 by the accused
no.2.
15 15 Banka Amarnath Gaud 538 His documents were used for

no.1.
16 16 Sanjay Shivaji Kamble 544 His documents were used for
no.5.
17 17 Siddarth Rajendra Kale 547 He had given the SIM of mobile

no.9987017977 to his friend
PW.19Pramod who lost the SIM
card and it was used by and
seized from the accused no.5.
18 18 Mohd. Abbas Jilani 553 Panch witness.
19 19 Pramod Tukaram Tambe 555 He had taken the SIM of mobile

no.9987017977 from his friend
PW.17Siddarth Kale which he
then lost and it was used by and
seized from the accused no.5.
20 20 Suresh Shivnath Avad 562 Police Officer who filed charge

sheet in Crime no.3/2005.
(previous chargesheet)
21 21 Ramesh Manohar 570 Police Officer who filed charge

Pargunde sheet in Crime nos.86/2005 and
87/2005.(previous chargesheet)
22 22 Narsihn Shrinivas 572 Fatherinlaw of J.Dey.

26

NO. NO. NO.
Sharma
23 23 Sanjay Harinarayan 578 One of the security guards of

Singh Hiranandani who lifted and
placed J.Dey in a car for taking
him to the Hospital.
24 24 Zakirullah Karimullah 579 One of the security guards of

Qureshi Hiranandani who saw J.Dey
being placed in the car.
25 25 Shiva Shukhranjan 583 Journalist who was associated

Devnath with J.Dey in his Office.
26 26 Dinesh Pundlik Arekar 593 Officer of the RTO who had

given the details of the
motorcycle no.MH02AN4648
which was used in the crime.
27 27 Yogesh Ganpat Shitap 594 Engineer from whom the Police

had seized the CCTV footage in
CDs and the hard disk in which
the CCTV footage was recorded.
28 28 Dattatray Tanaji Chavan 599 Owner of the motorcycle no.MH

02AN4648 which was used in
the crime.
29 29 Dnyandev Pandharinath 602 Officer of the RTO who had

Sangle given the details of the Toyota
Qualis vehicle no.MH12CD
7701 which was used in the
crime.
30 30 Dattatray Raghunath 604 Owner of the motorcycle no.MH

More 01AF8843 which was used in
the crime.
31 31 Suresh Sadhu Waghmare 608 Owner of the motorcycle no.MH

27

NO. NO. NO.
06AH4891 which was used in

the crime.
32 32 Pramod Ratnakar 612 He deposited the seized

Chavanke muddemal with the FSL,Kalina
for chemical analysis.
33 33 Murtuza Tayyab 615 Accused no.11 had given her

Eranpurwala Samsung Galaxy Tab 16 GB
model to him for use.
34 34 Chandrashekar Krushna 624 Friend of accused no.10.

Awle
35 35 Jacob George 625 Friend of J.Dey.
36 36 Amritpal Gurmeet Singh 626 Friend of J.Dey.

Sanotra
37 37 Shaikh Sajid Ibrahim 627 He purchased a Blackberry

mobile phone from PW.39Salih
Haji who had purchased it from
a lady.
38 38 Vikram Devender Ahuja 628 Friend of accused no.11. He had

given the SIM card of mobile no.
9870011000 to her for use.
39 39 Salih Yusuf Haji 632 He purchased a Blackberry

mobile phone from a lady which
according to the prosecution was
the accused no.11.
40 40 Sunil Kumar Mehrotra 637 Reporter to whom accused no.1

had made extrajudicial
confession.
41 41 Akash Ashwin Shah 639 His company was approached by

J.Dey for publishing a book on
28

NO. NO. NO.
Dawood Ibrahim.
42 42 Rajan Chandrakant Seth 641 Friend of J.Dey.
43 43 Vilas Ramchander 645 He was informed by the son of

Samant the deceased accused no.8 that
J.Dey was planning to kill
accused no.12 through Dawood
Ibrahim & Chhota Shakil.
44 44 Atul Vidyasagar Sharma 646 Friend of J.Dey.
45 45 V.R.Divakaran 647 Friend of J.Dey.
46 46 Ms.Poornima Shriram 650 Colleague of J.Dey who was

Swaminathan working along with him on
books relating to the accused
no.12 and Dawood Ibrahim.
47 47 Ganesh Narayan Rai 655 He was examined to show that

accused no.12 used to give
threats to people to get his work
done and that wanted accused
no.2Ravi Rattesar was his gang
member.
48 48 Ravikumar Roopchand 656 He was examined to show that

Arora accused no.12 used to give
member.
49 49 Prasad Gopal Kotian 657 He was examined to show that

accused no.12 used to give
29

NO. NO. NO.
member.
50 50 Indukumar Shashi Amin 658 Accused no.12 had phoned and

abused him.
51 51 Nilesh Dinkar Paradkar 663 Exmember of the gang of the

accused no.12.
52 52 Prashant Laxman 664 Exmember of the gang of the

Deshmukh accused no.12.
53 53 Abbas Ismail Sheikh 670 Panch witness.
54 54 Ashok Rammrut Singh 676 He was working as the Manager

of the Uma Palace Bar &
Restaurant, Mulund and had
seen J.Dey with the deceased
accused no.8 in that Bar on
07/06/2011.
55 55 Rajiv Bhaskar Mane 681 He was the original owner of the

motorcycle bearing registration
no.MH01AF8843 which was
used in the crime.
56 56 Dr. Shivaji Vishnu 684 He had seen J.Dey along with

Kachare the deceased accused no.8 on
07/06/2011 in the Uma Palace
Bar and Restaurant, Mulund.
57 57 Paresh Nanji Rathod 696 Panch witness.
58 58 Pradeep Babubhai 709 Panch witness.

Rathod
59 59 Mukesh Madanmohan 713 He was working with the Jet

Gupta Airways at the relevant time. He
gave the details of the travel of
the deceased accused no.8 of
30

NO. NO. NO.
June 2011.
60 60 Mahesh Tahsildar Singh 717 Watchman of Uma Palace Bar &

Restaurant, Mulund who had
seen the deceased accused no.8
along with J.Dey in the Uma
Palace Bar & Restaurant,
Mulund on 07/06/2011.
61 61 Kiran Pandurang 719 He was the driver of the

Khandagale deceased accused no.8.
62 62 Ms.Geetanjali Mangesh 721 She was working with the

Shirsat Kingfisher Airlines at the
relevant time. She gave the
details of the travel of the
deceased accused no.8 of June
2011.
63 63 Nasiruddin Mohd. Ali 725 Panch witness.

Khan
64 64 Deepak Govind Patel 737 He was working with the

deceased accused no.8 at the
relevant time.
65 65 Abdul Sajid Mustaq 740 He purchased and then sold a

Blackberry mobile phone which
was allegedly used by the
accused no.11.
66 66 Sahil Ramesh Joshi 741 Reporter to whom his colleague

(PW.100) had told that the
accused no.12 had made extra
judicial confession to him on
phone.
67 67 Pradip Parshuram Kadam 746 He was examined to show that

while the deceased accused no.8
31

NO. NO. NO.
was on bail in another criminal
case, he had jumped the
conditions of bail and that this
witness had filed the application
before the concerned Court for
the cancellation of his bail.
68 68 Sachin Ramesh Kalbag 751 He was working in the daily

'MidDay' at the relevant time.
He was interviewed by the
'NDTV India' news channel
regarding involvement of the
accused no.12 in the present
case.
69 69 Santosh Sakharam Desai 755 Police Naik in whose presence

the DVD containing the
interview of the accused no.12
given to the 'NDTV India' news
channel was seized.
70 70 Sunny Jagmohansingh 757 Panch witness.

Sidana
71 71 Arvind Vidyasagar 759 Accused no.10 had used his

Upadhyaya documents to get the mobile
no.9768630692 which was used
in the crime.
72 72 Ramjatan Lalta Patel 766 Security guard who was present

on the spot at the time of the
incident. He had seen J.Dey
fallen on the road and saw the
assailants fleeing from the spot
on their motorcycles.
73 73 Sanjay Prabhakar s/o 767 Press Reporter and friend of

Jagdishprasad Mandal J.Dey who had gone along with
him to the Uma Palace Bar and
Restaurant, Mulund on
32

NO. NO. NO.
07/06/2011.
74 74 Pramod Bhau Sawant 773 API who intercepted telephonic

conversation between the
accused no.12 and PW.90Manoj
Shivdasani.
75 75 Jayesh Pundlik Mhatre 782 Technician from whom the

Police had seized the CCTV
footage of 11/06/2011 (Date of
the incident)
76 76 Jitendra Ram Dixit 787 Correspondent to whom the

accused no.12 had made extra
judicial confession on phone.
77 77 Sanjeev Devasia 790 Principal Correspondent of the

daily 'MidDay' who had
published the “first person
account” of PW.73Sanjay
Prabhakar regarding his meeting
with J.Dey and the deceased
accused no.8.
78 78 Sunilkumar 796 Correspondent to whom the

Mangalprasad Singh accused no.12 had made extra
judicial confession on phone.
79 79 Rajesh Sakharam Revale 798 Ward boy of the Hiranandani

Hospital who removed the
clothes from the dead body of
J.Dey and handed over them to
the Police.
80 80 Murtuza Yusuf Diwan 802 Friend of accused no.11 who

had surrendered the mobile
phones and memory card which
were used by her to the Police.
33

NO. NO. NO.
81 81 Nilesh Ranjitbhai Desai 808 The accused no.11 had given a

Blackberry mobile phone to his
wife.
82 82 Amir Khan 809 Friend of the accused no.10 who

was present in the meeting
which took place the accused
no.10 and the accused no.11
prior to the incident.
83 83 Nishit Harish Chauhatiya 810 Friend of the accused no.10 who

arranged for a meeting between
him and the accused no.11 prior
to the incident.
84 84 Bhaskar Shankar Gode 812 Police Constable in whose

presence the CDs containing the
CCTV footage of Hiranandani
Shopping center of 11/06/2011
(The date of the incident) were
seized.
85 85 Kashinath Santu Jadhav 819 Head Constable in whose

presence the panchanama
regarding finding of an empty
lead lying near the spot,
motorcycle and the helmet of
J.Dey was drawn.
86 86 Balkrushnan Ramaswami 821 He had purchased a second

Govendar hand Samsung C5212 mobile
phone from a vendor which
originally belonged to the
accused no.11 and was used by
her.
87 87 Nikhil Subash Dixit 826 Journalist to whom the accused

no.12 had made extrajudicial
confession on phone.
34

NO. NO. NO.
88 88 Sunil Bhanudas 834 Brother of the accused no.2. He

Waghmode was using the mobile phone of
the accused no.2 which was
used in the crime.
89 89 Girish Kisan Sargar 835 After the incident, he dropped

some of the accused persons at a
dabha at Mira road in his tempo.
90 90 Manoj Arjun Shivdasani 841 The accused no.12 had spoken

with him on phone about the
murder of J.Dey.
91 91 Bhaskar Ratan Patole 851 He deposited articles with

FSL,Kalina for forensic analysis.
92 92 Ms.Rubina Isral Ansari 852 She gave a SIM card of mobile

no.8652580503 to the wife of
the accused no.5 and the said
SIM card was used by him in the
crime.
93 93 Ms.Lata Arun Dake 856 Wife of the accused no.5. She

confirmed the fact that PW.92
had given a SIM card to her.
94 94 Suresh Nivrutti Ramraje 858 He deposited articles with

FSL,Kalina for forensic analysis.
95 95 Kailas Bhalchandra 859 He deposited Xray plates and

Komlekar Postmortem report of J.Dey
with FSL,Kalina for forensic
analysis.
96 96 Prasad Sharad Shah 860 Brotherinlaw of the accused

no.10 to whom he had given
some money for giving it to the
wanted accused no.2Ravi
35

NO. NO. NO.
Rattesar.
97 97 Sudhakar Premanand 862 He deposited articles with

Kokate FSL,Kalina for forensic analysis.
98 98 Sambhaji Shivaji Jagdale 863 Police Havaldar who executed

the order promulgated under the
Arms Act,1959 prohibiting
carrying of weapons at the
relevant time.
99 99 Vijay Lakshmikant 864 Brotherinlaw of accused no.5.

Chauhan He gave the SIM card of mobile
number 8652449019 to him for
use and the same was used by
the accused no.5 in the crime.
100 100 Aariz Chandra 866 Journalist to whom the accused

no.12 had made extrajudicial
confession on phone.
101 101 Deepak Budhaji Kamble 871 Police Havaldar who along with

PW.98 executed the order
promulgated under the Arms
Act,1959 prohibiting carrying of
weapons at the relevant time.
102 102 Sunil Rajaram Raut 877 Friend of accused no.10. The

accused no.10 had phoned him
from the international mobile
number +3444.
103 103 Tukaram Parshuram 879 Police Officer who had produced

Dewoolkar the accused nos.5,9 and 10
before the concerned DCP as
they wanted to make confession
u/s.18 of the MCOC Act,1999.
104 104 Shaikh Shafiullah 880 J.Dey had toured Europe in

36

NO. NO. NO.
Fakrullah April, 2011 and this witness was
the Tour Manager.
105 105 Suhas Bhalchandra Naik 888 PSI who took the accused no.5
to the Office of the DCP for
recording his confession and
thereafter produced him before
the Court of the CMM,
Esplanade Court and then before
PW.143ACP Duraphe.
106 106 Vijay Parvatrao Shinde 895 API who took the accused no.9

to the Office of the DCP for
recording his confession and
thereafter produced the accused
before the Court of the CMM,
Esplanade Court and then before
PW.143ACP Duraphe.
107 107 Roshan Mahadev Baikar 900 He had given the SIM card of

mobile nos. 8652475214 &
9004328040 to the accused no.5
for use and the mobile phone of
Samsung company (Art.159) to
the accused no.7 for use and all
the above articles were used in
the crime.
108 108 Shekhar Vinayak Palande 906 Nodal Officer, TATA Tele

services.
109 109 Rakeshchandra Rambhuj 917 Nodal Officer, Loop mobile

Prajapati (India) Ltd.
110 110 Rajesh Sampatrao 935 Nodal Officer, Reliance

Gaikwad Communication Ltd.
111 111 Vijay Eknath Shinde 947 Nodal Officer, Idea Cellular Ltd.

37

NO. NO. NO.
112 112 Amit Rajendra Chauhan 988 Manager of Hotel SV, Haldvani,

Dist. Nainital in which some of
the accused had stayed prior to
the incident.
113 113 Sunil Subashchandra 989 Nodal Officer, Aircel Cellular

Tiwari Ltd.
114 114 Anand Sadanand Pawar 1008 Constable who was deputed to

find out the details of the
subscribers of the mobile
nos.9892504897, 9867464129 &
8652490277.
115 115 Laxmikant Narayanrao 1013 PSI who was deputed to bring
Salunkhe accused no.10 to the L.T.Marg
Police Station and keep him in
custody there for giving him
time to reconsider his decision
to make confession and to
produce him before PW.119
DCP Dalvi on the next day for
recording confession.
116 116 Rajesh Shridhar Kadam 1025 He was the superior Officer of

the accused no.11 at the
relevant time.
117 117 Vishal Kishor Parmar 1027 Panch witness.
118 118 Yogesh Shrikrishna 1031 Nodal Officer, Airtel Ltd.

Rajapurkar
119 119 Manohar Uttamrao Dalvi 1061 DCP who recorded the

confession of the accused no.10.
120 120 Mukund Gopal Pawar 1084 Police Officer from the cyber cell

division who obtained the
details of the email IDs of the
38

NO. NO. NO.
accused no.11.
121 121 Vikas Narayan Phulkar 1091 Nodal Officer, Vodafone Essar

Ltd.
122 122 Dr. Mahesh Patil 1159 DCP who had recorded the

123 123 Aslam Haji Adbul 1200 Panch witness.

Rahman Mansuri
124 124 Dr. Cherring Dorje 1211 DCP who recorded the

125 125 Ganesh Pandharinath 1239 Friend of the accused no.3 and

Kharat accused no.5 and the driver of
the Qualis vehicle in which the
accused nos.1 to 4 had gone to
Haldvani, Nainital on
10/05/2011 (prior to the
incident).
126 126 Pradeep Pandurang 1246 Panch witness.

Shirodkar
127 127 Bhagwansingh Bagsingh 1253 Panch witness.

Thakur
128 128 Dr. Sadanand Sangram 1262 Medical Officer who conducted
Bhise the Postmortem of the body of
J.Dey.
129 129 Balu Pandit Panchange 1271 Panch witness.
130 130 Dr. Fakruddin Ali Shah 1278 Medical Officer of Hiranandani

Hospital, Powai who was the
first person to examine the body
of J.Dey.
39

NO. NO. NO.
131 131 Meer Usman Ali 1284 Panch witness.
132 132 Dhananjay Rawat 1293 Panch witness.
133 133 Nandkumar Maruti 1312 API who was associated with the

Gopale investigation.
134 134 Shailash Digambar 1320 PI who was associated with the

Pasalwar investigation.
135 135 Amitosh Kumar Singh 1343 Sr. Scientific Officer, CFSL,New

Delhi who collected the voice
sample of the accused no.12
Chhota Rajan.
136 136 Shripad Balkrishna Kale 1355 Sr. PI who was associated with

the investigation.
137 137 Suresh Vasudev Rane 1375 Investigating OfficerPSI, Powai

Police Station.
138 138 Dinkar Ganpatrao Bhosle 1385 PI who was associated with the

investigation.
139 139 Smt.Nidhi Anil Nandwani 1389 Her voter ID card was used by

PW.140 for purchasing the SIM
card of mobile no.9690115644.
140 140 Sanjeev Kumar s/o. 1390 He purchased the SIM card of
Kalyan Ram the mobile no.9690115644 by
using the voter ID card of
PW.139. The said mobile
number was then used by the
accused no.9.
141 141 Pradeep Nivrutti Gosavi 1392 Investigating OfficerPI, Crime

Branch, Unit no.10.
142 142 Vilas Wamanrao Datir 1400 Investigating OfficerAPI Crime

40

NO. NO. NO.
Branch, Unit no.1.
143 143 Ashok Tukaram Duraphe 1420 Investigating OfficerACP who

conducted the investigation after
the provisions of the MCOC
Act,1999 were invoked.
144 144 Ms.Leena Pawar 1456 Alternate Nodal Officer, Aircel.
145 145 Chandrashekar Tiwari 1463 Nodal Officer, Airtel, Delhi

circle.
146 146 Pradip Singh 1465 Alternate Nodal Officer,

Vodafone, Delhi circle.
147 147 Rajeev Kumar Sinha 1469 Inspector, CBI who took the

custody of the two IPhones and
one IPad of the accused no.12
Chhota Rajan from another
Officer.
148 148 Basil Kerketta 1475 Addnl SP, CBI who forwarded

the mobile phones & IPad of the
accused no.12Chhota Rajan to
FSL,Kalina.
149 149 Arup Mohan Patnaik 1484 Commissioner of Police and the

sanctioning authority under the
MCOC Act,1999.
150 150 S.S. Kishore 1485 Supdt. Police CBI who registered

the FIR (CBI) after the case was
transferred to CBI for further
investigation. He also made
correspondence with the
CFSL,New Delhi.
151 151 Vishal Subash Koik 1512 CA, FSL,Kalina.

41

NO. NO. NO.
152 152 Natram Meena s/o. Late 1528 Investigating Officer, CBI.

Mangalram
153 153 Dr. Edward Burns 1543 Forensic Expert, NASSCOM,

USA.
154 154 Smt.Sheela Dinkar Sail 1553 DCP who was the Sanctioning

Authority under the Arms
Act,1959.
155 155 Dr.Rajinder Singh 1565 Director, CFSL,New Delhi who

analyzed the voice sample of the
26. The prosecution has relied upon the following important documents:
SR. DOCUMENT EXH. ADMITTED/

NO. NO. NOT
ADMITTED
BY DEFENCE
1 Printed FIR. 290 Not Admitted.
2 Inquest panchanama. (It also shows the 305 Not Admitted.
seizure of various articles found on the
person of J.Dey)
3 Seizure panchanama of the clothes which 306 Not Admitted.
J.Dey was wearing at the time of incident.
4 Spot map/sketch. 341 & Not Admitted.
342
5 Photographs of dead body J.Dey. 489 colly. Not Admitted.
6 Personal search & arrest panchanama of 493 Not Admitted.
accused nos.1,2,3.
accused nos.5,6,7.
42

NO. NO. NOT
ADMITTED
BY DEFENCE
accused no.4.
9 Seizure panchanama of hard disk of the 519 Not Admitted.
CCTV which was installed near the spot of
the incident.
10 Seizure panchanama of DVD regarding the 526 Not Admitted.
news item reported on NDTV.
11 Seizure panchanama regarding seizure of 527 Admitted.
laptop (Notebook) of J.Dey from PW.7.
12 Seizure panchanama of the passport of J.Dey. 528 Admitted.
13 Seizure panchanama of laptop (Acer 529 Admitted.
company) of J.Dey and a harddisk from
PW.7.
14 Xerox copy of the driving license along with 545 Not Admitted.
the photograph of PW.16.
accused no.10Paulson Palitara.
16 Chargesheet in Crime no.3/2005. 563 Not Admitted.
17 Chargesheet in Crime no.86/2005. 571 Not Admitted.
18 Seizure panchanama of the CD containing a 598 Admitted.
news item which was aired on 'IBN LOKMAT'
channel on 27/06/2011.
19 Form showing the details of the Toyota 603 Not Admitted.
Qualis vehicle no. MH12CD7701 received
from the RTO, Andheri.
20 Registration card, insurance cover note, 605A Not Admitted.
Form28, Form29, Form30, tax invoice of (colly.)
the motorcycle no. MH01AF8843.
21 Registration certificate of motorcycle no. MH 609 Not Admitted.
06AH4891 & original tax paid receipt. (colly.)
22 Forwarding letters to the FSL,Kalina. 270 to Not Admitted.
276
23 Letter issued by PW.38 to Sr. Inspector of 629 Not Admitted.
Police, DCB CID, Crime Branch, Crawford
Market.
24 Seizure panchanama of mobile phone of 671 Not Admitted.
PW.107 which was given to him by the
43

NO. NO. NOT
ADMITTED
BY DEFENCE
accused no.5.
25 Report of Test Identification Parade of 228 Exh. as per
accused nos.1,2,5. S.291A of
Cr.P.C.
26 CA/FSL reports. 230248, Exh. as per S.
1305, 293 of Cr.P.C.
1306
27 Sanction orders u/s.23(2) of the MCOC 250, 251 Exh. in view of
Act,1999 for prosecution. the judgment
in AIR 2010
SC 1451.
28 Sanction order u/s.39 of the Arms Act,1959 252 Exh. in view of
for prosecution. the judgment
in AIR 2010
SC 1451.
29 Personal search & seizure panchanama of 694 Admitted.
mobile phone seized from the accused no.11.
30 House search and seizure panchanama of 695 Admitted.
Mac Book laptop from the accused no.11.
31 Seizure panchanama of the 3 mobile phones 701 Not Admitted.
and a memory card which the accused no.11
had given to PW.80.
32 Seizure panchanama of the harddisk 710 Not Admitted.
recovered from the computer kept on the
table of the accused no.11 in her Office.
33 Documents showing the travel details of the 713, 723 Not Admitted.
deceased accused no.8.
34 Letter issued by PIShri Kadam to deceased 720 Not Admitted.
accused no.8 stating that if he wished to
leave the limits of Mumbai he should seek
permission of the Court.
35 Personal search and seizure panchanama of 731 Not Admitted.
the deceased accused no.8 regarding seizure
of 4 mobile phones and cash amount.
36 Application for cancellation of bail of the 747 Not Admitted.
deceased accused no.8 in MCOC case
no.8/06 & 7/07.
44

NO. NO. NOT
ADMITTED
BY DEFENCE
37 Letter issued by the deceased accused no.8 to 748 Admitted.
the IO in MCOC case no.7/07 informing him
about his proposed visit for pilgrimage.
38 Original newspaper reports published in the 752 Not Admitted.
daily 'MidDay' dated 30/05/2011 & (colly.)
02/06/2011.
39 Panchanama regarding seizure of DVD 756 Not Admitted.
regarding the interview given by the accused
no.12 to 'NDTV India' news channel.
40 Spot panchanama of the place near the Uma 758 Not Admitted.
Palace Bar & Restaurant, Mulund.
41 CD containing the record of conversation 777, 778 Not Admitted.
between PW.90 and the accused no.12 along
with the certificate u/s.65B of the Evidence
Act,1872.
42 Transcript of conversation between accused 776 Not Admitted.
no.12 and PW.90.
43 Letter dated 11/01/2012 issued by Addl.CP 774 Not Admitted.
(Crime) to PW.143 regarding forwarding of
the CDs containing recording of the
intercepted call between the accused no.12
and PW.90.
44 Order dated 04/08/2011 issued by the 775 Not Admitted.
Addnl. Chief Secretary (Home) u/s.5(2) of
the Indian Telegraph Act, 1885 permitting
interception of telephonic communication
and SMS to and from the mobile
no.9820048533.
45 Certificate u/s.65B of the Evidence Act,1872. 778 Not Admitted.
46 CD containing CCTV footage of Crisil House 784 Not Admitted.
of 11/06/2011 between 02:30 pm to 03:00
pm.
47 Printout of the blog created by PW.76 in 788 Not Admitted.
which he had written about the extrajudicial
confession made by the accused no.12 to him
on phone.
48 Article written by PW.77 and published in the 791 Not Admitted.
45

NO. NO. NOT
ADMITTED
BY DEFENCE
daily 'MidDay' dated 07/07/2011 on the
basis of information given to him by PW.73
regarding his meeting with deceased accused
no.8 and J.Dey.
49 CD containing the news aired on 'NDTV 797 Not Admitted.
India' news channel about the extrajudicial
confession made by the accused no.12 to
PW.78.
50 Panchanama of the CDs containing the CCTV 813 Not Admitted.
footage of Hiranandani Shopping center of
the date of the incident i.e.11/06/2011.
51 Signature of PW.92 on the Consumer 853 Not Admitted.
Application form for getting SIM card.
52 Signature of PW.92 on the xerox copy of 854 Not Admitted.
Voter ID card (another copy is produced by
the defence).
53 Station diary extracts. 872, 882, Not Admitted.
883, 891,
892
54 Covering letter with details of mobile 907, 910 Not Admitted.
no.8655292230 & 8097959843 given by
PW.108 to the Police.
55 Certificate dated 08/07/2011 u/s.65B of the 908, 911 Not Admitted.
Evidence Act,1872 regarding CDR & Cell ID
of mobile no.8655292230 & 8097959843.
56 CDR & Cell ID location of mobile 909, 912 Not Admitted.
no.8655292230 & 8097959843.
57 Covering letter with details of mobile no. 918, 921, Not Admitted.
9773916609 & IMEI no. 354865047936636 924
& IMEI no. 358252041238002 given by
58 Certificate dated 02/07/2011 & 11/07/2011, 919, 922, Not Admitted.
04/10/2011 u/s.65B of the Evidence 925
Act,1872 regarding CDR & Cell ID of mobile
no. 9773916609, 447924557108, & IMEI no.
358252041238002.
59 CDR & Cell ID location of mobile no. 920, 923, Not Admitted.
46

NO. NO. NOT
ADMITTED
BY DEFENCE
9773916609 & IMEI no. 354865047936636 926
and mobile no. 447924557120.
60 Covering letter with details of mobile no. 929, 930 Not Admitted.
9870011000 & certificate dated 29/11/2011
u/s.65B of the Evidence Act,1872 given by
61 CDR of mobile no. 9870011000 given by 931 Not Admitted.
63 CDR of the mobile no. 9870488388. 934 Not Admitted.
64 Covering letter with details of mobile nos. 936, 937 Not Admitted.
9323971133 & 9320816594 & certificate
dated 30/07/2011 u/s.65B of the Evidence
Act,1872 given by PW.110 to the Police.
65 CDR of mobile no. 9323971133 & 938, 939 Not Admitted.
9320816594.
67 CDR of mobile no. 9324088888. 942 Not Admitted.
68 Covering letter with details (CDR) of mobile 943 Not Admitted.
handset bearing IMEI no. 354865047936636
and mobile no. 447924557108 given by
69 Covering letter with details of mobile no. 948, Art Not Admitted.
9743193148 & certificate dated 30/06/2011 X111
70 CDR of mobile no. 9743193148. 949, Not Admitted.
Art.X122
8108521329 & 8652475214 & certificate
47

NO. NO. NOT
ADMITTED
BY DEFENCE
72 CDR of mobile nos. 8108521329 & 953, 955 Not Admitted.
8652475214.
73 Covering letter with details of mobile nos. 956, 964 Not Admitted.
8652580503, 8652449019, 8652490277 &
certificate dated 01/08/2011 u/s.65B of the
Evidence Act,1872 given by PW.111 to the
Police.
74 CDR of mobile nos. 8652580503, 958, 961, Not Admitted.
8652449019, 8652490277. 963
77 Covering letter with details of mobile no. 969, Art. Not Admitted.
9690115644 & certificate dated 26/07/2011 X118
78 CDR of mobile no. 9690115644. Art.X119 Not Admitted.
79 Covering letter with details of mobile no. Art.X120 Not Admitted.
9743193148 & certificate dated 04/07/2011 & Art.X
u/s.65B of the Evidence Act,1872 given by 121
+447924557108 and mobile handset bearing
IMEI no. 354865047936630 & certificate
81 CDR of mobile no. +447924557108. 972 Not Admitted.
82 Covering letter with details of mobile no. 1423, Not Admitted.
+447924557108 and mobile handset bearing Art.X124
IMEI no. 354865047936636 & their CDR.
83 Covering letter with details of use of mobile 973 Not Admitted.
no. +447924557108 in mobile handset
bearing IMEI no. 354865047936630 given by
48

NO. NO. NOT
ADMITTED
BY DEFENCE
86 List of Cell IDs and their corresponding 986, 985 Not Admitted.
physical addresses along with certificate
Act,1872 filed by PW.111 in the Court.
9768114422, 9768408325, 8898590024, 1071
8898590018, 9768302009 given by PW.113
to the Police along with certificate u/s.65B of
Evidence Act,1872.
88 Customer Application forms produced by 1070 Not Admitted.
PW.113.
94 Covering letter with details of mobile handset 1424, Not Admitted.
bearing IMEI no. 35825041238002 & 1425
certificate dated 13/10/2011 u/s.65B of the
Evidence Act,1872, CDR given by PW.113 to
the Police.
9768630692 given by PW.113 to the Police 1073
along with certificate u/s.65B of Evidence
Act,1872.
97 List of Cell IDs and their corresponding 1074 Not Admitted.
physical addresses.
98 Covering letter with details of mobile nos. 1032, Not Admitted.
9892020185, 9987017977, 7738622113, 1033
9967210526, 9004850894, 9967844960,
49

NO. NO. NOT
ADMITTED
BY DEFENCE
9004328040, 9892504897, 9892044665
given by PW.118 to the Police and certificate
u/s.65B of Evidence Act,1872.
99 CDR of mobile nos. 989020185, 1034, Not Admitted.
9987017977, 7738622113, 9967210526, 1035,
9004850894, 9967844960, 9004328040, 1036,
9892044665, 9892504897. 1037,
1038,
1039,
1040,
1041,
1042
and certificate u/s.65B of Evidence Act,1872.
102 Covering letter with details of mobile nos. 1046, Not Admitted.
9867464129, 9967016654, 9987917765 1047
given by PW.118 to the Police and certificate
u/s.65B of Evidence Act,1872.
9967016654, 9987917765. 1049,
1050
and certificate u/s.65B of Evidence Act,1872.
7738409480 given by PW.118 to the Police 1055,
and certificate u/s.65B of Evidence Act,1872. 1057 to
1059
108 Confession made by the accused no.10 1064, Not Admitted.
Paulson Palitara along with the 1066,
memorandum. 1067
109 Certificates u/s.65B of Evidence Act,1872 1092, Not Admitted.
regarding the call details and sending of 1092A
50

NO. NO. NOT
ADMITTED
BY DEFENCE
scanned copies of customer application forms
of the mobile nos. 9769276691,
8879140112, 9920227609, 9833625491.
110 Customer Application form of the subscriber 1094, Not Admitted.
of mobile nos. 9769276691, 9920227609, 1097,
98333625491. 1099
8879140112, 9920227609, 98333625491. 1095,
1098,
1100
112 Certificates u/s.65B of Evidence Act,1872 1102, Not Admitted.
regarding the Call details and sending of 1102A
of the mobile nos. 9820597404,
9920088888.
113 Customer Application form of the subscriber 1101, Not Admitted.
of mobile nos. 9820597404 and 1104
9920088888.
9920088888. 1105
115 Certificates u/s.65B of Evidence Act,1872 1106 Not Admitted.
regarding the call details and sending of (colly)
of the mobile no. 9833726717.
116 Customer Application form of the subscriber 1107 Not Admitted.
of mobile no. 9833726717 (PW.89).
regarding the call details and sending of (colly)
of the mobile no. 9820047058.
regarding the call details of the mobile no.
+447924557108 and IMEI no.
354865047936636.
51

NO. NO. NOT
ADMITTED
BY DEFENCE
122 Certificate u/s.65B of Evidence Act,1872 1125, Not Admitted.
regarding the call details of the mobile no. 1126,
9819582444, Customer Application form & 1124
CDR.
123 Customer Application form of mobile no. 1127, Not Admitted.
9930900303, certificate u/s.65B of Evidence 1128,
Act,1872 & CDR. 1129
124 Certificate u/s.65B of Evidence Act,1872 1133 Not Admitted.
regarding the call details of mobile nos.
9820048533 & 9167272555.
125 Customer Application form and CDR of 1135, Not Admitted.
mobile no. 9820048533. 1131
126 Customer Application form and CDR of 1136, Not Admitted.
mobile no. 9167272555. 1132
127 Customer Application form, certificate 1139, Not Admitted.
u/s.65B of Evidence Act,1872 and CDR of 1137,
mobile no. 9619516963. 1140
128 Certificate u/s.65B of Evidence Act,1872 and 1141, Not Admitted.
CDR of mobile no. 9819784449. 1145
129 Confession made by the accused no.5Arun 1162 Not Admitted.
Dake along with the memorandum. A,B,C
130 Disclosure statement/ panchanama made by 1201, Not Admitted.
the accused no.10. 1203
132 Confession made by the accused no.9 along 1214, Not Admitted.
with the memorandum. 1217
the accused no.6. 1254A
135 Forwarding letter issued by the Senior PI, 1263 Not Admitted.
Police Station, Powai to the Head, Forensic
Science Dept., J.J.Medical College for Post
mortem of the body of J.Dey.
136 Sketch map indicating the places of injury on 1264 Not Admitted.
52

NO. NO. NOT
ADMITTED
BY DEFENCE
the body of J.Dey.
137 Postmortem report of the body of J.Dey. 1265 Not Admitted.
138 Cause of death certificate of J.Dey. 1266 Not Admitted.
the accused no.1. 1272A
140 Disclosure statement made by the accused 1285 Not Admitted.
no.4.
141 Memorandum in connection with recording 1296 Not Admitted.
of voice sample of accused no.12.
142 Report of voice analysis of accused no.12. 1304 Exh. in view of
provisions of
section 293 of
Cr.P.C.
143 Seizure panchanama of mobile phone seized 1316 Not Admitted.
from the accused no.2.
144 Spot panchanama. 1377 Not Admitted.
145 Seizure panchanama of the mobile phones 1406 Not Admitted.
seized from PW.33.
146 Seizure panchanama of the mobile phone 1407 Not Admitted.
seized from PW.86.
147 Certificate u/s.65B of Evidence Act,1872 and 1425 Not Admitted.
CDR of handset having IMEI no. colly
358252041238002.
148 Customer application form of mobile no. 1464 Not Admitted.
9987700111 registered in the name of the
wanted accused no.2Ravi Ram Rattesar.
149 Customer application form of mobile no. 1503 Not Admitted.
9675778971 registered in the name of
PW.139Ms.Nidhi Nandwani.
150 Memorandum regarding taking custody of 1470 Not Admitted.
the two IPhones and one IPad of the
accused no.12 after he was brought to India.
151 Report issued by PW.152Dr.Edward Burns 1544 Not Admitted.
from NASSCOM, USA regarding the matching
of the motorcycles used in the incident with
the relevant CCTV footage.
53

NO. NO. NOT
ADMITTED
BY DEFENCE
152 Statement of PW.90Manoj Shivdasani 1601 Not Admitted.
recorded u/s. 164 of Cr.P.C.,1973
153 Statement of the accused no.5,9 and 10 1617 Not Admitted.
recorded by the learned CMM, Esplanade colly.,
Court after their confession was recorded. 1421, 9
colly.
STAND TAKEN BY THE DEFENCE
27. The stand taken by the defence is of false implication. The defence
did not examine any witness in support of the stand taken by them but has
relied upon the following documents:
SR. DOCUMENT EXH.

NO.
1 Printouts (47 nos.) of the Articles which were written 584 (colly)
by J.Dey.
2 Email sent by PW.46 to ShriSharma of Jaico publishing 651
house.
3 Xerox copy of Voter ID card of PW.92. 855
4 Extract of station diary entry. 889
5 Medical certificates, ECG report, requisition for ECG of 1220, 1221,
the accused no.9. 1228, 1229
6 Carbon copy of the Postmortem report of the body of 1265A
J.Dey.
7 Report issued by PW.130 indicating case history of the 1268
body of J.Dey and the sketch map indicating points of
injury on the body.
8 Printout of blogs written by PW.76 1369 (colly)
AS TO POINT NO.1 [HOMICIDAL DEATH]
28. In order to prove that the death of J.Dey was homicidal, the
54
prosecution has relied upon the evidence of PW.130Dr. Fakruddin Ali

Shah who had examined the body of J.Dey when it was brought to the
Hiranandani Hospital, Powai immediately after the incident and PW.128
Dr. Sadanand Bhise of J.J. Hospital who conducted the Postmortem of the
body of J.Dey.
29. PW.130Dr. Fakruddin Ali Shah was an M.B.B.S., EPDHA (Executive
Program in Diploma in Hospital Administration). It has come in his
evidence that he was practicing in medicine since the year 2004. He
deposed that on 11/06/2011, at about 03:10 pm, two commandos of
Hiranandani brought the body of J.Dey to the casualty ward of the
Hiranandani Hospital. He deposed that body had multiple penetrative
injuries on the left side. He deposed that he noticed injuries on the chest,
arm and the back side of the body. He deposed that he found the
following injuries on the body:
i) 1.5 X 0.4 cm penetrating injury below the left nipple.
ii) 0.5 X 0.5 cm penetrating injury on left upper arm near the
anterior axillary fold.
iii) Two penetrating injuries of dimensions 0.5 X 0.5 cm near the
left anterior posterio of upper arm.
iv) Three penetrating injuries of dimensions 0.5 X 0.5 cm around
each other on the left posterior aspect of the arm on the upper
2/3rd portion of the arm.
v) 0.5 X 0.5 cm penetrating injury around the lateral chest wall
below the axilla.
vi) 0.5 X 0.5 cm penetrating injury on the left side of the

posterior aspect of the chest.
55
30. He deposed that the pulse and blood pressure were not felt, body
temperature was afebrile (cold), there was no respiration, no peripheral
pulse was felt, there was no sound of heart, the pupils were not reactive
and were dilated, there was no sound of breath, there was no response to
painful stimuli (CNS) and on the foot (Planter), there was no cardiac
response. He deposed that accordingly he prepared the case history along
with a sketch map (Exh.1268 colly.) indicating all the above facts and the
location of the injuries. He deposed that the OPD & IPD form and the
deposition form (Exh.1280 colly.) were also prepared by him.
31. In crossexamination on behalf of the accused nos.1,6 and 7, he

stated that the injury no.5 mentioned in the case history was on the lateral
chest wall and the injury no.6 was in the back. He stated that there was
one injury on the back. He stated that the injury no.1 which was below the
left nipple was on the alvoli (below the brown portion around the nipple).
32. In crossexamination on behalf the accused nos.5 and 11, he stated
that he had declared J.Dey dead at around 03:16 pm. He stated that J.Dey
was declared dead on the basis of the ECG report (Exh.1279). He stated
that all the injuries of the injury nos.3 and 4 were roughly of same size. He
stated that he could not say whether the three injuries of injury no.4 were
caused by one blow/impact or several blows/impacts. He stated that as he
was not an expert he could not say by looking at the injuries whether they
were caused by one weapon or several weapons.
33. PW.128Dr. Sadanand Bhise was a M.D. (Forensic Medicine). It has
come in his evidence that in the year 2011 he was having one and half
years experience as an Assistant Professor. He deposed that on
11/06/2011, when he was on duty, at about 08:30 pm, PW.137PSI Rane,
56
PSI Todkar and PN Number 9925 from Police Station, Powai brought the
dead body of J.Dey for Postmortem from the Dr.L.H.Hiranandani Hospital
along with the forwarding letter (Exh.1263). He deposed that along with
the forwarding letter (Exh.1263), he also received the inquest
panchanama (Exh.305), accidental death report (ADR) and the
declaration given by the Hiranandani Hospital regarding the death of
J.Dey. He deposed that as per the inquest panchanama (Exh.305) and the
ADR report the Police had given the history of alleged firearm injuries to
J.Dey on 11/06/2011.
34. He deposed that before conducting the Postmortem, four Xrays

(Article 241A, Article 241B, Article 241C and Article 241D) were taken
to find out the exact location of the bullets, if any, in the body. He
deposed that the Xrays were handed over to PN 9925 of Police Station,
Powai. He deposed that as per Xray (Article 241A) a bullet was found on
the right side of chest. He deposed that after the Xrays were received, the
Postmortem was started at around 09:30 pm on 11/06/2011 and the
same was completed at 12:30 am on 12/06/2011. He deposed that his
senior Dr. G.D.Niturkar and his junior Dr. V.P.Meshram assisted him in
conducting the Postmortem.
35. He deposed that on seeing the body, he noticed the following:
i) Hypertrophic scar of size 12 X 1 cm over the chest centrally, it
was raised transverse, whitish and glistering and the same had
completely healed.
ii) Hypotrophic scar of size 3 X 1 cm over supramammary region
on left side of chest, it was raised transverse, whitish and
glistering and it was completely healed.
iii) One old healed scar of size 9 X 2.5 cm over right side of back
57
over scapular region which was flat, oblique, irregular in shape.
iv) The body was well built, well nourished and cold, rigor
mortis was partly developed in both upper and lower limbs.
v) There were no signs of decomposition.
vi) Postmortem lividity was present over back which was faint
purple in color and not fixed which meant that the patient went
into shock due to severe bleeding.
vii) The eyes of the body were closed, pupils were dilated and
fixed, the mouth was partly open and tongue was inside the oral
cavity, there was no oozing from the mouth, nostrils or ears.
viii) There was no injury to external genitals, there was no

purging, the limbs were in anatomical position.
36. He deposed that he had drawn the body diagram/sketch (Exh.1264)
to show the position of the injuries. He deposed that in the body diagram
from the back side the injury nos.1 to 5 on the back side were the entry
wounds from the back and the left arm. He deposed that the injury nos.6
to 9 were the exit wounds on the front side and they were on the chest
and the left arm.
37. He deposed that on external examination of the body, he found the
following injuries:
i) firearm wound of entry over left side of back [injury no.(1)]
over infrascapular region situated 25 cm below tip of left
shoulder and 15 cm lateral to posterior to midline. He made the
following observations:
a) It was circular in shape and 0.5 cm in diameter and

surrounded by abrasion collar of 0.5 cm, the margin were
inverted.
58
b) There was no evidence of blackening, burning, tattooing,
singeing of hairs.
c) The bullet had passed through skin subcutaneous tissue,
muscle over infrascapular region of left side of back, inter
costal muscles of postero lateral aspect of 5th intercostal
space of left thoracic cage, lateral aspect of left plura,
lateral aspect of lower lobe of left lung, hilum of left lung
and through medial aspect of left plura, the bullet further
passed through pericardium, left auricle, base of aorta on
left side just above left coronary ostia, right side of arch of
aorta (beginning), 2 cm above right coronary ostia,
pericardium, intercostal muscle of 2nd intercostal of right
side along the mid clavicular line with indisplaced fracture
of costochondral junction of 2nd and 3rd rib of right side and
right pectoralis major muscle.
d) The bullet was retrieved from antero lateral aspect of
right pectoralis major muscle in the supramammary region
along the anterior axillary line. The bullet was metallic and
the blackish in color.
e) The whole track was hemorrhagic and lacerated. It was
directed from left to right, posterior to anterior and below
upwards.
f) Externally contusion was seen over the right axillary

region of size of 5 X 3 cm, muscle deep, reddish black in
color corresponding with the location from where the bullet
was retrieved.
ii) firearm wound of entry (injury no.2) over left side of the back
over posterolateral aspect. He made the following observations:
a) It was situated 32 cm below the tip of left shoulder. It
was 21 cm laterally from the posterior midline.
b) It was oval in shape and 0.5 cm in diameter and

surrounded by an abrasion collar of 0.6 cm, the margins
were inverted.
59
c) There was no evidence of blackening, burning, tattooing
or singeing of hairs.
d) The bullet had passed through the skin, subcutaneous
tissue, muscles over postero lateral aspect of left side of
back, subcutaneous tissue over lateral aspect of left side of
the chest, muscle over antero lateral and anterior aspect of
left chest, subcutaneous tissue and skin.
e) The bullet had exited through the wound of exit (injury
no.6) which was situated at inframammary region of left
side of the chest, 12 cm lateral to anterior midline, 4 cm
below the left nipple. The injury was elliptical in shape and
2 X 0.5 cm in size, the margins were everted.
f) There was no evidence of abrasion collar, blackening,

burning, tattooing or singeing of hairs, the whole track was
hemorrhagic and lacerated.
g) The injury was directed from left to right, posterior to
anterior and below upwards.
iii) firearm wound of entry (injury no.3) over posterior aspect of
upper part of left arm. He made the following observations:
a) Injury was situated 15 cm below tip of left shoulder and
11.5 cm from apex of posterior axillary fold on left side,
circular in shape and 0.5 cm in diameter, surrounded by
abrasion collar of 0.5 cm, the margins were inverted.
b) There was no evidence of blackening, burning, tattooing,
singeing of hairs.
c) The bullet had passed through skin, subcutaneous tissue,
muscle without fracturing humerus bone.
d) The bullet had exited through muscles, subcutaneous

tissue and skin over anterior aspect of left arm.
e) Wound of exit (injury no.7) was situated over anterior
aspect of left arm 14 cm below tip of left shoulder and 2 cm
lateral to anterior axillary fold, it was circular in shape and
60
1 cm in diameter, margins were everted.

burning, tattooing, or singeing of hairs. The whole track
was hemorrhagic and lacerated. The injury was directed
from posterior to anterior and from left to right.
iv) firearm wound of entry (injury no.4) over postero lateral

aspect of left arm. He made the following observations:
a) Injury was situated 22 cm below tip of left shoulder, 8
cm laterally from apex of left posterior axillary fold, it was
circular, 0.5 cm in diameter, surrounded by abrasion collar
of 0.5 cm.
b) There was no evidence of blackening, burning, tattooing
or singeing of hairs.
c) The bullet had pierced through the skin, subcutaneous
tissue, muscle, subcutaneous tissue and exited through skin
over anterio lateral aspect of the left arm.
d) The wound of exit (injury no.9) was situated 24 cm

below tip of left shoulder, 18 cm above left elbow.
e) The injury was elliptical in shape and 1.4 X 0.8 cm in
size. The margins were everted.

burning, tattooing, or singeing of hairs.
g) The whole track was hemorrhagic and lacerated. The

injury was directed from posterior to anterior.
v) firearm wound of entry (injury no.5) over postero lateral

aspect of left arm. He made the following observations:
a) It was situated 21 cm below from the tip of left shoulder
and 10 cm laterally from apex of left posterior axillary fold,
circular and 0.5 cm in diameter, surrounded by abrasion
collar of 0.5 cm.
61
b) There was no evidence of burning, blackening, tattooing
or singeing.
c) The bullet had pierced through skin, subcutaneous

tissue, muscle subcutaneous tissue and exited through skin
over anterio lateral aspect of left arm wound of exit (injury
no.8) was situated 21 cm below left shoulder tip, 20 cm
above left elbow, elliptical in shape and 1.2 x 0.8 cm in
size. Margins were everted.
d) There was no evidence of abrasion collar, blackening,
burning, tattooing or singeing of hairs.
e) The whole track was hemorrhagic and lacerated. The

injury was directed from posterior to anterior.
38. He deposed that he did not find any injury on the head under the
scalp or to the skull or brain. He deposed that he did not notice any
fracture on the head and that the brain was intact, odematous and pale.
He deposed that in the stomach there was 1.5 liters of yellowish white
colored food material, rice was identified, no peculiar odour was perceived
and the mucosa was pale. He deposed that the small and the large
intestine were intact, partly distended with gases and feaces, mucosa was
pale. He deposed that from the contents of the stomach it could be said
that J.Dey might have consumed food within two hours prior to his death.
He deposed that after the Postmortem, he was of the opinion that the
cause of death of J.Dey was “Hemorrhage and shock due to firearm injuries
(unnatural).” He deposed that after the Postmortem was conducted blood
was preserved for grouping, the bullet was preserved for ballistic
examination, the skin piece from site of entry wound at left side of back of
infrascapular region was preserved for ballistic examination and skin piece
from site of entry wound at postero lateral aspect of left arm was
preserved for ballistic examination.
62
39. He deposed that he had also prepared the cause of death certificate
(Exh.1266). He identified the bullet (Article247) to be the same which
was recovered from the body of J.Dey. He deposed that it was possible
that all the injuries (entry wounds) might have been caused by one and
the same weapon. He deposed that there was no evidence of blackening,
burning, singeing, tattooing as it was a distance range firearm shot injury.
40. To a Court question, he stated that range varied according to the
type of weapon and the type of bullet used. He stated that in case of
pistols and revolver the close range was 30 cm, midrange was from 30 cm
to 90 cm and if the range was more than 90 cm it was considered as
distance range firearm shot injury. He deposed that in the present case,
the injuries might have been caused from a distance of more than 90 cm.
When the revolver (Article249) was shown to him, he deposed that the
injuries found on the body of J.Dey were possible by the revolver (Article
249).

stated that before conducting the Postmortem he had gone through the
inquest panchanama (Exh.305), accidental death report and the
declaration given by the Hiranandani Hospital regarding the death of
J.Dey. He stated that the report given by the Hiranandani Hospital showed
the case history of J.Dey. He admitted that the injuries on the body of
J.Dey were visible with naked eyes. He admitted that in all 9 injures were
visible on the body of J.Dey and that this was specifically mentioned in the
sketch (Exh.1264). He admitted that the dimensions of injury nos.2 & 3 of
exit wound were different. He admitted that the injury no.4 was different
from the size of injury nos.2, 3 & 5. He admitted that the size of injury
no.5 was different from the size of injury nos.2, 3 & 4.
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42. He admitted that the crime number was not mentioned in the Post
mortem report (Exh.1265). He admitted that in the Postmortem report
(Exh.1265) it was not mentioned that a 'lead' was found inside the body.
He stated that the lead (Article247) was not black in color and that it was
grayish in color. He stated that in the Postmortem report (Exh.1265) the
color of the lead (Article247) was mentioned as 'metallic and blackish'.
He admitted that in column no.17 in the Postmortem report, he did not
mention the length, breadth and the circumference of the foreign object
found in the body or the positional direction of the bullet inside the body.
He stated that the lead was retrieved from below the right side armpit.
43. He admitted that he came to know about the location of the bullet
by looking at the Xrays (Article241A to 241D) before starting the Post
mortem. He denied that the Xrays were taken to find out as to how the
bullet traveled through the body. He stated that from the Xray one could
find out the damage to the bone and the location of the bullet inside the
body. He stated that for finding out whether there was any damage to soft
tissue, muscle or organ one had to take the CT scan or MRI. He stated that
he did not conduct any CT scan or MRI.
44. He admitted that with reference to injury no.1 mentioned in column
no.17 it was not stated as to what was the area of damage caused while
the lead traveled through the body. He stated that in so far as the injury
nos.2 to 5 were concerned, the lead did not pass through any vital organ
of the body. He stated that no major blood vessels were damaged in the
injury nos.2 to 5. He stated that there was no fracture in the injury nos.2
to 5.
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45. He denied that whenever an injury was caused by a lead it was
always circular in shape. He stated that if the direction of bullet changes,
the shape of the injury also changes. He stated that in about 400 to 500
cases, he had found that the firearm injury was circular in shape. He
clarified that despite of this opinion he could say that the injury caused by
lead was not always circular in shape.
46. He denied that the injuries found on the body were not sufficient to
cause his death in the ordinary course. He stated that oval shape injury
could be caused by any sharp object such as knife or pointed rods. He
stated that the entry wound (injury no.2) was oval in shape. He denied
that in the present case, oval shape injury was possible by using a knife or
a pointed rod. He stated that he did not find any fragment of bones in the
body.
47. He stated that if a person fall downs and has an abrasion it may be
red in color and one could see it with naked eyes. He stated that in the
present case, except abrasion collar, he did not find any other abrasion on
any part of body. He stated that there were no abrasions or contusions due
to fall. He stated that he did not do the video recording of Postmortem of
this case.
48. He stated that generally the blood sample was preserved in plastic
bottle 2 inch in size. He admitted that in point no.21 of the Postmortem
report, he did not mention whether the blood was preserved in a plastic
bottle or a glass bottle. He admitted that he had forwarded the bullet for
ballistic examination in a bottle. He stated that he could not assign any
reason as to why there was a plastic jar (Article245) before the Court in
which the lead (Article247) was kept.
65
49. He stated that the articles mentioned in point no.21 of the Post

mortem report were handed over to a Police Constable. He stated that no
panchanama was prepared in that regard. He stated that though in point
no.21 of the Postmortem report (Exh.1265), the fact about labeling and
sealing of the articles was not mentioned, it was mentioned in the
chemical analysis form.
50. He denied that the lead which was found in the body was in
deformed condition. He denied that every time a bullet was fired it would
deform as it depended upon the thing at which the bullet was fired. He
denied that if a bullet hits the rib bones it deformed. He stated that the
bullet may be deformed if it hits femor of leg, tibia, humerus, skull and
that it was dependent upon the velocity and the angle at which the bullet
was fired.
51. He admitted that the lead (Article247) and the bullet (Article250)
were different. He denied that he routinely marked foreign article
recovered from the body for its identification. He stated that it was not
their practice to give any identification mark on the lead which may be
recovered from the body. He admitted that there was no identification
mark on lead (Article247). He denied that he could not identify the lead
(Article247) as there was no identification mark on it. He denied that no
lead was recovered from the body of J.Dey.
52. In crossexamination on behalf of the accused nos.5 and 11, he

stated that he did not prepare any rough notes while conducting Post
mortem and that the report was prepared simultaneously. He stated that
he himself and two members of staff (cutters) dissected the body. He
66
stated that the Postmortem report (Exh.1265) was handed over to the
Police on 13/06/2011. He stated that the cause of death certificate was
given immediately after Postmortem to the Police.
53. He admitted that the raincoat and the Tshirt of J.Dey were shown
to him for the first time in the Court and that those clothes were not sent
to him at the time of Postmortem or at any time thereafter. He admitted
that except the cause of death he did not give any other opinion to the
investigating machinery. He stated that he had retrieved a bullet from the
body. He admitted that he was never shown the firearm. He admitted that
no opinion was sought from him regarding the firearm or the bullet. He
stated that the Police did not show him the ballistic report regarding the
bullet which was retrieved from the body.
54. He stated that the rigor mortis starts developing after 23 hours after
the death and it completes within 12 hours. He stated that in the present
case, the rigor mortis was partly developed in both upper and lower limbs.
He admitted that on the basis of rigor mortis one can come to the
conclusion regarding the time of death.
55. It may be noted that the defence has not disputed that J.Dey died as
a result of the bullet injuries sustained by him. Even on the independent
analysis of the evidence of PW.128Dr. Sadanand Bhise, PW.130Dr.
Fakruddin Ali Shah, the Postmortem report (Exh.1265), the cause of
death certificate (Exh.1266) and the inquest panchanama (Exh.305), it is
quite clear that J.Dey expired on 11/06/2011 at about 03:00 pm to 03:10
pm and that his death was homicidal and too by bullet injuries.
56. The perusal of the evidence of PW.130Dr. Fakruddin Ali Shah

67
shows that J.Dey was dead even before he could be admitted to the
Hiranandani Hospital for treatment. PW.130Dr. Fakruddin Ali Shah made
a note of the injuries (Exh.1268) which he saw on the body of J.Dey and
then referred the body to the J.J.Hospital for Postmortem. On receipt of
the forwarding letter (Exh.1263) from the Senior PI, Police Station, Powai,
PW.128Dr. Sadanand Bhise conducted the Postmortem and opined that
the cause of death was “Hemorrhage and shock due to firearm injuries
(unnatural).” Five bullet injuries were found near the chest and shoulder
area on the body of J.Dey. The injuries were ante mortem. One bullet was
found in the chest area of the body. It has been brought on record during
crossexamination of PW.128Dr. Sadanand Bhise that the injuries found
on the person of J.Dey were sufficient to cause his death in the ordinary
course of nature.
OBJECTIONS REGARDING RECOVERY OF LEAD (ARTICLE247) FROM
THE BODY OF J.DEY.
57. The learned Advocate for the accused no.1 doubted the recovery of
the lead (Article247) from the body of J.Dey on the ground that the
recovery of the same is not mentioned in the Postmortem report
(Exh.1265). It is not necessary to make such a note in the Postmortem
report as the said report is necessary for primarily finding out the cause of
death. That apart, it has come in the evidence of PW.128Dr. Sadanand
Bhise that before conducting the Postmortem, Xray of the body was
taken for finding out whether any bullet was inside the body. It has
further come in his evidence that as per Xray (Article 241A) a bullet was
found on the right side of chest and after it was removed from the body of
J.Dey it was sent to the FSL,Kalina in sealed condition for analysis.
Further, he has identified the bullet (Article247) to be the same which
was recovered from the body of J.Dey and sent to the FSL,Kalina for
68
analysis. Also, the learned Advocate for the accused no.1 could not show
that the law requires that such fact must be mentioned in the Postmortem
report. Hence, the objection stands rejected.
58. The recovery of the lead (Article247) from the body of J.Dey was
also doubted on the ground that PW.128Dr.Bhise did not mention the
names of the vital organs of the body of J.Dey which were damaged due to
the passage of the lead (Article247) in the body. The said submission is
also required to be rejected as PW.128Dr.Bhise has very categorically
stated that he did not find any damage to the vital organs of the body of
J.Dey. Therefore, there was no question of making a note of it in the Post
mortem report (Exh.1265).
59. The learned Advocate for the accused no.1 also disputed the identity
of the lead (Article247) which was recovered from the body of J.Dey on
other grounds. He submitted that it has come in the evidence of PW.128
Dr.Bhise that he had forwarded the lead recovered from the body of J.Dey
in a 'bottle' to the Police Station, Powai but the lead which was before the
Court was kept in plastic jar (Article245). He also tried to impress upon
the fact that as per CA report (Exh.233) the lead (Article247) was sent to
the FSL,Kalina on 11/06/2011 itself i.e. even before the Postmortem of
the body of J.Dey was conducted.
60. The above submissions have no force and are hypertechnical. In so
far as the first submission is concerned, PW.128Dr.Bhise has nowhere
deposed that the lead (Article247) was not the same lead which he had
forwarded to the Police Station, Powai. He has categorically deposed that
the lead (Article247) was the same which was recovered from the body of
J.Dey. There was no suggestion given to him that the lead (Article247)
69
was planted though much was argued on this point. No explanation was
sought from any of the Investigating Officers on this point. Further,
PW.128Dr.Bhise has clearly stated that they also used sent the articles in
plastic jars such as the one which was before the Court. It appears that at
the time of deposing before the Court he could not recollect the exact
word and used the word 'jar' instead of 'bottle'. This can happen with
anybody. The words beaker, bottle, decanter, jug, pot and vessel are
synonymous with the word 'jar'. Therefore, just because PW.128Dr.Bhise
has used the word 'jar' instead of the word 'bottle' does not make the case
of the prosecution suspicious. The important thing is that he has clearly
stated that the recovered lead was immediately sealed and handed over to
the Police Constable of Police Station, Powai. There is nothing on the
record to suggest that thereafter the lead (Article247) was not properly
handled. As stated earlier, no direct questions were put to any of the
Investigating Officers in this regard. That apart, as per CA report
(Exh.233) the lead (Article247) was received in the FSL,Kalina in sealed
condition and that the seal was intact. This is sufficient to infer that it was
the same lead which was recovered from the body of J.Dey. If there was
any doubt then it was always open for the learned Advocate for the
accused no.1 to call for and crossexamine the expert from the FSL,Kalina.
In any case, from 11/06/2011 to 26/06/2011, the complicity of the
accused persons with this case was not established. Therefore, there was
no motive for PW.128Dr.Bhise who was an independent witness or
PW.137PSI Rane or PW.141PI Gosavi or PW.142API Datir to tamper
with the lead (Article247). The situation would have been different had
the involvement of the accused persons been known to the Investigating
Officer on 11/06/2011 or 12/06/2011 or 13/06/2011.
61. In so far as the second submission is concerned, the learned

70
Advocate for the accused no.1 seems to have missed the fact that the date
'11/06/11' mentioned in point no.1 of the CA report (Exh.233) is the date
of the case under reference i.e. FM/308/11 which also finds place in the
Postmortem report (Exh.1265). The perusal of point no.5 of the CA report
(Exh.233) clearly shows that the lead (Article247) was received by the
FSL,Kalina on 13/06/2011 in sealed condition. That the lead (Article247)
was forwarded to the FSL,Kalina on 13/06/2011 is clear from the
evidence of PW.141PI Gosavi who has clearly deposed that on
13/06/2011 he took the custody of the muddemal including the lead
(Article247) from the Police Station, Powai and on the same day he
forwarded the lead (Article247) along with other articles to FSL,Kalina
through PW.94Havaldar Ramraje along with the forwarding letter
(Exh.263). The above evidence of PW.141PI Gosavi is corroborated by the
evidence of PW.94Havaldar Ramraje and the forwarding letter (Exh.263)
on material points. Hence, it is quite clear that the lead (Article247) was
sent and deposited in the FSL,Kalina on 13/06/2011 and not on
11/06/2011.
62. Another ground on which the identity of the lead (Article247) was
sought to be doubted is that PW.128Dr.Bhise has deposed that the lead
was grayish in color whereas in the Postmortem report (Exh.1265) it was
mentioned that the lead was metallic and blackish in color. This objection
was raised ignoring of the fact that when the lead was removed from the
body it was somewhat wet. Therefore, it may have looked a bit dark in
color. Therefore, at that time PW.128Dr.Bhise may have mentioned its
color as metallic and blackish. Further, depending upon the perception of
a person, for one the lead (Article247) may be black in color, for another
it may be gray in color and for still another it may be a lighter shade of
black color. It is not as if though the witness has deposed that the lead was
71
black in color but the lead before the Court is white in color. Also, it
cannot be forgotten that PW.128Dr.Bhise came to depose before this
Court after about 6 years of the incident. Naturally, during the period of 6
years the color of the lead must have faded a tinge and therefore it looked
grayish in color.
63. The learned Advocate for the accused no.1 also contended that in
view of the evidence of PW.128Dr.Bhise that the lead (Article247) which
was recovered from the body of J.Dey and the live cartridge (one out of
Article250 which was recovered at the instance of the accused no.1Rohee
Tangappan Joseph @ Satish Kalya) were different was also sufficient to
hold that the lead (Article247) was not the same lead which was found
inside the body of J.Dey. Though the said submission deserves no
comment but as it is raised it has to be dealt with. It may be stated that
the lead (Article247) and the live cartridge (one out of Article250) are
indeed different as the lead (Article247) is a part of the bullet which was
used whereas the live cartridge (one out of Article250) was unused and
all its parts were intact. Therefore, the lead (Article247) was bound to be
different from live cartridge (one out of Article250).
64. It was next argued that the possibility of tampering with the lead
(Article247) which was recovered from the body of J.Dey could not be
ruled out as in the Postmortem report(Exh.1265), the fact about labeling
and sealing of the articles is not mentioned. In this regard, if the evidence
of PW.128Dr.Sadanand Bhise is seen, it will be clear that he has
categorically stated that the fact about the labeling and sealing of the
articles was mentioned in the Chemical analysis form. The articles were
handed over to the concerned Police Constable along with the Chemical
analysis form. It is no doubt true that the prosecution has not proved the
72
said letter but there is nothing to disbelieve the evidence of PW.128

Dr.Sadanand Bhise especially because at that time, the name of the
accused persons was never in picture and he had no reason to make a
false statement.
65. It was next argued that there is discrepancy in the size of injuries
mentioned in the inquest panchanama (Exh.305) and the size of injuries
mentioned in the Postmortem report (Exh.1265). It needs to be noted
that while mentioning the dimensions of the injuries in the inquest
panchanama the size of the injury is not actually measured. The
measurements are approximate. Even PW.137PSI Rane who prepared the
inquest panchanama has stated so. More accurate measurement can only
be given by the Doctor who conduct the Postmortem. In this case, the
Doctor was PW.128Dr.Sadanand Bhise. He examined the body of J.Dey
very closely and then mentioned the dimensions of the injuries found on
the body of J.Dey. Therefore, there is bound to be some difference in the
dimensions mentioned in the inquest panchanama (Exh.305) and the Post
mortem report (Exh.1265). Further, in case of any discrepancy between
inquest panchanama and Postmortem report, it is the latter which has to
be relied upon.
66. From the above, it is clear that the prosecution has not only proved
that the death of J.Dey was homicidal and it was caused due to firearm
injuries but the prosecution has also proved that the lead (Article247)
was recovered from the body of J.Dey. Therefore, point no.1 is answered
in the affirmative.
AS TO POINT NOS.2 AND 3 [CONSPIRACY AND MURDER]
67. As the evidence and the arguments on these points are interlinked
73
they are being considered together.
68. It may be noted that the defence has not disputed the identity of
J.Dey. Except for the learned Advocate for the accused nos.1,6 and 7 none
of the learned Advocates for the defence have disputed the spot of the
incident. The learned Advocate for the accused nos.1,6 and 7 and the
learned Advocate for the accused no.2 have also disputed the registration
of the FIR (Exh.290) and the finding of the lead (Article215) from the
spot of the incident. Therefore, before taking up the discussion about the
points for determination, it will be proper to make a note of the evidence
led by the prosecution on the above aspects so as to dispel the imaginary
doubts regarding the timing of the incident, registration of the FIR
(Exh.290) and also the recovery of the lead (Article215) from the spot of
the incident.
EVENTS WHICH TOOK PLACE AFTER THE RECEIPT OF INFORMATION
OF THE INCIDENT AND OBJECTIONS RAISED BY THE DEFENCE
ABOUT THE REGISTRATION OF THE FIR, SPOT OF THE INCIDENT
AND THE FINDING OF THE LEAD NEAR THE SPOT OF THE INCIDENT,
ETC.
69. PW.1Sandip Rangnath Shikhre was working as an Assistant to PI
(Law and order) at the Police Station, Powai at the relevant time. He
deposed that on 11/06/2011 at about 03:00 pm to 03:30 pm, he received
telephonic information about some firing of bullet shots at D' Mart Circle,
Hiranandani and accordingly, he informed about this fact to PW.2PI
Tivatane. It has come in his evidence that PW.2PI Tivatane then went to
the spot along with PW.137PSI Rane.
70. In crossexamination on behalf of accused nos.1,2,6 and 7, he stated
that he did not make any enquiry as to who had given the information
74
about the incident to him on telephone. He stated that he did not make
any pocket diary entry or any other entry about the said phone call. He
stated that though he was on duty on 11/06/2011 and 12/06/2011 his
statement was not recorded on those dates. He stated that while giving his
statement he did not give the phone number from which he had received
the phone call about the incident. He denied that he did not receive any
phone call informing him about the incident.
71. PW.2PI Tivatane was attached to the Police Station, Powai at the
relevant time. He deposed that on 11/06/2011 he was on day duty. He
deposed that at about 03:00 pm PW.1Sandip Shikhre informed him about
a firing incident at D' Mart, Hiranandani and accordingly at about 03:05
pm, he left for the spot along with PW.137PSI Rane. He deposed that he
had made the necessary station diary entry to that effect. He deposed that
they reached the D'Mart Shopping Mall within 15 minutes and when they
reached there they saw that some crowd had gathered in front of the Crisil
House. He deposed that two Beat Marshals were also present there. He
deposed that one of the Beat Marshals informed him that one black
colored Pulsar motorcycle bearing registration no.MH03AD6918
(Article39) was parked on the footpath and one helmet (Article36) was
kept on its seat. He deposed that on making enquiry he came to know that
four persons riding on two motorcycles had done the firing. He deposed
that he also came to know that the injured was taken to the Hiranandani
Hospital. He deposed that he saw the lead (Article215) lying on the spot
and therefore he asked one of the Beat Marshals to make arrangement to
guard the spot and then along with PW.137PSI Rane he went to Dr.L.H.
Hiranandani Hospital for making enquiry about the injured.
72. He deposed that the Doctor informed him that the injured was
75
brought dead to the Hospital. He deposed that he asked one ward boy to
check the pockets of the clothes of the deceased to verify his identity. He
deposed that one pouch (wallet) was found in the rear pocket of the
trouser of the deceased. He deposed that when he checked the pouch he
found the driving license in the name of J.Dey. He deposed that on seeing
the bullet marks on the left side of the body he came to the conclusion
that J.Dey was murdered by gun shots and accordingly he told PW.137 PSI
Rane to record his FIR (Exh.290). He deposed that he also instructed
PW.137PSI Rane to obtain the crime number from the Police Station,
Powai and to make the necessary station diary entry.
73. He deposed that on his directions PW.137PSI Rane prepared the

inquest panchanama (Exh.305) in presence of two panch witnesses who
were called for. He deposed that one photographer (PW.8Bhushan Kumar
Singh) arrived there when the inquest panchanama was being drawn and
he took the photographs of the dead body from various angles. He
deposed that he had also informed PW.137PSI Rane to draw the
panchanama (Exh.306) regarding seizure of the clothes of J.Dey. He
deposed that thereafter both of them returned to the spot of the incident.
He deposed that the spot of the incident was shown to them by one person
by name Javed Ansari. He deposed that the spot panchanama (Exh.1377)
was prepared in his presence. He deposed that on his directions, PW.137
PSI Rane seized the Pulsar motorcycle (Article39) and the lead (Article
215) and the seizure of those articles was recorded in the spot
panchanama (Exh.1377). He deposed that from there both of them
returned to the Police Station, Powai and PW.137PSI Rane made the
necessary station diary entry about the above events.
74. In crossexamination on behalf of the accused no.1,6 and 7, he

76
stated that he was not aware that the Police informant should not take
part in the investigation. He admitted that he had reached the
Hiranandani garden after getting information of the offence. He admitted
that he had seen the crowd and also the motorcycle of J.Dey at the said
place. He clarified that Hiranandani garden was not a garden but it was a
name of an area/locality. He stated that when he first visited the spot he
was at the spot of the incident for about 10 minutes. He stated that during
the period of 10 minutes himself and PW.137PSI Rane were collecting
information from people. He stated that the security guards of the
Hiranandani were also present there along with two Beat Marshals. He
stated that he did not ask PW.137PSI Rane to note down the names of the
security guards. He stated that he knew the names of the Beat Marshals.
He stated that he did not give the names of the Beat Marshals in the FIR as
he did not feel it necessary to do so.
75. He stated that at that time, he did not record the statement of any
person as none of them was in position to make any firm statement that
he had seen the incident. He stated that as no one came forward to lodge
the FIR, he could not lodge the FIR on the basis of the statement made by
any person who was present there. He denied that during the period 10
minutes he was asking the people who were present on the spot to lodge
the FIR. He stated that there were buildings near the spot of the incident
and that the security guards were also posted in those buildings. He stated
that he did not remember whether he had asked the security guards of the
surrounding buildings to lodge the FIR. He stated that he had seen the
injuries on the person of the deceased prior to lodging of the FIR. He
stated that he could not give any reason as to why he did not give the
detailed description of the injuries in the FIR. He denied that he was not
aware in relation to which crime number his statement was recorded. He
77
stated that while giving statement he did not mention about the presence
of lead (Article215) at the spot as he did not remember about the same at
that time. He denied that he had stated about the presence of lead
(Article215) at the spot for the first time before the Court. He denied that
the FIR was ante dated and ante timed. He denied that the FIR was
written in the Police Station.
76. In crossexamination on behalf of the accused no.2, he admitted

that whenever they used to leave the Police Station and return to the
Police Station, they used to make an entry in the station diary. He
admitted that the purpose of leaving the Police Station and the name of
the associates was also mentioned in the station diary. He stated that he
had left the Police Station to make enquiry about the information given by
PW.1Sandip Shikhre regarding the incident of firing. He admitted that
there was two way traffic on the road in front of the Crisil House. He
admitted that when he was in the Hospital along with PW.137PSI Rane
he did not record statement of any person. He stated that his involvement
in this case was till the time they returned to the Police Station, Powai and
till the necessary entries were made in the station diary. He stated that
thereafter, the Investigating Officer of this case did not call him for
enquiry. He stated that he was not even aware about the filing of the
chargesheet in this case. He stated that he had discussions with his
superior Officers regarding this case when they had visited the
Hiranandani Hospital. He denied that the FIR was lodged after discussions
and consultation with the superior Officers.
77. PW.2PI Shri Titavane was reexamined on the point of the

production of the station diary entry regarding his leaving and returning
to the Police Station 11/06/2011. On being asked by the learned SPP, he
78
produced the relevant station diary entry dated 11/06/2011. They were
marked as Exhs.294 and 295 respectively. In further crossexamination on
behalf of accused nos.1,6 and 7, it was suggested to him that the station
diary entry was not in his handwriting and that except for the entry
(Exh.294) there was no other entry in his handwriting on 11/06/2011. He
denied those suggestions. He stated that the specific crime number was
not mentioned in station diary entry (Exh.295) as a separate station diary
entry to that effect was made. He admitted that there was no established
procedure to make any signature on station diary entry. He stated that
normally, initially the AD (Accidental Death) report was filed and after
getting the details, the FIR was registered. He stated that in this case the
AD report was not filed first. He denied that the panch witnesses were
known to him. He stated that he had asked the people present on the spot
to act as panch witness. He stated that in the inquest panchanama
(Exh.305) there was no mention of any hole in the body of J.Dey. He
stated that the lead (Article215) was found in front of the Crisil House
gate on the Central Avenue Road. He stated that he did not know whether
security guards of Hiranandani had found any revolver. He denied that a
revolver was found near the spot and the security guards brought it to the
Police Station.
78. PW.23Sanjay Harinarayan Singh was working as a security guard
with the Front line Guard Security Service at the relevant time. At the time
of the incident, he was posted in Hiranandani. He deposed that on
11/06/2011, he was on duty and his lunch time was between 02:00 pm to
03:00 pm. He deposed that after having lunch with his colleagues namely
Zakirullah Qureshi (PW.24), Shafi Patel, Rajendra Patel, Sanjay Boogi and
Chandrasen Singh all of them were standing outside and at that time, one
person came there and informed them about some firing incident near the
79
Crisil House. He deposed that when they went there he saw that 78
persons were already present there and they were seeing something. He
deposed that he saw that those persons had kept one person near the
compound wall of the Crisil House. He deposed that his senior Chandrasen
Singh told them to stop a vehicle as the person was in injured condition.
He deposed that one Santro car was stopped and the injured was taken to
the Hospital at Powai but the Doctor in that Hospital told them that there
was no ICU facility in their Hospital and therefore, the injured was taken
to the Hiranandani Hospital. He deposed that when they reached
Hiranandani Hospital the Doctor told them that the injured was not
moving. He deposed that thereafter the Police came there and then he
rejoined his duty.

stated that people used to continuously move around the Central Avenue
Road. He stated that he did not ask the 78 persons who were present on
the Central Avenue Road as to how the incident had occurred. He stated
that he did not tell the Police as to how the incident had occurred. He
stated that CCTV cameras were installed in the Hiranandani area. He
stated that some CCTV cameras were installed on the gates of the societies
which covered the road. He stated that CCTV cameras which were
installed on the buildings also covered the road.
80. In crossexamination on behalf of the accused no.2, he stated that
when he saw the injured he was not bleeding. He stated that the injured
was not bleeding even when he was kept in the car. He stated that it was
raining when the injured was being kept in the car. He stated that no
blood was seen in the car also.
80
stated that it was raining on that day since morning. He stated that they
stopped the car as it was raining and it would have been difficult to carry
the injured on a two wheeler vehicle. He stated that they did not check
whether the injured was breathing at that time. He stated that when they
reached the spot nobody told him as to how the incident had occurred. He
stated that he came to know about the manner in which the incident took
place on the next day.

stated that on that day it was continuously raining from 06:00 am to
04:00 pm. At the same time, he stated that he could not say whether it
was raining heavily when he started to proceed towards the spot. He
stated that while he was holding the body, there was no blood on his
jacket or clothes. He stated that he did not know whether there was any
blood on clothes of his colleagues.
83. PW.24Zakirullah Karimullah Qureshi was also working as a security
guard in the Hiranandani, Powai at the relevant time. On 11/06/2011 he
was also on duty along with PW.23Sanjay Singh. His examinationinchief
is on the same lines as that of PW.23Sanjay Singh. Therefore, it is not
being repeated.
84. In crossexamination on behalf of the accused nos.1,6 and 7, he did
not see what articles were lying near the spot. He stated that he did not
see any helmet lying on the spot. He voluntarily stated that the helmet
was on the head of the injured. He stated that the Police were making
some search around the spot of the incident. He stated that he did not
know which articles were seized by the Police at that time. He stated that
81
he did not know whether the Police had seized any revolver from the spot
on the Central Avenue Road.
85. In crossexamination on behalf of the accused no.2, he stated that at
that time, it was raining heavily.
stated that he did not know as to who had stopped the car. But he stated
that somebody from the public had stopped the car. He stated that he did
not know as to how the person had sustained injuries. He stated that
nobody told him about the injuries when he was on the spot. He stated
that he was informed about the injuries when he had gone to the Hospital.

stated that he had not witnessed the event of people lifting the Pulsar
motorcycle on the road. But he stated that he had seen some people
parking the motorcycle. He stated that many people had gathered there
and they were having umbrellas with them. He stated that the Police did
not come to the spot till the time he was there. He stated that he saw the
Police for the first time in the Hospital. He stated that some of the
commandos of his Company had taken the injured to the Hospital.
88. PW.72Ramjatan Lalta Patel was also working as security guard

along with PW.23Sanjay Harinarayan Singh and PW.24Zakirullah
Karimullah Qureshi. He deposed that on 11/06/2011, he was on duty at
the Spectra House. He deposed that at about 02:00 pm, when he was
talking to one Shri Prafull Chandra (Property Manager of Spectra House),
he heard some cracker like sound. He deposed that when he looked
around he saw that one person had fallen on the road near the divider and
82
there was a motorcycle there. He deposed that there were two motorcycles
and two persons were traveling on each motorcycles. He deposed that
those persons ran away from that place. He deposed that he could not see
the faces of those persons but they were wearing raincoats. He deposed
that one person was wearing a green colored raincoat and one person was
wearing a blue colored raincoat. He deposed that he did not remember the
color of the raincoats which the other two persons were wearing. He
stated that he could not identify the raincoats if shown to him.

stated that while giving statement to the Police he did not give the timing
of his duty hours. He stated that usually there was heavy traffic on the
Central Avenue Road. He stated that due to rain many people were
wearing windcheaters and were with umbrellas. He stated that during
rainy season there used to be water logging around the circle which was
on the Central Avenue Road. He stated that when he came outside many
people had already gathered on the spot to see the person who had fallen
on the road. He stated that the injured was lying on the road divider. He
stated that he did not come forward to help that person. He stated that he
did not call the Police. He stated that he could not read and write Marathi.
He stated that he was not aware as to what enquiry was made by the
Police with him and what was written in his statement. He admitted that
the Police had told him that his help may be required with regard to the
incident and he agreed for the same.
there was a slope on the Central Avenue Road and the footpath and the
water used to flow down that road and footpath. He stated that there used
to be heavy traffic on both the sides of the road.
83
stated that on that day it was raining heavily. He stated that normally
there used to be crowd on the road on which the incident had taken place.
He stated that he did not know whether on that day also there was crowd
due to rain. He stated that he did not remember whether at that time
vehicles were running on the road on which the incident had taken place.
He stated that it may be that other motorcycles were also running on that
road. He stated that he first saw the person who had fallen on the spot. He
stated that other persons were also wearing raincoats at that time.
stated that on 11/06/2011 he was with Shri Prafull Chandra for about 10
to 15 minutes and that he was standing and talking with him.
93. PW.3Prakash Ramchandra Vaval was attached to the Police Station,
Powai at the relevant time. He deposed that in June2011, he was working
as day Beat Marshal and he was assigned the duty of patrolling. He
deposed that on 11/06/2011, he was on duty at the IIT outpost Powai
accompanied by Hawaldar Jadhav. He deposed that on 11/06/2011 at
about 03:00 pm, he received a phone call from Shri Kishor Bhosale who
was working as the orderly of Senior PI and he informed him about a
incident of firing near D' Mart, Hiranandani area. He deposed that he
immediately went towards D' Mart. He deposed that it was raining at that
time. He deposed that he found some crowd near the Crisil House and
therefore he stopped his motorcycle near footpath and proceeded towards
the crowd. He deposed that the commandos of the Hiranandani were
already present there. He deposed that he made an enquiry with them. He
deposed that he saw a motorcycle parked on the footpath and a white
84
colored helmet was kept on it. He deposed that he told the people who
gathered there to stay away from that place. He deposed that after some
time PW.2PI Tivatane and PW.137PSI Rane came there. He deposed that
he saw the lead (Article215) on the footpath in front of the compound of
the Crisil House and that he pointed out the lead (Article215) to PW.2PI
Tivatane. He deposed that thereafter PW.2PI Tivatane instructed him not
to allow the public to go near the spot and then PW.2PI Tivatane went to
the Hiranandani Hospital. He deposed that PW.2PI Tivatane, PW.137PSI
Rane and one more person by name Ansari returned to the spot at about
07:30 pm. He deposed that thereafter PW.2PI Tivatane and PW.137PSI
Rane prepared the spot panchanama (Exh.1377), the photographer who
had arrived there took the photographs of the spot and PW.2PI Tivatane
took charge of the lead (Article215), motorcycle (Article39) & the helmet
(Article36) in his presence.

denied that he did not make any entry in his pocket diary about the events
witnessed by him. He stated that he did not give his pocket diary to the
Police nor did the Police ask him about the same. He stated that he had
informed PW.2PI Tivatane about the incident of firing. He admitted that
the road opposite to Crisil House where the incident had occurred was
known as the Central Avenue Road. He voluntarily stated that the Central
Avenue Road was also known as “GoKarting road”.
95. In crossexamination on behalf of the accused no.2, he denied that
except PW.2PI Tivatane and PW.137PSI Rane no other Officer came to
the spot during the period when he was on the spot. He stated that he did
not know the exact time of the occurrence of the incident. He stated that
he did not get any information regarding the number of bullets which
85
were fired in the incident.

stated that he had reached the spot at about 03:10 pm and PW.2PI
Tivatane reached the spot after about 510 minutes after he had reached
the spot. He stated that on 11/06/2011, it was raining since morning and
it stopped raining at about 04:30 pm. He admitted that it was raining
heavily on that day and due to the heavy rain it was difficult to drive. He
stated that when he reached the spot there were 1520 people present
there. He stated that he neither recorded their names and addresses nor
made any enquiry with the general public. He stated that there were 23
commandos present there.
97. PW.5Girish Ramdhari Mishra was the panch witness regarding the
inquest panchanama (Exh.305) and the seizure of the clothes of J.Dey vide
seizure panchanama (Exh.306). He deposed that he was working as a
Security Officer in the Hiranandani Hospital, Powai. He deposed that on
11/06/2011, at about 05:00 pm the body of J.Dey was brought to
Casualty ward and some Police were also present there. He deposed that
on being asked by PW.137PSI Rane he agreed to act as panch witness to
the inquest panchanama. He deposed that the mouth of J.Dey was open
and blood was oozing from the left nose. He deposed that there were no
clothes on the person of J.Dey. He deposed that the body was seen from
all the sides by turning it over. He deposed that at that time, PW.8
Bhushan Kumar Singh (Photographer) came there. He deposed that the
Police noted down the injuries which was found on the body of J.Dey. He
stated that there were about 910 injuries on the body of the deceased. He
stated that the proceedings of inquest panchanama continued upto 06:10
pm. He deposed that the inquest panchanama (Exh.305) was prepared in
86
his presence and its contents were correct.
98. PW.5Girish Mishra deposed that after proceedings of inquest

panchanama (Exh.305) were complete the Police seized the raincoat
consisting of a cap i.e. top and lower and the clothes of J.Dey. He deposed
that there were some cut markings on the top of the raincoat and
markings were at the left chest, left arm and left side of the back. He
deposed that there were about 910 such markings. He deposed that the
cash amount of Rs.200/ to Rs.300/, one photo ID, one license etc. were
found in the pocket of the trouser. He deposed that the wrist watch and
mobile phone of J.Dey was also found. He deposed that all the above
articles were seized, packed and sealed vide seizure panchanama
(Exh.306) and his signatures were taken on the same. He identified all the
articles which were seized at that time. He deposed that the proceedings
of the seizure panchanama (Exh.306) concluded at about 07:00 pm.

stated that he did not keep any note of the patient admitted in the
casualty ward of the Hospital. He clarified that the security guards of the
Hospital did not maintain any such register. He stated that his statement
was never recorded by the Police. He stated that he was not present when
J.Dey was brought to the Hospital and that he came to know about this
from the Police. He stated that he could not read and write Marathi. He
denied that the contents of the inquest panchanama (Exh.305) and the
seizure panchanama (Exh.306) were not read over to him. He voluntarily
stated that the contents of the panchanamas were translated to him in
Hindi. He admitted that the Police did not tell him the crime number and
which sections were applied in this case. He admitted that he did not
handle any article seized by the Police. He denied that the Police had
87
already prepared the seizure panchanama (Exh.306) and he only signed it
and thereafter, the articles were sealed separately. He admitted that he
was not aware as to who wrote the contents of the seizure panchanama
(Exh.306) or the name of the Police Officer who signed the seizure
panchanama (Exh.306).
100. PW.8Bhushan Kumar Singh was the photographer who took the
photograph of the body of J.Dey in the Hiranandani Hospital. It has come
in his evidence that at the relevant time he was working as a photographer
in the Navara Digital Lab situated at Galleria, Shop no.33, Hiranandani,
Powai, Mumbai. He deposed that on 11/06/2011 at about 04:30 pm one
Police Officer came to his shop and told his employer (Shri Rafiq Memon)
that a murder had occurred and photographs were to be taken.
Accordingly, his employer told him to take the photographs. It has come in
his evidence that he then went with the photography equipments to the
Hiranandani Hospital and took the photographs (Exh.489 colly.).

stated that he did not know whether the Police had prepared any seizure
panchanama regarding the photographs given by him to the Police. He
stated that no blood was seen on the front portion of the body. He stated
that the Police did not tell him anything regarding the crime number in
connection with which the photographs were taken. He denied that he
was a regular photographer for the Police. He stated that he was not told
by the Police to take photograph from specific angles.
102. In crossexamination on behalf of the accused no.2, he admitted

that at the relevant time his shop was having modern equipments of
photography. He admitted that editing facility was available in his shop.
88
He admitted that softwares were available in the market for editing

photographs. He denied that he did not take any photographs.
stated that the printouts of the photographs were taken through the
computer which was in his shop. He stated that the computer was not
available in his shop. (As on the date of recording of his evidence this
witness was not working in the Navara digital lab). He denied that he had
manipulated the photographs when the memory card was inserted in the
computer for taking printouts.

stated that he did not remember whether while giving statement to the
Police he had given the description of the memory card. He stated that his
statement was not read over to him after it was recorded. He stated that
he also did not read his statement. He stated that he did not remember the
model number of the camera used by him for taking the photograph.
105. PW.79Rajesh Sakharam Revale was working as a wardboy in the
Hiranandani Hospital at the relevant time. He deposed that on
11/06/2011, his regular duty hours were between 07:00 am to 04:00 pm
but as his reliever had not joined he continued his duty in the second shift
also. He deposed that on that day, Doctor Ali (PW.130) who was working
in the Hospital called him to the casualty ward and told him to remove the
clothes which were on the body of J.Dey. He deposed that he removed the
clothes of J.Dey and handed over them to the Police who were present
there. He deposed that there was one gray colored jacket one cap, one
black colored Tshirt, one black colored trouser and one gray color
underwear. He identified the clothes of J.Dey in the Court.
89
106. In crossexamination, on behalf of the accused nos.1,6 and 7, he

stated that he had gone to the casualty ward at 04:30 pm and removed
the clothes which were on the body of the deceased. He stated that he did
not remember whether the Police had told him with reference to which
case the clothes were being seized. When a specific question was put to
him whether he had seen any shot hole on the Tshirt and jacket when he
removed the clothes from the person of the deceased, he replied in the
negative and stated that he had simply removed the clothes and handed
over them to the Police.
107. PW.84HC Bhaskar Gode was attached to the Police Station, Powai
at the relevant time. He was examined by the prosecution to show that the
on 12/06/2011, at about 12:00 in the noon the CCTV footage of
11/06/2011 of the Hiranandani D'Mart Shopping Mall, Sweta Building,
Office of HSP was collected in his presence. (He was not the panch
witness) He deposed that the CDs (Articles149, 150, 151) containing the
CCTV footage were sealed and labelled in his presence and the seizure
panchanama (Exh.813) was prepared in that regard.
108. In crossexamination on behalf of the accused nos.1,6 and 7, certain
facts not connected with the purpose for which he was examined were
brought on the record with the intention to create a doubt about the spot
of the incident. He stated that he was attached to the Police Station, Powai
since the year 2005 and during that period he had done patrolling duty
also. He stated that he knew the names of the roads in the Powai area. He
stated that the D'Mart Shopping Mall was facing the Central Avenue Road
and that there was only one entry and exit point in the D'Mart Shopping
Mall and it was facing the Central Avenue Road. He stated that the only
90
front portion of the D'Mart Shopping Mall was facing the Central Avenue
Road and not the back portion of the D'Mart Shopping Mall. He stated that
the Spectra Building was adjacent to the D'Mart Shopping Mall. He stated
that he had visited the spot on 11/06/2011. He stated that there was a
gate of Crisil House on the Central Avenue Road. He stated that on
11/06/2011 he had gone to the gate of the Crisil House facing the Central
Avenue Road where the incident had taken place. He stated that the news
about the incident was received in the Police Station at about 03:00 pm.
He stated that many Police Officers had come to the Central Avenue Road.
109. PW.85Kashinath Santu Jadhav was working as Head Constable

with the Police Station, Powai at the relevant time. He deposed that on
11/06/2011, he was given duty at the main gate, IIT, Powai along with
PW.3Constable Prakash Vaval. He deposed that at about 03:00 pm while
he was on patrolling duty with PW.3Constable Prakash Vaval, he (PW.3)
received a phone call from one Shri Bhosale who was the Assistant to
Senior PI who informed him that there was a firing near D'Mart Shopping
Mall, Hiranandani. He deposed that thereafter both of them immediately
went towards D'Mart Shopping Mall. He deposed that it was raining at
that time. He deposed that many people had gathered near the Crisil
House. He deposed that the commandos of Hiranandani were also present
there and they told them that one person was shot dead when he was
driving his motorcycle. He deposed that before they reached the spot, the
injured was already taken to the Hospital and his motorcycle and helmet
were kept on one side of the road. He deposed that one empty cartridge
was also found on the spot. He deposed that in the meanwhile, PW.2PI
Tivatane and PW.137PSI Rane also came there and they told them not to
move from the spot. He deposed that thereafter PW.2PI Tivatane and
PW.137PSI Rane went to the Hospital and both of them guarded the spot.
91
He deposed that PW.2PI Tivatane and PW.137PSI Rane returned to the
spot at about 07:40 pm along with one person and prepared the spotcum
seizure panchanama (Exh.1377) of the empty cartridge, motorcycle and
the helmet in presence of two panchas. He identified the helmet (Article
36) and the empty cartridge (Article215)(lead).

stated that he was working in the Police department since the year 1985
and after his appointment, he was given training about arms. He stated
that he had seen cartridges and he knew how a cartridge looked. He
stated that he took him 1015 minutes to reach the spot. He stated that at
that time it was raining heavily. He denied that after the incident there
was any traffic jam and that the traffic had come to a stand still. He stated
that after he had gone to the spot he did not conduct any enquiry. He
admitted that generally many vehicles and people used to move on the
Central Avenue Road. He stated that he did not note down the name of
any person who was present on the spot.
whenever he left the Police Station and whenever he returned to the
Police Station he used to make the station diary entry. He stated that such
registers were also maintained by the Police at the outpost. He stated that
he was given a pocket diary for making entry regarding the duty allotted
to him in which he used to mention the various places visited by him
during the duty hours and the work done during duty hours. He stated
that he did not make any entry in the station diary but he had made an
entry in his pocket diary regarding the work done by him on 11/06/2011.
He admitted that at the time of recording his statement he did not
produce his pocket diary.
92
112. In crossexamination on behalf of the accused nos.5 and 11 he

stated that the helmet (Article36) was silver in color. He then stated that
the helmet (Article36) could be of ash color. He admitted that the helmet
(Article36) was not of white color.
113. PW.137PSI Rane deposed that on 11/06/2011, he was on duty as
the 1st alternative Station House Officer. He deposed that on that day at
about 03:00 pm., he was the Incharge Station House Officer as the
Station House Officer had gone out for lunch. He deposed that at that
time, PW.2PI Tivatane came there and informed him that a firing incident
had taken place near D'Mart Shopping Mall, Hiranandani. He deposed that
PW.2PI Tivatane made the necessary station diary entry and then both of
them went to the road which was outside the Crisil Building out gate,
D'Mart Shopping Mall, Hiranandani. He deposed that some persons and
two Beat Marshals of Powai were present there and on making enquiry
with the people who were present there they came to know that four
persons who had come on two motorcycles had injured one person who
was also on a motorcycle by using firearm and that injured was taken to
the Hiranandani Hospital by the commandos of Hiranandani. He deposed
that they saw one motorcycle parked on the footpath and a white colored
helmet was kept on it. He deposed that the Beat Marshals told them that
the injured was driving that motorcycle. He deposed that after instructing
the Beat Marshals to take care of the motorcycle and the helmet, himself
and PW.2PI Tivatane went to Hiranandani Hospital and on making
enquiry with the Doctor they were informed that the injured had expired
before he could be admitted in the Hospital. He deposed that from the
licence which was found in the wallet of the deceased, they came to know
that the name of the deceased was Jyoti Nipendra Dey. He deposed that
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thereafter, on the directions of PW.2PI Tivatane he recorded his

statement (FIR) (Exh.290) on behalf of the State. He deposed that before
recording the statement of PW.2PI Tivatane he telephoned Police Station,
Powai and requested for the crime number and the accidental death report
number. He deposed that the duty Officer Shri. Londhe who spoke to him
on the phone told him that the crime number be given as C.R.No.
256/2011, ADR number be given as ADR No.61/2011 and the case diary
number as 44 at time 16:05 Hrs. He deposed that he also requested Shri
Londhe to send for additional Police force to the spot of incident. He
deposed that after the statement of PW.2PI Tivatane was recorded in the
Hospital, he prepared the inquest panchanama (Exh.305) in presence of
two panch witnesses who were called for that purpose. He then gave the
details of the injuries which were found on the person of J.Dey. He
deposed that while the proceeding of the inquest panchanama were going
on at about 05:45 pm the photographer (PW.8) came there. He deposed
that the proceedings of the inquest panchanama were completed at about
06:10 pm.
114. He deposed that after the formalities of the inquest panchanama

were completed, the seizure panchanama (Exh.306) of the clothes and
other articles which were found on the person of J.Dey was prepared in
presence of same panch witnesses as they were already present there. He
deposed that the clothes of J.Dey were packed and sealed at that place in
presence of the panch witnesses. He deposed that after the proceedings of
inquest panchanama were complete the dead body was forwarded to the
J.J. Hospital for Postmortem. He deposed that thereafter, he went to the
spot of the incident along with PW.2PI Tivatane which was near the Crisil
building. He deposed that when they went near the spot of the incident,
one person by name Javed Ahmed Mohd. Ibrahim Ansari r/o. Kailas
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Apartments, opposite S.M. Shetty School, Powai came to him and told him
that he was a witness to the incident. He deposed that when he informed
this fact to PW.2PI Tivatane, he was told to take that witness along with
them. He deposed that the said witness had shown the spot of the incident
to them. He deposed that at about 07:40 pm, PW.2PI Tivatane called for
two panch witnesses from amongst the persons who had gathered near the
spot namely Shri Baburao Sangappa Fulare and Shri Yakub Jafar Shaikh.
He deposed that on being asked, both of them agreed to act as the panch
witness for the spot panchanama.
115. He deposed that Javed Ahmed Mohd. Ibrahim Ansari showed the
spot of the incident in presence of the panch witnesses. He deposed that
the spot was on the road in front of Crisil building going from Hiranandani
garden to the D' Mart Shopping Mall and near the road divider. He
deposed that the road was in the EastWest direction. He deposed that the
road on the western side was going towards the D' Mart Shopping Mall
and the road on the eastern side was going towards Gokarting. He
deposed that the spot of the incident was on the road going from west to
east near the divider. He deposed that the measurement of the spot was
taken from various places. He then stated about the various measurements
which were taken. He deposed that thereafter, the witness Javed Ahmed
showed the spot where J.Dey was placed after the incident. He deposed
that Bajaj Pulsar motorcycle of J.Dey bearing registration no. MH03AD
6918 and his helmet were seized in presence of panch witnesses. He
deposed that thereafter they searched the place around the spot and
during the search one black colored lead (Article215) was found near the
compound wall of Crisil building one feet away towards the southern side.
He deposed that the lead (Article215) was packed, sealed and labeled
with the signatures of panch witnesses and himself. He deposed that the
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proceedings of the spot panchanama (Exh.1377) were completed at

around 08:50 pm. He deposed that from there, they returned to the Police
Station, Powai and then first checked whether the station diary entry
regarding this case was properly made by the Station House Officer or not
and he found it to be correct.

stated that he had conducted the investigation as he was the Investigating
Officer at that time till the case was transferred to the Crime Branch. He
stated that PW.2PI Tivatane was his superior Officer and that he was
issuing directions to him from time to time. He stated that on the basis of
the ID card which was found when he had gone to the Hiranandani
Hospital he came to know that J.Dey was a Reporter. He stated that
during the investigation conducted by him he did not try to find out in
what manner the crime was committed as after the registration of the FIR,
he did not conduct any investigation.
117. He stated that after he reached the spot he found some people
present there but there was no crowd. He stated that there were 10 to 15
persons present there. He stated that the security guards of the building
around the spot and the commandos of Hiranandani were not present
there but two Beat Marshals of their department were present there. He
stated that he did not record their statement. He stated that he did not
note down the name and address of the person who told them that J.Dey
was taken to the Hospital. He stated that he could not say whether the
information which was given by the public was of a cognizable offence.
118. He stated that the Hiranandani Hospital was at a distance of less
than 500 meters from the spot of incident. He stated that he did not know
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the names of all the roads of that area. He stated that he did not know the
names of the roads which were nearby to the spot of the incident. He
stated that he did not know the name of the road which was in front of
D'Mart Shopping Mall which was in front of the Spectra Building. He
denied that the spot of the incident was on the road which was towards
the entrance of Hiranandani. He stated that he could not give the name of
the road on which the incident occurred as he was not knowing the name
of the roads. He stated that at the time of preparing spot panchanama he
did not try to find out the name of the road on which the incident had
taken place as he was busy in his work there. He stated that the name of
the road on which the incident took place was not mentioned in the spot
panchanama. He admitted that while they were drawing the spot
panchanama the street lights were on as it was evening time.
119. He stated that they reached the spot for preparing the spot
panchanama after 06:30 pm. He stated that when they went there the
surface was wet as it had rained on that day. He denied that the spot
panchanama was not prepared on the spot. He stated that he could not
say whether the Somerset was in front of the Crisil building. He stated that
the D'Mart Shopping Mall was situated in the Spectra building. He stated
that the spot of the incident was at a distance of about 8 to 9 meters from
the main gate of D'Mart Shopping Mall. He denied that the spot was in the
western direction. He stated that it was in the northern direction. He
stated that he did not find the lead at a place between the spot of the
incident and the place where the motorcycle of J.Dey was parked. He
stated that he had inspected the place near the spot and he had found the
lead (Article215) there. He denied that the lead was found by the panch
witnesses. He stated that he could not give the exact distance of the place
where the lead was found and the main entrance gate of the Spectra
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building. He stated that he did not mention the description of the lead in
the spot panchanama. He denied that the lead (Article215) was not black
in color. He stated that at that time it was raining and as the lead was wet
it seemed to be black in color. He stated that the lead was in the same
condition when it was found at the spot as it was in the Court. He stated
that the lead (Article215) was pressed ¼ncysyh½ at the bottom. He
admitted that no mark was made on the lead for its identification. He
admitted that in the spot panchanama it was not mentioned that the lead
which was found was in pressed ¼ncysyh½ condition. He stated that he
could not say whether the lead was placed in the khaki wrapper (Article
214) and a label was affixed on it bearing the signatures of the panch
witnesses and his signature. He stated that it was not mentioned in the
panchanama that the lead was kept in an envelope (Exh.820).
120. At this stage, the attention of PW.137PSI Rane was drawn to the
labeled envelope (Exh.820) and he admitted that the label was bearing his
signature and the signatures of the panch witnesses. Thereafter, he said
that he could not say anything about the envelope (Exh.820). He stated
that he could not say whether it was prepared later on and the lead was
planted. He stated that he did not find any stains of mud or blood on the
lead when it was found. He admitted that in the spot panchanama it was
not mentioned that the lead was kept in a plastic bag. He stated that he
did not know how the lead was kept in the plastic bag before the Court.
He denied that he was already knowing the exact spot of the incident and
no witness showed him the exact spot of the incident. He stated that till
the time of spot panchanama he was not aware about the exact spot of the
incident. He stated that PW.2PI Tivatane had not brought the witness
who had shown the spot. He stated that he had seen that witness for the
first time when he had shown the spot of the incident. He stated that he
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could not record the statement of that witness as he was involved in his
work. He voluntarily stated that after returning to the Police Station he
received information that API Smt. Korke had recorded the statement of
that witness. He denied that the statement of the witness which was
recorded by API Smt. Korke was treated as an FIR. He stated that he had
read the statement of that witness after he reached the Police Station. He
denied that the spot panchanama was not in his handwriting. He denied
that the spot panchanama was an ante dated, ante timed and fabricated
document prepared in the Police Station.
121. He stated that the inquest panchanama was in his handwriting. He
admitted that the inquest panchanama was not prepared in the presence
of the Doctor. He stated that the distance between the holes (of injuries)
mentioned in the panchanama were approximate. He stated that the
photographer from their department was not called as the distance
between his Office at Crawford market and Powai was long and about one
and half hours was required to reach Powai from Crawford market.
122. He stated that the printed FIR (Exh.290) was filled in by him. He
admitted that in the printed FIR (Exh.290) it was not mentioned as to at
which place the statement of PW.2PI Tivatane was recorded. He clarified
that it was recorded in the Hiranandani Hospital and that he might have
missed to write it at that time as he was doing his work. He stated that the
FIR was forwarded to the Magistrate on 13/06/2011 as 12/06/2011 was a
Sunday and Court was closed. He stated that the Holiday Court was
functioning on Sunday. He denied that the FIR (Exh.290) was an ante
dated, ante timed and fabricated document. He stated that the entry
regarding registration of the crime was always mentioned in the station
diary. He stated that a crime register was also maintained in which the
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crime numbers were serially mentioned.
PSI Shri Londhe was the Station House Officer on 11/06/2011 and as he
had gone out for sometime, during that period he was the Incharge
Station House Officer. He denied that on 11/06/2011, he did not meet
him after he had gone out. He stated that he had made the station diary
entry regarding the proceedings conducted by him after he returned to the
Police Station. He stated that the investigation of this case was with him
four about 7 to 8 hours and thereafter, the investigation was transferred to
Crime Branch, Unit no.10.
124. He stated that on 11/06/2011, PSI Shri. Londhe had gone for lunch
at about 02:45 pm. He stated no information about the incident was
received prior to 03:00 pm. He stated that PW.1Sandip Shikhre had
informed PW.2PI Tivatane about the incident at about 03:00 pm. He
stated that PW.1Sandip Shikhre got the information about the incident
when he was in the Police Station. He stated that he did know who
informed PW.1Sandip Shikhre about the incident. He stated that they left
the Police Station within 5 minutes of receiving the information about the
incident. He stated that PW.2PI Tivatane had told him that a firing
incident taken place near D'Mart Shopping Mall, Hiranandani, Powai and
that they should immediately go to the spot of the incident. He stated that
at that time, PW.2PI Tivatane did not tell him anything about the person
who had done the firing, how many persons were there and whether any
victims were there. He stated that they had left the Police Station
assuming that a cognizable offence had taken place within the jurisdiction
of Police Station, Powai. He stated that prior to leaving the Police Station,
PW.2PI Tivatane had made the necessary station diary entry. He stated
100
that he had recorded the statement of PW.2PI Tivatane in the

Hiranandani Hospital.
125. He stated that on 11/06/2011, it started raining between 12:00

noon to 01:00 pm. He stated that for sometime it was raining heavily but
it was raining continuously. He stated that he could not say whether it was
raining heavily when they were going to the spot. He stated that when
they were going towards the spot the roads were wet. He stated that he
did not examine the spot minutely when they first went there. He stated
that when he was in the Hospital, he came to know that J.Dey was
brought there by the commandos of Hiranandani. He stated that it took
him about 40 minutes to record the statement of PW.2PI Tivatane and
that prior to that, he had called for the crime number and the ADR
number from the Police Station, Powai.
ANALYSIS
126. While analyzing the evidence of PW.1Sandip Shikhre, PW.2PI
Tivatane, PW.5Girish Mishra, PW.8Bhushan Kumar, PW.23Sanjay
Singh, PW.24Zakirullah Qureshi, PW.84HC Bhaskar Gode, PW.85HC
Kashinath Jadhav & PW.137PSI Rane, it will be necessary to keep in mind
that the FIR (Exh.290) was lodged against unknown persons. This means
that at that time, the involvement of the accused persons who are before
this Court was not revealed. It is only on 26/06/2011 i.e. after about 15
days of the incident that the names of the accused persons surfaced in this
case. Therefore, till that time, none of the witnesses had the knowledge
about the involvement of the accused persons in this case.
127. Now let's find out whether there is any doubt regarding the timing
of the incident, the place of the incident, lodging of the FIR and the
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recovery of the lead (Article215) from the spot of the incident.
128. From the evidence of PW.1Sandip Shikhre, PW.2PI Tivatane,

PW.3Prakash Vaval, PW.23Sanjay Singh, PW.24Zakirullah Qureshi,
PW.85HC Kashinath Jadhav and PW.137PSI Rane it is quite clear that
the incident took place on 11/06/2011 between 02:30 pm to 03:00 pm
and the news about the same was received at around 03:00 pm. In the
present case, the exact time of the incident cannot be ascertained as the
eyewitness was not available for examination. Having said this, there is
nothing suspicious in the evidence of the above mentioned witnesses so as
to create any doubt about the probable time at which the incident took
place.
129. It was argued by the learned Advocate for the accused no.2 that
J.Dey was very much alive when he was put in the car and had any
enquiry been made with him, he could have given the description of the
assailants. The argument is without any basis. There is absolutely no
evidence to suggest that after being shot at J.Dey was in a position to
speak. No such stand was taken during the crossexamination of the
relevant witnesses. Therefore, the above argument needs to be rejected.
130. The learned Advocate for the accused no.2 also argued that the area
in which the incident took place was thickly populated and it is difficult to
believe that there were no eyewitnesses to the incident. It is necessary to
state that as per the prosecution, there was one eyewitness to actual
incident who had identified some of the accused during the Test
Identification Parade which was conducted on 30/08/2011. By the order
dated 14/09/2017 passed below application (Exh.1259) filed on behalf of
the prosecution, the said eyewitness along with three other witnesses was
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granted police protection. But, the said eyewitness failed to appear before
the Court. Therefore, on 21/11/2017, the learned SPP filed application
(Exh.1466) for issuance of nonbailable warrant against the witness on
the ground that there was an apprehension that if bailable warrant was
issued against him, he may run away. Considering the apprehension
raised by the prosecution, on the same day, a nonbailable warrant was
issued against the said witness. But the same could not be executed on
him as the witness could not be traced out. Accordingly, the learned SPP
filed pursis (Exh.1482) in that regard on 27/11/2017. The report dated
25/11/2017 was also annexed with the pursis in which the reasons for the
nonexecution of the nonbailable warrant on the witness were
mentioned. The perusal of the said report shows that the nonbailable
warrant could not be executed as the address of the witness was found to
be incomplete. The report also states that the concerned Policeman who
had gone to execute the warrant made enquiry with the general public
living in that area but it was found that no such person was residing there.
Under such circumstances, the eyewitness could not be examined on
behalf of the prosecution. It is not necessary to discuss as to why in the
cases like the present one, important witnesses either go missing or do not
support the case of the prosecution. Necessary inference may be drawn.
131. In so far as the absence of any other eyewitness is concerned, it
needs to be noted that it is the case of the defence itself that at the time of
the incident it was raining heavily. Therefore, not many people would
have ventured outside at that time. The Court can also take notice of the
fact that ever since the flooding of Mumbai because of the heavy rains on
and after 26/07/2005 most people of Mumbai avoid to go outside when it
is raining heavily. This can be observed by any person who lives in
Mumbai. Therefore, it is quite possible that at the time of the incident not
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many people were walking on the road. That apart, the incident did not
occur in such a manner so as to immediately catch the attention of the
people who were passing by. It was not as if there was a huge explosion so
as to attract the attention of the people who may have been present
around that place or who were passing through that place. Also, it cannot
be forgotten that after being shot at, J.Dey just fell down from his
motorcycle. Some people may have thought that there was a minor
accident and may have ignored the same. While some persons may have
come forward to help J.Dey and on coming near to him they might have
realized that he was shot at and accordingly the information must have
been forwarded to the Police.
132. The judgments in the case of Ashraf Hussain Shah V. State of

Maharashtra reported in 1996 CRI.L.J. 3147 and Habeeb Mohammad
V. State of Hyderabad reported in AIR 1954 SC 51 were relied upon to
contend that as the witness whose evidence was necessary for unfolding
of the narrative was not examined, the case of the prosecution was
vitiated. This Court has gone through the above judgments. The
observations made by the Hon'ble Superior Courts in the said judgments
were on the basis of the facts of those cases. The facts of those cases are
quite different from the facts of the present case. Therefore, the above
judgments are of no use to the defence. Having said this, the prosecution
has given the reason as to why the eyewitness in this could not be
examined. None of the Investigating Officers of this case was questioned
on this aspect. Further, as will be seen in the later part of this judgment
the defence has not been able to show any major omission, commission or
illegality in the investigation of this case. Therefore, nonexamination of
the alleged material witness will not affect the case of the prosecution.
104
133. The learned Advocate for the accused nos.1,6 and 7 submitted that
though the witnesses have deposed that they received the news at about
03:00 pm, the perusal of the FIR (Exh.290) shows that it is recorded
therein that the incident took place at 02:30 pm. It may be noted that
during the crossexamination of PW.2PI Tivatane which was conducted in
view of the order passed below application (Exh.448), it was brought on
the record that he was informed about the time of the incident after
making enquiry with the Police Constables, security guards and the public
who were present on the spot. Also, PW.1Sandip Shikhre who was the
first person to receive the information was not asked about the time of the
incident. In any case, the FIR would always contain the probable time of
the incident unless the exact time of the incident is stated by someone.
Therefore, the submission made by the learned Advocate for the accused
nos.1,6 and 7 that the prosecution has failed to prove the time at which
the incident took place on 11/06/2011 must fail.
134. In so far as the registration of the FIR (Exh.290) is concerned, from
the evidence of PW.2PI Tivatane it is clear that on reaching the
Hiranandani Hospital and on seeing the bullet injuries on the body of
J.Dey, he immediately directed PW.137PSI Rane to record his FIR and
accordingly the FIR (Exh.290) was registered. PW.2PI Tivatane has
explained the circumstances under which he was required to get the FIR
(Exh.290) registered. It has come in his evidence that though some public
was present on the spot no one from the public was coming forward to
lodge the FIR and therefore, he decided to become the informant. It is not
uncommon that whenever any incident of such a kind occurs, people
gather to see what has happened but when they are asked to help the
Police they back out. Under such circumstances, there is no reason to
doubt the action taken by PW.2PI Tivatane and in view of his evidence, it
105
can be said that he did the right thing by becoming the informant.
135. At this stage, it may be stated that an objection was raised by the
learned Advocate for the accused no.2 that as the telephonic information
about the incident clearly disclosed the commission of a cognizable
offence, it was incumbent upon PW.2PI Tivatane and PW.137PSI Rane to
have registered the FIR on the basis of the same and the failure on their
part to register the FIR on the basis of the said information creates a
suspicion about the case of the prosecution. The said submission has no
basis. The message which was received was a cryptic message. PW.1
Sandip Shikhre was only informed that some firing incident had taken
place near the D'Mart Shopping Mall. He passed on the said information to
PW.2PI Tivatane. A cryptic message given on telephone cannot be treated
as an FIR merely because that information was first in point of time. The
object and purpose of a telephonic message is not to lodge a FIR but a
request to the Officer in charge of the Police Station to reach the place of
occurrence so as to enable him to find out the details of the offence.
Further, the investigation does not start when the Police Officer leaves the
Police Station for the scene of the offence to make inquiries, but it starts
only when he reaches the scene of the offence. In the present case, the
same course was followed by PW.2PI Tivatane and PW.137PSI Rane.
Therefore, their actions cannot be faulted with. That apart, as stated
earlier, at the time of the registration of the FIR (Exh.290), the accused
persons were never in picture. The FIR was registered against unknown
persons. Therefore, there was no motive for any one to falsely implicate
them.
136. It was also argued by the learned Advocate for the accused no.2 that
the fact that PW.2PI Tivatane has admitted that the FIR (Exh.290) was
106
lodged after consultation with senior Police Officers also shows that the
contents of the FIR (Exh.290) were manipulated. The said submission also
has no basis. J.Dey was senior Journalist working with the daily 'MidDay'.
The news about his murder had spread like wild fire. Therefore, it was but
natural for the Senior Police Officers to visit the Hiranandani Hospital
where J.Dey was taken after the incident and make enquiry with PW.2PI
Tivatane about what had happened. By any stretch of imagination, that
does not mean that PW.2PI Tivatane and the Senior Police Officers
connived to register a false FIR. As stated earlier, at the time of the
registration of the FIR (Exh.290), the accused persons were never in
picture. Therefore, there was no motive for any one to register a false FIR
to implicate them.
137. It was then argued by the learned Advocate for the accused nos.1,6
and 7 that PW.2PI Tivatane did not give the details of the injuries found
on the person of J.Dey in the FIR (Exh.290) which makes the case of the
prosecution suspicious. It is well settled that an FIR is not an encyclopedia
expected to contain all the details of the prosecution case. It may be
sufficient if the broad facts of the prosecution case alone appear in it and
the FIR need not contain each and every detail. Hence, the argument as
advanced by the learned Advocate for the accused nos.1,6 and 7 cannot be
accepted.
138. It is seen that there is delay of one day in sending the FIR (Exh.290)
to the learned Magistrate. PW.137PSI Rane has explained the reason for
the delay. The incident took place on 11/06/2011 which was a Saturday.
PW.137PSI Rane has stated that the FIR (Exh.290) was forwarded to the
learned Magistrate on 13/06/2011 as 12/06/2011 was a Sunday and
Court was closed. Thus, the explanation given by him is satisfactory. In
107
any case, it is well settled that the delay or promptness of in lodging the
FIR or its dispatch to Magistrate cannot alone be the yardstick to test of
veracity or otherwise of an FIR as at times, a promptly lodged report may
also be inaccurate or distorted and a delayed report may despite the delay
remain a faithful version of what had actually happened. The Court has to
consider the totality of circumstances. In the present case, as stated
earlier, the explanation given by PW.137PSI Rane regarding delay of one
day in sending the FIR to the learned Magistrate has been satisfactorily
explained and there is no reason to doubt him especially because at that
time, the identity of the assailants was not known. Therefore, he had no
motive to falsely implicate anybody in this case.
139. In so far as the proceedings of the inquest panchanama are

concerned, it is clear from the evidence of PW.137PSI Rane that the
inquest panchanama (Exh.305) of the body of J.Dey was prepared in the
Hospital in the presence of two panch witnesses. The evidence of panch
PW.5Girish Mishra also corroborates this fact. Also, during that process,
PW.8Bhushan Kumar Singh took the photographs (Exh.289 colly.) of the
dead body of J.Dey.
140. It may be noted that PW.8Bhushan Kumar Singh was a private

photographer. During the crossexamination of PW.137PSI Rane he was
asked as to why a private photographer was called for taking the
photographs of the dead body of J.Dey when the Police had its own
photographer to which he has given a satisfactory reply that the
photographer from their department was not called as the distance
between his Office at Crawford market and at the Powai was long and it
takes about one and half hours to reach Powai from Crawford market.
Thus, it is seen that PW.137PSI Rane did the right thing by immediately
108
summoning the said photographer. Also, had he waited for the

photographer from their department it would have resulted in delay in
taking the photographs of the dead body and then the defence would have
argued that there was deliberate delay to manipulate things.
141. In so far as the spot of the incident is concerned, from the evidence
of PW.137PSI Rane who prepared the spot panchanama on the basis of
the information given by one Javed Ahmed Mohd. Ibrahim Ansari r/o.
Kailas Apartments, opposite S.M. Shetty School, Powai in presence of two
panch witnesses namely Shri Baburao Sangappa Fulare and Shri Yakub
Jafar Shaikh it is quite clear that the spot of the incident was on the road
which was in front of Crisil building going from Hiranandani garden to the
D' Mart Shopping Mall and near the road divider. In crossexamination, he
has denied that he was already knowing the exact spot of the incident and
no witness showed him the exact spot of the incident. It needs to be noted
that no stand was taken/ suggestion was given by the defence that the
spot of the incident as stated by PW.137PSI Rane was incorrect or that
the incident had taken place elsewhere. Under such circumstances, the
nonexamination of the panch witnesses to spot panchanama does not
create any doubt about the spot of the incident more so for the reason that
at that time, the identity of the assailants was not known and there was no
motive for PW.137PSI Rane to create a false or incorrect record of the
spot panchanama. Further, the oral evidence of PW.137PSI Rane is fully
corroborated by the contents of the spot panchanama (Exh.1377). Also,
the evidence of PW.1Sandip Shikhre, PW.2PI Tivatane, PW.3Prakash
Vaval, PW.23Sanjay Singh, PW.24Zakirullah Qureshi and PW.85HC
Kashinath Jadhav lends support to the fact that the incident took place on
the road in front of Crisil building, Hiranandani.
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the evidence of PW.137PSI Rane that the incident took place on the road
in front of Crisil building going from Hiranandani garden to the D' Mart
Shopping Mall and near the road divider stands falsified by the evidence
of PW.84HC Bhaskar Gode who has stated that the spot of the incident
was near the gate of the Crisil House facing the Central Avenue Road. The
said argument is required to be rejected for the reason that PW.84HC
Bhaskar Gode was not connected in any manner with the proceedings of
the spot panchanama which was drawn on 11/06/2011. He was examined
by the prosecution to prove the seizure of the copies of CDs (Article149,
150, 151) of the CCTV footage of 11/06/2011 of the Hiranandani D'Mart
Shopping Mall, Sweta Building, Office of HSP. His evidence shows that on
11/06/2011 he had gone to the gate of the Crisil House facing the Central
Avenue Road where the incident had taken place. However, when his
entire evidence is read, it will be clear that he has no where stated that he
had visited the spot of the incident at any time after the incident nor he
has stated that he was present at the spot of the incident in any capacity
when the spot panchanama was being drawn. In view of the above
position, the evidence of PW.84HC Bhaskar Gode cannot be accepted in
the light of the evidence of PW.137PSI Rane who had himself drawn the
spot panchanama (Exh.1377) in presence of panch witnesses and the
contents of the spot panchanama (Exh.1377). That apart, as stated earlier,
as on 11/06/2011, the names of the accused persons was never in picture
and there was no reason for PW.137PSI Rane to create a false record of
the spot panchanama.
143. The learned Advocate for the accused nos.1,6 and 7 also submitted
that the video shooting of the entire proceedings of the spot panchanama
ought to have been conducted and in absence of the same the case of the
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prosecution becomes suspicious. The said submission is also required to be
rejected as there is no such requirement in law. That apart, neither PW.2
PI Tivatane nor PW.137PSI Rane were crossexamined on this aspect.
Therefore, the argument on this point cannot be entertained.
preparation of the spot panchanama is not an empty formality and that all
the necessary details must be incorporated in the spot panchanama to
enable the Court to ascertain whether the offence was committed by the
accused persons or not. In this regard, reliance was placed upon the
judgment in the case of Vijay Singh V. State of M.P. reported in 2005
CRI.L.J. 299. This Court has gone through the above mentioned
judgment. The said judgment is not applicable to the facts of the present
case as the facts of the present case are different from the facts of that
case. That apart, though the above mentioned judgment is cited, the
learned Advocate for the accused nos.1,6 and 7 did not point out what
were the other necessary details which were required to be incorporated in
the spot panchanama (Exh.1377). It may also be noted that the
prosecution examined PW.6Suhas Joshi who was an Architect and had
prepared the sketch map (Exh.341) of the spot. It is not the stand of the
learned Advocate for the accused nos.1,6 and 7 that there is any
contradiction in the spot panchanama (Exh.1377) and the sketch map
(Exh.341) with regard to the spot of the incident or the places which were
around the spot of the incident. Therefore, it cannot be said that the spot
panchanama (Exh.1377) is defective in any manner.
145. The learned Advocate for the accused no.1 submitted that the
recovery of the lead (Article215) from the spot of the incident is very
much doubtful. It was submitted that though before the Court PW.2PI
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Tivatane stated that he found a lead near the spot of the incident he did
not state this fact while giving his statement on the basis of which the FIR
(Exh.290) was registered. It was thus urged that he has improved his
version the before the Court. It is well settled that merely because a
witness has not given all the details in his statement, his evidence in the
Court cannot be rejected. The evidence of otherwise creditworthy witness
cannot be discarded merely because it was not available in his statement.
In the present case, PW.2PI Tivatane has explained that at the time of
giving his statement he did not remember about finding of the lead. It is
necessary to note that after PW.2PI Tivatane reached the spot along with
PW.137PSI Rane he was there for hardly 10 minutes and during that
period he made enquiry about the injured. He was informed that the
injured was referred to the Hiranandani Hospital for treatment. He was
also informed that a lead was found. The first priority of PW.2PI Tivatane
was to go to the Hiranandani Hospital and see whether he could get any
information from the injured. Accordingly, he first went to the Hospital.
Such action of PW.2PI Tivatane was definitely in accordance with normal
human conduct and psychology. He did the right thing by going to the
Hospital first for verifying the condition of the injured. But as he was
informed about the finding of a lead near the spot, before going to the
Hospital he had issued directions to the Policemen present there to make
arrangement to guard the spot so that the spot was not disturbed. This
shows that he was very much alive to the situation. Thereafter, when he
went to the Hospital and saw bullet injuries on the body of J.Dey, he
directed PW.137PSI Rane to immediately record his statement which was
treated as FIR. All events might have happened fast and it is not unusual
for a person to forget to tell some facts under such circumstances. That
apart, the lead (Article215) was seized on the same day thereafter.
Further, the evidence of PW.2PI Tivatane on this point is duly
112
corroborated by PW.3Prakash Vaval, PW.85HC Kashinath Jadhav,

PW.137PSI Rane, the spot panchanama (Exh.1377) and the station diary
entry (Exh.295) in which it is clearly recorded that a lead was found near
the spot of the incident. The situation would have been different had the
lead (Article215) been seized on the next day or thereafter. Also, there
was no reason for PW.2PI Tivatane to create a false record as the FIR was
lodged against unknown persons. He did not have any reason to falsely
implicate anybody in this case.
146. It was then argued that the case of the prosecution is that the 'lead'
was found near the spot of the incident is suspicious because according to
PW.85HC Kashinath Jadhav he saw an 'empty cartridge' near the spot of
the incident. It was submitted that an 'empty cartridge' was different from
a 'lead'. The said submission has no merit. The words ammo, ammunition,
cartridge, lead, dead bullet, pellet, projectile, round, shot etc. are
synonyms of the word 'bullet'. People commonly use these words to
describe a bullet/lead. Therefore, the fact that he described the article
before the Court as 'empty cartridge' and as 'lead' is insignificant. What is
important is that PW.85HC Kashinath Jadhav has identified the lead
(Article215) before the Court to be the same which was found and seized
from near the spot of the incident. As stated earlier, the fact that the lead
(Article215) was found on the spot of the incident is supported by PW.2
PI Tivatane and PW.137PSI Rane. It is also necessary to note here that
when PW.2PI Tivatane and PW.137PSI Rane went to the spot on the first
occasion and when the lead (Article215) was seen on the spot, PW.85HC
Kashinath Jadhav was directed by them to guard the spot and accordingly,
the spot was guarded. When PW.2PI Tivatane and PW.137PSI Rane
returned from the Hiranandani Hospital after completing the formalities of
the inquest panchanama, PW.137PSI Rane seized and sealed the lead
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(Article215) along with the other articles. Further, in the cross

examination of PW.85HC Kashinath Jadhav no stand was taken that the
lead (Article215) was planted later on. In any case, there was no motive
for any of the Officers to plant the lead (Article215) on the spot as the
identity of the assailants was not known at that point of time.
147. It was also argued that the fact that the description of the lead was
not mentioned in the spot panchanama (Exh.1377), that the lead which
was recovered was black in color but the lead (Article215) was not black
in color, that no mark was made on the lead for its identification, that
there was delay in sending the lead to the FSL,Kalina and that PW.137PSI
Rane was not in a position to say whether the envelope (Exh.820) in
which the lead (Article215) was packed and sealed was prepared later on
and the lead was planted and that no stains of mud or blood were found
on the lead also makes the recovery of lead (Article215) suspicious. It
may be noted that there is no requirement of law that the description of
the lead should be mentioned in the spot panchanama. In any case, the
learned Advocate for the accused nos.1,6 and 7 could not explain as to
what particular type of description of the lead was required for the
identification of the lead. Similarly, in so far as the absence of marking on
the lead for its identification is concerned, it needs to be noted that a lead
is not as easily available in the open market like other articles. Therefore,
it can be easily identified especially by a Police Officer who knows how a
lead looks like. Regarding the submission that the lead which was
recovered was black in color but the lead (Article215) was not black in
color is concerned it needs to be stated that after looking at the lead
(Article215) one person may say that it is black in color while another
person may say that it is gray in color and still another may say that it is
light black in color. It is a matter of perception and the Court cannot take
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a hypertechnical approach on such issues.
148. Regarding delay in sending the lead (Article215) to the FSL,Kalina
for analysis, it may be noted that the lead (Article215) was seized and
sealed by PW.137PSI Rane on 11/06/2011 in the evening. To be precise,
the proceedings of the said panchanama concluded at around 08:50 pm.
On the next day, the investigation of the case was taken over by the Crime
Branch and PW.141PI Gosavi was the Investigating Officer. After taking
over the investigation, on 13/06/2011 he took the custody of the lead
(Article215) along with the other articles which were seized vide spot
panchanama (Exh.1377) and forwarded the same to the FSL,Kalina on the
same day for analysis through PW.94Havaldar Suresh Ramraje. The CA
report (Exh.230) shows that the articles were received in sealed condition
by the FSL,Kalina. The reports of the FSL are directly admissible u/s.293
of Cr.P.C.,1973. In the present case, all the reports of the FSL were
admitted in evidence when they were received by the Court. At that time
or at the time of recording of the evidence, the defence did not challenge
or object to the reports. If the defence had any doubt regarding the articles
sent to the FSL,Kalina or the condition of the articles sent to FSL,Kalina for
analysis then nothing prevented the defence from exercising their right to
get the doubt which they had clarified. In fact, the learned Advocate for
the accused no.1 had moved application (Exh.1546) for examining the
Ballistic expert. But he withdrew the same. Thus, the available opportunity
was not used. The prosecution has proved the seizure of the lead (Article
215) from the spot of the incident and that the same was sent to the
FSL,Kalina in sealed condition. As stated earlier, the CA report (Exh.230)
also indicates that the articles were received in sealed condition and the
seal was intact. The report also shows that the analysis of the articles was
done and the result of the analysis is mentioned in the report. Therefore,
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in absence of any positive evidence it cannot be said that there was any
tampering. As such, mere delay of a day or two sending the lead (Article
215) for analysis is of no consequence.
149. In so far as the statement made by PW.137PSI Rane that he was not
in a position to say whether the envelope (Exh.820) in which the lead
(Article215) was packed and sealed was prepared later on and the lead
was planted, it does not help the defence in any manner. It may be noted
that during crossexamination of PW.137PSI Rane no stand was taken
that the lead (Article215) was not packed, sealed and labeled. The
evidence of PW.137PSI Rane that the lead was packed, sealed and labeled
on the spot is cogent, reliable and trustworthy. That apart, it needs to be
noted that whenever any article is sent to the FSL for analysis its original
packing is opened by the Chemical Analyst and after the analysis, the
article is returned in the packet of FSL. Therefore, the original packing is
bound to change. This cannot be termed as tampering. In so far as the lead
(Article215) is concerned the same procedure was followed. As stated
earlier, as per the CA report (Exh.230), the lead (Article215) was
received by the FSL,Kalina in sealed condition. After analysis, it was then
deposited in the Court in sealed condition. There is nothing to suggest that
during transit, there was any manipulation. It may also be once again
stated that as on 11/06/2011 or 13/06/2011, the complicity of the
accused persons with this case was not established. Therefore, there was
no motive for PW.137PSI Rane or anybody else to tamper with the lead
(Article215).
150. Regarding absence of stains of mud or blood on the lead (Article
215), it needs to be noted that it is the stand of the defence itself that it
was raining heavily at the time of the incident. Therefore, it is quite
possible that due to the rain, the lead (Article215) became wet and the
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stains of blood or mud were washed away. In fact, the CA report

(Exh.231) also says that the blood stains on the lead (Article215) were
washed.
151. The learned Advocate for the accused no.2 argued that the road
near which the incident occurred had a slope and considering the fact that
it was raining heavily at the time of the incident it cannot be ruled out that
the lead (Article215) might have rolled down from the road to the place
near the spot of the incident. Now, this argument is totally tangent to the
earlier argument advanced by the learned Advocate for the accused no.1
that no lead was found near the spot of the incident and is liable to be
rejected on this ground alone. That apart, no foundation was laid for such
argument as during the crossexamination of PW.2PI Tivatane or PW.3
Prakash Vaval or PW.85HC Kashinath Jadhav or PW.137PSI Rane no
such stand was taken. Hence, the said argument stands rejected.
152. From the above, it is clear that the objections raised by the defence
about the time of the incident, spot of the incident, finding of the lead
(Article215) near the spot of the incident and the registration of the FIR
(Exh.290) have no basis.
153. This is also the appropriate time to deal with the objections raised
by the defence regarding the date and place of the arrest of the accused
persons in connection with the present case.
OBJECTIONS REGARDING THE ARREST OF THE ACCUSED NOS.1 TO
7, 9 TO 12.
OBJECTIONS REGARDING THE ARREST OF THE ACCUSED NO.1
ROHEE TANGAPPAN JOSEPH @ SATISH KALYA, THE ACCUSED NO.2
ANIL WAGHMODE AND THE ACCUSED NO.3ABHIJIT SHINDE.
154. As per the prosecution, after the incident, in view of the secret
information which was received, the location of the accused no.1Rohee
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Tangappan Joseph @ Satish Kalya, the accused no.2Anil Waghmode and
the accused no.3Abhijit Shinde was traced to Rameshwaram, Tamil Nadu.
On 25/06/2011, a team headed by PW.136PI Kale consisting of PI
Chavan, API Ajay Sawant and some others went to Rameshwaram and
brought the above named three accused persons to Mumbai for their
interrogation. During the interrogation, their complicity with the offence
in question was established. Therefore, on 26/06/2011 they were arrested
in connection with the present case in presence of panch PW.9Malang
Shaikh and Rashid Baig who were called for. The evidence of PW.136PI
Kale and the panch PW.9Malang Shaikh is consistent on this point. PW.9
Malang Shaikh has identified the accused no.1Rohee Tangappan Joseph
@ Satish Kalya and the accused no.3Abhijit Shinde before the Court. He
could not identify the accused no.2Anil Waghmode. But that is not fatal
to the case of the prosecution. After 26/06/2011, PW.9Malang Shaikh
had never seen any of the accused. He deposed before this Court after
more than five years of the event. He was not expected to possess a
photographic memory so as to identify the accused no.2Anil Waghmode
after so many years. In any case, PW.136PI Kale has identified the
accused no.2Anil Waghmode to be the same person who was at
Rameshwaram and who was brought to Mumbai along with the other
accused persons and arrested by him.
155. The stand taken by the accused no.1Rohee Tangappan Joseph @
Satish Kalya in his statement u/s.313(b) Cr.P.C.,1973 is that he was called
to the Office of Crime Branch Unit no.1 on 25/06/2011 and was made to
sit there. His PAN card, driving licence and wallet were taken by PW.141
PI Gosavi. He has stated that many persons used to meet him there and on
27/06/2011, he was directly produced in the Court. He has further stated
that between 25/06/2011 to 27/06/2011, he was not taken anywhere.
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The stand taken by the accused no.2Anil Waghmode in his statement

u/s.313(b) Cr.P.C.,1973 is that he was arrested on 24/06/2011 after he
was called by PW.141PI Gosavi to his Office of Unit no.1. The stand taken
by the accused no.3Abhijit Shinde in his statement u/s.313(b)
Cr.P.C.,1973 is that he was arrested on 25/06/2011. Thus, it is seen that
all the three accused persons have disputed that they were arrested on
26/06/2011.
156. The story about departure of PW.136PI Kale and his team to
Rameshwaram on 25/06/2011, their arrival at Rameshwaram and the
finding of the accused nos.1,2 and 3 at that place was attacked on the
ground that the prosecution did not produce the relevant station diary
entries, the travel tickets, the statements of the team members of PW.136
PI Kale were not recorded, the fact that they did not inform the local
Police of Rameshwaram about the intention of their arrival there and that
the articles which were found on the person of the accused nos.1,2 and 3
were not seized at Rameshwaram.
157. It is no doubt true that the prosecution has not placed on the record
the travel tickets of PW.136PI Kale and his team. This appears to be a
lapse on the part of the prosecution. However, considering the fact that
there is nothing in his evidence to suggest that he had any motive to
falsely implicate the accused persons, this is a minor lapse. In any case,
only for this reason, the fact that the accused nos.1,2 and 3 were found at
Rameshwaram cannot be doubted. It has come in the evidence of PW.136
PI Kale that after receiving the secret information he had orally informed
his superior Officer about the fact that he was going to Rameshwaram. He
had also made a station diary entry regarding going to Rameshwaram
along with his team. He has specifically stated that in the station diary
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entry he had written the names of the Officers who were to accompany
him to Rameshwaram. He deposed that they had gone to Rameshwaram
on 25/06/2011 in the morning by flight via Madurai. He stated that it
took them four hours by taxi to reach Rameshwaram from Madurai. He
stated that at Rameshwaram the accused persons were taken in custody at
around 02:00 pm on 25/06/2011 from near the Rameshwaram temple.
He stated that they returned to Mumbai via Chennai by Kingfisher Airlines
at around 09:30 pm. He stated that the nearest airport from
Rameshwaram was the Chennai Airport which was at at distance of about
190200 kms from Rameshwaram. He stated that they had gone to the
Chennai Airport from Rameshwaram in an Innova taxi. He stated that
after returning to Mumbai the accused nos.1,2 and 3 were taken to the
Office of the Crime Branch Unit no.6, Chembur and that he had given the
intimation about his return to the Additional Commissioner of Police
(Crime) and accordingly, the Additional Commissioner of Police (Crime)
had visited the Office of the Unit no.6 after 11:00 pm and made enquiry
with the accused nos.1,2 and 3 for about 20 minutes.
158. It may be noted that in view of the illustration (e) of section 114 of
the Evidence Act,1872, there is a presumption that the official acts have
been regularly performed. This presumption can be rebutted. In the
present case, the fact that on the basis of a secret information PW.136PI
Kale went to Rameshwaram along with his team to catch hold of the
accused nos.1,2 and 3 could have been easily rebutted by the defence by
calling upon PW.136PI Kale to produce the relevant station diary entry
about the facts deposed by him. But the same were not called for. If there
was any genuine doubt in the mind of the defence then nothing prevented
the defence from calling for the relevant station diary entry. That apart,
PW.136PI Kale has given the details of the to and fro journey to
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Rameshwaram. It is not the stand of the accused nos.1,2 and 3 that the
route as mentioned by PW.136PI Kale does not exist or that by that route
it was impossible for PW.136PI Kale and his team to go to Rameshwaram
and return to Mumbai within 24 Hrs. Therefore, there is no reason to
disbelieve the evidence of PW.136PI Kale in that regard.
159. At this stage, it is necessary to note that on 27/06/2011, the

accused nos.1,2 and 3 were produced before the learned Addl. Chief
Metropolitan Magistrate for the purposes of their remand. At that time, no
grievance was made by them that they were not brought from
Rameshwaram or that they were picked up by the Officers of the Crime
Branch from their house or any other place or that they were arrested
prior to 26/06/2011. That was the first and the best opportunity for them
to make their grievance regarding the date, time and the place of their
arrest. But they did not do so. No reason has been given by them for not
putting forward their grievance at the earliest point of time. Therefore, the
stand taken by the accused nos.1,2 and 3 that they were arrested much
prior to 26/06/2011 is a false stand.
160. Let's assume for a moment that PW.136PI Kale did not make the
necessary station diary entry at all before leaving for Rameshwaram. But
in the facts of the present case even that will not be fatal to the case of the
prosecution. It is the stand of the defence itself that the media was
keeping a close watch on the investigation of this case as J.Dey belonged
to their fraternity. Therefore, every Officer involved in the investigation of
this case had to be a little more cautious. The Officers in this case were on
a delicate mission and the steps taken by them in the investigation were
required to be kept secret as there was fear of the facts leaking out which
would have alerted not only the accused nos.1,2 and 3 but also the other
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accused persons. At the same time, swift action was necessary. Under such
circumstances, even if no station diary was made regarding going to
Rameshwaram it would not have affected the case of the prosecution.

161. It also appears that after PW.136PI Kale reached Rameshwaram
along with his team, he did not inform the local Police about the reason
for which they had come there. Section 48 of Cr.P.C.,1973 provides that a
Police Officer may for the purpose of arresting without warrant any person
whom he is authorized to arrest, pursue such person into any place in
India. Section 48 of Cr.P.C.,1973 nowhere says that the Police Officers
must inform the local Police if he is pursuing any person beyond his
territorial jurisdiction. That apart, it is the case of the prosecution that the
accused persons were constantly changing their locations. Also, as stated
earlier, the media was keeping a close eye on the progress of the
investigation of this case. Therefore, had PW.136PI Kale told the local
Police about their visit to Rameshwaram there was every possibility that
the information could have leaked which would have alerted the accused
persons and they would have ran away from that place. Therefore, the fact
that PW.136PI Kale did not inform the local Police about the purpose of
his arrival to Rameshwaram is of no consequence.
162. In so far as the fact that the articles which were found on the person
of the accused nos.1,2 and 3 were not seized then and there at
Rameshwaram is concerned, it needs to be reiterated that though PW.136
PI Kale and his team was authorized to arrest the accused nos.1,2 and 3
they did not do so and instead the accused nos.1,2 and 3 were brought to
Mumbai. It is only after their thorough interrogation that their complicity
with the crime was established and then it was decided to arrest them.
Accordingly, at the time of their arrest the personal search was conducted
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in presence of panch witnesses and the articles found on their person were
seized. Therefore, there is nothing wrong in the approach of PW.136PI
Kale.
163. At this stage, another argument which was made regarding the
place of arrest of the accused nos.1,2 and 3 needs to be addressed. It was
argued that PW.136PI Kale had gone to Rameshwaram with the intention
to arrest the accused nos.1,2 & 3. They were then arrested at that place
and without seeking the transit remand from the local Magistrate PW.136
PI Kale brought them to Mumbai. The said argument is made without any
basis. It may be noted that “Arrest” is a mode of formally taking a person
in Police custody. But a person may be in custody of the Police in other
ways also. What amounts to arrest is laid down in express terms in section
46 of Cr.P.C.,1973, whereas the words 'in custody' which are found in
certain sections of the Evidence Act,1872 only denote surveillance or
restriction on the movements of the person concerned which may be
completed as for instance in the case of arrested persons or may be partial.
The concept of being in custody cannot, therefore, be equated with the
concept of formal arrest, as there is difference between the two. Also,
though a Police Officer is empowered to arrest any person but such
powers are to be exercised subject to the provisions of the law. When a
Police Officer arrests any person, the arrest has the effect of curtailing the
personal liberties of that person which are guaranteed to him under the
Constitution of India. Therefore, such powers are required to be exercised
with greater caution. No arrest can be made simply because it is lawful for
a Police Officer to do so. The existence of power of arrest is one thing and
the justification for the exercise of the same is another thing. It is always
prudent on the part of the Officer in the interest of protection of the
constitutional rights of a citizen and perhaps in his own interest that no
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arrest is made without a reasonable satisfaction reached after some

investigation is done as to the complicity of the person with the offence
before arresting him. In the present case, as observed earlier it can be seen
that on receiving a secret information, PW.136PI Kale went to
Rameshwaram along with his team and took custody of the accused
nos.1,2 and 3. They were then brought to Mumbai and after their
interrogation when their involvement in the murder of J.Dey was prima
facie established they were arrested by PW.136PI Kale. There is nothing
wrong in the approach of PW.136PI Kale. In fact, his approach shows that
he was well aware about the requirements of the law. Therefore, as he did
not arrest the accused nos.1,2 and 3 at Rameshwaram there was no need
for him to produce them before the local Magistrate there and obtain
transit remand.
164. It may be noted that some mobile phones and SIM cards were
recovered during the personal search of the accused nos.1 and 2. A mobile
phone or a SIM card is not an incriminating article by itself. Any person
can have a mobile phone or a SIM card with him. It cannot be compared
with a weapon which if found on the person must be taken care of. A
mobile phone or a SIM card can be said to be incriminating only if after
analyzing the data in it something is found to connect the accused with
the crime. Therefore, there was no need for PW.136PI Kale to seize the
mobile phones and SIM cards at Rameshwaram itself.
165. As stated earlier, the stand taken by the accused nos.1 and 2 in their
statement u/s.313(b) Cr.P.C.,1973 is that they were called to the Office of
the Crime Branch Unit no.1 by PW.141PI Gosavi. However, at the
relevant time, PW.141PI Gosavi was attached to the Office of the Crime
Branch Unit no.10 at Chembur. Therefore, there was no reason for him to
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call the accused nos.1 and 2 to the Office of the Crime Branch Unit no.1
which is at the Crawford market (Near CSTM). That apart, during cross
examination of PW.141PI Gosavi no suggestion was given to him that the
accused nos.1 & 3 were arrested on 25/06/2011 and the accused no.2
Anil Waghmode was arrested on 24/06/2011. The above facts further
falsify the claim of the accused nos.1,2 and 3.
166. In so far as the stand taken by the accused no.1Rohee Tangappan
Joseph @ Satish Kalya in his statement u/s.313(b) Cr.P.C.,1973 is
concerned, it may be additionally stated that he had filed application
(Exh.15) making some prayers before the Court. The prayers made in the
application are not relevant for the present purposes. In that application,
he had claimed that he was arrested on 20/06/2011. In so far as the
accused no.2Anil Waghmode is concerned, initially he had filed
application (Exh.2) for return of the custody of the Qualis vehicle (Article
236) which was seized during investigation. He had also filed application
(Exh.3) for grant of bail. Thereafter, he had filed another application
(Exh.129) for bail. It may be stated that in all the three applications, he
had specifically stated that he was arrested on 26/06/2011. It is not the
case of the accused no.2Anil Waghmode that the said date was written
inadvertently. Thus, it is seen that the accused no.1Rohee Tangappan
Joseph @ Satish Kalya and the accused no.2Anil Waghmode have
themselves changed their stand in the statement which was recorded
u/s.313(b) of Cr.P.C.,1973 regarding the dates of their arrest which makes
their stand even more unreliable. Also, if the case about illegal detention
of the accused nos.1,2 and 3 was genuine then nothing prevented them
from making a complaint about their illegal detention to the learned Addl.
Chief Metropolitan Magistrate before whom they were produced on
27/06/2011 for the purposes of the remand. Further, they could have also
125
approached the Hon'ble High Court seeking a writ of habeas corpus and

compensation for their illegal detention. But that was also not done.
Therefore, it has to said that the stand taken by the accused nos.1,2 and 3
that they were arrested prior to 26/06/2011 is nothing but an
afterthought.
167. In so far as the fact that the statements of PW.136PI Kale and his
team members were not recorded, section 161 of Cr.P.C.,1973 does not
mandate that the statements each person associated with the case should
be recorded. The power of the Investigating Officer u/s.161 of
Cr.P.C.,1973 to examine orally any person supposed to be acquainted with
the facts and circumstances of the case and to record his statement is
discretionary. Therefore, the said objection is rejected.
168. It was also argued that the prosecution has not explained as to
when and how the secret information about the location of the accused
nos.1,2 and 3 was received. In this regard, as per section 125 of the
Evidence Act,1872 no Police Officer can be compelled to say whence i.e.
from what place or source he got the information as to commission of any
offence. Therefore, the submission that the prosecution has not explained
as to when and how the secret information was received about the
location of the accused nos.1,2 and 3 at Rameshwaram is required to be
rejected.
169. It may also be noted that after the accused no.1Rohee Tangappan
Joseph @ Satish Kalya was brought to Mumbai, PW.136PI Kale informed
this fact to his relatives on 25/06/2011. What PW.136PI Kale did was
correct. Had he not informed the relatives of the accused no.1Rohee
Tangappan Joseph @ Satish Kalya they might have approached the Police
126
for lodging a missing report of the accused no.1Rohee Tangappan Joseph
@ Satish Kalya or they could have lodged a complaint against PW.136PI
Kale for illegally detaining the accused no.1Rohee Tangappan Joseph @
Satish Kalya. The fact that after the arrest of the accused no.1Rohee
Tangappan Joseph @ Satish Kalya neither he nor any of his family
members came forward and claimed that he was illegally detained also
shows that the accused nos.1Rohee Tangappan Joseph @ Satish Kalya
was arrested on 26/06/2011 and not prior to that.
170. The learned Advocate for the accused no.1 also contended that the
trial is vitiated on the ground that after the accused nos.1 to 3 were
brought to Mumbai from Rameshwaram they were not medically
examined. In this regard, it may be noted that in paragraph no.36 of the
deposition, PW.136PI Kale has stated that “After the accused were
brought to Mumbai their medical check up was not done”. It needs to be
noted that the question put to PW.136PI Kale was tricky. He was not
directly asked whether after the accused persons were brought to Mumbai
and after they were "arrested" they were taken for medical examination.
Section 54 of Cr.P.C.,1973 provides for medical examination of the
arrested person by Medical Officer. Section 54 of Cr.P.C.,1973 comes into
play only after the accused are arrested and not before that. Therefore,
there was no question of referring the accused persons for medical
examination before they were arrested. Let's assume for a moment that
even after the arrest, the accused persons were not referred for medical
examination. It is not the stand of the accused nos.1 to 3 that they were
assaulted and tortured at any point of time. No such grievance was raised
by any of them when they were produced before the learned Addl. Chief
Metropolitan Magistrate on 27/06/2011 for the purposes of the remand.
Therefore, in the facts of the present case, the alleged noncompliance of
127
the provisions of section 54 of Cr.P.C.,1973 is of no consequence.
171. The steps taken by PW.136PI Kale during the investigation were
also sought to be doubted on the ground that after taking over the
investigation he did not prepare a case diary of 'Unit no.6' and that he did
not 'personally' make any entry in the case diary of the Unit no.6. The said
submission has no basis. Just to recall, PW.136PI Kale was not the
Investigating Officer. He was only assisting PW.141PI Gosavi who was the
Investigating Officer at that time. As per section 172 of Cr.P.C.,1973 it is
the Investigating Officer who has to maintain the case diary. Therefore,
there was no question of PW.136PI Kale maintaining any case diary or
making any entry in it. Also, once the case diary is prepared then the
same has to be continued even if the investigation is later on transferred to
some other Officer or department. The law does not contemplate
preparation of separate case diaries in case there is any change of the
Investigating Officer or the department conducting the investigation.
172. It was next contended that panch PW.9Malang Shaikh is a habitual
panch. The said submission has no basis. It is no doubt true that he had
acted as a panch witness earlier on one or two occasions. But that does not
mean that he was habitual panch witness as there is nothing to show that
he was dependent upon the Police or was under the thumb of the Police.
Also, there is nothing in the evidence of PW.136PI Kale to suggest that he
had specifically called for panch PW.9Malang Shaikh for acting as a
witness.
173. The credit of PW.9Malang Shaikh was also sought to be shaken by
labeling him as a liar. It was contended that though prior to deposing
before this Court he had deposed in another case in the Court room no.55
128
he denied having done so. The perusal of his crossexamination will show
that he stated that he did not remember whether he had deposed in the
Court in any matter within last one year. He was then shown the copy of
his deposition which was recorded in MCOC Case no.10/2010 on
30/08/2010 but he denied that he had deposed in that case. On the basis
of the above, it was argued that his evidence cannot be relied upon. It is
quite possible that due to the fear of being branded as a regular panch
witness PW.9Malang Shaikh might have denied of having deposed in the
MCOC Case no.10/2010. That apart, it needs to be noted that the memory
of panch PW.9Malang Shaikh was not refreshed about the facts of that
case. What he was asked was whether he had deposed in the 'MCOC Case
no.10/2010'. Now, only on the basis of the case number it will be very
difficult for anybody to remember the facts of that case. Even an Advocate
who has dealt with a lot of cases may not be able to narrate the facts of a
particular case on the basis of its case number. Therefore, it would be too
much to expect from panch PW.9Malang Shaikh who was not much
educated to recall the facts of the case only on the basis of the case
number. Also, even if it is assumed that he was making a false statement
on that point then the maxim "falsus in uno falsus in omnibus” is not
applicable in India. Therefore, as his evidence on other points is reliable, it
can be acted upon.
174. At this stage, it may be noted that the learned Advocate for the
accused no.2 argued that before calling PW.9Malanag Shaikh for acting
as panch witness, PW.136PI Kale should have at least made an attempt to
search for independent witness and the failure on his part to do so is fatal
to the case of the prosecution. This Court has already observed above that
the evidence of panch PW.9Malang Shaikh is reliable and he cannot be
discredited only because he had acted as a panch on earlier occasion. It is
129
also necessary to note that considering the nature of the incident and
considering the general image of the accused no.12Chhota Rajan in the
Society even if PW.136PI Kale had requested somebody else to act as a
panch witness, there was every possibility that no one would have come
forward to help the Police due to the fear of the accused no.12Chhota
Rajan. Therefore, in the facts of the present case, just because PW.136PI
Kale did not make an attempt to search for a witness who had not acted as
a panch earlier is not fatal to the case of the prosecution.
175. The learned Advocate for the accused no.1 relied upon the
judgment in the case of D.K.Basu V. State of West Bengal reported in
AIR 1997 SC 610 to contend that the Police did not follow the guidelines
issued by the Hon'ble Supreme Court of India while arresting the accused
no.1Rohee Tangappan Joseph @ Satish Kalya. It has already been
observed above that the arrest of the accused nos.1 to 3 was made after
following the due procedure as provided under Cr.P.C.,1973. Also, as
stated earlier, if the guidelines issued by the Hon'ble Supreme Court of
India or the provisions of Cr.P.C.,1973 were not adhered to by the Police
at the time of arresting the accused persons, they could have raised
appropriate grievance when they were produced before the learned Addl.
Chief Metropolitan Magistrate for the purposes of their remand. But
admittedly, no such grievance was raised. That apart, any alleged illegality
committed while arresting the accused persons cannot have the effect of
vitiating the trial.
OBJECTIONS REGARDING THE ARREST OF THE
ACCUSED NO.4NILESH SHEDGE.
176. During the course of oral arguments, the learned Advocate for the
accused no.4 did not raise any dispute regarding the date or the place of
the arrest of the accused no.4. However, in the statement u/s.313(b) of
130
Cr.P.C.,1973, the accused no.4Nilesh Shedge has stated as follows

regarding his arrest:
“Q.251: As per personal search and arrest panchanama

(Exh.512) you accused was brought from Solapur and arrested
on 26/06/2011 by the API, Crime Detection Branch, Unit no.6,
Mumbai at that place. What do you have to say about it?
Ans.: I was taken from my house. A constable from Dharavi

police station had come to my house. At that time, I had gone
out for selling vegetables. Therefore, my wife came to call me.
Then I went to my house alongwith her. I was told by the
constable that officer Gosavi had called me and accordingly I
went alongwith that constable. I was made to sit there and on
27th I was placed in veil and produced in the Court. I asked
them why I was being produced in the Court. But I did not
receive any reply. I was taken by the constable on 25 th in the
afternoon.
Q.322: It has come in the evidence of PW.133API Gopale

that at that time he arrested you accusedNilesh Shedge in
connection with this case. What do you have to say about it ?
Ans.: It is not correct. I was made to sit in the office of crime
branch for two days.”
177. From the stand taken by the accused no.4Nilesh Shedge, it can be
seen that he has firstly claimed that on 26/06/2011 he was taken by the
Police from his house. Then he changed his stand and stated that a
Constable from Dharavi had come to his house but at that time he was not
present in his house and therefore, his wife came to call him and when he
went to his house along with her, the Constable told him that PW.141PI
Gosavi had called him. Therefore, he went with that Constable. According
to him, he was made to sit there and on 27/06/2011 he was placed in veil
and produced in the Court. He then again changed his stand and stated
that he was taken by the Constable on 25/06/2011. That is not the end.
131
To another question he stated that he was made to sit in the Office of
Crime Branch for two days. Thus, it is seen that the accused no.4Nilesh
Shedge has taken inconsistent stand and his statements cannot be relied
upon. The falsity of the claim made by the accused no.4Nilesh Shedge is
further clear from the fact that in the written notes of arguments
(Exh.1708) he has claimed that he was arrested at Solapur.
178. It may also be noted that the accused no.4Nilesh Shedge had filed
application (Exh.145) seeking permission to meet his relatives. In that
application, he had stated that on 27/06/2011, the Officers from the DCB
CID had visited his house and took him under the pretext of making
enquiry and then implicated him in this case. This stand taken by the
accused no.4Nilesh Shedge further falsifies his claim of the accused no.4
Nilesh Shedge regarding his date of arrest. On the other hand, in view of
the evidence of PW.133API Gopale it has to be said that the prosecution
has proved that the accused no.4Nlesh Shedge was arrested on
26/06/2011 in the office of DCB CID, Property Cell, Mumbai and the same
is duly corroborated by the personal search and arrest panchanama
(Exh.512).
ACCUSED NO.5ARUN DAKE, THE ACCUSED NO.6MANGESH
AAGVANE AND THE ACCUSED NO.7SATISH GAIKWAD.
179. As per the prosecution, after the incident, on 26/6/2011, the
accused no.5Arun Dake, the accused no.6Mangesh Aagvane and the
accused no.7Sachin Gaikwad were arrested on 26/06/2011 by PW.134PI
Pasalwar in presence of panch PW.10Habib Mansuri and Abdul Matin
Niyaz Ahmed Rangrez who were called for. The evidence of the panch
PW.10Habib Mansuri and PW.134PI Pasalwar is consistent on this point
132
and is duly corroborated by the personal search and arrest panchanama
(Exh.504).
180. The arrest of the accused nos.5,6 and 7 was challenged on various
grounds. They are discussed below.
181. It was argued that the evidence of panch PW.10Habib Mansuri

cannot be relied upon as the time of the personal search and arrest
panchanama (Exh.504) he was not shown the faces of the accused persons
and that he has not identified the accused persons in the Court. The said
argument deserves to be rejected as it is advanced without laying any
foundation for the same in the crossexamination of this witness. It is no
doubt true that at the relevant time, the accused nos.5,6 and 7 were
produced before panch PW.10Habib Mansuri in a veil. But he has stated
that when their names were asked they gave their correct names. The
defence did not challenge the fact that the three persons whose search was
conducted were not the accused nos.5,6 and 7. Before this Court, the
identity of the accused nos.5,6 and 7 was never disputed. No suggestion
was given to panch PW.10Habib Manusri that the persons whose personal
search was conducted and who were arrested on 26/06/2011 in his
presence were not the accused nos.5,6 and 7. It is also not the stand of the
defence that some persons other than the accused nos.5,6 and 7 were
produced before the panch PW.10Habib Mansuri on that day. From the
evidence of PW.134PI Pasalwar it is quite clear that those three persons
were none other than the accused nos.5,6 and 7. He was not questioned as
to why the accused nos.5,6 and 7 were produced in a veil before the
panch PW.10Habib Mansuri. There is nothing in his evidence to doubt
him. His evidence is further corroborated by the personal search and
arrest panchanama (Exh.504).
133
182. It was then argued that the arrest of the accused nos.5,6 and 7 on
26/06/2011 as claimed by the prosecution is doubtful as the panch
PW.10Habib Mansuri was not informed by PW.134PI Pasalwar as to from
where and when the accused persons were arrested. The said submission
has no basis as panch PW.10Habib Mansuri and the other panch were
specifically called to the Office of PW.134PI Pasalwar as the accused
nos.5,6 and 7 were to be arrested and their personal search was to be
conducted in presence of the panch witnesses. Therefore, there was no
question of informing the panch witnesses as to from where and when the
accused nos.5,6 and 7 were arrested.
183. At this stage, it is necessary to note that in the statement of the

accused no.5Arun Dake which was recorded u/s.313(b) Cr.P.C.,1973, he
has denied that he was arrested on 26/06/2011. He has taken a stand that
he was called to the Office of Crime Branch Unit no.1 on 21/06/2011 and
was made to sit there. He has stated that he was produced before the
learned Chief Metropolitan Magistrate, Esplanade on 26/06/2011 and was
implicated in this case. The stand taken by him is nothing but an
afterthought. No foundation was laid for the same during the cross
examination of the concerned witnesses. The stand taken by the accused
no.6Mangesh Aagvane in his statement which was recorded u/s.313(b)
Cr.P.C.,1973 is that he was arrested on 25/06/2011. The stand taken by
the accused no.6Mangesh Aagvane is also an afterthought because no
such stand was ever taken by him during the course of recording of the
evidence of the concerned witness. The stand taken by the accused no.7
Sachin Gaikwad in his statement which was recorded u/s.313(b)
Cr.P.C.,1973 is that on 23/06/2011, he had gone to the Office of the
Crime Branch Unit no.1 on being called by PW.141PI Gosavi and when he
134
went there he was detained there. According to him he was then produced
in the Court on 26/06/2011. This is also nothing but an afterthought. The
answer given by the accused no.7Sachin Gaikwad shows that like the
accused nos.5 and 6, he is also a liar. Firstly, as observed earlier, PW.141
PI Gosavi was attached to the Office of the Crime Branch Unit no.10,
Chembur. Therefore, he had no reason to call the accused no.7Sachin
Gaikwad in the Office of the Crime Branch Unit no.1 which was at
Crawford market (Near CSTM). That apart, the accused nos.5,6 and 7
were produced before the learned Addl. Chief Metropolitan Magistrate on
27/06/2011 for the purposes of the remand along with the other accused.
No accused was produced before the learned Addl. Chief Metropolitan
Magistrate on 26/06/2011. It may also be noted that the accused no.7
Sachin Gaikwad had filed application (Exh.135) for grant of bail. In that
application, he had taken a stand that he was in fact arrested on
26/06/2011. Similarly, the accused nos.6 and 7 had then filed a joint
application (Exh.377) for grant of bail. In that application also, no stand
was taken by them that they were arrested prior to 26/06/2011. All the
above facts show the falsity of the claim made by the accused nos.6 and 7.
184. It is also necessary to note that on 27/06/2011 when the accused
nos.5,6 and 7 were produced before the learned Addl. Chief Metropolitan
Magistrate, Esplanade for the purposes of their remand no grievance was
made that they were illegally detained or that they were not arrested on
26/06/2011 as shown in the remand papers. That was the first and the
best opportunity for them to make the grievance if they were really
arrested prior to 26/06/2011. This further falsifies the stand taken by the
accused nos.5,6 and 7 that they were not arrested on 26/06/2011.
185. It was argued that at the time of the arrest of these accused persons
135
PW.138PI Bhosle was also present there but PW.138PI Bhosle has not
uttered a word about the arrest of these accused persons and as such, it
cannot be said that the accused nos.5,6 and 7 were arrested on
26/06/2011. It may be noted that these accused persons were arrested by
PW.134PI Pasalwar and not by PW.138PI Bhosle. The role of PW.138PI
Bhosle was restricted to recording of the disclosure statement made by the
accused no.6Mangesh Aagvane and drawing the subsequent panchanama
of the motorcycle recovered at his instance. Therefore, he had no business
to make any statement on this point. That apart, it has come in his
evidence that on 26/06/2011, three accused persons of this case were
arrested by his Unit. Nothing more was expected from him at that time as
PW.134PI Pasalwar had already deposed about the personal search and
arrest of the accused persons who were arrested.
186. As in the case of panch PW.9Malang Shaikh the evidence of panch
PW.10Habib Mansuri was also sought to be doubted on the ground that
he was a habitual panch witness and that he was not aware as to when the
accused nos.5,6 and 7 were arrested. It is no doubt true that PW.10Habib
Mansuri had acted as a panch witness earlier on a few occasions. But that
does not mean that he was habitual panch witness as there is nothing to
show that he was dependent upon the Police or was under the control of
the Police. There is nothing in the evidence of PW.134PI Pasalwar to
suggest that he had specifically called for PW.10Habib Mansuri for acting
a panch witness. In so far as the other submission is concerned, it needs to
be noted that the very purpose for which PW.10Habib Mansuri was called
was that the accused nos.5,6 and 7 were to be arrested. He was informed
about the same after he went to the Office of the Property Cell of the
Crime Branch. As such, there was no question of informing him about the
arrest of the accused nos.5,6 and 7 before they were arrested.
136
187. It was next contended that in the personal search and arrest
panchanama (Exh.504) neither the name of the Police Officer who took
the personal search of the accused nos.5,6 and 7 nor the name of the
Officer who had caught hold of the accused persons was mentioned and as
such the personal search and arrest panchanama was suspicious. There is
no requirement of law that in the panchanama the name of the Officer
who conducted the personal search of the accused or the name of the
Officer who actually caught hold of the accused must always be
mentioned. As stated earlier, the evidence PW.134PI Pasalwar and panch
PW.10Habib Mansuri on the point of the arrest of the accused nos.5,6
and 7 is cogent, reliable and trustworthy. Hence, the said argument
cannot be accepted.
188. It was also argued that in the personal search and arrest
panchanama (Exh.504) the name of the place where the accused persons
were arrested is not mentioned. But that place could not have been
mentioned in the panchanama as the accused persons were brought to the
Office of Property Cell of the Crime Branch and after their interrogation
they were arrested at that place only. The panchanama in that regard was
also prepared at that place only. Therefore, it was not necessary to make a
special mention in the panchanama about that place.
189. It was next argued that the arrest of the accused nos.5,6 and 7 was
illegal on the ground that PW.134PI Pasalwar failed to produce the order
by which he was posted in the Property Cell of the Crime Branch though
he was called upon to produce the same. The said submission has no basis.
There is nothing on the record to draw any adverse inference against
PW.134PI Pasalwar. PW.134PI Pasalwar was assisting PW.141PI Gosavi
in the investigation at the relevant time. As per section 156(2) of
137
Cr.P.C.,1973 no proceeding of a Police Officer can at any stage be

questioned on the ground that the case was one which he was not
empowered to investigate. Therefore, in view of the above position, even if
it assumed that PW.134PI Pasalwar was not empowered to arrest the
accused nos.5,6 and 7 his action of arresting them cannot be called in
question. Hence, the objection raised on this point cannot be sustained.
190. It was next argued that the failure on the part of PW.134PI
Pasalwar to record reasons in the panchanama for arresting the accused
nos.5,6 and 7 also makes the arrest of these accused persons illegal. It may
be noted that in the personal search and arrest panchanama (Exh.504) it
is specifically mentioned that the accused nos.5,6 and 7 were made known
the reasons for their arrest in this case. Not only that, their relatives were
also informed about it. That apart, as stated earlier, when the accused
nos.5,6 and 7 were produced before the learned Addl. Chief Metropolitan
Magistrate, Esplanade on 27/06/2011 for the purposes of the remand they
did not make any grievance on this point. Nothing prevented them from
making a grievance to the learned Addl. Chief Metropolitan Magistrate in
that regard. Further, even if it is assumed that there was some illegality in
the arrest of the accused nos.5,6 and 7, that will not vitiate the trial.
Therefore, the argument made on this point cannot be accepted.
ACCUSED NO.9DEEPAK SISODIYA.
191. It was argued by the learned Advocate for the accused no.9Deepak
Sisodiya that the accused no.9Deepak Sisodiya was illegally detained
from 17/07/2011 till 22/07/2011 and for this reason the trial against the
accused no.9Deepak Sisodiya is vitiated. It was submitted that according
to PW.143ACP Duraphe the accused no.9Deepak Sisodiya was arrested
138
on 22/07/011 whereas it has come in the evidence of PW.124DCP Dr.
Cherring Dorje that PW.103API Dewoolkar had informed him that the
accused no.9Deepak Sisodiya was arrested on 17/07/2011. According to
the learned Advocate for the accused no.9, the failure of the prosecution
to examine the Officer who actually arrested the accused no.9Deepak
Sisodiya confirms the fact that the accused no.9Deepak Sisodiya was
illegally detained. The said submission has no basis. The perusal of the
remand papers dated 20/07/2011 show that after the accused no.9
Deepak Sisodiya was arrested at Nainital, the local Court had granted his
transit remand till 25/07/2011. During that period he was brought to
Mumbai on 22/07/2011 and produced before the MCOC Court for the
purposes of remand in connection with the present case. At that time, the
accused no.9Deepak Sisodiya was represented by Advocate Shri Sejpal.
But neither the accused no.9Deepak Sisodiya nor his Advocate made any
grievance about the alleged illegal detention. No grievance was raised
even when the accused no.9Deepak Sisodiya was produced before the
MCOC Court for extension of his remand. Therefore, the grievance now
made by the learned Advocate for the accused no.9 that he was illegally
detained from 17/07/2011 till 22/07/2011 cannot be entertained and the
same has to be rejected. In any case, as observed earlier, it is well settled
that any illegality in the arrest of the accused does not vitiate the trial.
ACCUSED NO.10PAULSON PALITARA.
192. As per the prosecution, during the course of the investigation, on
01/09/2011, the complicity of the accused no.10Paulson Palitara with
respect to the offence in question was established and 05/09/2011, he
was arrested by PW.133API Gopale in presence of the panch witnesses
namely Shri Sharad Laxman Shinde and PW.18Mohd. Abbas Jilani who
were called for. It may be noted that the evidence of the panch PW.18
139
Mohd. Abbas Jilani and PW.133API Gopale is consistent on this point
and is duly corroborated by the personal search and arrest panchanama
(Exh.554).
193. The arrest of the accused no.10Paulson Palitara was challenged on
various grounds. They are discussed below.
194. It was firstly argued that the accused no.10Paulson Palitara was

already arrested even before the panch PW.18Mohd. Abbas Jilani was
called as he has admitted that when he went to the Property Cell of the
Crime Branch, he saw the accused no.10Paulson Palitara already sitting
there along with the other Officers. The said submission has no basis. It is
the case of the prosecution that the accused no.10Paulson Palitara was
brought to the Office of the Property Cell on 05/09/2011 for the purposes
of interrogation. After the interrogation, when his complicity with the
offence was established, PW.133API Gopale called for the two panch
witnesses and in their presence the accused no.10Paulson Palitara was
arrested. As the accused no.10Paulson Palitara was brought there for
interrogation, he was bound to be there when PW.18Mohd. Abbas Jilani
was called to that office.
195. The accused no.10Paulson Palitara has taken the stand that he was
picked up on 02/09/2011 itself and was illegally detained in the Property
Cell of the Crime Branch till 06/09/2011. In this regard, the learned
Advocate for the accused no.10 has relied upon the evidence of PW.82
Amir Khan and PW.96Prasad Shah. It needs to be noted that both these
witnesses were not connected with the arrest of the accused no.10Paulson
Palitara. They were examined by the prosecution for other purposes. But
both of them did not support the case of the prosecution apparently for
140
the reason that PW.82Amir Khan was a close friend of the accused no.10
Paulson Palitara and PW.96Prasad Shah was the brotherinlaw of the
accused no.10Paulson Palitara. Having said this, it has come in the cross
examination of PW.96Prasad Shah that he was informed by the wife of
the accused no.10Paulson Palitara on 02/09/2011 that the accused
no.10Paulson Palitara was arrested and she called him to her house. He
has stated that he then went to the house of the accused no.10Paulson
Palitara and from there both of them went to the Property Cell of the
Crime Branch along with PW.82Amir Khan but they were not permitted
to meet the accused no.10Paulson Palitara. He has then stated that on the
next day also neither he nor his sister met the accused no.10Paulson
Palitara in the jail. He has then stated that he was never permitted to meet
the accused no.10Paulson Palitara in the Property Cell and the accused
no.10Paulson Palitara was produced before the Court on 06/09/2011 for
the first time. It is interesting to note that though PW.96Prasad Shah has
stated that on 02/09/2011, PW.82Amir Khan accompanied him to the
Office of Property Cell, Crime Branch PW.82Amir Khan has not made any
such statement. This shows the falsity of the claim made by the accused
no.10Paulson Palitara. Also, no suggestion was given to panch PW.18
Mohd. Abbas Jilani that the accused no.10Paulson Palitara was already
arrested on 02/09/2011. Even PW.143ACP Duraphe has denied that the
accused no.10Paulson Palitara was brought to his Office on 02/09/2011
in the midnight. There is no reason to disbelieve his statement.
196. The learned Advocate for the accused no.10 argued that the
statement made by PW.143ACP Duraphe in paragraph no.109 of his
evidence that “I was not aware that he (Paulson Palitara) was brought to
the Office of the Property Cell on 02.09.2011 in the midnight. My
assisting Officer did not inform me that accused no.10Paulson Palitara
141
was brought to the Property Cell on 02.09.2011 in the midnight” would
suggest that the accused no.10Paulson Palitara was already in the custody
on 02/09/2011. The said submission has no basis. Upon reading of the
whole of the evidence of PW.143ACP Duraphe it is quite clear that he has
clearly stated that accused no.10Paulson Palitara was arrested on
05/09/2011 and not on 02/09/2011. It may also be noted that if the
accused no.10Paulson Palitara was really illegal detained by the Officers
of the Property Cell, Crime Branch then nothing prevented the accused
no.10Paulson Palitara or his wife from making grievance to the higher
officials of the Police or to the Court as nothing prevented them from
doing so. But that was never done. This shows that the claim of the
accused no.10Paulson Palitara that he was illegally detained since
02/09/2011 is false.
197. At this stage, it may be noted that during crossexamination of

PW.133API Gopale, when he was asked whether he had issued any
summon to the accused no.10Paulson Palitara for attending his Office, he
replied in the negative. There was no question of issuing any summon to
accused no.10Paulson Palitara as he was a suspect in this case.
Admittedly, he has a criminal background. Had any summon been issued
to him there was every chance that he would have absconded. Therefore,
PW.133API Gopale did the right thing by directly taking the custody of
the accused no.10Paulson Palitara and bringing him to the Office of the
Property Cell, Crime Branch for interrogation.
ACCUSED NO.11MS. JIGNA VORA AND
THE ACCUSED NO.12CHHOTA RAJAN.
198. There is no dispute regarding the date and place of arrest of the
accused no.11Ms.Jigna Vora and the accused no.12Chhota Rajan.
142
CONSIDERATION AND ANALYSIS OF THE EVIDENCE.
199. In order to bring home the guilt of the accused persons, the
prosecution has relied upon the following evidence:
(A) Confession made by the accused no.5Arun Dake, the accused
no.9Deepak Sisodiya and the accused no.10Paulson Palitara and
recorded u/s.18 of the MCOC Act,1999;
(B) Extrajudicial confessions made by the accused no.12Chhota
Rajan;
(C) Recovery of various mobile phones and SIM cards used by the
accused persons to remain in contact with each other for the
purposes of the present crime;
(D) Recovery of the revolver, bullets, motorcycles and the Qualis
vehicle used in the present crime in view of the disclosure
statements made by some of the accused persons;
(E) CA/Ballistic reports;
(F) Call Detail Records;
(G) CCTV footage;
(H) Interception of conversation between the accused no.12

Chhota Rajan and PW.90Manoj Shivdasani and report of voice
analysis of the accused no.12Chhota Rajan;
(I) Oral evidence of the connected witnesses.
200. Since it is the case of the prosecution that the murder of J.Dey was
committed in pursuance of a criminal conspiracy, in order to appreciate
the evidence on the record from that angle, it will be proper to have a look
at the law relating to conspiracy at this stage itself. It may be noted that
though the learned SPP has relied upon various judgments on this point, it
will be appropriate to refer to the judgment in the case of Yakub Abdul
143
Razak Memon & ors. V. State of Maharashtra reported in (2013) 13
SCC 1, where the Hon'ble Supreme Court of India has exhaustively dealt
with the law relating to conspiracy. The relevant paragraphs of the said
judgment are reproduced below for ready reference:
"60. Chapter VA of IPC speaks about Criminal Conspiracy.

Section 120A defines criminal conspiracy which is as under:
"120A. Definition of criminal conspiracy.When two or more
persons agree to do, or cause to be done,
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an

agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an
offence shall amount to a criminal conspiracy unless some act
besides the agreement is done by one or more parties to such
agreement in pursuance thereof.
Explanation.It is immaterial whether the illegal act is the

ultimate object of such agreement, or is merely incidental to that
object."
Section 120B speaks about punishment of criminal conspiracy
which is as under:
"120B. Punishment of criminal conspiracy.(1) Whoever is a
party to a criminal conspiracy to commit an offence punishable
with death, imprisonment for life or rigorous imprisonment for a
term of two years or upwards, shall, where no express provision
is made in this Code for the punishment of such a conspiracy, be
punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a

criminal conspiracy to commit an offence punishable as
aforesaid shall be punished with imprisonment of either
description for a term not exceeding six months, or with fine or
with both."
144
Theory of Agency and Conspiracy
62. An important facet of the Law of Conspiracy is that apart
from it being a distinct offence, all conspirators are liable for the
acts of each other of the crime or crimes which have been
committed as a result of the conspiracy. This principle has been
recognized right from the early judgment in Regina v. Murphy
(1873) 173 ER 502. In the said judgment Coleridge J. while
summing up for the Jury stated as follows:
"...I am bound to tell you, that although the common design is
the root of the charge, it is not necessary to prove that these two
parties came together and actually agreed in terms to have this
common design and to pursue it by comroeff means, and so to
carry it into execution. This is not necessary, because in many
cases of the most clearly established conspiracies there are no
means of proving any such thing and neither law nor common
sense requires that it should be proved. If you find that these
two persons pursued by their acts the same object, often by the
same means, one performing one part of an act, so as to
complete it, with a view to the attainment of the object which
they were pursuing, you will be at liberty to draw the conclusion
that they have been engaged in a conspiracy to effect that
object. The question you have to ask yourselves is, Had they this
common design, and did they pursue it by these common means
the design being unlawful? it is not necessary that it should be
proved that these defendants met to concoct this scheme, nor is
it necessary that they should have originated it. If a conspiracy
be already formed, and a person joins it afterwards, he is equally
guilty. You are to say whether, from the acts that have been
proved, you are satisfied that these defendants were acting in
concert in this matter. If you are satisfied that there was concert
between them, I am bound to say that being convinced of the
conspiracy, it is not necessary that you should find both Mr.
Murphy and Mr. Douglas doing each particular act, as after the
fact of conspiracy is already established in your minds, whatever
is either said or done by either of the defendants in pursuance of
the common design, is, both in law and in common sense, to be
considered as the acts of both."
63. Each conspirator can be attributed each others actions in a
conspiracy. Theory of agency applies and this rule existed even
145
prior to the amendment of the Penal Code in India. This is

reflected in the rule of evidence u/s.10 of the Evidence Act.
Conspiracy is punishable independent of its fruition. The
principle of agency as a rule of liability and not merely a rule of
evidence has been accepted both by the Privy Council as well as
by this Court. The following judgments are relevant for this
proposition:
(a) Babulal v. Emperor, AIR 1938 PC 130, where the Privy

Council held that:
"if several persons conspire to commit offences, and commit

overt acts in pursuance of the conspiracy (a circumstance which
makes the act of one the act of each and all the conspirators)
these acts are committed in the course of the same transaction,
which embraces the conspiracy and the acts done under it..."
(b) State of A.P. v. Kandimalla Subbaiah (1962) 1 SCR 194,

where this Court opined that where a number of offences are
committed by several persons in pursuance of a conspiracy it is
usual to charge them with those offences as well as with the
offence of conspiracy to commit those offences, if the alleged
offences flow out of the conspiracy, the appropriate form of
charge would be a specific charge in respect of each of those
offences along with the charge of conspiracy.
(c) State of H.P. v. Krishan Lal Pardhan, (1987) 2 SCC 17 where
it was held that the offence of criminal conspiracy consists of
meeting of minds of two or more persons for agreeing to do or
causing to be done an illegal act or an act by illegal means, and
the performance of an act in terms thereof. If pursuant to the
criminal conspiracy the conspirators commit several offences,
then all of them will be liable for the offences even if some of
them had not actively participated in the commission of the
offences.
(d) In Nalini (supra), this Court explained that conspiracy

results in a joint responsibility and everything said written or
done in furtherance of the common purpose is deemed to have
been done by each of them. The Court held:
"583. Some of the broad principles governing the law of

conspiracy may be summarized though, as the name implies, a
146
summary cannot be exhaustive of the principles.
1. Under Section 120A IPC offence of criminal conspiracy is

committed when two or more persons agree to do or cause to be
done an illegal act or legal act by illegal means. When it is a
legal act by illegal means overt act is necessary. Offence of
criminal conspiracy is an exception to the general law where
intent alone does not constitute crime. It is intention to commit
crime and joining hands with persons having the same intention.
Not only the intention but there has to be agreement to carry
out the object of the intention, which is an offence. The question
for consideration in a case is did all the accused have the
intention and did they agree that the crime be committed. It
would not be enough for the offence of conspiracy when some of
the accused merely entertained a wish, howsoever horrendous it
may be, that offence be committed.
2. Acts subsequent to the achieving of the object of conspiracy
may tend to prove that a particular accused was party to the
conspiracy. Once the object of conspiracy has been achieved,
any subsequent act, which may be unlawful, would not make
the accused a part of the conspiracy like giving shelter to an
absconder.
3. Conspiracy is hatched in private or in secrecy. It is rarely

possible to establish a conspiracy by direct evidence. Usually,
both the existence of the conspiracy and its objects have to be
inferred from the circumstances and the conduct of the accused.
4. Conspirators may for example, be enrolled in a chain A

enrolling B, B enrolling C, and so on; and all will be members of
a single conspiracy if they so intend and agree, even though
each member knows only the person who enrolled him and the
person whom he enrolls. There may be a kind of umbrellaspoke
enrollment, where a single person at the center does the
enrolling and all the other members are unknown to each other,
though they know that there are to be other members. These are
theories and in practice it may be difficult to tell which
conspiracy in a particular case falls into which category. It may
however, even overlap. But then there has to be present mutual
interest. Persons may be members of single conspiracy even
though each is ignorant of the identity of many others who may
have diverse roles to play. It is not a part of the crime of
147
conspiracy that all the conspirators need to agree to play the

same or an active role.
5. When two or more persons agree to commit a crime of

conspiracy, then regardless of making or considering any plans
for its commission, and despite the fact that no step is taken by
any such person to carry out their common purpose, a crime is
committed by each and every one who joins in the agreement.
There has thus to be two conspirators and there may be more
than that. To prove the charge of conspiracy it is not necessary
that intended crime was committed or not. If committed it may
further help prosecution to prove the charge of conspiracy.
6. It is not necessary that all conspirators should agree to the
common purpose at the same time. They may join with other
conspirators at any time before the consummation of the
intended objective, and all are equally responsible. What part
each conspirator is to play may not be known to everyone or the
fact as to when a conspirator joined the conspiracy and when he
left.
7. A charge of conspiracy may prejudice the accused because it
forces them into a joint trial and the court may consider the
entire mass of evidence against every accused. Prosecution has
to produce evidence not only to show that each of the accused
has knowledge of the object of conspiracy but also of the
agreement. In the charge of conspiracy the court has to guard
itself against the danger of unfairness to the accused.
Introduction of evidence against some may result in the
conviction of all, which is to be avoided. By means of evidence
in conspiracy, which is otherwise inadmissible in the trial of any
other substantive offence prosecution tries to implicate the
accused not only in the conspiracy itself but also in the
substantive crime of the alleged conspirators. There is always
difficulty in tracing the precise contribution of each member of
the conspiracy but then there has to be cogent and convincing
evidence against each one of the accused charged with the
offence of conspiracy. As observed by Judge Learned Hand "this
distinction is important today when many prosecutors seek to
sweep within the dragnet of conspiracy all those who have been
associated in any degree whatever with the main offenders".
8. As stated above, it is the unlawful agreement and not its

148
accomplishment, which is the gist or essence of the crime of

conspiracy. Offence of criminal conspiracy is complete even
though there is no agreement as to the means by which the
purpose is to be accomplished. It is the unlawful agreement
which is the gravamen of the crime of conspiracy. The unlawful
agreement which amounts to a conspiracy need not be formal or
express, but may be inherent in and inferred from the
circumstances, especially declarations, acts and conduct of the
conspirators. The agreement need not be entered into by all the
parties to it at the same time, but may be reached by successive
actions evidencing their joining of the conspiracy.
9. It has been said that a criminal conspiracy is a partnership in
crime, and that there is in each conspiracy a joint or mutual
agency for the prosecution of a common plan. Thus, if two or
more persons enter into a conspiracy, any act done by any of
them pursuant to the agreement is, in contemplation of law, the
act of each of them and they are jointly responsible therefore.
This means that everything said, written or done by any of the
conspirators in execution or furtherance of the common purpose
is deemed to have been said, done or written by each of them.
And this joint responsibility extends not only to what is done by
any of the conspirators pursuant to the original agreement but
also to collateral acts incidental to and growing out of the
original purpose. A conspirator is not responsible, however, for
acts done by a coconspirator after termination of the
conspiracy. The joinder of a conspiracy by a new member does
not create a new conspiracy nor does it change the status of the
other conspirators, and the mere fact that conspirators
individually or in groups perform different tasks to a common
end does not split up a conspiracy into several different
conspiracies.
10. A man may join a conspiracy by word or by deed. However,
criminal responsibility for a conspiracy requires more than a
merely passive attitude towards an existing conspiracy. One who
commits an overt act with knowledge of the conspiracy is guilty.
And one who tacitly consents to the object of a conspiracy and
goes along with other conspirators, actually standing by while
the others put the conspiracy into effect, is guilty though he
intends to take no active part in the crime." (emphasis supplied)
64. The offence under Section 120B is a crime between the

149
parties to do a particular act. Association or relation to lead

conspiracy is not enough to establish the intention to kill the
deceased. To make it clear, to bring home the charge of
conspiracy within the ambit of Section 120B, it is necessary to
establish that there was an agreement between the parties for
doing an unlawful act. It is difficult to establish conspiracy by
direct evidence.
65. Since conspiracy is hatched in secrecy, to bring home the
charge of conspiracy, it is relevant to decide conclusively the
object behind it from the charges leveled against the accused
and the facts of the case. The object behind it is the ultimate aim
of the conspiracy. Further, many means might have been
adopted to achieve this ultimate object. The means may even
constitute different offences by themselves, but as long as they
are adopted to achieve the ultimate object of the conspiracy,
they are also acts of conspiracy.
66. In Ajay Aggarwal v. Union of India, AIR 1993 SC 1637, this
Court rejected the submission of the accused that as he was
staying in Dubai and the conspiracy was initially hatched in
Chandigarh and he did not play an active part in the commission
of the acts which ultimately lead to the incident, thus, could not
be liable for any offence, observing:
"8 ..Section 120A of the IPC defines conspiracy to mean that
when two or more persons agree to do, or cause to be done an
illegal act, or an act which is not illegal by illegal means, such an
agreement is designated as "criminal conspiracy". No agreement
except an agreement to commit an offence shall amount to a
criminal conspiracy, unless some act besides the agreement is
done by one or more parties to such agreement in furtherance
thereof. Section 120B of the IPC prescribes punishment for
criminal conspiracy. It is not necessary that each conspirator
must know all the details of the scheme nor be a participant at
every stage. It is necessary that they should agree for design or
object of the conspiracy. Conspiracy is conceived as having three
elements:(1) agreement; (2) between two or more persons by
whom the agreement is effected; and (3) a criminal object,
which may be either the ultimate aim of the agreement, or may
constitute the means, or one of the means by which that aim is
to be accomplished. It is immaterial whether this is found in the
ultimate objects. The common law definition of criminal
150
conspiracy was stated first by Lord Denman in Jones case (1832)
that an indictment for conspiracy must "charge a conspiracy to
do an unlawful act by unlawful means .."
The Court, thus, held that an agreement between two or more
persons to do an illegal act or legal act by illegal means is
criminal conspiracy. Conspiracy itself is a substantive offence
and is distinct from the offence to be committed, for which the
conspiracy was entered into. A conspiracy is a continuing
offence and continues to subsist and is committed wherever one
of the conspirators does an act or series of acts. So long as its
performance continues, it is a continuing offence till it is
executed or rescinded or frustrated by choice or necessity. A
crime is complete as soon as the agreement is made, but it is not
a thing of the moment. It does not end with the making of the
agreement. It will continue so long as there are two or more
parties to it intending to carry into effect the design. (Vide:
Sudhir Shantilal Mehta v. Central Bureau of Investigation,
(2009) 8 SCC 1)
68. For an offence under Section 120B IPC, the prosecution

need not necessarily prove that the conspirators expressly
agreed to do or cause to be done the illegal act, the agreement
may be proved by necessary implication. It is not necessary that
each member of the conspiracy must know all the details of the
conspiracy. The offence can be proved largely from the
inferences drawn from the acts or illegal omission committed by
the conspirators in pursuance of a common design. Being a
continuing offence, if any acts or omissions which constitute an
offence are done in India or outside its territory, the conspirators
continuing to be the parties to the conspiracy and since part of
the acts were done in India, they would obviate the need to
obtain the sanction of the Central Government. All of them need
not be present in India nor continue to remain in India. The
entire agreement must be viewed as a whole and it has to be
ascertained as to what in fact the conspirators intended to do or
the object they wanted to achieve. (Vide: R.K. Dalmia v. Delhi
Administration, AIR 1962 SC 1821; Lennart Schussler & Anr. v.
Director of Enforcement & Anr., (1970) 1 SCC 152;
Shivanarayan Laxminarayan Joshi v. State of Maharashtra,
(1980) 2 SCC 465 and Mohammad Usman Mohammad Hussain
Maniyar and Another v. State of Maharashtra, AIR 1981 SC
151
1062)
72. In State of Maharashtra v. Som Nath Thapa, AIR 1996 SC
1744, this Court held:
"to establish a charge of conspiracy knowledge about indulgence
in either an illegal act or a legal act by illegal means is
necessary. In some cases, intent of unlawful use being made of
the goods or services in question may be inferred from the
knowledge itself. This apart, the prosecution has not to establish
that a particular unlawful use was intended. The ultimate
offence consists of a chain of actions, it would not be necessary
for the prosecution to establish, to bring home the charge of
conspiracy, that each of the conspirators had the knowledge of
what the collaborator would do, so long as it is known that the
collaborator would put the goods or service to an unlawful use."
73. In State through Superintendent of Police, CBI/SIT v. Nalini
& Ors., (1999) 5 SCC 253, this Court held:
"Offence of criminal conspiracy is an exception to the general
law where intent alone does not constitute crime. It is intention
to commit crime and joining hands with persons having the
same intention. Not only the intention but there has to be
agreement to carry out the object of the intention, which is an
offence. The question for consideration in a case is did all the
accused have the intention and did they agree that the crime be
committed. It would not be enough for the offence of conspiracy
when some of the accused merely entertained a wish, howsoever
horrendous it may be, that offence be committed. ...It is not
necessary that all conspirators should agree to the common
purpose at the same time. They may join with other conspirators
at any time before the consummation of the intended objective,
and all are equally responsible. Prosecution has to produce
evidence not only to show that each of the accused has
knowledge of the object of conspiracy but also of the agreement.
In the charge of conspiracy the court has to guard itself against
the danger of unfairness to the accused. There has to be cogent
and convincing evidence against each one of the accused
charged with the offence of conspiracy. It is the unlawful
agreement and not its accomplishment, which is the gist or
essence of the crime of conspiracy. Offence of criminal
conspiracy is complete even though there is no agreement as to
152
the means by which the purpose is to be accomplished. It is the
unlawful agreement which is the gravamen of the crime of
conspiracy. The unlawful agreement which amounts to a
conspiracy need not be formal or express, but may be inherent
in and inferred from the circumstances, especially declarations,
acts and conduct of the conspirators. The agreement need not be
entered into by all the parties to it at the same time, but may be
reached by successive actions evidencing their joining of the
conspiracy.
The agreement, sine qua non of conspiracy, may be proved

either by direct evidence which is rarely available in such cases
or it may be inferred from utterances, writings, acts, omissions
and conduct of the parties to the conspiracy which is usually
done. In view of Section 10 of the Evidence Act anything said,
done or written by those who enlist their support to the object of
conspiracy and those who join later or make their exit before
completion of the object in furtherance of their common
intention will be relevant facts to prove that each one of them
can justifiably be treated as a conspirator." (See Also: Kehar
Singh & Ors. v. State (Delhi Admn.), AIR 1988 SC 1883)
76. In Mohd. Khalid v. State of West Bengal, (2002) 7 SCC 334,
this Court held:
"Where trustworthy evidence establishing all links of

circumstantial evidence is available the confession of a co
accused as to conspiracy even without corroborative evidence
can be taken into consideration."
81. The law on the issue emerges to the effect that conspiracy is
an agreement between two or more persons to do an illegal act
or an act which is not illegal by illegal means. The object behind
the conspiracy is to achieve the ultimate aim of conspiracy. In
order to achieve the ultimate object, parties may adopt many
means. Such means may constitute different offences by
themselves, but so long as they are adopted to achieve the
ultimate object of the conspiracy, they are also acts of
conspiracy. For an offence of conspiracy, it is not necessary for
the prosecution to prove that conspirators expressly agreed to do
an illegal act, the agreement may be proved by necessary
implication. It is also not necessary that each member of the
conspiracy should know all the details of the conspiracy.
153
Conspiracy is a continuing offence. Thus, if any act or omission
which constitutes an offence is done in India or outside its
territory, the conspirators continue to be the parties to the
conspiracy. The conspiracy may be a general one and a smaller
one which may develop in successive stages. It is an unlawful
agreement and not its accomplishment, which is the gist/essence
of the crime of conspiracy. In order to determine whether the
conspiracy was hatched, the court is required to view the entire
agreement and to find out as in fact what the conspirators
intended to do."
201. The above position of law regarding criminal conspiracy has been
reiterated by the Hon'ble Supreme Court of India in the recent case of
Mukesh and anr. V. State of NCT of Delhi and ors. reported in (2017)
6 SCC 1 (Nirbhayas case).
202. Considering the nature of arguments which were advanced, it will
also be proper to make a note regarding the concept of “reasonable doubt”
and “benefit of doubt”.
203. In the case of State of Punjab V. Jagir Singh Baljit Singh reported
in (1974) 3 SCC 277, the Hon'ble Supreme Court of India held as under:
“23. A criminal trial is not like a fairy tale wherein one is free to
give flight to ones imagination and fantasy. It concerns itself
with the question as to whether the accused arraigned at the
trial is guilty of the crime with which he is charged. Crime is an
event in real life and is the product of interplay of different
human emotions. In arriving at the conclusion about the guilt of
the accused charged with the commission of a crime, the court
has to judge the evidence by the yardstick of probabilities, its
intrinsic worth and the animus of witnesses. Every case in the
final analysis would have to depend upon its own facts.
Although the benefit of every reasonable doubt should be given
to the accused the courts should not at the same time reject
evidence which is ex facie trustworthy on grounds which are
fanciful or in the nature of conjectures.”
154
204. In the case of Vijayee Singh V. State of Uttar Pradesh reported in
AIR 1990 SC 1459, the Hon'ble Supreme Court of India has observed as
under:
“28. .................The reasonable doubt is one which occurs to a
prudent and reasonable man. Section 3 while explaining the
meaning of the words "proved", "disproved" and "not proved"
lays down the standard of proof, namely, about the existence or
nonexistence of the circumstances from the point of view of a
prudent man. The section is so worded as to provide for two
conditions of mind, first, that in which a man feels absolutely
certain of a fact, in other words, "believe it to exist" and
secondly in which though he may not feel absolutely certain of a
fact, he thinks it so extremely probable that a prudent man
would under the circumstances act on the assumption of its
existence. The Act while adopting the requirement of the
prudent man as an appropriate concrete standard by which to
measure proof at the same time contemplates of giving full
effect to be given to circumstances or condition of probability or
improbability. It is this degree of certainty to be arrived where
the circumstances before a fact can be said to be proved. A fact
is said to be disproved when the court believes that it does not
exist or considers its nonexistence so probable in the view of a
prudent man and now we come to the third stage where in the
view of a prudent man the fact is not proved i.e. neither proved
nor disproved. It is this doubt which occurs to a reasonable man,
has legal recognition in the field of criminal disputes. It is
something different from moral conviction and it is also
different from a suspicion. It is the result of a process of keen
examination of the entire material on record by a prudent man.
29. There is a difference between a flimsy or fantastic plea

which is to be rejected altogether. But a reasonable though
incompletely proved plea which casts a genuine doubt on the
prosecution version indirectly succeeds. The doubt which the
law contemplates is certainly not that of weak or unduly
vacillating, capricious, indolent, drowsy or confused mind. It
must be the doubt of the prudent man who is assumed to
possess the capacity of "separate the chaff from the grain". It is
the doubt of a reasonable, astute and alert mind arrived at after
155
due application of mind to every relevant circumstance of the
case appearing from the evidence. It is not a doubt which occurs
to a wavering mind.
30. Lord Denning, J. in Miller v. Minister of Pensions while

examining the degree of proof required in criminal cases stated:
"That degree is well settled. It need not reach certainty, but it
must carry a high degree of probability. Proof beyond
reasonable doubt does not mean proof beyond the shadow of a
doubt. The law would fail to protect the community if it
admitted fanciful possibilities to deflect the course of justice. If
the evidence is so strong against a man as to leave only a remote
possibility in his favour which can be dismissed with the
sentence "of course, it is possible but not in the least probable,"
the case is proved beyond reasonable doubt...."
Regarding the concept of benefit of reasonable doubt Lord Du
Paraq, J. in another context observed thus:
"All that the principle enjoins is a reasonable scepticism,
not an obdurate persistence in disbelief. It does not demand
from the judge a resolute and impenetrable incredulity. He is
never required to close his mind to the truth."
205. In the case of State of Haryana V. Bhagirath reported in AIR

1999 SC 2005, the Hon'ble Supreme Court of India has observed as
under:
“10. It is nearly impossible in any criminal trial to prove all

elements with scientific precision. A criminal court could be
convinced of the guilt only beyond the range of a reasonable
doubt. Of course, the expression "reasonable doubt" is incapable
of definition. Modern thinking is in favour of the view that proof
beyond a reasonable doubt is the same as proof which affords
moral certainty to the judge.
11. Francis Wharton, a celebrated writer on Criminal Law in
United States has quoted from judicial pronouncements in his
book on "Whartons Criminal Evidence" as follows (at page 31,
156
volume 1 of the 12th Edition): "It is difficult to define the phrase
"reasonable doubt." However, in all criminal cases a careful
explanation of the term ought to be given. A definition often
quoted or followed is that given by Chief Justice Shaw in the
Webster case. He says: It is not mere possible doubt, because
everything relating to human affairs and depending upon moral
evidence is open to some possible or imaginary doubt. It is that
state of the case which, after the entire comparison and
consideration of all the evidence, leaves the minds of the jurors
in that consideration that they cannot say they feel an abiding
conviction to a moral certainty of the truth of the charge."
12. In the treatise on "The Law of Criminal Evidence" authored
by HC Underhill it is stated (at page 34, Volume 1 of the Fifth
Edition) thus:

"The doubt to be reasonable must be such a one as an honest,
sensible and fairminded man might, with reason, entertain
consistent with a conscientious desire to ascertain the truth. An
honestly entertained doubt of guilt is a reasonable doubt. A
vague conjecture or an inference of the possibility of the
innocence of the accused is not a reasonable doubt. A reasonable
doubt is one which arises from a consideration of all the
evidence in a fair and reasonable way. There must be a candid
consideration of all the evidence and if, after this candid
consideration is had by the jurors, there remains in the minds a
conviction of the guilt of the accused, then there is no room for a
reasonable doubt."
13. In Shivaji Saheb Rao Bobade vs. State of Maharashtra

(1974) 1 SCR 489 this court adopted the same approach to the
principle of benefit of doubt and struck a note of caution that
the dangers of exaggerated devotion to rule of benefit of doubt
at the expense of social defence demand special emphasis in the
contemporary context of escalating crime and escape. This court
further said:

"The judicial instrument has a public accountability. The
cherished principles or golden thread of proof beyond
reasonable doubt which runs through the web of our law should
not be stretched morbidly to embrace every hunch, hesitancy
and degree of doubt."
157
14. These are reiterated by this court in Municipal Corporation
of Delhi vs Ram Kishan Rohatgi, AIR 1983 SC 67.”
206. In the case of Krishnan V. State reported in AIR 2003 SC 2978,

the Hon'ble Supreme Court of India has observed as under:
“24. Doubts would be called reasonable if they are free from a
zest for abstract speculation. Law cannot afford any favorite
other than truth. To constitute reasonable doubt, it must be free
from an over emotional response. Doubts must be actual and
substantial doubts as to the guilt of the accused persons arising
from the evidence, or from the lack of it, as opposed to mere
vague apprehensions. A reasonable doubt is not an imaginary,
trivial or a merely possible doubt; but a fair doubt based upon
reason and common sense. It must grow out of the evidence in
the case.
25. The concepts of probability, and the degrees of it, cannot
obviously be expressed in terms of units to be mathematically
enumerated as to how many of such units constitute proof
beyond reasonable doubt. There is an unmistakable subjective
element in the evaluation of the degree of probability and the
quantum of proof. Forensic probability must, in the last analysis,
rest on a robust common sense and, ultimately, on the trained
intuitions of the judge. While the protection given by the
criminal process to accused persons is not to be eroded, at the
same time, uninformed legitimization of trivialities would make
a mockery of administration of criminal justice. This position
was illuminatingly stated by Venkatachalia.J (as His Lordship
then was) in State of U.P. Krishna Gopal and Anr. (AIR 1988 SC
2154) .”
207. In the case of State of Punjab V. Karnail Singh reported in (2003)
11 SCC 271, the Hon'ble Supreme Court of India has observed as under:
“12. Exaggerated devotion to the rule of benefit of doubt must
not nurture fanciful doubts or lingering suspicion and thereby
destroy social defence. Justice cannot be made sterile on the
plea that it is better to let hundred guilty escape than punish an
158
innocent. Letting guilty escape is not doing justice according to
law. (See: Gurbachan Singh vs. Satpal Singh and others (AIR
1990 SC 209). Prosecution is not required to meet any and every
hypothesis put forward by the accused. (See State of U.P. vs.
Ashok Kumar Srivastava (AIR 1992 SC 840). A reasonable doubt
is not an imaginary, trivial or merely possible doubt, but a fair
doubt based upon reason and common sense. It must grow out
of the evidence in the case. If a case is proved perfectly, it is
argued that it is artificial; if a case has some flaws inevitable
because human beings are prone to err, it is argued that it is too
imperfect. One wonders whether in the meticulous
hypersensitivity to eliminate a rare innocent from being
punished, many guilty persons must be allowed to escape. Proof
beyond reasonable doubt is a guideline, not a fetish. (See Inder
Singh and Anr. vs. State (Delhi Admn.) AIR 1978 SC 1091).
Vague hunches cannot take place of judicial evaluation. "A judge
does not preside over a criminal trial, merely to see that no
innocent man is punished. A Judge also presides to see that a
guilty man does not escape. Both are public duties." (Per
Viscount Simon in Stirland vs. Director of Public Prosecution
(1944 Ac (PC) 315) quoted in State of U.P. vs. Anil Singh (AIR
1988 SC 1998). Doubts would be called reasonable if they are
free from a zest for abstract speculation. Law cannot afford any
favourite other than truth. (See: Shivaji Sahebrao Bobade and
Anr. vs. State of Maharashtra (1974 (1) SCR 489) , State of U.P.
vs. Krishna Gopal and Anr. (AIR 1988 SC 2154), and Gangadhar
Behera and others vs. State of Orissa (2002 (7) Supreme 276).”
208. Before going further, it is necessary to have a look at the roles

attributed to each of the accused in this case. They are briefly stated
below:
SR.NO. NAME OF THE ACCUSED ROLE

1 Rohee Tangappan Joseph He collected the firearms from the
@ Satish Kalya accused no.9 and the wanted
accused no.1 from Nainital.
He actually fired five shots from his
revolver on J.Dey and killed him.
159

2 Anil Bhanudas Waghmode He had gone in the Qualis vehicle
belonging to him along with accused
no.1 and others to Nainital for
bringing the firearms from accused
no.9.
He along with the accused no.5

kept a watch on J.Dey near the Uma
Palace Bar & Restaurant.
He arranged for a motorcycle

through accused no.6.
He was actually present at the time
of the incident along with the
accused nos.1, 3, 4, 5, 6, 7.
He was the pillion rider on the

motorcycle driven by the accused
no.6.
The accused no.7 has used his

Qualis vehicle in the crime.
3 Abhijit Kashinath Shinde He was actually present at the time
accused nos.1, 2, 4, 5, 6, 7.
He was driving the motorcycle on

which the accused no.4 was the
pillion rider.
4 Nilesh Narayan Shedge He was actually present at the time
accused nos.1, 2, 3, 5, 6, 7.
He was the pillion rider on the

motorcycle driven by the accused
no.3.
5 Arun Janardan Dake He was actually present at the time
160

of the incident and he was driving
the motorcycle and accused no.1
was the pillion rider.
He along with the accused no.2

kept a watch on J.Dey near the Uma
Palace Bar & Restaurant.
6 Mangesh Damodar He was actually present at the time

Aagvane of the incident.
He was driving a motorcycle with

the accused no.2 as the pillion rider.
7 Sachin Suresh Gaikwad He went along with accused no.1

and some of the other accused to
Nainital in the Qualis vehicle of the
accused no.2 for bringing firearms.
He was actually present at the time
accused nos.1, 2, 3, 4, 5 and 6.
He was driving the Qualis vehicle

while following J.Dey.
He provided motorcycle to accused
nos.1 and 5 at the time of the
incident.
8 Vinod Gowardhandas He called J.Dey at the instance of

Asrani @ Vinod Sindhi @ accused no.12 to Uma Palace Bar
Vinod Chembur Abated and Restaurant so as to enable
accused nos.2 and 5 to identify
J.Dey.
9 Deepak Dalvirsingh He gave 25 bullets to the wanted

Sisodiya accused no.1 at the instance of the
accused no.12.
161

The wanted accused no.1 handed
over the revolver and the cartridges
used in the crime to the accused
no.1 in his presence.
10 Paulson Joseph Palitara He arranged for global SIM cards

from Dubai at the instance of
accused no.12 and gave it to
accused no.1 and others.
He gave Rs.2 lacs to accused no.1
after the incident.
He introduced the accused no.11 to
the accused no.12.
11 Ms.Jigna Jitendra Vora She was jealous of J.Dey as he was
getting more news about crime
world from one Farid Tanasha who
was very closely associated with the
accused no.12.
She used to publish news contrary
to the news published by J.Dey.
She used to contact accused no.12
and instigate him to commit the
murder of J.Dey.
She gave the necessary information
such as photos, address and details
of movements of J.Dey to accused
no.12 for his identification.
12 Rajendra Sadashiv Nikalje He was unhappy with J.Dey as he

@ Chhota Rajan @ Nana was writing and publishing articles
@ Seth @ Sir against him. The articles showed
him in bad light and glorified his
arch rival Dawood Ibrahim.
162

J.Dey was murdered at his instance.
13 Wanted accused no.1 He and accused no.9 gave the

Nayansigh Pratapsingh firearms to accused no.1 at the
Bista instance of the accused no.12.
14 Wanted accused no.2Ravi He gave global roaming SIM cards

Ram Rattesar to the accused no.10 who in turn
sold them to the accused no.12.
209. This is also the proper stage to cursorily have a look at the
antecedents of the accused persons before the Court. The perusal of the
remand application no.79/2011 dated 11/07/2011 shows that prior to
this case, the following offences were registered against some of the
accused persons:
Accused no.1Rohee Tangappan Joseph @ Satish Kalya
SR. POLICE CRIME NO. SECTIONS

NO. STATION
1 Samata Nagar 502/96 379, 34 IPC
2 Khar 4/98 307, 34 IPC & 3,25 of Indian Arms
Act.
3 Khar 79/98 302, 34 IPC & 3,25 of Indian Arms
Act.
4 DCB, Unit no.9 16/04 384, 387, 397, 506(2), 511, 34 IPC &
3,25 of Indian Arms Act
5 DCB, Unit no.9 17/04 384, 387, 506(2), 34 IPC
6 DCB, Unit no.9 58/05 384, 387, 397, 342, 34 IPC, 3,25 of
Indian Arms Act & MCOCA Act.
7 DCB, Crime LAC 3,25 of Indian Arms Act
Unit (Secret no.41/05
Information)
(Operations)
163
Accused no.2Anil Bhanudas Waghmode @ Lambu

NO. STATION
1 Oshiwara 482/95 324, 323, 384, 506, 114 IPC
2 Oshiwara 558/03 393, 394 IPC
3 Oshiwara LAC 71/04 3,25 of Indian Arms Act
4 Khar 4/98 307, 34 IPC r/w. 3,25 of Indian Arms
Act.
5 Khar 78/98 302, 34 IPC r/w. 3,25 of Indian Arms
Act.
Accused no.3Abhijeet Kashinath Shinde
No previous offence was registered.
Accused no.4Nilesh Narayan Shedge @ Bablu

NO. STATION
1 Nagpada 179/09 379 IPC
2 Dharavi 264/02 323, 34 IPC
3 Nagpada 265/10 323, 34 IPC
Accused no.5Arun Janardan Dake

NO. STATION
1 Chembur 340/07 323, 324, 34 IPC
2 Chembur 567/07 323, 324, 504, 506, 452, 34 IPC
3 Chembur LAC 73/08 37(A), 22, 51 Bombay Police Act
4 Chembur 280/10 385, 387, 504, 34 IPC
5 Chembur LAC 944/10 3,25 Indian Arms Act & 37(1),(A),
135 Bombay Police Act
164
6 Chembur 135/10 326, 34 IPC
Accused no.6Mangesh Damodar Aagvane @ Mangya
Accused no.7Sachin Suresh Gaikwad

NO. STATION
1 Chembur 149/10 323,324,504, 506(2), 34 IPC
Deceased accused no.8Vinod Gowardhandas Asrani

NO. STATION
1 Chembur 487/90 332, 341, 427, 143 to 149 IPC
2 Chembur 256/03 323, 504, 506, 34 IPC r/w. 3,25 of
Indian Arms Act
3 DCB, Unit 150/05 120B, 115, 302, 419 IPC r/w. 3, 25,
no.6 (Tilak (258/05) 30, 35, 36 of Indian Arms Act r/w.
Nagar) MCOCA.
Accused no.9Deepak Sisodiya
(Details as mentioned in reply (Exh.9A) to the bail application)

NO. STATION
1 Haldvani 845/94 365, 386, 387, 511, 346 IPC
2 Haldvani 816/98 307 IPC
3 Haldvani 465/01 60 Excise Act
4 Haldvani 3050/02 60 Excise Act
5 Bheemtal 1180/99 307 IPC
6 Bheemtal 1181/99 25 of Indian Arms Act.
165
Accused no.10Paulson Joseph Palitara
Crime no.56/2011 u/s.302, 201, 120B, 34 of the IPC r/w. sections
3(1)(ii), 3(2), 3(4) of MCOC Act,1999.
Accused no.11Ms.Jigna Vora
Accused no.12Chhota Rajan
The perusal of the remand application shows that about 64 cases
relating to murder, attempt to murder, extortion etc. were registered
against the accused no.12Chhota Rajan during the period 1978 to 2011.
These cases were registered under the IPC and the MCOC Act,1999. There
are more than 40 cases before this Court in which he is shown as the
accused. These cases relate to murder, attempt to commit murder,
extortion etc.
210. At the outset, in so far as the accused no.11Ms.Jigna Vora is

concerned, though the role attributed to her is that she instigated the
accused no.12Chhota Rajan to commit the murder of J.Dey and that it
was she was the one who gave the details such as photograph of J.Dey and
the registration number of his motorcycle to the accused no.12Chhota
Rajan for the purposes of his identification by the other accused persons,
there is no trustworthy evidence against her. In fact, the learned SPP did
not address arguments against the accused no.11Ms.Jigna Vora with
much force. Perhaps he was also aware about the quality of the evidence
against the accused no.11Ms.Jigna Vora. This Court has also
independently analyzed the evidence of PW.74API Pramod Sawant,
PW.87Nikhil Dixit, PW.100Aariz Chandra and PW.116 Rajesh Kadam
166
who are the relevant witnesses with respect to charges against the accused
no.11Ms.Jigna Vora. However, there is nothing in their evidence to
suggest that the accused no.11Ms.Jigna Vora had instigated the accused
no.12Chhota Rajan to commit the murder of J.Dey or that she had any
other role in this offence. In fact, even in the various extrajudicial
confessions made by the accused no.12Chhota Rajan which are discussed
in the later part of this judgment, he has nowhere stated that he got J.Dey
murdered because of the instigation by the accused no.11Ms.Jigna Vora
or anybody else. Even the recovery of various mobile phones and the SIM
cards of the accused no.11Ms.Jigna Vora and the relevant CDRs fail to
connect the accused no.11Ms.Jigna Vora with the offence in question.
Hence, the accused no.11Ms.Jigna Vora has to be acquitted of all the
charges against her.
211. Now let's consider and analyze the evidence on the record with
reference to the other accused persons before this Court.
212. It may be stated that the case of the prosecution is that for the
purposes of obtaining the firearms and ammunitions, the accused nos.1 to
4 had gone to Haldvani, Nainital in May 2011 i.e. a month prior to the
incident. In this regard, the prosecution has relied upon the evidence of
PW.125Ganesh Kharat and PW.112Amit Chauhan. PW.125Ganesh
Kharat was the driver of the Qualis vehicle bearing registration no.MH12
CD7701 in which the accused no.1Rohee Tangappan Joseph @ Satish
Kalya, the accused no.2Anil Waghmode, the accused no.3Abhijit Shinde
and the accused no.4Nilesh Shedge had gone to Haldvani, Nainital on
12/05/2011 and stayed there for three days. But he did not fully support
the case of the prosecution. His evidence shows that though he has
admitted to have gone to Nainital along with the accused no.3Abhijit
167
Shinde and the accused no.4Nilesh Shedge, he denied that the accused
no.1Rohee Tangappan Joseph @ Satish Kalya and the accused no.2Anil
Waghmode had accompanied them to Haldvani, Nainital or that they had
gone there by road. But during crossexamination by the learned SPP he
admitted that he had stayed in “Hotel SV” from 12/05/2011 to
15/05/2011 along with five other persons.
213. PW.112Amit Chauhan was working as a Manager in the “Hotel

S.V.”, Nainital road, Dhotia Padav, Haldvani, District Nainital at the
relevant time. He was examined by the prosecution to show that the
accused nos.1 to 4 had gone to Haldvani. From his evidence, it is further
clear that PW.125Ganesh Kharat along with five others had stayed in the
room no.101 of “Hotel S.V.”, Haldvani from 12/05/2011 to 15/05/2011.
But it is not clear whether the five persons who were with him at that time
included the accused no.1Rohee Tangappan Joseph @ Satish Kalya and
accused no.2Anil Waghmode also. However, as it will be seen in the later
part of this judgment, through the confession made by the accused no.9
Deepak Sisodiya, the prosecution has proved that on 14/05/2011 the
accused no.1Rohee Tangappan Joseph @ Satish Kalya was present in
Haldvani and he procured two revolvers and 25 live cartridges from the
accused no.9Deepak Sisodiya and the wanted accused no.1Nayansingh
Bista.
(A) CONFESSION MADE BY THE ACCUSED NO.5ARUN DAKE, THE

ACCUSED NO.9DEEPAK SISODIYA AND THE ACCUSED NO.10
PAULSON PALITARA AND RECORDED U/S.18 OF THE MCOC
ACT,1999.
214. Before going further, it may be noted that a confession recorded
u/s.18 of the MCOC Act,1999 is substantive evidence not only against the
maker of the same but also against the other accused persons who are
168
tried along with the maker of the confession. Also, if there is a trial of any
offence under MCOC Act,1999 together with any other offence under any
other law, the admissibility of the confession recorded u/s.18 of the MCOC
Act,1999 would continue to hold good even if the accused is acquitted of
the offences under the MCOC Act,1999.
CONFESSION MADE BY THE ACCUSED NO.5ARUN DAKE
215. As per the prosecution, the accused no.5Arun Dake was arrested on
26/06/2011. On 15/07/2011 and 17/07/2011, he voluntarily made the
confession before PW.122DCP Dr. Mahesh Patil. The gist of the confession
made by the accused no.5Arun Dake is as follows:
He was residing at Subash chandra Bose Nagar Slum, near

Saibaba Mandir, Lal Dongar, Chembur, Mumbai71 since his
birth. He was using the mobile nos.8652449019 and
8652490277. Another mobile no.9833042637 was in his house.
The accused no.7Sachin Gaikwad was living near his house.
The accused no.7Sachin Gaikawad was working as a watchman
at a construction site. He also worked as a watchman at various
construction sites. While working as a watchman he came in
contact with one Pramod Thorat @ Pamya. In the year 2009, he
had gone to Pune for campaigning for an election alongwith
Pramod Thorat @ Pamya, the accused no.2Anil Waghmode,
accused no.4Nilesh Shedge. They were there together for 13
days. He got acquainted with the accused no.2Anil Waghmode
and accused no.4Nilesh Shedge @ Bablu at that place. At that
time, he came to know that Pramod Thorat was a friend of
D.K.Rao and that D.K.Rao was in Jail.
In the year 2010, his friend Muttu Potraj was doing business of
liquor at Chembur. The Excise department raided his shop.
Muttu Potraj assaulted him as he thought that the raid was
conducted because of the tip given by him. An offence u/s.326
IPC was registered against him and he was externed by the
Chembur Police. During the period of externment he was living
with his sister in a building which was in front of Mukta College,
Adharwadi, Kalyan. During that period he was in contact with
the accused no.4Nilesh Shedge on phone.
169
On 07/06/2011, at about 05:00 pm, when he alongwith the

accused no.4Nilesh Shedge and the accused no.2Anil
Waghmode was at a construction site at Bhandup, the accused
no.1Rohee Tangappan Joseph @ Satish Kalya who was the
friend of the accused no.2Anil Waghmode phoned and told the
accused no.2Anil Waghmode to go to Uma Palace Bar situated
at LBS Road, Mulund at 08:30 pm and to keep a watch on a tall
man (J.Dey) who would be called by their man (deceased
accused no.8Vinod Asrani) who would come in a white
coloured BMW car and who would be surrounded by 4 Sikh
bodyguards (Sardars). Then he alongwith the accused no.2Anil
Waghmode went to Uma Palace Bar on the Pulsar motorcycle of
the accused no.7Sachin Gaikwad and stood on the footpath in
front of Uma Palace Bar. At about 09:30 pm, a tall person
wearing spectacles (J.Dey) and matching the description given
by the accused no.1Rohee Tangappan Joseph @ Satish Kalya
came there alongwith one person who was a little less in height
and who was of dark complexion and both of them stood at the
corner of the road near the Uma Palace Bar. After 15 minutes,
one white BMW car came there and two persons (One of them
was the deceased accused no.8Vinod Asrani) got down from
that car. There were four bodyguards (sardars) with them. One
person (deceased accused no.8Vinod Asrani) out of the two
called J.Dey by his name and by waving his right hand. J.Dey
responded by raising his hand. Then J.Dey and the person
alongwith him went to meet the person (deceased accused no.8
Vinod Asrani) who called them. At that time, the identity of
J.Dey was confirmed. At 11:45 pm, J.Dey and the person
alongwith him came out of the Bar, crossed the road and went
away. Thereafter, he and the accused no.2Anil Waghmode also
left that place.
On 09/06/2011, the accused no.4Nilesh Shedge told him to

come to Sion early on the next day in the morning.
On 10/06/2011, at 06:00 am, he went by local train from

Kalyan to Sion. The accused no.4Nilesh Shedge and his friend
i.e. the accused no.3Abhijit Shinde met him there. At that time,
the accused no.4Nilesh Shedge told him that he had some work
at Andheri & that he wanted a motorcycle. Therefore, he phoned
170
his friend i.e. the accused no.7Sachin Gaikwad and told him to
bring his motorcycle. Accordingly, the accused no.7Sachin
Gaikwad came there on a motorcycle. Thereafter, the accused
no.4Nilesh Shedge phoned the accused no.2Anil Waghmode.
Then he (the accused no.5Arun Dake) sat on the motorcycle of
the accused no.7Sachin Gaikwad. The accused no.4Nilesh
Shedge sat on the motorcycle of the accused no.3Abhijit
Shinde. Thereafter, at 07:30 am, they all went near Andheri
railway crossing where the accused no.2Anil Waghmode met
them. The accused no.2Anil Waghmode had come there in a
Qualis vehicle alongwith the accused no.1Rohee Tangappan
Joseph @ Satish Kalya and the accused no.6Mangesh Aagvane
had come there on a motorcycle. Thereafter, at 08:30 am, all of
them went to the Bus depot at Amrut Nagar, Ghatkopar(West).
At that time, the accused no.4Nilesh Shedge told him (the

accused no.5Arun Dake) to phone him as soon as he sees J.Dey
who would be wearing a white coloured helmet and driving
motorcycle bearing registration no.6981. Accordingly, he waited
there for J.Dey till 12:30 in the afternoon but J.Dey did not
come. Therefore, all of them left that place and went to Lower
Parel, Peninsula Chamber. He sat in the Qualis vehicle
alongwith the accused no.1Rohee Tangappan Joseph @ Satish
Kalya, the accused no.2Anil Waghmode and the accused no.4
Nilesh Shedge. The accused no.3Abhijit Shinde, the accused
no.6Mangesh Aagvane and the accused no.7Sachin Gaikwad
went there on motorcycles. But as J.Dey was not there they
returned. The accused no.4Nilesh Shedge told him to come to
Sion on the next day at 05:00 am. Accordingly, he told the
accused no.7Sachin Gaikwad to come on the next day and then
he went to the house of his sister at Kalyan. At that place, he
had a quarrel with his sister. Therefore, he left her house and
went to Kurla by local train. He slept on the platform there.
When he woke up in the morning he found that his mobile
phone having mobile nos.8652449019 & 8652490277 was
stolen. Therefore, he went to the house of his cousin brother
(PW.107Roshan Baikar) and took his mobile phone having
mobile no. 9987017977 of Airtel company for use.
On 11/06/2011, at 05:30 am, he went near the house of the
accused no.4Nilesh Shedge. From that place, he made a phone
171
call to the accused no.7Sachin Gaikwad and told him to come
with a motorcycle. After that, he went along with the accused
no.4Nilesh Shedge to the Andheri Railway crossing in a
rickshaw. The accused no.3Abhijit Shinde also came there on a
motorcycle. The accused no.2Anil Waghmode, the accused
no.6Mangesh Aagvane and the accused no.1Rohee Tangappan
Joseph @ Satish Kalya also met them there. From there, all of
them went to the RCity Mall at Amrut Nagar. Himself, the
accused no.1Rohee Tangappan Joseph @ Satish Kalya and the
accused no.4Nilesh Shedge went there in a Qualis vehicle. The
accused no.6Mangesh Aagvane and the accused no.3Abhijit
Shinde went there on their respective motorcycles. The accused
no.7Sachin Gaikwad directly came there on his motorcycle. The
accused no.2Anil Waghmode was telling something to the
accused no.1Rohee Tangappan Joseph @ Satish Kalya by
telephoning him intermittently. At 01:30 pm, he saw J.Dey
going somewhere on his motorcycle. He followed J.Dey on
motorcycle. The accused no.1Rohee Tangappan Joseph @
Satish Kalya was his pillion rider. The accused no.3Abhijit
Shinde was driving another motorcycle and the accused no.4
Nilesh Shedge was his pillion rider. The accused no.6Mangesh
Aagvane was driving the third motorcycle and the accused no.2
Anil Waghmode was his pillion rider. All of them followed J.Dey
by keeping some distance. The accused no.7Sachin Gaikwad
was driving the Qualis vehicle and was following all of them.
J.Dey stopped his motorcycle in front of Hiranandani Hospital
and went ahead walking. After sometime, J.Dey again started
driving his motorcycle. All of them again started following J.Dey
by keeping some distance. In between, they lost sight of J.Dey.
After going ahead, he (the accused no.5Arun Dake) saw that
the motorcycle of J.Dey was parked. He saw that J.Dey then
immediately started leaving that place on his motorcycle. All of
them again started following J.Dey by keeping some distance.
When J.Dey reached near D' Mart, Hiranandani, the accused
no.1Rohee Tangappan Joseph @ Satish Kalya took out his
revolver and fired one bullet on the back of J.Dey. J.Dey
immediately stopped his motorcycle. At that time, the accused
no.1Rohee Tangappan Joseph @ Satish Kalya fired four more
bullets continuously at J.Dey because of which J.Dey fell down
alongwith his motorcycle. Thereafter, all of them fled that spot.
After going some distance, the accused no.1Rohee Tangappan
172
Joseph @ Satish Kalya got down from the motorcycle of the

accused no.5Arun Dake and told him to come near the
Goregaon Bus Depot. Accordingly, he went there but the
accused no.1Rohee Tangappan Joseph @ Satish Kalya did not
come there. Therefore, he made a phone call to the accused
no.4Nilesh Shedge who told him to come to Sion. He then went
to Sion near the house of the accused no.4Nilesh Shedge. After
some time, the accused no.4Nilesh Shedge, the accused no.7
Sachin Gaikwad and the accused no.3Abhijit Shinde also came
there. He then gave the keys of the motorcycle of the accused
no.7Sachin Gaikwad to him and told him to go to his house. As
the accused no.3Abhijit Shinde was living nearby, the accused
no.4Nilesh Shedge told him to go to his house and watch TV.
Accordingly, the accused no.3Abhijit Shinde went to his house.
He returned after sometime and informed them that the news
about the murder of J.Dey was being shown of the TV.
Thereafter, the accused no.4Nilesh Shedge told him to go to his
house and to come to Sion on the next day in the morning.
Accordingly, he went to Kalyan.
On 12/06/2011, at 06:00 am, he went to the house of the

accused no.4Nilesh Shedge at Sion. From there, he went to
Andheri alongwith the accused no.4Nilesh Shedge and the
accused no.3Abhijit Shinde. The accused no.2Anil Waghmode
met them there. At 11:00 am, all of them went to Dahisar in a
tempo. The accused no.1Rohee Tangappan Joseph @ Satish
Kalya had already come there in a Qualis vehicle. From there, all
the five of them went in the Qualis vehicle to Pavagarh, Gujarat.
They reached there in the night. At that place, the accused no.2
Anil Waghmode booked a room in a hotel “Champaner”. They
stayed in that hotel overnight. On the next day, they checked
out of the hotel and went to a temple at Pavagarh. In the
afternoon, they left for Shirdi and reached Shirdi in the night
where the accused no.2Anil Waghmode booked a room in hotel
'Sai Palace'.
On 14/06/2011, after visiting the Sai Mandir, they went to

Shani Shingnapur. From there they went to Solapur. The
accused no.4Nilesh Shedge went to the house of his friend at
Solapur.
173
On 15/06/2011, he alongwith the accused no.1Rohee

Tangappan Joseph @ Satish Kalya, the accused no.2Anil
Waghmode and the accused no.3Abhijit Shinde went to the
Math of Swami at Akkalkot where the accused no.2Anil
Waghmode booked a room. They stayed there overnight.
On 16/06/2011, after leaving the room they went to Yadgir,

Karnataka. They reached there at about 02:30 am in the night.
At that place, the accused no.2Anil Waghmode booked a room
in the hotel 'Welcome'.
On 17/06/2011 at 10:00 am they went to a temple. From there,
they returned to the hotel and at 03:00 pm they went to Vijapur
(Bijapur) where he was dropped near the bus Depot. From
there, when he phoned the accused no.7Sachin Gaikwad he
informed him that he (accused no.7Sachin Gaikwad) had come
to Vijapur (Bijapur) alongwith his wife. On that, he told the
accused no.7Sachin Gaikwad to come to the bus depot and
accordingly, he came there. Thereafter, he left for Pune by bus.
On 18/06/2011, he went to Swargate, Pune to the house of

Father Pastor Brother whom he was knowing and stayed with
him for two days and then he returned to Mumbai.
On 26/06/2011, when he was at Sion alongwith the accused

no.6Mangesh Aagvane and the accused no.7Sachin Gaikwad,
the Police caught them.
ASSESSMENT OF THE STATEMENT MADE BY THE ACCUSED NO.5

ARUN DAKE.
216. The expression “confession” has not been defined in the Evidence
Act, 1872 or in the MCOC Act,1999. In the case of Kanda Padayachi V.
State of Tamil Nadu reported in (1971) 2 SCC 641, the Hon'ble
Supreme Court of India has held as follows:
“10. The expression 'confession' has not been defined in the

174
Evidence Act. But Stephen in his Digest of the Law of Evidence
defined it as an admission made at any time by a person charged
with crime stating or suggesting the inference that he committed
a crime. Straight J., in R. vs. Jagrup I.L.R. 7 All. 646 and
Chandawarkar, J., in R. vs. Santya Bandhu 4 Bom. L.R. 633,
however, did not accept such a wide definition and gave a
narrower meaning to the expression 'confession' holding that
only a statement which was a direct acknowledgement of guilt
would amount to confession and did not include merely
inculpatory admission which falls short of being admission of
guilt. The question as to the meaning of 'confession' was
ultimately settled in 1939 by the Privy Council in Pakala
Narayana Swami vs. The King Emperor 66 I.A. 66. Lord Atkin
laid down that no statement containing self exculpatory matter
could amount to confession if the exculpatory statement was of
some fact which if true would negative the offence alleged to be
confessed. He observed:
Moreover, a confession must either admit in terms the offence,
or at any rate substantially all the facts which constitute the
offence. An admission of a gravely incriminating fact, even a
conclusively incriminating fact, is not of itself a confession, e.g.,
an admission that the accused is the owner of and was in recent
possession of the knife or revolver which caused death with no
explanation of any other man's possession. Some confusion
appears to have been caused by the definition of confession in
Article 22 of Stephen's Digest of the Law of Evidence which
defines a confession as an admission made at any time by a
person changed with crime stating or suggesting the inference
that he committed that crime. If the surrounding articles are
examined, it will be apparent that the learned author after
dealing with admissions generally is applying himself to
admissions in criminal cases and for this purpose defines
confessions so as to cover all such admissions, in order to have a
general term for use in the three following articles confession
secured by inducement, made upon oath, made under a promise
of secrecy. The definition is not contained in the Evidence Act,
1872; and in that Act it would not be consistent with the natural
use of language to construe confession as a statement by an
accused "suggesting the inference that be committed "the crime.”
217. As stated earlier, under MCOC Act,1999 also, the expression

175
'confession' has not been defined. Therefore, under the MCOC Act,1999
also, 'confession' would mean an express acknowledgement of guilt of the
offence charged or it must admit substantially all the facts which
constitute the offence. The confession (Exhs.1162, 1162A & 1162B)
made by the accused no.5Arun Dake will have to be considered in the
light of above.
218. From the perusal of the confession made by the accused no.5Arun
Dake it is seen that he had criminal antecedents. The accused nos.1 to 7
were knowing each other very well and were in contact with each other.
The accused no.1Rohee Tangappan Joseph @ Satish Kalya had told the
accused no.2Anil Waghmode on 07/06/2011 in the evening, to go to the
Uma Palace Bar and Restaurant, LBS road, Mulund for identification of the
target i.e. J.Dey. Accordingly, the accused no.2Anil Waghmode and the
accused no.5Arun Dake went there at about 08:30 pm and identified
J.Dey. After the identity of the target was fixed, on 10/06/2011, the
accused nos.1 to 7 searched for J.Dey at Amrut Nagar, Ghatkopar where
the parents of J.Dey used to reside. But they could not get him there. They
also visited the area of Lower Parel where the Office of J.Dey was situated.
But on that day, they could not find him there also. On 11/06/2011, the
accused nos.1 to 7 saw J.Dey in Amrut Nagar, Ghatkopar area at about
01:30 pm. and they started following him and waited for the right
moment to act. That moment came when J.Dey was near D’Mart,
Hiranandani, Powai. At that time, the accused no.1Rohee Tangappan
Joseph @ Satish Kalya who was the pillion rider on the motorcycle of the
accused no.5Arun Dake fired one bullet from his revolver on the back of
J.Dey. When J.Dey stopped his motorcycle to find out what had happened,
the accused no.1Rohee Tangappan Joseph @ Satish Kalya fired four more
bullets from his revolver and then all of them fled away.
176
219. If the statements made by the accused no.5Arun Dake are

considered in the light of the charges framed against him and the accused
nos.1 to 4, 6 & 7, then it will be clear that it amounts to a confession
under the law. He has not only admitted his guilt but he has also clearly
specified the role of the accused nos.1 to 4, 6 & 7 in the incident. It is very
much clear from the statements made by him that the murder of J.Dey
was a well planned affair and was executed meticulously. Therefore, once
the prosecution proves that the same was voluntary and truthful, the
confession made by the accused no.5Arun Dake can be used not only
against him but it can also be used against the accused nos.1 to 4, 6 & 7.
EVIDENCE REGARDING VOLUNTARY NATURE & TRUTHFULNESS OF
THE CONFESSION MADE BY THE ACCUSED NO.5ARUN DAKE.
220. The next question which arises for consideration is whether the
confession made by the accused no.5Arun Dake was voluntary and
truthful.
221. “Voluntary' means a statement made of the free will and accord of
the accused, without coercion, whether from fear of any threat of harm,
promise or inducement or any hope of reward. The crux of making a
statement voluntarily, is what is intentional, intended, unimpelled by
other influence, acting on one's own will, through his own conscience.
'Truthful' means honest and not containing or telling any lies.
222. In order to prove that the confession made by the accused no.5
Arun Dake was voluntary and truthful, the prosecution has relied upon the
evidence of PW.103API Tukaram Dewoolkar, PW.105PSI Suhas Naik and
PW.122DCP Dr. Mahesh Patil.
177
223. PW.103API Tukaram Dewoolkar was attached to Office of the

Crime Branch, Unit no.1 at the relevant time. He deposed that on
13/09/2011, PW.143ACP Duraphe told him that the accused no.10
Paulson Palitara wanted to make a confession. He deposed that in all three
accused persons wanted to make confession. He deposed that on
15/07/2011, PW.143ACP Duraphe told him that the accused no.9
Deepak Sisodiya also wanted to give confession and he told him to
produce the said accused before PW.124DCP Chhering Dorje. He deposed
that on 02/08/2011, PW.143ACP Duraphe told him that another accused
wanted to make confession and that he should be produced before
PW.122DCP Dr. Mahesh Patil. He deposed that at the time of deposing he
did not remember the name of that accused. He deposed that two
constables were deputed to assist him. He deposed that when he went to
the Office of PW.122DCP Dr. Mahesh Patil along with the deputed staff
and the accused no.5Arun Dake in Police vehicle he came to know that
PW.122DCP Dr. Mahesh Patil was held up in a conference. He deposed
that they did not permit the accused no.5Arun Dake to speak to anybody.
He deposed that at about 08:00 pm the accused no.5Arun Dake was
produced before PW.122DCP Dr. Mahesh Patil. He deposed that before
taking the accused no.5Arun Dake to the Office of PW.122DCP Dr.
Mahesh Patil the accused no.5Arun Dake was medically examined. Before
the Court, he could not identify the accused no.5Arun Dake.
224. At this stage, as PW.103API Dewoolkar did not support the case of
the prosecution, he was crossexamined by the learned SPP. In cross
examination, he admitted that on 15/07/2011, he had taken the accused
no.5Arun Dake to PW.122DCP Dr. Mahesh Patil for recording his
confession under the MCOC Act,1999. He identified the accused no.5
178
Arun Dake in the Court on being pointed out by the learned SPP. He
admitted that on 15/07/2011 two Police Naiks by name Shri Hake and
Shri Jagtap accompanied him to the Office of PW.122DCP Dr. Mahesh
Patil. He admitted that on 15/07/2011 he had taken the custody of the
accused no.5Arun Dake at 09:30 am and he reached the Office of
PW.122DCP Dr. Mahesh Patil at 11:00 am. He admitted that when they
reached there PW.122DCP Dr. Mahesh Patil was not present in the Office
and therefore, they kept the accused no.5Arun Dake in the Office of the
Reader of PW.122DCP Dr. Mahesh Patil. He admitted that PW.122DCP
Dr. Mahesh Patil came to his Office at about 08:00 pm after attending
some proceedings in the Hon'ble High Court and in the Office of the
Commissioner of Police. He admitted that he then narrated the facts to
PW.122DCP Dr. Mahesh Patil. He stated that he also gave the letter
issued by PW.143ACP Duraphe in the name of PW.122DCP Dr. Mahesh
Patil. He stated that he had produced the accused no.5Arun Dake before
PW.122DCP Dr. Mahesh Patil in a veil. He stated that he had made an
entry in the station diary regarding the above mentioned proceedings after
he returned to the Police Station.
225. PW.103API Dewoolkar admitted that on 02/08/2011, he was

directed to produce the accused no.9Deepak Sisodiya before PW.124DCP
Chhering Dorje. He admitted that accordingly, he took Police Naik Shri
Juwatkar and Police Naik Shri Salim Mulla with him and produced the
accused no.9Deepak Sisodiya before PW.124DCP Chhering Dorje. He
admitted that he had taken the custody of the accused no.9Deepak
Sisodiya at 01:25 pm and produced him before PW.124DCP Chhering
Dorje at 02:00 pm. He admitted that he had taken the accused no.9
Deepak Sisodiya in a Government vehicle and nobody was permitted to
meet him. He stated that he had made the station diary entry regarding
179
taking the custody of accused no.9Deepak Sisodiya and his production
before PW.124DCP Chhering Dorje. He stated that PW.143ACP Duraphe
had given him the letter dated 02/08/2011 in the name of PW.124DCP
Chhering Dorje.
226. PW.103API Dewoolkar admitted that on 13/09/2011, the accused
no.10Paulson Palitara was produced before PW.119DCP Manohar Dalvi
and for that purpose, he had taken Police Naik Shri Jagtap and Police
Constable Shri Madavi along with him. He admitted that on that day, he
had taken the custody of the accused no.10Paulson Palitara at 03:20 pm.
He admitted that the accused no.10Paulson Palitara was kept in a veil. He
admitted that the accused no.10Paulson Palitara was produced before
PW.119DCP Manohar Dalvi at 03:30 pm. He admitted that after taking
custody of the accused no.10Paulson Palitara, they went to the Office of
PW.119DCP Manohar Dalvi by walk. He admitted that they did not
permit anybody to talk to the accused no.10Paulson Palitara. He stated
that he gave the letter dated 13/09/2011 issued by PW.143ACP Duraphe
to PW.119DCP Manohar Dalvi. He stated that he had made an entry in
the station diary regarding the taking of custody of accused no.10Paulson
Palitara and handing him over to PW.119DCP Manohar Dalvi. To a
specific question put to him by the learned SPP regarding the incorrect
statement made by him in his examinationinchief that on 15/07/2011 he
had taken accused no.9Deepak Sisodiya to PW.124DCP Chhering Dorje
and that on 02/08/2011, he had taken another accused to PW.122DCP
Dr. Mahesh Patil, he stated that he did not remember the exact facts as he
had taken three different accused persons to three different Deputy
Commissioners of Police.
180
227. In crossexamination on behalf of accused no.1,6 and 7, he

admitted that the names of the Police staff who were to accompany him to
the Office of the Deputy Commissioner of Police were not made known to
him earlier. He stated that the accused persons who were taken for
recording of confession were in Police custody. He denied that after the
confession of the accused persons was recorded they were again taken to
the Police Station. He stated that he was not aware when the accused
persons were brought to his Office after their arrest. He denied that all the
Officers of DCB, Unit no.1 were involved in the investigation of this case.
He admitted that his superior Officers did not give him any details of this
case.

stated that he had retired from service in July 2015. He stated that they
had gone to the office of PW.122DCP Dr.Mahesh Patil in the Qualis
vehicle belonging to the Crime Branch. He stated that the driver of that
vehicle had made the necessary entry in that regard in the log book which
was maintained by the driver. He stated that from the Office of the Crime
Branch they directly went to the Office of PW.122DCP Dr. Mahesh Patil.
He stated that they did not go anywhere else. He stated that he did not
remember the exact name of the Reader who was present in the Office of
PW.122DCP Dr. Mahesh Patil. He stated that the Reader was holding the
post of Police Inspector and his surname was Shri Rane or Shri Sawant. He
stated that nobody else was present there. He stated that PW.122DCP Dr.
Mahesh Patil came to his Office at about 08:30 pm. He stated that on that
day from 01:00 pm to 08:30 pm he was with the accused no.5Arun Dake
in the Office of PW.122DCP Dr. Mahesh Patil and during that period, he
did not go outside. He stated that he had his lunch and tea in that Office
itself. He stated that he had called for lunch from outside as he did not
181
have his tiffin box with him. He stated that the accused no.5Arun Dake
was in a veil and for enabling him to have lunch his veil was removed. He
stated that he immediately produced the accused no.5Arun Dake before
PW.122DCP Dr. Mahesh Patil after he came to his Office at about 08:30
pm. He stated that he did not take part in the investigation of this case. He
stated that PW.143ACP Duraphe had told him about the facts of this case
much before his statement was recorded. He stated that he had briefed
PW.122DCP Dr. Mahesh Patil about the facts of the case. He stated that
he did not remember the crime number of this case.
229. PW.103API Tukaram Dewoolkar stated that he came to know that
he was required to take the accused no.5Arun Dake to the Office of
PW.122DCP Dr. Mahesh Patil on 15/07/2011 when he resumed his duty
in the morning. He stated that PW.122DCP Dr. Mahesh Patil had asked
the accused no.5Arun Dake about his name in his presence. He stated
that thereafter he was asked to leave. He stated that thereafter he directly
went to his Office. He stated that he did not remember the exact time at
which he returned to his Office. He denied that he did not take the
accused no.5Arun Dake to the Office of PW.122DCP Dr. Mahesh Patil at
11:00 am and that he did not wait there along with him till 08:30 pm. He
denied that during that period he assaulted and tortured the accused no.5
Arun Dake so that he should give his confession. He denied that he did not
take the accused no.5Arun Dake for medical examination. But he
admitted that he did not give the medical certificate of the accused no.5
Arun Dake to PW.122DCP Dr. Mahesh Patil. He stated that he was not
told by PW.122DCP Dr. Mahesh Patil to get the accused no.5Arun Dake
medically examined. He stated that the accused no.5Arun Dake was not
sent for medical examination by PW.122DCP Dr. Mahesh Patil in his
presence.
182
230. The accused nos.9 and 10 adopted the crossexamination which was
conducted on behalf of accused nos.5 and 11 and accused nos.1,6 and 7.
231. PW.105PSI Suhas Naik was attached to the Police Station, Borivali
at the relevant time. He deposed that on 15/07/2011, when he was on
duty, at about 09:25 pm the Senior PI of the Police Station directed him to
report to PW.122DCP Dr. Mahesh Patil as the accused no.5Arun Dake
wanted to make a confession. He deposed that accordingly, he along with
one Police Hawaldar and two Police Constables reported to the Office of
PW.122DCP Dr. Mahesh Patil. He deposed that when they went to the
Office of PW.122DCP Dr. Mahesh Patil, the custody of the accused no.5
Arun Dake who was in a veil was given to them. He deposed that he then
took the accused no.5Arun Dake to Bhagvati Hospital, Borivali in a Police
vehicle and he was taken to the Borivali General lockup and kept in a
separate room. He deposed that the accused no.5Arun Dake was kept
under guard and the guards were told to ensure that other persons do not
contact or meet him. He deposed that on 16/07/2011, the General lockup
in which the accused no.5Arun Dake was checked (searched). He deposed
that on 17/07/2011 at about 08:40 am, he along with the Police
Hawaldar and two Police Constables (who were present with him on
15/07/2011 also) again took the custody of the accused no.5Arun Dake
and took him for his medical examination to the Bhagvati Hospital,
Borivali in a Government vehicle. He deposed that from there they took
the accused no.5Arun Dake to the Office of PW.122DCP Dr. Mahesh
Patil. He deposed that the accused no.5Arun Dake was produced in a veil.
He deposed that PW.122DCP Dr. Mahesh Patil directed them to stand
outside his chamber. He deposed that after some time, PW.122DCP Dr.
Mahesh Patil again handed over the custody of the accused no.5Arun
183
Dake to them and then he was taken to the Borivali, General lockup and
lodged there. He deposed that after lodging the accused no.5Arun Dake
in the Borivali General lockup they returned to the Police Station,
Borivali.
232. PW.105PSI Suhas Naik deposed that on 18/07/2011, PW.122DCP
Dr. Mahesh Patil again called him to his Office and gave him two
envelopes and directed him to hand over those envelopes to the Additional
Chief Metropolitan Magistrate, Esplanade. He deposed that PW.122DCP
Dr. Mahesh Patil also directed him to return the accused no.5Arun Dake
to PW.143ACP Duraphe. He deposed that he then took the custody of the
accused no.5Arun Dake from the Borivali General lockup and took him
to the Bhagvati Hospital for his medical examination. He deposed that
thereafter he produced the accused no.5Arun Dake before the Court of
the Additional Chief Metropolitan Magistrate, Esplanade. He deposed that
he also gave two envelopes to the learned Additional Chief Metropolitan
Magistrate and the accused no.5Arun Dake was also produced before
him. He deposed that thereafter, the Additional Chief Metropolitan
Magistrate told them to stand outside. He deposed that after some time,
they were called inside and the custody of accused no.5Arun Dake was
returned to him. He deposed that he then handed over the custody of
accused no.5Arun Dake to PW.143ACP Duraphe and took the
acknowledgment in that regard. He then deposed about handing over the
copies of the relevant station diary extract, log book register and the
documents regarding handing over of the custody of accused no.5Arun
Dake and the acknowledgement issued by the Court of the Additional
Chief Metropolitan Magistrate, regarding bringing the accused no.5Arun
Dake to the Court and then to PW.143ACP Duraphe.
184
233. In crossexamination on behalf of accused nos.1,6 and 7, he

admitted that the schedule of the meetings of PW.122DCP Dr. Mahesh
Patil was fixed and accordingly the appointments were given. He admitted
that during day time he did not get any information that any accused was
brought or was present in the premises of the Police Station. He denied
that he had prepared false station diary entries. He admitted that he had
taken the accused person of this case to the Bhagvati Hospital, Borivali for
medical examination. He denied that the accused no.5Arun Dake was
lodged in the Borivali Police Station.
234. In crossexamination on behalf of accused nos.5 and 11, he stated
that on 15/07/2011, he reached the Office of PW.122DCP Dr. Mahesh
Patil at 09:30 pm. He voluntarily stated that the Office of PW.122DCP Dr.
Mahesh Patil was situated above the Police Station, Borivali. He stated
that the Borivali General lockup was situated at a distance of 500 to 700
meters from the Police Station, Borivali. He stated that the accused no.5
Arun Dake was not in his custody on 14/07/2011. He denied that the
accused no.5Arun Dake was in his custody on 14/07/2011. He admitted
that the letter (Exh.890) (This document was proved and exhibited during
crossexamination) which was addressed to the Medical Officer of the
Bhagvati Hospital, Borivali regarding medical examination of accused
no.5Arun Dake did not bear any outward number. He stated that no
document was produced by him before PW.143ACP Duraphe at the time
of recording of his statement regarding the work done by him on
16/07/2011 with reference to the accused no.5Arun Dake. He stated that
the accused persons of various Police Stations from the western suburban
areas who were in Police custody were also lodged in Borivali General
lockup. He admitted that whenever any person accused of committing
any offence was taken out of the lockup and whenever he was brought
185
back the entry in that regard was made in the lockup register.
235. He stated that PW.122DCP Dr. Mahesh Patil did not issue any letter
to him while handing over the custody of the accused no.5Arun Dake
about where and how he was to be detained. He stated that it was not
mandatory for making an entry in the station diary about leaving the
Police Station after the duty hours. He stated that on 17/07/2011, he was
in the Office of PW.122DCP Dr. Mahesh Patil for about 34 hours and
during that period the accused no.5Arun Dake was inside the chamber of
PW.122DCP Dr. Mahesh Patil. He stated that after he had produced the
accused no.5Arun Dake before the Court of the learned Additional Chief
Metropolitan Magistrate, Esplanade he was required to wait outside for
1520 minutes. He stated that he went inside the Court only after the
Court Clerk called him. He admitted that the accused no.5Arun Dake was
kept in Borivali General lockup. He denied that he neither took accused
no.5Arun Dake for medical examination nor produced him before
PW.122DCP Dr. Mahesh Patil or before the learned Additional Chief
Metropolitan Magistrate, Esplanade at any time.
236. PW.122DCP Dr. Mahesh Patil recorded the confession made by the
accused no.5Arun Dake. He deposed that vide letter dated 13/07/2011
issued by the Joint Commissioner of Police (Crime) he was directed to
record the confession of accused no.5Arun Dake as he was ready to make
the same. He deposed that he received the said letter on 14/07/2011 and
on the same day vide letter (Exh.1160) he directed PW.143ACP Duraphe
to produce the accused no.5Arun Dake before him on 15/07/2011. He
deposed that accordingly, on 15/07/2011, the accused no.5Arun Dake
was produced before him by PW.103API Dewoolkar along with the letter
dated 15/07/2011 (Exh.1161) issued by PW.143ACP Duraphe deputing
186
PW.103API Dewoolkar to produce the accused no.5Arun Dake before

him. He identified the accused no.5Arun Dake in the Court.
237. PW.122DCP Dr. Mahesh Patil deposed that after the accused no.5
Arun Dake was produced before him he took his custody and told PW.103
API Dewoolkar to go outside the premises. He deposed that thereafter only
himself and the accused no.5Arun Dake were in his cabin. He deposed
that he then asked the accused no.5Arun Dake whether he wanted to
make the confession voluntarily. He deposed that he then called his
stenographer Mrs.Bhanushali in his cabin. He deposed that he then
introduced himself to the accused no.5Arun Dake and told him about his
authority to record confession under the provisions of section 18 of the
MCOC Act, 1999. He deposed that the accused no.5Arun Dake told him
that PW.143ACP Duraphe had told him about this. He deposed that when
he asked accused no.5Arun Dake as to which language he could read
write and speak, he replied that he could speak and read Marathi but he
could not write properly in Marathi.
238. PW.122DCP Dr. Mahesh Patil deposed that he then informed the
accused no.5Arun Dake that he had no connection with this case. He
deposed that on being asked by him, the accused no.5Arun Dake stated
that he was voluntarily making the confession as he was repenting.
239. He deposed that on being asked by him, the accused no.5Arun

Dake stated that he did not receive any assurance from the Investigating
Officer or any other Officer connected with this case that he would be
released if he made confession, that no offer was made to him that he
could be made an approver if he made the confession, that he was not
threatened by any Officer connected with this case, that he did not have
187
any complaint against the Investigating Officer of this case and that he did
not want to take advice from his Advocate or any of his relative. He
deposed that when he cautioned the accused no.5Arun Dake that if he
made confession it could go against him and he could be convicted, the
accused no.5Arun Dake told him that he was aware about that. He
deposed that when he told the accused no.5Arun Dake that if he did not
want to make any confession he will not record the same, he replied that
he wanted to make the confession as he wanted to tell the truth. He
deposed that on being asked by him, the accused no.5Arun Dake stated
that he was firm on his decision to make the confession.
240. He deposed that from the answers given by the accused no.5Arun
Dake to the questions put by him he gathered that accused no.5Arun
Dake was firm on his decision to make the confession but he gave a period
of 36 hours to the accused no.5Arun Dake to reconsider his decision to
make the confession. He deposed that he told the accused no.5Arun Dake
that during the period of 36 hours he would be in his custody and that the
Officers connected with this case will not meet him. He deposed that he
also told the accused no.5Arun Dake that if he wanted to take the
assistance of his Advocate or relatives he could do so. He deposed that the
questions put by him and answers given by the accused no.5Arun Dake
were being simultaneously recorded and after taking the printout of the
record (Exh.1162) the same was read over to accused no.5Arun Dake and
then his signature was taken.
241. He deposed that after the confession Part1 (Exh.1162) was

recorded, he took the certificate (Exh.1163) from his stenographer which
was signed by her in his presence. He deposed that thereafter, he issued
the letter (Exh.1164) addressed to the Senior PI, Borivali Police Station
188
requesting him to send one Officer and his team for taking the custody of
accused no.5Arun Dake from his Office. He deposed that by the said
letter, he also directed that the accused no.5Arun Dake should be
medically examined, that he should be permitted to meet his Advocate or
relatives, that he should be lodged in a separate lockup, that no Officer
connected with this case should be permitted to meet him, that a separate
guard should be appointed for guarding the accused no.5Arun Dake and
that whenever the accused no.5Arun Dake was taken out of the lockup
and brought inside the lockup he should be in a veil. He deposed that
accordingly, PW.105PSI Suhas Naik and his staff came to his Office and
while handing over the custody of accused no.5Arun Dake to them he
also handed over the letter (Exh.1165) which was in the name of Senior
PI, Borivali Police Station containing the directions that the accused no.5
Arun Dake should be kept in a separate lockup and that no Officer from
the Crime Branch should be permitted to meet him. He deposed that by
the said letter, he had directed that the accused no.5Arun Dake should be
produced before him on 17/07/2011 in the morning.
242. He deposed that on 17/07/2011, the accused no.5Arun Dake was
produced before him by PW.105PSI Suhas Naik. He deposed that
thereafter, PW.105PSI Suhas Naik and his staff was directed to go outside
and only himself and the accused no.5Arun Dake were present in his
cabin. He deposed that he then called his stenographer for recording the
confession of accused no.5Arun Dake. He identified the record
(Exh.1162A) made by him in that regard.
243. PW.122DCP Dr. Mahesh Patil deposed that before recording the
confession, on being asked by him, the accused no.5Arun Dake stated that
the time given to him to reconsider his decision to make his confession
189
was sufficient. He deposed that on being asked by him, the accused no.5
Arun Dake told him that no Officer connected with this case had met him
in the lockup and that he neither wanted to take any advice from his
Advocate or relatives nor he wanted to get his confession recorded in their
presence. He deposed that when he again reminded the accused no.5Arun
Dake that he was an Officer of DCP level and was authorized to record his
confession u/s.18 of the MCOC Act, 1999, the accused no.5Arun Dake
told him that he was aware about that. He deposed that when he told the
accused no.5Arun Dake that there was no compulsion on him to make the
confession the accused no.5Arun Dake told him that he was ready to
make the confession. He deposed that on being asked by him, the accused
no.5Arun Dake stated that he did not have any complaint against the
Officers of the Crime Branch. He deposed that when he again reminded
the accused no.5Arun Dake that the confession which he was giving could
be used against him in the Court and he could be convicted, the accused
no.5Arun Dake told him that he was ready to make the confession. He
deposed that when he asked the accused no.5Arun Dake whether he
could write his confession in his own handwriting, the accused no.5Arun
Dake told him that it would consume a lot of time and that the confession
should be recorded by him (PW.122). He deposed that the accused no.5
Arun Dake made that statement in writing and signed the same. He
deposed that from the above, he gathered that the accused no.5Arun
Dake wanted to voluntarily making the confession and that he was not
under any threat, pressure, fear or stress. He deposed that as the accused
no.5Arun Dake was firm on his decision to make the confession, he
started the recording of the same.
244. PW.122DCP Dr. Mahesh Patil then deposed about what the accused
no.5Arun Dake told him and what was recorded by him (confession Part
190
2, Exh.1162B). The gist of the statement (Exh.1162B) made by the

accused no.5Arun Dake is already reproduced earlier. The same is not
reproduced here to avoid repetition.
245. PW.122Dr. Mahesh Patil deposed that after recording the

confession he prepared the certificate (Exh.1162C) in compliance of
section 18 of the MCOC Act,1999, placed the confession Part1 and Part2
in separate envelopes, called PW.105PSI Suhas Naik to his cabin and
directed him to produce the accused no.5Arun Dake in the Court of the
learned Chief Metropolitan Magistrate on 18/07/2011 as 17/07/2011 was
a Sunday. He deposed that he had issued the letter (Exh.1167) in the
name of PW.105PSI Suhas Naik in that regard. He deposed that vide letter
(Exh.1169) he intimated the learned Chief Metropolitan Magistrate that
he had recorded the confession of the accused no.5Arun Dake by
following the due procedure. He deposed that he also directed PW.105PSI
Suhas Naik to produce the accused no.5Arun Dake before PW.143ACP
Duraphe after the work in the Court was over. He deposed that on
29/07/2011, he received the letter dated 28/07/2011 (Exh.1170) issued
by PW.143ACP Duraphe requesting him to furnish a copy of the
statement made by the accused no.5Arun Dake and accordingly he
furnished the copy of the same in a sealed envelope to PW.143ACP
Duraphe.
246. In crossexamination on behalf of the accused no.1,6 and 7, he

stated that he had not issued any directions that the accused no.5Arun
Dake should be produced in a veil before him on 15/07/2011. He
admitted that in confession Part1 it was not recorded that when the
accused no.5Arun Dake was produced before him he had come to make
the confession voluntarily. He stated that while recording confession Part
191
1 though he had not asked the accused no.5Arun Dake whether he was
making the confession voluntarily he had asked the accused no.5Arun
Dake as to why he wanted to make the confession or whether he was
under any pressure. He denied that he did not specifically note down in
the confession Part1 that period of 36 hours was being given to the
accused no.5Arun Dake for reconsidering his decision to make the
confession. He admitted that in the confession Part1 it was not
specifically mentioned that he had put the questions to the accused no.5
Arun Dake and he accordingly answered the same. He admitted that in
confession Part1 and 2, it was not mentioned that after they were
recorded, the same were read over to the accused no.5Arun Dake. He
denied that the confession was a tampered document. He denied that the
correspondence made by him or received by him with regard to the
recording of confession was manipulated. He denied that the accused
no.5Arun Dake was falsely implicated in this case.
stated that he did not remember the date on which he had received the
summon for deposing in this case but he might have received the summon
prior to 1520 days. He stated that he did not remember the exact date on
which he was called to give evidence as per the summon. He stated that
during his career as the DCP, he had recorded two confessions under the
MCOC Act, 1999. He stated that on third occasion the concerned accused
refused to make confession and therefore, he did not record it. He stated
that as far as he could remember the confession recorded by him in this
case was the first confession recorded by him. He stated that he did not
remember the name of the accused who was produced before him and
whose confession he had recorded in the other case. He stated that he did
not remember the day, month and the year on which he had recorded the
192
confession in the other case. He stated that he could also not remember
the name of the accused who had refused to make the confession in the
third case. He stated that he did not remember with which Police Station
that case was registered and who was the Investigating Officer of that
case. He stated that in the present case, he had recorded the questions in
the same format in which they were asked. He stated that he also recorded
the exact answers which were given by the accused no.5Arun Dake and
that he did not make any change. He stated that he had recorded
whatever the accused no.5Arun Dake had said and no question remained
to be recorded though asked by him. He stated that he did not omit any
answers given by the accused no.5Arun Dake or any questions put by him
to the accused no.5Arun Dake or any answers given by him.
248. He stated that on 14/07/2011, he had resumed his duty between
11:00 am to 12:00 in the afternoon and he was on duty till late in the
night. He stated that on 15/07/2011 he had resumed his duty between
10:00 am to 11:00 am and he was in his Office till 10:00 pm to 10:30 pm.
He stated that on 15/07/2011 the accused no.5Arun Dake was produced
before him at 08:15 pm. He stated that nobody informed him whether
before producing the accused no.5Arun Dake before him on that day he
was taken anywhere or detained in his Office for long time. He stated that
when he met PW.103API Dewoolkar he did not ask him as to when the
accused no.5Arun Dake was taken out of lockup, where he was taken,
what he did and at what time he reached his Office (PW.122) along with
the accused no.5Arun Dake. He stated that PW.103API Dewoolkar did
not submit any report to him in that regard. He admitted that on
15/07/2011 the accused no.5Arun Dake was in his custody from 08:15
pm to 09:40 pm. He stated that on 15/07/2011, he did not direct the
Police Station, Borivali to depute any particular Officer for taking custody
193
of the accused no.5Arun Dake.
249. He stated that on 17/07/2011, the accused no.5Arun Dake was
produced before him by PW.105PSI Suhas Naik at about 11:00 am. He
stated that the Police Station, Borivali was situated on the ground floor of
the building in which his Office was situated and that his Office was
situated on the second floor of that building. He stated that the Borivali
General lockup was situated at a distance of 400 to 500 meters of the
Police Station, Borivali. He stated that at that time, there was a lockup in
the Police Station, Borivali but it was not operational as there were orders
from the Office of the Commissioner for entire Mumbai that persons
should be lodged in the Borivali General lockup. He stated that from
15/07/2011 to 18/07/2011, he neither visited the Borivali General lock
up nor called for the extract of the lockup register and the lockup
movement diary of that period. He admitted that every Police Station had
an Officer for night duty. He stated that he could not give the names of the
Officers who were on night duty on 14/07/2011, 16/07/2011 and
17/07/2011. He admitted that a separate guard was assigned for lockup
duty and in the lockup register the name of the accused, crime number,
sections under which the accused was charged are recorded. He stated
that he was not aware whether it was mandatory to issue memo for
putting the accused in the lockup or for removing from the lockup. He
stated that he did not personally issue any memo on 15/07/2011,
17/07/2011 and 18/07/2011 regarding putting the accused no.5Arun
Dake or removing him from the lockup.
250. He stated that after the completion of recording of confession

neither PW.143ACP Duraphe nor his Office staff had met him. He stated
that by the letter dated 28/07/2011 (Exh.1170) PW.143ACP Duraphe
194
had requested him to furnish a copy of the confession of the accused no.5
Arun Dake and vide letter (Exh.1171) he had furnished the copy of the
same. He stated that the printout of the confession Part1 was taken on
15/07/2011 and the printout of the confession Part2 was taken on
17/07/2011. He stated that he had taken one printout of confession Part1
and confession Part2 and then he took the xerox of the same. He stated
that he had kept the xerox copy of the same in packed condition with him
in his cupboard. He stated that the xerox copy was taken by his
stenographer from the machine which was in his Office. He stated that he
had taken the xerox copy as he thought that the Investigating Officer may
require the copy of the same. He stated that no direction or request was
made to him for keeping a xerox copy of the confession with him and to
send the same to the Investigating Officer on his request.
251. He stated that on 15/07/2011, the accused no.5Arun Dake was in
his custody from 08:15 pm/08:20 pm to 09:45 pm. He stated that he was
not aware as to on which date the accused no.5Arun Dake was arrested
and that he did not ask the accused no.5Arun Dake about it. He stated
that he did not ask the Police Officers since when the accused no.5Arun
Dake was in Police custody nor the Police Officers gave him any
information in that regard. He stated that on 17/07/2011, the accused
no.5Arun Dake told him that he was taken in custody by the Police on
26/06/2011 from Sion area. He stated that on 15/07/2011, he neither
examined the body of the accused no.5Arun Dake nor asked him whether
he was medically examined. He stated that on 17/07/2011, he had asked
the accused no.5Arun Dake whether he was medically examined but he
did not put any question in that regard while recording confession Part2.
252. PW.122DCP Dr. Mahesh Patil stated that on 15/07/2011 before
195
the accused no.5Arun Dake was produced before him, he did not ask
PW.143ACP Duraphe as to when and to whom the accused no.5Arun
Dake for the first time showed his desire to make the confession. He stated
that he neither asked such questions to the Police Officer who had
produced the accused no.5Arun Dake before him on 15/07/2011 nor did
he ask the accused no.5Arun Dake about it on 15/07/2011. He stated
that the questions which were recorded in the confession Part1 and Part2
were put by him to the accused no.5Arun Dake on his own. He stated that
on 15/07/2011 and 17/07/2011 he did not ask the accused no.5Arun
Dake whether he had engaged any Advocate nor did he call for any
information about that from the Police. He stated that he did not verify
from the accused no.5Arun Dake whether he was in a position to engage
an Advocate on his own. He stated that he also did not make any
arrangement of an Advocate for accused no.5Arun Dake as he did not
make any such request. He stated that all the statements were voluntarily
made by the accused no.5Arun Dake and that he did not feel like seeking
any clarification or details from the accused no.5Arun Dake. He stated
that it took 2 hours to 2 hours and 15 minutes to complete the recording
of the narration part of the confession Part2 from page no.3 to page
no.10. He stated that before taking the printouts of the confession Part2
the contents of the same were read over the accused no.5Arun Dake. He
stated that he was reading all the contents and the accused no.5Arun
Dake was listening. He stated that certificate (Exh.1162C) was prepared
after the signatures of the accused no.5Arun Dake were taken on the
confession. He stated that the printout of the certificate (Exh.1162C) was
taken on a separate page as he felt that it would not fit in the space which
was available at page no.10 of the statement. He denied that the space
available at page no.10 of the confession Part2 was sufficient to
accommodate the certificate (Exh.1162C).
196
253. He stated that on 17/07/2011, the accused no.5Arun Dake was
produced before him at 11:00 am. He stated that after the confession Part
1 and 2 were recorded and sealed in two packets, his stenographer who
typed the said statement on the computer deleted the file. He stated that
he had recorded whatever the accused no.5Arun Dake had narrated and
that he did not add anything on his own. He stated that after the accused
no.5Arun Dake was produced before the learned Chief Metropolitan
Magistrate no report was submitted to him by the Officer. He denied that
when the accused no.5Arun Dake was produced before him on
15/07/2011 he had informed him that he was assaulted and illtreated by
the Police. He denied that the accused no.5Arun Dake did not voluntarily
make the confession before him.
ANALYSIS
254. At the outset, it may be stated that the learned Advocate for the
accused no.5 argued that the Criminal Manual and Cr.P.C.,1973 provide
for the various precautions which are required to be taken while recording
the confession and as PW.122DCP Dr. Mahesh Patil failed to take those
precautions, the confession made by the accused no.5Arun Dake is
required to be discarded. According to him, PW.122DCP Dr. Mahesh Patil
has given a go by to almost all the important precautions which were
required to be taken by him before recording the confession of the accused
no.5Arun Dake which creates a serious doubt about the voluntary nature
of the confession made by the accused no.5Arun Dake. In this regard,
reliance was placed upon the judgments in the case of Rabindra Kumar
Pal @ Dara Singh V. Republic of India reported in 2011 ALL MR (Cri)
673 (S.C.) and Bhagwan Singh and Ors. V. State of M.P. reported in
AIR 2003 SC 1088.
197
255. The above submission made by the learned Advocate for the
accused no.5Arun Dake cannot be accepted. Whether the confession
made by the accused no.5Arun Dake was voluntary or not will have to be
considered in the light of the provisions of section 18 of the MCOC
Act,1999 and Rule 3 of the MCOC Rules,1999 and not in the light of the
provisions of the Cr.P.C.,1973 or the guidelines provided in the Criminal
Manual. This is so, because MCOC Act,1999 is a special Statute and its
provisions will prevail over the general guidelines provided in
Cr.P.C.,1973 and in the Criminal Manual regarding the procedure to be
followed while recording confession. The view taken by this Court is in
consonance with the view taken by the Hon'ble Supreme Court of India in
the case of S.N.Dube V. N.B.Bhoir and others reported in (2000) 2 SCC
254. In that case, the Hon'ble Supreme Court of India has observed that
the Police Officer recording a confession u/s.15 of the TADA Act,1987 is
not bound to follow any other procedure. The Hon'ble Supreme Court of
India has further observed that the Rules or the guidelines framed by the
Hon'ble Bombay High Court for recording a confession by a Magistrate
u/s.164 Cr.P.C.,1973 do not by themselves apply to recording of a
confession u/s.15 of the TADA Act,1987 and merely because some of
those guidelines were not followed while recording the confession it
cannot for that reason be held that the said confession has lost its
evidentiary value. The said judgment is squarely applicable to the present
case as the provisions of section 18 of the MCOC Act,1999 and the
provisions of Section 15 of TADA Act,1987 are pari materia. Therefore, the
law settled under TADA Act,1987 will be applicable as binding precedent
in a case under MCOC Act,1999. As such, this Court is only required to see
whether while recording the confession made by the accused no.5Arun
Dake, the provisions of section 18 of the MCOC Act,1999 and the MCOC
198
Rule,1999 were followed or not. Therefore, the reliance placed upon the
judgments in the case of Rabindra Kumar Pal @ Dara Singh (supra)
and Bhagwan Singh (supra) is of no consequence.
256. While finding whether there was total compliance of section 18 of
the MCOC Act,1999 and Rule 3 of the MCOC Rules,1999 at the time of
recording the confession made by the accused no.5Arun Dake, it will also
be necessary to take into account, the provisions of section 80 and section
114 of the Evidence Act,1872. They are reproduced below for ready
reference:
“80. Presumption as to documents produced as record of

evidence.Whenever any document is produced before any
Court, purporting to be a record or memorandum of the
evidence, or of any part of the evidence, given by a witness in a
judicial proceeding or before any officer authorized by law to
take such evidence, or to be a statement or confession by any
prisoner or accused person, taken in accordance with law, and
purporting to be signed by any Judge or Magistrate, or by any
such officer as aforesaid, the Court shall presume—
that the document is genuine; that any statements as to the
circumstances under which it was taken, purporting to be made
by the person signing it, are true, and that such evidence,
statement or confession was duly taken.
114. Court may presume existence of certain facts. The

Court may presume the existence of any fact which it thinks
likely to have happened, regard being had to the common
course of natural events, human conduct and public and private
business, in their relation to the facts of the particular case.
Illustrations
The Court may presume—
(a)
(b)
(c)
199
(d)
(e) that a judicial and official acts have been regularly
performed;
(f)”
The rule is, omnia praesumuntur legitime facta donec probetur in

contrarium All things are presumed to be lawfully done, until proof be
made to the contrary.
257. It is not in dispute that PW.122DCP Dr. Mahesh Patil was

competent to record the confession of accused no.5Arun Dake. From his
evidence, it is also clear that he was authorized by Joint Commissioner
(Crime), Mumbai to record the confession of accused no.5Arun Dake.
Accordingly, vide letter (Exh.1160) he directed PW.143ACP Duraphe to
produce the accused no.5Arun Dake before him on 15/07/2011. In view
of the orders of PW.143ACP Duraphe, on 15/07/2011, PW.103API
Dewoolkar left his office at 09:30 am for the Office of PW.122DCP Dr.
Mahesh Patil along with the accused no.5Arun Dake after making the
station diary entry (Exh.882) and he reached there at 11:00 am. PW.103
API Dewoolkar also produced the letter (Exh.1161) issued by PW.143ACP
Duraphe authorizing him for producing the accused no.5Arun Dake
before PW.122DCP Dr. Mahesh Patil. It may be noted that as at that time
PW.122DCP Dr. Mahesh Patil had gone out for some official work,
PW.103API Shri Dewoolkar was required to wait in the Office of PW.122
DCP Dr. Mahesh Patil till about 08:00 pm to 08:30 pm and during that
period, he ensured that nobody met the accused no.5Arun Dake. Further,
after PW.122DCP Dr. Mahesh Patil returned to his office, PW.103API
Dewoolkar briefed him about the accused no.5Arun Dake. Thereafter,
PW.122DCP Dr. Mahesh Patil took the custody of the accused no.5Arun
Dake and PW.103API Dewoolkar was asked to leave. Accordingly, he
200
returned to his Office at about 10:00 pm and made the station diary entry
(Exh.883) in that regard.
258. From the answers given to question nos.261 & 262 of the statement
recorded u/s.313(b) of Cr.P.C.,1973, it is quite clear that the accused
no.5Arun Dake has admitted that on 15/07/2011, he was produced
before PW.122DCP Dr. Mahesh Patil by PW.103API Dewoolkar but his
case is that he was kept there for four days. However, there is no evidence
in that regard. Further, no such stand was taken during the cross
examination of the concerned witnesses.
259. It is also seen that before recording the confession Part1

(Exh.1162) of the accused no.5Arun Dake, PW.122DCP Dr. Mahesh Patil
had complied with the provisions of Rule 3(2), Rule 3(3) and Rule 3(4) of
the MCOC Rules, 1999. There is nothing to suggest that PW.122DCP Dr.
Mahesh Patil was associated with the investigation of this case in any
manner. After taking the accused no.5Arun Dake in his custody he
ensured that no Police Officer who had taken part in the investigation of
this case was present at the time of recording of the confession. By putting
general questions to the accused no.5Arun Dake, he ensured that there
was a free and comfortable atmosphere to enable the accused no.5Arun
Dake to express his feelings. He closed the door of his cabin to ensure that
nobody could see him. Thereafter, PW.122DCP Dr. Mahesh Patil also
informed the accused no.5Arun Dake that he was not associated with this
case in any manner. On being asked by him, the accused no.5Arun Dake
told him that he was making the confession voluntarily as he was
repenting. He also verified from the accused no.5Arun Dake whether any
assurance was given to him that he would be released if he made the
confession or if he turned into an approver. On being asked by him, the
201
accused no.5Arun Dake told him that he was not threatened by any
Officer connected with this case nor he had any complaint against the
Investigating Officer of this case. He also cautioned the accused no.5Arun
Dake in very clear terms that if he made the confession, the same could be
used as evidence against him and he could be convicted. He had also put
several other questions to the accused no.5Arun Dake for satisfying
himself that the accused no.5Arun Dake was making the confession
voluntarily. After being satisfied, he gave a period of 36 hours to the
accused no.5Arun Dake to reconsider his decision to make the confession.
This was done in compliance of the provisions of Rule 3(4) of the MCOC
Rules,1999. The object of giving such time to the accused no.5Arun Dake
was to ensure that he was completely free from Police influence. To
ensure that the accused no.5Arun Dake did not feel any pressure,
PW.122DCP Dr. Mahesh Patil clearly told him that during that period he
would be in his custody and that the Officers connected with this case will
not meet him. The evidence of PW.122DCP Dr. Mahesh Patil on this point
is consistent with the contents of the confession Part1 (Exh.1162).
260. It is also seen that after the proceedings of the confession Part1
(Exh.1162) were over, he had taken the certificate (Exh.1163) from his
stenographer to the effect that all the contents of the confession Part1
and the questions put to the accused no.5Arun Dake by PW.122DCP Dr.
Mahesh Patil and the answers given by him were typed on the computer.
Thereafter, PW.122DCP Dr. Mahesh Patil issued the letter dated
15/07/2011 (Exh.1164) to the Senior PI, Police Station, Borivali for
sending a team to take custody of the accused no.5Arun Dake. By the said
letter, he also directed the Senior PI, Police Station, Borivali to ensure that
after taking the custody of the accused no.5Arun Dake he should be first
medically examined, that he should be kept in a separate room, that his
202
room should be guarded, that nobody should talk to to him and that if the
accused no.5Arun Dake desired he should be permitted to meet his
Advocate or friends, relative. The contents of the letter (Exh.1164)
corroborate the evidence of PW.122DCP Dr. Mahesh Patil on this point.
Further, the fact that he did not direct the Senior PI of the Police Station,
Borivali to depute any particular Officer for taking the custody of the
accused no.5Arun Dake from his Office shows that he was doing his work
impartially and without showing any favour to anybody.
261. In view of the letter (Exh.1164), PW.105PSI Suhas Naik was

deputed to take over the custody of the accused no.5Arun Dake from
PW.122DCP Dr. Mahesh Patil. Accordingly, after the necessary station
diary entry was made, he left for the Office of PW.122DCP Dr. Mahesh
Patil and after taking the custody of the accused no.5Arun Dake he first
got him medically examined in the Bhagvati Hospital, Borivali and then
returned to the Police Station, Borivali. After returning to the Police
Station, Borivali, he made the necessary station diary entry. Thereafter, as
per the instructions contained in the letter (Exh.1164), the accused no.5
Arun Dake was lodged in a separate lockup in the Borivali General lock
up, Borivali which was at a distance of about 500 to 700 meters from the
Police Station, Borivali. Further, he also instructed the concerned Officer
to keep the accused no.5Arun Dake under guard. This fact has been re
affirmed by him during his crossexamination. Thus, it can be seen that
complete caution and care was exercised by PW.122DCP Dr. Mahesh Patil
and PW.105PSI Suhash Naik.
262. It may be noted that from the answers given to question nos.265 &
266 of the statement recorded u/s.313(b) of Cr.P.C.,1973, it is clear that
the accused no.5Arun Dake has also admitted that his custody was taken
203
by PW.PSI Suhas Naik (though he does not remember the date) and that
he was then taken to the Bhagvati Hospital for his medical examination. It
may also be noted that from the answer given to question no.267 of the
statement recorded u/s.313(b) of Cr.P.C.,1973, it is clear that the accused
no.5Arun Dake has admitted that he was lodged in the Borivali General
lockup, Borivali. But at the same time, he has stated that he was kept
there along with 56 other persons. But there is no evidence to suggest
that he was kept in the lockup along with any other person(s).
263. It may also be noted that vide letter (Exh.1165) issued by PW.122
Dr. Mahesh Patil to the Senior PI, Police Station, Borivali, some of the
directions mentioned in the letter (Exh.1164) were reiterated and the
accused no.5Arun Dake was directed to be produced before him on
17/07/2011 at 09:30 am. From the evidence of PW.105PSI Suhas Naik, it
is clear that on 17/07/2011 at about 08:40 am, himself along with his
team again took the custody of the accused no.5Arun Dake, got him
medically examined in the Bhagvati Hospital, Borivali and then produced
the accused no.5Arun Dake before PW.122DCP Dr. Mahesh Patil. After
the accused no.5Arun Dake was produced before PW.122DCP Dr.
Mahesh Patil on 17/07/2011, he directed PW.105PSI Suhas Naik and his
team to go outside. Thereafter, only PW.122DCP Dr. Mahesh Patil and
the accused no.5Arun Dake were in his chamber. PW.122DCP Dr.
Mahesh Patil then called his stenographer inside his chamber. The record
(Exh.1162A page no.1) which was prepared by PW.122DCP Dr. Mahesh
Patil at that time corroborates his oral evidence in this regard.
264. It may be noted that from the answers given to question nos.269 &
270 of the statement recorded u/s.313(b) of Cr.P.C.,1973, it is clear that
the accused no.5Arun Dake has also admitted that on 17/07/2011, he
204
was first taken to the Bhagvati Hospital, Borivali for his medical
examination and from there he was taken to the Office of PW.122DCP Dr.
Mahesh Patil and was produced before him.
265. From the evidence of PW.122DCP Dr. Mahesh Patil, it is also clear
that on being asked by him, the accused no.5Arun Dake told him that the
time given to him for reconsidering his decision was sufficient and during
that period no Officer connected with this case had met him. Thereafter,
PW.122DCP Dr. Mahesh Patil again asked him whether he wanted to take
advice of his Advocate or any of his relative but the accused no.5Arun
Dake replied in the negative. He then cautioned the accused no.5Arun
Dake that there was no compulsion for him to make the confession but the
accused no.5Arun Dake told him that he was ready to make the
confession. When he again cautioned the accused no.5Arun Dake that the
confession could be used against him and that he could be convicted, the
accused no.5Arun Dake again told him that he was ready to make the
confession.
266. From the above, it can be clearly gathered that it was only after

PW.122DCP Dr. Mahesh Patil was fully satisfied that the accused no.5
Arun Dake wanted to make the confession voluntarily he decided to record
the same. The various steps taken by PW.122DCP Dr. Mahesh Patil were
in compliance with the provisions of Rule 4(5) of the MCOC Rules,1999.
The oral evidence of PW.122DCP Dr.Mahesh Patil is corroborated by the
record (Exh.1162B, pages 2 and 3).
267. It is also seen that immediately after the recording of the confession
Part2 (Exh.1162B), PW.122DCP Dr. Mahesh Patil prepared the
memorandum (Exh.1162C) as contemplated under Rule 3(6) of the
205
MCOC Rules,1999. After the process was over, the custody of accused
no.5Arun Dake was again handed over to PW.105PSI Suhas Naik and his
team who were called for. It is also seen that in compliance of section
18(5) of the MCOC Act,1999 PW.105PSI Suhas Naik was directed to
produce the accused no.5Arun Dake before the learned Chief
Metropolitan Magistrate, Esplanade on 18/07/2011 and in the meantime
to lodge him in the Borivali General lockup and on producing him before
the said Court to furnish the certified copy of the confession made by
accused no.5Arun Dake to the Court. The oral evidence of PW.122DCP
Dr. Mahesh Patil in this regard is duly corroborated by the letters
(Exh.1167, Exh.1168, Exh.1169). It may also be noted that from the
answers given to question nos.272, 273, 275, 276, 278 and 279 of the
statement recorded u/s.313(b) of Cr.P.C.,1973, it can also be said the
accused no.5Arun Dake has also admitted that after the proceedings of
the confession Part2 were completed, PW.122DCP Dr. Mahesh Patil
handed over the custody of the accused no.5Arun Dake and then he was
taken to the Borivali General lockup and lodged there and on
18/07/2011 he was produced before the Court of the Chief Metropolitan
Magistrate, Esplanade who recorded his statement (Exh.1617). Thereafter,
his custody was handed over to PW.143ACP Duraphe.
268. From the evidence of PW.122DCP Dr. Mahesh Patil, it can be seen
that while recording the confession Part2 made by the accused no.5Arun
Dake, he did not questions him on any aspect relating to this case. In
paragraph no.18 of his evidence, it has been brought on the record that
the confessions Part1 and Part2 were the correct and faithful record
about what had transpired between him and the accused no.5Arun Dake
on 15/07/2011 and 17/07/2011, that he had faithfully recorded whatever
the questions which he had asked the accused no.5Arun Dake and the
206
answers which were given by him, that he had recorded the questions in
the same format in which they were asked, that he had recorded the exact
answers which were given by the accused no.5Arun Dake and that he did
not make any change and that he recorded whatever the accused no.5
Arun Dake had said. These facts show that PW.122DCP Dr. Mahesh Patil
was conscious about his role as a Competent Officer. He was aware that
his duty was only to record whatever the accused no.5Arun Dake wanted
to say and not to interrogate him and thereby step into the shoes of the
Investigating Officer. This shows that the confession Part2 (Exh.1162B)
contains the statements which were voluntarily made by the accused no.5
Arun Dake and he recorded the same by adhering to the provisions of the
law and only after he was satisfied that the accused no.5Arun Dake
wanted to make the confession voluntarily. There is nothing to suggest
that the accused no.5Arun Dake was either pressurized or coerced to
make the confession or he was under duress or undue influence.
269. The fact that after the proceedings were completed, PW.122DCP

Dr. Mahesh Patil deleted the file which was in the Office computer shows
that he was impartial and uninfluenced by anybody as by immediately
deleting the said file from the Office computer any chance of tampering
with the contents of the confession made by the accused no.5Arun Dake
was ruled out. Thus, it has to be said that the confession made by the
accused no.5Arun Dake was voluntary.
270. In so far as the truthfulness of the confession made by the accused
no.5Arun Dake is concerned, it needs to be stated that the confession
made by the accused no.5Arun Dake discloses that many of the assertions
made by him are of personal nature. PW.122DCP Dr. Mahesh Patil would
not have known them unless the same were disclosed to him by the
207
accused no.5Arun Dake or somebody else. There is nothing to suggest
that any person other than the accused no.5Arun Dake could have given
such details. It is not the stand of the accused no.5Arun Dake that his
personal information which is recorded in the confession Part2 is
incorrect or false. Hence, it has to be said the confession made by the
accused no.5Arun Dake is voluntary and truthful.
271. During the crossexamination of PW.143ACP Duraphe, it was

brought on the record that in the remand applications which were filed by
the prosecution, it was not mentioned that the accused no.5Arun Dake
had shown his willingness to make the confession. There is no
requirement in law that such facts should be mentioned in the remand
application. The steps taken during the course of the investigation are
always mentioned in the case diary. That apart, had this fact been
mentioned in the remand application then there was every possibility that
the accused no.5Arun Dake could have been pressurized or coerced by
the accused nos.1 to 4, 6 and 7 not to make the confession as in the
confession the accused no.5Arun Dake has implicated them also.
272. It was submitted that as the confession was recorded when the
accused no.5Arun Dake was in Police custody, the same is not admissible
in view of section 25 of the Evidence Act,1872. The said submission has no
basis. The MCOC Act,1999 being a special Statute, the conditions specified
in section 18 of the MCOC Act,1999 and Rule 3 of the MCOC Rules,1999
will prevail over all the other general provisions of the law. There is
nothing in the MCOC Act,1999 or the Rules framed thereunder which bars
the recording of a confession when the accused is in Police custody. In
fact, in the case of Lal Singh V. State of Gujarat reported in AIR 2001
SC 746, the Hon'ble Supreme Court of India has observed that the
208
confessional statement is not rendered inadmissible on the ground that
accused was in Police custody. Also, in the case of State V. Nalini and
others reported in (1999) 5 SCC 253, the Hon'ble Supreme Court of
India has held that just because the confession was recorded a day or so
before the Police remand was to expire would not make the confession
involuntary.
273. The fact that the confession made by the accused no.5Arun Dake
was voluntarily is further clear from the general conduct of PW.122DCP
Dr. Mahesh Patil. In his crossexamination it was brought on the record
that till the time of deposing in this case he had recorded confessions on
two occasions including the one in the present case. He has clearly stated
that on the third occasion also an accused of another case was brought
before him for recording his confession but when that accused told him
that he was not ready to make the confession PW.122DCP Dr. Mahesh
Patil sent back that accused. Thus, it can be seen that PW.122DCP Dr.
Mahesh Patil was not only conscious of his duties but he was also
performing his duties honestly.
274. It was next submitted that as the Joint Commissioner of Police has
not been examined in this case, it is not clear as to when and to whom the
accused no.5Arun Dake first expressed his desire to make the confession
and therefore, the confession made by the accused no.5Arun Dake is not
free from suspicion. In this regard, if the evidence of PW.122Dr. Mahesh
Patil is seen then it will be clear that vide letter dated 13/07/2011 bearing
outward no.204/2011 issued to him by Shri Himanshu Roy Joint
Commissioner of Police (Crime) which was received by him on
14/07/2011, he was informed that the accused no.5Arun Dake was
desirous of making the confession and that he should record the same.
209
Having said this, in the case of State of Maharashtra V. Damu S/o
Gopinath Shinde reported in AIR 2000 SC 1691, the Hon'ble Supreme
Court of India has observed that the Investigating agency is not bound to
disclose the circumstances showing that the accused was willing to make
the confession. Similarly, in the case of Devender Pal Singh V. State
(NCT) of Delhi reported in (2002) 5 SCC 234, the Hon'ble Supreme
Court of India (Majority view) observed that prosecution is not required to
show why the accused wanted to make the confessional statement. For
ready reference, paragraph no.56 of the above judgment is reproduced
below:
“56. It has been pleaded that prosecution has failed to place any
material to show as to why accused would make a confessional
statement immediately on return to India. Acceptance of such a
plea would necessarily mean putting of an almost impossible
burden on the prosecution to show something which is within
exclusive knowledge of the accused. It can be equated with
requiring the prosecution to show motive for a crime. One
cannot normally see into the mind of another. What is the
emotion which impels another to do a particular act is not
expected to be known by another. It is quite possible that said
impelling factors would remain undiscoverable. After all, the
factors are psychological phenomenon. No proof can be expected
in all cases as to how mind of the accused worked in a particular
situation. Above being the position, learned trial judge has
rightly held the appellant to be guilty.”
275. In the same judgment, while dealing with the question of

presumption u/s.114 illustration (e) of the Evidence Act, 1872, the
Hon'ble Supreme Court of India has observed as under:
“.................A mere statement that requisite procedures and

safeguards were not observed or that statement was recorded
under duress or coercion, is really of no consequence. Such a
stand can be taken in every case by the accused after having
210
given the confessional statement. It could not be shown as to
why the officials would falsely implicate the accused. There is a
statutory presumption under section 114 of the Evidence Act
that judicial and official acts have been regularly performed. The
accepted meaning of section 114(e) is that when an official act
is proved to have been done, it will be presumed to have been
regularly done. The presumption that a person acts honestly
applies as much in favour of a Police Officer as of other persons,
and it is not judicial approach to distrust and suspect him
without good grounds therefor. Such an attitude can do neither
credit to the magistracy nor good to the public. It can only run
down the prestige of Police administration. [See Aher Raja
Khima v. State of Saurashtra [AIR 1956 SC217].”
276. It was then argued that the confession made by the accused no.5
Arun Dake is not voluntary as PW.122DCP Dr. Mahesh Patil never
informed him that the confession made by him could be used against the
coaccused of this case also and that the accused no.5Arun Dake was not
informed that if he did not wish to make a confession he would not be
sent to Police custody. The above submissions are required to be rejected.
There is no requirement under the MCOC Act,1999 or the MCOC
Rules,1999 that the Officer recording the confession is required to inform
the confessor that the confession can be used against the coaccused also.
Similarly, there is no requirement under the MCOC Act,1999 or the MCOC
Rules,1999 that the accused should be intimated that if he did not wish to
make a confession he would not be sent to Police custody.
277. It was argued that the confession made by the accused no.5Arun
Dake was not free from suspicion because though PW.103API Dewoolkar
deposed that on 15/07/2011 when he reached the Office of PW.122DCP
Dr. Mahesh Patil at 11:00 am along with his team he found that he was
not present in the Office and he returned to his Office at about 08:00 pm
after attending some proceeding in the Hon'ble High Court and in the
211
Office of the Commissioner of Police, PW.122DCP Dr. Mahesh Patil has
denied that on that day he was out of his Office for a long period of time.
It was urged that if PW.122DCP Dr. Mahesh Patil was already pre
occupied in the morning of 15/07/2011 he could have directed PW.143
ACP Duraphe to produce the accused no.5Arun Dake before him in the
evening. On the basis of the above, it was suggested that though PW.122
DCP Dr. Mahesh Patil was in his Office at around 11:00 am still the
accused no.5Arun Dake was not produced before him and instead he was
tortured and assaulted by PW.103API Dewoolkar during that time and
then he was produced before PW.103DCP Dr. Mahesh Patil at around
08:30 pm. The above submission has no basis. It is well settled that unless
there is evidence that the witness being Police Officers are hostile to the
accused, their evidence cannot be discarded. Public servants must be
presumed to act honestly and conscientiously and their evidence has to be
assessed on its intrinsic worth and cannot be discarded merely on the
ground that being public servants, they are interested in the success of
their case. In the present case, there is nothing to suggest that either
PW.103API Dewoolkar or PW.122DCP Dr. Mahesh Patil had any
animosity against the accused no.5Arun Dake. In fact, prior to
15/07/2011, PW.122DCP Dr.Mahesh Patil did not even know who the
accused no.5Arun Dake was. From the evidence of PW.103API
Dewoolkar it can be seen that after taking the custody of the accused no.5
Arun Dake on 15/07/2011 he directly went to the Office of PW.122DCP
Dr. Mahesh Patil. He did not go any where else. On finding that PW.122
DCP Dr. Mahesh Patil was not in his Office he kept the accused no.5Arun
Dake in the Office of the reader of PW.122DCP Dr. Mahesh Patil and
during the period 11:00 am to 08:30 pm he was with the accused no.5
Arun Dake in the Office of reader of PW.122DCP Dr. Mahesh Patil.
According to PW.103API Dewoolkar the name of the reader of PW.122
212
DCP Dr. Mahesh Patil was Shri Rane or Shri Sawant. It is not the stand of
the defence that no person by name Shri Rane or Shri Sawant worked in
the Office of PW.122DCP Dr.Mahesh Patil at that time. PW.103API
Dewoolkar has stated that during that period he did not go outside. He
has clarified that he had called for his lunch and tea there itself. He also
admitted that from 11:00 am to 08:30 pm the accused no.5Arun Dake
was kept in a veil. He has further stated that he had produced the accused
no.5Arun Dake before PW.122DCP Dr. Mahesh Patil immediately after
he came to his chamber at about 08:30 pm after being called by him.
Thus, till the arrival of PW.122DCP Dr. Mahesh Patil, he did not go
anywhere.
278. It may be noted that there is nothing on the record to indicate that
during the period from 11:00 am till around 08:30 pm when the accused
no.5Arun Dake was with PW.103API Dewoolkar, he was assaulted or
tortured by PW.103API Dewoolkar or any other Police Officer. In any
case, that was not possible even remotely as during that period there
would have been many other Officers in the Office of PW.122DCP Dr.
Mahesh Patil. Had PW.103API Dewoolkar tried to assault or torture the
accused no.5Arun Dake there then there was every possibility that
somebody might see him. He could not have taken such a risk.
279. At this stage, it is necessary to have a look at the stand taken by the
accused no.5Arun Dake on this point in his statement recorded
u/s.313(b) of Cr.P.C.,1973. The relevant questions and the answers given
by the accused no.5Arun Dake are reproduced below for reference:
“Q.261: It has come in the evidence of PW.103Tukaram

Dewoolkar that on 15/07/2011 he took you accusedArun
Janardhan Dake to the office of PW.122DCP Dr.Mahesh Patil
for recording your confession u/s. 18 of the MCOC Act. What do
213
you have to say about it ?
Ans.: It is true but I was tortured and assaulted. I was told that I
would be jailed for two years. I was told to cooperate. I was
also told that the Police would help my family.
Q.271: It has come in the evidence of PW.105Suhas Naik

that PW.122DCP Dr.Mahesh Patil told him and other Police
officers to stand outside the chamber. What do you have to say
about it ?
Ans.: It is not correct. As I did not sign any paper I was

assaulted. When I asked the documents for reading I was not
given.”
280. From the answers given by the accused no.5Arun Dake to the
questions put to him, it is quite clear that he has admitted that on
15/07/2011, he was produced before PW.122DCP Dr. Mahesh Patil by
PW.103API Dewoolkar. But what is important is that while giving answer
to the question no.261, he has stated that he was assaulted before he was
taken to the Office of PW.122DCP Dr. Mahesh Patil. But while giving
answer to question no.271, he changed his stand and stated that he was
assaulted in the chamber of PW.122DCP Dr. Mahesh Patil. Thus, the
accused no.5Arun Dake has taken contradictory stand with regard to
when he was allegedly assaulted. He has not given any reason as to why
he changed his stand. Therefore, in absence of any positive evidence to
suggest that the accused no.5Arun Dake was assaulted and in view of the
inconsistent stand taken by him it has to be said that his story about
assault is false.
281. It was next argued that the evidence of PW.103API Dewoolkar that
on 15/07/2011 when he took the accused no.5Arun Dake to the Office of
PW.122DCP Dr. Mahesh Patil in the morning is suspicious for the reason
214
that though he has deposed that at time, he was accompanied by Police
Naik Shri Hake and Shri Jagtap, the extract of the station diary entry
(Exh.891, 892) shows that on 15/07/2011, Police Naik Shri Hake (Buckle
no.5678) joined the duty at 09:45 am and at 10:00 am he went to the
Hon'ble High Court. On the basis of this, it was argued that PW.103API
Dewoolkar has falsely deposed that Police Naik Shri Hake had
accompanied him to the Office of PW.122DCP Dr. Mahesh Patil and
therefore, his evidence cannot be relied upon.
282. Let's assume for a moment that Police Naik Shri Hake did not
accompany PW.103API Dewoolkar to the Office of PW.122DCP Dr.
Mahesh Patil on 15/07/2011. But how does this fact affect the evidence of
PW.103API Dewoolkar that on 15/07/2011 in the morning he had
produced the accused no.5Arun Dake in the Office of PW.122DCP Dr.
Mahesh Patil? This Court is of the view that his evidence on this point is
not affected in any manner. In crossexamination, the fact that on
15/07/2011 he had taken to the accused no.5Arun Dake to the Office of
PW.122DCP Dr. Mahesh Patil in the morning itself was got reconfirmed
and it is immaterial as to who was the person who had accompanied him
to that office. Also, as stated earlier, in the statement of the accused no.5
Arun Dake which was recorded u/s.313(b) of the Cr.P.C.,1973 even he
has admitted that he was produced before PW.122DCP Dr.Mahesh Patil
on 15/07/2011. Therefore, the question as to who accompanied PW.103
API Dewoolkar to the office of PW.122DCP Dr.Mahesh Patil at that time
becomes inconsequential.
283. In so far as the evidence of PW.122DCP Dr. Mahesh Patil is

concerned, he has stated that he could not remember whether on
15/07/2011 after going to his Office he had any occasion to go out of his
215
office. He has also stated that “It did not happen that on that day, I had
gone out of my Office for a long period of time.” Now, what can be 'a long
period of time' is subjective. For one person, a period of 5 hours may be a
long period and for another even a period of half an hour may be a long
period. PW.122DCP Dr. Mahesh Patil was not specifically asked whether
on 15/07/2011, he had gone to the Hon'ble High Court for attending a
matter and to the Office of the Commissioner of Police. Nothing prevented
the learned Advocate for the accused no.5 from putting a direct question
to PW.122DCP Dr. Mahesh Patil on that point. Had a direct question been
asked, he would have given a direct answer. It is also interesting to note
that though PW.105PSI Suhas Naik was asked about the schedule of
meetings of PW.122DCP Dr. Mahesh Patil, no such question was put to
PW.122DCP Dr. Mahesh Patil. PW.105PSI Suhas Naik was no one to
make any statements as to how the meetings and appointments of
PW.122DCP Dr. Mahesh Patil were fixed as he was not working in his
office.
284. It was argued that the confession made by the accused no.5Arun
Dake is bad in law as the memorandum as contemplated by Rule 3(6) of
the MCOC Rules,1999 was not appended at the end of the confession Part
1 which was recorded on 15/07/2011. There is no substance in the said
argument. Rule 3(6) of the MCOC Rules,1999 does not contemplate
appending of any memorandum after the conclusion of the proceedings
confession Part1 which are undertaken in compliance of Rule 3(4) of the
MCOC Rules,1999.
285. It was next argued that the confession cannot be read in evidence as
in the memorandum (Exh.1163) it is not mentioned that the contents of
the confession Part1 are 'true and correct'. In this regard reliance was
216
placed upon the judgment in the case of State of Maharashtra V. Siraj
Ahmed Nisar Ahmed and ors. reported in AIR 2007 SC 1859. Again,
the said submission is without any basis. The perusal of Rule 3(6) of the
MCOC Rules,1999 will show that the certificate/memorandum is required
to be made after the confession is recorded under Rule 3(5) of the MCOC
Rules,1999 i.e. after the confession Part2 is recorded. In so far as the
judgment in the case of Siraj Ahmed Nisar Ahmed (supra) is concerned,
it was a case under the TADA Act,1987. In that case, the Hon'ble Supreme
Court of India observed that the certificate issued by the Police Officer
who recorded the confession of the accused therein was not in compliance
of Rule 15(3) (b) of the TADA Rules as there was no certification that the
statement was recorded in the presence and hearing of the Police Officer;
nor the statement was admitted to be correct by the accused; and that the
statement contained a full and true account of what was stated by the
accused. Such is not the case here. The perusal of the memorandum
(Exh.1163) which was prepared after the confession Part2 was recorded
shows that all the necessary compliances under the MCOC Act,1999 and
the MCOC Rules,1999 were made by PW.122DCP Dr. Mahesh Patil.
Therefore, the judgment in the case of Siraj Ahmed Nisar Ahmed (supra)
is of no use to the learned Advocate for the accused no.5.

286. It was then submitted that the failure on the part of PW.122DCP
Dr. Mahesh Patil to call for a detailed report regarding the place where the
accused no.5Arun Dake was lodged between 15/07/2011 to 17/07/2011,
the fact that he did not visit the Borivali General lockup between
15/07/2011 to 17/07/2011 and the fact that PW.122DCP Dr. Mahesh
Patil did not call for the extract of the lockup register and the lockup
movement register during the period from 15/07/2011 to 17/07/2011
casts a serious doubt about the fact that the accused no.5Arun Dake was
217
indeed lodged in a separate room in the Borivali General lockup. On the
basis of above, it was suggested that there was no free atmosphere for
reconsidering the decision to make the confession. The said submission
has no merit. Section 18 of the MCOC Act,1999 or Rule 3 of the MCOC
Rules,1999 does not cast a duty upon the Officer entrusted with the duty
of recording confession to call for any such report or to visit the place
where the accused is lodged for the purpose of reconsideration of his
decision to make the confession. The learned Advocate for the accused
no.5 also could not point out any other provision of law which casts such
duty upon the Officer who is entrusted with the duty of recording a
confession.
287. At this stage, it is necessary to state that the role of PW.122DCP Dr.
Mahesh Patil in this case was limited. He was only assigned the duty to
record the confession of the accused no.5Arun Dake if he had any desire
to give the same. After the accused no.5Arun Dake was brought to him on
15/07/2011 he gave him a period of more than 24 hours for enabling him
to reconsider his decision to make the confession. By issuing the necessary
letters and direction to PW.105API Suhas Shinde, the accused no.5Arun
Dake was directed to be lodged in a separate room in the General lockup,
Borivali and for producing the accused no.5Arun Dake before him on
17/07/2011. A further direction was issued that nobody should be
permitted to meet him during that period. Thus, he performed all the
ancillary acts which were reasonably expected from him.
288. As far as the fact that PW.122DCP Dr. Mahesh Patil did not call for
the extract of the lockup register and the lockup movement register is
concerned, there is no such requirement of the law. Also, if the accused
no.5Arun Dake had any grievance about the place where he was lodged
between 15/07/2011 to 17/07/2011 then nothing prevented him from
218
informing PW.122DCP Dr. Mahesh Patil about the same. Further, if the
defence had any real doubts about the lodging of the accused no.5Arun
Dake in the Borivali General lockup then it was always open for the
defence to call for the lockup register and the lockup movement register.
But that was not done.
289. It may also be stated that it has come in the evidence of PW.105API
Suhas Shinde that in view of the instructions of PW.122DCP Dr. Mahesh
Patil, on 15/07/2011 he had taken the accused no.5Arun Dake to the
General lockup, Borivali and lodged him in a separate room, kept him
under guard and the guards were told to ensure that no one should
contact the accused no.5Arun Dake. PW.105API Suhas Shinde left the
General lockup, Borivali only after he was satisfied that all the necessary
compliance was done. On 16/07/2011, he along with his team then
checked the room in which the accused no.5Arun Dake was lodged. He
had made the necessary station diary entries (ArticleX98 colly) in that
regard after returning to the Police Station, Borivali. The evidence of
PW.105API Shinde on this point is reliable. It is no doubt true that the
prosecution has not proved those station diary entries. But simply because
a station diary entry is not proved by prosecution or simply because the
lockup register or the lockup movement diary is not produced by the
prosecution, it does not mean that Court should draw inference that
substantive evidence in Court is not correct. Also, in crossexamination it
was brought on record that the memo regarding the removal and return of
the accused no.5Arun Dake from the lockup on 15/07/01 and
17/07/2011 was given to the lockup Officer. There is no reason to
disbelieve the evidence of PW.105API Suhas Shinde.
290. It was then argued that though from the evidence of PW.103API
219
Dewoolkar and PW.105API Suhas Naik it appears that the accused no.5
Arun Dake was referred to the Hospital on various occasions between
15/07/2011 to 17/07/2011 for his medical examination, none of his
medical reports were filed along with the chargesheet. On the basis of the
above, it was suggested that the medical reports were purposely not filed
as that would have shown that the accused no.5Arun Dake was tortured,
assaulted and pressurized to make the confession. It was also argued that
the station diary entries (Exh.889 colly) were manipulated to suit the case
of the prosecution and the same were not chronologically numbered. The
submissions made above have no basis. It needs to be stated that there is
no requirement under the MCOC Act,1999 or the MCOC Rules,1999 to
refer the accused for medical examination when he is in custody for the
recording of his confession. Further, the oral evidence of PW.103API
Dewoolkar and PW.105API Suhas Naik on the above points is reliable and
trustworthy. The same is corroborated by the station dairy entry (Exh.889
colly). Also, no explanation was sought from PW.143ACP Duraphe as to
why he did not file the medical reports of the accused no.5Arun Dake
when the same were with him. Therefore, only because the medical
reports of the accused no.5Arun Dake were not filed along with the
chargesheet it cannot be automatically assumed that the accused no.5
Arun Dake was subjected to torture, assault or pressure at any point of
time. That apart, if the accused no.5Arun Dake was really tortured &
assaulted and further assuming that the medical reports supported the
stand taken by the accused no.5Arun Dake then nothing prevented the
defence from calling upon the prosecution to produce the medical reports
of the accused no.5Arun Dake especially because such right was exercised
by the defence wherever required. But that was not done.
291. In so far as the station diary entries (Exh.889 colly) are concerned,
220
the Court cannot start with the presumption that the Police records are
untrustworthy. The station diary entries (Exh.889 colly) were marked as
exhibit as the learned Advocate for the accused no.5Arun Dake had
sought some explanation from PW.105API Suhas Shinde during his cross
examination. But, PW.105API Suhas Shinde clearly stated that the station
diary entries dated 17/07/2011 at Sr.nos.38, 43 and 56 (Exh.889 colly)
were not made by him. Therefore, he was not the person who could have
answered as to why the entries were not chronologically numbered. If the
learned Advocate for the accused no.5 wanted to make use of the above
mentioned station diary entries he ought to have taken steps to bring on
record the evidence to show that the above mentioned station diary
entries were manipulated. But, that was not done. Hence, in absence of
any positive evidence it cannot be said that those entries are manipulated.
292. At this stage, it may be stated that in the statement recorded

u/s.313(b) of Cr.P.C.,1973, the accused no.5Arun Dake has given the
following answer to the questions put to him with regard to his medical
examination.
“Q.266: It has come in the evidence of PW.105Suhas Naik
that thereafter, you accusedArun Dake was taken to the
Bhagvati Hospital for medical examination. What do you have
to say about it ?
Ans.: It is true. At that time, he told the Doctor to give a

favourable medical report but doctor declined and told him that
they should their personal hospital. The doctor told him that he
should be permitted to do his work and that the Police should
stand outside.
Q.269: It has come in the evidence of PW.105Suhas Naik
that on 17/07/2011 he alongwith two Police Constables and
Police Hawaldars took custody of you accusedArun Dake and
took you to the Bhagvati Hospital, Borivali for your medical
221
examination. What do you have to say about it ?
Ans.: I was taken to the Bhagvati Hospital for medical

examination on 23 occasions.”
293. From the above, it is clear that the accused no.5Arun Dake has
himself admitted that he was taken to the Hospital for his medical
examination. At the same time, he has also stated that when PW.105API
Suhas Shinde told the Doctor to give a favorable report, the Doctor told
him that he should be permitted to do his work. Now, if the medical report
was not tampered and if the case of the accused no.5Arun Dake that he
was assaulted and tortured is to be taken note of then this was all the
more reason for the defence to exercise its right of calling upon the
prosecution to produce the medical reports of the accused no.5Arun Dake
as that would have shattered the case of the prosecution about the
voluntary nature of the confession made by the accused no.5Arun Dake.
294. To further show the falsity of the claim made by the accused no.5
Arun Dake that he was assaulted, it is necessary to have a look at the
order dated 18/07/2011 passed below Remand application no.82/2011. It
may be noted that on that day, the accused no.5Arun Dake was produced
before the MCOC Court after he was produced before the Court of the
learned Chief Metropolitan Magistrate, Esplanade in compliance of section
18(5) of the MCOC Act, 1999. The order dated 18/07/2011 reads under:
“IN THE SPECIAL COURT NO.1
UNDER MCOC ACT AT GR.BOMBAY
REMAND APPLICATION NO.82 OF 2011
IN
C.R.NO. 57 OF 2011
222
State of Maharashtra (at the
instance of DCB CID) . ..Complainant
V/s.
1. Rohit Tangappan Joseph
@ Satish Kalya @ Sir
2. Anil Bhanudas Waghmode
3. Abhijeet Kashinath Shinde
4. Nilesh Narayan Shedge @ Bablu
5. Arun Janardan Dake
6. Mangesh Damodar Agavane @ Mangya
7. Sachin Suresh Gaikwad
8. Vinod Govardhandas Asrani
@ Vinod Chembur ...Accused
SPP D. M. Shah for the State.
Advs. Sejpal for accused nos.1 to 7 and Mr. S. M.Raj h/f.
Akhilesh Dubey for accused no.8.
CORAM : The Special Judge under MCOC Act
SHRI Y.D.SHINDE
DATE : 18th JULY, 2011 (C. R. No.57)
ORAL ORDER
1. The investigating officer prays for further police custody
of accused no.3, 4, 6 and 7 and judicial custody of accused no.
1, 2, 5 and 8. All accused are produced in veil before me. Except
accused no. 5, remaining accused have no complaint of ill
treatment at the hands of police. The accused no.5 submits that
he was tortured and his signature was taken forcibly. However,
on inquiry, he states that there are no visible injuries and he
sustained dumb injuries and was threatened that his family
members will be tortured. He submits that he was medically
examined on 15 and 17/7/2011 and he has stated the above
223
injuries to the doctor. Since, the accused no.5 submits that there
are no visible injuries, it is not necessary to send him for medical
examination. Similarly, the police are asking for his judicial
custody.
2. Grounds for seeking further police custody are for

investigating about the information given by the accused, to
arrest the wanted accused, to inquire about the persons who had
supplied weapons and money, to inquire deeply into the
intention behind the murder of the reporter J. Dey, to search for
independent witnesses who had seen the accused committing
the offence, to inquire about the mobile and global card used by
the arrested accused, to inquire about the contacts that the
accused made outside the country. In the last reason it is
mentioned that some confidential information is received and it
has to be verified from the accused no. 3, 4, 6 and 7. For these
reasons, the investigating officers prays for remanding them to
police custody.
2. Heard learned SPP D. M. Shah and learned advocates

Sejpal for the accused no.1 to 7. Perused case diary. It reveals
that the confidential information mentioned in the last ground is
received on 15/7/2011 and on subsequent days it is being
verified with the accused no. 3, 4, 6 and 7 but without much
success. In these circumstances, I am of the view that the police
deserve an opportunity for further custodial interrogation
insofar as the confidential information that is obtained by them
about the intention behind the murder of the reporter J. Dey.
Hence, I pass the following order:
ORDER
Remand Application No.82 of 2011 is allowed and
disposed off as follows :
A1 Rohit Tangappan Joseph @ Satish Kalya @ Sir, A2
Anil Bhanudas Waghmode, A5 Arun Janardan Dake and A8
Vinod Govardhandas Asrani @ Vinod Chembur are remanded to
judicial custody upto 22/7/2011.
A3 Abhijeet Kashinath Shinde, A4 Nilesh Narayan

Shedge @ Bablu, A6 Mangesh Damodar Agavane @ Mangya
and A7 Sachin Suresh Gaikwad are remanded to further police
custody upto 22/7/2011.
224

sd/
(Y.D.SHINDE)
Date : 18/07/2011 Special Judge under
MCOC Act.”
(Reproduced as it is. Underlining by this Court.)
295. From the above, the following facts become very clear:
(a) The accused no.5Arun Dake admitted that he was medically
examined on 15/07/2011 and 17/07/2011;
(b) Though the accused no.5 made a grievance that he was

tortured and his signature was taken forcibly, when the Court made
enquiry with him, he stated that there were no visible injuries, that he
sustained dumb injuries and that he was threatened that his family
members will be tortured. In view of his statement he was not sent for
medical examination by the Court.
(c) The accused no.5Arun Dake was represented before the

Court by an Advocate of his choice.
296. The only inference which can be drawn from the above is that the
grievance that on 15/07/2011 and 17/07/2011 the accused no.5Arun
Dake was not medically examined is false. The further grievance that the
accused no.5Arun Dake was assaulted and tortured also appears to be
false as he had himself stated before the Court that there were no visible
injuries on his body and that he had sustained dumb injuries. Had any
third degree force been used, then definitely there would have been marks
of injury on the person of the accused no.5Arun Dake. But, there was no
225
such mark. It is only because of the above statement made by the accused
no.5Arun Dake that the Court did not refer the accused no.5Arun Dake
for medical examination. Had the accused no.5Arun Dake been really
assaulted or manhandled then there was no reason for him not to request
the Court to send him for the medical examination. Thus, he avoided to
undergo medical examination. The fact that neither the accused no.5Arun
Dake nor his Advocate made any request to the Court for referring the
accused no.5Arun Dake for medical examination itself shows the falsity of
the claim made by the accused no.5Arun Dake. For this reason, the fact
that the accused no.5Arun Dake was not referred for medical examination
by the learned Chief Metropolitan Magistrate, Esplanade in compliance of
Section 18(6) of the MCOC Act, 1999 becomes insignificant.
297. It was next submitted that the case of the prosecution that the
custody of the accused no.5Arun Dake was handed over to PW.105API
Suhas Shinde on 15/07/2011 is suspicious as PW.105API Suhas Shinde
has admitted that the requisition (Exh.890) dated 14/07/2011 regarding
medical examination of the accused no.5Arun Dake was written by him. It
was argued that the custody of the accused no.5Arun Dake was already
taken on 14/07/2011 and he was assaulted and forced to make the
confession. It is a well settled rule of appreciation of evidence that the
Court should not draw any conclusion by picking up an isolated portion
from the testimony of a witness without adverting to the evidence as a
whole. This Court has gone through the entire evidence of PW.105API
Suhas Shinde. There is nothing suspicious in his evidence. Also, as
observed earlier, there is absolutely no evidence to suggest that the
accused no.5Arun Dake was assaulted or tortured at any time. It is no
doubt true that the requisition (Exh.890) is dated 14/07/2011. But no
explanation was sought from PW.105API Suhas Shinde about the date on
226
the requisition (Exh.890). Had any explanation been sought from him, the
this Court would have considered whether the explanation was reasonable
or not. Also, it is not the stand of the accused no.5Arun Dake that on
14/07/2011 he was in the custody of PW.105API Suhas Shinde and he
was the person who assaulted or tortured him. Otherwise, he would have
definitely made a complaint in that regard to PW.122DCP Dr. Mahesh
Patil when he was produced before him on 15/07/2011. Further, it is
quite possible that while writing the date on the requisition (Exh.890),
PW.105API Suhas Shinde may have inadvertently written the date as
“14/07/2011” instead of “15/07/2011”. This can happen to anyone. Such
errors are not unusual. Therefore, taking overall view of the evidence of
PW.105API Suhas Shinde this Court is not inclined to read much into the
date of the requisition (Exh.890).
298. It was argued by the learned Advocate for the accused nos.1,6 and 7
that in order to avoid any suspicion, PW.122DCP Dr. Mahesh Patil ought
to have recorded the confession made by the accused no.5Arun Dake on
any mechanical device as provided under Rule 3(7) of the MCOC
Rules,1999. The perusal of Rule 3(7) of the MCOC Rules,1999 will show
that it is not mandatory to record all the confessions by using mechanical
device. It is only optional. An Officer recording the confession may choose
such mode for recording the confession with which he is most
comfortable. Hence, just because PW.122DCP Dr.Mahesh Patil has not
recorded the confession made by the accused no.5Arun Dake in the mode
as desired by the learned Advocate for the accused nos.1,6 and 7 will not
make the confession made by the accused no.5Arun Dake involuntary.
299. It was next argued that the possibility of the confession Part2
already being prepared prior to 17/07/2011 cannot be ruled out as from
227
the evidence of PW.122DCP Dr. Mahesh Patil it appears that he was

provided with the relevant extract of the MCOC Rules (Exh.1182) much
prior to 17/07/2011. The above submission does not deserve any
comment. But as a question is raised it has to be answered. PW.122DCP
Dr. Mahesh Patil has clearly deposed that the extract of the MCOC
Rules,1999 (Exh.1182) which was annexed to the letter (Exh.1170) was
sent to him by PW.143ACP Duraphe along with the letter (Exh.1170).
Now, the letter (Exh.1170) was issued by PW.143ACP Duraphe on
28/07/2011 i.e. much after the confession of the accused no.5Arun Dake
was recorded. That letter was issued by him to PW.122DCP Dr. Mahesh
Patil requesting him to furnish a copy of the confession made by the
accused no.5Arun Dake for which he was entitled under Rule 3(8) of the
MCOC Rules,1999. Further, PW.143ACP Duraphe was not questioned on
this point in crossexamination. Therefore, by any stretch of imagination it
cannot be accepted that the extract (Exh.1182) was sent to PW.122DCP
Dr. Mahesh Patil even before 17/07/2011. Even if it assumed that the
extract (Exh.1182) of the MCOC Rules, 1999 was sent to PW.122DCP
Dr.Mahesh Patil prior to 17/07/2011, the defence has not explained as to
how it has affected the voluntary nature of the confession made by the
300. It was next argued that the failure on the part of PW.122DCP Dr.
Mahesh Patil to make enquiry about the date and place of the arrest of the
accused no.5Arun Dake, about the time since when he was in Police
custody, not examining his body or not asking him whether he was
medically examined also casts a serious doubt about the voluntary nature
of the confession made by the accused no.5Arun Dake. The said
submission has no basis. As stated earlier, the only role of PW.122DCP
Dr. Mahesh Patil in this case was to record the confession made by the
228
accused no.5Arun Dake if he was willing to make it. He was required only
to follow the provisions of section 18 of the MCOC Act,1999 and Rule 3 of
the MCOC Rules,1999 while recording the confession of the accused no.5
Arun Dake. The law does not cast such duty on the Officer before whom
an accused is produced for recording confession. Therefore, the alleged
failure on the part of PW.122DCP Dr. Mahesh Patil to make enquiry as
suggested by the defence does not affect the case of the prosecution
especially because he was already briefed about the necessary facts when
the accused no.5Arun Dake was produced before him on 15/07/2011 by
PW.103API Dewoolkar.
301. It was also argued that many of the statements made by PW.122
DCP Dr. Mahesh Patil in his examinationinchief do not find place in the
confession Part2. It was argued that the fact that while on one hand
PW.122DCP Dr. Mahesh Patil has deposed that he recorded whatever the
accused no.5Arun Dake had told him, on the other hand he has admitted
that some of the facts which were deposed by him in the Court did not
find place in the confession Part1 and 2. It was thus, submitted that in
view of the omissions, the confession made by the accused no.5Arun Dake
cannot be relied upon. The above submission does not have any basis. The
confession Part2 is not the previous statement made by PW.122DCP Dr.
Mahesh Patil. It is the voluntary statement made by the accused no.5Arun
Dake to him. Therefore, it cannot be used to shake the evidence of
PW.122DCP Dr. Mahesh Patil in that sense. Further, it cannot be
forgotten that there is bound to be substantial difference in the vocabulary
and understanding of PW.122DCP Dr.Mahesh Patil and the accused no.5
Arun Dake. Such variations are there because there are always natural
differences in the faculties of different individuals in the matter of
observation, perception and memorization of the details. Therefore, just
229
because while deposing PW.122DCP Dr.Mahesh Patil has stated a few

words as per his understanding/perception, his evidence cannot be
discarded especially when it is proved that PW.122DCP Dr. Mahesh Patil
had complied with the all the requirements of the law regarding the
recording of the confession made by the accused no.5Arun Dake. That
apart, it is well settled that the Officer who has recorded he confession is
not required to repeat the contents of the statements made by the accused.
Through the evidence of PW.122DCP Dr. Mahesh Patil the only thing
which is required to be ascertained is whether there was compliance of the
provisions of section 18 of the MCOC Act,1999 and Rule 3 of the MCOC
Rules,1999. Once that is proved, the statements made in the confession
can be used as substantive evidence. In the present case, as stated earlier,
the prosecution has proved that while recording the confession made by
the accused no.5Arun Dake all the requirements under the MCOC
Act,1999 and the MCOC Rules,1999 were complied with. Hence, the
objection as raised cannot be sustained.
302. There is a small discrepancy as to whether after the confession Part
2 was recorded the contents of the same were read over to the accused
no.5Arun Dake or the accused no.5Arun Dake read the same himself.
But, what is important is whether the accused no.5Arun Dake
understood/was made to adequately understand the contents of the
confession before he attested the same. It may be noted that no stand was
taken during the crossexamination of PW.122DCP Dr. Mahesh Patil that
the signatures on the confession Part1 & 2 were not of the accused no.5
Arun Dake or that the accused no.5Arun Dake signed the same without
understanding its contents or that the accused no.5Arun Dake was not
made to understand the contents of the same and in absence of the same
no value can be attached to the alleged discrepancy.
230
303. It was next argued that the memorandum (Exh.1162C) which was
prepared in compliance of Rule 3(6) of the MCOC Rules,1999 was invalid
as it was prepared on a separate page and not 'at the end' of the
confession and as such the confession cannot be read in evidence. There is
no merit in the submission. It is no doubt true that the memorandum
(Exh.1162C) is printed on a separate page and it is not technically 'at the
end' of the confession Part2. But PW.122DCP Dr. Mahesh Patil has
explained this by stating that the printout of the memorandum (Exh.1162
C) was taken on a separate page as he felt that it would not fit in the space
which was available at page no.10 (last page) of the confession. It is no
doubt true that one may say that the starting part of the memorandum
(Exh.1162C) could have been typed on the last page of the confession
Part2 and it the contents did not fit in that page then the remaining
contents of the memorandum could have been typed on the next page. But
in absence of any evidence to the contrary merely because the entire
memorandum was typed on a separate page, it does not wash away the
satisfaction which was arrived at by PW.122DCP Dr. Mahesh Patil about
the voluntary nature of the confession made by the accused no.5Arun
Dake more so for the reason that the prosecution has proved that PW.122
DCP Dr. Mahesh Patil had followed the provisions of section 18 of the
MCOC Act,1999 and Rule 3 of the MCOC Rules,1999 while recording the
confession made by the accused no.5Arun Dake.
304. Another aspect which shows the voluntary nature of the confession
made by the accused no.5Arun Dake are his signatures on the confession
Part1 & 2. If one sees his signatures, it will be clear that the style in which
they are made are almost identical. Had somebody forged the signatures
of the accused no.5Arun Dake or had the accused no.5Arun Dake been
231
under any kind of pressure or tension at that time, then definitely there
would have been variation in the signatures as normally if a person is
under any pressure or tension or is coerced to write or sign against his
wishes, then it does affect his handwriting. But no such thing is seen in the
case of the accused no.5Arun Dake.
305. It may be noted that the accused no.5Arun Dake was not produced
before the learned Chief Metropolitan Magistrate, Esplanade on
17/07/2011 in compliance of the provisions of section 18(5) of the MCOC
Act,1999. But he was produced before the said Court on the next day. It is
no doubt true that as per section 18(5) of the MCOC Act,1999, the person
whose confession is recorded is required to be produced before the
learned Chief Metropolitan Magistrate without reasonable delay. In the
present case, the proceedings of the confession Part2 were completed at
about 02:20 pm. But 17/07/2011 was Sunday and the regular Courts are
closed on Sundays. Therefore, he could not have been produced before the
learned Chief Metropolitan Magistrate on that day. It is true that the
Holiday Courts are always working. But as stated earlier, the proceedings
were completed at around 02:20 pm. The Office of PW.122DCP Dr.
Mahesh Patil was located at Borivali. It takes about one hour to reach the
Court of learned Chief Metropolitan Magistrate, Esplanade from there.
Therefore, by the time they would have reached the Holiday Court even
the working hours of the Holiday Court would have been over. Then the
only option would have been to produce the accused no.5Arun Dake at
the residence of the learned Chief Metropolitan Magistrate. But it may be
noted that it is the case of the defence itself that the news about the
murder of J.Dey was given wide publicity and the entire media was
keeping an eagles eye over the developments of this case. Therefore,
considering the huge publicity given to this case by the electronic and
232
print media, the production of the accused no.5Arun Dake at the

residence of the learned Chief Metropolitan Magistrate would have
created a chaos. It has been brought on the record that after the murder of
J.Dey, many morchas/processions were taken out by various groups.
Under such circumstances, had the accused no.5Arun Dake been
produced before the learned Chief Metropolitan Magistrate at his
residence then it would have not only endangered the safety and security
of the accused no.5Arun Dake but also the safety and security of other
inmates of the building where the learned Chief Metropolitan Magistrate
was residing. Therefore, the explanation given by PW.122DCP Dr.Mahesh
Patil on this point needs to be accepted.
306. It was then argued by the learned Advocate for the accused nos.1,6
and 7 that the defence was prejudiced as the copies of the some of the
internal correspondence which had taken place between PW.122DCP Dr.
Mahesh Patil and the other Police Officers with regard to the confession
made by the accused no.5Arun Dake were not filed along with the
chargesheet and that some of the letters exchanged by them were
produced by PW.122DCP Dr. Mahesh Patil during the course of his
evidence. The submission has no basis. The word 'prejudice' is often used
loosely during the course of the arguments without understanding its
actual meaning. In Black's Law Dictionary, Eight Edition, the word
'prejudice' is defined to mean damage or detriment to one's legal rights or
claims. In so far as the present case is concerned, it is not the law that
each and every document regarding the correspondence which was made
by the Officers should be filed along with the chargesheet. Further, the
Investigating Officer is not obliged to anticipate all possible defence that
may be taken and file all the correspondence which had taken place
between the Officers. Also, though a claim of 'prejudice' was made no
233
argument was advanced on what damage was caused to the defence due
to the nonfiling of the copies of some correspondence which had taken
place between the Officers. That apart, the letters (ArticleX200,
Exh.1164, 1165, 1167 and 1171) were called for from PW.122DCP
Dr.Mahesh Patil by the learned SPP for better understanding of the events
which had taken place at the time of recording of the confession made by
the accused no.5Arun Dake. The defence was given full opportunity to
crossexamine PW.122DCP Dr. Mahesh Patil and without any riders.
Therefore, there was no question of any prejudice being caused to the
defence. Also, if required, the above letter could have been called by this
Court itself by exercising its power u/s.165 of the Evidence Act,1872 and
had it been done so, then the right of the defence to crossexamine
PW.122DCP Dr. Mahesh Patil on those letters would have be subject to
the leave of the Court. The Court may or may not have granted such leave.
Hence, there is no question of any prejudice to the defence as unfettered
right was conferred upon the defence to crossexamine PW.122DCP Dr.
Mahesh Patil on each and every point.
307. It was next argued that the accused no.5Arun Dake wanted to give
his 'statement' and not 'confessional statement' before PW.122DCP Dr.
Mahesh Patil. Interestingly, this argument was made by the learned
Advocate for the accused nos.1,6 and 7 and not on behalf of the accused
no.5Arun Dake whose confession was recorded. One wonders how the
learned Advocate for the accused nos.1,6 and 7 came to know about this
as the said information could have been given by the accused no.5Arun
Dake to his Advocate only as it was a privileged communication. Anyway,
the said argument has no basis. The prosecution has duly proved that the
accused no.5Arun Dake had made confessional statement before PW.122
DCP Dr. Mahesh Patil. Under the MCOC Act,1999 PW.122DCP Dr.
234
Mahesh Patil was empowered to record a confession and not a general
statement of the accused. Further, when the accused no.5Arun Dake was
produced before PW.122DCP Dr. Mahesh Patil he was cautioned on more
than one occasion that if he makes the statement he could be punished on
the basis of the same. It is not the stand of the accused no.5Arun Dake
that he was not in a position to understand what was being recorded.
Also, as stated earlier, after the confession was recorded, he was produced
before the Chief Metropolitan Magistrate, Esplanade on 18/07/2011 and
then before the MCOC Court on the same day and on subsequent dates for
the purposes of remand. But he never made any grievance on this point.
That was also not a ground for retraction of the same. Therefore, the said
argument needs to be rejected.
308. It was argued by the learned Advocate for the accused nos.1,6 and 7
that a ready made confession was prepared to specifically suit the case of
the prosecution. It was contended that in the press conference which was
held on 27/06/2011, the modus operandi of the crime was publicly
declared by PW.149CP Arup Patnaik & the Joint Commissioner of Police
and the confessional statement of the accused no.5Arun Dake was
prepared accordingly to suit the case of the prosecution. The submission is
too far fetched. Whenever allegations of such type are made, they must
necessarily be supported by some kind of evidence. But, there is absolutely
nothing on the record from which it can be even prima facie gathered that
any such thing might have happened. PW.149CP Arup Patnaik was cross
examined by the defence on the point of press conference which was held
on 27/06/2011. The relevant portion of his crossexamination is being
reproduced below:
“16. It is true to say that I had stated that J.Dey was my friend.
235
I cannot say whether there any lead was received in the

investigation as I was not conducting the investigation. I was
briefed at the time of press conference. To the best of my
knowledge, I did not declare the names of any accused of this
case as the culprits. I do not remember whether the Jt.
Commissioner of Police (Crime) had stated in my presence that
the accusedChhota Rajan was involved in this case. I do not
remember whether the role of each accused was also disclosed
by him in my presence. (At this stage, ld. Adv. Mr. Deshpande
seeks permission to play a video clip which is downloaded and
stored in his laptop. According to ld. Adv. Mr. Deshpande, in the
said video clip the witness is shown to be briefing the media
after some of the accused were arrested. Ld. SPP Mr. Gharat
submits that the laptop be taken into the custody of the Court
till the decision of the case as the video clip is downloaded and
stored in the harddisk of the laptop. Adv. Mr. Deshpande also
submits that the custody of his laptop may be taken by the Court
and it be returned after the trial is over. The request is accepted.
The custody of the silver colored HP laptop bearing model
no.HP Pavilion X 360 Convertible PC be taken and it be marked
as Article292.). At the request of ld. Adv. Mr. Deshpande, the
video clip namely 'India today commissioner press conference' in
the VLC media file format having duration of 09:53 (nine
minutes and fifty three seconds) and size of 44.0 MB located in
the subfolder 'j.dey News report' in folder'j.dey case folder'
stored and saved in (Location C:\Users\Santosh
Deshpande\Desktop) is played in the open Court. It is true to
say that I had given the interview which is played now. It is true
to say that the interview also contains the voice of the Jt.
Commissioner of Police (Crime branch) Shri. Himanshu Roy. It
is true to say that in a same press conference Shri. Himanshu
Roy had briefed about the operation. Witness now states that he
is admitting entire video clip. In view of the same, the video clip
'India today commissioner press conference' in the VLC media
file format is marked as Exh.1494. It is not true to say that I
have issued the sanction order mechanically. It is not true to say
that there was no evidence to show that there was any
conspiracy to commit the murder of J.Dey. It is not true to say
that as J.Dey was my friend I had mechanically issued the
sanction order. (The HP laptop (Article292) be kept in a
sealed condition.).”
236
309. From the above, it is clear that when PW.149CP Arup Patnaik
admitted the contents of his statements made in the press conference
which was held on 27/06/2011, his crossexamination on that point was
stopped. No question was put to him suggesting that the confession of the
accused no.5Arun Dake was prepared in accordance with the statements
made by him and the Joint Commissioner of Police in the said press
conference. This itself shows the falsity of the stand taken by the defence.
That apart, the statements made in a press conference have little value
and cannot be treated as substantive evidence. At the most they may be
used to contradict a witness in the Court. But that was also not done in
this case.
310. Let's assume for a moment that the argument made by the learned
Advocate for the accused nos.1,6 and 7 is correct. Then the question which
arises for consideration is as why the Investigating Agency would prepare
the confession of the accused no.5Arun Dake only. Admittedly, at the
relevant time, not only the accused no.5Arun Dake but also the accused
nos.1 to 4,6 and 7 were in Police custody. The accused no.1Rohee
Tangappan Joseph @ Satish Kalya was the person who actually fired five
bullets at J.Dey. He had a history of being involved in other serious cases.
Had there been any illintention, then nothing prevented the Investigating
Agency from preparing a tailor made confession in the name of the
accused no.1Rohee Tangappan Joseph @ Satish Kalya and also include
the name of the accused no.12Chhota Rajan in it to make its case full
proof. Also, the Investigating Agency had an opportunity to prepare a
confession in the names of the accused nos.2 to 4,6 and 7 also to further
strengthen its case. But that was not done. Thus, it cannot be said that the
confession made by the accused no.5Arun Dake is a product of collusion
between Investigating Agency and PW.122DCP Dr. Mahesh Patil.
237
311. It may also be noted that the perusal of the confession made by the
accused no.5Arun Dake will show that he had signed the same in
Marathi. However, in the several Miscellaneous applications which were
filed by him and Vakalatnamas [For example application Exhs. 79, 110,
142, 189, 459, 471, 483, 484, 485, 559 and Vakalatnamas Exhs.142, 277]
which were filed on his behalf before this Court at the stage of remand
and also during the course of the trial he had signed those applications/
Vakalatnamas in English. The only inference which can be drawn from the
signatures made by him in English on the various applications filed by him
and on the vakalatnamas which were filed on his behalf is that he was
signing the same in English consciously to create as picture that he could
not sign in Marathi. But unfortunately, he has failed in that attempt.
312. It may also be noted that when the accused no.5Arun Dake was
produced before the learned Chief Metropolitan Magistrate, Esplanade on
18/07/2011, while retracting the confession he made a statement that the
confession Part1 & 2 do not bear his signature. However, on the same
day, when he was produced before the MCOC Court, he stated that he was
forced to sign on the confession Part1 & 2. Considering the self
contradictory stand taken by the accused no.5Arun Dake before two
Court on the same day, it is quite clear that he was speaking lies and the
only conclusion which can be drawn is that the confession Part1 & 2 bear
his signature and the same were made by him voluntarily.
RETRACTION OF CONFESSION BY THE ACCUSED NO.5ARUN DAKE.
313. As per the defence, the confession made by the accused no.5Arun
Dake needs to be discarded as the accused no.5Arun Dake had retracted
the same immediately on being produced before the learned Chief
238
Metropolitan Magistrate, Esplanade on the ground that it was not

recorded as per his narration, it was not read over to him, the confession
did not bear his signatures, he did not know its contents and that the
Police assaulted him and threatened him that they would illtreat his
family.
314. Confessions made are usually retracted. As a matter of practical

knowledge it can be said that nonretracted confession is a rarity in
criminal cases. To retract from confession is the right of the confessor.
However, it does not mean that the confession so made should be
discarded just because it is retracted later on. It is the duty of the Court to
evaluate the evidence regarding the confession by looking at all aspects.
The twin test of a confession is to ascertain whether it was voluntary and
true. Once those tests are found to be positive the next endeavour is to see
whether there is any other reason which stands in the way of acting on it.
Even for that, retraction of the confession is not the ground to discard the
confession and a retracted confession can form the legal basis of a
conviction if the Court is satisfied that it was true and was voluntarily
made. In this regard, the learned SPP has rightly relied upon the judgment
in the case of State of Tamil Nadu V. Kutty @ Lakshmi Narsimhan
reported in AIR 2011 SC 2778.
315. In so far as the present case is concerned, the prosecution has

already proved that the confession (Exh.1162, 1162A,1162B) made by
the accused no.5Arun Dake was voluntary and truthful. Therefore, onus
now shifts upon the accused no.5Arun Dake to show that the confession
(Exh.1162, 1162A,1162B) was not voluntary and truthful. In this regard,
it is necessary to note that during the crossexamination of PW.105PSI
Suhas Naik a suggestion was given to him on behalf of the accused no.5
239
Arun Dake that he was never produced before the Court of the learned
Chief Metropolitan Magistrate, Esplanade. This suggestion was denied.
Now, if the case of the accused no.5Arun Dake that he was not produced
before the Court of the learned Chief Metropolitan Magistrate, Esplanade
on 18/07/2011 is to be accepted then he has not explained as to how he
made the retraction before the said Court on 18/07/2011.
316. The stand of the accused no.5Arun Dake is that he was assaulted
and tortured. But, the accused no.5Arun Dake has not given the exact
date on which he was assaulted and by whom he was assaulted. Similarly,
he has not even stated which Police Officer had threatened to illtreat his
family and when exactly such threat was given. If the allegations were
true, then the accused no.5Arun Dake ought to have given the details
about the same. Further, it has already been discussed in detail above as
to how the stand taken by the accused no.5Arun Dake that he was
assaulted and tortured is nothing but an afterthought. It is not necessary
to discuss the same again.
317. The hollowness of the retraction made by the accused no.5Arun

Dake is further apparent from the fact that when he was produced before
the learned Chief Metropolitan Magistrate, Esplanade he claimed that the
confession did not bear his signature. But, on the same day when he was
produced before the MCOC Court, he claimed that his signatures were
forcibly taken on the confession. The selfcontradictory stand taken by the
accused no.5Arun Dake is sufficient to infer that the retraction is nothing
but an afterthought.
318. Relying upon the judgment in the case of Aloke Nath Dutta and

ors. V. State of West Bengal reported in (2007) 12 SCC 230, the
240
learned Advocate for the accused nos.3 and 4 contended that as the
confession made by the accused no.5Arun Dake was retracted, the same
cannot be used unless the Court is satisfied that the confession was true,
voluntary and corroborated on material points. This Court has gone
through the above judgment. There can be no dispute regarding the
proposition of law as stated in that judgment. However, in so far as the
facts of the present case are concerned, it is very much clear that the
confession made by the accused no.5Arun Dake was voluntary and
truthful. PW.122DCP Dr. Mahesh Patil had taken all the precautions
which are necessary under the MCOC Act, 1999 and the MCOC Rules,
1999 while recording the confessions made by the accused no.5Arun
Dake. In view of the provisions of section 18 of the MCOC Act,1999, the
said confession is a substantive evidence even against the coaccused who
are charged and tried together with the maker of the confession. In so far
as the retraction of the confession made by the accused no.5Arun Dake is
concerned, as stated earlier, it is nothing but an afterthought. Hence, the
confession made by the accused no.5Arun Dake can be used against the
coaccused even without corroboration and the judgment in the case of
Aloke Nath Dutta (supra) will not help the accused nos.3 and 4.
319. The learned Advocate for accused no.5 relied upon the judgment in
the case of Parmananda Pegu V. State of Assam reported in (2004) 7
SCC 779 and submitted that as the confession made by the accused no.5
Arun Dake was retracted the same cannot be used unless it is proved by
the prosecution that all the necessary statutory precautions were taken by
PW.122DCP Dr. Mahesh Patil before the confession was recorded. This
Court has gone through the above mentioned judgment. The said
judgment relates to a confession recorded u/s.164 of Cr.P.C.,1973 and not
under the provisions of the MCOC Act, 1999. In view of the judgment in
241
the case of S.N. Dube (supra), PW.122DCP Dr.Mahesh Patil was required
to take the precautions contemplated under the MCOC Act, 1999 and the
MCOC Rules, 1999. The prosecution has already proved that he had taken
the necessary precautions. Therefore, the judgment in the case of
Parmananda Pegu (supra) is of no use to the case of the accused no.5
Arun Dake.
320. The learned Advocate for the accused nos.1,6 and 7 relied upon the
judgment in the case of Arup Bhuyan V. State of Assam reported in AIR
2011 SC 957 to contend that a confession is a very weak kind of evidence
and are usually obtained by the Police by use of third degree methods and
that the Courts should be hesitant to act upon it without corroboration.
The said judgment is not applicable to the present case. Under the MCOC
Act,1999 a confession is a substantive piece of evidence not only against
the maker of the same but also against the coaccused who is charged and
tried together with the maker of the confession. Further, the prosecution
has already proved that the confession made by the accused no.5Arun
Dake was voluntary and truthful and the same was recorded by PW.122
DCP Dr.Mahesh Patil who was totally unconnected with the investigation
of this case.
321. From the above, it is clear that the confession made by the accused
no.5Arun Dake was voluntary and truthful. At the same time, it is also
clear that the retraction of the same was nothing but an afterthought.
Therefore, the said retraction is required to be ignored.
CONFESSION MADE BY THE ACCUSED NO.9DEEPAK SISODIYA.
322. As per the prosecution, the accused no.9Deepak Sisodiya was
arrested on 17/07/2011 and on 02/08/2011 and 03/08/2011, he made
242
the confession before PW.124DCP Dr. Cherring Dorje. The gist of the
confession made by the accused no.9Deepak Sisodiya is as follows:
In July 1993, a case of kidnapping was registered against him at
Haldvani and he used to attend the Court for that matter.
In the year 1999, he had an altercation with one Devendra

Singh. During that incident, Devendra Singh had fired three
bullets on his right leg from a firearm. To save himself he
jumped from a height of 150 meters. After the incident he was
admitted in a hospital. As he had received severe injury on his
right leg, it was amputated. When he was in the Sobansigh Jina
hospital, the Police came to arrest him as there was an
allegation against him that he tried to commit murder of
Devendra Singh by using firearm. He also lodged an FIR against
Devendra Singh.
In the year 1999, some members of the gang of the accused
no.12Chhota Rajan had committed a murder and in that case,
the Police had arrested one Raju Rawat, Shekhar Uprati,
Sukhwinder Singh @ Sukha, Sheriram who was the brother of
Danny Nepali, Premram who was the brotherinlaw of Danny
Nepali and they were the members of the gang of accused
no.12Chhota Rajan. They were also being produced in the
Court at Haldvani. On the dates of their case, Danny Nepali,
Nainsingh Bista (wanted accused no.1) and Bunty Pande used to
come to the Court to meet them. Therefore, he also came in
contact with them. Danny Nepali introduced him to Farid
Tanasha who was residing at Mumbai. Farid Tanasha used to
speak to him on mobile phone.
In the year 2001, Farid Tanasha contacted him and told him that
the relations between the accused no.12Chhota Rajan with
Bunty Pandey (gang member) were not cordial. Farid Tanasha
also made the accused no.9Deepak Sisodiya listen a recorded
conversation between Bunty Pandey and one Sanjay Jat. From
the recorded conversation he gathered that Devendra Singh had
given money to Bunty Pandey for committing his murder.
243
In the year 2002, Police arrested Devendra Singh in connection
with the firing incident which had taken place in the year 1999.
Devendra Singh was lodged in the jail for six months and after
he was released, both of them settled their dispute.
In October 2002, the Police raided his house and seized ten
thousand bottles of liquor. But before the Police entered his
house, he escaped from the back door. In this connection, his
father was arrested. He obtained anticipatory bail.
In October 2006, the State Government revoked the license of
his father for running sand quarry. Therefore, he started that
business on his own. At that time, the wanted accused no.1
Nayansingh Bista worked as his bodyguard for about two
months.
In February 2007, his sand quarry license was suspended by the
District Collector as a result of which he closed down his
business.
In April 2007, he came in contact with one Sahil through Danny
Nepali. He was informed by Danny Nepali that Sahil was a
special man (Khas aadmi) of the accused no.12Chhota Rajan. In
due course of time, the accused no.9Deepak Sisodiya and Sahil
became close friends. Sahil used to contact him on his mobile
phone.
In the year 2009, Sahil stayed in the house of the accused no.9
Deepak Sisodiya at Haldvani for four days. At that time, when
he told Sahil that he had many enemies at Haldvani, Sahil told
him that he will brief the accused no.12Chhota Rajan about it.
In September 2010, he again got the license of sand quarry from
the Government. During that period, the accused no.12Chhota
Rajan contacted him on his phone and at that time, he told the
accused no.12Chhota Rajan about the contract received by him.
He also told the accused no.12Chhota Rajan that he wanted a
bodyguard and on that the accused no.12Chhota Rajan
244
promised to send a daring bodyguard for him. After some days,
the accused no.1Rohee Tangappan Joseph @ Satish Kalya came
to his house and told him that the accused no.12Chhota Rajan
had sent him. The accused no.1Rohee Tangappan Joseph @
Satish Kalya told him that the accused no.12Chhota Rajan had
sent him for working as his bodyguard. At that time, the accused
no.12Chhota Rajan called him on his phone and asked him
about the accused no.1Rohee Tangappan Joseph @ Satish
Kalya. He told the accused no.12Chhota Rajan that the accused
no.1Rohee Tangappan Joseph @ Satish Kalya was with him and
then gave his phone to the accused no.1Rohee Tangappan
Joseph @ Satish Kalya to enable him to talk to the accused
no.12Chhota Rajan.
The accused no.1Rohee Tangappan Joseph @ Satish Kalya

worked as his bodyguard for about three days. Thereafter, he
did not continue the services of the accused no.1Rohee
Tangappan Joseph @ Satish Kalya as the Government had
banned the activity of sand mining. Accordingly, the accused
no.1Rohee Tangappan Joseph @ Satish Kalya left the job but he
used to be in contact with the accused no.9Deepak Sisodiya on
phone.
On 12/05/2011, at about 12:00 in the afternoon, the wanted
accused no.1Nayansingh Bista came to his house with a
briefcase and asked him whether he had some talk with Sahil.
When he told the wanted accused no.1Nayansingh Bista that he
did not have any talk with Sahil, the wanted accused no.1
Nayansingh Bista made a phone call to Sahil from his mobile
phone and told him to talk to him (accused no.9Deepak
Sisodiya). Sahil told him on phone of the wanted accused no.1
Nayansingh Bista that one of his man wanted 25 cartridges of
revolver and told the wanted accused no.1Nayansingh Bista to
arrange for the same.
He immediately contacted Shri Sanjay Singh Bansal who was

the owner of Anurag Gun house at Bajpur and told him that he
wanted 25 cartridges of revolver. Accordingly, he was told to
come after two days.
245
After two days i.e. on 14/05/2011, at about 11:30 am he went
to that shop alongwith the wanted accused no.1Nayansingh
Bista reached the said shop and he requested Shri Sanjaysingh
Bansal to give 25 cartridges of revolver. When, Shri Sanjaysingh
Bansal asked him whether there was any problem (Lafde wali
baat), the accused no.9Deepak Sisodiya told him that he
wanted 25 cartridges. On that, Shri Sanjaysingh Bansal gave him
a packet containing 25 cartridges.
After returning to his house at Haldvani, when he asked the

wanted accused no.1Nayansingh Bista as to for whom the
cartridges were required, he told him one person known to Sahil
was going to contact him on mobile phone and thereafter they
would meet that person.
At about 08:00 pm, the wanted accused no.1Nayansingh Bista
received a phone call on his mobile phone and he promised the
caller that he will meet him at the Katgodam Railway station at
09:30 pm.
At about 09:00 pm, he alongwith the wanted accused no.1

Nayansingh Bista started for the Katgodam Railway Station in a
Scorpio vehicle. At that time, the wanted accused no.1
Nayansingh Bista took out one plastic carry bag from his
briefcase and kept it with him. At that time, he (accused no.9
Deepak Sisodiya) was driving the Scorpio vehicle.
As soon as both of them sat in the Scorpio vehicle, the wanted
accused no.1Nayansingh Bista kept the plastic carry bag under
the seat of the vehicle. On being asked by him, the wanted
accused no.1Nayansingh Bista told him that there were two
revolvers in the plastic carry bag.
At about 09:30 pm, they reached at a place outside the

Katgodam Railway station and at that place, he saw that the
accused no.1Rohee Tangappan Joseph @ Satish Kalya was
standing there.
246
The wanted accused no.1Nayansingh Bista gave the plastic

carry bag and the packet containing the 25 cartridges to the
accused no.1Rohee Tangappan Joseph @ Satish Kalya.
Thereafter, he and the wanted accused no.1Nayansingh Bista
returned to his house at Haldvani at about 10:30 pm. At about
11:30 pm the wanted accused no.1Nayansingh Bista told him
that he was going to Nepal and accordingly he went away. The
wanted accused no.1Nayansingh Bista contacted him every day
from 23/06/2011 to 26/06/2011.
On 27/06/2011, at about 02:30 pm in the afternoon, Sahil

informed him on phone that the accused no.1Rohee Tangappan
Joseph @ Satish Kalya was arrested by Mumbai Crime Branch in
a murder case and told him to switch off his mobile phone and
that the accused no.1Rohee Tangappan Joseph @ Satish Kalya
had used the 25 cartridges given to him for the murder.
He stated that he saw the news regarding the murder of J.Dey
on TV and that seven persons belonging to the gang of the
accused no.12Chhota Rajan were arrested. When one of them
removed the veil he identified that person to be the accused
no.1Rohee Tangappan Joseph @ Satish Kalya who had worked
as his bodyguard and to whom wanted accused no.1Nayansingh
Bista had given two revolvers and 25 cartridges on 14/07/2011.
On the same day, he went to Balaji, Ajmer Sharif, Haridwar and
Meerut alongwith his friends in his Scorpio vehicle.
On 17/07/2011, at 02:00 pm, he was caught by the Police near
the bypass bridge at Katgodam Square and was produced before
the local Court on the next day. On the day thereafter, he was
taken to Mumbai.

DEEPAK SISODIYA.
323. The question which arises for consideration is whether the
247
statement made by the accused no.9Deepak Sisodiya amounts to a

confession or not. The statements made by the accused no.9Deepak
Sisodiya will have to be considered in the light of the charges framed
against him. The statements made by him show that he was not actually
connected with the offence of murder of J.Dey. But at the same time, it is
revealed from his statements that he had criminal antecedents. He was
knowing the accused no.12Chhota Rajan rather well and since long. He
was also knowing the accused no.1Rohee Tangappan Joseph @ Satish
Kalya who was also an associate of the accused no.12Chhota Rajan. In his
presence, the accused no.1Rohee Tangappan Joseph @ Satish Kalya had
spoken to the accused no.12Chhota Rajan on phone. He arranged for 25
cartridges and then along with the wanted accused no.1Nayansingh Bista
gave those cartridges and two revolvers which were arranged by the
wanted accused no.1Nayasingh Bista to the accused no.1Rohee
Tangappan Joseph @ Satish Kalya. The said cartridges and one of the
revolvers was used for committing the murder of J.Dey. If the statements
made by the accused no.9Deepak Sisodiya are considered in the light of
the charges framed against him then it can be said that he is liable for
being punished u/s.120B of the IPC, for the offence of abetment as
defined u/s.2(1)(a) of the MCOC Act,1999 r/w section 107 and 108 of the
IPC and for being member of the Organized Crime Syndicate provided it is
proved that the confession made by him was voluntary and truthful.
EVIDENCE REGARDING THE VOLUNTARY NATURE AND

TRUTHFULNESS OF THE CONFESSION MADE BY THE ACCUSED NO.9
DEEPAK SISODIYA.
324. In order to prove that the confession made by the accused no.9
Deepak Sisodiya was voluntary and truthful, the prosecution has relied
upon the evidence of PW.103API Dewoolkar, PW.106API Vijay Shinde
248
and PW.124DCP Chhering Dorje.
325. The evidence of PW.103API Shri Dewoolkar is already discussed

earlier while dealing with the confession made by the accused no.5Arun
Dake. Hence, it is not being reproduced again to avoid repetition.
326. PW.106API Vijay Shinde was attached to the Police Station, Azad
Maidan at the relevant time. He deposed that on 02/08/2011 when he
was on duty, Senior PI Shri Mane told him to go to the Office of PW.124
DCP Dr. Cherring Dorje for taking custody of accused no.9Deepak
Sisodiya and to get him medically examined. He deposed that he was also
instructed to keep him in a separate room in the General lockup of the
Police Station, Azad Maidan. He deposed that two ammaldars from the
same Police Station were also deputed along with him for the said work.
He deposed that all the three of them went to the Office of PW.124DCP
Dr. Cherring Dorje where the custody of accused no.9Deepak Sisodiya
was given to him by PW.124DCP Dr. Cherring Dorje and he was directed
to produce him in his Office on the next day in a veil. He deposed that he
was also instructed to keep the accused no.9Deepak Sisodiya in a
separate lockup and that nobody should be permitted to meet him. He
deposed that thereafter he took the accused no.9Deepak Sisodiya to the
J.J. Hospital for his medical examination and from there he took the
accused no.9Deepak Sisodiya to the Police Station, Azad Maidan and first
reported to the Senior PI. He deposed that thereafter, he made an entry in
the lockup register and then lodged the accused no.9Deepak Sisodiya in
a separate room. He deposed that one Officer was deputed for guarding
the accused no.9Deepak Sisodiya and he was instructed not to permit
anybody to meet the accused no.9Deepak Sisodiya.
249
327. PW.106API Vijay Shinde further deposed that on 03/08/2011, in
the evening he took the accused no.9Deepak Sisodiya to the Office of
PW.124DCP Dr. Cherring Dorje in a Government vehicle along with the
two ammaldars who were deputed for the work and handed over the
custody of the accused no.9Deepak Sisodiya to him. He deposed that after
some time accused no.9Deepak Sisodiya was brought outside and his
custody was again given to him. He deposed that he was also given two
sealed envelopes. He deposed that from there all of them went to the G.T.
Hospital where the accused no.9Deepak Sisodiya was got medically
examined and from there they returned to the Police Station, Azad Maidan
along with accused no.9Deepak Sisodiya. He deposed that after returning
to the Police Station he kept the two sealed envelopes in the locker of the
Police Station and the accused no.9Deepak Sisodiya was again lodged in
a separate room in the Police Station, Azad Maidan.
328. PW.106API Vijay Shinde deposed that on 04/08/2011, he took the
accused no.9Deepak Sisodiya to the Court of the learned Chief
Metropolitan Magistrate along with the two ammaldars who were deputed
for the said work. He deposed that he produced the accused no.9Deepak
Sisodiya before the said Court and also gave the two sealed envelopes to
the Court. He deposed that himself and the two ammaldars were then
directed to go outside the Court room and accordingly, they went outside
and waited there. He deposed that after some time, they were called
inside the Court room and then the custody of accused no.9Deepak
Sisodiya was again given to him. He deposed that thereafter the accused
no.9Deepak Sisodiya was got medically examined in the J.J. Hospital and
then from there all of them went to the Office of the Deputy Commissioner
of Police (Detection) in a Government vehicle and he produced accused
no.9Deepak Sisodiya in that office. He deposed that he then handed over
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the custody of accused no.9Deepak Sisodiya to the Deputy Commissioner
of Police (Detention) along with his medical papers and all other papers
and thereafter, he returned to the Police Station, Azad Maidan along with
the two ammaldars. He deposed that after returning to the Police Station
the necessary entries were made in the police station diary about the
events which had taken place. He identified the relevant station diary
entries (Exh.896 colly., Exh.897 colly. and Exh.898 colly.) of the
proceedings from 02/08/2011 to 04/08/2011.
329. In crossexamination on behalf of accused nos.1,6 and 7, he stated
that the persons charged of committing crime of nearby Police Stations
were also lodged in the Police Station, Azad Maidan. He stated that he did
not know as to how many lockups were there in the Police Station, Azad
Maidan. He stated that whenever an accused was taken out of the lockup
and whenever he was again lodged in the lockup an entry to that effect
was always made in the lockup register. He stated that he did not
mention the cell (room) number in which the accused no.9Deepak
Sisodiya was lodged on 02/08/2011, 03/08/2011 and 04/08/2011 as the
cells (rooms) were not given any numbers. He stated that no person was
lodged in that cell (room) prior to lodging of the accused no.9Deepak
Sisodiya. He admitted that one was required to make an entry in the
register for going inside the cell (room). He admitted that there was no
such entry in the station diary that he had visited the cell (room) or that
he had seen the accused no.9Deepak Sisodiya in the cell (room). He
stated that there was no such practice. He stated that the lockups of
Police Station, Azad Maidan were always packed. He stated that the
accused no.9Deepak Sisodiya was taken out of the General lockup on
04/08/2011. He admitted that on 04/08/2011, after the proceedings were
completed the custody of accused no.9Deepak Sisodiya was given to the
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Office of DCB CID, Unit no.1.
330. He admitted that on 03/08/2011 and 04/08/2011 also the accused
no.9Deepak Sisodiya was taken out of the General lockup. He stated that
he did not make any entry in his pocket diary regarding the work done by
him between 02/08/2011 to 04/08/2011. He stated that he had produced
the accused no.9Deepak Sisodiya in the Court of the learned Chief
Metropolitan Magistrate on 04/08/2011 between 10:00 am to 11:00 am.
He stated that after producing the accused no.9Deepak Sisodiya in the
said Court he waited outside for about 34 hours and thereafter, the
custody of accused no.9Deepak Sisodiya was again handed over to him.
He admitted that the Police Station, Azad Maidan was within the
jurisdiction of that Court and he had taken the accused no.9Deepak
Sisodiya to that Court. He stated that he did not prepare the panchanama
of the documents given by him to PW.143ACP Duraphe. He denied that
the custody of accused no.9Deepak Sisodiya was never given to him. He
denied that he had prepared a false record of station diary entries and
medical papers. He stated that the accused no.9Deepak Sisodiya was not
handicapped in any manner.
331. PW.124DCP Dr. Cherring Dorje had recorded the confession made
by the accused no.9Deepak Sisodiya. He deposed that vide letter dated
01/08/2011 (Article X202) issued by the Joint Commissioner of Police
(Crime) he was directed to record the confession of the accused no.9
Deepak Sisodiya. He deposed that by the said letter he was also informed
that the accused no.9Deepak Sisodiya was arrested in connection with
this case, that he had volunteered to make the confession, that the case
was being investigated by PW.143ACP Duraphe and that the Police
custody of the accused no.9Deepak Sisodiya was till 06/08/2011. He
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deposed that on receipt of the letter dated 01/08/2011, he issued the

letter (Exh.1212) to PW.143ACP Duraphe on 02/08/2011 directing him
to produce the accused no.9Deepak Sisodiya before him on the same day
(on 02/08/2011) by 02:00 pm for recording his confession and
accordingly, the accused no.9Deepak Sisodiya was produced before him
in a veil by PW.103API Dewoolkar along with the letter (Exh.1213)
issued by PW.143ACP Duraphe and his medical report. He deposed that
after the accused no.9Deepak Sisodiya was brought inside his chamber
his veil was removed. He deposed that thereafter, PW.103API Dewoolkar
briefed him about the case and informed him that accused no.9Deepak
Sisodiya was arrested on 27/07/2011 and his Police custody was till
06/08/2011.
332. PW.124DCP Dr. Cherring Dorje deposed that after the identification
of the accused no.9Deepak Sisodiya and after perusal of his medical
report he took the accused no.9Deepak Sisodiya in his custody and then
directed PW.103API Dewoolkar to go outside his chamber. He deposed
that after ensuring that nobody else was there he had a brief conversation
with the accused no.9Deepak Sisodiya to ascertain in what language he
was comfortable and whether he was sick or unwell. He deposed that
thereafter, he called his stenographer inside his chamber. He deposed that
he made sure that their conversation or the proceeding were not heard or
seen by anyone. He deposed that on being asked by him, the accused no.9
Deepak Sisodiya told him that he was comfortable in Hindi language as he
had studied in Hindi medium. He deposed that he introduced himself to
the accused no.9Deepak Sisodiya and told him that he was not related in
any manner with the Crime Branch and that he was now in his custody.
333. PW.124DCP Dr. Cherring Dorje deposed that for making the
253
accused no.9Deepak Sisodiya comfortable he again asked him about his
name, address and educational qualifications. He deposed that the
answers given by the accused no.9Deepak Sisodiya were being recorded
simultaneously by his stenographer on a computer. He deposed that on
being asked by him, the accused no.9Deepak Sisodiya told him that he
was brought before him as he wanted to make a confession and that he
was not intimidated or tortured nor did he have any complaint against the
Officers of the Crime Branch. He deposed that he then informed the
accused no.9Deepak Sisodiya that he was not bound to make the
statement and that if he did so it may be used as evidence against him. He
deposed that thereafter, on being specifically asked by him, the accused
no.9Deepak Sisodiya stated that he was neither coerced nor intimidated
nor induced nor pressurized nor any false assurance was given to him by
any Officer of the Crime Branch. He deposed that thereafter, when he
again informed the accused no.9Deepak Sisodiya that he was not bound
to make the statement and that if he did so it may be used as evidence
against him, the accused no.9Deepak Sisodiya told him that he was aware
about that.
334. PW.124DCP Dr. Cherring Dorje deposed that he then gave more
than 24 hours time to the accused no.9Deepak Sisodiya to think over his
decision to make the confession and informed him that during that period
he would be under his custody and that he would be lodged in the Police
Station, Azad Maidan and not with the Crime Branch. He deposed that he
then read over the questions put by him to the accused no.9Deepak
Sisodiya and the answers given by him. He deposed that after getting
confirmation about the correctness of the same from the accused no.9
Deepak Sisodiya, he took the printout of confession Part1 (Exh.1214) and
then after going through the same, the accused no.9Deepak Sisodiya
254
signed it. He deposed that he also countersigned the same. He deposed
that he then took a xerox copy of confession Part1 (Exh.1214), sealed the
original record and kept the original and the xerox copy in his custody. He
deposed that the proceedings of recording of confession Part1 (Exh.1214)
started at about 02:15 pm and ended at 03:30 pm. He deposed that after
the proceedings were completed he orally informed the accused no.9
Deepak Sisodiya that he would be produced before him on 03/08/2011 at
05:00 pm and then the custody of the accused no.9Deepak Sisodiya was
handed over to PW.106API Shinde with a direction to lodge him in a
separate room and to get him medically examined. He deposed that he
also directed PW.106API Shinde to ensure that nobody from the Crime
Branch or any other Officer met the accused no.9Deepak Sisodiya in the
lockup without his permission and to produce the accused no.9Deepak
Sisodiya before him on 03/08/2011 at 05:00 pm. He deposed that he also
directed PW.106API Shinde to take the accused no.9Deepak Sisodiya to
the Police Station,Azad Maidan in proper escort.
335. PW.124DCP Dr. Cherring Dorje deposed that he then sent the letter
(Article X203) to Senior PI, Police Station, Azad Maidan through PW.106
API Shinde informing him that the accused no.9Deepak Sisodiya was
being kept in the lockup in Police Station, Azad Maidan, that nobody
should be permitted to meet him without his permission, that he should be
produced before him on 03/08/2011 at 05:30 pm in proper escort and in
a veil. He deposed that after issuing the said letter and once PW.106API
Shinde had left with the accused no.9Deepak Sisodiya to Police Station,
Azad Maidan he repeated the same instructions by telephoning him. He
deposed that on the same day, late in the evening he again phoned the
Senior PI, Police Station, Azad Maidan for ascertaining whether the
accused no.9Deepak Sisodiya was kept in a separate lockup and whether
255
his medical examination was conducted after he was taken by PW.106API
Shinde from his office. He deposed that he also reminded the Senior PI,
Police Station, Azad Maidan about the instructions given by him earlier
vide letter (ArticleX203).
336. PW.124DCP Dr. Cherring Dorje deposed that on 03/08/2011, the
accused no.9Deepak Sisodiya was produced before him by PW.106API
Shinde at around 06:40 pm in a veil along with his two medical reports
dated 02/08/2011 and 03/08/2011. He deposed that he perused the
medical reports of the accused no.9Deepak Sisodiya and then directed
PW.106API Shinde to leave his chamber. He deposed that he then called
his stenographer to record the proceedings. He deposed that he asked the
accused no.9Deepak Sisodiya whether he faced any problem in the Police
Station, Azad Maidan or whether he had any complaint, whether the time
given to him was sufficient or whether he wanted more time to think over.
He deposed that the accused no.9Deepak Sisodiya told him that sufficient
time was given to him and that he did not require any more time. He
deposed that he again told the accused no.9Deepak Sisodiya that he was
not bound to make any statement and that if he did so it may be used as
evidence against him in the Court. He deposed that on being asked by
him, the accused no.9Deepak Sisodiya told him that he was neither
coerced nor intimidated nor pressurized nor any kind of allurement or
false promise pertaining to this case to give confession was given to him.
He deposed that when he specifically asked the accused no.9Deepak
Sisodiya as to why he wanted to make the confession, he replied that he
was repenting for his deeds and he wanted to speak the truth. He deposed
that when he again told the accused no.9Deepak Sisodiya that he was not
bound to make the statement and that if he did so it may be used as
evidence against him, the accused no.9Deepak Sisodiya replied that he
256
was aware about it.
337. PW.124DCP Dr. Cherring Dorje deposed that once he was

convinced that the accused no.9Deepak Sisodiya wanted to make the
confession voluntarily, he recorded his satisfaction in writing and then he
started recording the confession Part2 (Exh.1217). He then deposed
about what the accused no.9Deepak Sisodiya had stated before him. The
gist of the same is already reproduced earlier. Hence, it is not being
repeated.
338. He deposed that whatever was stated by the accused no.9Deepak
Sisodiya was read over to him from the computer and after the accused
no.9Deepak Sisodiya acknowledged its correctness, he prepared a
memorandum as per the provisions of MCOC Act,1999. He deposed that
the printout was taken, the same was placed before the accused no.9
Deepak Sisodiya who signed it after going through the same and then he
also countersigned the same. He deposed that he then took a xerox copy
of the same, kept the original statement in an envelope, sealed it and kept
the xerox copy of the same in his personal custody. He deposed that the
proceedings of confession Part2 (Exh.1217) were started at about 06:45
pm and it ended at about 09:45 pm He deposed that as the Court of the
learned Chief Metropolitan Magistrate was in the same building in which
the Police Station, Azad Maidan was situated he got it confirmed from the
Police Station, Azad Maidan whether the Court was open or not as it was
late. He deposed that after coming to know that the Court was closed, he
issued a letter to the Court of learned Chief Metropolitan Magistrate
informing the said Court that the accused no.9Deepak Sisodiya was
produced before him for recording confession, that confession Part1 was
recorded on 02/08/2011, that he was given more than 24 hours time to
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reflect and then confession Part2 was recorded on 03/08/2011. He

deposed that he also informed that as the Court time was over he could
not be produced before the Court on the same day and that he would be
produced before the Court on 04/08/2011 in the morning.
339. PW.124DCP Dr. Cherring Dorje deposed that he also issued a letter
to the Senior PI, Police Station, Azad Maidan directing him to lodge the
accused no.9Deepak Sisodiya in a separate cell in the Police Station, Azad
Maidan and that no one from the Crime Branch or any other Officer or
any other person should be permitted to meet him without his permission.
He deposed that by the said letter, he also informed the Senior PI, Police
Station, Azad Maidan that he was sending two sealed envelopes meant for
the Court of the learned Chief Metropolitan Magistrate with PW.106API
Shinde and that those envelopes should be kept in a safe custody and that
the accused no.9Deepak Sisodiya should be produced before the said
Court on 04/08/2011 at 10:30 am after his medical examination under
proper escort and in a veil. He deposed that he had also issued a letter to
PW.143ACP Duraphe stating that the custody of the accused no.9Deepak
Sisodiya would be handed over to him on 04/08/2011 for the reasons
stated earlier. He deposed that he had handed over the custody of the
accused no.9Deepak Sisodiya along with the three letters and two sealed
envelopes to PW.106API Shinde. He deposed that he also briefed
PW.106API Shinde to take the accused no.9Deepak Sisodiya in proper
escort and in a veil. He deposed that he had also directed that after all the
formalities were completed the custody of the accused no.9Deepak
Sisodiya be handed over to PW.143ACP Duraphe. He deposed that he
then phoned the Senior PI Police Station, Azad Maidan and gave him the
some instructions which are mentioned above.
258
340. PW.124DCP Dr. Cherring Dorje deposed that on 09/08/2011 when
he had received a letter from PW.143ACP Duraphe requesting him to
furnish a copy of the confession made by the accused no.9Deepak
Sisodiya he prepared a xerox copy from the xerox copy which he had
prepared earlier and furnished the same to PW.143ACP Duraphe.

denied that PW.143ACP Duraphe did not collect any document from him
relating to this case. At the same time, he stated that PW.143ACP
Duraphe did not issue any requisition to him regarding any document. He
admitted that in the letter (Exh.1212) it was not mentioned that the
accused no.9Deepak Sisodiya should be produced before him in a veil. He
stated that the accused no.9Deepak Sisodiya was produced before him in
view of orders issued by Joint Commissioner of Police. He denied that the
letter (Exh.1212) was a readymade letter and he was deposing
accordingly about that letter.
342. He stated that he did not know whether the Office of Crime Branch,
Unit no.1 and the Office of Crime Branch, D1 (South) were separate
Offices. He admitted that from the letter (Exh.1213) it could not be
gathered at what time the accused no.9Deepak Sisodiya was taken in his
custody. He denied that the letter (Exh.1213) was a tampered and
manipulated document.
343. He admitted that prior to taking the custody of the accused no.9
Deepak Sisodiya, he did not know about his personal details except the
details which were mentioned in the letter issued by the Joint
Commissioner of Police. He denied that he came to know about the brief
facts of the case even before PW.103API Dewoolkar met him. He stated
259
that during the period from 22/07/2011 to 06/08/2011, he did not ask
any Officer whether any article was seized from the accused no.9Deepak
Sisodiya, how many Police Officers had interrogated him and what was his
medical condition.
344. He denied that at the relevant time, the Office of the Unit no.1 was
under the jurisdiction of the DCP, Zone1. He stated that though he was
aware about the murder of J.Dey he was not aware about the date of the
murder. He admitted that several agitations were taken out for arresting
the culprits. He stated that he did not know whether a special
investigating team was created under the Joint Commissioner of Police for
investigating into this case. He stated that he did not know whether all the
Deputy Commissioners of Police were a part of that team. He voluntarily
stated that he was not a part of that team. He denied that being the
Deputy Commissioner of Police, Zone1 he was getting inputs about this
case.
345. He denied that after recording the confession Part1, only the
questions were read over to the accused no.9Deepak Sisodiya and not the
answers given by him. He stated that he could not assign any reason as to
why it was not mentioned in the confession Part1 that even the answers
were read over to the accused no.9Deepak Sisodiya. He stated that no
separate information was given to the accused no.9Deepak Sisodiya in
writing as the record of confession Part1 was itself given to the accused
no.9Deepak Sisodiya for reading. He stated that in the confession Part1 it
was not specifically recorded by the accused no.9Deepak Sisodiya that the
contents of the same were true and correct.
346. He stated that he did not inform the Senior PI, Police Station, Azad
260
Maidan to send for escort for taking the custody of the accused no.9
Deepak Sisodiya. He admitted that he had called PW.106API Shinde and
the staff of the Police Station, Azad Maidan for taking the custody of the
accused no.9Deepak Sisodiya. He clarified that he had called for PW.106
API Shinde through Senior PI, Police Station, Azad Maidan and that he
was not knowing as to which Officer was going to come for taking the
custody of the accused no.9Deepak Sisodiya. He stated that the sentence,
'I called API Vijay P. Shinde and staff of Azad maidan police station' (page
no.4 of the confession Part1) meant that he had called PW.106API
Shinde and the staff of Police Station, Azad Maidan when they were
standing outside his chamber. He denied that he gave the explanation to
fillup the lacuna.
347. He stated that he did not know in which lockup the accused no.9
Deepak Sisodiya was lodged before he was produced in his Office. He
categorically stated that the accused no.9Deepak Sisodiya was not lodged
in the lockup of the Police Station, Azad Maidan. He stated that prior to
recording of the confession Part1 (Exh.1214) he did not write any letter
to Senior PI, Police Station, Azad Maidan. He denied that he started the
recording of the confession Part1 (Exh.1214) after he had issued the
letter to Senior PI, Police Station, Azad Maidan. He stated that he could
not assign any reason as to why it was not mentioned in the confession
Part1 (Exh.1214) that he had called his stenographer in his chamber
though that fact was recorded in confession Part2 (Exh.1217). He stated
that he did not prepare any separate record for showing that he had
recorded the confession Part1 (Exh.1214) on 02/08/2011. He stated that
he did not take any certificate from his stenographer about the drafting of
the confession Part1 (Exh.1214). He stated that in the confession, it was
not mentioned that the contents of the same were read over to the
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accused no.9Deepak Sisodiya from the screen of the computer.
348. He stated that he did not remember the exact date on which he had
received the letter from PW.143ACP Duraphe calling for a copy of the
confession. He stated that prior to taking the xerox copy of the confession
Part1 (Exh.1214) he was not aware that he would be required to furnish
a copy of the same to anybody.
349. He denied that while recording confession Part2 (Exh.1217), the
accused no.9Deepak Sisodiya had told him that he only wanted to make a
statement and not a confession. He stated that he had recorded whatever
the accused no.9Deepak Sisodiya had told him and that he did not add
anything on his own. He stated that he did not ask the accused no.9
Deepak Sisodiya whether he wanted to take assistance of his friend or
Advocate or relative.
350. He stated that he did not remember whether during the proceedings
of confession Part2 (Exh.1217), he had informed the accused no.9
Deepak Sisodiya that the confession made by him can be used against the
coaccused also. He stated that while recording the confession Part2, he
did not specifically ask the accused no.9Deepak Sisodiya whether he was
assaulted. He stated that he did not personally see the injury of the
accused no.9Deepak Sisodiya and that the accused no.9Deepak Sisodiya
had told him about the injury on his right leg. He stated that he neither
personally examined the injury on the leg of the accused no.9Deepak
Sisodiya nor did he feel like referring the accused no.9Deepak Sisodiya
for medical examination. He stated that he felt that the medical condition
of the accused no.9Deepak Sisodiya was proper. He admitted that the
accused no.9Deepak Sisodiya had told him that his right leg was
262
amputated and he did not personally see the right leg of the accused no.9
Deepak Sisodiya. He stated that he did not ask the accused no.9Deepak
Sisodiya on which date his leg was amputated. He voluntarily stated that
the accused no.9Deepak Sisodiya had told him that his right leg was
amputated long ago because of an accident. He stated that there was no
specific reason for not recording the above facts in confession Part1 and
Part2.
351. He stated that the accused no.9Deepak Sisodiya had told him that
he completed education upto 9th standard in Hindi medium. He stated that
he did not ask the accused no.9Deepak Sisodiya whether he was knowing
English. He stated that the accused no.9Deepak Sisodiya did not read the
portion of the confession Part2 which was recorded in English and that
the accused no.9Deepak Sisodiya was made to understand the same. He
stated that there was no record in writing to show that he had taken the
xerox copy of the confession Part1 and Part2. He stated that he had
informed the accused no.9Deepak Sisodiya on 23 occasions that he was
not bound to make the confession and if he did so it could be used against
him as he wanted to ensure that the accused no.9Deepak Sisodiya
understood it was not obligatory for him to make the confession. He stated
that below the certificate, the date and time at which the confession was
recorded was required to be mentioned and that he did not mention the
time below his signature in the confession Part1 and Part2. He stated
that the contents of confession Part2 were continuous narration of what
the accused no.9Deepak Sisodiya had stated before him. He admitted that
after the confession Part2 was recorded he did not take any certificate
from his stenographer.
352. He stated that neither PW.103API Dewoolkar nor PW.106API

263
Shinde produced any report before him regarding compliance of the

instructions given by him. He stated that he did not call for the station
diary entry and the lockup register with regard to the lodging of the
accused no.9Deepak Sisodiya in the Police Station, Azad Maidan. He
stated that he had made oral enquiry in that regard with Senior PI, Police
Station, Azad Maidan. He admitted that this fact was not mentioned in
confession Part2. He denied that on the say of the Joint Commissioner of
Police a readymade copy of the confession was provided to him and
therefore, he did not have any documentary record with him. He denied
that the accused no.9Deepak Sisodiya did not make any confession before
him.
being a Deputy Commissioner of Police, he was required to maintain the
law and order in the City. He stated that the meetings in that regard were
periodically conducted in the Office of the Commissioner of Police and in
those meetings, the various measures to be taken were discussed and the
guidelines in that regard were issued. He stated that generally important
cases were also discussed in such meetings and the measures to be taken
were also discussed. He stated that the present case was one of the
important cases for him also from the point of view of law and order. He
stated that after the murder of J.Dey, there were agitations and protests
from the media. He stated that in the meetings there was reference to this
case. He stated that before deposing in this case he had gone through the
hard copy of the confession which was with him. He stated that while
recording the confession of the accused no.9Deepak Sisodiya, he did not
see the hard copy of the other confession which was recorded by him in
the earlier case. He stated that he could not say whether the questions put
by him to the accused no.9Deepak Sisodiya while recording confession
264
Part1 and Part2 were identical to the questions put by him to the accused
in Special Case no.10 of 2010 which was pending in Court room no.55.
354. He stated that he was not directed to record the confession of the
accused no.9Deepak Sisodiya before 06/08/2011. To a general question
put to him, he stated that he was aware that after an accused is arrested
the Investigating Officer records the statement of that accused. He stated
that he did not ask the accused no.9Deepak Sisodiya whether he had any
opportunity to meet the Joint Commissioner of Police. He stated that he
did not make any enquiry with PW.143ACP Duraphe in that regard. He
stated that when he started the recording of the confession Part2, he was
not aware for how long the proceedings would continue. He stated that he
was aware that depending upon the case, it generally took about 2 hours
or more for recording confession Part2. He stated that he did not ask the
accused no.9Deepak Sisodiya as to what was the stage of investigation
and whether he was interrogated by the Police and who were the Officers
who interrogated him. He stated that he did not make any special request
for producing the accused no.9Deepak Sisodiya on the same day before
the Court of learned Chief Metropolitan Magistrate. He stated that the
Senior PI, Police Station, Azad Maidan had informed him that the Court
working hours were already over and he relied upon his statement.
stated that he had a degree in MBBS. He admitted that the accused no.9
Deepak Sisodiya had told him that he used to feel pain intermittently in
his right leg. He denied that the accused no.9Deepak Sisodiya was not in
a position to make the confession as his medical condition was not proper.
He denied that as a pressurizing tactic, the accused no.9Deepak Sisodiya
was not given any medical treatment or food. He denied that the accused
265
no.9Deepak Sisodiya was not in a proper state of mind when his

statement was recorded.
before joining as DCP, Zone1 Mumbai on 07/06/2010 he did not have
any occasion to work in the Crime Branch or any Unit of the Crime
Branch. He stated that there were no fixed duty hours for him. He
voluntarily stated that over and above the fixed duty hours they were
required to be on duty depending upon the situation and the requirement.
He admitted that the Police Officers were assigned duty in the day shift
and in the night shift. He stated that in case of an emergency the Police
Officer whose period of duty was over was also required to join the duty
again. He stated that as on 01/08/2011, the monsoon session of the
Maharashtra Legislative Assembly was going on and as the Vidhan
Bhawan was within his jurisdiction he was on duty continuously. He
admitted that during the monsoon session of the Legislative Assembly he
was required to supervise the bandobast regularly.
357. He stated that on 02/08/2011, he reached his Office at around

10:00 am and he was in his Office till evening. He stated that on that day,
he was required to leave his Office and check the bandobast. He stated
that he had gone to check the bandobast twice. He stated that his Office
did not maintain any movement register to show when he left his Office
and when he returned to his office.
358. He stated that in the year 2010, he had recorded one confession
under the MCOC Act,1999 and in the year 2011, prior to recording the
confession in this case he had recorded two confessions under MCOC
Act,1999. He stated that he did not know which sections were applied in
266
those cases but they were under the MCOC Act,1999. He stated that the
name of the accused whose confession he had recorded in the year 2010
was Mohd. Sakib Shah Nawaz Alam Khan. He stated that he did not
recollect the name of the other accused but he said that their names may
be Raju Lakshman Jadhav and Bahadur. He stated that during that time,
his Superior or any Officer of the Crime Branch did not provide him with
the guidelines for recording the confessions.
359. He stated that before coming to the Court he had prepared himself
for deposing. He denied that he had met an Officer and the learned SPP
for preparing himself for deposing in the Court. He stated that as he could
not retrieve some documents from the Office of the Zone1 he had met the
Officer and the learned SPP.
360. He stated that on 02/08/2011, the accused no.9Deepak Sidodiya
was brought to his Office for the first time at 02:00 pm. He stated that his
stenographer had told him that the accused no.9Deepak Sisodiya was
brought to his Office by the Officers of the Crime Branch. He deposed that
thereafter, when he called PW.103API Dewoolkar to his chamber
PW.103API Dewoolkar told him that the confession of the accused no.9
Deepak Sisodiya was to be recorded. He stated that on being asked by
him, PW.103API Dewoolkar told him that the accused no.9Deepak
Sisodiya was arrested on 27/07/2011 and his Police custody was till
06/08/2011. He stated that he did not ask PW.103API Dewoolkar about
the status of health of the accused no.9Deepak Sisodiya. He stated that
PW.103API Dewoolkar did not tell him that the accused no.9Deepak
Sisodiya was physically challenged or that he was unwell. He stated that
he did not ask PW.103API Dewoolkar as to on how many occasions the
Police custody of the accused no.9Deepak Sisodiya was sought or which
267
Police Officer had arrested him, from which place he was arrested, at what
time he was taken out of the lockup and whether before bringing the
accused no.9Deepak Sisodiya to his Office he was taken to any other
place.
361. He stated that PW.103API Dewoolkar had produced the accused

no.9Deepak Sisodiya before him along with his medical papers. He stated
that he had checked the medical papers and found that the accused no.9
Deepak Sisodiya was well. He stated that the accused no.9Deepak
Sisodiya had injury on his right leg and was also diabetic. He stated that
he did not ask PW.103API Dewoolkar as to what drugs the accused no.9
Deepak Sisodiya was taking for his injury and diabetes. He stated that in
the medical papers, the treatment which was being given to the accused
no.9Deepak Sisodiya was not mentioned. He stated that PW.103API
Dewoolkar did not tell him that the accused no.9Deepak Sisodiya was
required to take Fortwin (pain killer injection) every two hours for the
pain which he was suffering in his leg. He stated that he had done
M.B.B.S. He stated that Fortwin was a pain killer injection and a person
felt dizzy after using it. He stated that he did not confirm the medical
condition of the accused no.9Deepak Sisodiya from PW.143ACP
Duraphe.
362. He stated that when the accused no.9Deepak Sisodiya came to his
chamber he saw that the accused no.9Deepak Sisodiya was having
difficulty in walking. He stated that on being asked by him, the accused
no.9Deepak Sisodiya told him that his foot was amputated. He stated that
on being asked by him, the accused no.9Deepak Sisodiya told him that he
used to take medicines intermittently. He stated that though he had asked
the accused no.9Deepak Sisodiya whether he required any medicines or
268
whether he was suffering from any pain he did not record this fact. He
clarified that he had asked this casually to the accused no.9Deepak
Sisodiya. He stated that all the conversation which took place between
him and the accused no.9Deepak Sisodiya did not form a part of
confession Part1 and Part2.
363. He stated that the accused no.9Deepak Sisodiya did not make any
complaint to him that he was having pain in his leg. He stated that he did
not physically examine the accused no.9Deepak Sisodiya. He stated that
after taking the custody of the accused no.9Deepak Sisodiya he neither
referred him for medical examination nor did he not ask him whether he
had his lunch. He stated that he did not offer lunch to the accused no.9
Deepak Sisodiya. He stated that he did not ask the accused no.9Deepak
Sisodiya whether at that time he had taken any tablet. He stated that
neither PW.103API Dewoolkar had not brought the medicines of the
accused no.9Deepak Sisodiya along with him nor did he ask PW.103API
Dewoolkar as to why he did not bring the medicines of the accused no.9
Deepak Sisodiya with him. He stated that he did not ask PW.103API
Dewoolkar or the accused no.9Deepak Sisodiya about the medical history
of the accused no.9Deepak Sisodiya for past three days prior to
02/08/2011.
364. He stated that he may not have put all the questions to the accused
no.9Deepak Sisodiya as required by section 18 of the MCOC Act,1999. He
stated that he did not remember whether he had specifically asked the
accused no.9Deepak Sisodiya whether he wanted to make confession. He
denied that the accused no.9Deepak Sisodiya only wanted to make a
'statement' and not a 'confessional statement'.
269
365. He stated that he did not receive any written communication from
Police Station, Azad Maidan regarding the appointment of any team for
visiting his Office after the proceedings of confession Part1 were
complete. He stated that his staff had informed him that a team from
Police Station, Azad Maidan had come to his office. He stated that the
proceedings of confession Part1 were completed at 03:15 pm and
thereafter, the contents of confession Part1 were read over to the accused
no.9Deepak Sisodiya and once he confirmed the same, the printout was
taken and then an intimation was given to the Police Station, Azad
Maidan. He admitted that till the printout was taken and the signature of
the accused no.9Deepak Sisodiya was taken on confession Part1 he did
not allow any of his staff members to enter inside his chamber.
366. He stated that while recording confession Part1 he did not ask the
accused no.9Deepak Sisodiya whether he wanted to meet his relatives or
friends or Advocate. He stated that after confession Part1 was recorded
he did not offer food to the accused no.9Deepak Sisodiya. He stated that
he had called PW.106API Shinde in his cabin after 03:30 pm. He stated
that when he had called PW.106API Shinde, the accused no.9Deepak
Sisodiya was in his chamber. He stated that he did not issue any separate
memo to PW.106API Shinde for getting the accused no.9Deepak Sisodiya
medically examined.
367. He stated that there were 7 Police Stations within the jurisdiction of
Office of DCP, Zone1 out of which only Police Station, Azad Maidan had a
general lockup. He stated that the accused persons of all the 7 Police
Stations used to be lodged in the general lockup of the Police Station,
Azad Maidan. He stated that the general lockup of Police Station, Azad
Maidan was on the ground floor of Esplanade Court and that all the
270
accused persons who were taken in judicial custody of that Court were
kept in the same general lockup till they were sent to the Jail. He stated
that he had directed PW.106API Shinde to lodge the accused no.9Deepak
Sisodiya in the general lockup of the Police Station, Azad Maidan.
368. He stated that he did not ask PW.106API Shinde about the
measures taken by him for the security of the accused no.9Deepak
Sisodiya. He stated that he had made oral communication with PW.106
API Shinde in that regard. He stated that he did not direct PW.106API
Shinde to get the accused no.9Deepak Sisodiya medically examined and
to produce his medical report on the same day. He stated that confession
Part1 was recorded in two languages. He stated that he had received the
message about the arrival of PW.106API Shinde at around 03:15 pm. He
stated that he did not remember whether PW.106API Shinde had left his
Office along with the accused no.9Deepak Sisodiya at around 05:30 pm
on 02/08/2011. He denied that he had directed PW.106API Shinde to
produce the accused no.9Deepak Sisodiya before him on 03/08/2011 at
05:00 pm. He clarified that though he had directed PW.106API Shinde to
produce the accused no.9Deepak Sisodiya before him on 03/08/2011 at
05:00 pm but after recording confession Part1 while writing letter to
Senior PI, Police Station, Azad Maidan he had specifically mentioned that
the accused no.9Deepak Sisodiya be produced before him on 03/08/2011
at 05:30 pm as the monsoon session of the Legislative Assembly was going
on and he wanted some breathing space in between.
369. He stated that on 03/08/2011, when PW.106API Shinde came to
his office, he did not make any enquiry with him about the medical
condition of the accused no.9Deepak Sisodiya. He stated that PW.106API
Shinde had shown him the medical certificate of the accused no.9Deepak
271
Sisodiya. He stated that as per the medical certificate he did not find that
the medical condition of the accused no.9Deepak Sisodiya was not good.
He denied that the accused no.9Deepak Sisodiya was under tremendous
pressure as he was not given the medicines and the pain killers after every
two hours.
370. He stated that he did not call for any report from PW.106API
Shinde regarding lodging of the accused no.9Deepak Sisodiya in the
General lockup of the Police Station, Azad Maidan between 02/08/2011
and 03/08/2011. He stated that on 02/08/2011 and 03/08/2011, he did
not visit the Police Station, Azad Maidan. He stated that he did not call for
the lockup register of 02/08/2011 and 03/08/2011. He voluntarily stated
that he had made an enquiry in that regard with Senior PI, Police Station,
Azad Maidan. He stated that he did not make any enquiry with PW.106
API Shinde whether the accused persons of other Police Stations were
lodged in the General lockup on 02/08/2011 and 03/08/2011. He
voluntarily stated that on making enquiry with Senior PI, Police Station,
Azad Maidan, he was informed that the accused no.9Deepak Sisodiya was
kept in a separate lockup.
371. He stated that while recording confession Part2, the accused no.9
Deepak Sisodiya had given correct answers to the questions put to him. He
denied that while recording confession Part2 the accused no.9Deepak
Sisodiya did not state that he did not want to make the confession. He
denied that the accused no.9Deepak Sisodiya wanted to make only a
statement and not a confession. He denied that the accused no.9Deepak
Sisodiya did not state anything before him and that he had received a
readymade statement from the Crime Branch. He denied that the accused
no.9Deepak Sisodiya was not given the medical treatment on
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02/08/2011.
ANALYSIS
372. It is not in dispute that PW.124DCP Dr. Cherring Dorje was
competent to record the confession of accused no.9Deepak Sisodiya.
From his evidence, it is also clear that he was authorized by Joint
Commissioner, Crime to record the confession of accused no.9Deepak
Sisodiya. Accordingly, vide letter (Exh.1212) he directed PW.143ACP
Duraphe to produce the accused no.9Deepak Sisodiya before him on
02/08/2011 by 02:00 pm for recording his confession. In view of the
same, the accused no.9Deepak Sisodiya was produced before him by
PW.103API Dewoolkar after making the station diary entry (Exh.884) at
about 02:00 pm. PW.103API Dewoolkar also produced the letter
(Exh.1213) issued by PW.143ACP Duraphe authorizing him to produce
the accused no.9Deepak Sisodiya before PW.124DCP Dr. Cherring Dorje.
Thereafter, PW.103API Dewoolkar briefed PW.124DCP Dr. Cherring
Dorje about the accused no.9Deepak Sisodiya. PW.124DCP Dr. Cherring
Dorje then took the custody of the accused no.9Deepak Sisodiya. After
that, PW.103API Dewoolkar was asked to leave his chamber. Accordingly,
PW.103API Dewoolkar returned to his Office and made the station diary
entry (Exh.885) in that regard. PW.122DCP Dr. Cherring Dorje then
ensured that nobody was hearing his conversation with the accused no.9
Depak Sisodiya. He had a brief conversation with the accused no.9Deepak
Sisodiya to make him comfortable. The above acts of PW.122DCP Dr.
Cherring Dorje are corroborated on material points by the notes made by
him on the first page of the confession Part1 (Exh.1214).
373. It is also seen that before recording the confession Part1

(Exh.1214) of the accused no.9Deepak Sisodiya, PW.124DCP Dr.
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Cherring Dorje had complied with the provisions of Rule 3(2), Rule 3(3)
and Rule 3(4) of the MCOC Rules, 1999. After taking the accused no.9
Deepak Sisodiya in his custody he also ensured that no Police Officer who
had taken part in the investigation of this case was present at the time of
recording of the confession. By putting some general questions to the
accused no.9Deepak Sisodiya he ensured that there was a free and
comfortable atmosphere to enable the accused no.9Deepak Sisodiya to
express what was in his mind. He closed the door of his cabin to ensure
that nobody could see them. Thereafter, PW.124DCP Dr. Cherring Dorje
not only informed the accused no.9Deepak Sisodiya that he was not
associated with this case in any manner but he also in very clear terms
cautioned him more than once that he was not bound to make any
confession and if he did so, the same could be used as evidence against
him. His evidence also shows that he had also put several other questions
to the accused no.9Deepak Sisodiya for satisfying himself that the accused
no.9Deepak Sisodiya was making the confession voluntarily. He also
verified from the accused no.9Deepak Sisodiya whether he was
intimidated or tortured for making the confession to which the accused
no.9Deepak Sisodiya replied in the negative. After being satisfied,
PW.124DCP Dr. Cherring Dorje gave the period of more than 24 hours
(He was given 27 Hours and 40 minutes) to the accused no.9Deepak
Sisodiya to reconsider his decision to make the confession. This was done
in compliance of the provisions of Rule 3(4) of the MCOC Rules,1999. The
evidence of PW.124Dr. Cherring Dorje is consistent with the statements
which are recorded in the confession Part1 (Exh.1214). The object of
giving such time to the accused no.9Deepak Sisodiya was to ensure that
he was completely free from Police influence. To enable the accused no.9
Deepak Sisodiya to reconsider his decision, he was lodged in a separate
cell (room) in the General lockup of the Police Station, Azad Maidan after
274
he was first got medically examined in the J.J. Hospital. PW.106API

Shinde made the necessary entry in that regard in the lockup register.
Also, as per the directions of PW.124DCP Dr. Cherring Dorje, nobody was
permitted to meet the accused no.9Deepak Sisodiya. The station diary
entry (Exh.896 at sr.no.44 and 52) corroborate the oral evidence of
PW.106API Shinde. It is also seen that PW.124DCP Dr.Cherring Dorje
had issued the letter to the Senior PI, Police Station, Azad Maidan in that
regard containing all the necessary instructions which were to be followed
by him and his staff. By the said letter, it was also directed that the
accused no.9Deepak Sisodiya should be produced before him on
03/08/2011 at 05:30 pm.
374. From the evidence of PW.106API Shinde, it is clear that on

03/08/2011, in the evening, he again took the custody of the accused
no.9Deepak Sisodiya, got him medically examined in the G.T. Hospital
and then produced him before PW.124DCP Dr. Cherring Dorje. He had
made the station diary entry (Exh.897 at sr.no.50) in that regard. After
that, the accused no.9Deepak Sisodiya was produced before PW.124DCP
Dr. Cherring Dorje on 03/08/2011 at about 06:40 pm, in a veil along with
his medical reports. After perusing the medical reports, he directed
PW.106API Shinde to leave his chamber. Thereafter, only himself and the
accused no.9Deepak Sisodiya were in his chamber. Thereafter, PW.124
Dr. Cherring Dorje called his stenographer to record the proceedings. He
specifically asked the accused no.9Deepak Sisodiya whether he faced any
problem in the lockup or whether he had any complaint against anybody
and whether the time given to him to reconsider his decision was
sufficient. The accused no.9Deepak Sisodiya was again cautioned that he
was not bound to make any statement and that if he made any statement
it may be used as evidence against him in the Court. He specifically asked
275
the accused no.9Deepak Sisodiya whether he was coerced, intimidated,
pressurized or whether any kind of allurement or false promise was given
to him to make the confession but the accused no.9Deepak Sisodiya
replied in the negative. When PW.124DCP Dr. Cherring Dorje asked the
accused no.9Deepak Sisodiya as to why he wanted to make the
confession, he replied that he was repenting for his deeds and that he
wanted speak the truth. After that he was once again cautioned. It is only
thereafter that PW.124DCP Dr. Cherring Dorje decided to record the
confession of the accused no.9Deepak Sisodiya. Thus, there was total
compliance of the provisions of Rule 4(5) of the MCOC Rules,1999. The
record of the above acts was prepared by PW.124DCP Dr. Cherring Dorje
[page 1 of confession Part2 (Exh.1217)] and the same corroborates the
oral evidence of PW.124DCP Dr. Cherring Dorje. Thereafter, PW.124DCP
Dr. Cherring Dorje recorded whatever the accused no.9Deepak Sisodiya
stated to him. PW.124DCP Dr. Cherring Dorje has deposed about the facts
which were narrated to him by the accused no.9Deepak Sisodiya and the
same are consistent with the contents of the confession Part2 (Exh.1217)
on material points. The fact that during crossexamination of PW.124DCP
Dr. Chering Dorje the correctness of the facts recorded in the confession
Part2 were not challenged further shows that the facts recorded in the
confession Part2 were true.
375. At this stage, it is necessary to note that from the evidence of

PW.124DCP Dr. Cherring Dorje, it can be seen that while recording the
confession made by the accused no.9Deepak Sisodiya, he did not put any
questions to him. This fact shows that PW.124DCP Dr. Cherring Dorje
was conscious about his role as a Competent Officer. He was aware that
his duty was only to record whatever the accused no.9Deepak Sisodiya
wanted to say and not to interrogate him and thereby step into the shoes
276
of the Investigating Officer. It is also seen that immediately after the

recording of confession Part2, the memorandum as contemplated under
Rule 3(6) of the MCOC Rules,1999 was also issued by PW.124DCP Dr.
Cherring Dorje. After the process was completed, the custody of the
accused no.9Deepak Sisodiya was again handed over to PW.106API
Shinde. It is also seen that in compliance of Rule 3(8) of the MCOC
Rules,1999 PW.106API Shinde was directed to produce the accused no.9
Deepak Sisodiya before the learned Chief Metropolitan Magistrate,
Esplanade on 04/08/2011 as on 03/08/2011 the Court working hours
were over by the time the proceedings of confession Part2 (Exh.1217)
were completed and in the meantime he was directed to lodge the accused
no.9Deepak Sisodiya in the General lockup of the Police Station, Azad
Maidan. Accordingly, PW.106API Shinde took the custody of the accused
no.9Deepak Sisodiya and lodged him the General lockup of the Police
Station, Azad Maidan. He had made the station diary entry (Exh.897 at
sr.no.68) in that regard. On the next day, he produced the accused no.9
Deepak Sisodiya before the Court of the learned Chief Metropolitan
Magistrate, Esplanade.
376. From the evidence on the record, it can be said that PW.103API
Dewoolkar and PW.106API Shinde properly followed the instructions
given to them by their superior Officers. The steps taken by PW.106API
Shinde were not challenged by the accused no.9Deepak Sisodiya in as
much as the learned Advocate for the accused no.9 did not choose to
crossexamine PW.106API Shinde at all. Also, the confession of the
accused no.9Deepak Sisodiya was recorded by PW.124DCP Dr. Cherring
Dorje by adhering to provisions of law and only after he was satisfied that
the accused no.9Deepak Sisodiya wanted to make the confession
voluntarily. There is nothing suspicious in the evidence of PW.103API
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Dewoolkar, PW.106API Shinde and PW.124DCP Dr. Cherring Dorje.
377. It may be noted that there is absolutely nothing to suggest that the
accused no.9Deepak Sisodiya was either pressurized or coerced to make
the confession or he was under duress or undue influence. Also, it has
come in the evidence of PW.124Dr. Cherring Dorje that he recorded only
those statements which were stated by the accused no.9Deepak Sisodiya
and that he did not add anything on his own. This further reflects that the
confession was voluntary. Additionally, it may be noted that from the date
of his arrest till 03/08/2011, the accused no.9Deepak Sisodiya was
produced before the Court on the dates of remand. However, he never
made any complaint of illtreatment or torture or assault at the hands of
Police. The fact that no such grievance was made at that time reinforces
the fact that his act of making the confession was voluntary.
378. In so far as the truthfulness of the contents of the confession made
by the accused no.9Deepak Sisodiya is concerned, it may be noted that
the confession made by the accused no.9Deepak Sisodiya discloses that
many of the assertions made by him of personal nature. PW.124DCP Dr.
Cherring Dorje would not have known them unless those details were told
to him either by the accused no.9Deepak Sisodiya or somebody else.
There is nothing in the evidence of PW.124Dr. Cherring Dorje to suggest
that somebody other than the accused no.9Deepak Sisodiya could have
given those details to him. There is nothing to suggest that he was either
associated with any of the Police Officers concerned with the investigation
of this case or that he had any part to play in the investigation in this case.
379. It may be noted that in crossexamination on behalf of the accused
no.2, it was brought on the record that at the relevant time, he was
278
required to maintain law and order in the City and during the meetings
which were held in the Office of the Commissioner of Police in that regard
there was a reference to this case. It can be seen that indirectly it was
sought to be brought on the record that PW.124Dr. Cherring Dorje was
associated with this case. If the learned Advocate for the accused no.2 was
so sure that PW.124Dr. Cherring Dorje was associated with the
investigation of this case at any point of time, then nothing prevented him
from putting a straight forward question to PW.124Dr. Cherring Dorje in
that regard. The fact that this was not done further shows that PW.124
DCP Dr. Cherring Dorje was not associated with the investigation of this
case in any manner and it was none other than the accused no.9Deepak
Sisodiya who narrated the contents of the confession to him.
380. At this stage, it needs to be noted that it is the case of the defence
itself that the news regarding the murder of J.Dey had received wide
publicity in the media. Therefore, it was but natural that not only the
general public but also the Police officials may have some knowledge
about the news regarding the murder of J.Dey. But on this ground alone,
it will be unjust to hold that PW.124Dr. Cherring Dorje was aware about
all the details of the investigation of this case.
381. According to the learned Advocate for the accused no.9, the right
leg of the accused no.9Deepak Sisodiya was amputated and as on
02/08/2011, he was required to take Fortwin injection every three hours
to relieve the pain due to which he used to have a feeling of giddiness and
in view of such condition, the accused no.9Deepak Sisodiya could not
have made the confession. The said argument is required to be rejected.
Firstly, no such grievance was made by the accused no.9Deepak Sisodiya
when he was produced before the learned Chief Metropolitan Magistrate
279
on 18/07/2011 in compliance of section 18(4) of the MCOC Act,1999.
Further, no such stand was taken by the accused no.9Depak Sisodiya even
in his statement which was recorded u/s.313(b) of Cr.P.C.,1973. Also, the
perusal of the remand papers shows on 22/07/2011 while remanding the
accused no.9Deepak Sisodiya to Police custody, the MCOC Court passed
the following order below Remand application no.85/2011:
“In view of the submissions by the learned advocate for the accused
no.9, the investigating officer ACP Duraphe is directed to provide
all the necessary medical aid to the accused no.9 Deepak
Dalvirsing Sisodiya” (Reproduced as it is.)
From the above, it is not clear what submissions were made before
the Court on behalf of the accused no.9Deepak Sisodiya. It is also not
clear what the accused no.9Deepak Sisodiya was suffering from at that
time. However, one fact which is very much clear is that there is no
reference in the order regarding the alleged pain in the legs of the accused
no.9Deepak Sisodiya and the use of Fortwin injection by him. Further, on
06/08/2011, the accused no.9Deepak Sisodiya had filed an application
for medical treatment on the ground that he was suffering from various
ailments and that he was paralytic. The application was as vague as it
could have been. The details of the ailments which the accused no.9
Deepak Sisodiya was suffering from were not mentioned. However, the
MCOC Court was considerate enough and allowed the said application by
passing the following order:
“Application Ext.2 is allowed and disposed off as follows:
Supdt., MCP is directed to direct CMO,MCP to examine and treat
the A9 Deepak Dalvirsingh Sisodiya and to send the report on or
before 12/08/2011.” (Reproduced as it is.)
Thus, from the application and the order passed on it, it appears
280
that it was never the case of the accused no.9Deepak Sisodiya that he was
required to take “Fortwin” injection for the alleged pain which he was
suffering in his legs. Otherwise, the submission made on behalf of the
accused no.9Deepak Sisodiya would have found place in the order.
382. From the perusal of the further roznama dated 06/08/2011, it

appears that only after the application filed by the accused no.9Deepak
Sisodiya for medical treatment was disposed of, an oral submission was
made by the learned Advocate for the accused no.9Deepak Sisodiya that
the accused no.9Deepak Sisodiya was required to take Fortwin injection
every three hours for relieving his pain and then the following order was
passed:
“In view of the submission by ld adv for A9 that he is required to
take Fortwin injection every three hours for relieving his pain,
which is also confirmed by the ld. SPP and API Datir, Supdt. and
CMO, MCP are directed to allow the A9 Deepak Dalvirsingh
Sisodiya to carry four boxes of Fortwin injections and syringes
with him inside the prison and to allow him to take the injections,
if the accused has the necessary prescription with him and subject
to approval of CMO and if he finds it necessary.” (Reproduced as
it is.)
383. In view of the above order, the accused no.9Deepak Sisodiya was
permitted to carry four boxes of Fortwin injections and syringes with him
inside the prison subject to having prescription and subject to approval of
the CMO and only if the CMO found it to be necessary. It may be noted
that during the course of arguments, the learned for the accused no.9 did
not point out any document to show that in view of the above order
passed by the Court the CMO had found that it was necessary for the
accused no.9Deepak Sisodiya to take Fortwin injection. Thus, it appears
that even after the above mentioned order was passed the accused no.9
281
Deepak Sisodiya never took the Fortwin injection.
384. Let's assume for a moment that the accused no.9Deepak Sisodiya
was indeed taking such injection every three hours. Still, there is no
evidence on the record to show that after taking the said injection he used
to feel giddiness or his condition was such that he was not in a position to
understand anything or that it affected his mental faculties. As stated
earlier, in the statement u/s.313(b) Cr.P.C.,1973 the accused no.9Deepak
Sisodiya has not taken the stand that as he was taking Fortwin injection he
was not in a position to understand anything. The stand taken by him is
that he was falsely implicated in this case by the Police from Haldvani. The
relevant portion of the statement made by the accused no.9Deepak
Sisodiya u/s.313(b) of Cr.P.C.,1973 is reproduced below:
“Q. 367: Do you want to say anything about the case?
Ans.: On 25th June there was altercation between me and the
police at my house. The whole village had gathered there. The
police was insulted and therefore I was implicated. I was
arrested on 17.07.2011. On 19.07.2011 I was produced in the
Court at Haldwani. At that time, the police from Bombay was
there. They did not have any document with them to show my
involvement in any case. Thereafter, I was brought to Mumbai. I
was being told that I would be released. As my health was very
bad I did not understand what was happening. After 6 months
when I read the chargesheet I came to know that I was charged
with supplying cartridges.”
385. The above stand taken by the accused no.9Deepak Sisodiya shows
the falsity of the claim made by him. If he was really taking Fortwin
injection and if after taking such injection he used to really feel giddiness
and and loose his sense of understanding then nothing prevented him
from taking such a stand in his statement which was recorded u/s.313(b)
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Cr.P.C.,1973. It is not the case of the accused no.9Deepak Sisodiya that at
the time of recording of his statement u/s. 313(b) of the Cr.P.C.,1973 also
he had taken the said injection because of which he was unable to
understand the questions which were put to him by the Court. It may be
stated here that when an accused claims to be falsely implicated he has to
lay down a factual foundation for the same and prove it by leading
impeccable evidence. But, no evidence was led in that regard.
386. At this stage, it is necessary to note that on 08/03/2018, the learned
Advocate for the accused no.9 argued the case on behalf of the accused
no.9Deepak Sisodiya. On that day, the accused no.9Deepak Sisodiya was
present in the Court throughout. During the course of hearing, when this
Court specifically asked the learned Advocate for the accused no.9
whether the said accused was still taking Fortwin injection, the learned
Advocate for the accused no.9 replied in the affirmative. But this Court
found that during the whole of that day, the accused no.9Deepak Sisodiya
did not go outside the Court room for taking any such injection though he
went outside the Court room for a minute or two. This further creates a
doubt about the submission made by the learned Advocate for accused
no.9 that the accused no.9Deepak Sisodiya was taking Fortwin injection.
In any case, no evidence was led on behalf of the accused no.9Deepak
Sisodiya to show that such injection caused any side effect(s).
387. It may also be noted that vide application (Exh.9) filed on

15/09/2011, the accused no.9Deepak Sisodiya who was lodged in the
Mumbai Central Prison at the relevant time prayed that he be transferred
to the Byculla District Prison. It appears that his application was allowed
and he was transferred to the Byculla District Prison. After the accused
no.9Deepak Sisodiya was admitted to the Byculla District Prison, he was
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medically examined by the Medical Officer of the Byculla District Prison
on 12/10/2011 and his medical report was forwarded to the Court as a
part of compliance. The said medical report is at page 108 of the remand
papers. The perusal of the same shows that while narrating the history to
the Medical Officer, the accused no.9Deepak Sisodiya never told him that
he was required to take Fortwin injection every three hours for the pain
which he was suffering. This omission on the part of the accused no.9
Deepak Sisodiya further shows the falsity of his claim.
388. It may also noted that the accused no.9Deepak Sisodiya has failed
to explain as to why he did not disclose the fact that he was taking
Fortwin injection either PW.103API Dewoolkar or PW.106API Shinde or
PW.124DCP Dr. Cherring Dorje. Had he told them about this, they would
have taken proper precautions. It is also necessary to state here that
during the evidence of PW.124DCP Dr. Cherring Dorje it has come on the
record that he had a degree in M.B.B.S.. It has come in the evidence of
PW.124DCP Dr. Cherring Dorje that after the accused no.9Deepak
Sisodiya was produced before him on 02/08/2011 and 03/08/2011, he
found that his medical condition was normal. Considering the fact that
PW.124DCP Dr. Cherring Dorje was a Doctor also, the opinion formed by
him cannot be simply brushed aside and in absence of any evidence to the
contrary, his opinion that the general health of the accused no.9Deepak
Sisodiya was good at that time has to be accepted.
389. From the above, it is very much clear that the story of taking
Fortwin injection by the accused no.9Deepak Sisodiya is nothing but an
afterthought and the same is weaved to create imaginary doubts about the
voluntary nature of the confession made by him.
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390. It was then argued that the accused no.9Deepak Sisodiya was
pressurized to make the confession as he was not permitted to meet his
relatives or his Advocate when he was lodged in the lockup. It may be
noted that the MCOC Act,1999 being a special Statute, its provisions will
prevail over the general provisions of law. The MCOC Act,1999 does not
entitle an accused to meet his relatives or his Advocate. Therefore, the
accused no.9Deepak Sisodiya cannot claim such benefit. Having said this,
let's assume that the accused no.9Deepak Sisodiya was entitled to meet
his relatives or his Advocate. But it is not his stand that when he was in
the lockup he expressed any desire to meet his relatives or his Advocate
and the same was refused. It is also not the case of the accused no.9
Deepak Sisodiya that though his relatives or his Advocate wanted to meet
him, they were not permitted to do so. That apart, the accused no.9
Deepak Sisodiya was being represented by his Advocate since day one
after he was brought to Mumbai. But no grievance was made by his
Advocate with regard to the above. Hence, the submission made on this
point has to be rejected.
391. It was also argued that many of the statements made by PW.124
DCP Dr. Cherring Dorje in his examinationinchief do not find place in the
confession Part2. It was thus submitted that in view of the omissions, the
confession made by the accused no.9Deepak Sisodiya cannot be relied
upon. The above submission does not have any basis. The failure on the
part of PW.124DCP Dr. Cherring Dorje to incorporate all the questions
and answers which he had put to the accused no.9Deepak Sisodiya is not
of much importance when it is duly proved that PW.124DCP Dr. Cherring
Dorje had complied with all the requirements of the law regarding the
recording of the confession made by the accused no.9Deepak Sisodiya.
Further, the fact that there is no challenge to the facts stated by the
285
accused no.9Deepak Sisodiya in his confession makes the case of the

prosecution even more strong. That apart, it cannot be forgotten that
PW.124DCP Dr. Cherring Dorje was totally unconnected with the
investigation of this case. Though he was a Police Officer he did not have
any motive to falsely implicate the accused no.9Deepak Sisodiya.
392. It was next argued that the accused no.9Deepak Sisodiya wanted to
give his 'statement' and not 'confessional statement' before PW.124DCP
Dr. Cherring Dorje. The said argument has no basis. The prosecution has
duly proved that the accused no.9Deepak Sisodiya had made confessional
statement before PW.124DCP Dr. Cherring Dorje. Under the MCOC
Act,1999 PW.124DCP Dr. Cherring Dorje was empowered to record a
confession and not a general statement of the accused. That apart, the
stand taken by the accused no.9Deepak Sisodiya is nothing but an
afterthought. When the accused no.9Deepak Sisodiya was produced
before PW.124DCP Dr. Cherring Dorje he was cautioned on more than
one occasion that if he makes the statement he could be punished on the
basis of the same. Also, as stated earlier, after the confession was
recorded, he was produced before the learned Chief Metropolitan
Magistrate, Esplanade on 04/08/2011 in compliance of section 18(4) of
the MCOC Act,1999. At that time also, he did not make any such
grievance. On the contrary, he admitted before the learned Chief
Metropolitan Magistrate that the contents of the confession were correct
and as per the narration given by him. Not only that, the accused no.9
Deepak Sisodiya has clearly stated that there was no threat, pressure or
influence by the Police when his statement was being recorded. In view of
the above, nothing more is required to be stated further as it is very much
clear that the accused no.9Deepak Sisodiya was aware about what
statement was given by him to PW.124DCP Dr. Cherring Dorje and what
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could be its effect.
393. It was then argued that the accused no.9Deepak Sisodiya was
lodged in the General lockup of the Police Station, Azad Maidan where
not only the suspects from the other Police Stations are lodged but also
the Officers of the Crime Branch have access to the same. On the basis of
the above, it was submitted that the possibility of the Officers from the
Crime Branch approaching the accused no.9Deepak Sisodiya for
pressurizing or coercing him to make the confession cannot be ruled out.
The said submission deserves to be rejected. There is no absolutely no
evidence to suggest that what the learned Advocate for the accused no.9
has submitted might have happened. That apart, as stated earlier, when
the accused no.9Deepak Sisodiya was produced before the learned Chief
Metropolitan Magistrate, Esplanade he had himself stated that the
contents of his statement were correct and as per the narration given by
him and that there was no threat, pressure or influence by the Police when
his statement was being recorded. The Court record has to be believed and
as such, it has to be said that the submission made on this point has no
substance.
394. It was then argued that the confession made by the accused no.9
Deepak Sisodiya was already prepared and produced before PW.124DCP
Dr. Cherring Dorje and the same cannot be taken into consideration for
any purpose. It was submitted that PW.124DCP Dr. Cherring Dorje has
deposed that on 03/08/2011, the accused no.9Deepak Sisodiya was
produced before him by PW.106API Vijay Shinde at about 06:40 pm and
after completing the statutory formalities he recorded the confession Part
2. Thereafter, he handed over the custody of the accused no.9Deepak
Sisodiya to PW.106API Vijay Shinde after completing the statutory
287
formalities along with three letters and two sealed envelopes (containing
original of the confession Part1 and 2). However, by pointing to the
evidence of PW.106API Vijay Shinde, the learned Advocate for the
accused no.9 submitted that after the confession of the accused no.9
Deepak Sisodiya was recorded, PW.124DCP Dr. Cherring Dorje handed
over the custody of the accused no.9Deepak Sisodiya to him along with
two sealed envelopes (containing original of the confession Part1 and 2)
and then himself, his team who had accompanied him and the accused
no.9Deepak Sisodiya went to the G.T. Hospital where the accused no.9
Deepak Sisodiya was medically examined. Relying upon the medical
report (Exh.1672) which shows that the medical examination of the
accused no.9Deepak Sisodiya was conducted at 06:15 pm on 03/08/2011
and the evidence of PW.106API Vijay Shinde on this point, it was argued
that PW.124DCP Dr. Cherring Dorje could not have recorded the
confession Part2 at 06:40 pm when at 06:15 pm, PW.106API Vijay
Shinde was already having the original of the confession Part1 and 2 in
his hands.
395. The above submission has no merit. The statement made by

PW.106API Vijay Shinde that the accused no.9Deepak Sisodiya was
taken for medical examination after he took his custody from PW.124DCP
Dr. Cherring Dorje is nothing but an aberration and no importance can be
attached to same. When the evidence of PW.106API Vijay Shinde is
considered as a whole and together with the evidence of PW.124DCP
Dr.Cherring Dorje it can be seen that what had actually happened was that
on 03/08/2011, in the evening PW.106API Vijay Shinde took the custody
of the accused no.9Deepak Sisodiya from the General lockup of the
Police Station, Azad Maidan and then took him for medical examination to
the G.T.Hospital. Therefore, he produced the accused no.9Deepak
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Sisodiya before PW.124DCP Dr. Cherring Dorje. Otherwise, there was no
occasion for PW.124DCP Dr. Cherring Dorje to go through the medical
report dated 03/08/2011 of the accused no.9Deepak Sisodiya. The fact
that the accused no.9Deepak Sisodiya was first taken for his medical
examination to the G.T. Hospital and then produced the accused no.9
Deepak Sisodiya before PW.124DCP Dr. Cherring Dorje is very much clear
from the station diary entry (Exh.897) which was made by PW.106API
Vijay Shinde at the relevant time. It is no doubt true that the oral evidence
of PW.106API Vijay Shinde is the substantive evidence but it cannot be
forgotten that he was deposing after about six years after the incident and
he might have missed the sequence of the events which had taken place at
that time. The errors due to lapse of memory have to be given due
allowance as a witness cannot be expected to possess a photographic
memory and to recall the details. The aberration in the evidence of
PW.106API Shinde is not intentional/deliberate. On the other hand, the
station diary entry (Exh.897) is a contemporaneous record and has to be
given due weightage. Therefore, this Court is not inclined to attach any
importance to the aberration in the evidence of PW.106API Vijay Shinde.
396. It was next argued that the confession made by the accused no.9
Deepak Sisodiya is not reliable also on the ground that in the confession
he is alleged to have said that at the time of going to the Katgodam
railway station for delivering the cartridges and the two revolvers to the
accused no.1Rohee Tangappan Joseph @ Staish Kalya he was driving the
Scorpio vehicle. On the basis of the above, it was submitted that as
admittedly, the right leg of the accused no.9Deepak Sisodiya was
amputated he could not have driven the Scorpio vehicle and a false
statement was attributed to him. The said submission has no merit. Firstly,
even though it is not disputed that the right leg of the accused no.9
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Deepak Sisodiya was amputated the fact remains that he is using

prosthetic foot (Jaipur foot). Whenever he appeared before this Court it
was found that he was using prosthetic foot (Jaipur foot) and he was able
to walk properly. Also, it is not that a person using prosthetic foot (Jaipur
foot) cannot drive a vehicle. It was not shown that unless the vehicle is
modified a person using prosthetic foot (Jaipur foot) cannot drive it. That
apart, it needs to noted that when PW.124DCP Dr. Cherring Dorje was in
the witness box, he was never questioned about any of the facts stated by
the accused no.9Deepak Sisodiya in confession Part1 and 2. Therefore,
the above submission cannot be accepted.
RETRACTION OF THE CONFESSION BY THE ACCUSED NO.9DEEPAK
SISODIYA.
397. On 15/09/2011, when the accused no.9Deepak Sisodiya was
produced before the MCOC Court at the remand stage, he retracted the
confession made by him before PW.124DCP Dr. Cherring Dorje on
02/08/2011 and 03/08/2011. This Court is not inclined to read much into
the retraction of confession made by the accused no.9Deepak Sisodiya as
it is very clear that the same was done by way of an afterthought.
398. The record show that the accused no.9Deepak Sisodiya was caught
at Nainital and brought to Mumbai where he was arrested. He was
produced before the MCOC Court at Mumbai on 22/07/2011. On the
same day, Advocate Shri Nitin Sejpal filed vakalatnama on behalf of the
accused no.9Deepak Sisodiya. After hearing both the sides, the accused
no.9Deepak Sisodiya was remanded to Police custody till 28/07/2011.
Thereafter, his Police custody was extended till 06/08/2011 and after
that, the accused no.9Deepak Sisodiya was remanded to judicial custody.
On the dates of remand, he was produced before the Court but neither he
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nor his Advocate made any grievance of illtreatment or torture at the
hands of the Police. The confession of the accused no.9Deepak Sisodiya
was recorded on 02/08/2011 and 03/08/2011. There is nothing to show
that Advocate Shri Nitin Sejpal who was representing the accused no.9
Deepak Sisodiya raised any grievance that the confession made by the
accused no.9Deepak Sisodiya was not voluntary or that he never made a
confession. Also, on 04/08/2011, the accused no.9Deepak Sisodiya was
produced before the Court of the learned Chief Metropolitan Magistrate,
Esplanade in compliance of the provisions of section 18(4) of the MCOC
Act,1999. But at that time also, neither the accused no.9Deepak Sisodiya
nor his Advocate raised any grievance that the confession was not
voluntary or that no confession was made. The purpose of producing the
accused before the Magistrate is to provide an early opportunity to him to
give his say before an independent agency to ensure that the confession
made by him is not outcome of any trap, track or importune. But the
accused no.9Deepak Sisodiya did not make use of the opportunity which
he had. If the accused no.9Deepak Sisodiya had not make any confession
then he should have used that opportunity. But, it is only on 15/09/2011,
after engaging the services of another learned Advocate, that the accused
no.9Deepak Sisodiya chose to move application for retraction (Exh.6).
The accused no.9Deepak Sisodiya has not explained as to why he waited
for more than one month before making the application for retraction
(Exh.6) when nothing prevented him from making the grievance in that
regard earlier.
399. It may be noted that in the retraction application (Exh.6), it was
contended that he was never produced before the learned Court of
Metropolitan Magistrate, Esplanade on 04/08/2011. The same cannot be
accepted as the record in that regard is available before this Court in the
291
form of the statement (Exh.1421) which was recorded by the learned

Chief Metropolitan Magistrate, Esplanade. In the statement before the
learned Chief Metropolitan Magistrate, Esplanade the accused no.9
Deepak Sisodiya clearly stated that the confession Part1 & 2 was recorded
by PW.124DCP Cherring Dorje, that the contents of the same were read
over to him, that the contents were correct, that he was not threatened,
pressurized or influenced by the any Police Officer that he had personally
gone through the contents of the same and it was recorded as per the
narration given by him, that it was his voluntary statement and that he
had signed the same. The above statements which were made by the
accused no.9Deepak Sisodiya before the learned Chief Metropolitan
Magistrate, Esplanade clearly show that his decision to retract from the
confession made by him after more than one month was nothing but an
afterthought and in view of the legal advice received by him.
400. It may also be noted that after the chargesheet was filed, the
accused no.9Deepak Sisodiya made another application for retraction.
Coincidently, that application also came to be marked as Exh.6. In that
application, the accused no.9Deepak Sisodiya changed his story and
claimed that though he was produced before the learned Chief
Metropolitan Magistrate on 04/08/2011 he was given an impression by
the Police that he was produced in that Court for his discharge. Not only
that he even stated that his signatures were taken on a readymade
statement under the garb of discharging him from this case. Thus, the
accused no.9Deepak Sisodiya has taken totally contradictory stands in the
two retraction applications. He did not explain as to what prompted him
to take such contradictory stands. This further shows that the retraction
was made just for the sake of it.
292
401. From the above, it is clear that the confession made by the accused
no.9Deepak Sisodiya was voluntary and truthful. At the same time, it is
clear that the retraction of the same was nothing but an afterthought.
Therefore, the said retraction is required to be ignored.
CONFESSION MADE BY THE ACCUSED NO.10PAULSON PALITARA.
402. As per the prosecution, the accused no.10Paulson Palitara was
arrested on 05/09/2011. On 13/09/2011 and on 14/09/2011, the
accused no.10Paulson Palitara voluntarily made the confession before
PW.119DCP Manohar Dalvi. The gist of the confession made by the
accused no.10Paulson Palitara is as follows:
In the year 2000, he started a canteen in the NPC Company at
Chembur, Trombay Road. He then came in contact with one Anil
Patankar who offered him the job of driver with Pradip Narayan
Madgaonkar @ Bandya Mama who was a member of the gang of
accused no.12Chhota Rajan. Bandya Mama had a hold in Tilak
Nagar, Chembur. Because of this, he accepted the said offer and
worked as a driver with Bandya Mama till 2005. On many
occasions he had seen Bandya Mama talking to accused no.12
Chhota Rajan on mobile phone. Bandya Mama had given his
(accused no.10Paulson Palitara's) mobile number to the accused
no.12Chhota Rajan and sometimes the accused no.12Chhota
Rajan used to contact him on his mobile number.
In the year 2006, Bandya Mama was named as an accused in the
murder of one Sanjay Gupta at Nerul and Bandya Mama was
shown as wanted in that case. After some days, the accused
no.12Chhota Rajan contacted him on his mobile phone and
asked him whether he was ready to work for his gang.
In the year 2007, he became the Secretary of the Bahujan Samaj
Party, Mumbai branch. He was arrested by the Crime Branch on
the basis of a complaint made by Santosh Samant against him in
relation to a quarrel which had taken place between them. But
he was released on bail on the next day. In the year 2009, he left
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the Bahujan Samaj Party and joined the Nationalist Congress

Party and he was appointed as the Secretary of that party.
He stated that in the year 2010, one Shri Sayyed r/o. Amar
Mahal near Chembur had filed a complaint of extortion against
him, the accused no.12Chhota Rajan and Builder Jatin Shah
with Police Station, Tilak Nagar and in connection with that case
he was lodged in jail for two days. On 24/07/2010, he was
externed for one year by the Chembur Police Station.
He stated that he knew the wanted accused no.2Ravi Rattesar.
In September 2010, the wanted accused no.2Ravi Rattesar
called him from the number “+401” which was a global roaming
SIM card. When he asked the wanted accused no.2Ravi Rattesar
about the features of the global roaming SIM card, he said that
such SIM card was not registered in the name of any person,
that all the incoming calls while roaming in any part of the
world were free and that if one uses such a SIM card the place
from where the caller is calling is not disclosed. Wanted accused
no.2Ravi Rattesar also told him that such SIM cards were
available in the shops at Dubai Airport. Therefore, he told the
wanted accused no.2Ravi Rattesar to bring 10 global roaming
SIM cards for him. After one week, the wanted accused no.2
Ravi Rattesar telephonically informed him that he had brought
10 global roaming SIM cards for him. After getting the SIM
cards, he used one of them. After 34 days, the accused no.12
Chhota Rajan contacted him on his phone. When he told the
accused no.12Chhota Rajan about the features of the global
roaming SIM cards, the accused no.12Chhota Rajan told him
that if he wanted to talk to him, he should talk with the help of
the global roaming SIM card only. The accused no.12Chhota
Rajan also told him to give the remaining 9 SIM cards to those
persons whose name he would disclose and accordingly, he gave
the remaining 9 global roaming SIM cards to those persons
through his driver Ashok Kunder.
Again in March 2011, he told the wanted accused no.2Ravi

Rattesar to bring 10 more global roaming SIM cards from Dubai
and accordingly, the wanted accused no.2Ravi Rattesar brought
10 such SIM cards which were already recharged from Dubai.
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The said SIM cards were received by him through his driver
Ashok Kunder. On the same day, at about 04:00 pm, the
accused no.12Chhota Rajan called him on his global roaming
SIM card number. At that time, he told the accused no.12
Chhota Rajan that he had 10 more global roaming SIM cards. He
also told the accused no.12Chhota Rajan that he had given 20
global roaming SIM cards and recharge and that money was
due. On that, the accused no.12Chhota Rajan told him to go
near the Mall at Vashi Railway Center1, at 06:00 pm and that
he would be given Rs.5 Lacs there. When he went there at 6:00
pm, one person aged between 25 to 30 years came near him and
gave him a blue colored bag made of cloth. After about 45 days,
the accused no.12Chhota Rajan called him on his global
roaming SIM card and told him to go near the gate of Diamond
garden, Chembur and to give one global roaming SIM card and
Rs.2 Lacs to a person by name Samir. Accordingly, he told his
driver Ashok Kunder to go to that place with a global roaming
SIM card and Rs.2 lacs. After about 3½ hours, the driverAshok
Kunder telephonically informed him that he had delivered the
global roaming SIM card and Rs. 2 Lacs.
After about 2 days, the accused no.12Chhota Rajan again called
him on his global roaming SIM card and told him to give one
global roaming SIM card and Rs.30,000/ to another person by
name Samir. Accordingly, he told his driverAshok Kunder to go
to the place stated by the accused no.12Chhota Rajan for
delivery the SIM card and Rs.30,000/. After about 4 hours, the
driverAshok Kunder telephonically informed him that he had
made the delivery. He has stated that he gave the balance
amount of Rs.2,70,000/ out of Rs.5 Lacs given by the accused
no.12Chhota Rajan to his wife.
On 08/05/2011, at about 10:30 am, he told his wife to give the
bag containing the money to his brotherinlaw Prasad Shah who
was present with him at that time. He told Prasad Shah to give
the bag containing cash to the wanted accused no.2Ravi
Rattesar.
On 27/07/2011 he went to his house as his period of

externment was over. On 05/09/2011, he was caught by the
295
Officers of the Crime Branch and was taken to the Head Office of
the Crime Branch for enquiry. He disclosed to them whatever he
was knowing. On 07/09/2011, he produced one global roaming
SIM card which he was using for contacting the accused no.12
Chhota Rajan which was seized by the Police by preparing
panchanama in that regard.
PAULSON PALITARA.
403. The question which arises for consideration is whether the
statement made by the accused no.10Paulson Palitara amounts to a
confession or not. The statements made by the accused no.10Paulson
Palitara will have to be considered in the light of the charges framed
against him. As in the case of the accused no.9Deepak Sisodiya, his
statement also shows that he was not actually connected with the murder
of J.Dey. However, from the statements made by him it can be clearly
gathered/ inferred that he was an active member of the gang of the
404. The membership of an Organized Crime Syndicate is made

punishable u/s.3(4) of the MCOC Act,1999. However, the question here is
that assuming for a moment that the confession made by the accused
no.10Paulson Palitara was voluntary and truthful and further assuming
for a moment that the offence in question was committed by the
Organized Crime Syndicate of the accused no.12Chhota Rajan, can the
accused no.10Paulson Palitara be convicted and sentenced for the offence
punishable u/s.3(4) of the MCOC Act,1999 simplicitor when there is no
evidence to show his involvement in the murder of J.Dey?. In the case of
Mangesh Manik Kanchan and another V. State of Maharashtra
reported in 2016 (1) Bom.C.R.(Cri.) 350, a similar question had arisen
before the Hon'ble High Court. In paragraph nos.6 to 10 of the order, the
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Hon'ble High Court observed as under:
“6. To be a member of an organized crime syndicate is an

offence under section 3(4) of the Act, which reads as follows:
3. Punishment for organised crime
(4) Any person who is a member of an organised crime
syndicate shall be punishable with imprisonment for a term
which shall not be less, than five years but which may extend to
imprisonment for life and shall also be liable to a fine, subject to
a minimum fine of rupees five lacs.

7. Before invoking section 3(4) of MCOC Act, it is necessary to
consider 3(1) of the Act. Section 3 speaks about the Punishments
for the organized crime and section 2 states the definitions of the
terms under the MCOC Act. The continuing unlawful activity is
supposed to be a core of the offences. The definition of
continuing unlawful activity under section 2(d) reads as under:

"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 organised
crime syndicate or on behalf of such, syndicate in respect of
which more than one chargesheets have been filed before a
Competent Court within the preceding period of ten years and
that Court has taken cognizance of such offence;
8. Thus, "the activity" should be prohibited by law for the time
being in force. That activity is a cognizable offence punishable
with imprisonment of three years or more. Therefore, continuing
unlawful activity necessarily contemplates commission of
cognizable offence. A person can be a member of a particular
gang but he may not participate at all in a commission of offence
committed by a particular member of the gang. For each and
every commission of the offence, all the gang members, who are
from that gang, cannot be roped in. It will lead to a tyrant
situation. These members may work under one leadership,
however, they may commit offence independently which should
fall under the definition of "continuing unlawful activity" as
either singly or jointly as a member of an organized crime
297
syndicate. However, it is necessary for a member to either

participate actively or passively in such crime, then only he can
be charged for the offence punishable under the Indian Penal
Code and then the member who has knowingly participated
either actively or passively can also be prosecuted under section
3(4) of the MCOC Act............
9. Continuous unlawful activity contemplates commission of

cognizable offence and therefore, if at all there is a commission
of cognizable offence along with other ingredients, then it is a
continuous unlawful activity may amount to organized crime
and the person who is involved in such commission of offence
and if at all he is a member of the organized crime syndicate, he
can be punished under section 3(4) of the MCOC Act. These all
definitions are circular and interlinking with each other and
therefore, a prosecution simplictor under section 3(4) of the
MCOC Act though is available in the Act, is practically not
possible. A member of syndicate may commit cognizable offence
jointly, then section 3(4) can be invoked for the offence and he
can be chargesheeted accordingly. However, if cognizable
offence is not committed and though he is known as a member
of organized crime syndicate, cannot be prosecuted and charge
sheeted for being a member of organized crime alone. Though
there is a penal provision yet due to circular definitions of the
terms under sections 2(d) and 2(e) of the Act, a member of a
gang practically cannot be prosecuted under section 3(4) of the
Act simplicitor.
10. Life flows and a member may repent and he may withdraw
himself from the gang. A person may not remain a member of
the gang throughout his life and therefore, it is draconian to
permanently keep him under a hanging sword that he can be
prosecuted under section 3(4) of the MCOC Act for any crime
committed by any member of the gang. Therefore, penal section
3(4) is necessarily controlled by defining sections 2(d ) and 2(e)
of the Act..............”
405. The observations made by the Hon'ble High Court in the case of

Mangesh Manik Kanchan (supra) are squarely applicable in so far as the
case against the accused no.10Paulson Palitara is concerned. There is
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absolutely no evidence to show that the accused no.10Paulson Palitara
was actively or passively involved in the murder of J.Dey. Therefore, in
view of the observations made by the Hon'ble High Court in the case of
Mangesh Manik Kanchan (supra) he cannot be convicted for the offence
punishable u/s.3(4) of the MCOC Act,1999 simplicitor.
406. In view of the above position, it is not necessary to discuss the

evidence of PW.103API Dewoolkar, PW.115PSI Laxmikant Salunkhe and
PW.119DCP Manohar Dalvi regarding the confession made by the
accused no.10Paulson Palitara and it needs to be stated that the accused
no.10Paulson Palitara is entitled to be acquitted of all the offences with
which he is charged.
(B) E XTRAJUDICIAL CONFESSIONS MADE BY THE ACCUSED NO.12
CHHOTA RAJAN .
407. The prosecution has heavily relied upon the extrajudicial
confessions made by the accused no.12Chhota Rajan to PW.76Jitendra
Dixit, PW.78Sunilkumar Singh, PW.87Nikhil Dixit and PW.100Aariz
Chandra to connect him with the murder of J.Dey.
408. PW.76Jitendra Dixit was working as a Senior Editor with ABP news
in the year 2011. He deposed that in November 2011, he was called by an
Officer of the rank of ACP from the Crime Department for giving
statement in this case. He deposed that one day prior to that he received a
phone call from the number +3444 on his mobile number 9820703347.
He deposed that when he picked up the phone he realized that the phone
call was from accused no.12Chhota Rajan. He deposed that he identified
the voice of accused no.12Chhota Rajan as he had received phone calls
from him on earlier occasions also. He deposed that he had also heard his
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interviews which he had given to the news channels. He deposed that

being a Crime Reporter, he was in contact with the Police and he had
heard voice sample of accused no.12Chhota Rajan.
409. He deposed that in the earlier phone call which was made by
accused no.12Chhota Rajan to him, the accused no.12Chhota Rajan had
told him that the firing upon two persons namely Chhote Miya, Aasif
Dadhi and Aarif Sayyad was done at his instance.
410. He deposed that in the phone call which was made by accused
no.12Chhota Rajan one day prior to the recording of his statement, the
accused no.12Chhota Rajan told him that he regretted killing J.Dey. He
deposed that the accused no.12Chhota Rajan told him that he was mis
informed about J.Dey. He deposed that the accused no.12Chhota Rajan
told him that “kisine mere kaan bhare the”. He deposed that accused
no.12Chhota Rajan told him that J.Dey wanted that he should meet him
(J.Dey) in London but when he did not meet J.Dey in London J.Dey told
him to meet him in Philippines as shortly he was going there. He deposed
that the accused no.12Chhota Rajan told him that he did not meet J.Dey
in London as his informer in London had told him that J.Dey was meeting
people related to the gang of Dawood Ibrahim in London. He deposed that
the accused no.12Chhota Rajan told him that he was suspecting that
J.Dey was affiliated to the gang of Dawood Ibrahim. He deposed that the
accused no.12Chhota Rajan also told him that Journalists were free to
write anything and that he should not have killed J.Dey. He deposed that
during the conversation, the accused no.12Chhota Rajan also told him
that J.Dey was giving credit to Santosh Shetty and Bharat Nepali (they
were earlier members of the gang of accused no.12Chhota Rajan) for the
work done by him which had made him feel that J.Dey was against him.
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411. PW.76Jitendra Dixit deposed that after the conversation, he posted
the contents of the conversation on his personal blog “address to the
Universe” on his website www.jitendradiary.blogspot.com. He identified
the printout dated 17/11/2011 (Exh.788) of his personal blog.
that in this case, his first statement was recorded by the Crime Branch and
his second statement was recorded by the CBI but he did not remember
the exact dates on which his statements were recorded. He stated that
when he was called by the CBI for recording his statement, the CBI had
made enquiry with him about the previous statement recorded by the
Crime Branch. But he denied that at that time CBI had shown him his
previous statement which was recorded by the Crime Branch. He stated
that while giving statement to the CBI he did not give the exact date and
time on which he had received the call from the accused no.12Chhota
Rajan. He voluntarily stated that he did not give the details as the CBI was
already in possession of the copy of printout of his blog (Exh.788). He
stated that he did not remember whether at the time of giving statement
to the Police he had given the printout of the blog (Exh.788) to the Police.
He admitted that this fact was not mentioned in his statement which was
recorded by the Police. He stated that he was deposing about this fact for
the first before the Court. He stated that the above facts were not
mentioned in his statement recorded by CBI also.
413. PW.76Jitendra Dixit stated that he had done reporting about this
case also. He stated that being a Crime Reporter he had contacts with the
Police. But he stated that his contacts were purely professional. He denied
that he used to help the Police whenever required. He denied that he used
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to report the news received from the Police without verifying its truth. He
stated that whenever possible the news used to be first verified and then
forwarded for broadcasting. He denied that the Police used to give him the
confidential information. He stated that the Police did not record his
statement regarding hearing of voice sample of the accused no.12Chhota
Rajan.
414. PW.76Jitendra Dixit stated that he had not done any training or
course of recognition of voice samples. He stated that he was not an
expert in recognizing voice samples. He denied that the person who was
calling 'claimed' that he was the accused no.12Chhota Rajan. He stated
that he was very sure that the person calling him was the accused no.12
Chhota Rajan. He stated that he did not record the phone call which was
made by the accused no.12Chhota Rajan one day prior to the recording of
his statement by the Police.
415. He stated that he had gone to the Police Station on 17/11/2011
after receipt u/s.91 Cr.P.C.,1973 He stated that prior to 17/11/2011 also
he was following up this case with the Police. He denied that he did not
give the details about the date and time of the earlier phone calls received
by him from the accused no.12Chhota Rajan. He stated that he did not
remember how many times the accused no.12Chhota Rajan had phoned
him. He stated that he did not remember whether he had given the above
details to the CBI also. He denied that whatever news he had with him
was also available with the other Reporters. He stated that due to
competition, the reports were kept secret. He stated that the news about
interview with the accused no.12Chhota Rajan was having tremendous
news value. He stated that it was likely that number of viewers may be
increased by broadcasting such news.
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416. He stated that he had given the information about the phone call of
the accused no.12Chhota Rajan to his superior Officer. He stated that the
news regarding the same was not aired on his channel. He denied that as
he did not have any proof about the authenticity of the phone call the
news was not aired on his news channel. He stated that in the year 2016
when his statement was recorded by the CBI he was not remembering
exact words which were used in his conversation with the accused no.12
Chhota Rajan. He stated that when the accused no.12Chhota Rajan
phoned him one day prior to recording of his statement he did not tell him
that the firing on Arif Sayyad was also done at his instance. He clarified
that the accused no.12Chhota Rajan had told him about this when he had
made a phone call on the earlier occasion. He stated that he did not
remember when the accused no.12Chhota Rajan had made the phone call
in that regard. He denied that there was no conversation between himself
and the accused no.12Chhota Rajan. He denied that the person calling
him on the phone was not the accused no.12Chhota Rajan.
stated that it was his hobby to write blog. He admitted that in the blog he
had mentioned about the conversation which had taken place between
him and the accused no.12Chhota Rajan. He stated that he did not record
the conversation which had taken place between him and the accused
no.12Chhota Rajan. He stated that at that time he did not have the
facility to record any conversation on his mobile phone. He admitted that
this was not the first time he had received call from the accused no.12
Chhota Rajan. He stated that he had personally seen the accused no.12
Chhota Rajan in Bali when he was arrested in October 2015. He stated
that at that time, he saw the accused no.12Chhota Rajan personally for
303
the first time in his life. He stated that he did not have any one to one
interview with the accused no.12Chhota Rajan at that time. But he stated
that there were many Journalists there and they had put questions to the
accused no.12Chhota Rajan. He stated that he had recorded that event
but he did not produce that recording before the Police or CBI during the
investigation.
418. He admitted that on earlier occasion also he had deposed before the
Court regarding his blog and his conversation with the accused no.12
Chhota Rajan. He stated that he had deposed about his blog in one case
and this was the second case in which he was deposing about his blog. He
stated that in the blog he had mentioned the date on which he had
received the phone call from the accused no.12Chhota Rajan. He stated
that he had received the phone call in the afternoon but he did not
remember the exact time at which he had received the phone call. He
stated that he did not edit the blog before taking its printout (Exh.788).
He stated that he did not mention his mobile number in the blog as the
contents of the blog were in the public domain and he did not want to
publicize his mobile phone number. He admitted that in the printout of
the blog (Exh.788) the date on which he had received the phone call was
not mentioned. He stated that he had posted the article on his blog on
16/11/2011 in the evening. He stated that he had received the phone call
in the afternoon on that day. He stated that as soon as the article was
posted on the blog, the time and date of its posting was automatically
generated. He stated that the printout (Exh.788) was taken on
17/11/2011. He stated that he did not remember the exact time when the
printout was taken but it was in the morning before he went to the Police
Station. He stated that the blog was created on his computer. He admitted
that when he received the phone call, he put the first question to the
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accused no.12Chhota Rajan. He admitted that thereafter the accused

no.12Chhota Rajan went on answering his questions. He stated that he
did not find any ambiguity or confusion in whatever the accused no.12
Chhota Rajan had told him. He stated that nobody else was present
around him when the accused no.12Chhota Rajan had phoned him and
during the time he was talking to him. He admitted that the accused
no.12Chhota Rajan had phoned him as he was the Senior Editor of ABP
News.
419. He stated that on 17/11/2011 he did not show his mobile phone to
the Police. He stated that the Police also did not tell him to produce his
mobile phone at any time. He stated that at that time, the call history of
his mobile showed upto 20 received calls. He stated that when he received
the phone call from the number +3444 the digits in front of it or after it
were not reflected on the screen of his mobile phone.
he was aware about the stage of investigation when he was called by the
Police for recording his statement. He stated that from the date of the
incident till 17/11/2011, the Police did not make any enquiry with him
regarding the incident.
stated that the blog was his personal space on the Internet in which he
used to write his experiences and views on various issues. He stated that
the reason for creating a blog was to make people aware about his views
and experiences. He stated that he was writing blogs since the year 2007.
He stated that at that time, he used to write about 34 blogs per month.
He stated that he used to get lot of comments from the public on his blog.
305
He stated that he knew PW.78Sunilkumar Singh, PW.100Aariz Chandra
and PW.87Nikhil Dixit. He stated that he knew PW.78Sunilkumar Singh
since the year 1996 as at that time, he was working with him in Hindi
Daily “Dopeher Ka Samna”. He stated that he was knowing PW.100Aariz
Chandra since the year 200203 as he used to meet him whenever they
used to come to the Court for covering news. He stated that he was
knowing PW.87Nikhil Dixit since the year 2002 as he was also reporting
on crime related matters. He denied that as all of them belonged to the
same field they used to regularly meet. He clarified that he used to meet
them in relation to Court cases whenever required. He stated that he did
not remember whether he had seen the news of PW.78Sunilkumar Singh
pertaining to the murder of J.Dey. He stated that he was aware that
PW.78Sunilkumar Singh had received a call about the murder of J.Dey.
He stated that he did not remember the exact date on which he had
received the call. He stated that the call may have been received by
PW.78Sunilkumar Singh during the period when he also received the call.
He stated that he did not remember whether he had any discussion with
PW.78Sunil Singh about the phone call. He stated that he did not discuss
anything with PW.78Sunilkumar Singh about the phone call received by
him (PW.76). He stated that he had met PW.78Sunilkumar Singh many
times after November 2011. He stated that he did not remember whether
he had met PW.78Sunilkumar Singh between July 2011 and November
2011.
422. He stated that he had informed the mother of J.Dey about his
murder. He stated that he had firstly met the mother of J.Dey at the time
of his funeral and thereafter he had met her once in 20122013 while
following up the story regarding the murder of J.Dey and thereafter he
had then again met her on one occasion when she was not keeping well.
306
He stated that he had met the mother of J.Dey lastly about 23 years ago.
He stated that he had met PW.7Ms.Shubha Sharma (wife of J.Dey) on
two occasions. He stated that he had firstly met her at the time of funeral
of J.Dey and on the second occasion, he had met her at the CSMT station
where he was to catch a train. He stated that he did not tell about the
phone call to the mother or to PW.7Ms.Shubha Sharma. He denied that
the accused no.12Chhota Rajan did not make any phone call to him.
423. PW.78Sunilkumar Singh was working as a Reporter since the year
1993. He deposed that in the year 2005, he joined the 'Channel 7' which
later on was known as IBN7. He deposed that thereafter, he joined 'NDTV
India' channel and in the year 2011 also he was working with the same
news channel. He deposed that the mobile no.7738409480 belonged to
him.
424. He deposed that on 01/07/2011 when he was in his Office and

working on the story of Niraj Grover murder case, he received a phone call
from the number +5032 at about 09:00 pm from the accused no.12
Chhota Rajan who identified himself as 'Nana'. He deposed that the
accused no.12Chhota Rajan asked him whether he was going to record
whatever he was going to say. He deposed that he told the accused no.12
Chhota Rajan that he will be noting down whatever he says. He deposed
that the accused no.12Chhota Rajan told him that he wanted to tell him
about the murder of J.Dey. He deposed that the accused no.12Chhota
Rajan told him that J.Dey had crossed the limits and that he was
publishing incorrect news about him and maligning him. He deposed that
the accused no.12Chhota Rajan told him that J.Dey was writing good
things about Dawood Ibrahim and bad things about him. He deposed that
the accused no.12Chhota Rajan told him that J.Dey had written that the
307
accused no.12Chhota Rajan had become financially weak and whether
J.Dey was his accountant. He deposed that the accused no.12Chhota
Rajan told him that J.Dey was trying to double cross him. He deposed that
the accused no.12Chhota Rajan also told him that J.Dey had called him to
London when he had gone there but he did not go there as his informer
from Dubai had told him that it was dangerous for him to go there. He
deposed that the accused no.12Chhota Rajan told him that after returning
to India J.Dey had again phoned him on 25/05/2011 or 26/05/2011 and
told him that he was going to Philippines and that the accused no.12
Chhota Rajan should meet him there. He deposed that the accused no.12
Chhota Rajan told him that he did not give any confirmation to J.Dey
about his visit. He deposed that when he asked the accused no.12Chhota
Rajan as to why he targeted a Journalist as they were doing their duty, the
accused no.12Chhota Rajan told him that J.Dey had crossed the limits. He
deposed that the accused no.12Chhota Rajan told him that Journalists
should also be within their limits while working. He deposed that the
accused no.12Chhota Rajan told him that if a Journalist crosses his
boundary then he should be ready to face the consequences. He deposed
that the accused no.12Chhota Rajan told him as to how J.Dey was
maligning his image. He deposed that the accused no.12Chhota Rajan
told him that in the articles written by J.Dey in the daily 'MidDay' on
30/05/2011 and 02/06/2011 he had written bad things about him and
had created a picture as if he was an antinational though it was he who
had got Riyaz Bhatkal killed in Pakistan. He deposed that when he told the
accused no.12Chhota Rajan that no agency would confirm this fact, the
accused no.12Chhota Rajan told him that he had done his work. He
deposed that his conversation with the accused no.12Chhota Rajan went
on for about 30 minutes. He deposed that the accused no.12Chhota Rajan
also talked generally about himself. He deposed that when he asked the
308
accused no.12Chhota Rajan whether he had asked the accused persons of
this case to surrender he replied in the negative and said that it was the
work of the Police to arrest the accused persons. He deposed that when he
asked the accused no.12Chhota Rajan whether he had any guilty feeling
for killing J.Dey he said that he did not have any such feeling. He deposed
that the news about his above conversation with the accused no.12
Chhota Rajan was aired on the 'NDTV India' news channel.
425. He deposed that after the news was aired, he had received a
summon from Police for giving statement regarding the breaking news
which was given by him on the 'NDTV India' channel about his
conversation with the accused no.12Chhota Rajan. He deposed that the
Police had also asked him to bring a record of news which was aired on
the 'NDTV India' news channel regarding his conversation with the
accused no.12Chhota Rajan in a CD and accordingly he had produced the
CD (Exh.797) at the time of recording of his statement. When the CD
(Exh.797) was played in open Court in presence of all, PW.78Sunilkumar
Singh stated that it was the same CD in which the news which was aired
on the 'NDTV India' channel was recorded and which he had given to the
Police and that its contents were correct.

denied that he had call recording facility in his mobile phone at that time.
He denied that he did not make any note regarding the conversation
which he had with the accused no.12Chhota Rajan. He stated that he did
not feel that the note was an important document. He stated that the
Police or the CBI did not enquire with him about the note which he had
prepared. He stated that he did not give the note to the Police on his own.
He stated that he did not show that note to his superior Officer. He stated
309
that he did not remember whether the Police had conducted any press
conference after the arrest of some of the accused persons in this case. He
stated that he did not remember whether the other news channels had
aired the said press conference. He admitted that he was aware that some
of the accused persons of this case were arrested and produced in the
Court and that at time he had gone to the Court where the Reporters from
other news channels were also present. To a specific question put to him
whether the person who phoned him introduced himself 'claiming' to be
the accused no.12Chhota Rajan and not as the accused no.12Chhota
Rajan he assertively answered that the 'NDTV India' news channel had
said that a person claiming himself to be the accused no.12Chhota Rajan
had phoned him but he had said that the accused no.12Chhota Rajan had
phoned him.
427. He stated that the 'NDTV India' news channel was not sure whether
the accused no.12Chhota Rajan had phoned him and to avoid legal
complications it was mentioned that person claiming to be accused no.12
Chhota Rajan had phoned him. He admitted that the news that was aired
was that a person claiming to be the accused no.12Chhota Rajan had
phoned him. He stated that he did not object for that. He stated that when
he had received the phone call from the accused no.12Chhota Rajan on
01/07/2011 he was in the Office and there were other employees also. He
stated that he had not done any course in voice recognition. He denied
that at the time of recording of his statement by the Police he did not
remember the exact words used in the interview with the accused no.12
Chhota Rajan and therefore Police did not record the same. He stated that
the J.Dey murder case was a sensational news and the news in that regard
could have increased the TRP rating of the channel. He denied that he had
created a false story to help the Police. He denied that he did not have any
310
conversation with the accused no.12Chhota Rajan.

stated that he did not know what were the digits prefixed or suffixed to
the number +5032. He stated that the number was only having the digits
+5032. He stated that his statement was recorded by the Police on
06/07/2011. He stated that he had received the summon from the Police
in that regard on 04/07/2011. He stated that on 04/07/2011, he did not
have the notes which were prepared by him regarding his conversation
with the accused no.12Chhota Rajan as it was already destroyed. He
stated that he had spoken to 45 persons who were superior to him in his
Office about his conversation with the accused no.12Chhota Rajan. He
stated that he could not give their names. He admitted that he was
questioning the accused no.12Chhota Rajan when he was talking about
J.Dey. He stated that he had also sought clarification from the accused
no.12Chhota Rajan about the incident and cause of the incident. He
stated that he did not remember whether during his conversation with the
accused no.12Chhota Rajan he had used the words “double cross”. He
stated that the accused no.12Chhota Rajan had told him during the
conversation that J.Dey was trying to double cross him. He stated that
while giving statement to the Police and CBI he did not state that the
accused no.12Chhota Rajan had told him that J.Dey was trying to double
cross him.
429. In crossexamination on behalf of the accused nos.3,4, and 12, he
stated that he done a Diploma in Journalism and degree course in B.A.. He
stated that he was in the field of Journalism since the year 1993. He stated
that he had started reporting on crime related matters since the very
beginning of his career. He stated that for getting the news, he used to co
311
ordinate with the Police and also had his own sources.
430. He stated that he knew PW.100Aariz Chandra, PW.76Jitendra

Dixit and PW.87Nikhil Dixit. He stated that he had worked with PW.76
Jitendra Dixit in the daily 'Dopehar ka Samna' and that he had contact
with him since that time. He stated that both of them used to meet each
other as and when required. He stated that he was knowing PW.100Aariz
Chandra since the year 20042005. He stated that he was in contact with
PW.100Aariz Chandra till the year 2016. He stated that he did not have
any conversation with PW.100Aariz Chandra regarding the 'Breaking
news' pertaining to the accused no.12Chhota Rajan which was aired on
the 'NDTV India' news channel. He stated that came to know from the
newspapers and from the general discussion amongst the Reporters that
PW.100Aariz Chandra and PW.76Jitendra Dixit had also received phone
calls from the accused no.12Chhota Rajan. He stated that the “Breaking
news” which was aired on the 'NDTV India' news channel first in time. He
stated that he did not have information about their news. He stated that
he did not have any conversation with PW.100Aariz Chandra and PW.76
Jitendra Dixit about the phone calls received by them.
431. He stated that during the conversation with the accused no.12
Chhota Rajan, in which he had told him that he had killed J.Dey, the
accused no.12Chhota Rajan also told him that Riyaz Bhatkal (member of
Indian Mujahdeen) was killed at his instance. He stated that he was not
aware whether there was a news item in the daily 'Indian Express' that
Riyaz Bhatkal was not killed by the accused no.12Chhota Rajan and the
photographs of the body of Riyaz Bhatkal were morphed. He stated that
he did not prepare any news item on the subject of the accused no.12
Chhota Rajan killing Riyaz Bhatkal. To a specific question as to why he
312
chose to run story on the murder of J.Dey and not Riyaz Bhatkal he
answered that the news about the murder of J.Dey was confirmed and it
was a big news. He stated that he was not aware that the accused no.12
Chhota Rajan had given an interview to Deepak Sharma of 'Headlines
Today' news channel in the year 2014 denying his involvement in the
murder of J.Dey and denying that he had some kidney problem or he was
on dialysis.
432. He stated that there were different slots of programs on TV channels
such as morning slot, afternoon slot, evening slot and prime slot. He stated
that his department was not concerned with the marketing department of
his news channel. He stated that the main object of the channels was to
earn profit. He stated that the “Breaking news” containing the details of
his conversation with the accused no.12Chhota Rajan was aired after
09:30 pm. He stated that the views of Shri Y.P. Singh (Retd. IPS), Shri
Y.C. Pawar (Retd. IPS), PW.68Sachin Kalbag were taken. He denied that
a false “Breaking news” was aired only for generating revenue and
increasing TRP of the channel. He denied that the 'NDTV India' news
channel earned a lot of revenue because of the telecast of the false news.
He denied that there was no conversation between himself and the
accused no.12Chhota Rajan and that he had given statement to the Police
only because the “Breaking news” was aired on the channel.
433. He stated that from his channel, he was following this case and he
was assisted by his team members. He stated that the Internet calling was
done through VOIP. He stated that he had not heard of the number
'+3444'. He stated that he did not remember whether he had heard the
number +6744, +301 and +432. He stated that he was not aware
whether these numbers were prefixes of Internet calling number and they
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did not belong to any specific mobile number. He stated that he was not
aware whether the number +5032 was an Internet calling number and it
did not belong to any mobile phone. He denied that he did not receive any
phone call from the accused no.12Chhota Rajan.
434. PW.87 Nikhil Dixit was working as a Journalist since the year 2000.
Till the year 2005 he had worked in various publications such as the daily
'MidDay', 'Times of India', 'Aaj Tak' & 'Headlines Today'. In the year 2006,
he was working with the news channel 'Times Now' and in August 2006,
he joined the daily 'DNA' and worked there till 2016. He deposed that he
knew J.Dey. He deposed that in the year 2002, when he was working with
the daily 'Times of India' he had met J.Dey and during his early days, he
used to seek guidance from J.Dey on how to do reporting in the field of
Crime Journalism. He deposed that over a period of time he developed
friendship with J.Dey and through him he came in contact with his
mother, sister and wife.
435. He deposed that J.Dey was a crime Journalist and he used to cover
reports of the underworld. He deposed that J.Dey was very discreet about
the sources of his information. He deposed that J.Dey had told him about
Farid Tanasha who was working with the accused no.12Chhota Rajan. He
deposed that J.Dey had told him that he used to meet Farid Tanasha at
Chembur as he was writing a book on the underworld. He deposed that he
also knew the accused no.11Ms.Jigna Vora as she was also a Journalist.
He deposed that he had met her in the year 20062007 and at that time,
she was working as a Senior Journalist in the daily 'Asian Age'.
436. He deposed that J.Dey had showed him a text message on his phone
and told him that the accused no.11Ms.Jigna Vora had sent a message to
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him saying “you think you are too smart or what?”. He deposed that J.Dey
had told him that the accused no.11Ms.Jigna Vora did not like the fact
that he was in touch with Farid Tanasha who was also the informer of the
accused no.11Ms.Jigna Vora. He deposed that after J.Dey had written a
story that after the killing of Osama Bin Laden, Dawood Ibrahim had left
Pakistan and that the article was published in the daily 'MidDay'. He
deposed that after a few days of the publication of the article the accused
no.11Ms.Jigna Vora also published a news report refuting the story
published by J.Dey in the daily 'MidDay'. He deposed that in that story the
accused no.12Chhota Rajan was interviewed in which he had said that
Dawood Ibrahim was very much in Pakistan and that he had not fled
Pakistan. He deposed that J.Dey had written a news report about the
killing of Arif Bhai who was the driver of Iqbal Kaskar who was the
brother of Dawood Ibrahim. He deposed that in that article J.Dey had
written that the killing was the handiwork of the gang of the accused
no.12Chhota Rajan and that the accused no.12Chhota Rajan was aging.
He deposed that thereafter also J.Dey had written some articles on the
accused no.12Chhota Rajan in which J.Dey had mentioned that most of
the gang members of the accused no.12Chhota Rajan had left him and
they had gone on pilgrimage or somewhere. He deposed that J.Dey was a
very private person and that he was not having many friends beyond his
professional circle.
437. He deposed that on 18/08/2011 at about 04:00 pm he received a
phone call on his mobile number 9930900303 from the number +3444.
He deposed that when he picked up the phone call, the caller introduced
himself as the accused no.12Chhota Rajan and told him that he had killed
J.Dey because J.Dey was planning to kill him and was also doing a lot of
stories against him and his gang. He deposed that when asked him why he
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was telling all this to him, the accused no.12Chhota Rajan told him that
he was telling all this to him as he was a close friend of J.Dey. He deposed
that the accused no.12Chhota Rajan then disconnected the phone call.
stated that he was annoyed and upset after hearing the news of murder of
J.Dey. He denied that as he was annoyed and upset the Police had told
him that his help would be required and accordingly he had given his
statement. He stated that between 11/06/2011 to October 2011, he did
not go to the Police Station on his own to give information about J.Dey
which could be of help to the Police during investigation. He denied that
J.Dey did not show him any text message from his mobile phone.
stated that till the year 2011, he had experience of about 9 years of
reporting news related to crime. He admitted that he was a close friend of
J.Dey. He stated that he had performed the final rites of J.Dey. He stated
that he did not tell PW.7Ms.Subha Sharma (wife of J.Dey) that he had
that J.Dey did not tell him that he was writing any book on Dawood
Ibrahim. He voluntarily stated that J.Dey had told him that he was writing
a book on the underworld. He stated that the news about his conversation
with the accused no.12Chhota Rajan on phone was not published at any
time. He stated that he came to know from news on TV about the
involvement of the accused no.12Chhota Rajan in the murder of J.Dey.
He stated that he was not aware whether some persons were claiming that
they had received phone call from a person 'claiming' to be the accused
no.12Chhota Rajan. He stated that when he was called for giving
statement the Police did not tell him that some persons had claimed that
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the accused no.12Chhota Rajan had made a phone call to them claiming
responsibility of murder. He stated that when he had informed about the
phone call received by him to DCP Shri Deven Bharti he also did not tell
him that some persons had also received a phone call from the accused
no.12Chhota Rajan claiming responsibility of the murder of J.Dey. He
admitted that while giving statement to the Police he had stated that a
person claiming to be the accused no.12Chhota Rajan had phoned him.
He stated that the Police did not seize his mobile phone on which he had
received the phone call. He denied that he did not receive any phone call
relating to the murder of J.Dey. He denied that as he was a close friend of
J.Dey he was deposing falsely to support the case of the prosecution.
stated that he had never met the accused no.12Chhota Rajan personally
at any time till today. He stated that prior to 18/08/2011, he might have
written some report about the accused no.12Chhota Rajan and or his
gang. He stated that after the year 2006 he did not do any reporting about
the gang of the accused no.12Chhota Rajan. He stated that he was using
the mobile number 9930900303 since the year 2007 and it was of
Vodafone company. He stated that he did not remember which mobile
phone he was using in August 2011. He stated that he did not know
whether the mobile phone which he was using at that time had the facility
of recording phone calls.
441. He stated that he did not note down the date on which he had
that he did not note down the number from which he had received the
said phone call. He voluntarily stated that the number from which he had
received the phone call was displayed on his mobile phone in the list of
317
received calls. He stated that he knew many other Police Officers from the
Crime Branch by their names. He stated that he had professional contacts
with them. He stated that he had informed DCP Shri Deven Bharti on
phone on the same day (on the day on which he had received the phone
call) about the call received by him from the accused no.12Chhota Rajan
before he had gone to the Police Station for giving his statement. He
stated that prior to 18/08/2011, he did not receive any phone call from
any person claiming to be the accused no.12Chhota Rajan. He stated that
he did not try to call the accused no.12Chhota Rajan prior to
18/08/2011. He stated that he did not note down or record the
conversation which had taken place between him and the accused no.12
Chhota Rajan. He stated that he did not ask the accused no.12Chhota
Rajan whether he knew him. He stated that he did not ask him as to who
had given his mobile number to him. He admitted that except asking him
why he was telling all this to him, he did not put any question to him. He
stated that he knew PW.78Sunilkumar Singh as he was his friend. He
stated that he did not remember on which date the news about this case
was aired on the 'NDTV India' news channel as presented by PW.78
Sunilkumar Singh. At the same time, he stated that it was aired prior to
18/08/2011. He stated that he did not remember whether he had seen or
heard any news aired by PW.78Sunilkumar Singh in 'NDTV India' news
channel.
442. He stated that he did not remember what was the mobile number
of J.Dey in the year 2010. He stated that he was not in regular contact
with the accused no.11Ms.Jigna Vora. He stated that he did not know
when J.Dey came in contact with Farid Tanasha for the first time. He
stated that he did not remember the exact date on which J.Dey had shown
him the text message which was received from the accused no.11Ms.Jigna
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Vora. He stated that he did not remember the date on which that text
message was sent to J.Dey or received by J.Dey. He deposed that the
message contained only the words which were stated by him during his
examinationinchief. He stated that he did not verify the mobile number
of the person who had sent the text message or who had received the text
message. He then stated that he did not see the text message and that
J.Dey had only told him about it. He stated that he did not know the exact
contents or the details of the said message. He stated that he did
remember the exact date on which the accused no.11Ms.Jigna Vora had
published the news about Dawood Ibrahim leaving Pakistan. He stated
that he did not remember whether in the report of the accused no.11
Ms.Jigna Vora there was any reference of report of J.Dey. He admitted
that as J.Dey was in contact with underworld he never used to give prior
information his whereabouts and his movements to anybody and that very
few Journalist knew about the residential address of J.Dey.
443. He stated that while giving statement to the Police he did not state
that J.Dey was working on a book, that he had told him about Farid
Tanasha who was working for the accused no.12Chhota Rajan, that J.Dey
told him that he was writing a book on the underworld, that he came to
know about the relationship of J.Dey and the accused no.11Ms.Jigna Vora
when he was seeking guidance from J.Dey, that J.Dey had told him that
the accused no.11Ms.Jigna Vora had sent a message to him by saying
“you think you are so smart or what?”, that J.Dey told him that the accused
no.11Ms.Jigna Vora did not like that he was in touch with Farid Tanasha
who was also the source of the accused no.11Ms.Jigna Vora.
444. PW.100Aariz Chandra was working as a Reporter since the year
2001. He was also knowing J.Dey since the year 2001. He deposed that
319
both of them used to meet each other daily and exchange information. He
deposed that his mobile number was 9819582444. He deposed that the
accused no.12Chhota Rajan had phoned him on 23 occasions in
September 2011. He deposed that the accused no.12Chhota
Rajan told him that he had killed J.Dey as he had published an article
against him and that he was defaming him. He deposed that when he
asked the accused no.12Chhota Rajan the reason for which he killed
J.Dey he gave the same reason. He deposed that when he asked the
accused no.12Chhota Rajan whether he could take his interview, the
accused no.12Chhota Rajan disconnected his phone. He deposed that on
the second occasion, accused no.12Chhota Rajan phoned him on a
Sunday at 06:00 pm from the number “+3444” and told him that he
regretted that he had killed J.Dey and that he should not have killed
J.Dey. He deposed that the accused no.12Chhota Rajan told him that the
accused no.11Ms.Jigna Vora given him the registration number of the
motorcycle of J.Dey. He then stated that he had passed on the RTO
registration number of the motorcycle of J.Dey to her. He deposed that
when he asked the accused no.12Chhota Rajan whether he would like to
give an interview to him he declined.
that the year '2011' was not mentioned in his statement as the year in
which he had received the phone calls from accused no.12Chhota Rajan.
He stated that he did not make a note of the conversation which he had
with the accused no.12Chhota Rajan. He stated that in the year 2016,
when the CBI made a inquiry with him he did not remember many things
due to lapse of time. He stated that no voice sample of accused no.12
Chhota Rajan was played before him at that time. He stated that he had
not done any course in voice analysis. He stated that a mimicry artist
320
could mimic voice of anybody. He denied that the Police had sought his
help for implicating accused no.12Chhota Rajan in this case.
that he had not done any course in Journalism but he was working in the
field of Journalism since last 19 years out of which he had worked in
Mumbai as a Journalist for about 18 years. He deposed that presently he
was working with the 'Aaj Tak' channel and Shri Deepak Sharma was the
Special Editor of 'Aaj Tak' channel. He stated that he had attended the
press conference which was held by the Commissioner of Police after the
arrest of the accused persons of this case but he did not remember as to
what had happened in that press conference. He stated that he did not
know whether Shri Deepak Sharma had interviewed the accused no.12
Chhota Rajan on 24/05/2014. He stated that he had no occasion to talk to
Shri Deepak Sharma regarding that interview as he was his Superior
Officer. He stated that the said interview may have been aired on the 'Aaj
Tak' channel but he could not recall due to lapse of time. He stated that he
was not aware whether in that interview the accused no.12Chhota Rajan
had stated that he had not committed the murder of J.Dey nor he gave
any interview to any Journalist in that regard.
447. He stated that he did not know whether the number '+3444' was
not a country code. He stated that it was VOIP (Voice Over Internet
Protocol). He stated that applications like Skype and Cisco were also on
VOIP and could be used for calling. He stated that he did not know
whether phone calls could be made through VOIP by one person from
Mumbai to another person in Mumbai through Internet. He stated that the
VOIP/Internet calls were routed through the servers which were in the
USA and in the UK. He stated that a news was aired on the 'Aaj Tak'
321
channel that accused no.12Chhota Rajan was suffering from kidney

failure and that he was undergoing dialysis. He stated that he had joined
the 'Aaj Tak' channel as a Reporter in the year 2005 and in due course of
time, he was promoted as the Senior Special Correspondent.
448. He stated that as per his information a senior Journalist had already
talked with the accused no.12Chhota Rajan about the murder of J.Dey
and the news about that was already aired on that news channel. He
stated that as far as he could remember the news of PW.78Sunilkumar
Singh was first aired, then the news of PW.76Jitendra Dixit was aired and
thereafter his news was aired. He admitted that the contents of all the
three news items were almost similar. He stated that he knew PW.76
Jitendra Dixit since the year 2003 and PW.78Sunilkumar Singh since the
year 2000. He stated that all the three of them used to regularly meet but
he denied that there was any conversation between them regarding the
phone calls received by him from accused no.12Chhota Rajan. He stated
that he had never personally met accused no.12Chhota Rajan. He stated
that prior to September 2011 he had no occasion to talk to accused no.12
Chhota Rajan. He stated that he had heard the voice of accused no.12
Chhota Rajan for the first time when he had phoned him in September
2011. He had denied that he came to know that the person who had
phoned him was accused no.12Chhota Rajan only because he claimed to
be the accused no.12Chhota Rajan. He stated that he was sure that the
person calling him was accused no.12Chhota Rajan as he could recognize
his voice from the style of introducing himself as 'Nana' and from his
voice. He stated that his statement was recorded in September 2011 by
the Police and at that time he neither gave his mobile phone to the Police
nor the Police asked his mobile phone from him. He denied that he did not
receive any phone calls from accused no.12Chhota Rajan.
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449. In crossexamination on behalf of accused nos.5 and 11, he

admitted that due to lapse of seven years, he did not remember on which
date the Police had called him and on which day his statement was
recorded by the Police. He admitted that his statement was recorded on
22/10/2011. He stated that the details of calls made, calls received and
calls missed could be seen in his mobile phone. He stated that his mobile
phone did not have the facility of recording phone calls. He admitted that
as J.Dey was also a Reporter it was important for him to collect the news
about his murder. He stated that the Reporters were maintaining secrecy
about the information collected by them about the murder of J.Dey. He
stated that the Reporters wanted to bring something new about the news
which was being published. He stated that if the same news was published
without any change it affected the TRP of the channels. He stated that he
did not remember the exact day or date on which the report of PW.76
Jitendra Dixit was aired but he had seen that news. He stated that though
the said news was aired repeatedly on the channel he did not know
exactly how many it was replayed. He stated that he had seen and
watched the reports of all the Reporters who were covering this case on all
the channels. He stated that he never made any phone call to accused
no.12Chhota Rajan on his own any time. He denied that a false news
report was aired to increase the TRP of his channel and to show that
something new was introduced in the case.
450. Before analyzing the evidence of PW.76Jitendra Dixit, PW.78

Sunilkumar Singh, PW.87Nikhil Dixit and PW.100Aariz Chandra, it will
be appropriate to have a look at the evidence of PW.50Indukumar Amin,
PW.66Sahil Joshi and PW.73Sanjay Prabhakar as their evidence is
relevant for the present purposes.
323
451. PW.50Indukumar Amin was doing construction business at the

relevant time. He deposed that on one day one person by name Raju came
to him on behalf of accused no.12Chhota Rajan and made an enquiry
with him regarding a property at Mulund. He deposed that Raju gave him
a phone number and told him call on that number. He deposed that he did
not exactly remember the number but it was like 3444 something. He
deposed that the accused no.12Chhota Rajan called him on his phone
number and abused him by saying that “Driver ban gaya kya, jidhar boja
udhar so ja” and by saying “Madarchod mar dalta tha tere ko usake saath,
mera time kharab chal raha hai chhod dega nahi”.
that he did not know the real name of Raju. He stated that the Police did
not make any enquiry with him. He denied that he was falsely stating that
Raju had met him on behalf of the accused no.12Chhota Rajan. He
denied that he did not receive any phone call. He admitted that while
giving statement to the CBI he did not state that the accused no.12Chhota
Rajan had abused him by saying “Madarchod mar dalta tha tere ko usake
saath, mera time kharab chal raha hai chhod dega nahi”. He denied that he
was deposing falsely due to fear of CBI.
that he did not lodge any complaint with the Police regarding being
abused by the accused no.12Chhota Rajan. He stated that accused no.12
Chhota Rajan abused him in the year 2006. He denied that he was
deposing falsely.
454. PW.66Sahil Joshi was working with 'Aaj Tak' news channel as a

324
Resident Editor at the relevant time. He deposed that he was attached to
the 'Aaj Tak' news channel since the year 2001. He deposed that PW.100
Aariz Chandra was also working as a Senior Special Correspondent with
the same TV channel. He deposed that PW.100Aariz Chandra used to
cover news regarding Crime and Court.
455. PW.66Sahil Joshi deposed that PW.100Aariz Chandra had told him
that he was covering this case and he had received a phone call from the
accused no.12Chhota Rajan. He deposed that PW.100Aariz Chandra also
told him that the accused no.12Chhota Rajan wanted to talk to him
regarding the murder of J.Dey. PW.66Sahil Joshi further deposed that
PW.100Aariz Chandra also told him that the accused no.12Chhota Rajan
had told him that as he was fearing for his life, he had taken the step to
kill J.Dey. He deposed that he (PW.66Sahil Joshi) told PW.100Aariz
Chandra that the accused no.12Chhota Rajan had never given any
interview to him. He deposed that he asked PW.100Aariz Chandra as to
why the accused no.12Chhota Rajan was suddenly calling him and telling
him all this. He deposed that he told PW.100Aariz Chandra that the
accused no.12Chhota Rajan had already spoken to a few TV channels and
asked him what was the new information which he was going to give. He
deposed that PW.100Aariz Chandra told him that the accused no.12
Chhota Rajan had told him that accused no.11Ms.Jigna Vora had given
some information about the whereabouts of J.Dey to him. He deposed that
he then asked PW.100Aariz Chandra whether the accused no.12Chhota
Rajan was ready to give any interview or whether he was just giving
information. He deposed that thereafter, PW.100Aariz Chandra again
spoke to accused no.12Chhota Rajan. He deposed that after a day or two
PW.100Aariz Chandra told him that accused no.12Chhota Rajan was not
ready to give any interview.
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stated that though there was a possibility that some persons may make a
call in the name of the another person to their news channel but he stated
that he did not receive any such call. He stated that he did not personally
give the information received by him to the Police till his statement was
recorded.
that the murder of J.Dey was committed in June 2011 and his statement
was recorded in November 2011. He stated that he did not remember the
exact date on which the incident had occurred. He stated that at the time
of the incident, he was not in India. He stated that the information
received by him from PW.100Aariz Chandra was never aired on TV as it
was not authenticated. He voluntarily stated that his TV channel thought
that just because accused no.12Chhota Rajan had named some Journalist
it did not mean that the TV channel should trust him without further
proof. He stated that he never interacted with accused no.12Chhota
Rajan.
458. He stated that PW.100Aariz Chandra was working with the 'Aaj
Tak' news channel since the year 2004. He stated that he did not
remember the exact date on which the PW.100Aariz Chandra had
contacted the accused no.12Chhota Rajan but it was August 2011. He
stated that he did not know whether PW.100Aariz Chandra had made the
phone call to accused no.12Chhota Rajan or whether the accused no.12
Chhota Rajan had made phone call to PW.100Aariz Chandra (This is
regarding the second phone call). He stated that he did not remember the
exact date on which PW.100Aariz Chandra had first spoken to the
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accused no.12Chhota Rajan. He stated that he did not make any note

about the information given to him by PW.100Aariz Chandra in August
2011. He deposed that he had spoken to PW.100Aariz Chandra regarding
this case on two occasions but he did not remember as to what was the
time gap between the two conversations.
459. The learned Advocate for the accused nos.3,4 and 12, adopted the
crossexamination which was conducted on behalf of accused nos.5 and 11
and the accused nos.1,6 and 7.
460. PW.73Sanjay Prabhakar deposed that he was working as a Reporter
since the year 1990. He was examined by the prosecution to show that on
07/06/2011, he was in the Uma Palace Bar and Restaurant, Mulund
alongwith J.Dey on the invitation of the deceased accused no.8Vinod
Asrani and that he had contact with the accused no.12Chhota Rajan. But,
he did not support the case of the prosecution. In crossexamination by the
learned SPP, he denied that in the year 20022003 he had requested J.Dey
that he wanted to interview a foreign based gangster and he should make
an arrangement for the same. He denied that J.Dey told him that deceased
accused no.8Vinod Asrani was in touch with accused no.12Chhota Rajan
and that he could arrange an interview with accused no.12Chhota Rajan
for him. He denied that after a few days, the deceased accused no.8Vinod
Asrani told him on phone told him that he should remain in his Office on a
next day and that the accused no.12Chhota Rajan would contact him on
telephone number of his office. At the same time, he admitted that he had
received a phone call from a person claiming to be accused no.12Chhota
Rajan and that he had recorded the said conversation and it was aired on
the 'NDTV India' news channel.
327
that the road in front of the Bar was having twoway traffic. He stated that
he did not remember whether vehicles were parked on both the sides of
the road. He stated that he did not remember whether the Police was
noting down whatever he had said as he was in a state of shock. He stated
that sometimes the deceased accused no.8Vinod Asrani used to arrive
ahead at the hotel and sometimes, he used to arrive at the hotel after
them. He stated that the name of the Bar to which they had gone was
similar to Uma Bar. He denied that he had never gone to Uma Bar with
J.Dey.
that he had gone to the Office of the Crime Branch on two occasions in
connection with this case. He stated that due to lapse of time he could not
remember when his first statement was recorded. He stated that he was
pressurized by the Police to give statement and because of that he was
under tension and not under proper state of mind.
ANALYSIS
463. It is well settled that a phone call made by an accused to media
owning responsibility of the offence would amount to an extrajudicial
confession. It is equally well settled that there is no inflexible rule that in
no case the evidence of a witness who has identified the accused through
his voice form foundation for conviction. The question whether such
evidence is or is not sufficient to support the conviction will always
depend upon the facts and circumstances of the case. In the present case,
considering the fact that the accused no.12Chhota Rajan had made the
extrajudicial confessions on phone, it will have to be seen whether the
evidence of PW.76Jitendra Dixit, PW.78Sunilkumar Singh, PW.87Nikhil
328
Dixit and PW.100Aariz Chandra inspires confidence and whether their

evidence is sufficient to hold that the phone calls claiming responsibility
for the murder of J.Dey were indeed made by the accused no.12Chhota
Rajan. Having said this, it is also necessary to keep in mind that it is not
the law that an extrajudicial confession should always be addressed to
any particular person.
464. Before analyzing the evidence of PW.76Jitendra Dixit, PW.78

Sunilkumar Singh, PW.87Nikhil Dixit and PW.100Aariz Chandra, it will
be appropriate to answer one question which should arise in the mind of
every prudent person. The question is “Why criminals phone to the media
and claim responsibility for the crime committed by them?”. The answer to
this question is not that difficult. Most often such calls are made to gain
attention. Most people like being seen as an authority and getting the
attention that makes them feel important. Additionally, a criminal or an
accused may want to give his side of a story if he feels that he is being
misrepresented as he would not like it if he is put in a false light. It could
also be because criminals have a desire to promote themselves. They may
not be paid for the interview but they also do not have to pay to the
Journalist either. It is an easy way of generating publicity. A criminal
would be fairly confident that he will never be caught afterwards as he
feels that he is untouchable. Some may not see themselves as criminals
but as misunderstood, hard workers being oppressed by the system. The
aim of some of others may be to induce mass fear and in turn gain
attention and then highlight their motto. Others may want to spread a
word of message and to warn the rivals, to attract new funding/sustain
old funding, to attract new members/sustain old members and to put fear
into those who disagree/dislike the goals of the gang.
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465. At this stage, it will be appropriate to understand the significance of
the numbers +3444, +5032, +301, +432 etc. They are the ILD
(International Long Distance) gateways through which the Internet calls
are routed. The Internet calls are also known as VOIP (Voice Over Internet
Protocol). Whenever a VOIP call is made, the voice of the caller is
converted into a digital signal that travels over the Internet. If the call is
made on a regular phone number, the signal is converted to a regular
telephone signal before it reaches the destination. Whenever an Internet
call/VOIP based call is made, the number of the caller is reflected by digits
such as +3444, +5032, +301, +432 etc. VOIP allows a person to make a
call directly from a computer, a special VOIP phone or a traditional phone
connected to a special adapter. Criminals are known to use such gateways
as this helps in masking their location. Therefore, the identity of the caller
is secret.
466. In so far as the present case is concerned, it has been brought on the
record through the evidence of various Nodal Officers that the number
+3444 is an international number. It can be from any country. Even the
learned Advocate for the accused no.12 has admitted in the written notes
of arguments that the number such as +3444 & +5032 are international
numbers. More importantly, it is an admitted position on the record that
after the year 1993, the accused no.12Chhota Rajan was not in India.
467. Considering the nature of the objections which are raised

challenging the evidence of PW.76Jitendra Dixit, PW.78Sunilkumar
Singh, PW.87Nikhil Dixit and PW.100Aariz Chandra, before analyzing
the evidence of these witnesses, it will be appropriate to keep in mind
certain settled principles of appreciation of evidence of a witness. In the
case of Bharwada Bhoginbhai Hirjibhai V. State Of Gujarat reported in
330
AIR 1983 SC 753, the Hon'ble Supreme Court of India has held as under:
“(1) By and large a witness cannot be expected to possess a

photographic memory and to recall the details of an incident. It
is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by

events. The witness could not have anticipated the occurrence
which so often has an element of surprise. The mental faculties
therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person.

What one may notice, another may not. An object or movement
might emboss its image on one person's mind whereas it might
go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation
and reproduce the very words used by them or heard by them.
They can only recall the main purport of the conversation. It is
unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration
of an occurrence, usually, people make their estimates by guess
work on the spur of the moment at the time of interrogation.
And one cannot expect people to make very precise or reliable
estimates in such matters. Again, it depends on the time sense of
individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately
the sequence of events which take place in rapid succession or in
a short time span. A witness is liable to get confused, or mixed
up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed
by the court atmosphere and the piercing crossexamination
made by counsel and out of nervousness mix up facts, get
confused regarding sequence of events, or fill up details from
imagination on the spur of the moment. The subconscious mind
of the witness sometimes so operates on account of the fear of
looking foolish or being disbelieved though the witness is giving
a truthful and honest account of the occurrence witnessed by
him. Perhaps it is a sort of a psychological defence mechanism
331
activated on the spur of the moment.”
468. In the same case, it has been also held that discrepancies which do
not go to the root of the matter and shake the basic version of the
witnesses cannot be annexed with undue importance. More so, when the
all important "probabilitiesfactor" echoes in favour of the version narrated
by the witnesses.
469. Now, let’s analyze the evidence of PW.76Jitendra Dixit, PW.78

Sunilkumar Singh, PW.87Nikhil Dixit and PW.100Aariz Chandra.
470. From the evidence of these witnesses, it can seen that PW.78
Sunilkumar Singh was the first Journalist to whom the accused no.12
Chhota Rajan had made the phone call and claimed responsibility for the
murder of J.Dey. This phone call was received by him on his mobile
no.7738409480 on 01/07/2011 at about 09:00 pm from the number
+5032. PW.87Nikhil Dixit was the second Journalist to receive the phone
call from the accused no.12Chhota Rajan in which he confessed to have
got killed J.Dey. This phone call was received by him on his mobile
no.9930900303 on 18/08/2011 at about 04:00 pm from the number
+3444. PW.100Aariz Chandra was the third Journalist to receive the
phone call from the accused no.12Chhota Rajan in which he confessed to
have got killed J.Dey. He had received two phone calls on his mobile no.
9819582444 in August 2011. On both the occasions he received the call
from the number +3444. PW.76Jitendra Dixit was the fourth Journalist
to have received the phone call from the accused no.12Chhota Rajan in
which he confessed to have got killed J.Dey. This phone call was received
by him on his mobile no.9820703347 on 16/11/2011 at about 09:00 pm
from the number +3444.
332
471. The analysis of the evidence of PW.78Sunilkumar Singh shows that
he was in the field of Journalism since the year 1993 and at the relevant
time he was working with the 'NDTV India' news channel. This fact was
not disputed by the defence in crossexamination. Thus, he was vastly
experienced and senior in his field. His evidence that on 01/07/2011 at
about 09:00 pm he received a phone call on his mobile number
7738409480 from the accused no.12Chhota Rajan from the number
+5032 and that the duration of the said call for almost 30 minutes in not
shattered in any manner during his crossexamination. The fact that
during the conversation, he was not only putting questions to the accused
no.12Chhota Rajan when he was talking about J.Dey and but also he was
also seeking clarification about the incident and the cause of the incident
points towards two things. Firstly, it shows that PW.78Sunilkumar Singh
sure that the caller was none other than the accused no.12Chhota Rajan.
Secondly, and more importantly what this also shows is that the accused
no.12Chhota Rajan was talking freely with him without any fear or
pressure of any kind. It has come in the evidence of PW.78Sunilkumar
Singh that he identified the voice of the accused no.12Chhota Rajan as
the accused no.12Chhota Rajan had called him on earlier occasions also
and that he had also heard his voice on other channels. This evidence of
his was not shattered in crossexamination. On the contrary, this part of
his evidence was got confirmed in his crossexamination. The fact that the
caller was none other than the accused no.12Chhota Rajan was further
confirmed by this witness when to a question put to him in cross
examination to challenge this fact, he stated that the accused no.12
Chhota Rajan had called him up and not any person 'claiming' to be the
accused no.12Chhota Rajan had called him up on his mobile phone.
Thereafter, he again confirmed that on 01/07/2011, when he received the
333
phone call from the accused no.12Chhota Rajan he was in his office.
472. The evidence of PW.78Sunilkumar Singh clearly shows that the

accused no.12Chhota Rajan told him that J.Dey had crossed his limits and
that while on one hand J.Dey was publishing incorrect news about him
and was maligning his image, on the other hand he was writing good
things about Dawood Ibrahim. It may also be stated here that from the
conversation which had taken place between the accused no.12Chhota
Rajan and PW.78Sunilkumar Singh it is clear that the accused no.12
Chhota Rajan was aware about the news articles (Exh.752 colly) which
were written by J.Dey and that he was infuriated because of what J.Dey
had written about him in those articles.
473. At this stage, it may be noted that as soon as PW.78Sunilkumar
Singh received the phone call from the accused no.12Chhota Rajan
claiming responsibility of the murder of J.Dey, admittedly, the details of
the said conversation were almost immediately aired on the 'NDTV India'
news channel through the mouth of PW.78Sunilkumar Singh himself.
This conduct of PW.78Sunilkumar Singh is relevant. Had there been no
phone call from the accused no.12Chhota Rajan claiming the
responsibility for the murder of J.Dey, there was no need for the 'NDTV
India' news channel to air such a news on their channel and run the risk of
ruining their reputation by airing a false news.
474. It may also be noted that the news regarding the call received by
PW.78Sunilkumar Singh claiming responsibility for the murder of J.Dey
was aired on the 'NDTV India' news channel on several occasions and for
several days. It was seen and heard by the viewers all over the World. Had
the said news been false or fake, the 'NDTV India' news channel would not
334
have dared to telecast it due to the fear of being held liable for defamation
and damages. It is not the stand of the accused no.12Chhota Rajan that
after the news was aired nationwide on the 'NDTV India' news channel, he
initiated any legal action against the said channel or against PW.78
Sunilkumar Singh alleging that he was defamed. This conduct of the
accused no.12Chhota Rajan is relevant because in normal course if a
person is charged of committing such a serious crime, it is expected that
he would at least send a legal notice to the new channel. In the present
case, nothing appears to have been done by the accused no.12Chhota
Rajan. That apart, there was no retraction of the extrajudicial confession.
475. PW.78Sunilkumar Singh was sought to be labeled as an interested
witness on the ground that it has come in his evidence that after the arrest
of some of the accused persons of this case, he was in touch with the
Police and that he was getting information about this case from the Police.
But, that is not unusual considering the fact that he was reporting crime
related matters and that the 'NDTV India' news channel for which he was
working was covering this case.
476. During the crossexamination of PW.78Sunilkumar Singh, a

statement was brought on the record that J.Dey murder case was a
sensational case and the news in that regard could have increased the TRP
ratings of the 'NDTV India' news channel. However, the defence did not
bring any evidence on the record to show that after PW.78Sunilkumar
Singh had received the phone call from the accused no.12Chhota Rajan
and after it was aired on the 'NDTV India' news channel the TRP ratings of
the 'NDTV India' news channel had indeed increased.
477. The analysis of the evidence of PW.87Nikhil Dixit shows that he

335
was working as a Journalist since the year 2000. Thus, like PW.78
Sunilkumar Singh he was also very experienced in his field. His evidence
that on 18/08/2011, at about 04:00 pm he received a phone call on his
mobile number 9930900303 from the accused no.12Chhota Rajan from
the number +3444 claiming responsibility for the murder of J.Dey was
also not shattered in crossexamination. He has clearly stated that the
accused no.12Chhota Rajan told him that he had killed J.Dey as J.Dey
was planning to kill him and that he was also writing a lot of stories
against his gang. His evidence of this point was also not dented in any
manner in crossexamination. Interestingly, though during cross
examination on behalf of the accused no.12Chhota Rajan a suggestion
was given to this witness that he did not receive any phone call relating
the murder of J.Dey which of course the witness denied. No specific
suggestion was given to him that the accused no.12Chhota Rajan did not
make a phone call to him 'owing responsibility for the murder of J.Dey'. At
this stage, it may be noted that PW.87Nikhil Dixit has rightly stated that
he cannot prove that the phone call dated 18/08/2011 was made by the
accused no.12Chhota Rajan because this the job of the Investigating
Agency.
478. According to the learned Advocate for the accused no.12, the
conduct of PW.87Nikhil Dixit is suspicious as though it has come in the
crossexamination of PW.87Nikhil Dixit that he was a close friend of
J.Dey and he had performed the last rites of J.Dey that he did not tell the
wife (PW.7) of J.Dey about the phone call received by him from the
accused no.12Chhota Rajan. However, no explanation was sought from
him by the defence as to why he did not tell this fact to the wife (PW.7) of
J.Dey. That apart, it cannot be forgotten that as on 18/08/2011, the news
about the accused no.12Chhota Rajan making phone call to PW.78
336
Sunilkumar Singh claiming responsibility for the murder of J.Dey was

already in public domain. PW.7Ms.Subha Sharma was a also a Reporter.
Therefore, in all probability she was already aware that the accused no.12
Chhota Rajan had already claimed responsibility for the murder of J.Dey.
Therefore, it would not have mattered even if PW.87Nikhil Dixit had told
her about the phone call received by him from the accused no.12Chhota
Rajan claiming responsibility for the murder of J.Dey. Further, PW.7
Ms.Shubha Sharma was never questioned on this aspect of the matter.
Therefore, there is no reason to suspect the evidence of PW.87Nikhil
Dixit.
479. It has come in the evidence of PW.87Nikhil Dixit that the news
about the fact he had received a phone call from the accused no.12
Chhota Rajan was never published. But the evidence of PW.87Nikhil Dixit
cannot be doubted on that ground. It must be noted that at the relevant
time, he was an employee in the DNA newspaper. Therefore, he was no
one to take the decision whether the news about the phone call from the
accused no.12Chhota Rajan should be published or not. That apart, no
explanation was sought from him as to why the said news was not
published. Also, merely because the news was not published anywhere
does not mean that he did not receive any phone call from the accused
no.12Chhota Rajan claiming the responsibility for the murder of J.Dey. It
may be noted that in the crossexamination of PW.87Nikhil Dixit it was
brought on the record that he had informed DCP Deven Bharti about the
receipt of the phone call by him and it is only thereafter that he was called
by the Police for enquiry and for recording his statement. This further
shows that he was speaking the truth.
480. The analysis of the evidence of PW.100Aariz Chandra shows that

337
he had received phone calls from the accused no.12Chhota Rajan on his
mobile no.9819582444 on 23 occasions and with regard to the murder of
J.Dey he had received two phone calls from the accused no.12Chhota
Rajan. It has further come in his evidence that on the first occasion when
the accused no.12Chhota Rajan called him up, he told him that he killed
J.Dey as J.Dey was defaming him. It has also come in his evidence that
when he asked the accused no.12Chhota Rajan as to why he killed J.Dey,
he gave the same reason. It has further come in the evidence of PW.100
Aariz Chandra that on the second occasion he received a phone from the
accused no.12Chhota Rajan at about 06:00 pm from the number +3444
and at that time the accused no.12Chhota Rajan told him that he
regretted the fact that he had killed J.Dey and that he should not have
killed J.Dey. In crossexamination, he has again confirmed the fact that the
person who had made the call was none other than the accused no.12
Chhota Rajan as he could recognize the voice from the style of introducing
himself as “Nana” and his voice. The statement made by PW.100Aariz
Chandra that while giving statement to the Police that during the second
conversation, the accused no.12Chhota Rajan told him that he regretted
killing J.Dey and that he should not have killed J.Dey is tried to be
brought out as an omission. It is well settled that merely because the
witness has not given all the details in his statement u/s.161 or u/s.164
Cr.P.C,1973 is no ground to reject the evidence of such witness. Also, by
and large people cannot accurately recall a conversation and reproduce
the very words used by them or heard by them. They can only recall the
main purport of the conversation. In so far as PW.100Aariz Chandra is
concerned, his evidence on material points cannot be said to be suspicious
in view of the above alleged omissions. In any case, the maxim “falsus in
uno falsus in omnibus” is not applicable in India.
338
481. It may also be noted here that in the examinationinchief, PW.100
Aariz Chandra has stated that he had received the two phone calls from
the accused no.12Chhota Rajan in September 2011 and the second phone
call was received by him on a Sunday. However, during the course of his
evidence, it has come on the record that he had received the phone calls in
August 2011 and it is only after he had received the phone calls that he
was summoned by the Police in August 2011. These are minor
discrepancies which are bound to appear in statements of truthful
witnesses as memory sometimes plays false. These discrepancies do not
shatter the evidence of PW.100Aariz Chandra regarding receipt of the
two phone calls from the accused no.12Chhota Rajan. The evidence of
PW.100Aariz Chandra on this point is duly corroborated by the oral
evidence of PW.66Sahil Joshi to whom PW.100Aariz Chandra had
immediately informed about the said phone calls. There is nothing to
disbelieve the evidence of PW.66Sahil Joshi in this regard.

482. At this stage, it may be noted that during the course of cross
examination on behalf of the accused no.12Chhota Rajan, this witness
was asked whether he was aware that Shri Deepak Sharma (From 'Aaj
Tak' news channel) had taken interview of the accused no.12Chhota
Rajan on 24/05/2014 in which the accused no.12Chhota Rajan denied
that he had any role to play in the murder of J.Dey. PW.100Aariz
Chandra denied having the knowledge about the said interview. From the
above, it can be said that the stand taken by the accused no.12Chhota
Rajan was that he had retracted the extrajudicial confession during an
interview given by him to Shri Deepak Sharma of 'Aaj Tak' channel. But
the evidence in that regard was not produced. This evidence was very
important from the point of view of the accused no.12Chhota Rajan. The
learned Advocate for the accused no.12 had taken efforts to place on
339
record various news articles written by J.Dey to show that J.Dey might
have been murdered by someone else. Therefore, nothing prevented him
from placing on record, the evidence regarding the alleged interview in
which he denied having committed the murder of J.Dey. But, no efforts
were made in that regard. Therefore, it has to be said that the stand taken
by the accused no.12Chhota Rajan is false.
483. It has also come in the evidence of PW.100Aariz Chandra that he
did not do any course in voice analysis. On the basis of the same, it was
argued that PW.100Aariz Chandra could not have identified the voice of
the accused no.12Chhota Rajan. The said submission has no basis. The
defence has not brought on the record whether any such course is
available in India. That apart, PW.100Aariz Chandra was not examined to
identify the voice of the accused no.12Chhota Rajan. He was a witness to
whom the accused no.12Chhota Rajan had made phone calls and
confessed that he had killed J.Dey. He identified the voice of the accused
no.12Chhota Rajan as the caller had introduced himself as the accused
no.12Chhota Rajan. He had received phone calls from the accused no.12
Chhota Rajan not once but twice. Therefore, he was in a position to
recognize the voice of the accused no.12Chhota Rajan. There is nothing
on the record to even prima facie suggest that somebody else might have
called up PW.100Aariz Chandra claiming to be the accused no.12Chhota
Rajan. Hence, the evidence of PW.100Aariz Chandra cannot be suspected
on this ground.
484. It has also come in the evidence of PW.100Aariz Chandra that he
never made any phone calls to the accused no.12Chhota Rajan. But, the
defence has not brought on the record any reason as to why PW.100Aariz
Chandra should have called the accused no.12Chhota Rajan.
340
485. The analysis of the evidence of PW.76Jitendra Dixit shows that at

the relevant time, he was holding a senior position in the 'Star News'
channel. This fact was not disputed by the defence in crossexamination. It
has come in his evidence that wherever possible the information received
by him from the Police used to be verified before it was aired. This shows
that he was a responsible correspondent. His evidence that on
16/11/2011 he had received a phone call on his mobile number
9820703347 from the accused no.12Chhota Rajan from the number
+3444 and that the accused no.12Chhota Rajan claimed the
responsibility for the murder of J.Dey was not dented in any manner
during the crossexamination. Further, on being asked by the defence, he
has also stated that when he received the call from the number +3444 the
digits in front of it or after it were not reflected on the screen of his mobile
phone. These facts further confirm that PW.76Jitendra Dixit had indeed
received a phone call from the number +3444. He received the said phone
call sometime in the afternoon and in the evening he wrote and posted the
contents of his conversation on his blog “Address to the Universe” on his
website “www.jitendradiary.blogspot.com”. When the Police came to
know about his conversation with the accused no.12Chhota Rajan, he was
immediately summoned on the next day i.e. on 17/11/2011 for enquiry
and after his enquiry, his statement was recorded. At that time, he gave
the printout of the blog (Exh.788) to PW.143ACP Duraphe. This fact is
confirmed by PW.143ACP Duraphe in his evidence. The evidence of
PW.76Jitendra Dixit also shows that he used to regularly write blogs on
his website. In fact, he was writing blogs since the year 2007. Therefore, it
cannot be said that he created his website and the blog only for the
purposes of the present case to oblige the Police. On the contrary, in the
crossexamination, it has been brought on the record that it was his hobby
341
to write blog. Not only this, the defence has relied upon his other blogs
(Exh.1369 colly) in support of their stand.
486. The evidence of PW.76Jitendra Dixit was sought to be doubted on
the ground that he was very close to the Police and in collusion with the
Police he has falsely implicated the accused no.12Chhota Rajan. The said
submission is required to be rejected. It was not unusual for him to be in
touch with the Police considering the fact that he was a crime Reporter
and they need to be in touch with the Police to get the information which
they want. But that does not mean that PW.76Jitendra Dixit was under
the control of the Police. There is nothing to suggest that he was
compelled to write the blog (Exh.788) on 16/11/2011 at the instance of
the Police. In fact, during his crossexamination, a suggestion was given to
him that he was deposing falsely at the instance of the Police. But the
same was emphatically dismissed by him. The fact that he was called by
the Police after he had written the blog (Exh.788) is the testimony of the
fact that prior to 17/11/2011 he had no contact whatsoever with the
Police with respect to this case. So also, there is nothing to suggest that
just prior to writing the blog (Exh.788) he was in touch with the
Investigating Officer of this case. As stated earlier, when an accused claims
to be falsely implicated he has to lay down a factual foundation for the
same and prove it by leading impeccable evidence. But, no evidence was
led in that regard.
487. During the crossexamination of PW.76Jitendra Dixit he has stated
that he did not undergo any course in recognition of voice samples. A
similar question was put to PW.100Aariz Chandra in his cross
examination. While analyzing the evidence of PW.100Aariz Chandra this
Court has already considered and rejected the submission.
342
488. As stated earlier, after the receipt of the phone call from the accused
no.12Chhota Rajan claiming responsibility of the murder of J.Dey,
PW.76Jitendra Dixit had posted the contents of his conversation in his
blog “address to the Universe” on his website
“www.jitendradiary.blogspot.com”. This immediate conduct of PW.76
Jitendra Dixit in posting the contents of the conversation on his blog is
relevant. The contents of the blog (Exh.788) corroborate the oral evidence
of PW.76Jitendra Dixit. It has come in his evidence that before taking the
printout of the blog (Exh.788) he did not edit the contents of the blog.
This shows that the contents of the blog were not tampered with.
489. It may be noted that the blog (Exh.788) does not bear the date on
which it was written. But there is a reason for it. The blog was written on
the same day on which the phone call was received. The starting two lines
of the blog (Exh.788) itself shows that it was written on 16/11/2011. The
contents of the blog were written in present tense. Further, it has come in
his evidence that he had taken the printout of the blog (Exh.788) on the
next day of the receipt of the phone call which also means that he had
written the blog (Exh.788) on the same day on which he had received the
phone call from the accused nos.12Chhota Rajan. In any case, there is
nothing suspicious in his evidence. Further, it is not the stand of the
defence that the contents of the blog were imaginary and false. There is no
evidence to even prima facie suggest that PW.76Jitendra Dixit had any
motive to create a false blog. He had no axe to grind against the accused
no.12Chhota Rajan. In fact, by posting such news he risked his career and
possibly his life as had the contents of the blog (Exh.788) were false, the
accused no.12Chhota Rajan would not have spared him.
343
490. It may be noted that it has come in the evidence of PW.76Jitendra
Dixit that when the accused no.12Chhota Rajan was arrested at Bali,
Indonesia many Reporters including him had gone there. It has been
brought out in his crossexamination that though at that time, he did not
have any one to one interview with the accused no.12Chhota Rajan many
Reporters had put questions to the accused no.12Chhota Rajan.
Obviously, at that time, he must have heard the voice of the accused
no.12Chhota Rajan when he gave the answers to the questions which
were put to him. Thus, he had another occasion to hear the voice of the
accused no.12Chhota Rajan as he was in front of him. It is not the stand
of the case of the defence that the voice of the accused no.12Chhota
Rajan which was heard by PW.76Jitendra Dixit at Bali, Indonesia was not
the same voice which was heard by him when the phone call was made to
him.
491. It may be noted that when the extrajudicial confessions were made
admittedly, the accused no.12Chhota Rajan was not in India. He was not
under the control of any investigating/vigilance authority of India. He was
a free man. His movements were not controlled by the Indian law
enforcement agencies. As he was located hundreds of miles away from
India and Mumbai he had no fear of the Indian law enforcement agencies.
He was not in a position of weakness. As he did not feel threatened in any
manner by the Indian law enforcement agencies or any other agency, he
called PW.78Sunilkumar Singh and other witnesses and told them the
truth. In this background, if the news regarding the phone call made to
these witnesses was really a fake news then nothing prevented him from
immediately picking up his phone and calling the media denying his
involvement in the murder of J.Dey. But he did not do so.
344
492. It is also necessary to note that the Indian law enforcement agencies
well aware of the fact that the accused no.12Chhota Rajan was not in
India and not accessible to them. They were not in a position to catch hold
of him. It is the case of the defence itself that this was a sensational case.
Therefore, if the Police or the Crime Branch wanted to win accolades and
awards, then to show instant result, they could have easily implicated any
notorious gangster who was operating from Mumbai at that time. There
was no need to falsely implicate the accused no.12Chhota Rajan in this
case when the authorities were aware that he could not be arrested at that
time. Therefore, the possibility of false implication of the accused no.12
Chhota Rajan is totally ruled out.
493. During the crossexamination of some of these witnesses, the

defence has taken a stand that somebody must have mimicked the voice of
the accused no.12Chhota Rajan. But, there is no evidence in that regard.
It is also necessary to note that there is nothing on the record to suggest
that PW.76Jitendra Dixit, PW.78Sunilkumar Singh, PW.87Nikhil Dixit
and PW.100Aariz Chandra were regularly receiving phone calls from a
'person claiming to be' the accused no.12Chhota Rajan. There is also
nothing on the record to suggest that they were receiving any bogus phone
calls in other cases from other accused persons. Further, the defence could
not point out any instance in any other case where the witnesses claimed
that they had received any phone call from any particular person claiming
responsibility of a particular act which later on turned out to be a false
claim by those witnesses. Therefore, the stand taken by the defence cannot
be accepted.
494. At this stage, it is required to be stated that during the evidence of
PW.73Sanjay Prabhakar also, it has come on the record that on one
345
occasion he had received a phone call from a person claiming to be the
accused no.12Chhota Rajan albeit in a different context. PW.73Sanjay
Prabhakar was a news Reporter and a friend of J.Dey. Through the
Dixit and PW.100Aariz Chandra, the prosecution has already proved that
it was the accused no.12Chhota Rajan who made the phone calls. The
evidence of PW.73Sanjay Prabhakar corroborates the fact that the
accused no.12Chhota Rajan had access to the people from the media.
Therefore, it was not unusual for him to make the phone calls to persons
from media and claim responsibility for the murder of J.Dey.
495. It may be noted that the phone calls were made by the accused
no.12Chhota Rajan to PW.76Jitendra Dixit, PW.78Sunilkumar Singh,
PW.87Nikhil Dixit and PW.100Aariz Chandra independently. It has come
on the record that these witnesses were knowing each other. This is not
unusual as they all were working in the same field at the relevant time.
What is important is that there is no material to even prima facie suggest
that there was any previous concert between these witnesses to implicate
the accused no.12Chhota Rajan in this case. The CDRs of their mobile
numbers of PW.78Sunilkumar Singh, PW.87Nikhil Dixit and PW.100
Aariz Chandra (Exh.1059, 1124 & 1128) are on the record. The defence
has not been able to show from the CDRs that these witnesses were in
contact inter se at any time just before the receipt of the phone call by any
of them. As stated earlier, these witnesses were independent witnesses.
The evidence of these witnesses shows that they never discussed official
matters with each other. It is not unusual for Journalists/Reporters not to
disclose the news on which they are working on. This is for the reason that
every Journalist/Reporter and news channel wants to be one step ahead of
his/its competitor and for that purpose they maintain
346
secrecy/confidentiality about the same. Also, there are always

written/unwritten protocols which every employee has to follow to
maintain secrecy/confidentiality about his work. Therefore, the fact that
these witnesses did not talk with each other about the phone calls received
from the accused no.12Chhota Rajan claiming responsibility for the
murder of J.Dey is insignificant. Further, there is absolutely no material on
the record to suggest that they have any animus against the accused
no.12Chhota Rajan or they were personally interested in this case. There
is nothing in their evidence to indicate that they may have a motive for
attributing an untruthful statement to the accused no.12Chhota Rajan.
496. It may also be noted that J.Dey was a reputed Journalist.

Admittedly, he had written several articles against the accused no.12
Chhota Rajan and his gang. His murder and subsequent phone calls made
by the accused no.12Chhota Rajan to PW.78Sunilkumar Singh, PW.76
Jitendra Dixit, PW.87Nikhil Dixit and PW.100Aariz Chandra who were
also doing reporting work for different news channels was with an
intention of warning the media to desist from writing and posting/airing
any negative news against him in the media. The accused no.12Chhota
Rajan chose these witnesses to make the phone call as they were very
experienced in their field. It is well known that Journalists who report
about crime are always in contact with the criminals for getting the first
hand information about the activities of the criminals. Similarly, it is not
difficult for a person leave alone a criminal to get the telephone/mobile
number of a Journalist. Therefore, the fact that the accused no.12Chhota
Rajan made phone calls to PW.78Sunilkumar Singh, PW.76Jitendra
Dixit, PW.87Nikhil Dixit and PW.100Aariz Chandra claiming
responsibility for the murder of J.Dey cannot be said to be unnatural. Also,
the media was the easiest and the fastest mode for telling the whole world
347
about the strength of the gang of the accused no.12Chhota Rajan and

what could be the fate of Journalists and other persons who worked
against his interests. Therefore, he first made a call to PW.78Sunilkumar
Singh and claimed responsibility for the murder of J.Dey. Being a news
Reporter, PW.78Sunilkumar Singh immediately reported the matter to his
superiors and then the said news was aired on the 'NDTV India' news
channel. It was aired on that channel many times and for many days. This
news not only invited the attention of the public in India but also probably
the public world over. This was the easiest way for the accused no.12
Chhota Rajan to tell the world that he was supreme and still strong. Then,
just to ensure that this news does not die easily he chose make phone calls
to PW.76Jitendra Dixit, PW.87Nikhil Dixit and PW.100Aariz Chandra
claiming responsibility for the murder of J.Dey.
497. According to the learned Advocate for the accused nos.5 and 11, the
evidence of PW.78Sunilkumar Singh and PW.100Aariz Chandra cannot
be relied upon as after the phone call was received by him from the
accused no.12Chhota Rajan the Investigating Officer did not check their
mobile phones to find out whether they had really received any phone call
from the no.+5032 and +3444 respectively. The submission cannot be
accepted. There is no requirement of law that the Investigating Officer
should check the mobile phone to find out whether any phone call was
received from any particular number. That apart, in the present case the
oral evidence of PW.78Sunilkumar Singh and PW.100Aariz Chandra is
duly corroborated by the CDRs of their mobile numbers which also shows
that on 01/07/2011 at about 09:00 pm PW.78Sunilkumar Singh had
received a phone call from the no.+5032 and on 25/08/2011 and
27/08/2011, PW.100Aariz Chandra had received phone calls from the
no.+3444.
348
498. The fact that the accused no.12Chhota Rajan was using the number
3444 is further clear from the evidence of PW.50Indukumar Amin. It has
come in his evidence that in the year 2011, one person by name Raju had
come to him on behalf of accused no.12Chhota Rajan and gave him a
phone number like 3444 and told him to call on that number. It has
further come in his evidence that the accused no.12Chhota Rajan called
him on his phone number and abused him. This evidence of PW.50
Indukumar Amin was not challenged in his crossexamination. Thus, his
evidence also shows that the accused no.12Chhota Rajan was using the
number 3444. PW.50Indukumar Amin was an independent witness. He
was not associated with PW.76Jitendra Dixit, PW.87Nikhil Dixit and
PW.100Aariz Chandra. Therefore, his evidence further strengthens the
case of the prosecution that the accused no.12Chhota Rajan was using
that no.+3444.
499. According to the learned Advocate for the accused nos.5 and 11,
the oral evidence of PW.87Nikhil Dixit cannot be relied upon as he did
not prepare any notes of conversation about the phone call received by
him from the accused no.12Chhota Rajan. There is no requirement of law
that whenever any person receives a phone call he should make a note
about it. That apart, it is not the case of defence that the memory of
PW.87Nikhil Dixit was so weak that he was required to make a note of
whatever he heard or saw. Hence, the submission as made cannot be
accepted.
500. It was next argued by the learned Advocate for the accused nos.5
and 11 that while giving statement to the Police, PW.100Aariz Chandra
did not tell the Police about the number from which he had received the
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phone calls. The overall analysis of the evidence of PW.100Aariz Chandra
will show that he was a truthful witness. The fact that he had received
phone call from the accused no.12Chhota Rajan on two occasions has
been proved by the prosecution. His oral evidence is further corroborated
the oral evidence of PW.66Sahil Joshi and by CDR of his mobile number
which shows that he had received two calls from the no.+3444 on
25/08/2011 and 27/08/2011 respectively. PW.76Jitendra Dixit and
PW.87Nikhil Dixit had also received the phone call from the accused
no.12Chhota Rajan from the same number. The perusal of the evidence of
the above named witnesses will show that no specific suggestion was
given during crossexamination that the accused no.12Chhota Rajan was
not using the no.+3444 or +5032. Under such circumstances merely
because, while giving statement PW.100Aariz Chandra forgot to give the
number from which he has received the phone call does not affect his
credibility.
501. According to the learned Advocate for the accused no.12, the oral
evidence of PW.78Sunilkumar Singh is not reliable as it has come in his
evidence that though he had prepared the note regarding the conversation
which he had with the accused no.12Chhota Rajan, he destroyed that
note and this creates serious doubt about the truthfulness of the evidence
of PW.78Sunilkumar Singh. As stated earlier, the law does not require
that whenever a person receives a phone call he should prepare at note of
the conversation. Further, no explanation was sought from PW.78
Sunilkumar Singh as to why he had destroyed the handwritten note
though he was questioned on other aspects related to the note prepared by
him. It is quite possible that PW.78Sunilkumar Singh destroyed the
handwritten note as news about this conversation with the accused no.12
Chhota Rajan was aired on the 'NDTV India' news channel. It is an
350
admitted position that the said news was aired on that channel for several
days. Perhaps, because of that PW.78Sunilkumar Singh may have thought
that there was no use of the handwritten note. That apart, had the
handwritten note been produced it would have only been a corroborative
piece of evidence. In the present case, it has already been observed above
that the evidence of PW.78Sunilkumar Singh is reliable and trustworthy
and there is no need to doubt the same. His evidence is further
corroborated by the relevant entry in the CDR of his mobile number which
shows that on 01/07/2011 at about 09:00 pm he had received a phone
call from the number +5032.
502. It was also argued that none of the witnesses recorded the
conversation which they had with the accused no.12Chhota Rajan on
their phone. The said submission cannot be accepted. Firstly, none of
these witnesses were asked as to why they did not record the conversation
which they were having with the accused no.12Chhota Rajan on their
mobile phone. Secondly, the incident in question took place in the year
2011. At that time, the mobile technology was not so advanced and most
of the mobile phones did not have the facility of recording calls. Assuming
for a moment that there was recording facility in the mobile phones of
PW.76Jitendra Dixit, PW.78Sunilkumar Singh, PW.87Nikhil Dixit and
PW.100Aariz Chandra, it would have been too much expect from them to
record the conversation which they were having with the accused no.12
Chhota Rajan at that time as their concentration would have been focused
on what the accused no.12Chhota Rajan was telling them.
evidence of PW.76Jitendra Dixit is also not reliable as from his evidence it
appears that he was having a interest in the investigation and outcome of
351
this case. By placing reliance on the blogs (Exh.1369 colly.) the learned
Advocate for the accused no.12 tried to show that PW.76Jitendra Dixit
was very close to J.Dey and that he was hurt by the sudden death of J.Dey.
Therefore, in view of the press conference which was held by the Police on
27/06/2011, PW.76Jitendra Dixit came to the conclusion that the murder
of J.Dey was committed at the instance of accused no.12Chhota Rajan.
The said submission is without any basis. PW.76Jitendra Dixit was an
independent witness. Just because he happened to be a friend of J.Dey it
will not mean that he was personally interested in this case. To draw such
inference there must be some evidence. But, there is none. That apart, it
cannot be forgotten that Journalists and especially those who are
reporting crime related matters tend to give their own views on the cases
which are known to them. But, they are not experts. Their views will never
prevail over the material collected by the Investigating Officer during the
course of investigation. As such, though a Journalist may give his opinion
on a particular case, his opinion cannot be given any value.
evidence of PW.76Jitendra Dixit is also not reliable as the prosecution has
not clarified as to from where he had procured the voice sample of the
accused no.12Chhota Rajan. The said submission has no basis. If there
was any dispute about this, the learned Advocate for the accused no.12
could have very well PW.76Jitendra Dixit from where he got the voice
samples of the accused no.12Chhota Rajan. Further, it may be stated that
the videos of the accused no.12Chhota Rajan are freely available on the
Internet and anybody can watch and listen to the voice of the accused
no.12Chhota Rajan. There is no need to read much into this.
352
evidence of PW.87Nikhil Dixit is also not reliable as he had received the
phone call from the accused no.12Chhota Rajan for the first time. It was
contended that as no voice identification procedure was done at any stage
and that he was not made to hear the voice of the accused no.12Chhota
Rajan to get the confirmation on the point of familiarity, tone, accent etc.
the bare statement of PW.87Nikhil Dixit cannot be relied upon. In this
regard, it must be stated that it is an admitted position that from the year
1993 till October2015, the accused no.12Chhota Rajan was not in India.
Therefore, no Indian Agency could have taken his voice sample for the
purposes of investigation. Therefore, there was no question of confronting
PW.87Nikhil Dixit or for that matter PW.76Jitendra Dixit, PW.78
Sunilkumar Singh and PW.100Aariz Chandra with the voice sample of the
506. It may be noted that after the arrest of the accused no.12Chhota
Rajan and in view of the order passed by this Court, the voice sample of
accused no.12Chhota Rajan was collected on 22/02/2016. The said voice
sample was collected for the purposes of comparing it with the record of
conversation between PW.90Manoj Shivdasani and the accused no.12
Chhota Rajan which was intercepted in the year 2011. It may also be
noted that during the course of evidence of PW.152IO CBI no explanation
was sought from him as to why during the further investigation which was
conducted PW.76Jitendra Dixit, PW.78Sunilkumar Singh, PW.87Nikhil
Dixit and PW.100Aariz Chandra were not confronted with the voice
sample of the accused no.12Chhota Rajan for confirming the fact that a
person who had called them on phone and who had confessed to the
murder of J.Dey was none other than the accused no.12Chhota Rajan.
Further, even if PW.152IO CBI had taken this step, then it would have
been argued that was only done to improve the case of the prosecution.
353
That apart, as stated earlier, there is nothing in the evidence of these

witnesses to show that they had any reason to falsely implicate the
accused no.12Chhota Rajan in this case. Therefore, merely because the
voice identification parade was not conducted is no reason to disbelieve
the evidence of PW.76Jitendra Dixit, PW.78Sunilkumar Singh, PW.87
Nikhil Dixit and PW.100Aariz Chandra.
Dixit and PW.100Aariz Chandra with regard to the extrajudicial
confessions made by the accused no.12Chhota Rajan to them cannot be
relied on the ground that the duration of the alleged conversation of the
accused no.12Chhota Rajan with these witnesses was long but in the
examinationinchief, these witnesses have not disclosed about their entire
conversation with the accused no.12Chhota Rajan. According to the
learned Advocate for the accused no.12, the duration of conversation of
the accused no.12Chhota Rajan with PW.76Jitendra Dixit was
approximately 26 minutes, with PW.78Sunilkumar Singh it was
approximately 30 minutes, with PW.87Nikhil Dixit it was approximately
17 minutes and with PW.100Aariz Chandra it was approximately 18
minutes (first call) and 19 minutes (second call). On the basis of the above
it was submitted that these witnesses have suppressed the other details of
their conversation with the accused no.12Chhota Rajan. Relying upon the
judgment in the case of Heramba Brahma and another V. State of
Assam reported in AIR 1982 SC 1595, it was also contended that the
various extrajudicial confession are vague and ambiguous. The said
submissions made above have no basis. Firstly, it cannot be forgotten that
these witnesses deposed before the Court after about 6 years of the
incident. Human mind is not a tape recorder which records what has been
354
spoken word by word. The witness is expected to say as nearly as possible
the actual words spoken by the accused to rule out possibility of erroneous
interpretation of any ambiguous statement. If word by word repetition of
the statement is insisted upon, then in most cases the extrajudicial
confession will have to be discarded. That cannot be a requirement in law.
There can be some persons who may very good memory and they may be
able to state the exact word and there may be persons who had normal
memory and who can only say important aspects of the conversation. In so
far as the present case is concerned, PW.76Jitendra Dixit, PW.78
Sunilkumar Singh, PW.87Nikhil Dixit and PW.100Aariz Chandra were
not expected to give each and every details of their conversation which
they had with the accused no.12Chhota Rajan in the year 2011. The
statements made by them regarding the extrajudicial confession made by
the accused no.12Chhota Rajan to them are consistent. Their evidence
could not be shattered in crossexamination. Further, if at all, the learned
Advocate for the accused no.12 was interested in knowing the other
details of the conversation between the accused no.12Chhota Rajan and
the above mentioned four witnesses, then nothing prevented him from
asking these witnesses about the same. But, that was not done though the
witnesses were exhaustively crossexamined. In so far as the other aspect
is concerned, the evidence of PW.76Jitendra Dixit, PW.78Sunilkumar
Singh, PW.87Nikhil Dixit and PW.100Aariz Chandra regarding the extra
judicial confessions made by the accused no.12Chhota Rajan to them is
clear. There is no ambiguity in the same. Hence, the judgment in the case
of Heramba Brahma (supra) is of no use to the defence.
508. On the same point, the learned Advocate for the accused no.12 also
relied upon the judgment in the case of Aloke Nath Dutta (supra). This
Court has gone through the said judgment. It may be stated that the facts
355
of that case are entirely different from the facts of the present case.
Therefore, the said judgment is not applicable to the present case.
However, in the said case, the Hon'ble Supreme Court of India while
dealing with the law on extrajudicial confession has referred to several
judgments which in fact further the case of the prosecution rather than the
stand of the defence. The relevant paragraphs of the above judgment are
reproduced below for ready reference:
“31. In State of Rajasthan v. Raja Ram [(2003) 8 SCC 180], it
was held:
"19. An extrajudicial confession, if voluntary and true and made
in a fit state of mind, can be relied upon by the court. The
confession will have to be proved like any other fact. The value
of the evidence as to confession, like any other evidence,
depends upon the veracity of the witness to whom it has been
made. The value of the evidence as to the confession depends on
the reliability of the witness who gives the evidence. It is not
open to any court to start with a presumption that extrajudicial
confession is a weak type of evidence. It would depend on the
nature of the circumstances, the time when the confession was
made and the credibility of the witnesses who speak to such a
confession. Such a confession can be relied upon and conviction
can be founded thereon if the evidence about the confession
comes from the mouth of witnesses who appear to be unbiased,
not even remotely inimical to the accused, and in respect of
whom nothing is brought out which may tend to indicate that he
may have a motive of attributing an untruthful statement to the
accused, the words spoken to by the witness are clear,
unambiguous and unmistakably convey that the accused is the
perpetrator of the crime and nothing is omitted by the witness
which may militate against it. After subjecting the evidence of
the witness to a rigorous test on the touchstone of credibility, the
extrajudicial confession can be accepted and can be the basis of
a conviction if it passes the test of credibility.
It was further observed :
"20. If the evidence relating to extrajudicial confession is found
356
credible after being tested on the touchstone of credibility and
acceptability, it can solely form the basis of conviction. The
requirement of corroboration as rightly submitted by the learned
counsel for the respondentaccused, is a matter of prudence and
not an invariable rule of law."
32. In the case of Gagan Kanojia and Anr. v. State of Punjab
[Criminal Appeal Nos. 56162 and 563 of 2005, decided on
24.11.2006, this Court opined:
"Extrajudicial confession, as is wellknown, can form the basis
of a conviction. By way of abundant caution, however, the court
may look for some corroboration. Extrajudicial confession
cannot ipso facto be termed to be tainted. An extrajudicial
confession, if made voluntarily and proved can be relied upon by
the courts."
33. In Nazir Khan & Others v. State of Delhi [(2003) 8 SCC
461], this Court held :
"A free and voluntary confession is deserving of the highest

credit, because it is presumed to flow from the highest sense of
guilty."
[See also Ram Khilari v. State of Rajasthan (1999) 9 SCC 89;
and Namala Subba Rao v. State of A.P. 2006 (10) SCALE 253].
It will also be relevant to consider State of Rajasthan v. Kashi
Ram [2006 (11) SCALE 440], wherein this court observed:
"There was nothing to show that he had reasons to confide in
them. The evidence appeared to be unnatural and unbelievable.
The High Court observed that evidence of extrajudicial
confession is a weak piece of evidence and though it is possible
to base a conviction on the basis of an extra judicial confession,
the confessional evidence must be proved like any other fact and
the value thereof depended upon the veracity of the witnesses to
whom it was made."
34. Recently, this Court held in the case of Kulwinder Singh v.
State of Punjab [Criminal Appeal No. 675 of 2006], decided on
05.12.2006, this Court held :

357
"the evidentiary value of an extrajudicial confession must be

judged in the fact situation obtaining in each case. It would
depend not only on the nature of the circumstances but also the
time when the confession had been made and the credibility of
the witness who testifies thereto."”
The judgments which are referred in the case of Aloke Nath Dutta
(supra) are squarely applicable to the facts of the present case. As
observed earlier, the evidence of PW.76Jitendra Dixit, PW.78Sunilkumar
Singh, PW.87Nikhil Dixit and PW.100Aariz Chandra shows that they
were unbiased, not even remotely inimical to the accused no.12Chhota
Rajan and in respect of them nothing was brought out which may tend to
indicate that they may have a motive of attributing an untruthful
statement to the accused no.12Chhota Rajan. The words spoken by them
were clear, unambiguous and unmistakably convey that J.Dey was
murdered at the instance of the accused no.12Chhota Rajan. Therefore,
as the evidence relating the extrajudicial confession is credible after being
tested on the touchstone of credibility and acceptability, it can solely form
the basis of conviction.
509. The learned Advocate for the accused no.12 also relied upon the
judgments in the case of Roopsena Khatun V. State of West Bengal
reported in AIR 2011 SC 2256 and Santosh Pujari V. State reported in
MANU/MH/2233/2017 to contend that the accused no.12Chhota Rajan
cannot be convicted on the basis of the various extrajudicial confessions
which are unreliable. This Court has gone through the above judgments.
They are also not applicable to the present case as the facts in those cases
are totally different from the facts of the present case. Further, the
doubtful nature of the extrajudicial confession made by the accused
therein was not the only reason for setting aside the judgment of
conviction and sentence of the accused therein. Similarly, the judgment in
358
the case of Tejinder Singh @ Kaka V. State of Punjab reported in

(2013) 12 SCC 50 is also not applicable to the present case as the facts in
that case are totally different from the facts of the present case. In the
present case, the prosecution has duly proved that the evidence of PW.76
Jitendra Dixit, PW.78Sunilkumar Singh, PW.87Nikhil Dixit and PW.100
Aariz Chandra is reliable and trustworthy. There is nothing doubtful in
their evidence.
510. In order to show that the identification of the accused no.12Chhota
Rajan on the basis of his voice is not reliable, the learned Advocate for the
accused no.12 has relied upon the judgments in the case of Regina V. Kris
Ronald Flynn and Joe Philip St John reported in (2008) EWCA Crim
970, Nilesh Dinkar Paradkar V. State of Maharashtra reported in
(2011) 4 SCC 143, Regina V. Turnbull reported in 1976 LawSuit
(UKCA) 173, Regina V. Cooper reported in 1968 LawSuit (UKCA) 171,
Joseph V. State of Kerala reported in 1963 Cri.L.J. 493 and Donald
Phipps V. Director of Public Prosecutions Attorney General of Jamaica
reported in 2012 LawSuit (UKPC) 24. This Court has gone through the
above mentioned judgments. It may be stated that none of the above
judgment is applicable to the facts which have come on record through the
Dixit and PW.100Aariz Chandra. In the case of Nilesh Dinkar Paradkar
(supra) reference was made to case of Kris Ronald Flynn (supra). The
judgment in the case of Nilesh Dinkar Paradkar (supra) was concerned
with the admissibility of the tape recorded statements. Such is not the case
here. In the case of Turnbull (surpa) the defence that was taken by the
accused therein was that of mistaken identity. Similarly, in the case of
Donald Phipps (supra) also, one of the grounds taken by the accused was
that of mistaken identity. Such is not the case here. In the present case,
359
the accused no.12Chhota Rajan has flatly denied that he had made any
phone calls to the above mentioned four witnesses confessing the guilt. On
the other hand, the prosecution has proved the various extrajudicial
confessions made by the accused no.12Chhota Rajan through the
Dixit and PW.100Aariz Chandra. The evidence of these witnesses is direct
evidence as the extrajudicial confessions were made by the accused
no.12Chhota Rajan to them. In so far as the judgments in the case of
Cooper (supra) and Joseph (supra) are concerned, they are also on
different facts. However, in the case of Joseph (supra) the Hon'ble Kerala
High Court referred to the comments made by Shri M.K.A. Khan in his
book on the Law of Identification (2 nd Edition, page 16, chapter on
identification by speech and voice) in which it was stated that it is never
safe to rely on the identification of a person by his voice as one is always
liable to make a mistake. But, such is not the case here. In the present
case, as stated earlier, though PW.76Jitendra Dixit, PW.78Sunilkumar
Singh, PW.87Nikhil Dixit and PW.100Aariz Chandra were thoroughly
crossexamined on the point of receipt of phone calls by them from the
accused no.12Chhota Rajan they remained firm on their statements made
in the examinationinchief. Through the evidence of PW.50Indukumar
Amin, the prosecution has also independently proved that the accused
no.12Chhota Rajan used to contact people from the number 3444.
Further, through the evidence PW.42Rajan Seth (which is independently
considered in later part of this judgment) the prosecution has also proved
that J.Dey had told him that he was receiving phone calls from the
accused no.12Chhota Rajan and that he might have committed some
mistakes. All these facts taken together are sufficient to dispel the doubts,
if any, about the fact that it was none other than the accused no.12
Chhota Rajan at whose instance J.Dey was murdered. The present case is
360
definitely not a case of mistaken identity.
511. The learned Advocate for the accused no.12 has also relied upon
some international research papers and commentaries on the point of
reliability of evidence of voice identification. These research papers and
commentaries are the views expressed by the research person and the
commentators. They do not have any statutory force. Hence, these
research papers and commentaries cannot be considered.
512. From the above, it is clear that the evidence of PW.76Jitendra Dixit,
PW.78Sunilkumar Singh, PW.87Nikhil Dixit and PW.100Aariz Chandra
regarding the phone calls made to them by the accused no.12Chhota
Rajan confessing his guilt is cogent, trustworthy and reliable. There is
nothing suspicious about their evidence. These witnesses were senior and
experienced Journalists. They were independent witnesses. There was no
reason for them to depose falsely. There is no evidence to show that there
was any previous concert between these witnesses to falsely implicate the
accused no.12Chhota Rajan in this case. The extrajudicial confessions
made by the accused no.12Chhota Rajan to them do not suffer from any
inherent improbabilities. The words spoken to by these witnesses are
clear, unambiguous and unmistakably convey that the accused no.12
Chhota Rajan is responsible for the murder of J.Dey. The extrajudicial
confessions have passed the test of credibility and can be accepted and can
be the basis of a conviction.
(C) AND (D) RECOVERY OF VARIOUS MOBILE PHONES, SIM CARDS
AND OTHER ARTICLES DURING THE PERSONAL SEARCH OF THE
ACCUSED PERSONS AND RECOVERY OF THE REVOLVER,
CARTRIDGES, EMPTIES, MOTORCYCLES AND THE QUALIS VEHICLE
ON THE BASIS OF THE DISCLOSURE STATEMENTS MADE BY SOME
361
OF THE ACCUSED PERSONS.
513. Through the evidence of various witnesses, the prosecution has
proved the recovery of various mobile phones and SIM cards from the
person of some of the accused at the time of their arrest. As per the
prosecution, the CDRs these mobile phones and the SIM cards not only
show the location of some of the accused persons before the incident, at
the time of the incident and after the incident but they also show that
these accused persons were in contact with each other to ensure that the
plan to commit the murder of J.Dey does not fail. Also, in view of the
disclosure statements made by some of the accused persons, the
prosecution has proved the recovery of the revolver, cartridges, empties,
motorcycles and the Qualis vehicle which were used in committing the
crime. As per the prosecution, the material objects recovered from some of
the accused persons serve as links and corroborates its case.
514. Considering the fact that a number of recoveries were made, it will
be appropriate to place the details of the various articles recovered from
the accused persons in the form of a chart for better understanding of the
said aspect. The evidence of the relevant witnesses will be considered
while dealing with the objections raised by the defence with regard to the
various recoveries.
SR. NAME OF DATE OF PLACE ARTICLES FOUND ARTICLES ORAL

NO. ACCUSED ARREST OF IN PERSONAL RECOVERED IN EVIDENCE
ARREST SEARCH VIEW OF
DISCLOSURE
STATEMENT
1 Rohee 26/06/11 DCB CID, Cash of Rs.11,600/ Revolver (Article PW.136PI
Tangappan at 03:00 Unit no.6, (Article71), 249), 20 live Kale,
Joseph @ pm. Chembur. driving license cartridges (Article PW.9
Satish (Article68 & 70), 250 & 251), 5 Malang
Kalya PAN card (Article empties (Article Sheikh,
69) which were 269 colly), a blue PW.129
362

DISCLOSURE
STATEMENT
found in the wallet colored raincoat Balu
(Article67), one with hood Panchange,
black colored (Article248) PW.137
Micromax mobile [Disclosure PSI Rane
phone (Article72) statement
having IMEI no. (Exh.1272) &
910536702593486, panchanama
910536703130483 (Exh.1272A)]
with SIM card
(Article73) of
TATA DOCOMO of
mobile no.
8655292230, one
reddish black
colored Nokia
mobile X3 phone
(Article75) having
IMEI no.
354865047936636
with one white
colored SIM card
(Article77) bearing
sr.no.89234184500
00035108 of
mobile no.
+447924557108
[Arrest & Recovery
panchanama
(Exh.493)]
2 Anil 26/06/11 DCB CID, Cash of Rs.615/ Golden color PW.9
Waghmode at 03:00 Unit no.6, (Article83), voter Toyota Qualis Malang
pm. Chembur. ID card (Article vehicle (Article Sheikh,
81), PAN card 236) bearing RTO PW.136PI
(Article80) found registration no. Kale,
in wallet (Article MH12CD7701 PW.126
79), one black having engine no. Pradeep
colored Nokia 2L5451324 & Shirodkar,
mobile phone chasis no. PW.29
model 1280 LF501118783 Dyandev
(Article85) having [Disclosure Sangle
363

DISCLOSURE
STATEMENT
IMEI statement
no.3573830441252 (Exh.1247) &
91 with SIM card panchanama
(Article86) of (Exh.1248)]
AIRCEL of mobile
no.8898590024,
One China made
Suncorp mobile
phone (Article89)
having IMEI no.
359083033506646,
359083033506653
with one SIM card
(Article90) of
AIRCEL of mobile
no. 8890590018
[Arrest & Recovery
panchanama
(Exh.493)]
3 Abhijit 26/06/11 DCB CID, Cash of Rs.7,000/ PW.136PI
Shinde at 03:00 Unit no.6, (Article100), ATM Kale,
pm. Chembur. card of Bank of PW.9
Baroda (Article Malang
95), railway pass ID Sheikh
(Article97),
railway pass
(Article98), PAN
card (Article96)
found in wallet
(Article94).[Arrest
& Recovery
panchanama
(Exh.493)]
4 Nilesh 26/06/11 DCB CID, One Black colored Black color Honda PW.133
Shedge at 02:45 Property mobile phone Unicorn API
pm. Cell, (Article142) of motorcycle Gopale,
Mumbai. Karbon K201, bearing RTO PW.11
having IMEI no. registration no. Vikram
911119550032920, MH01AF8843 Jain,
911119550032938 (Article261) PW.131
364

DISCLOSURE
STATEMENT
with SIM card having engine no. Meer
(Article144) of KC09E4072612 & Usman Ali,
mobile chasis no. PW.30
no.9743193148 ME4KC098B8806 Dattatray
[Arrest & Recovery 9990 along with More,
panchanama its papers (Article PW.55
(Exh.512)] 260 colly), green Rajiv Mane
(Mehandi) colored
raincoat (Article
254) [Disclosure
statement
(Exh.1285) &
panchanama
(Exh.1315)]
5 Arun Dake 26/06/11 DCB CID, One black colored PW.134
at 07:00 Property Nokia mobile API
pm. Cell, phone (Article102) Pasalwar,
Mumbai. having IMEI no. PW.10
356264048565537 Habib
without SIM card, Mansuri
one gray colored
Nokia mobile
phone (Article106)
having IMEI no.
357421048060302
with SIM card
(Article108) of
mobile no.
9987017977, black
colored wallet
(Article110)
containing two
railway passes
(Article266 colly),
cash of Rs.500/
(Article112),
driving license
(Article264), Voter
ID card (Article
265), memory card
365

DISCLOSURE
STATEMENT
adapter (Article
114), one SIM card
of IDEA (Article
115) bearing sr.no.
899179900411897
46055 [Arrest &
Recovery
panchanama
(Exh.504)]
6 Mangesh 26/06/11 DCB CID, One black colored Pulsar motorcycle PW.138PI
Aagvane at 07:00 Property Nokia mobile bearing RTO Bhosle,
pm. Cell, model 1200 phone registration no. PW.127
Mumbai. (Article117) MH02AN4648 Bhagwan
having IMEI no. (Article240) Singh
355737027054103 having engine no. Thakur,
with SIM card DHGBM71409 & PW.26
(Article119) of chasis no. Dinesh
mobile no. DHVBMG72829 Arekar,
9967844960, cash along with its keys PW.28
of Rs.430/(Article (Article239 colly) Dattatray
121 colly), [Arrest and its papers Chavan
& Recovery (Article207 colly)
panchanama [Disclosure
(Exh.504)] statement
(Exh.1254) &
panchanama
(Exh.1254A)]
7 Sachin 26/06/11 DCB CID, A black colored Black colored PW.134PI
Gaikwad at 07:00 Property wallet (Article123) Pulsar motorcycle Pasalwar,
pm. Cell, containing cash of bearing RTO PW.123
Mumbai. Rs.710/(Article registration no. Aslam Haji
129), PAN card MH06AH4891 Mansuri,
(Article126), (Article233) PW.31
driving license bearing engine Suresh
(Article124) ATM no.DHGBNB92508 Waghmare
card of Syndicate & chasis no.
Bank (Article125), MDZDHDHZZNCB
One black colored with its papers
Reliance mobile (Article267 colly)
phone model no.RD and keys (Article
366

DISCLOSURE
STATEMENT
3530 CDMA having 230) [Disclosure
RSN no. RLGHS statement
1034346055 (Exh.1204) &
(Article131) with panchanama
SIM card of mobile (Exh.1205)]
no.9320816594
(Article133), One
Nokia mobile
phone (Article135)
having IMEI no.
353938014315554
with SIM card
(Article137) of
mobile no.
9768114422, One
SIM card of mobile
no. 9004328040
(Article140) and
8652475214
(Article139)[Arrest
& Recovery
panchanama
(Exh.504)]
8 Vinod 02/07/11 DCB CID Cash of Rs.31,580/ PW.133
Asrani at 11:15 Property (Article207), One API
Abated pm. Cell, red colored Nokia Gopale,
Mumbai. mobile phone PW.63
model E66 (Article Nasiruddin
191) having IMEI Mohd. Ali
no.3515490495849 Khan
32 having SIM card
bearing sr.no.
289120001180459
1219 of Vodafone
(Article193) of
mobile no.
9820597404, one
black & White
Nokia mobile
phone model
367

DISCLOSURE
STATEMENT
1203(Article203)
having IMEI no.
358013038283744
having a SIM of
Excel company
(Article205)
bearing sr.no.
899154801443182
1936, one silver
color Nokia CDMA
mobile phone
(Article195) model
6275 having RSN
no. 25013465688
with SIM card
(Article197) of
mobile no.
9324088888,
one white color
Nokia mobile
phone model E66
(Article199)
having IMEI
no.3579603988691
6 having SIM card
(Article201) of
mobile no.
9920088888
[Arrest & Recovery
panchanama
(Exh.731)]
9 Deepak 22/09/11 Office of PW.143
Sisodiya ACP, D1 ACP
(South), Duraphe
Crime
Branch,
Mumbai.
10 Paulson 05/09/11 DCB CID, No article was Black color Nokia PW.18
Palitara at 04:45 property found on his mobile phone Mohd.
pm. cell, person. [Arrest & (Article228) Abbas
368

DISCLOSURE
STATEMENT
Mumbai. Recovery model no.1280 Jilani,
panchanama bearing IMEI PW.142
(Exh.554)] no.358252041238 API Datir,
002 having one PW.117
white color SIM Vishal
card (Article229) Parmar,
bearing sr.no. PW.123
89234184500000 Aslam Haji
35120 of mobile Mansuri
no.+4479245571
20. [Disclosure
statement
(Exh.1201) &
panchanama
(Exh.1203)]
11 Ms.Jigna 25/11/11 DCB CID, A black colored PW.143
Vora at 01:15 Unit no.1, Samsung mobile ACP
pm. Mumbai. phone model GT Duraphe
19100 (Article165) along with
having IMEI no. a lady
358848044109403 Police
with SIM card Officer
(Article167) of
mobile
no.9167272555.
(Exh.694)
12 Chhota After he Golden color I PW.147

Rajan was Phone (Article287) Rajeev
brought containing SIM Kumar
to India, card (Article288), Sinha,
he was Black color IPhone PW.148
taken in (Article291), IPad Basil
judicial (Article171) Kerketta,
custody in [Memorandum PW.151
this case (Exh.1470)] Expert
on vide FSL,
order PW.152IO
dated CBI.
07/01/16.
369
(E) CA/BALLISTIC REPORTS
515. The prosecution has also relied upon various CA/Ballistic reports to
connect the accused persons with the present offence. The relevant
CA/Ballistic reports are at Exhs.230, 231 and 236. The conjoint reading of
these CA/Ballistic reports shows that the lead (Article215) which was
found near the spot of the incident and the lead (Article247) recovered
from the body of J.Dey tallied among themselves in respect of their
numbers and widths of land and grooves, directions and extent of twists of
rifling and the characteristic striations observed on the land and grooves
impression showing that the lead (Article215) found on the spot and the
lead (Article247) recovered from the body of J.Dey were fired from one
and the same .32” caliber revolver (Article249) having eight lands and
eight grooves with right handed twists of rifling. Also, from the CA report
(Exh.230), it is clear that the lead bullets were fired from beyond the
powder range of a weapon. As per the report (Exh.231), the lead (Article
215) which was found near the spot of the incident, the raincoat of J.Dey
(Article248) and the Rexene full pant (of raincoat) of J.Dey (Article45)
were stained with blood and appeared to have been washed. Similarly, the
Tshirt of J.Dey (Article52) was also found to be stained with blood
mostly on the left, front and back portion.
516. As per CA report (Exh.236), the revolver (Article249) was found to
be in working condition and residue of fired ammunitionnitrate was
detected in the barrel washing indicating that the revolver (Article249)
was used for firing prior to its receipt in the FSL. The report also shows
that two .32” revolver cartridges (out of 20 cartridges of the revolver
(Article250 colly.) were found to be live on test firing from the revolver
(Article249), the five empties (Article269 colly.) were fired from the
370
revolver (Article249) the characteristic features of the firing pin

impression on the empties (Article269 colly.) tallied among themselves
and with the cartridges which were test fired (Article250 colly.) and that
the live cartridges (Article250 colly.) and five empties (Article269 colly.)
were fired from the same revolver (Article249).
(F) CALL DETAIL RECORDS
517. It is the case of the prosecution that for the purposes of planning
and executing the murder of J.Dey, the accused persons were in contact
with each other through their mobile phones. Various Nodal Officers were
examined on behalf of the prosecution to prove in whose names the
relevant mobile numbers were registered, in which mobile phone those
mobile numbers were used at the relevant time, the location of some of
the accused persons prior to the incident, at the time of the incident and
after the incident. The Nodal Officers had given the details of the relevant
mobile numbers in view of the requisitions received by them from the
Investigation Officers during the course of the investigation. It may be
noted that these witnesses have mainly deposed on the basis of the record
furnished by them to the Investigating Officers. Considering the nature of
their evidence, for affording clarity, the CDRs proved through each of the
Nodal Officer are shown in the form of charts. The objections raised by the
defence about the value of CDRs will be considered independently.
CDR OF THE MOBILE NUMBERS (REGISTERED/ NOT REGISTERED)
IN THE NAME OF THE ACCUSED BUT RECOVERED FROM THEM.
SR. PW NO. AND SERVICE MOBILE NO. CERTIFICATE CDR

NO. NAME PROVIDER U/S. 65B OF
EVIDENCE
ACT,1872
1 108Shekhar TATA Tele 8655292230 Exh.908 Exh.909
371

EVIDENCE
ACT,1872
Vinayak Palande Services (A1) colly.
2 109Rakeshchandra Loop +447924557108 Exh.922 Exh.923
Rambhuj Prajapati Mobile (A1)
(India)
447924557120 Exh.925 Exh.926
(A10)
3 110Rajesh Reliance 9320816594 Exh.937 Exh.939
Sampatrao Comm. (A7)
Gaikwad
9324088888 Exh.941 Exh.942
(A8)
4 111Vijay Eknath Idea 9743193148 ArticleX111 Exh.949,
Shinde Cellular (A4) ArticleX121 ArticleX
122 (There
are two
different
CDRs)
8652475214 Exh.951 Exh.955
(A7)
'+ 447924557108 Exh.971 Exh.972,
(A1) ArticleX
124 (There
are two
different
CDRs)
5 113Sunil Aircel 9768114422 Exh.1071 Exh.991
Subhashchandra (A7)
Tiwari
8898590024 Exh.1071 Exh.994
(A2)
8898590018 Exh.1071 Exh.995
(A2)
447924557120 Exh.1425 Exh.1425
(A10) colly colly
6 PW.118Yogesh Bharti 9987017977 Exh.1033 Exh.1035
Shrikrishna Airtel (A5)
Rajapurkar
9967844960 Exh.1033 Exh.1039
372

EVIDENCE
ACT,1872
(A6)
7 PW.121Vikas Vodafone 9820597404 Exh.1102 Exh.1103
Narayan Phulkar (A8)
9920088888 Exh.1102 Exh.1105
(A8)
'+447924557108 Exh.1111 Exh.1112
(A1)
9167272555 Exh.1133 Exh.1132
(A5)
CDR OF THE MOBILE NUMBERS (REGISTERED) IN THE NAME OF
THE ACCUSED BUT NOT RECOVERED FROM THEM.

EVIDENCE
ACT,1872
1 109 Loop Mobile 9870011000 Exh.930 Exh.931
Rakeshchandra (India) (A11)
Rambhuj Prajapati
2 9870488388 Exh.933 Exh.934
(A11)
3 111Vijay Eknath Idea 8652449019 Exh.964 Exh.961
Shinde Cellular (A5)
4 PW.118Yogesh Bharti Airtel 7709131255 Exh.1052 Exh.1053
Shrikrishna (A5)
Rajapurkar
9833625491 Exh.1092 Exh.1100
(A6)
373
CDR OF THE MOBILE NUMBERS (NOT REGISTERED) IN THE NAME
OF THE ACCUSED AND NOT RECOVERED FROM THEM BUT USE
ATTRIBUTED TO THE ACCUSED PERSONS.

EVIDENCE
ACT,1872
1 108Shekhar TATA Tele 8097959843 Exh.911 Exh.912
Vinayak Palande Services (A5) colly.
2 109 Loop Mobile 9773916609 Exh.919 Exh.920
Rakeshchandra (India) (A5)
Rambhuj Prajapati
3 110Rajesh Reliance 9323971133 Exh.937 Exh.938
Sampatrao Comm.
Gaikwad
4 111Vijay Eknath Idea 8108521329 Exh.951 Exh.953
Shinde Cellular (A4)
8652580503 Exh.964 Exh.958
(A5)
9702873102 Exh.966 Exh.968
(A1)
9690115644 ArticleX118 ArticleX
119
8652490277 Exh.964 Exh.963
(A5)
Subhashchandra (A5)
Tiwari
Shrikrishna (A1)
Rajapurkar
7738622113 Exh.1033 Exh.1036
(A5)
9967210526 Exh.1033 Exh.1037
9004850894 Exh.1033 Exh.1038
9004328040 Exh.1033 Exh.1040
(A5)
9892504897 Exh.1033 Exh.1041
9892044665 Exh.1033 Exh.1042
374

EVIDENCE
ACT,1872
(A5)
9611899645 Exh.1044 Exh.1045
(A5)
9867464129 Exh.1047 Exh.1048
(A1)
9987917765 Exh.1047 Exh.1050
(A2)
9920227609 Exh.1092 Exh.1098
(A5)
518. It may be noted that though the prosecution has proved the CDRs of
over 40 mobile numbers, during the course of hearing the prosecution has
placed reliance on the CDRs of 21 mobile numbers to connect the accused
persons with this case. However, out of the CDRs of those 21 mobile
numbers, this Court is considering only those CDRs which are duly proved
by the prosecution and which are relevant.
519. The prosecution has also proved the CDRs of the mobile numbers of
some of the prosecution witnesses and J.Dey. They are reproduced below
in the form of a chart.
CDR OF MOBILE NUMBERS OF PROSECUTION WITNESSES

EVIDENCE
ACT,1872
1 111Vijay Eknath Idea Cellular 9594802961 Exh.975 Exh.966
Shinde (PW.82)
375

EVIDENCE
ACT,1872
Subhashchandra (PW.71)
Tiwari
9768408325 Exh.1071 Exh.992
(PW.89)
Shrikrishna (PW.88)
Rajapurkar
9987917765 Exh.1050 Exh.1047
7738409480 Exh.1058 Exh.1059
(PW.78)
Narayan Phulkar (PW.89)
9820047058 Exh.1109 Exh.1110
(PW.73)
9819582444 Exh.1125 Exh.1124
(PW.100)
9930900303 Exh.1129 Exh.1128
(PW.87)
9820048533 Exh.1133 Exh.1131
(PW.90)
9619516963 Exh.1137 Exh.1140
(PW.83)
9819784449 Exh.1141 Exh.1145
(J.Dey)
520. In addition, through the evidence of 144Ms.Leena Pawar who was
the Nodal Officer, Aircel, the prosecution has proved the CDR (Exh.1425
colly) of the handset having IMEI no.358252041238002 along with the
certificate u/s.65B of the Evidence Act,1872 (Exh.1425 colly). Similarly,
through the evidence of PW.145Chandrashekar Tiwari, Nodal Officer,
Bharti Airtel, Delhi circle, the prosecution has proved that the SIM card of
the mobile no.9987700111 was registered in the name the wanted
376
accused no.2Ravi Ram Rattesar vide customer application form (Exh.1464
colly).
521. At this stage, it will be appropriate to make a note and analyze the
evidence led by the prosecution with regard to certain mobile numbers
which were neither registered in the name of the accused persons nor
were recovered from them. However, as per the prosecution the mobile
numbers were used by the some of the accused persons during the time
the incident occurred and they serve as an important link to connect the
accused persons with the present offence.
EVIDENCE REGARDING USE OF THE MOBILE NUMBER 9867464129
BY THE ACCUSED NO.1ROHEE TANGAPPAN JOSEPH @ SATISH
KALYA.
522. In order to prove that the mobile no.9867464129 was being used by
the accused no.1Rohee Tangappan Joseph @ Satish Kalya at the relevant
time, the prosecution examined PW.89Girish Sargar who was the relative
of the accused no.2Anil Waghmode and was also knowing the accused
no.1Rohee Tangappan Joseph @ Satish Kalya. The mobile no.
9833726717 was registered in his name. It is the case of the prosecution
that after the incident, the accused no.1Rohee Tangappan Joseph @
Satish Kalya had contacted him from the mobile no. 9867464129 for the
purposes of escaping from Mumbai after the incident. But he did not
support the case of the prosecution. When he was crossexamined by the
learned SPP, he tried to disown the statement made by him before the
Police. But while doing so, he stated as follows:
“6. …........................I do not know whether on 11.06.2011 at
about 03:00 p.m. and thereafter Rohit Joseph @ Satish Kalya
had telephoned me on my mobile no.9833726717 from his
mobile phone no.9867464129 on three occasions. Witness states
377
that Rohit Joseph @ Satish Kalya may have called him for
making enquiry regarding payment towards tempo. Now again
the witness states that Rohit Joseph @ Satish Kalya did not
telephone him for that purpose. It is not true to say that I am
deposing falsely on oath that I do not know or remember that
Rohit Joseph @ Satish Kalya had telephoned me on my mobile
phone...................”
523. It is an admitted position that during the investigation, the SIM card
of the mobile no.9867464129 could not be recovered. But from the above
statement of PW.89Girish Sargar, it is quite clear that the accused no.1
Rohee Tangappan Joseph @ Satish Kalya had called him on 11/06/2011
at about 03:00 pm from the mobile no.9867464129. This shows that at
the relevant time, the accused no.1Rohee Tangappan Joseph @ Satish
Kalya was using the mobile no.9867464129. The fact that PW.89Girish
Sargar had received phone from the mobile no.9867464129 on
11/06/2011 on his mobile no.9833726717 is duly corroborated by the
CDR (Exh.1108). It is interesting to note that though PW.89Girish Sargar
was crossexamined by the learned Advocate for the accused no.1 and all
sorts of questions were put to him, he was never crossexamined on the
point of receipt of the phone call from the accused no.1Rohee Tangappan
Joseph @ Satish Kalya on 11/06/2011 at about 03:00 pm from the mobile
no.9867464129. Therefore, it can be safely said that at the time of the
incident, the mobile no.9867464129 was being used by the accused no.1
Rohee Tangappan Joseph @ Satish Kalya.
BY THE ACCUSED NO.1ROHEE TANGAPPAN JOSEPH @ SATISH
KALYA.
524. The SIM card of the mobile no.9892020185 was purchased by using
the documents of PW.15Banka Amarnath Gaud. The evidence of this
witness shows that he neither purchased the SIM card of this mobile
378
number nor did he give his documents to anybody for purchasing the SIM
card of that mobile number. He has deposed that in the year 2011, he had
lost his wallet which contained one photograph, xerox copy of his licence
and Rs.1,100/ in cash in the wallet. Perhaps the person who found the
wallet of PW.15Banka Amarnath Gaud used the documents in it to
purchase the SIM card of the mobile no.9892020185. According to
PW.118Nodal Officer Airtel, as per CDR (Exh.1034) on 11/06/2011, the
mobile no.9892020185 was used in the handset having IMEI
no.910528503374220. However, neither the SIM card nor the handset
was recovered during the investigation. There is no evidence to show that
the accused no.1Rohee Tangappan Joseph @ Satish Kalya was using the
SIM card of the mobile no.9892020185 at the time of the incident. The
use of the same cannot be attributed to him on the basis of suspicion.
Therefore, the prosecution cannot make use of the CDR (Exh.1034).
BY THE ACCUSED NO.2ANIL WAGHMODE.
525. As per the prosecution, the mobile no.9768408325 belonged to the
accused no.2Anil Waghmode and he was using the same at the time of
the incident. However, from the evidence of PW.113Nodal Officer Airtel,
it is seen that the said mobile number was registered in the name of
PW.89Girish Sargar. There is nothing in the evidence of PW.89Girish
Sargar to show that he had given the SIM card of the mobile
no.9768408325 to the accused no.2Anil Waghmode for use. The SIM card
of the said mobile number and the handset in which the SIM was used
were not recovered during the investigation. Therefore, in absence of any
evidence to connect the accused no.2Anil Waghmode with the use of the
SIM card of mobile no.9768408325, the prosecution cannot make use of
the CDR (Exh.992).
379
BY THE ACCUSED NO.2ANIL WAGHMODE.
526 As per the prosecution, the mobile no.9987917765 was being used
by the accused no.2Anil Waghmode. As per the prosecution, the
documents of PW.14Arshad Igatpuriwala Memon were used to purchase
the SIM card of the said mobile number. PW.14Arshad Igatpuriwala
Memon deposed that he did not purchase the SIM card of the said mobile
number. The SIM card of the said mobile number and the handset in
which the SIM was used were not recovered during the investigation.
Therefore, in absence of any evidence to connect the accused no.2Anil
Waghmode with the use of the SIM card of mobile no.9987917765, the
prosecution cannot make use of the CDR (Exh.1050).
BY THE ACCUSED NO.4NILESH SHEDGE.
527. As per the prosecution, the mobile no.8108521329 was being used
by the accused no.4Nilesh Shedge. The documents of one Ms. Hansa
Patwa were used to purchase the SIM card of the said mobile number. She
was not examined as she had expired. The SIM card of the said mobile
number and the handset in which the SIM was used were not recovered
during the investigation. Therefore, in absence of any evidence to connect
the accused no.4Nilesh Shedge with the use of the SIM card of mobile
no.8108521329, the prosecution cannot make use of the CDR (Exh.953).
BY THE ACCUSED NO.5ARUN DAKE.
528. In order to prove that the mobile no.8652580503 was being used by
the accused no.5Arun Dake at the time of the incident, the prosecution
has examined PW.93Ms. Lata Dake who was the wife of the accused no.5
Arun Dake and PW.107Roshan Baikar who was the relative of the
380
accused no.5Arun Dake. As per the prosecution, the accused no.5Arun
Dake had used the SIM card of the mobile no.8652580503 in the mobile
phone (Article159). Later on, when PW.107Roshan Baikar was in need
of a mobile phone, the accused no.5Arun Dake gave him the mobile
phone (Article159) for use. During the course of investigation, PW.107
Roshan Baikar produced the said mobile phone before the Investigating
Officer which was then seized. However, PW.107Roshan Baikar did not
support the case of the prosecution. In so far as the evidence of PW.93Ms.
Lata Dake is concerned, the perusal of the same will show that she has
admitted that the SIM card of the mobile no.8652580503 was given to her
by PW.92Ms.Rubina Isral Ansari. She stated that the SIM card of that
mobile number was with her for about 1520 days and thereafter, she lost
the SIM card. She stated that she did not use that SIM card as she did not
have any mobile phone with her at that time. She denied that the said SIM
card was being used by the accused no.5Arun Dake. As PW.93Ms. Lata
Dake did not support the case of the prosecution she was crossexamined
by the learned SPP. But nothing fruitful could be achieved. However,
when she was crossexamined on behalf of the accused nos.5 and 11, she
stated that she did not give the SIM card of the mobile no.8652580503 to
anybody. It may be noted that it has been brought out in the cross
examination of PW.111Nodal Officer Idea the SIM card of the mobile no.
8652580503 was purchased on 31/04/2011 and it was active.
529. It may be noted that the SIM card of the mobile no.8652580503
could not recovered during the investigation. The perusal of the evidence
of PW.93Ms.Lata Dake will show that she was desperate to save the
accused no.5Arun Dake who was her husband from punishment. In view
of the evidence of PW.111Nodal Officer Idea it is quite clear that the
statement made by PW.93Ms.Lata Dake that the SIM Card of the mobile
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no.8652580503 was never used is not correct. The perusal of the evidence
of PW.111Nodal Officer Idea and the CDR (Exh.958) clearly shows that
the said mobile number was active during the period 01/04/2011 till
10/06/2011 till 00:00:22 Hrs (midnight) and the said SIM card was used
in the handset having IMEI no.353678044077070 which was not
recovered during the investigation. Man may lie but the circumstances do
not is the cardinal principle of evaluation of evidence. In the present case,
the circumstance i.e. CDR (Exh.958) clearly shows that the mobile
no.8652580503 was very much active and was being used till one day
prior to the incident. If PW.93Ms.Lata Dake was not using it then in
absence of any evidence to the contrary it has to be said that the mobile
no.8652580503 was being used by the accused no.5Arun Dake as it is not
unusual for the husband to use the mobile phone of his wife. Therefore,
the accused no.5Arun Dake cannot escape his liability merely because the
SIM and the mobile handset in which the SIM card of mobile
no.8652580503 were used was not recovered.
by the accused no.5Arun Dake. It is the case of the prosecution that the
said mobile number was being used by PW.107Roshan Baikar and that
later on, he had given it to the accused no.5Arun Dake for use. But, he
did not support the case of the prosecution. The SIM card of the said
mobile number (Article162) was seized from PW.107Roshan Baikar after
he had produced the same before the Investigating Officer. In absence of
any evidence to connect the accused no.5Arun Dake with the use of the
SIM card of mobile no.7738622113, the prosecution cannot make use of
the CDR (Exh.1036).
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by the accused no.5Arun Dake. From the evidence of PW.111Nodal
Officer Idea, it is seen that the said mobile number was registered in the
name of one Shri Arlappa Chinappa Shetty. He was not examined by the
prosecution. As per the prosecution, the SIM card (Article115) of this
mobile number having sr.no.89917990041189746055 was found on the
person of the accused no.5Arun Dake at the time of his arrest and
personal search. However, the perusal of the original customer application
form (Exh.962) shows that the serial number of the SIM card of the
mobile no.8652490277 is 89917990021182590379 which is different
from the serial number mentioned found of the SIM card (Article115).
Therefore, it cannot be said that the SIM card of the mobile
no.8652490277 was recovered from the person of the accused no.5Arun
Dake. As such, in absence of any evidence to connect the accused no.5
Arun Dake with the use of the SIM card of mobile no.8652490277, the
prosecution cannot make use of the CDR (Exh.963).
(G) CCTV FOOTAGE
532. The prosecution has also relied upon the CCTV footage of
11/06/2011 of the area near the spot of the incident to connect the
accused persons with the present crime. In this regard, the prosecution has
relied upon the evidence of PW.27Yogesh Shitap who was working with
the Aryan Pro Security Technology Pvt. Ltd. which had installed CCTV
cameras in the Spectra building, Hiranandani, Powai and PW.75Jayesh
Mhatre who was working as a control room operator (Technician) with
the Top Security company. In June 2011, he was working in the Crisil
House ltd., Hiranandani, Powai. PW.27Yogesh Shitap had provided the
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recording of the CCTV footage of the Spectra Building in three CDs

(Articles 149 to 151 colly) and the hard disk of the DVR. PW.12Mohd.
Ayub Mohd. Umar Mogal was the panch witness regarding the seizure of
the harddisk containing the CCTV footage of 11/06/2011 of the CCTV
camera which were installed in the Spectra Building, Hiranandani, Powai.
PW.75Jayesh Mhatre had provided the CD (Exh.784) containing the
recording of the CCTV footage of the front gate of the Crisil House of
11/06/2011. PW.84Bhaskar Shankar Gode was the Head Constable,
Powai Police Station in whose presence the CDs (Articles149 to 151 colly)
were seized from PW.27Yogesh Shitap and sealed vide panchanama
(Exh.813). It may be noted that he was not the panch witness in that
regard. He was examined by the prosecution as the panch witnesses were
not traceable and as the proceedings of the panchanama (Exh.813) were
conducted in his presence. The perusal of the crossexamination of these
witnesses will show that the defence has not disputed the seizure of the
harddisk (Article146), CDs (Articles149 to 151 colly.) and the CD
(Article784).
533. It may be noted that the CDs produced by the prosecution contain
the CCTV footage which was copied on them. However, none of the above
CDs were accompanied by a certificate u/s.65B of the Evidence Act,1872.
The CD (Exh.784) was marked as exhibit subject to the proof in
accordance with law. But the prosecution did not file the certificate
u/s.65B of the Evidence Act,1872 to make the CDs admissible in evidence.
Hence, the CDs cannot be considered. However, the harddisk (Article
146) being the primary evidence will have to be considered. But, the
CCTV footage of 11/06/2011 is of no use to the prosecution as the CCTV
camera did not capture the actual incident. The CCTV footage shows that
one motorcycle was followed by two other motorcycles. The identity of the
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persons on those motorcycles cannot be established on the basis of the
CCTV footage as neither the faces of those persons nor the registration
number of the motorcycles is visible in the CCTV footage.
534. At this stage, it may be noted that as per the prosecution, the CCTV
footage and the photographs of the motorcycles were referred to PW.153
Dr. Edward Burns, Forensic Analyst, Minneapolis, USA for finding out
whether the motorcycles which were seen in the CCTV footage of
11/06/2011 and the motorcycles which were seized during the
investigation were one and the same. The prosecution has proved the
forensic report (Exh.1544) through the evidence of PW.153Dr. Edward
Burns. However, the perusal of the said report shows that it is
inconclusive. It is specifically stated in the report that there was not
enough visual information in the videos to positively match the questioned
motorcycles with the photographs of the motorcycles which were
provided. That apart, from the report (Exh.1544), it is not clear as to
which CCTV footage and photographs were sent to PW.153Dr. Edward
Burns for analysis. The prosecution did not lead any evidence in that
regard. Therefore, the report (Exh.1544) is not helpful to the prosecution.
(H) INTERCEPTION OF CONVERSATION BETWEEN THE ACCUSED

NO.12CHHOTA RAJAN AND PW.90MANOJ SHIVDASANI AND
REPORT OF VOICE ANALYSIS (EXH.1304) OF THE ACCUSED NO.12
CHHOTA RAJAN.
EVIDENCE REGARDING INTERCEPTION OF CONVERSATION
BETWEEN THE ACCUSED NO.12CHHOTA RAJAN AND PW.90MANOJ
SHIVDASANI.
535. As per the prosecution, the accused no.12Chhota Rajan and the
deceased accused no.8Vinod Asrani were close to each other. As at the
relevant time, as the health of the deceased accused no.8Vinod Asrani
was not good, the accused no.12Chhota Rajan used to speak to PW.90
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Manoj Shivdasani who was working with the deceased accused no.8Vinod
Asrani on phone for making enquiry regarding the health of the deceased
accused no.8Vinod Asrani and one such phone call was intercepted on
02/08/2011. As per the prosecution, during the said conversation, the
accused no.12Chhota Rajan told him the reason for getting rid of J.Dey.
536. In support of the above, the prosecution has basically relied on the
evidence of PW.90Manoj Shivdasani, PW.74API Pramod Sawant,
PW.136PI Kale and PW.143ACP Duraphe.
537. It has come in the evidence of PW.90Manoj Shivdasani that he used
to work with the deceased accused no.8Vinod Asrani. He deposed that his
mobile number was 9820048533. He deposed that the deceased accused
no.8Vinod Asrani was suffering from a liver ailment. He deposed that
some of the friends of the deceased accused no.8Vinod Asrani used to
phone him and make enquiry with him about the health of the deceased
accused no.8Vinod Asrani. He deposed that he had heard the name of the
accused no.12Chhota Rajan and that the accused no.12Chhota Rajan had
phoned him long back and made enquiry regarding with regarding the
health of the deceased accused no.8Vinod Asrani. He deposed that in this
case, his statement was recorded u/s.164 of Cr.P.C.,1973 by the learned
Magistrate. He deposed that he could not read Marathi and that he had
simply signed the statement. He deposed that he did not remember the
contents of the statement. At the same time, he stated that he had stated
the truth before the learned Magistrate. When the CD (Exh.777)
containing the record of his conversation with accused no.12Chhota
Rajan was played on the computer of the Court in presence of all he
identified his voice in the conversation. He deposed that in the
conversation he was talking with the accused no.12Chhota Rajan. He
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deposed that the caller had introduced himself as Nana. He deposed that
Nana was also known as Chhota Rajan. He deposed that the contents of
the conversation were correct.

stated that he did not give any document to the Police to show that the
mobile no.9820048533 belonged to him. He stated that in August 2011 he
was mentally disturbed as he had some liver problem due to consumption
of liquor. He stated that after seeing the medical condition of the deceased
accused no.8Vinod Asrani he stopped consuming liquor. He stated that at
the time when the Police recorded his statement he used to consume
liquor. He stated that at that time he was little bit scared and confused. He
denied that at that time, his mental condition was not good. He stated that
he was under pressure at that time but he denied that he was pressurized
by the Police. He stated that the conversation recorded in CD (Exh.777)
was never played by the Police before him during investigation. He stated
that before he entered into the witness box he was told that the CD
containing conversation between himself and the accused no.12Chhota
Rajan would be played in the Court. He stated that he was told to
recognize the voice in the conversation. He denied that he did not receive
any phone call from the accused no.12Chhota Rajan.

stated that except the phone call in the year 2006 and the phone call in
question he did not receive any other phone call from the accused no.12
Chhota Rajan. He stated that he did not remember the exact date on
which he had received both the phone calls. He stated that he did not
remember the month in which he had received the phone call in the year
2006. But he stated that he had received that phone call with regard to the
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health of the deceased accused no.8Vinod Asrani. He stated that prior to
that there was no connection between him and the accused no.12Chhota
Rajan. He stated that he did not remember the duration of conversation
which had taken place between him and the accused no.12Chhota Rajan
in the phone call which was made to him in the year 2006. He stated that
the deceased accused no.8Vinod Asrani had given his name and mobile
number to the accused no.12Chhota Rajan in the year 2006 when he was
not keeping well. He stated that the deceased accused no.8Vinod Asrani
had told him that he had given his mobile number to the accused no.12
Chhota Rajan. He stated that the deceased accused no.8Vinod Asrani had
told him that the accused no.12Chhota Rajan would be asking him
(witness) about the health of the deceased accused no.8Vinod Asrani and
that he should give the information about the same to the accused no.12
Chhota Rajan. He stated that prior to the year 2006 he had never heard
the voice of the accused no.12Chhota Rajan nor he had met him
personally. He stated that from the year 2006 till the last phone call he
had not heard the voice of the accused no.12Chhota Rajan. He stated that
he did not remember the exact contents of his conversation with regard to
the last phone call received by him from the accused no.12Chhota Rajan.
He stated that thereafter he never received any phone call from the
stated that he had never personally seen the deceased accused no.8Vinod
Asrani talking to the accused no.12Chhota Rajan. He stated that he had
never met the accused no.12Chhota Rajan. He stated that he had said
that the phone call was made by the accused no.12Chhota Rajan because
the caller had told him that he was Nana @ Chhota Rajan. He stated that
his mobile number was 9820048533. He stated that the Police did not
388
seize his mobile phone. He denied that when his statement was being
recorded by the Magistrate the Policemen were around him. He
voluntarily stated that the Policemen were sitting outside. He stated that
he did not remember the exact date on which he had received the phone
call from the accused no.12Chhota Rajan. He admitted that he was
remembering the conversation because he had heard it in the Court during
the recording of his deposition. He denied that it was the only
conversation which he had with the accused no.12Chhota Rajan. He
voluntarily stated that prior to that phone call he had one conversation
with the accused no.12Chhota Rajan in the year 2006. He stated that he
was not aware that the calls of his mobile phone were being intercepted
and recorded by the Police.
541. PW.136PI Kale deposed that 01/08/2011, he received a

confidential information that one person by name Raj whose mobile
number was 9820048533 was talking to the accused no.12Chhota Rajan
from that mobile number. He deposed that on 02/08/2011 he prepared a
proposal for intercepting the phone calls of that mobile number and
forwarded the same to the Additional Commissioner of Police (Crime). He
deposed that thereafter that mobile number was kept under surveillance
under the 'XProject'.
stated that he had never seen PW.90Manoj Shivdasani. He stated that he
did not examine the call details of the mobile no.9820048533. He stated
that he came to know that the said mobile number belonged to PW.90
Manoj Shivdasani through the 'XProject' after the proposal was
forwarded. He stated that he had received information that 'Raj' was using
the said mobile number for making extortion calls and for ordering
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associates to commit murder. He stated that he did not register any

offence against him as only an information was received.

stated that he did not know the full name of 'Raj'. He stated that he could
not say when he had received the secret information about 'Raj' being in
contact with the accused no.12Chhota Rajan from the mobile
no.9820048533. He stated that he did not check the antecedents of 'Raj'
before forwarding the proposal. He stated that he did not submit any
document to the Additional Commissioner of Police (Crime) along with
the proposal. He stated that prior to 02/08/2011, he did not know since
when and on how many occasions 'Raj' was in contact with the accused
no.12Chhota Rajan. He stated that he had received the secret information
on 01/08/2011. He stated that he did not feel the necessity of collecting
the call details of the mobile no.9820048533. He stated that he did not
know the procedure for intercepting the phone calls. He stated that he did
not know since when the mobile no.9820048533 was kept under
surveillance.
544. PW.74API Sawant was attached to the “XProject” under the

Additional Commissioner of Police, Crime Branch, Mumbai and it was his
duty to prepare proposals regarding interception of phone numbers based
on applications made by the concerned Unit Incharge. His evidence shows
that after the receipt of the proposal for interception of phone calls of a
particular mobile number, it was to be placed before the Additional
Commissioner of Police for approval and then to forward the same to the
Joint Commissioner of Police (Crime) and from him it used to be
forwarded the Commissioner of Police, Mumbai and thereafter to the
Additional Chief Secretary (Home) for the necessary permission. After
390
receiving the Order, it used to be sent to the concerned mobile company
(service provider) for compliance. Accordingly, the mobile companies used
to divert the calls to their server. He has deposed that they used to record
the calls and hear the conversation.
545. He deposed that on 02/08/2011, during the course of his duty,

PW.136PI Kale of DCB CID Unit no.6 gave a requisition that the calls of
mobile no.9820048533 of one Raj belonging to the gang of the accused
no.12Chhota Rajan were to be intercepted and kept under observation.
Accordingly, he placed the requisition before the Additional Commissioner
of Police (Crime). He deposed that treating the proposal as urgent, the
Additional Commissioner of Police (Crime), on the same day directed that
the said mobile number be kept under observation. He deposed that he
then prepared a proper proposal and forwarded the same to the Additional
Chief Secretary (Home) for sanction through the Joint Commissioner of
Police (Crime) and the Commissioner of Police. He deposed that on
04/08/2011, the order (Exh.775) was received from Additional Chief
Secretary (Home).
546. He deposed that the mobile no.9820048533 was under surveillance
since 02/08/2011. He deposed that the first call was intercepted on
04/08/2011 at 02:20:10. He deposed that he had heard the conversation
which was going on in that call. He deposed that the conversation was
between one Manoj (PW.90) and the accused no.12Chhota Rajan. He
deposed that the mobile no.9820048533 belonged to Manoj (PW.90) and
he was talking to the accused no.12Chhota Rajan. He deposed that they
were talking about the health of the deceased accused no.8Vinod Asrani
and about one unknown person. He deposed that the accused no.12
Chhota Rajan was saying “woh bhi koi sav nahi tha, who bhi dawood se
391
juda hua tha, uske against me aur bhi journalist the”. He deposed that the
accused no.12Chhota Rajan also made a reference to the name of the
accused no.11Ms.Jigna Vora. He deposed that during the conversation,
the accused no.12Chhota Rajan also said that he was called to London
and Philippines. He deposed that when he informed the Additional
Commissioner of Police (Crime) about the interception, he was directed to
save the record of the conversation in the server. He deposed that as per
the directions of Additional Commissioner of Police the record of
conversation was preserved in the server.
547. He deposed that he could identify the voice of the accused no.12
Chhota Rajan as he used to refer to his name in the conversations which
were intercepted from time to time. He deposed that after hearing the
conversation he gathered that it was about the murder of J.Dey which was
being investigated by PW.143ACP Duraphe. He deposed that on the basis
of the letter which was issued by PW.143ACP Duraphe, the Additional
Commissioner of Police directed him to prepare three CDs of the
conversation.
548. He deposed that he was having access to the server and after
logging in by using his user name and password he prepared three CDs of
the conversation, heard the contents of the CDs one by one and prepared
the transcript (Exh.776) of the conversation. He deposed that he then kept
the three CDs (Exhs.777, 777A, 777B) in three different khaki colored
envelopes and sealed the same. He deposed that he then gave the CDs
along with the transcript (Exh.776) in sealed condition to PW.143ACP
Duraphe. When the CD (Exh.777) was played in the open Court in
presence of all, he identified the voice of Manoj (PW.90) and the voice of
the accused no.12Chhota Rajan in the conversation. He deposed that the
392
original conversation was still preserved in the server. He deposed that on
13/07/2016, he issued the certificate u/s.65B (Exh.778) of the Evidence
Act, 1872 to PW.152IO CBI.

stated that he had not done any course in computers. He stated that he did
not prepare any panchanama regarding the conversation. He denied that
he had prepared transcript (Exh.776) after he heard the conversation for
the first time. He stated that he had not undergone any training regarding
voice identification. He stated that in the transcript (Exh.776) there was
no statement that the person calling had said that he was accused no.12
Chhota Rajan. He stated that in the letter (Exh.774) it was not mentioned
that three CDs were forwarded in sealed condition to PW.143ACP
Duraphe. He stated that in the transcript (Exh.776) it was not mentioned
that it related to the present case.
stated that between 02/08/2011 and 28/09/2011 other calls made and
received from the mobile no.9820048533 were also intercepted and
recorded. He stated that he could not say whether there was any call
regarding extortion. He stated that as per the procedure any requisition
for interception used to come to him for processing. He stated that in the
requisition, the details of complainant or the details about the date of
extortion was not mentioned. He stated that the said mobile number was
not registered in the name of Raj and it was being used by one person by
name Manoj(PW.90).
551. He stated that he could not say whether during the period
02/08/2011 to 28/09/2011 any other call was also received in the name
393
of the accused no.12Chhota Rajan. He stated that he had started the

interception of the calls from 02/08/2011 and he had received the order
(Exh.775) on 04/08/2011. He stated that there was no special reason for
intercepting the phone call without permission from the competent
authority. He denied that the certificate (Exh.778) u/s.65B of the
Evidence Act, 1872 was not issued by following due procedure.

stated that the calls of the mobile no.9820048533 were intercepted by him
from 02/08/2011 to 28/09/2011. He stated that as on the day on which
his deposition was recorded, he could not say how many calls were
received and intercepted between 02/08/2011 to 04/08/2011. He stated
that he did not know Raj whose number was provided to him. He stated
that he had verified in whose name the mobile no.9820048533 was
registered by getting the subscriber details from the Vodafone company.
He stated that he had taken the information on 02/08/2011. He stated
that the proposal was prepared by an Officer by name Sunil Patil on
02/08/2011. He stated that he could not give the exact time at which it
was prepared. He stated that he could not give the exact time on which
PW.136PI Kale provided the information to him. He stated that no timing
was mentioned in the documents except in the transcript (Exh.776). He
admitted that in the letter (Exh.774) and the order (Exh.775) neither the
details of the subscriber of the mobile no.9820048533 were mentioned
nor the name of the person using the said mobile number was mentioned.
He stated that prior to 04/08/2011, he was not knowing any person by
name Manoj (PW.90) and Raj.
553. He stated that the phone number of Police which was used for
interception was 22604500. He stated that all the calls made or received
394
on the mobile number 9820048533 were recorded in the server of the “X
Project”. He stated that the time at which the phone call was received and
the time at which the phone was disconnected was also recorded in the
server. He stated that the duration of the call was not recorded. He
voluntarily stated that the Interception Related Information (IRI) was
furnished by the service provider. He stated that whenever any phone
number was kept under observation, the calls made from that number or
received on that number were recorded in the server. He stated that the
calls were recorded even if the Officer was absent. He admitted that the
phone calls which were recorded in the server could not be manipulated in
any manner. He stated that he could not give the details of any other calls
except the phone call in question.
554. He stated that he had never met or talked to the accused no.12
Chhota Rajan. He stated that he had deposed that one person in the
conversation was the accused no.12Chhota Rajan as this name was given
to him by PW.136PI Kale. He stated that he did not attend the phone call
when it was actually made. He stated that some other staff might have
attended the same. He stated that generally the calls were correctly
recorded from the beginning till the end. He stated that any addition or
deletion of words in the conversation was not possible. He stated that at
the time of deposing he could not say on which date the transcript
(Exh.776) was prepared. He stated that he had first heard the entire
conversation and then he again heard each sentence and typed it and
again verified it. He stated that the conversation was recorded
automatically and without any human intervention. He stated that at the
time of preparing the transcript (Exh.776) nobody else was present with
him. He stated that the recorded conversation in the server was copied in
the CD on 11/01/2012. He stated that he did not remember the time at
395
which it was copied. He stated that the phone number of the caller and
the receiver was generated in the server. He stated that the time of receipt
of call and the time at which the phone was disconnected could be seen in
the server.
555. He stated that he had given the all the three CDs (Exhs.777, 777A,
777B) to PW.143ACP Duraphe on 11/01/2012 and thereafter, he did not
see the CDs till the date on which he deposed before the Court. He stated
that the CDs were not played before him till the date on which his
evidence was recorded. He stated that after preparing the CDs he had no
occasion to verify and hear the recorded conversation till he deposed in
the Court. He denied that no call was received and no call was recorded.
He denied that the call, CDs and transcript (Exh.776) were manipulated at
the instance of Crime Branch.
556. PW.143ACP Duraphe deposed that during the investigation which
was conducted by him PW.74API Sawant produced a letter sent by
PW.136PI Kale for monitoring the mobile no.9820048533 which was
received by his sources. He deposed that PW.74API Sawant also produced
the letter (Exh.774) of Addl. Commissioner of Police, the order of Addl.
Chief Secretary (Exh.775) and the three CDs containing the transcript
(Exh.776) of the telephonic conversation which were recorded during the
period when the calls were being monitored.
stated that he had made enquiry with PW.90Manoj Shivdasani regarding
his antecedents. He stated that during the investigation he had come
across the name 'Raj'. He stated that the name 'Raj' was a nick name and
that he did not record the statement of any person by name 'Raj'. He
396
stated that he had recorded the statement of PW.90Manoj Shivdasani. He
stated that the mobile number of PW.90Manoj Shivdasani was put on
surveillance as he had received information that a person by name 'Raj'
was contacting the accused no.12Chhota Rajan regarding the criminal
activities and for curbing the activities the phone number was placed
under surveillance from 02/08/2011. He denied that the mobile number
was placed under surveillance from 03/08/2011. He stated that he did not
remember the exact time at which the phone number was put on
surveillance on 02/08/2011. He stated that the proposal was put up by
PW.136PI Kale on 02/08/2011. He stated that he did not know whether
there was any other call made from or to that mobile number regarding
any criminal activity.

stated that a phone number was kept under surveillance only after an
order to that effect was passed. He voluntarily stated that in urgent cases a
letter could be issued by the Addl. Commissioner of Police to the service
provider to intercept the calls. He stated that the Addl. Chief Secretary
was empowered to pass order for surveillance of phone calls and this case
the order was passed on 04/08/2011. He stated that during the
investigation he did not try to find out who was 'Raj' and where he was
residing. He stated after the mobile number was placed under surveillance
he tried to find out about 'Raj' from the police records but nothing was
found. He stated that he did not remember whether at the time of
recording his statement the CD containing the conversation of the mobile
no.9820048533 was with was with him or not. He stated that PW.74API
Sawant had prepared the transcript of the conversation.
559. He stated that he had compared the conversation recorded in the
397
CD and the transcript and he found that the contents of the CD and the
contents of the transcript were the same. He stated that some statements
which were not audible were not a part of the transcript. He stated that
the first chargesheet in this case was submitted by him on 03/12/2011.
After looking at the record, he stated that he had recorded the statement
of PW.74API Sawant on 18/01/2012. He stated that the statement of
PW.74API Sawant was neither annexed to the original chargesheet nor
the transcript was filed along with the original chargesheet. He stated
that he did not know the date on which the transcript was prepared. He
admitted that the transcript was not filed along with the original charge
sheet as the first chargesheet was already submitted against the accused
except accusedMs.Jigna Vora. He stated that he was going to file
supplementary chargesheet and he thought that those documents could
be filed along with the supplementary chargesheet. He stated that it was
not his practice to submit only material against the chargesheeted
accused and not against absconding accused who were subsequently
chargesheeted. He stated that generally along with the chargesheet the
material which was collected till that day was also filed. He stated that
there was no specific reason for not recording the statement of PW.74API
Sawant prior to 18/01/2012. He denied that the CD, the transcript and
connected material were forged and fabricated. He stated that PW.74API
Sawant had given three CDs to him. He stated that he did not remember
whether he had asked PW.74API Sawant to produce the certificate u/s
65B of the Evidence Act,1872. He denied that the record of the
intercepted call was not available at the time of filing of the original
chargesheet and therefore it was not filed along with the original charge
sheet.
560. From the evidence of PW.74API Sawant, it is seen that he prepared
398
the transcript (Exh.776) from the CDs (Exh.777, 777A and 777B) in
which the conversation between PW.90Manoj Shivdasani and the accused
no.12Chhota Rajan was copied from the server of the XProject where the
original record of the conversation was preserved. He did not prepare the
transcript (Exh.776) by hearing the original record of the conversation.
Therefore, the transcript (Exh.776) is inadmissible in evidence and cannot
be looked into. At the same time, the other evidence on this point can be
considered.
561. It may be noted that during crossexamination of PW.90Manoj

Shivdasani it was brought on the record that before deposing in the Court
he was told to recognize the voice in the conversation. This fact was
brought on the record to show that PW.90Manoj Shivdasani was a
tutored witness. In this regard, firstly, it may be stated that no question
was put to PW.90Manoj Shivdasani as to who had told him to recognize
the voice in the conversation. Further, it is not the case of the defence that
before deposing in the Court PW.90Manoj Shivdasani had met the
learned SPP and his statement was read over to him. Assuming for a
moment that PW.90Manoj Shivdasani had met the learned SPP before
deposing in the Court, that by itself will not mean that PW.90Manoj
Shivdasani was tutored. It is not tutoring if the witness is made aware of
his Police statement and is told to narrate the incident properly in the
Court. The case of the prosecution will be adversely affected only if it is
shown in the crossexamination of the witness that the witness was told to
give incorrect evidence. Such is not the case with the evidence of PW.90
Manoj Shivdasani. Hence, it cannot be said that PW.90Manoj Shivdasani
was a tutored witness.
399
EVIDENCE REGARDING THE REPORT OF VOICE ANALYSIS
(EXH.1304) OF THE ACCUSED NO.12CHHOTA RAJAN.
562. PW.132Dhananjay Rawat, Deputy Superintendent, Tihar Central
Jail No.2, was the panch witness regarding the seizure of the voice sample
of the accused no.12Chhota Rajan for the purposes of spectrography. As
the accused no.12Chhota Rajan has admitted that his voice sample was
indeed recorded in the premises of the Tihar Jail, New Delhi on
22/02/2016, it is not necessary to discuss the evidence of PW.132
Dhananjay Rawat. For the same reason, it is also not necessary to discuss
the evidence of PW.135Amitosh Singh, Scientific Officer, Grade II,
Physics, CSFL, New Delhi who recorded the voice sample of the accused
no.12Chhota Rajan on 22/06/2016.
563. PW.155Dr. Rajender Singh was the expert who analyzed the voice
sample of the accused no.12Chhota Rajan and his voice in the
conversation which he had with PW.90Manoj Shivdasani and which was
intercepted. The report (Exh.1304) submitted by him was directly marked
as exhibit in view of section 293 of Cr.P.C.,1973.
the voice sample was received by him on 07/03/2016. He stated that he
could not say whether the voice sample of accused no.12Chhota Rajan
was taken in Tihar Jail as he was not present at that time. He stated that
he did not know what instrument was used for recording the voice sample
of the accused no.12Chhota Rajan. He stated that he did not create the
five folders in the micro SD card (Article257) and that they were already
created. He stated that he did not know who created those five folders. He
stated that he came to know about the empty folders when he examined
the micro SD card (Article257). He admitted that his report was with
400
regard to the voice sample of the accused no.12Chhota Rajan which was
taken. He denied that he had tampered with the voice sample of the
accused no.12Chhota Rajan. He denied that he had furnished a false
report. He denied that he had compared voice sample of the accused
no.12Chhota Rajan with wrong CD which contained so called
interception of conversation of accused no.12Chhota Rajan. He denied
that the CD received by him was tampered. He denied that the he had
prepared the report (Exh.1304) to suit the case of the prosecution.
565. From the evidence of PW.155Dr.Rajender Singh and the

examination report (Exh.1304), it appears that he compared the voice
sample of the accused no.12Chhota Rajan which was recorded in the
micro SD card (Article257) with the CD containing the record of the
conversation which had taken place between PW.90Manoj Shivdasani
and accused no.12Chhota Rajan. The said CD was forwarded to
CFSL,New Delhi by PW.150S.S. Kishor who was S.P., CBI. Special Crime
II, New Delhi. From the perusal of his evidence it appears that he simply
called for a CD containing the copy of the conversation between PW.90
Manoj Shivdasani and the accused no.12Chhota Rajan. There is nothing
on record to show how that CD was prepared. In any case, as can be seen
from the examination report (Exh.1304), PW.155Rajender Singh used the
voice contained in the CD for comparing it with the voice sample of the
accused no.12Chhota Rajan which was recorded in the micro SD card
(Article257). He did not hear the record of the original conversation.
There is nothing to suggest that CD containing the copy of the record of
conversation between PW.90Manoj Shivdasani and the accused no.12
Chhota Rajan was compared with the original record which was preserved
in the server. Hence, the examination report (Exh.1304) cannot be
considered.
401
(I) ORAL EVIDENCE
ORAL EVIDENCE WITH REGARD TO THE VISIT OF J.DEY TO LONDON
AND PHILLIPINES PRIOR TO THE INCIDENT.
566. PW.35Jacob George was a friend of J.Dey. He deposed that in the
year 2011 J.Dey had told him that he was going to London for
interviewing someone regarding the incident of '26/11'. He deposed that
after returning from London when he met J.Dey on 04/06/2011, J.Dey
told him that he could not take the interview.
stated that J.Dey did not tell him that when he had gone to London he had
also visited Germany, France and Switzerland.
568. PW.42Rajan Sheth was a friend of J.Dey. He deposed that both of
them used meet twice or thrice in a week. He deposed that J.Dey had told
him that he was receiving some calls from the accused no.12Chhota
Rajan. He deposed that he had told J.Dey to take care as he was receiving
calls from the accused no.12Chhota Rajan. He deposed that J.Dey told
him that he was receiving the calls from accused no.12Chhota Rajan as he
might have committed a mistake. He deposed that on the day of his
murder he had not met J.Dey but he had received a phone call from him.
He deposed that he knew the deceased accused no.8Vinod Asrani and
that he had talked with J.Dey regarding him. He deposed that the
deceased accused no.8Vinod Asrani was a Bookie. He deposed that J.Dey
was in regular touch with the deceased accused no.8Vinod Asrani.
that J.Dey and the deceased accused no.8Vinod Asrani were in touch with
402
each other because of Cricket. He stated that he did not personally see
J.Dey talking with the accused no.12Chhota Rajan. He stated that the
DCB CID had made enquiry with him with reference to the murder of
J.Dey in the year 20112012 but his statement was not recorded. He
stated that whatever he had deposed in examination in chief was never
stated by him before the Mumbai Police.
that he was the friend of J.Dey since the year 2003. He stated that
sometimes J.Dey used to share his personal information with him. He
stated that J.Dey did not discuss with him any of the articles written by
him. He stated that he came to know about the murder of J.Dey from TV.
He stated that thereafter he went to his work. He stated that on that day it
was raining heavily. He stated that he did not attend the funeral of J.Dey.
He voluntarily stated that he was a diabetic patient and was required to
take three injections in a day and therefore, he could not attend the
funeral. He stated that he did not meet the wife or mother or the sister or
any other relative of J.Dey after his murder. He stated that J.Dey had told
him that he had gone abroad. He stated that he did not remember where
J.Dey had gone. He then stated that J.Dey might have gone to London. He
stated that he did not know whether J.Dey had also gone to Germany,
France and Switzerland. He stated that prior to 25/04/2016 he did not tell
anybody that J.Dey had received calls from accused no.12Chhota Rajan.
He denied that he had cooked a false story while giving statement to the
CBI. He stated that J.Dey was a very secretive person. He denied that he
was deposing falsely under the pressure of CBI. (This suggestion was given
to the witness twice).
571. PW.45V.R. Divakaran was also a friend of J.Dey. He deposed that
403
he had met J.Dey 1215 days prior to his death and at that time, J.Dey had
told him that he was going to Philippines to meet the accused no.12
Chhota Rajan.
572. In crossexamination on behalf of accused nos.3,4 and 12, he

admitted that he had met J.Dey through PW.44Atul Sharma. He stated
that he did not know when J.Dey had visited London. He stated that J.Dey
did not tell him anything about his foreign visits. He stated that he did not
know whether J.Dey had visited Philippines.
573. PW.46Ms.Poornima Swaminathan was working under J.Dey at the
relevant time in the daily 'MidDay'. She deposed that J.Dey was supposed
to go to Philippines in a junket organized by the Tourism Board of
Philippines at the time of his murder. She deposed that J.Dey had once
visited Europe and during that J.Dey had contacted her through a matrix
mobile phone number but she did not remember that phone number. She
has also deposed about various books written by J.Dey and the books
which was planning to write and publish which related to the accused
no.12Chhota Rajan and Dawood Ibrahim. Since, that part of her evidence
is not relevant for the present purpose, it is not being dealt with.
574. PW.68Sachin Ramesh Kalbag was working in the daily 'MidDay' in
the year 1994. At the time of the incident, i.e. on 11/06/2011, he was
working with the India Today Group at the New Delhi. He stated that on
14/03/2011, he was appointed as the Executive Editor of the daily 'Mid
Day'. He deposed that the Office of the daily 'MidDay' was situated at
Peninsula Center, Parel (E), Near Income Tax office, Mumbai400 013. He
deposed that he knew J.Dey and that he was the Editor (Special
Investigation and Crime) in the Office of daily 'MidDay'. He deposed that
404
he also knew PW.46Ms.Poornima Swaminathan as she was also a

Reporter working in the daily 'MidDay'. He deposed that it was his duty to
verify the authenticity of the news items submitted by the Reporters. He
deposed that J.Dey was a quiet and introvert person. He deposed that he
could not remember whether J.Dey had any dispute with any of his
colleagues.
575. He deposed that the murder of J.Dey was national news. He

deposed that in July 2011 he was interviewed by the 'NDTV India' news
channel. He deposed that the Reporter had told him that there was a
program on the J.Dey murder case and that they wanted to ask him some
questions. He deposed that he agreed to talk to them after sometime. He
deposed that thereafter, they telephoned him and he was interviewed on
the phone. He deposed that he did not remember the details of the
questions put to him. He stated that there was an assertion from the
'NDTV India' news channel that they had information that the accused
no.12Chhota Rajan may be involved in the murder of J.Dey. He deposed
that the person from the 'NDTV India' news channel also told him that one
of the Reporters by surname Shri Singh (PW.78) had a conversation with
accused no.12Chhota Rajan. He deposed that when the persons from the
'NDTV India' news channel asked him what was his opinion regarding the
conversation between that Reporter and the accused no.12Chhota Rajan,
he stated that he did not have any opinion as he was not a part of that
conversation. He deposed that J.Dey had written news reports which was
published in the daily 'MidDay' dated 30/05/2011 and 02/06/2011
(Exh.752 colly.) regarding the firing incident which had taken place at the
Pakmodia Street.
405
that the Police did not prepare any panchanama in his presence regarding
the news articles (Exh.752 colly). He stated that he did not find out about
the identity of the person who claimed that he was calling from 'NDTV
India' news channel. He stated that as per the news article dated
02/06/2011 (Exh.752 colly) the Police had given the information that
many members of the gang of accused no.12Chhota Rajan were missing
from their hideouts and that there was possibility of backlash from the
Dawood Gang. He admitted that J.Dey was murdered after the incident
which was reported in the news article dated 02/06/2011 (Exh.752
colly). He stated that J.Dey was also publishing articles against the gang of
Dawood. He stated that J.Dey might have been attacked at the instance of
Dawood.
that he was in the field of journalism since last 23 years. He stated that the
rates for advertising in the newspaper were dependent upon the increase
or decrease in the readership. He stated that the headline of a news item
was the main factor for attracting the readers. He stated that the news
which was to be published was dependent upon the sources from whom
the news was received. He stated that J.Dey was a fearless writer and he
used to write articles on criminals including oil mafia, sandalwood
smugglers etc. He stated that J.Dey had discussed with him about the
smuggling of sandalwood in Karnataka and he wanted to go there. He
stated that J.Dey never discussed about his sources with him. He stated
that J.Dey discussed with him about the oil mafia. He denied that the
news desk was responsible for generation of revenue of the newspaper. He
stated that when he was working with the daily 'MidDay', he had sent
J.Dey to Philippines. He stated that he was not aware whether J.Dey had
gone to Germany and Switzerland but he stated that J.Dey had gone to
406
London. He stated that he did not recall whether J.Dey was killed before
going to Philippines. He then stated that he could not recall whether J.Dey
had gone to Philippines. He stated that it was possible that the name such
as Chhota Rajan, Dawood Ibrahim are included in the headlines to
increase the sale of newspaper but he also stated that there was no proof
in that regard.
that he was knowing J.Dey since the year 1995. He admitted that J.Dey
used to maintain secrecy about his work, about the news he collected and
about what he had written. He stated that he was not much aware about
the personal life of J.Dey.
579. PW.104Shaikh Fakrullah was working as Manager of Raj Travels on
Freelance basis. He deposed that in April2011 J.Dey had toured Europe
with his company between the period 28/04/2011 to 05/05/2011. He
deposed that during the tour he found the behavior of J.Dey normal. He
deposed that J.Dey used to sit on the back seat of the bus separately and
used to talk on his phone continuously. He deposed that on one occasion
when he had asked J.Dey why he was talking on his phone and why he
was not listening when he was telling about the sites J.Dey told him that
he was talking to his mother as she was not well and she was alone.
ORAL EVIDENCE WITH REGARD TO THE VISIT OF J.DEY TO THE

UMA PALACE BAR AND RESTAURANT ON 07/06/2011.
580. PW.7Ms.Shubha Sharma was the wife of J.Dey. It has come in her
evidence that J.Dey never discussed with her about the articles which he
was writing and that he used to keep his family away from his work. She
has also stated that on 07/06/2011, J.Dey had gone to meet the deceased
407
accusedVinod Asrani in a Bar and he returned after midnight. She stated
that J.Dey did not tell her with whom he had gone on 07/06/2011 to
meet the deceased accused no.8Vinod Asrani.
581. PW.54Ashok Singh was working as the Manager of Uma Palace Bar
and Restaurant, Mulund at the relevant time. He deposed that Shri
Omprakash Singh was the Senior Hotel Manager and as he was not on
duty on 07/06/2011 he was holding his charge also. He deposed that on
that day at about 09:45 pm, the deceased accused no.8Vinod Asrani came
there in his BMW car. He deposed that he knew the deceased accused
no.8Vinod Asrani as he was coming to their hotel since last one to one
and half year. He deposed that the deceased accused no.8Vinod Asrani
was standing in the parking lobby along with one person and at that time,
two persons came there. He deposed that the deceased accused no.8
Vinod Asrani told the watchman to let them in as the watchman had
prevented them from going in. He deposed that thereafter all of them
went inside the Bar and Restaurant. He deposed that he had seen the two
persons who were stopped by the watchman. He deposed that after some
days, he saw the news on TV about the murder and on from the news on
TV he came to know that J.Dey was murdered and that he was the same
person who was come to the bar and restaurant on 07/06/2011.
that he had never seen J.Dey prior to 07/06/2011. He stated that many
customers used to come to the Bar and Restaurant and he could not
remember their description. He admitted that at the time of recording his
statement the photograph or video of J.Dey was not shown to him. He
stated that while giving statement he did not give the description of J.Dey.
408
583. PW.56Dr.Kachare was knowing J.Dey and the deceased accused

no.8Vinod Asrani. He deposed that on 07/06/2011, at about 11:00 pm.,
he had gone to Uma Palace Bar and Restaurant, Mulund where he saw the
deceased accused no.8Vinod Asrani along with J.Dey and 34 persons.
stated that on 07/06/2011, when he went to Uma Palace Bar, he sat in the
special room of the Bar and not with those 34 persons who were along
with the deceased accused no.8Vinod Asrani. He stated that he did not
have any occasion to speak to them. He stated that greetings were
exchanged only between him and the deceased accused no.8Vinod
Asrani.
585. PW.60Mahesh Singh was working as a watchman in the Uma

Palace Bar & Restaurant, Mulund at the relevant time. His examinationin
chief is on similar lines as that of PW.54Ashok Singh. Hence, it is not
being reproduced.
he was working as a watchman in the Uma Palace Bar and Restaurant
since last five years from the date on which his statement was recorded.
He stated that there was no special reason for him to remember anybody.
He stated that he did not know how many customers had come and in
which vehicles the customers had come to Uma Palace Bar and Restaurant
between 07/06/2011 to 06/07/2011. He denied that he did not identify
any person on 07/06/2011. He denied that on 11/06/2011 there was no
news on TV about the murder of J.Dey.
587. PW.64Deepak Patel was working with the deceased accused no.8
409
Vinod Asrani at the relevant time. His examinationinchief is also on

similar lines as that of PW.54Ashok Singh. Hence, it is not being
reproduced.

stated that he did see the description of the persons who were with the
deceased accused no.8Vinod Asrani. He stated that he had no occasion to
remember any person who had gone there with the deceased accused
no.8Vinod Asrani. He stated that he did not see any news on TV
regarding any murder. He admitted that he came to know about the
murder from general talks in the Office. He stated that he was not aware
as to who was murdered. He stated that he had not seen the photo of the
person who was murdered on TV or in Newspaper. He then stated that he
had never seen or met the person who was murdered.
stated that before deposing in the Court he had read his statement. He
admitted that the deceased accused no.8Vinod Asrani used to visit the
Uma Palace Bar and Restaurant twice or thrice in a week. He stated that
he was not aware about the names of the 34 persons who were with the
deceased accused no.8Vinod Asrani in Uma Palace Bar and Restaurant on
07/06/2011.
590. PW.77Sanjeev Devasia was the Principal correspondent of the daily
'MidDay'. He had written an article regarding the meeting of PW.73
Sanjay Prabhakar with J.Dey and the deceased accused no.8Vinod Asrani
on 07/06/2011. He deposed that during the period April 2005 to July
2011 he was working as a Principal Correspondent in the daily 'MidDay'
newspaper situated at Peninsula Center, Dr. S.S. Rao Rd., near Mahatma
410
Gandhi Rd., Parel, Mumbai. He deposed that thereafter, he worked in the
daily 'Mumbai Mirror'. He deposed that on 06/07/2011 at about 09:00
pm. while he was on duty, his Editor came there along with PW.73Sanjay
Prabhakar and told him to take his interview. He deposed that PW.73
Sanjay Prabhakar gave him the first person account of an incident about
what had happened when he had accompanied J.Dey and met the
deceased accused no.8Vinod Asrani at the Uma Palace, Mulund. He
deposed that he made the notes of what PW.73Sanjay Prabhakar told him
and fed it in the computer. He deposed that as after narrating the incident
PW.73Sanjay Prabhakar had left, he telephoned PW.73Sanjay Prabhakar
23 times and crosschecked about what he had told him. He deposed that
then he emailed the information given by PW.73Sanjay Prabhakar to the
SubEditor and on the next day i.e. on 07/07/2011, the interview was
published in the daily 'MidDay' newspaper under the heading 'First Person
Account' (Exh.791). He deposed that whatever was published under that
heading was almost verbatim of what PW.73Sanjay Prabhakar had said
and therefore it was published under the heading 'First Person Account'.

stated that he was covering this case as J.Dey was his colleague. He denied
that they used to publish news reports as per the wishes of the Police. He
denied that the sequence of news events mentioned in the news article
(Exh.791) was given by the Police. He denied that they had published a
false news at the instance of the Police.

stated that he did not remember the exact date on which he was called by
the Police. He stated that in the news article (Exh.791) neither the name
of the writer and Reporter was mentioned nor the photograph of PW.73
411
Sanjay Prabhakar was published. He stated that prior to 07/07/2011 he
had never met PW.73Sanjay Prabhakar. He stated that in news article
(Exh.791) the name of PW.73Sanjay Prabhakar did not appear. He
denied that at the instance of the Police had stated that the narration in
the news article (Exh.791) was given by PW.73Sanjay Prabhakar.
EVIDENCE OF WITNESS WHO HEARD THE SOUND OF FIRING.
593. PW.72Ramjatan Patel was working as a Supervisor with the Front
Line Securities at Hiranandani since the year 2007. He deposed that on
11/06/2011, he was on duty in the Spectra House from 02:00 pm.. He
deposed that on that day after he joined his duty he took a round to see
the security guards and when he was talking to the Property Manager Shri
Prafull Chandra he heard some cracker like sound. He deposed that when
he looked around he saw that one person had fallen on the road near the
divider and there was a motorcycle there. He deposed that there were two
other motorcycles and two persons were traveling on each motorcycle and
they ran away from that place. He deposed that he could not see the faces
of those persons but they were wearing raincoats. He deposed that one
person was wearing green colored raincoat and one person was wearing
blue colored raincoat. He deposed that he did not recollect the color of
the raincoat which the remaining two persons were wearing.
594. It is not necessary to refer to his crossexamination as it is apparent
from his examinationinchief itself that he did not see the faces of the
assailants. He also did not see the actual incident. He has stated that one
of the assailant was wearing a green colored raincoat whereas another
assailant was wearing a blue colored raincoat. He has also stated that he
could not recollect what was the color of the raincoats of the other two
assailants. Therefore, his evidence is not of much use to the prosecution as
412
he has not identified any of the assailants. He was not even shown the
raincoats (Article248 and 254) which were recovered at the instance of
the accused no.1Rohee Tangappan Joseph @ Satish Kalya and the
accused no.4Nilesh Shedge respectively.
OBJECTIONS REGARDING SEIZURE AND RECOVERY OF ARTICLES

FROM THE ACCUSED PERSONS.
595. At this stage, it will be appropriate to deal with the objections raised
by the defence with respect to the evidence led by the prosecution
regarding the recovery of various mobile phones and SIM cards, the
revolver, bullets, motorcycles, CDRs and interception of conversation
between the accused no.12Chhota Rajan and PW.90Manoj Shivdasani.
OBJECTIONS REGARDING SEIZURE FROM THE ACCUSED NO.1
ROHEE TANGAPPAN JOSEPH @ SATISH KALYA.
596. It has come in the evidence of panch PW.9Malang Shaikh that
during the personal search of the accused no.1Rohee Tangappan Joseph
@ Satish Kalya which was conducted on 26/06/2011, along with other
articles one black colored Micromax mobile phone (Article72) [having
IMEI no.910536702593486, 910536703130483] with SIM card (Article
73) of TATA DOCOMO of mobile no.8655292230, one reddish black
colored Nokia X3 mobile phone (Article75) [having IMEI
no.354865047936636] with one white colored SIM card (Article77)
[bearing sr.no.8923418450000035108 of mobile no.+447924557108]
were found and seized vide personal search and arrest panchanama
(Exh.493). His evidence on this point is corroborated by the evidence of
PW.136PI Kale and the contents of the panchanama (Exh.493). Also, the
details of the above articles which are reflected in the panchanama
(Exh.493) correspond with the articles which are before this Court.
413
597. It may be noted that in the statement u/s.313(b) of Cr.P.C.,1973,
the accused no.1Rohee Tangappan Joseph @ Satish Kalya has taken the
following stand with regard to the various articles which were seized at
the time of his arrest:
“Q.252: It has come in the evidence of PW.9Malang that

during the personal search of accused which was conducted on
26/06/2011, currency of more than Rs.10,000/ (Article71),
two mobile phones (Articles72, 75), one PAN card (Article69)
and one driving license(Article68,70) was recovered and seized.
What do you have to say about it ?
Ans.: The driving licence, PAN card and the cash amount was
recovered. The mobile phones did not belong to me.
Q.254: As per personal search and arrest panchanama

(Exh.493) during the personal search of you accused which was
conducted on 26/06/2011 in the office of Crime Detection
Branch, Unit no.6, Chembur, one black colour micromax mobile
Phone(Article72) having IMEI nos.910536702593486,
910536703130483 was recovered and seized in which there was
a SIM card of TATA Docomo company(Article73) having mobile
number 8655292230. What do you have to say about it ?
Ans.: The mobile phone as well as the SIM does not belong to
me.
Q.255: As per personal search and arrest panchanama

(Exh.493) during the personal search of you accused which was
conducted on 26/06/2011 in the office of Crime Detection
Branch, Unit no.6, Chembur, one reddish black colour Nokia
mobile Phone, Model X3, having IMEI nos.3548650479366
(Article73) was recovered and seized in which there was a
white coloured SIM card bearing no.8923418450000035108
(Article77) of mobile no.+447924557108. What do you have to
say about it ?
Ans.: The mobile phone as well as the SIM card does not belong
to me.
414
Q.294: It has come in the evidence of PW.136PI Kale that
during personal search of you accusedRohit Tangappan Joseph
@ Satish Kalya which was conducted in presence of two panch
witnesses, one red coloured wallet was found containing cash of
Rs.11,600/(Article71), one driving license(Article68 and 70)
and PAN card(Article69) were found, one Micromax mobile
phone(Article72) containing SIM card(Article73) of TATA
Docomo company of mobile no.8655292230, one Nokia Mobile
phone model X3 (Article75) containing one white coloured SIM
card (Article77) were found which were seized, sealed and
labelled with his signature and the signature of panch witnesses.
What do you have to say about it ?
Ans.: No personal search was conducted. Driving license, PAN
card and cash amount belong to me. The police had taken the
above articles from me on 25.06.2011.”
598. Thus, it can be seen that though the accused no.1Rohee Tangappan
Joseph @ Satish Kalya has not disputed the recovery of the other articles
which were found on his person he has very smartly disputed the fact that
the mobile phones and SIM cards were also found on his person. At the
same time, he has also stated that the Police had taken the articles except
the mobile phones and the SIM cards from him on 25/06/2011. But there
is nothing on the record to suggest that any such thing had happened on
25/06/2011. The prosecution has already proved that the accused no.1
Rohee Tangappan Joseph @ Satish Kalya was arrested on 26/06/2011.
Also, as stated earlier, on 27/06/2011, the accused no.1Rohee
Tangappan Joseph @ Satish Kalya was produced before the learned Addl.
Chief Metropolitan Magistrate for the purposes of remand. But at that time
he kept quiet. Had his stand been genuine then he would have certainly
made a grievance before the learned Addl. Chief Metropolitan Magistrate
at that time itself. Therefore, it is clear that the stand taken by him is false.
415
599. It was argued that the seizure of the articles from the person of the
accused no.1Rohee Tangappan Joseph @ Satish Kalya on 26/06/2011 is
vitiated on the ground that PW.141PI Gosavi who was the Investigating
Officer was not present. The said submission has no basis. As per section
41 of Cr.P.C.,1973 any Police Officer can arrest any person about whom
the Police Officer has reason to believe that he has committed a cognizable
offence. As per section 51 of Cr.P.C.,1973 whenever a person is arrested
by a Police Officer, the Officer making such arrest may search such person
and place in safe custody all articles, other than necessary wearing apparel
found upon him. In the present case, as on 26/06/2011, PW.136PI Kale
was assisting PW.141PI Gosavi in the investigation. It was PW.136PI Kale
who had brought the accused nos.1,2 and 3 from Rameshwaram to
Mumbai and arrested them. In view of the provisions of section 51 of
Cr.P.C.,1973 he had every power to take the personal search of those
accused persons and seize the articles found on their person.
600. It was next argued that the mobile phones were planted on the
person of the accused no.1Rohee Tangappan Joseph @ Satish Kalya. As
stated earlier, the prosecution has already proved the seizure of the mobile
phones and the SIM cards from the person of the accused no.1Rohee
Tangappan Joseph @ Satish Kalya. There is no evidence to even prima
facie suggest that the mobile phones and the SIM cards were planted on
the person of the accused no.1Rohee Tangappan Joseph @ Satish Kalya.
No such stand was taken by the accused no.1Rohee Tangappan Joseph @
Satish Kalya while giving answers to the questions put to him u/s.313(b)
of Cr.P.C.,1973. Also, if such was the case then nothing prevented him
from raising any grievance before the learned Addl. Chief Metropolitan
Magistrate when he was produced on 27/06/2011 for the purposes of the
remand. But he did not raise any such grievance at that time.
416
601. It was next contended that in the personal search and arrest
panchanama (Exh.493) neither the name of the Police Officer who took
the personal search of the accused no.1Rohee Tangappan Joseph @
Satish Kalya is mentioned nor the name of the Officer who had caught
hold of the accused is mentioned. There is no requirement of law that in
the panchanama the name of the Officer who conducted the personal
search of the accused should be mentioned. Further, no explanation was
called for from PW.136PI Kale on this point during his crossexamination
though he was extensively crossexamined on all the other aspects. As
stated earlier, the evidence of PW.136PI Kale and panch PW.9Malang
Shaikh on the point of the arrest and seizure of the articles from the
person of the accused no.1Rohee Tangappan Joseph @ Satish Kalya is
cogent, reliable and trustworthy. Also, it is not the case of the prosecution
that when the accused no.1Rohee Tangappan Joseph @ Satish Kalya was
in the Office of the Crime Branch he tried to flee from there. Therefore,
there was no question of catching hold of him. The events which did not
take place could not have been mentioned in the panchanama.
602. The learned Advocates for the accused nos.1 and 2 have sought to
contradict the evidence of PW.136PI Kale about the arrest of the accused
no.2Anil Waghmode at Rameshwaram by placing reliance on a statement
made by PW.141PI Gosavi that the accused persons of this case were
called and interrogated. It is well settled that while appreciating the
evidence of a witness, the entire evidence of that witness must be
considered. It is not permissible to pick up a sentence in isolation from the
entire statement and ignoring its proper reference, use the same against or
in favour of a party. Therefore, when the entire evidence of PW.141PI
Gosavi is considered then it will be clear that there is no contradiction
417
between his evidence and the evidence of PW.136PI Kale. PW.141PI

Gosavi has deposed that on 26/06/2011, PW.136PI Kale had arrested
some of the accused persons of this case and only after their arrest he had
called for them for their interrogation. Therefore, there was no question of
calling accused person from anywhere else other than from custody.
contents of the personal search and arrest panchanama (Exh.493) are
written in past tense meaning thereby that the accused persons were
arrested even before 26/06/2011. The objection is based on the
perception of the learned Advocate for the accused no.1. The objection is
raised ignoring the fact that every person has his own way of expression of
things. In any case, this Court has already observed above that there is
nothing suspicious in the evidence of PW.136PI Kale and the panch PW.9
Malang Shaikh. Hence, the objection stands rejected.
604. It was next contended that the mobile phones and the SIM cards
were not properly sealed as in the personal search and arrest panchanama
(Exh.493) it was not mentioned that the articles were sealed with 'wax
seal' and that the seal movement register was also not produced by the
prosecution. The argument is hypertechnical. From the evidence of the
panch PW.9Malang Shaikh and PW.136PI Kale it is clear that after the
articles were seized they were sealed immediately. Their evidence is
corroborated by the personal search and arrest panchanama (Exh.493). In
so far as nonmentioning of the words 'wax seal' is concerned, it is not the
requirement of the law that such words must be used in the panchanama.
It is clearly mentioned in the panchanama that the articles were sealed
and labelled. Let's assume that there was only papers sealing of the
articles. That would still not affect the seizure and sealing of the articles
418
because there is no rule of law that sealing must be done by wax seal only
and that paper sealing is not permissible.
605. In so far as the nonproduction of the seal movement register is
concerned, PW.136PI Kale has specifically deposed that his Office did not
maintain any seal movement register. At the same time, he has also stated
that the movements of the seal were recorded in the station diary. The
learned Advocate for the accused no.1 could not point out any provision of
law to show that any separate seal movement register is required to be
maintained. He also did not call upon PW.136PI Kale to produce the
relevant station diary to get his doubt cleared. Therefore, the objection
about improper sealing of the articles cannot be entertained. In any case,
once the recovery is proved by the prosecution, the burden of proof on the
defence to rebut the same is very strict, which cannot be discharged
merely by pointing at procedural irregularities in making the recoveries.
606. The personal search and arrest panchanama (Exh.493) was then
sought to be doubted on the ground that the presence of the batteries in
the mobile phones which were recovered from the person of the accused is
not mentioned in the said panchanama. The said objection is without any
basis. A battery is a part of a mobile phone. A mobile phone always comes
with a battery. Therefore, the presence of a battery in the mobile phone is
not required to be separately mentioned in the panchanama.
607. Another ground on which the recovery of the mobile phones and
SIM cards was doubted is that it is not mentioned in the personal search
and arrest panchanama (Exh.493) as to who gave the mobile numbers of
the SIM cards which were found in the mobile phones. In this regard, it
needs to be stated that no question was put to PW.9Malang Shaikh. That
419
apart, PW.136PI Kale has clearly stated that the accused persons
themselves gave the mobile numbers. Therefore, the said objection is
required to be rejected.
OBJECTIONS REGARDING SEIZURE FROM THE
ACCUSED NO.2ANIL WAGHMODE.
608. It has come in the evidence of panch PW.9Malang Shaikh that
during the personal search of the accused no.2Anil Waghmode which was
conducted on 26/06/2011, along with other articles one black colored
Nokia mobile phone model 1280 (Article85) having IMEI
no.357383044125291 with SIM card (Article86) of AIRCEL of mobile
no.8898590024, One China made Suncorp mobile phone (Article89)
having IMEI no.359083033506646, 359083033506653 with one SIM card
(Article90) of AIRCEL of mobile no. 8890590018 were found and seized
vide personal search and arrest panchanama (Exh.493). His evidence on
this point is corroborated by the evidence of PW.136PI Kale and the
contents of the personal search and arrest panchanama (Exh.493).
609. It may be noted that in the statement u/s.313(b) of Cr.P.C.,1973,
the accused no.2Anil Waghmode has taken the following stand with
regard to the various articles which were seized at the time of his arrest:
“Q.291: It has come in the evidence of PW.136PI Kale that
during personal search of you accusedAnil Waghmode which
was conducted in presence of two panch witnesses, one wallet
(Article79) was found containing cash of Rs.615/(Article83),
one Voter ID Card (Article81) and PAN card(Article80) were
found, one black coloured Nokia mobile phone model no.1280
(Article85) containing SIM card of Aircel company (Article86)
of mobile no.8898590024, another China made mobile phone of
Suncorp company(Article89) containing SIM card (Article90)
of Aircel company of mobile no.8898590018 were found which
were seized, sealed and labelled with his signature and the
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signature of panch witnesses. What do you have to say about
it ?
Ans.: I had only a wallet with me.”
610. Thus, it can be seen that though the accused no.2Anil Waghmode
has not disputed the recovery of his wallet from his person, as in the case
of the accused no.1Rohee Tangappan Joseph @ Satish Kalya he has also
very smartly disputed the fact that the mobile phones were also found on
his person. The prosecution has already proved that the accused no.2Anil
Waghmode was arrested on 26/06/2011. Also, as in the case of the
accused no.1Rohee Tangappan Joseph @ Satish Kalya, on 27/06/2011,
the accused no.2Anil Waghmode was also produced before the learned
Addl. Chief Metropolitan Magistrate for the purposes of remand. But at
that time, he did not make any grievance that the mobile phones were
planted on his person. Had the mobile phones been planted on his person
then nothing prevented him from making a grievance in that regard before
the learned Addl. Chief Metropolitan Magistrate at that time itself. But he
did not do so. Hence, it has to be said that the stand taken by the accused
no.2Anil Waghmode is false.
ACCUSED NO.4NILESH SHEDGE
611. As per the prosecution, during the personal search of the accused
no.4Nilesh Shedge the mobile phone (Article142) having the SIM card
(Article144) of the mobile no.9743193148 and the said the mobile phone
and the SIM card was seized vide recovery and arrest panchanama
(Exh.512). It may be noted that during the course of arguments, the
learned Advocate for the accused no.4 did not raise any dispute about the
recovery of the above mentioned mobile phone and the SIM card. But, as
421
the prosecution did not prove the CDR of the said mobile number for want
of certificate u/s 65B of the Evidence Act,1872 by the concerned Nodal
Officer, the same cannot be used by the prosecution. Hence, the recovery
of the said mobile phone and the SIM card is of no use to the case of the
prosecution.

ACCUSED NOS.5,6 AND 7.
612. It has come in the evidence of panch PW.10Habib Mansuri that
during the personal search of the accused no.5Arun Dake which was
conducted on 26/06/2011, along with other articles one black colored
Nokia mobile phone (Article102) [having IMEI no.356264048565537]
without SIM card, one gray colored Nokia mobile phone (Article106)
[having IMEI no.357421048060302] with SIM card (Article108) of
mobile no.9987017977, one memory card adapter (Article114), one SIM
card of IDEA (Article115) [bearing sr.no.89917990041189746055] were
found. Similarly, during the personal search of the accused no.6Mangesh
Aagvane along with other articles one black colored Nokia mobile phone
(Article117) [having IMEI no.355737027054103] with SIM card (Article
119) of mobile no.9967844960 was found. During the personal search of
the accused no.7Sachin Gaikwad along with other articles one black
colored Reliance mobile phone (Article131) [having RSN no.RLGHS
1034346055] with SIM card of mobile no.9320816594 (Article133), one
Nokia mobile phone (Article135) [having IMEI no.353938014315554]
with SIM card (Article137) of mobile no.9768114422, one SIM card of
mobile no.9004328040 (Article140) and 8652475214 (Article139) were
found and all the above articles were seized vide personal search and
arrest panchanama (Exh.504). His evidence is corroborated by the
evidence of PW.134PI Pasalwar and the contents of the panchanama
422
(Exh.504). Also, the details of the above articles which are reflected in the
panchanama (Exh.504) correspond with the articles which are before this
Court.
613. It may be noted that in the statement u/s.313 (b) of Cr.P.C.,1973,
the accused no.5Arun Dake has taken the following stand with regard to
the various articles seized from his person at the time of his arrest :
“Q.251: It has come in the evidence of PW.10Habib that on
26/06/2011, he was called to the office of Crime Branch for
acting as a panch witness and during the personal search of you
accused, two mobile phones of Nokia company(Articles
102,106) and one wallet(Article110) containing a currency
note of Rs.500/(Article112) were recovered and seized. What
do you have to say about it ?
Ans.: No panchnama was prepared. On 20th in the night, I was
in room no.301, Mangeshi Apartment, Adharwadi, Kalyan. At
that time, two Hawaldars came to my house in civil dress and
told me that I was called by officer Gosalkar in Crime Branch
Unit no.1 next day in the morning for enquiry. Accordingly, I
had gone there and I was made to sit there. I did not have any
mobile phone with me. I had one SIM card with me. I had not
used that SIM card. I also had a railway pass with me.
Q.253: As per personal search and arrest panchanama(Exh.504)
during the personal search of you accused which was conducted
on 26/06/2011 in the office of Crime Detection Branch,
Property Cell, Mumbai, one black coloured Nokia mobile phone
model no.2233 having IMEI nos.356264048565537(Article102)
was seized. What do you have to say about it ?
Ans.: I do not know.
Property Cell, Mumbai, one gray coloured Nokia mobile phone
model no.1280 having IMEI nos.357421048060302(Article106)
423
having SIM card of Airtel company bearing mobile

no.9987017977(Article108) was recovered and seized. What do
Ans.: It is not correct.
Property Cell, Mumbai, one SIM card of Idea company bearing
no.8991799004118974605(Article115) was recovered and
seized from black coloured leather packet which was kept in the
back side pocket of the pant which you were wearing. What do
Ans.: It is not correct. A SIM card of Airtel company was found.”
614. In the statement u/s.313(b) of Cr.P.C.,1973, the accused nos.6 and
7 have denied that any mobile phone or SIM card was seized from them
during their personal search. At the same time, while giving answer to
question no.315 in the statement which was recorded u/s.313(b) of
Cr.P.C.,1973, the accused no.7Sachin Gaikwad has stated that the black
coloured wallet containing cash of Rs.710/ (Article129), one PAN card
(Article126), one driving license (Article124) and one ATM card of
Syndicate Bank (Article125) were taken from him on 24/06/2011.
615. Thus, it can be seen that the accused nos.5,6 and 7 have disputed
the fact that the above mentioned mobile phones and SIM cards were also
found on their person. The prosecution has proved the recovery of the
above articles through the evidence of panch PW.10Habib Mansuri and
PW.134PI Pasalwar. Their evidence is duly corroborated by the
panchanama (Exh.504). In so far as the stand taken by the accused no.5
Arun Dake is concerned he has stated that he did not know that the Nokia
mobile phone (Article102) was seized from him. If no mobile phone was
424
seized from him, then nothing prevented him from giving a straight
answer that the said mobile phone was not seized from him. At the same
time, the accused no.5Arun Dake has admitted that SIM card (Article
108) of Airtel company was seized from him. He has not explained as to
why he was having that SIM card if he was not using any mobile phone.
That apart, his statements further falsifies the stand of the defence that no
personal search was conducted on 26/06/2011. The seizure of the mobile
phones and the SIM cards further finds support from the fact that there is
nothing on the record to suggest that PW.134PI Pasalwar was already
knowing the accused nos.5,6 and 7 so as to falsely implicate them. Also,
on 27/06/2011, the accused nos.5,6 and 7 were produced before the
learned Addl. Chief Metropolitan Magistrate for the purposes of remand.
But at that time they did not make any grievance that the various mobile
phones and the SIM cards which were shown to be seized from them were
in fact never seized or that they were planted. Hence, it has to be said that
the stand taken by the accused nos.5,6 and 7 is false.
616. It may also be noted that during the personal search of the accused
no.5Arun Dake his driving license (Article264) and his voter ID card
(Article265) were found in his wallet (Article110). So also, during the
personal search of the accused no.7Sachin Gaikwad his driving license
(Article124), ATM card (Article125) were found in his wallet (Article
123). There is absolutely no evidence to suggest that they could be
planted by the Police on their person.
617. It has been brought in crossexamination of the panch PW.10Habib
Mansuri that he did not personally touch (handle) the articles and that he
saw them from a distance. Thus, it is sought to be contended that the
personal search of the accused no.5Arun Dake or for that matter the
425
personal search of the accused nos.6 and 7 also, was not conducted in
presence of the panch witnesses. There is no requirement of the law that
the panch witness should personally handle the articles which are seized
from the person of the accused. In fact, had the panch witnesses done so
the there would have been an argument that the same was done with the
intention of tampering with the articles. Also, there is nothing in the
evidence of the panch PW.10Habib Mansuri to suggest that the personal
search and the seizure of the articles from the person of the accused
nos.5,6 and 7 was not effected in his presence or in the presence of the
other panch witness. Hence, the objection raised on this count needs to be
rejected.
618. It was next argued that the seizure of the mobile phones from the
person of the accused nos.5,6 and 7 has no value as there is nothing to
suggest that the mobile phones were in working condition. The said
submission also does not have any merit. Whether the mobile phones
which were seized from the accused nos.5,6 and 7 were working on
26/06/2011 is not important. What is important was that whether those
mobile phones were working and were used during the period when the
incident took place. That can be ascertained only from the CDRs of the
mobile numbers and the IMEI number of the mobile handset which is
imprinted on the mobile phones. The various CDRs show that the SIM
card mobile numbers recovered from the accused nos.5,6 and 7 were
active at the relevant time.
619. The seizure of the mobile phones and the SIM cards from the
accused persons was also doubted on the ground that panch PW.10Habib
Mansuri did not remember whether there were SIM cards in the mobile
phones, what was the model number of the mobile phones and their IMEI
426
number, whether any additional SIM card was recovered from the accused
no.5Arun Dake and what was the mobile number of the SIM cards. There
is no merit in the said submission. It is impossible for person to remember
such details. The witness has given the details of the articles which are
sufficient for their identification. The witness has also identified the
mobile phones and the SIM cards to be the same which were seized. As
stated earlier, the details of these articles correspond with the details
mentioned in the panchanama (Exh.504). That apart, had the panch
PW.10Habib Mansuri given the above details then defence would not
have left any stone unturned to brand him as a tutored witness. Therefore,
the submission made on this point cannot be accepted.
620. The personal search and arrest panchanama (Exh.504) was then
sought to be doubted on the ground that the presence of the batteries of
the mobile phones which were recovered from the person of the accused is
not mentioned in the said panchanama. A battery is a part of a mobile
phone. As observed earlier, a mobile phone always comes with a battery.
Therefore, the presence of a battery in the mobile phone is not required to
be separately mentioned in the panchanama.
621. The seizure of the mobile phone (Article131) of LG company from
the person of the accused no.7Sachin Gaikwad was doubted on the
ground that in the panchanama, it is not mentioned that the word
'Reliance' was embossed on the mobile phone (Article131), but the
mobile phone before the Court shows that the word 'Reliance' is embossed
on it and therefore, the mobile phone (Article131) is not the same mobile
phone which was seized. It is a very minor discrepancy and the same
needs to be ignored. The personal search & arrest panchanama (Exh.504)
shows that a CDMA mobile phone of the LG company was seized from
427
the person of the accused no.7Sachin Gaikwad. The mobile phone

(Article131) which is before the Court is of LG company. At the relevant
time, the Reliance company used to provide the CDMA services to its
customers. Therefore, the word 'Reliance' is embossed on the mobile
phone (Article131). It may also be noted that the identity of a mobile
phone is fixed on the basis of its IMEI number if it is a GSM handset and
on the basis of the RSN number if it is a CDMA handset. In the present
case, the RSN number found on the mobile phone (Article131)
corresponds with the RSN number mentioned in the panchanama
(Exh.504).
622. There is another small discrepancy with respect to the model

number of the mobile phone (Article102) which was seized from the
person of the accused no.5Arun Dake. In the panchanama (Exh.504) its
model number is mentioned as '2233' whereas its model number is '5233'.
It may be noted that the font size of model number which is printed on the
mobile phone (Article102) is quite small and one may find it difficult to
read it properly. Therefore, it is quite possible that due to small font size,
PW.134PI Pasalwar might have read the model number as '2233' instead
of '5233'. The error appears to be bonafide. This can happen with
anybody. That apart, the IMEI number found on the mobile phone
(Article102) and the IMEI number mentioned in the panchanama
(Exh.504) is one and the same. Therefore, much importance cannot be
attached to the said error.
623. It was next contended that the personal search of the accused
nos.5,6 and 7 was never conducted as the articles were directly shown to
the panch witnesses and the panchanama was prepared. It was also
argued that the part of the body from where the mobile phones were
428
found is also not mentioned in the panchanama. This submission is a

result of the hairsplitting exercise carried out by the learned Advocate for
the accused nos.1,6 and 7 forgetting the fact that while analyzing the
evidence it has to be considered as a whole. In paragraph nos.17 and 18 of
the evidence of PW.10Habib Mansuri he has clearly stated that all the
three accused persons were searched one by one by the same Police
Officer and then the panchanama was drawn. The fact that PW.134PI
Pasalwar performed his duty honestly is clear from his statement that
before the panch witnesses arrived he did not try to find out what articles
were present on the person of the accused nos.5,6 and 7. Also, the mere
fact that in the panchanama it is not mentioned as from which part of the
body the mobile phones were found and seized is of no consequence.
Considering the size of the mobile phones which were found on the person
it cannot be said there is anything suspicious. It is not as if any of the
mobile phones which was found on the person of the accused nos.5,6 and
7 could not have been so found owing to its size or dimension.
624. The personal search and panchanama (Exh.504) was also doubted
on the ground that according to PW.134PI Pasalwar after the proceedings
of the panchanama were over the contents of the same were read over to
the panch witnesses and thereafter the printout of the same was taken
whereas in the panchanama it was recorded that the printout of the
panchanama was first taken and then the panch witnesses were made to
understand the same. The discrepancy is of minor nature and does not go
to the root of the matter. However, it must be stated that the objection
raised by the learned Advocate for the accused nos.1,6 and 7 is another
example of the hypertechnical approach adopted.
625. It was next argued that the failure on the part of PW.141PI Gosavi
429
to record the statement of the Officers who conducted the personal search
of the accused nos.5,6 and 7 creates a doubt about the authenticity of the
proceedings of personal search and arrest of those accused persons. It may
be noted that section 161 of Cr.P.C.,1973 does not mandate that the
statements of the Officers should be recorded or must be recorded. It is
the discretion of the Investigating Officer. Therefore, in absence of any
material to create any suspicion, the said objection needs to be rejected.
OBJECTIONS REGARDING RECOVERY OF IPHONES (ARTICLE287,
291) AND IPAD (ARTICLE171) FROM THE ACCUSED NO.12CHHOTA
RAJAN AND THE DATA RETRIEVED FROM
THE IPHONE (ARTICLE291)
626. During the course of the arguments, the learned Advocate for the
accused no.12 disputed the recovery of the two IPhones (Article287,
291) and the IPad (Article171) from the accused no.12Chhota Rajan at
the time of his deportation from Bali, Indonesia. It was submitted that the
above articles do not belong to the accused no.12Chhota Rajan.
Therefore, it is necessary to discuss the evidence led by the prosecution on
this aspect.
627. PW.147Rajeev Sinha was working as Inspector, CBI (Spl.II), Crime
Branch, New Delhi at the relevant time. He deposed that on 31/10/2015
the case no.RC 7A/2015/SCUV/SCII/CBI/New Delhi was registered
against the accused no.12Chhota Rajan and unknown public servants and
others on the allegation of procurement of fake passport in the name of
one Mohan Kumar by the accused no.12Chhota Rajan. He deposed that
he was the Investigating Officer in that case. He deposed that he came to
know that the accused no.12Chhota Rajan was detained at Bali, Indonesia
while traveling on the passport in the name of one Mohan Kumar. He
deposed that a team of Interpol, India led by Shri Sonal Agnihotri, SP, CBI
430
was going to Bali, Indonesia for the purposes of deportation of the accused
no.12Chhota Rajan and a request was made to Interpol, India for handing
over the custody of the accused no.12Chhota Rajan to his Office for the
purposes of investigation in the above mentioned case. He deposed that on
06/11/2015, a team of Interpol returned to India along with the accused
no.12Chhota Rajan and his belongings. He deposed that Shri Sonal
Agnihotri, SP, CBI handed over the two IPhones (Article287 and 291)
and the IPad (Article171) to him and as they were in open condition he
got the above mentioned articles sealed in separate packets and
memorandum (Exh.1470) was prepared. He deposed that the sealing of
the articles and memorandum (Exh.1470) was prepared in presence of
PW.148Basil Kerketta who was the Additional SP, CBI, SCII, New Delhi.
628. PW.147Rajeev Kumar Sinha deposed that on 04/02/2016, PW.152
IO, CBI requested him to hand over the custody of the above mentioned
two IPhones and the IPad for investigation purposes with reference to
the present case. He deposed that he handed over the above articles to
PW.152IO, CBI in presence of PW.148Basil Kerketta on the same day and
the memorandum (Exh.1471) was prepared in that regard.
stated that he was not a member of the team which had gone to Bali
Indonesia for bringing back the accused no.12Chhota Rajan to India. He
stated that the Police from Bali, Indonesia had handed over the articles
belonging to the accused no.12Chhota Rajan on 05/11/2015. He stated
that he was aware that out of the three articles mentioned in the
memorandum (Exh.1470) one article was added in handwriting in the list
of articles which was prepared and given by the Authorities at Bali to the
Interpol team. He stated that he did not mention the IMEI number of the
431
mobile phones in the memorandum (Exh.1470) as the articles were in

switch off mode when they were handed over to him. He stated that he
did not want to open those articles to avoid tampering. He admitted that
all the three articles were handed over to him in open (unsealed)
condition. He admitted that the seizure panchanama regarding the
recovery of the other articles from the accused no.12Chhota Rajan and
the memorandum (Exh.1470) were prepared on the same day in the
Office of the CBI. He stated that the articles were handed over by the
Authorities of Indonesia to the Officers of the Interpol, India. He stated
that in the memorandum (Exh.1470) it was not mentioned that the I
Phone (Article291) had back cover and that the IPad (Article171) was in
a cover. He denied that the black coloured IPhone (Article291) was not
recovered from the accused no.12Chhota Rajan and because of that it was
inserted later on in the list of articles which were seized from the accused
no.12Chhota Rajan. He stated that the articles were noted in handwriting
in the middle portion of the minutes of surrender. He admitted that no
initials were made by the Indian Authorities regarding writing of the
articles in hand in the said list. He denied that the initials were not made
as the 'article' was added later on.
630. PW.148Basil Kerketta deposed that on 06/11/2015, he had seized
the two IPhones (Article287, 291) and the IPad (Article171) and sealed
them in separate envelopes for their safety and security as they were
received in open condition. He deposed that the memorandum (Exh.1470)
was prepared in that regard. He deposed that the articles were then kept
in the Malkhana. He deposed that by the letter dated 11/03/2016
(Exh.1476) he had forwarded the above mentioned articles to the FSL for
analysis.
432
stated that he did not remember whether he had signed any document
relating to mobile phone and the IPad after the accused no.12Chhota
Rajan was arrested and brought to India. He stated that he did not know
how many articles were seized from the accused no.12Chhota Rajan after
he was brought to India.
632. PW.152IO CBI deposed that during the further investigation

conducted by him he came to know that two IPhones and one IPad
belonging to the accused no.12Chhota Rajan were taken in custody for
the purposes of investigation of the case no. RC 7A/2015/SCUV/SC
II/CBI/New Delhi and therefore, he took the custody of those articles for
the purposes of this case. He deposed that the receipt memorandum
(Exh.1471) was prepared in that regard. He deposed that when he took
the custody of those articles they were already in sealed condition. He
deposed that after taking the custody of those articles, he forwarded the
same to the FSL,Kalina for analysis.
stated that the above articles were sent for analysis to FSL,Kalina and not
to CFSL,New Delhi as at the relevant time, experts were not available in
CFSL,New Delhi. He denied that the two IPhone (Article287, 291) and I
Pad (Article171) were intentionally sent to FSL,Kalina so that the same
can be tampered for obtaining favourable report.
634. The perusal of the evidence of PW.147Rajeev Sinha, PW.148Basil
Kerketta and PW.152IO, CBI will show that it is not the specific case of
the accused no.12Chhota Rajan that the two IPhones (Article287, 291)
and IPad (Article171) did not belong to him. This fact is further clear
433
from the suggestion given by the learned Advocate for the accused no.12
to PW.147Rajeev Kumar Sinha during crossexamination. There was a
specific suggestion that only the black coloured IPhone (Article291) did
not belong to the accused no.12Chhota Rajan. No suggestion was given to
this witness that the IPhone (Article287) and the IPad (Article171) did
not belong to the accused no.12Chhota Rajan. This shows that the
learned Advocate for the accused no.12 has denied the recovery of the I
Phone (Article291) only because it contained some incriminating material
against the accused no.12Chhota Rajan. The evidence of PW.147Rajeev
Kumar Sinha clearly shows that the two IPhones and the IPad were
recovered from the Police at Bali, Indonesia and were handed over to the
Interpol team of India which had gone there for bringing back the accused
no.12Chhota Rajan to India. He then got the custody of the above articles
from the Interpol team, India and as the articles were in open condition he
ensured that the articles were immediately sealed to avoid any allegation
of tampering. No fault can be found with the approach of PW.147Rajeev
Kumar Sinha. His evidence on this point is duly corroborated by the
evidence of PW.148Basil Kerketta. The fact that the articles were kept in
sealed condition after they were recovered is further clear from the
evidence of PW.152IO, CBI. At this stage, it may be stated that it is not
the stand of the accused no.12Chhota Rajan that the data which was
retrieved from the IPhone (Article291) was planted by the CBI.
635. In the crossexamination of PW.147Rajeev Kumar Sinha, it was

brought on record that after the accused no.12Chhota Rajan was caught
at Bali, Indonesia the local Police had prepared a list of articles which
were found to be with him at that time and the two IPhones and the IPad
were added in the list later on by hand. It may be noted that answers on
this point were sought from the witness without confronting him with the
434
alleged list of articles which was prepared at the Bali, Indonesia. The said
list was not even placed on record by the learned Advocate for the accused
no.12. As such, the said list was not before the Court. Therefore, in
absence of the said list, it cannot be automatically said that the IPhones
and the IPad were planted. In any case, the evidence of PW.147Rajeev
Kumar Sinha and PW.148Basil Kerketta on this point is reliable and duly
corroborated by the memorandum (Exh.1470).
636. In so far as the data which was retrieved from the IPhone (Article
291) is concerned, it may be noted that the said IPhone alongwith the I
Phone (Article287) and the IPad (Article171) was sent to the FSL,Kalina
for analysis. After the analysis, the data which was extracted from the two
IPhones (Article287 & 291) and the IPad (Article171) was deposited in
the Court in the form of DVD (Article294) alongwith the report
(Exh.1305).
637. It may be noted that the prosecution did not produce the certificate
u/s.65B of the Evidence Act,1872 along with the DVD (Article294) in
which the data extracted from the IPhones and the IPad of the accused
no.12Chhota Rajan was copied after it was retrieved by using forensic
tools. Therefore, the question which arises for consideration is whether in
absence of such certificate the data contained in the DVD (Article294) can
be read in evidence?. But a more important question which needs to be
answered is whether such certificate is required to be furnished as the
examination report (Exh.1305) is directly admissible u/s.293
Cr.P.C.,1973. It will be appropriate to answer this question first. However,
before doing so, it needs to be stated that during the course of hearing, the
learned Advocate for the accused no.12 was requested by the Court to
address on this point. His only submission was that since the data in the
435
DVD (Article294) was in the nature of secondary evidence and without a
certificate u/s.65B of the Evidence Act, 1872 the same cannot be read in
evidence.
638. Section 293 of Cr.P.C.,1973 is a special provision which makes

admissible the reports of those Scientific Experts which have been
enumerated expressly in section 293(4) of Cr.P.C.,1973. Obviously, the
special provision u/s.293 of Cr.P.C.,1973 will prevail over the general
provisions of the Evidence Act,1872. Therefore, the particular provisions
regarding admissibility of the reports of Chemical Examiner or Assistant
Chemical Examiner to Government provided u/s.293(4) of Cr.P.C.,1973
are plainly applicable and any document purporting to be a report of such
expert can very well be used as evidence at the trial. Now, once such a
report is made admissible by law, then it would be wholly hypertechnical
to dissect it into different parts and hold that certain parts of such report
are admissible and certain part are not admissible. Therefore, this Court is
of the view that in so far as the data contained in the DVD (Article294) is
concerned, the same can be read in evidence as it is a part of the
examination report (Exh.1305) which is directly admissible u/s.293 of
Cr.P.C.,1973 and the certificate u/s.65B of the Evidence Act, 1872 is not
required.
639. Let's assume for a moment that the certificate u/s.65B of the
Evidence Act,1872 is required to enable the Court to read the contents of
the DVD (Article294) in evidence. Then it will have to be seen whether in
the facts of the present case, such certificate can be insisted upon. In this
regard, it is necessary to have a look at the relevant portion of the
evidence of PW.151Chemical Analyst. In paragraph no.7 of his evidence,
he has deposed as follows:
436
“7. I have not brought the certificate u/s 65B of the Evidence
Act today. At present, I am not working with the FSL. Therefore,
I cannot bring the certificate. The report (Exh.1305) is processed
under section 65B of the Evidence Act and the CD is the part of
that report. The report (Exh.1305) is prepared on the basis of
original digital evidence from the data of the two mobile phones
and IPad (Articles287, 291 and 171 accordingly.). The
computer on which the data was processed was regularly used
to process the information about the articles sent for analysis
that is for data extraction. At that time, I was having the control
of that computer. The computer was being properly operated
during that period. I had myself fed the required information in
the computer for the purposes for getting it copied on the DVD.”
640. From the evidence of PW.151Chemical Analyst it can be seen that
he has specifically stated that he cannot produce such certificate as he is
no longer working with the FSL,Kalina. He did not have any access to the
device which was used to retrieve the data. Recently, in the case of Shafhi
Mohammad V. The State of Himachal Pradesh (SLP (CRL.)
No.2302/2017, order dated 30/01/2018) the Hon'ble Supreme Court of
India while dealing with the question of production of the certificate
u/s.65B of the Evidence Act,1872 by a person who is not in possession of
the device from which the document is produced has held that in such
cases, he cannot be directed to produce such certificate and such condition
can be relaxed by the Court in the interests of justice. For ready reference,
paragraph no.12 of the said order is reproduced below:
“(12) Accordingly, we clarify the legal position on the subject on
the admissibility of the electronic evidence, especially by a party
who is not in possession of device from which the document is
produced. Such party cannot be required to produce certificate
under Section 65B(4) of the Evidence Act. The applicability of
requirement of certificate being procedural can be relaxed by
Court wherever interest of justice so justifies.”
437
641. The observations made by the Hon'ble Supreme Court of India in

the case of Shafhi Mohammad (supra) are squarely applicable to the
present case. Therefore, in the facts of the present case, even if it assumed
that the certificate u/s.65B of the Evidence Act,1872 is necessary for
reading the contents of the DVD (Article294) in evidence, the same
cannot be insisted upon and this is a fit case where in view of the evidence
of PW.151Chemical Analyst requirement of certificate can certainly be
relaxed in the interests of justice. As such, the contents of the DVD
(Article294) can be read in evidence.
OBJECTIONS REGARDING THE VARIOUS RECOVERIES MADE IN

VIEW OF THE DISCLOSURE STATEMENT MADE BY SOME OF THE
ACCUSED PERSONS.
OBJECTIONS REGARDING THE RECOVERY OF REVOLVER,
CARTRIDGES ETC. AT THE INSTANCE OF THE ACCUSED NO.1ROHEE
TANGAPPAN JOSEPH @ SATISH KALYA AND CA/BALLISTIC REPORTS.
642. The learned Advocate for the accused no.1 has tried to show that
the recovery of the revolver, cartridges and the empties at the instance of
the accused no.1Rohee Tangappan Joseph @ Satish Kalya are doubtful.
He has raised several grounds. They are discussed below.
643. It was submitted that the disclosure statement (Exh.1272) made by
the accused no.1Rohee Tangappan Joseph @ Satish Kalya on 26/11/2011
is doubtful for the reason that he could not have remained present at two
places i.e. in the Crime Branch Unit no.6, Chembur and in the Property
Cell, Crawford market at one and the same time. The said submission has
no merit. The accused no.1Rohee Tangappan Joseph @ Satish Kalya was
arrested by PW.136PI Kale on 26/6/2011 in the afternoon. PW.136PI
Kale was attached to Crime Branch Unit no.6, Chembur. It has come in his
evidence that for arresting the accused no.1Rohee Tangappan Joseph @
438
Satish Kalya and for his personal search two panch witnesses namely
Rashid Ibrahim Baig and PW.9Malang Sheikh were called for at about
01:30 pm. The perusal of the evidence of panch PW.9Malang Sheikh will
show that on 26/06/2011, he was called by the DCB, CID Unit no.6 office,
Chembur for the purposes of acting as panch witness and accordingly he
had gone there at about 01:30 pm. and in his presence the personal search
and arrest panchanama (Exh.493) was prepared after following the due
procedure. The panch PW.9Malang Sheikh identified the accused no.1
Rohee Tangappan Joseph @ Satish Kalya before the Court. The evidence
of panch PW.9Malang Sheikh is corroborated by the personal search and
arrest panchanama (Exh.493) and the oral evidence of PW.136PI Kale on
material points.
644. According to PW.136PI Kale, on the same day during interrogation,
the accused no.1Rohee Tangappan Joseph @ Satish Kalya expressed his
desire to make a disclosure statement. Therefore, PW.136PI Kale called
for two panch witnesses namely PW.129Balu Panchange and Devidas
Vilas Shelar. The accused no.1Rohee Tangappan Joseph @ Satish Kalya
disclosed in their presence that he was ready to show the place where the
revolver, cartridges and the raincoat were kept. Accordingly, the said
disclosure statement (Exh.1272) was recorded and the signature of the
panch witnesses were taken on it. Thereafter, the accused no.1Rohee
Tangappan Joseph @ Satish Kalya led them to the house (room) of the
accused no.2Anil Waghmode at the Wahab Chawl, Andheri and produced
one plastic bag containing a revolver, 20 cartridges, 5 empties and a rain
coat which were then seized in presence of the panch witnesses vide
panchanama (Exh.1272A). It has come in his evidence that the
proceedings of the panchanama were completed at about 07:00 pm.
439
645. The learned Advocate for the accused no.1 submitted that it has
come in the evidence of PW.123Aslam Haji Rehman that on 26/06/2011,
on being called, when he went to the Office of Property Cell, Crawford
market between 05:00 pm to 05:30 pm, he saw the accused no.1Rohee
Tangappan Joseph @ Satish Kalya present there along with the accused
no.7Satish Gaikwad. On the basis of this, it was argued that if on
26/06/2011, the accused no.1Rohee Tangappan Joseph @ Satish Kalya
was present in the Office of Property Cell, Crawford market it was
impossible for him to be along with PW.136PI Kale at Chembur at the
same time. He also relied upon the evidence of PW.67PC Pradip Kadam
who was attached to the Crime Branch Unit no.6, Chembur to show that
nobody connected with this case was neither interrogated in his presence
nor was brought to the Office of the Crime Branch Unit no.6, Chembur in
his presence.
646. Before considering the above submission, it is necessary to have a
look at the evidence of PW.134PI Pasalwar, panch PW.10Habib Jamal
Mansuri, and the evidence of panch PW.123Aslam Haji Rehman. PW.134
PI Pasalwar was attached to the Property Cell, Crime Branch, Crawford
market at the relevant time. It has come in his evidence that on
26/06/2011, after he took the custody of the accused no.5Arun Dake, the
accused no.6Mangesh Aagvane and the accused no.7Sachin Gaikwad and
he then arrested them in presence of panch witnesses namely Abdul Matin
Niyaz Ahmed and PW.10Habib Jamal Mansuri vide personal search and
arrest panchanama (Exh.504) and for that purpose the panch witnesses
were called for at about 04:00 pm to his office. It has further come in the
evidence of PW.134PI Pasalwar that on the same day at about 06:00 pm,
as the accused no.7Sachin Gaikwad expressed his desire to make a
disclosure statement, he called for two panch witnesses namely PW.123
440
Aslam Haji Rehman and Siddiqui Imran Ahmed Niyaz Ahmed. PW.134PI
Pasalwar has further deposed that thereafter in presence of the panch
witnesses the accused no.7Sachin Gaikwad disclosed that he was ready to
show the place where he had kept the motorcycle (Article233).
Accordingly, the disclosure statement (Exh.1204) was recorded in the
presence of panch witnesses. Thereafter, the accused no.7Sachin Gaikwad
led them to Buddh Vihar, Subhashchandra Bose Nagar, Chembur and
produced the motorcycle bearing registration no. MH06AH4891
(Article233) which was seized in presence of the panch witnesses vide
panchanama (Exh.1205).
647. The perusal of the evidence of panch PW.123Aslam Haji Rehman
shows that he was called to the Property Cell, Crime Branch, Crawford
market for acting as panch witness on two occasions. He was firstly called
on 26/06/2011 and secondly on 07/09/2011. For the present, his
evidence regarding the proceedings which were conducted on 26/06/2011
is relevant. In that regard, he deposed that on 26/06/2011, he was called
by the Police in the afternoon and when he went there he saw 34 persons,
accused no.7Sachin Gaikwad. He deposed that the accused no.7Sachin
Gaikwad and the accused no.1Rohee Tangappan Joseph @ Satish Kalya
told that they would show them a spot. Thereafter, he stated only about
the disclosure statement made by the accused no.7Sachin Gaikwad. It is
not relevant for the present purposes. But it needs to be stated that as he
did not give proper answers to the questions put to him, he was required
to be crossexamined on behalf of the prosecution. In the cross
examination conducted by the learned SPP, he did not say a word about
the presence of the accused no.1Rohee Tangappan Joseph @ Satish Kalya
in the Property Cell on 26/06/2011.
441

stated that on 26/06/2011, the Policeman had come to him between
03:30 pm to 04:00 pm and he had gone to the Property Cell of the DCB,
CID. He then stated that the Policeman had come to him between 03:00
pm to 03:30 pm. He stated that when he went to the Property Cell he saw
accused no.7Sachin Gaikwad there. He denied that both of them said that
they would show the spot. He then stated that he had gone to the Property
Cell at about 05:00 pm to 05:30 pm. He stated that when he went there
PW.133API Gopale was present there. He stated that he could not read,
write or speak in Marathi. He stated that he did not have any conversation
with PW.134PI Pasalwar. He stated that he did not tell his name and
address to PW.134PI Pasalwar. He stated that no Police Officer asked him
whether he had acted as panch witness on earlier occasion or whether any
case was pending against him. He denied that the proceedings of the
panchanama (Exh.1204) were completed at 06:30 pm. He stated that they
had left the Property Cell by about 05:00 pm to 05:30 pm. He stated that
till 05:30 pm the accused no.1Rohee Tangappan Joseph @ Satish Kalya
and the accused no.7Sachin Gaikwad were in the Property Cell. He stated
that the other panch was present with him in the Property Cell between
03:00 pm to 03:30 pm when he was called there and that he was present
with him till the proceedings of panchanama (Exh.1204) were completed
till 06:30 pm. He stated that during that time they were introduced to the
accused no.1Rohee Tangappan Joseph @ Satish Kalya and the accused
no.7Sachin Gaikwad.
649. In view of the above position, the question which arises for
consideration is whether the evidence led by the prosecution regarding the
442
disclosure statement (Exh.1272) made by the accused no.1Rohee

Tangappan Joseph @ Satish Kalya on 26/06/2011 leading to the recovery
of the revolver, cartridges, empties and the raincoat and the seizure of the
same vide panchanama (Exh.1272A) is reliable?. The answer to this
question has to be in the affirmative. The perusal of the evidence of panch
PW.129Balu Panchange and PW.136PI Kale creates no doubt that on
26/06/2011, the accused no.1Rohee Tangappan Joseph @ Satish Kalya
was in the custody of PW.136PI Kale in the Office of the Crime Branch
Unit no.6, Chembur. This fact is fully corroborated by the contents of the
disclosure statement (Exh.1272) and the panchanama (Exh.1272A). On
the other hand, the perusal of the evidence of panch PW.123Aslam Haji
Rehman shows that he was a very smart operator. No doubt he was a
witness of the prosecution. But he was deposing with a purpose and the
purpose was to sow the seeds of doubt in the mind of the Court and at the
same time show that he was with the prosecution. His evidence shows that
he was trying to sail in two boats at the same time. On some points he
deposed in favour of the prosecution and on material points he tilted in
favour of the defence. He was a witness who was neither wholly reliable
nor wholly unreliable. Hence, for relying on his evidence, there must be
some other evidence to support his evidence. But there is no material on
the record to corroborate his statement that he saw the accused no.1
Rohee Tangappan Joseph @ Satish Kalya along with the accused no.7
Sachin Gaikwad in the Property Cell, Crawford market on 26/06/2011
and in absence of the same his evidence on that point cannot be relied
upon as against the evidence of panch PW.129Balu Panchange and
PW.136PI Kale which is reliable, trustworthy and free from suspicion and
further supported by the necessary documentary evidence. There is
nothing in their evidence to suggest that either of them was personally
knowing the accused no.1Rohee Tangappan Joseph @ Satish Kalya so as
443
to have any animosity or grudge against him. There was no reason for
them to falsely implicate the accused no.1Rohee Tangappan Joseph @
Satish Kalya in this case.
650. There is one more reason for not placing any reliance on the
evidence of panch PW.123Aslam Haji Mansuri on this point. He was
called to the Property Cell on 26/06/2011 by PW.134PI Pasalwar. If, at
that time, the accused no.1Rohee Tangappan Joseph @ Satish Kalya was
really present there along with the accused no.7Sachin Gaikwad, then
nothing prevented the learned Advocate for the accused no.1 from putting
a direct question in that regard to PW.134PI Pasalwar or any other
Investigating Officer of this case as a favourable answer would have not
only shattered the case of the prosecution regarding the arrest of the
accused no.1Rohee Tangappan Joseph @ Satish Kalya by PW.136PI Kale
on 26/06/2011 but it would have also created a strong suspicion about
the recovery of the revolver and cartridges at his instance. But what was
done was that a general suggestion was given to PW.136PI Kale that
“accused” were present in the Office of Crime Branch at Crawford market
and that prior to arresting them they were kept in the Property Cell of the
Crime Branch which was rightly denied by him. Similarly, in so far as the
statements made by PW.67HC Pradip Kadam are concerned, he was in no
way concerned with the investigation of this case. He used to look after
the Court work of Unit No.6 (Pairavi Adhikari). That means he must be
out of the Office on most occasions during the day time. Therefore, he
would not have known anything about the investigation of this case. In
any case, PW.136PI Kale was his superior Officer and he was not
expected to divulge the details of the investigation to PW.67HC Pradip
Kadam. Also, just because no accused was brought or interrogated 'in his
presence' in the Crime Branch Unit no.6, Chembur it does not mean that
444
no accused of this case was ever brought or interrogated in the Office of
the Crime Branch, Unit no.6, Chembur.
651. The recovery of the articles was also sought to be doubted on the
ground that PW.136PI Kale had called the panch witnesses at 01:00 pm
which suggests that PW.136PI Kale was already aware that the disclosure
statement of the accused no.1Rohee Tangappan Joseph @ Satish Kalya
was to be recorded. The said submission is made in ignorance of the facts
which have come on the record through the evidence of PW.136PI Kale.
Firstly, it needs to be made clear that there is no legal requirement that
the disclosure statement must be recorded in the presence of panch
witnesses. That apart, the perusal of the crossexamination of PW.136PI
Kale will show that after he was crossexamined on a particular point an
attempt was made to catch him off guard by putting tricky questions to
him for eliciting favourable answers. To show how PW.136PI Kale was
sought to be tricked, paragraph no.30 of his crossexamination is
reproduced below:
“30. I am knowing Balu Panchange and Dinkar Shelar (panch
witnesses with regard to panchnama Exh.1272 and Exh.1272A)
since the year 2009. It is true to say that till 26.06.2011 both
these persons had acted as panch witnesses on at least 6
occasions. It is true to say that in the year 2012, both these
persons had acted as panch witnesses in at least three cases. It is
not true to say that the crime branch Unit no.6 is also having its
office at Diamond Garden, near the house of MP Shri. Gurudas
Kamat, Chembur. It is true to say that the panchnama is not in
my handwriting. I have only singed it. The panch witnesses were
brought by the police constable. They had come one after
another. They had come after a time gap of 57 minutes. At
around 01:00 p.m. I had told my staff to bring the panch
witnesses. The panch witnesses had come about 10 minutes
prior to starting of the proceedings of the panchnama. It is true
to say that I told the constable for what purpose the panch
445
witnesses were required. It is true to say that the panchnama
was prepared in accordance with the purpose for calling the
panch witnesses. It is true to say that the signature of the
accused was not taken on the panchnama. The fact that both the
panch witnesses were taken to the accused and the accused
lifted the veil upto his forehead is mentioned in the panchnama.
It is true to say that it is not specifically stated in the panchnama
that the veil of the accused was lifted upto his forehead. I cannot
assign any reason as to why the fact that both the panch
witnesses were taken to the accused is not mentioned in the
panchnama. The portion markedC of the panchnama is
correctly recorded. It is marked as Exh.1372. It is true to say
that the name and the signature of the officer who scribed the
panchnama is not mentioned in the panchnama. It is not tru e
to say that I do not know the contents of the same.”
652. The perusal of the above crossexamination of PW.136PI Kale will
show that initially he was asked about the panch witnesses with respect to
the disclosure statement made by the accused no.1Rohee Tangappan
Joseph @ Satish Kalya. Thereafter, he was suddenly asked about the
location of the Office of the Crime Branch Unit no.6, Chembur. Then he
was again asked about the “panchanama”. The words were used cleverly.
PW.136PI Kale was generally asked about when the panch witnesses were
called for the panchanama and then he stated that the panch witnesses
were brought by a Constable at around 01:00 pm. He was not specifically
asked about panch witnesses with regard to the panchanama (Exh.1272
A) made by the accused no.1Rohee Tangappan Joseph @ Satish Kalya.
This aspect is important because earlier on the same day, PW.136PI Kale
had arrested the accused no.1Rohee Tangappan Joseph @ Satish Kalya
and two other accused persons in this case in his Office and for that
purpose and for effecting the personal search of the accused persons, two
panch witnesses were called for at about 01:30 pm. The proceedings in
that regard were completed at around 03:00 pm and it is only thereafter
that the accused no.1Rohee Tangappan Joseph @ Satish Kalya expressed
446
his desire to make the disclosure statement. Therefore, the panch

witnesses namely PW.129Balu Panchange and Devidas Shelar were called
for. Thus, the submission that PW.136PI Kale was already aware at 01:00
pm that the disclosure statement of the accused no.1Rohee Tangappan
Joseph @ Satish Kalya was to be recorded deserves to be rejected.
653. Now that it is clear that on 26/06/2011, the accused no.1Rohee

Tangappan Joseph @ Satish Kalya was present in the Office of PW.136PI
Kale at Chembur and that he made the disclosure statement (Exh.1272), it
will have to be seen whether there is anything to suggest that it was not a
voluntary statement. The perusal of the evidence of PW.136PI Kale will
show that the accused no.1Rohee Tangappan Joseph @ Satish Kalya was
arrested by him on 26/06/2011 and on the same day during interrogation
he showed his willingness to make the disclosure statement. Accordingly,
the same was recorded after calling the panch witnesses. There is nothing
in the evidence of PW.136PI Kale to suggest that the accused no.1Rohee
Tangappan Joseph @ Satish Kalya was pressurized or coerced or tortured
to make the statement (Exh.1272). The accused no.1Rohee Tangappan
Joseph @ Satish Kalya made the disclosure statement (Exh.1272) on the
same day on which he was arrested. It was not as if the statement was
recorded after many days of his arrest so as to raise any suspicion. The
oral evidence of PW.136PI Kale is duly corroborated by the contents of
the disclosure statement (Exh.1272) and the evidence of panch PW.129
Balu Panchange.
654. It has further come in the evidence of PW.136PI Kale that after the
accused no.1Rohee Tangappan Joseph @ Satish Kalya made the
statement, the articles required for sealing and labeling were taken, that
they all including the accused no.1Rohee Tangappan Joseph @ Satish
447
Kalya sat in a Police vehicle and then the accused no.1Rohee Tangappan
Joseph @ Satish Kalya led them to the house (room) of the accused no.2
Anil Waghmode at Wahab Chawl, Andheri. PW.136PI Kale has also
deposed that when they there Smt. Sakharabai Bhandudas Waghmode
who was the mother of the accused no.2Anil Waghmode was standing at
the door. They disclosed their identity to her and offered themselves for
their search but she declined the offer and permitted them to enter the
room. Thereafter, the accused no.1Rohee Tangappan Joseph @ Satish
Kalya first entered the room and produced one plastic bag from below a
cupboard near a wall. When that plastic bag was opened it was seen that
there was a revolver, 20 live cartridges, 5 empties and a raincoat in it.
These articles were separately packed, sealed and labeled with the
signatures of the panch witnesses and the signature of PW.136PI Kale.
The evidence of PW.136PI Kale and panch PW.129Balu Panchange on
this point is consistent, reliable and is corroborated by the contents of the
panchanama (Exh.1272A) on material points. The fact that the accused
no.1Rohee Tangappan Joseph @ Satish Kalya was the first person to
enter the room and PW.136PI Kale and others followed him in that room
clearly shows that neither PW.136PI Kale nor panch PW.129Balu
Panchange was aware about the place where the revolver, cartridges and
empties were kept till the time they were shown to them by the accused
no.1Rohee Tangappan Joseph @ Satish Kalya. The learned Advocate for
the accused no.1 could not point out any material defect in the evidence of
PW.136PI Kale or panch PW.129Balu Panchange so as to create any
doubt to show that the statement made by the accused no.1Rohee
Tangappan Joseph @ Satish Kalya was not voluntary. During cross
examination, only a suggestion was given to PW.136PI Kale and panch
PW.129Balu Panchange that the accused no.1Rohee Tangappan Joseph
@ Satish Kalya neither made any disclosure statement nor any revolver
448
was recovered which was rightly denied by them.
655. It was argued by the learned Advocate for the accused no.1 that the
proceedings regarding the panchanama (Exh.1272A) are suspicious
because in the panchanama the sitting position of the accused no.1Rohee
Tangappan Joseph @ Satish Kalya, Police officials and the panch winesses
in the Police vehicle was not mentioned, that the time at which they
reached the Wahab Chawl, Andheri is not recorded, that the Police did not
make any enquiry with anybody after going to the Wahab Chawl, Andheri,
that the panch witnesses did not personally handle the articles which were
seized and that the log book entries about the distance traveled by them
were not produced before the Court. It may be noted that though the
above objections were raised by the learned Advocate for the accused no.1
with a lot of force, he could not point out any provision under the law
which mandates that such acts are required to be performed. In fact, had
PW.136PI Kale noted down all the details then it would have been argued
that the panchanama is artificial. Had the panch witnesses personally
handled the articles then it would have been argued that the articles were
tampered with. Had PW.136PI Kale made an enquiry with he local
persons after reaching the Wahab Chawl it would have been argued that
enquiry was made as the statement made by the accused no.1Rohee
Tangappan Joseph @ Satish Kalya was not voluntary.
656. In so far as the nonproduction of the log book is concerned, it has
come in the evidence of PW.136PI Kale that he had seen the relevant
entry in the log book. Now, if there was any doubt, the defence had an
option to call for the log book for the purposes of satisfying itself. But that
was not done. It may be added here that there is always a presumption in
favour of the correctness of official acts. The said presumption can be
449
rebutted. But that has not been done in the present case. At this stage, it
may also be noted that PW.136PI Kale has narrated about the route as
shown by the accused no.1Rohee Tangappan Joseph @ Satish Kalya
which they followed which leaves no room for an doubt that they were led
to that place by the accused no.1Rohee Tangappan Joseph @ Satish
Kalya. It is not the stand of the defence that the route as narrated by
PW.136PI Kale does not lead to the Wahab Chawl, Chembur. Further, if
no such recovery was effected on 26/06/2011, then nothing prevented the
defence from examining Mrs. Sakharabai Anil Waghmode who was
present in the house on that day. It is not the stand of the defence that no
such person exists or that she was not present in the house on
26/06/2011. Her name would not have been known to PW.136PI Kale
unless he was taken to that house by the accused no.1Rohee Tangappan
Joseph @ Satish Kalya.
657. At this stage, it may be stated that during crossexamination of

PW.88Sunil Waghmode who was the real brother of the accused no.2
Anil Waghmode it has been brought on the record that on 26/06/2011,
the Police did not come to his house. By bring this fact on the record, an
attempt was made to create a doubt about the recovery of the revolver,
cartridges and the empties. It can be seen that as PW.88Sunil Waghmode
was the real brother of the accused no.2Anil Waghmode. Therefore, in
crossexamination, he was trying to help the accused no.2Anil Waghmode
by saying that on 26/06/2011, the Police did not visit his house. However,
if his entire evidence is considered then it will be clear that he has
nowhere stated that on 26/06/2011 he was in his house at any point of
time. Also, as stated earlier, the fact that the defence did not examine Mrs.
Sakharabai Anil Waghmode who was present in the house on 26/06/2011
itself shows that the stand taken is false. In any case, this Court is not
450
inclined to rely on the evidence of PW.88Sunil Waghmode as the

evidence of PW.136PI Kale and panch PW.129Balu Panchange is cogent,
reliable and trustworthy.
658. It was further argued by the learned Advocate for the accused no.1
that proceedings regarding the panchanama (Exh.1272A) are suspicious
because the room from where the recovery was effected did not belong to
the accused no.1Rohee Tangappan Joseph @ Satish Kalya but it belonged
to the accused no.2Anil Waghmode. It was submitted that at the most it
can be said that the accused no.1Rohee Tangappan Joseph @ Satish
Kalya may have had the knowledge that the revolver and cartridges were
kept there. If such is the stand, then considering the fact that the
prosecution has proved the recovery of the above articles at the instance of
the accused no.1Rohee Tangappan Joseph @ Satish Kalya, the burden
was upon him to show who else other than him could have concealed
those articles. There can be three possibilities when an accused points out
the place where an incriminating material was concealed without stating
that it was concealed by himself. One is that he himself had concealed it.
Second is that he would have seen somebody else concealing it and the
third is that he would have been told by another person that it was
concealed there. But if the accused declines to tell the Court that his
knowledge about the concealment was on account of one of the last two
possibilities then the Court can presume that it was concealed by the
accused himself. This is because accused is the only person who can offer
the explanation as to how else he came to know of such concealment and
if he chooses to refrain from telling the Court as to how else he came to
know of it, the only presumption which can be drawn by the Court is that
the concealment was made by himself. In the present case, the accused
no.1Rohee Tangappan Joseph @ Satish Kalya has not discharged the
451
burden. There may be a reason for not discharging the burden. The
revolver, cartridges and empties were recovered from the room of the
accused no.2Anil Waghmode. It is the case of the prosecution that the
accused no.1Rohee Tangappan Joseph @ Satish Kalya and the accused
no.2Anil Waghmode were close friends and probably because of that the
accused no.1Rohee Tangappan Joseph @ Satish Kalya was shy of shifting
the blame on the accused no.2Anil Waghmode. Had he done so, then
there was every possibility that the accused no.2Anil Waghmode might
have divulged the secrets of the accused no.1Rohee Tangappan Joseph @
Satish Kalya to the Police which could have resulted in more trouble for
the accused no.1Rohee Tangappan Joseph @ Satish Kalya. In any case, it
is not the stand that the revolver, cartridges and the empties were planted
in the house of the accused no.2Anil Waghmode. Further, if at all,
PW.136PI Kale wanted to plant them then he would have planted the
articles in the house of the accused no.1Rohee Tangapan Joseph @ Satish
Kalya to avoid any suspicion and to make the case full proof. Therefore,
the recovery of the above articles cannot be doubted.
judgment in the case of Akhilesh Hajam V. State of Bihar reported in
(1995) Supp 3 SCC 357 to contend that recovery of the weapon of
offence from an open and accessible place cannot be said to be a recovery
on the basis of the disclosure statement. The said judgment is not
applicable to the facts of the present case as in the present case the
revolver (Article249), cartridges (Article250 colly) and the empties
(Article269 colly) were not recovered from a place which was open and
accessible to one and all. The said articles were recovered from under the
cupboard which was in the house of the accused no.2Anil Waghmode
who was a close friend of the accused no.1Rohee Tangappan Joseph @
452
Satish Kalya. It has already been held above that the oral evidence of the
panch PW.129Balu Panchange and PW.136PI Kale in this regard is
beyond suspicion. Therefore, the above judgment is of no use to the
accused no.1Rohee Tangappan Joseph @ Satish Kalya.
660. Another ground on which the recovery proceedings were sought to
be challenged is that according to the learned Advocate for the accused
no.1, from the evidence of panch PW.129Balu Panchange and PW.136PI
Kale it is not clear as to who had scribed the contents of the panchanama
(Exh.1272A). According to him, it has come in the evidence of panch
PW.129Balu Panchange that PW.136PI Kale had scribed the contents of
the same whereas according to PW.136PI Kale he had only signed the
same. One wonders how the above statements can affect the correctness of
the contents of the panchanama (Exh.1272A). No argument about the
correctness of the contents of the panchanama (Exh.1272A) were
advanced and in absence of the same the doubt sought to be created
regarding the proceedings of the panchanama (Exh.1272A) cannot be
entertained. In any case, considering the totality of the evidence of panch
PW.129Balu Panchange and PW.136PI Kale this is a minor discrepancy
which needs to be ignored.
661. It was next argued that the failure of panch PW.129Balu Panchange
to identify the five empties before the Court also casts a serious doubt
about the case of the prosecution. It may be noted that the evidence of
panch PW.129Balu Panchange about the recovery and seizure of five
empties along with the 20 live cartridges and revolver is consistent. Before
going further it is necessary to state that during the course of the
investigation, the revolver, 20 live cartridges and the five empties were
sent to the FSL,Kalina for analysis. Out of the 20 live cartridges, two of
453
them were test fired for analysis. After the analysis, the 18 live cartridges,
2 empties (of test fired cartridges) and the 5 empties were returned to the
DCB CID and the same were then deposited in the Court in sealed
condition. It appears that during the course of the evidence, the
transparent plastic bag (Article10) containing the 18 live cartridges and
the two empties (of test fired cartridges) were shown to him by the
learned SPP and the same were identified by him. The five empties which
were also recovered were not shown to him by the learned SPP. That was
sheer inadvertence on the part of the learned SPP. This can happen to
anybody. The adage "to err is human" is the recognition of the possibility
of making mistakes to which humans are prone. A corollary of any such
laches or mistakes during the conducting of a case cannot be understood
as a lacuna particularly considering the fact that the prosecution has duly
proved the recovery of the revolver, cartridges and empties at the instance
of the accused no.1Rohee Tangappan Joseph @ Satish Kalya. In any case,
panch PW.129Balu Panchange was not confronted with the contents of
the panchanama to prove any omission/contradiction. Having said this,
even if the recovery of the empties is kept out of consideration, what is
important for the purposes of the present case is that the lead (Article
215) found on the spot of the incident and the lead (Article247)
recovered from the body of J.Dey were fired from the revolver (Article
249) which was recovered at the instance of the accused no.1Rohee
Tangappan Joseph @ Satish Kalya.
662. It was next argued that the possibility of tampering with the
revolver (Article249), cartridges (Article250 colly.) and the empties
(Article269 colly.) cannot be ruled out as after these articles were seized
and sealed on 26/06/2011, the seals appear to have been opened and the
articles were shown to media in the press conference which was held on
454
27/06/2011. It is only thereafter that the articles were sent to the

FSL,Kalina for analysis on 05/07/2011 i.e.. after 8 days.
663. In Blacks Law Dictionary Eighth Edition, the word 'tamper' is

defined to mean 'to meddle so as to alter (a thing); esp., to make changes
that are illegal, corrupting, or perverting.' In the present case, it will have
to be seen whether there is any evidence of tampering of the revolver,
cartridges and the empties which were recovered at the instance of the
accused no.1Rohee Tangappan Joseph @ Satish Kalya. Any defect in the
outer packing alone will not ipso facto lead to the conclusion that there
was any tampering of the revolver, cartridges and empties. In this regard,
it is necessary to note that as on 26/06/2011, PW.141PI Gosavi was
investigating into this case. Surprisingly, no questions were put to him in
crossexamination regarding the recovery of the revolver, cartridges and
the empties at the instance of the accused no.1Rohee Tangappan Joseph
@ Satish Kalya and the condition in which they were kept in the
muddemal room.
664. It may also be noted that during the course of hearing the learned
Advocate for the accused no.1 submitted that the case of the prosecution
becomes doubtful as PW.141PI Gosavi has not given the details of the
property which was received by him from the earlier Investigating Officer
and the entries about the same in the muddemal register. In the facts of
the present case, the above submission has no substance. PW.141PI
Gosavi did not state all the details as he was not asked about the same by
the learned SPP and there was a reason for that. All the necessary details
regarding the recovery of the revolver, cartridges and the empties were
already brought on the record by the prosecution through the evidence of
PW.136PI Kale who was assisting PW.141PI Gosavi in the investigation.
455
Therefore, perhaps the learned SPP thought it proper not to burden the
Court record by going into all the details as it would have have been
nothing but the repetition of the evidence of PW.136PI Kale. That apart,
PW.136PI Kale was thoroughly grilled by the defence and as observed
earlier, there is nothing suspicious in his evidence. There is no
contradiction in the evidence of PW.141PI Gosavi and PW.136PI Kale
about the sequence of the events which had taken place. If the learned
Advocate for the accused no.1 still had any doubt then nothing prevented
him from seeking appropriate explanation from PW141PI Gosavi.
Therefore, the case of the prosecution cannot be doubted merely because
PW.141PI Gosavi has not given the minute details of the actions taken by
him during the investigation conducted by him.
665. Now, let's turn back to the aspect of alleged tampering of the
revolver, cartridges and empties. It may be noted that it has come in the
evidence of PW.136PI Kale that after the recovery of the revolver,
cartridges and empties, they were immediately wrapped in separate
polythene bags, sealed and labeled with the signatures of the panch
witnesses and himself. Before the Court he identified the polythene bags
in which the articles were packed and sealed. He has also identified his
signature and the signatures of the panch witnesses on the labels. His
evidence is trustworthy and reliable. There is nothing in the evidence of
PW.136PI Kale to show that he was personally interested in this case. He
had no animus or grudge against the accused no.1Rohee Tangappan
Joseph @ Satish Kalya. His evidence of this point is consistent with the
evidence of panch PW.129Balu Panchange and is corroborated by the
panchanama (Exh.1272A) on material points. The articles were
forwarded to the FSL,Kalina for analysis on 05/07/2011 by PW.142API
Datir through PW.91PN Bhaskar Patole. The evidence of PW.142API
456
Datir on this point is duly corroborated by the evidence of PW.91PC

Bhaskar Patole and the forwarding letter (Exh.266). The CA report
(Exh.236) also shows that the revolver, cartridges and empties were
received in sealed condition and the seals were not only intact but also
tallied with the specimen seals. The CA report (Exh.236) does not show
that the revolver, cartridges and empties were tampered with in any
manner. Therefore, it is clear that the doubt raised by the learned
Advocate for the accused no.1 that there was tampering of the revolver,
cartridges and the empties is without any basis.
judgment in the case of Tulshiram Bhanudas Kambale and others V.
State of Maharashtra reported in 2000 CRI.L.J. 1566, in which it was
observed that where the articles recovered were not immediately sealed,
such recovery has no evidentiary value. The said judgment is not
applicable to the present case as in the present case, through the evidence
of PW.136PI Kale and panch PW.129Balu Panchange the prosecution has
duly proved that the revolver, cartridges and empties were immediately
packed, sealed and labeled at the spot itself.
667. At this stage, it may be noted that the reports of the FSL are directly
admissible u/s.293 of Cr.P.C.,1973 because some sanctity is attached to
those reports. In the present case, as stated earlier, all the reports of the
FSL were admitted in evidence when they were received by the Court. At
that time or at the time of recording of the evidence, the defence did not
challenge or object to the reports. The contents of the report of FSL could
have been rebutted by the defence by applying to the Court for
examination of the ballistic expert. In fact, after the prosecution evidence
was over, the learned Advocate for the accused no.1 had filed the
457
application (Exh.1546) for examining the ballistic expert. However, the
said application was withdrawn later on in view of pursis (Exh.1557). No
reason was assigned for the same. Perhaps the learned Advocate for the
accused no.1 was aware that the report of the Ballistic Expert was correct.
Thus, the available opportunity was not utilized.
judgment in the case of Vijay Singh (supra) to contend that the delay of 8
days in sending the revolver (Article249), cartridges (Article250 colly)
and the empties (Article269 colly) to the FSL,Kalina is fatal to the case of
the prosecution and as such the recovery of the above articles is vitiated.
This Court has gone through the above judgment. In the facts of the
present case, the said judgment cannot come to the rescue of the accused
no.1Rohee Tangappan Joseph @ Satish Kalya. In the present case, the
articles were forwarded to the FSL,Kalina for analysis on 05/07/2011 by
PW.142API Datir through PW.91PN Bhaskar Patole. As stated earlier, the
CA report (Exh.236) shows that the revolver, cartridges and empties were
received by the FSL, Kalina in sealed condition and the seals were not only
intact but also tallied with the specimen seals. The contents of the report
of FSL could have been rebutted by the defence by applying to the Court
for examination of the Ballistic expert. But as stated earlier, the available
opportunity was not utilized. There is no positive evidence to suggest that
there was any tampering of the revolver, cartridges and empties.
Consequently, mere delay of a few days in sending the revolver, cartridges
and empties for analysis is of no consequence.
669. It was also argued that the possibility of tampering with the
revolver, cartridges and empties cannot be ruled because though the
above articles were seized by PW.136PI Kale who was attached to the
458
Crime Branch Unit no.6 at the relevant time, the CA report (Exh.236)
shows that the articles were received from the Crime Branch Unit no.1
[bottom of page no.1 of CA report (Exh.236)]. The said argument has no
basis. It needs to be noted that as on 26/06/2011, the investigation was
being carried out by the Crime Branch Unit no.6. The original labels on
the plastic packets in which the above articles were packed and sealed
show the label of the Office of the Crime Branch Unit no.6 along with the
signatures of the panch witnesses and PW.136PI Kale. Thereafter, the
investigation was transferred to the PW.142API Datir of Crime Branch
Unit no.1. It has come in his evidence that after he took over the
investigation, he took the custody of all the articles which were recovered
and seized till that time and on 05/07/2011 he forwarded the revolver,
cartridges and empties to the FSL,Kalina in sealed condition through
PW.91PN Patole along with the forwarding letter (Exh.266). The contents
of the forwarding letter (Exh.266) corroborates his oral evidence on this
point. The perusal of the forwarding letter (Exh.266) shows that its
outward number is tk-dz-1027¼1½@d{k&1@2011 and it is dated 11/07/2011.
This is the same number which is seen at the bottom of the page no.1 of
the CA report (Exh.236). Thus, it is clear that this is not a case of
tampering. The CA report (Exh.236) merely reflects the outward number
of the letter (Exh.266) and its date. The packing and label of the Crime
Branch Unit no.1 was affixed over and above the original packing because
had PW.136PI Kale forwarded the above articles in the same packing to
the FSL,Kalina then those articles might not have been accepted by the
FSL,Kalina due to mismatch in the Unit number of the Office of the Crime
Branch on the labels on the articles and the forwarding letter (Exh.266).
In any case, there is nothing the evidence of PW.136PI Kale to suggest
that after he seized, packed and sealed the revolver, cartridges and
empties he tried to open the packets. Similarly, there is nothing in the
459
evidence of PW.142API Datir to suggest that after he received the custody
of the above articles he tried to open the original packing of those articles.
In fact, during crossexamination to a specific question put to him, he
emphatically denied that he had opened the packet containing the
revolver or that the articles were not kept in the muddemal room till they
were sent to the FSL, Kalina.
670. The prosecution has also examined PW.91PN Patole who carried
the above articles to the FSL,Kalina on 05/07/2011. His evidence fully
corroborates the evidence of PW.142API Datir that the revolver,
cartridges and the empties were forwarded to the FSL,Kalina in sealed
condition through him along with the covering letter (Exh.266). His
evidence was also not shaken in any manner in crossexamination.
Therefore, there was no question of tampering with the above articles.
671. It was also argued that the sealing of the revolver, cartridges and
empties is doubtful as it is not specifically mentioned in the panchanama
(Exh.1272A) that the articles were sealed with “wax”. It is no doubt true
that in the panchanama it is only mentioned that the articles were sealed
and it is not specifically mentioned that 'wax' seal was used for sealing.
But that would not be fatal to the case of the prosecution as the fact that
the articles were sealed is sufficient. In any case, there is no rule of law
that the sealing must be wax seal. Even if it done so, still there is no
requirement under the law that it should be specifically mentioned in the
panchanama that the articles were sealed with 'wax seal'. A hyper
technical approach cannot be adopted.
672. According to the learned Advocate for the accused no.1, the failure
of the prosecution to produce the necessary station diary entry regarding
460
taking of the articles required for sealing and labeling purposes also makes
the case of the prosecution suspicious. It may be noted that it has come in
the evidence of PW.136Kale that after the disclosure statement
(Exh.1272) was recorded, they took the articles required for sealing and
labeling with them and then himself, the panch witness, the accused no.1
Rohee Tangappan Joseph @ Satish Kalya and the Police staff sat in a
Government vehicle and moved ahead as per the instructions given by the
accused no.1Rohee Tangappan Joseph @ Satish Kalya. In several cases,
the Hon'ble Supreme Court of India and the Hon'ble High Courts have
observed that it is neither desirable nor feasible for the prosecution to
produce the station diaries in all cases and it is always opened to the
defence to move the Court for calling for such diaries if the defence wants
to make use of the same. In the present case also, if the defence wanted to
make use of any station diary entry then it could have called for the same.
But that was not done.
judgment in the case of State of Maharashtra V. Prabhu Barku Gade
reported in 1995 CRI.L.J. 1432 and Ashraf Hussain Shah V. State of
Maharashtra reported in 1996 CRI.L.J. 3147, in which it was held that
where there is no evidence to show that after recovery, the articles were
kept in sealed condition till the time they were sent to the Chemical
Analyst, such recovery has no value. The said judgment is not applicable
to the present case. As stated earlier, the prosecution has duly proved
through the evidence of PW.136PI Kale and PW.142API Datir that the
revolver (Article249), cartridges (Article250 colly) and the empties
(Article269 colly) were in sealed condition till the receipt of the same by
the FSL,Kalina. Further, the CA report (Exh.236) shows that the above
articles were received by the FSL,Kalina in sealed condition and the seals
461
were intact. Thus, there was no possibility of tampering with the articles.
674. In so far as the doubt sought to be created about the recovery of the
revolver, cartridges and empties on the ground that on the very next day
of the recovery, these articles were shown to media in the press
conference which was held by the Police is concerned, in this regard, it is
necessary to have a look at the evidence of PW.149CP Arup Patnaik. He
was the Commissioner of Police, Mumbai and the Sanctioning Authority
under the MCOC Act,1999. He was basically examined on behalf of the
prosecution to prove the sanction order under the MCOC Act,1999.
However, as he was one of the Officers who had addressed the media
along with the Joint Commissioner of Police in the press conference which
was held on 27/06/2011, the defence took full advantage and cross
examined him thoroughly on the point showing of the revolver and
cartridges to the media in the press conference. But the defence could not
elicit anything in his crossexamination which can be said to be adverse to
the case of the prosecution. If the evidence of PW.149CP Arup Patnaik is
seen then it will be clear that the defence was always shy to ask him
important questions. He was not even asked whether before showing the
firearms to the media the original plastic packing and seals were removed
or not. In absence of any evidence, it cannot be presumed that for showing
the revolver and cartridges to the media, the original packing and seals of
the firearms were removed and after the press conference the articles were
sealed afresh. It must be remembered that on 26/06/2011, the revolver,
cartridges and the empties were placed in a plastic polythene bag and
sealed. Those plastic polythene bags are before this Court. They are
completely transparent. Therefore, one can see the contents of the
polythene bags without opening the same and in absence of any positive
evidence to the contrary it will have to be presumed that the revolver and
462
cartridges were shown to the media without opening the original packing
and seals. As stated earlier, the CA report (Exh.236) also shows that the
firearms were received in sealed condition by the FSL,Kalina and that the
seals tallied with the specimen seals. Thus, there was no alteration in the
original packing and the seals on the revolver, cartridges and the empties.
675. At this stage, it may be noted that the question whether the mere

fact that the recovered revolver and cartridges shown to the media will
make the recovery doubtful had arisen before the Hon'ble Supreme Court
of India in the case of State of Maharashtra V. Bharat Chaganlal
Raghani & ors. reported in AIR 2002 SC 409. In that case, the learned
Trial Court had discarded the factum of recovery of weapons at the
instance of the accused therein on the ground that the same were shown
to the media. The Hon'ble Supreme Court of India while observing that
the approach of the learned Trial Court was technical held that once
recovery of the firearms was proved by the prosecution, the mere fact that
the firearms were shown to the media later on in a press conference was
no ground to doubt the recovery. For ready reference, the relevant
observations of the Hon'ble Supreme Court of India are reproduced below:
“60. We are of the opinion that the trial court adopted a

technical approach in appreciating the factum of recovery of
weapons and wrongly held that, "the evidence relating to the
seizure will have to be totally kept aside".................... The
statement of A6 relating to the recovery of weapons from the
house of A5 could not have been made a basis for holding that
there existed contradiction which persuaded the court not to
believe the recoveries as a piece of corroborative evidence.
Much has been made out from the display of seized weapons at
the Press Conference held by the police after the arrest of the
accused. Such an information is based upon the press reports
published in the newspapers. The Joint Commissioner of Police
who held the press conference stated that if any good work is
463
done with a good detection relating to crime, occurrence of

which had been earlier reported in the press or the accused of
serious offence or the shooters in the case as may be arrested
then to enhance the image of the police in the public, a wide
publicity is usually given for which press conferences are held.
He presided over the press conference on 3.7.1995 as he had
got information from the DCP about the seizure of weapons. He
stated that he directed those officers to produce one AK 56
assault rifle and smaller weapons which were to be displayed in
the press conference. According to him such weapons were
available with the Special Operation Squad Branch. According
to him similar weapons like the weapons seized from the
accused were displayed in the press conference. When a
question was put to him as to whether there was any hitch in
displaying the seized articles and showing the same to the press
persons, he replied that normally there was no hitch and in that
particular case because of the lack of time to the DCP he might
not have been able to bring the seized weapons. The seized
weapons were shown in the Office of CID Crime in the same
building where the office of the Joint Commissioner of Police is
also located. There was no cause or occasion for the court to
disbelieve the testimony of the Joint Commissioner of Police.
Holding that only seized weapons were shown to the press, the
trial court committed a mistake and it has unnecessarily tried to
make a mountain out of molehill on such a frivolous ground.”
676. In view of the above, it is clear that merely because the revolver,
cartridges and empties were shown to the media in the press conference, it
cannot be said that there was any kind of tampering with those articles.
677. It may also be stated here that the accused no.1Rohee Tangappan
Joseph @ Satish Kalya had filed an application for discharge (Exh.149) on
19/06/2014. While that application was pending, the revolver, cartridges
and empties were deposited in the Court in packed and sealed condition
on 26/09/2014. The roznama dated 16/10/2014 shows that at the
instance of the learned Advocate for the accused no.1 the packing of the
revolver, cartridges and empties was opened and they were marked as
464
Articles for identification purposes. During the course of the arguments,
the learned Advocate for the accused no.1 has very conveniently avoided
to point this fact to the Court. At that time, all the above articles were
opened in presence of the learned Advocate for the accused no.1.
However, no grievance was raised by the learned Advocate for the accused
no.1 at that time that the packing or the seals of those articles were no
intact or broken. Had any such grievance been raised, the Court would
have definitely noted the same for future reference. As stated earlier, the
CA report (Exh.236) shows that the above articles were received by the
FSL,Kalina in sealed condition and the seals were intact. Further, once the
original seal and packing is opened by the FSL,Kalina, the articles cannot
be packed and sealed again in the same manner. After the analysis the
articles are returned to the concerned Authority in the packing of the
FSL,Kalina. When such packets are opened in the Court and shown to any
witness then he is bound to say that the condition of the wrappers or
packets or labels is not the same as it was at the time of the seizure of the
articles. Therefore, the defence cannot take advantage of this fact and
claim that there was tampering with the revolver, cartridges and the
empties.
678. It was then argued that as the name of the accused no.1Rohee
Tangappan Joseph @ Satish Kalya was not mentioned in the forwarding
letter (Exh.266) which was regarding forwarding the revolver (Article
249), live cartridges (Article250 colly.) and the empties (Article269
colly) to the FSL,Kalina, it cannot be said that the above articles were
recovered at the instance of the accused no.1Rohee Tangappan Joseph @
Satish Kalya. The submission has no merit. There is no requirement of the
law that in such forwarding letters the name of the accused at whose
instance the articles are recovered is required to be mentioned.
465
679. It was next suggested that the recovery of the cartridges (Article250
colly.) is doubtful as no serial number was given to them whereas the CA
report (Article236) shows that the cartridges were marked as articles. It
may be noted that PW.136PI Kale was not confronted with the CA report
(Exh.236). No explanation was sought from him in that regard. Further, as
stated earlier, the Ballistic Expert could have been examined on behalf of
the accused no.1 for removal of all the doubts, if any. But that was not
done. The prosecution has proved the recovery of the revolver, cartridges
and empties at the instance of the accused no.1Rohee Tangappan Joseph
@ Satish Kalya and that the same was sent to the FSL,Kalina in sealed
condition. During crossexamination of the witnesses no direct stand was
taken that the cartridges which were recovered from the accused no.1
Rohee Tangappan Joseph @ Satish Kalya were not the same cartridges
which were forwarded to the FSL,Kalina for forensic analysis. Hence, the
recovery of revolver, cartridges and empties cannot be doubted.
680. It was next argued that the CA report (Exh.236) is not reliable as
the Ballistic Expert has not given the reasons for arriving at the conclusion
that the lead (Article215) which was found near the spot of the incident
and the lead (Article247) recovered from the body of J.Dey were fired
from one and the same .32” caliber revolver (Article249). In this regard,
reliance was placed upon the judgments in the case of Gopal Singh
Gorkha V. State of U.P. reported in 1991 CRI.L.J. 1235 and Haji
Mohammad Ekramul Haq V. The State of West Bengal reported in AIR
1959 SC 488. The said argument has no merits. As stated earlier, the FSL
reports are directly admissible u/s.293 of Cr.P.C.,1973 as some sanctity is
attached to those reports. In the present case, the contents of the report of
FSL could have been rebutted by the defence by applying to the Court for
466
examination of the Ballistic Expert. But that was not done. As stated
earlier, though an application was filed by the learned Advocate for the
accused no.1 for crossexamining the Ballistic Expert, it was withdrawn.
Therefore, now it is not open for the defence to contend that no are
reasons given in the CA report (Exh.236) for the findings arrived at by the
Ballistic Expert. In so far as the judgment in the case of Gopal Singh
Gorkha (supra) is concerned, it is not applicable to the facts of the
present case. In that case, the concerned Ballistic Expert was examined in
the Court on behalf of the prosecution and in Appeal the Hon'ble High
Court found that the evidence of the said Ballistic Expert to be
unsatisfactory. Such is not the case here. For the same reasons, the
judgment in the case of Ramesh Chandra Agarwal (supra) will also not
help the case of the accused no.1Rohee Tangappan Joseph @ Satish
Kalya.
681. The learned Advocate for the accused no.1 also submitted that
though witness before the Court has stated that the five empties (Article
269) which are before the Court had mark of hammer striking but in
reality no such hammer striking mark was found on the empties. On the
basis of the above, it was argued that the empties before the Court were
different from the empties which were actually recovered. It may be noted
that this point has been raised by the learned Advocate of the accused
no.1 in the written notes of arguments filed by him. Though the perusal of
the same shows that the learned Advocate for the accused no.1 has not
specified which witness has made the above statement or which CA report
he is relying for the above purpose, it appears that he was referring to the
evidence of PW.136PI Kale and the CA report (Exh.236). The perusal of
the evidence of PW.136PI Kale shows that he had made a statement that
there was a mark of hammer striking on the empties. As per the CA report
467
(Exh.236) the characteristic features of firing pin impression were found
on the empties and the same tallied among themselves and with two of
the live cartridges which were test fired from the revolver (Article249)
which was seized at the instance of accused no.1Rohee Tangappan
Joseph @ Satish Kalya. Thus, there is no inconsistency between the oral
evidence of PW.136PI Kale and the contents of CA report (Exh.236). Just
because the words "hammer striking" are not used in the CA report
(Exh.236) and the meaning is expressed in some technical words by the
Ballistic Expert it does not mean that the empties before the Court are
different from the empties which were sent to the FSL, Kalina.
682. It was next argued that panch PW.129Balu Panchange was a

habitual panch witness and was always available to the Police. Therefore,
the recovery of the articles at the instance of the accused no.1Rohee
Tangappan Joseph @ Satish Kalya becomes doubtful. In this regard,
reliance was placed upon the judgment in the case of Prem Chand V.
Union of India reported in AIR 1981 SC 613.
683. It is no doubt true that panch PW.129Balu Panchange has fairly
admitted that he had acted as panch witness on earlier occasions also. But
does that mean that he is a habitual panch witness?. The answer to this
question is 'No'. It was not shown that he has been branded as such by any
Court of law. It was also not shown that in the cases prior to this in which
he had acted as panch witness his evidence was not believed by the Court
on the ground that he was a stock/habitual panch. Every citizen of India
must be presumed to be an independent person until it is proved that he
was dependent on the Police or other officials for any purpose whatsoever
or he has a poor moral fiber or bad antecedents and only because the
Police in order to carry out official duties, have sought the help of any
468
other person he would not forfeit his independent character by giving help
to Police action. The circumstance that a particular panch witness is a
habitual panch witness would certainly weigh in the mind of the Court if it
finds that the evidence of the Police witnesses is not free from doubt. But
such is not the case here. There is nothing in the evidence of PW.136PI
Kale to create suspicion about his evidence. Further, there is nothing in
the evidence of panch PW.129Balu Panchange to suspect his integrity or
that he was under the thumb of the Investigating Agency. There is nothing
to show that he had any animus against the accused no.1Rohee
Tangappan Joseph @ Satish Kalya. There is also nothing to show that he
had any special affiliation with PW.136PI Kale. Even if it is assumed that
he was acquainted with the Police, the mere acquaintance with the Police
by itself would not destroy a man's independent outlook. In so far as the
judgment in the case of Prem Chand (supra) is concerned, it is not
applicable to the facts of the present case as the observations made by the
Hon'ble Supreme Court of India in the case were in a different context.
684. At this stage, it may be noted that in the case of Mahesh s/o.
Janardhan Gonnade V. State of Maharashtra reported (2008) 13 SCC
271 the Hon'ble Supreme Court of India has held that just because a
person has acted a panch witness in 56 cases for the Police it cannot be
said that he is habitual panch witness. In the case of Narayan Maruti
Waghmode & anr. V. State of Maharashtra & anr. reported in 2011
All.M.R.(Cri) 2263, the Hon'ble High Court while dealing with the
evidence of a witness who had acted as a panch on 45 earlier occasions
observed as under:
“15. The defence Counsel submitted that Jadhav (PW.3) is

stock witness of police and so no reliance can be placed on his
evidence. In view of the aforesaid material collected by the
469
police and the nature of evidence given by Jadhav (PW.3), it is
not probable that Jadhav was not present on the spot. Nothing is
brought on record to create probability that Jadhav did not
accompany raiding party. It is admitted that he had acted as a
panch witness for police in 45 cases but on the basis of this
circumstance only, evidence of Jadhav cannot be discarded. His
evidence is consistent with the aforesaid evidence and so we
hold that Jadhav also needs to be believed. The aforesaid
evidence and the material which is seized by police has ruled
out possibility of implanting the material by police for falsely
implicating accused No. 1.”
685. It was next argued that the failure of the prosecution to take the
fingerprints from the revolver (Article249) and compare he same with the
fingerprints of the accused no.1Rohee Tangappan Joseph @ Satish Kalya
is fatal to the case of the prosecution as in absence of the matching of the
fingerprints the accused no.1Rohee Tangappan Joseph @ Satish Kalya
cannot be connected with the use of the revolver (Article249). The said
submission is also required to be rejected. It is not the mandate of law that
in each and every case, the fingerprints should to be taken. That apart, the
evidence of fingerprint expert is not a substantive piece of evidence. Such
evidence can only be used to corroborate some items of substantive
evidence which are otherwise on record. Therefore, merely because the
fingerprints on the revolver (Article249) were not taken for matching the
same with the fingerprints of the accused no.1Rohee Tangappan Joseph
@ Satish Kalya the recovery of the revolver (Article249) at the instance of
the accused no.1Rohee Tangappan Joseph @ Satish Kalya cannot be
doubted especially when the evidence of panch PW.129Balu Panchange
and PW.136PI Kale is trustworthy and reliable.
686. It may be noted that panch PW.129Balu Panchange and PW.136PI
Kale have admitted, and rightly so, that they will not be able to identify
470
the revolver & cartridges recovered if mixed with similar such articles. No
one can identify the articles recovered if they are mixed up with similar
such articles. That apart, there is no rule of law that the seized articles
should be mixed with several similar articles for enabling the witnesses to
identify the relevant articles. The crossexamination of panch PW.129Balu
Panchange and PW.136PI Kale does not show or even indicate that the
articles recovered at the instance of the accused no.1Rohee Tangappan
Joseph @ Satish Kalya and articles shown to him in the Court were
different. The description of the revolver (Article249) mentioned in the
panchanama (Exh.1277A) tallies with the revolver (Article249) which is
before the Court.
687. The recovery of the revolver (Article249) at the instance of the

accused no.1Rohee Tangappan Joseph @ Satish Kalya was also sought to
be doubted on the ground that it has come in the evidence of panch
PW.129Balu Panchange that the Police had told him that the revolver was
of Czech Company but the revolver (Article249) was having the marking
'USA'. The said submission has no basis. The prosecution has duly proved
the recovery of the revolver (Article249) at the instance of the accused
no.1Rohee Tangappan Joseph @ Satish Kalya. Panch PW.129Balu
Panchange and PW.136PI Kale have duly identified the revolver (Article
249) to be the same which was recovered at the instance of accused no.1
Rohee Tangappan Joseph @ Satish Kalya. Panch PW.129Balu Panchange
was not asked when and where he was told that the revolver was Czech
company. No suggestion was given to panch PW.129Balu Panchange that
two different revolvers were found. The same revolver was sent to the
FSL,Kalina for analysis and after analysis, it was deposited in the Court.
There is nothing to doubt that the revolver (Article249) which is before
the Court is the same revolver which was recovered at the instance of the
471
accused no.1Rohee Tangappan Joseph @ Satish Kalya. Hence, the above
objection is required to be rejected.
688. Let's assume for a moment that the revolver (Article249) is not the
same revolver which was used in the crime. Let's assume even a worse
case that no revolver was recovered at all. Both the situations are not fatal
to the case of the prosecution as it is well settled that mere nonrecovery
of the weapon of offence will not falsify the case of the prosecution when
the other evidence is reliable and trustworthy. In the present case, as
already held earlier, the confession made by the accused no.5Arun Dake
clearly shows that it was the accused no.1Rohee Tangappan Joseph @
Satish Kalya who had fired five bullets on the person of J.Dey which
resulted in his death.
689. At this stage, it may be stated that in crossexamination PW.136PI
Kale has stated that at the time of the seizure of the cartridges only the
marking '.32 S & W LONG' was found on them and no other marking was
found on the cartridges. But before the Court when he was shown the
cartridges (Article250) and empties (Article269 colly.) more closely he
stated that in addition to the marking '.32 S & W LONG' the marking 'S &
B' were also seen at the cap of the cartridges and the empties. This Court
is of the view that the above discrepancy brought on the record does not
affect the case of the prosecution in any manner. The markings on the
cartridges and the empties are so small that it is difficult to read all of
them with naked eye. In any case, what is important is that PW.136PI
Rane and panch PW.129Balu Panchange have identified the cartridges to
be same which were recovered. It is not the case of the accused no.1 that
the cartridges which were recovered were replaced with other cartridges.
Hence, the objection raised on this point is required to be rejected.
472
690. Let's assume for a moment that there was some procedural illegality
in conducting search and seizure. It is the settled law that the evidence
collected thereby will not become inadmissible and the accused has show
that he was seriously prejudiced because of the procedural illegality. In the
present case, there is nothing to suggest that the accused no.1Rohee
Tangappan Joseph @ Satish Kalya was prejudiced in any manner due to
the alleged procedural illegalities.
OBJECTIONS REGARDING THE RECOVERY OF THE QUALIS VEHICLE
(ARTICLE236) AT THE INSTANCE OF THE ACCUSED NO.2ANIL
WAGHMODE.
691. In order to prove the recovery of the Qualis vehicle bearing
registration no.MH12CD7701 at the instance of the accused no.2Anil
Waghmode the prosecution has relied upon the evidence of panch
PW.126Pradip Shirodkar and PW.136PI Kale.
692. The panch PW.126Pradip Shirodkar deposed that on 26/06/2011
one Police Constable by name Mr Bade showed him his ID card and took
him to the Office of the Crime branch Unit No.6. He deposed that when he
went there he was introduced to PW.136PI Kale and his team. He
deposed that PW.136PI Kale told him the reason for which he was called
and on being asked, he agreed to act as a panch witness. He deposed that
another panch by name Mr Sonu Kamble was also present there. He
deposed that PW.136PI Kale first made enquiry with both of them and
then the accused no.2Anil Waghmode was brought before them and his
veil was removed. He identified the accused no.2Anil Waghmode before
the Court. He deposed that the accused no.2Anil Waghmode disclosed to
the Police that he would point out the vehicle bearing registration no. MH
12CD7701 which was concealed by him. He deposed that the disclosure
473
statement (Exh.1247) was accordingly recorded in his presence. He

deposed that he along with the other panch witness and PW.136PI Kale
signed the same.
693. He deposed that after the above proceedings were completed, they
sat in a Government vehicle and the accused no.2Anil Waghmode led
them to Suman Nagar, Chembur and from there he led them to the Sion
Dharavi junction and from there to the Eastern Express Highway. He
deposed that the accused no.2Anil Waghmode then told the driver to take
the vehicle to the Andheri overbridge. He deposed that the accused no.2
Anil Waghmode then led them to the Amboli Fata through the service
road. He deposed that thereafter, the accused no.2Anil Waghmode told
the driver to drive the vehicle in the direction of Jogeshwari. He deposed
that while going towards Jogeshwari the accused no.2Anil Waghmode
instructed the driver to stop the vehicle near a petrol pump and
accordingly, the vehicle was stopped there. He deposed that the accused
no.2Anil Waghmode then showed the place where he had parked the
vehicle by pointing his finger. He deposed that as that place was at some
distance from the petrol pump they went there by walk. He deposed that
they saw a Qualis like vehicle bearing registration no.MH12CD7701. He
deposed that the accused no.2Anil Waghmode then opened the rear door
of that vehicle and produced the key of that vehicle from below the floor
carpet of the vehicle. He deposed that the Police then opened the front
door of that vehicle with the help of that key and examined the dashboard
of the vehicle in their presence. He deposed that one registration book of
the vehicle was found in the dashboard and the same was seized and
sealed with the label containing signature of the panch witnesses. He
deposed that the memorandum panchanama (Exh.1248) was prepared
with regard to the above proceedings.
474

stated that when the Police called him, he was near Jama Sweets, Sindhi
camp area as he had gone there for purchasing sweets. He stated that on
being asked by him, Constable Shri Bade told him that there was some
work and that he would get the details after going to the Office of the
Crime Branch. He stated that he could not say how many rooms were
there in the Office of the Crime Branch Unit no.6. He admitted that the
Police had asked him about his antecedents. He stated that he had told the
Police that he had acted as panch witness earlier also. He denied that he
also deposed in the Court whenever required. He stated that he had
deposed in the other cases in the Sessions Court at Mulund and before this
Court. He stated that the Officers were making enquiry with the accused
no.2Anil Waghmode in his presence. He denied that the accused no.2
Anil Waghmode was handcuffed at that time.
695. Panch PW.126Pradip Shirodkar admitted that the vehicle was

present near the petrol pump. He admitted that the name of the petrol
pump was not mentioned in the memorandum panchanama. He admitted
that no panchanama was prepared regarding the exact spot at which the
Qualis vehicle was standing. He stated that other vehicles were also
standing there. He denied that all the doors of the vehicle were locked. He
stated that one door of the vehicle was not locked. He denied that there
were other Qualis vehicles also which were standing at that spot. He
stated that the accused no.2Anil Waghmode had pointed towards the
Qualis vehicle when they were in the Government vehicle. He stated that
after the proceedings of memorandum panchanama were completed he
left the spot. He denied that the memorandum panchanama was already
prepared and on the say of the Police he only signed it. He denied that he
475
did not go to the spot. He denied that he signed the memorandum

panchanama in the Police Station. He denied that the accused no.2Anil
Waghmode neither made any disclosure statement nor he showed the spot
to them. He denied that the accused no.2Anil Waghmode was already
shown to him before entering the Court room.
696. PW.136PI Kale deposed that during the course of interrogation of
the accused no.2Anil Waghmode on 26/06/2011, the accused no.2Anil
Waghmode told him that he wanted to disclose something about the
incident. He deposed that two panch witnesses namely PW.126Pradeep
Shirodkar and Sonu Ganpat Kamble were called for. He deposed that on
making enquiry with them and on being asked, both of them agreed to act
as panch witnesses. He deposed that both the panch witnesses were
briefed about the case. He deposed that in the presence of the panch
witnesses, the accused no.2Anil Waghmode disclosed that he would show
the place where the Qualis vehicle was parked. He deposed that the said
statement (Exh.1247) was recorded in presence of the panch witnesses
and their signatures were taken on the same. He deposed that he also
signed the same.
697. He deposed that thereafter, they took the articles required for
sealing & labeling and then himself, his team, both the panch witnesses
and the accused no.2Anil Waghmode sat in the Qualis vehicle of Police
and went ahead as per the directions of the accused no.2Anil Waghmode.
He deposed that the accused no.2Anil Waghmode led them to Suman
Nagar, from there to Dharavi T junction, from there to the Western
Express highway, after crossing the Andheri flyover he led them to the
service road on the left side and near the railway crossing gate of Amboli.
He deposed that they crossed the railway track and traveled on the
476
AndheriJogeshwari road. He deposed that after traveling some distance
there was a petrol pump on the left side of the road and at a distance of
about 50 ft from the petrol pump a Qualis vehicle was found. He deposed
that they stopped their vehicle near the petrol pump and got down from it
along with the accused no.2Anil Waghmode. He deposed that the accused
no.2Anil Waghmode went towards that vehicle and opened the back side
door on the right side of the vehicle and removed the key of the vehicle
from below the carpet of the vehicle. He deposed that a duplicate
registration book of the vehicle was found in the dashboard. He deposed
that the details of the Qualis vehicle were noted down in the panchanama
which was prepared. He deposed that the registration papers were seized,
sealed and labeled with the signatures of the panch witnesses and himself.
He deposed that a label was also affixed on the middle portion of the
steering wheel of the vehicle. He deposed that the memorandum
panchanama (Exh.1248) was prepared regarding the proceedings which
had taken place at that spot. He deposed that both the panch witnesses
and himself had signed the said panchanama.
the petrol pump was on the road going towards the Jogeshwari. He stated
that he had an occasion to visit that area earlier on that day. He stated
that the vehicle was stopped at a distance of about 1 km from the place
where the vehicle was stopped when he had gone there earlier on that
day. He stated that there were shops around the spot where the vehicle
was parked. He stated that when the vehicle was taken in custody one of
its door was in unlocked condition. He stated that people were moving on
the road on which the vehicle was parked and there was traffic. He stated
that there was a lane adjacent to the petrol pump nearby the place where
the Qualis vehicle was parked. He stated that he did not record the
477
statement of any person who was present near the spot where the Qualis
vehicle was parked. He denied that the Qualis vehicle was brought from
the house of sister of accused no.2Anil Waghmode at Sangli.
699. From the evidence of panch PW.126Pradip Shirodkar and PW.136
PI Kale it is clear that the disclosure statement made by the accused no.2
Anil Waghmode was voluntary. There is nothing in the evidence of panch
PW.126Pardip Shirodkar and PW.136PI Kale to suggest that the accused
no.2Anil Waghmode was either pressurized or coerced to make the
disclosure statement. The accused no.2Anil Waghmode made the
disclosure statement (Exh.1247) on the same day on which he was
arrested. It was not as if the statement was recorded after many days of
his arrest so as to raise any suspicion. Also, the identity of the accused
no.2Anil Waghmode is duly established. The oral evidence of panch
PW.126Pradip Shirodkar is duly corroborated by the evidence of PW.136
PI Kale and by the contents of the disclosure statement (Exh.1247).
Similarly, with regard to the memorandum panchanama (Exh.1248) also,
the evidence of PW.136PI Kale is consistent, reliable and supports the
evidence of panch PW.126Pradip Shirodkar. The contents of the
panchanama (Exh.1248) corroborate the oral evidence of panch PW.126
Pradip Shirodkar and PW.136PI Kale on material points. There is nothing
to suggest that PW.136PI Kale was aware about that place even before
they were led to that place by the accused no.2Anil Waghmode. These
two witnesses were exhaustively crossexamined but nothing adverse
could be elicited by the defence.
700. It may also be noted that the accused no.2Anil Waghmode has
admitted that the said vehicle belongs to him. But it is his stand that the
Police had brought the said vehicle from the house of his sister at Sangli
478
and then it was shown to have been recovered at his instance. The defence
taken by the accused no.2Anil Waghomde is required to be rejected as
there is no evidence to show that the Qualis vehicle was brought by the
Police from Sangli. The sister of the accused no.2Anil Waghmode could
have been examined by the defence to prove this point. But that was not
done. Also, it is not the case of the accused no.2Anil Waghmode that he
registered any complaint with the Police at Sangli regarding unauthorized
removal of his vehicle from the house of his sister. Also, it is not digestible
that while the accused no.2Anil Waghmode was a resident of Mumbai he
would keep his vehicle at Sangli which is a very far off place from
Mumbai.
701. It was then argued that the recovery of the Qualis vehicle is
doubtful on the ground that it was recovered from an open space and that
one of its doors was found to be unlocked at the time of the recovery and
it was quite possible that somebody else might be using it. The said
submission has no basis. There is nothing in section 27 of the Evidence
Act,1872 which renders the statement of the accused inadmissible if
recovery of the articles was made from any place which is "open or
accessible to others". It is an incorrect notion that when recovery of any
incriminating article is made from a place which is open or accessible to
others it would vitiate the evidence u/s.27 of the Evidence Act,1872. That
apart, the accused no.2Anil Waghmode has admitted that he is the owner
of the Qualis vehicle. Therefore, the burden was on him to show who else
other than him could have used that vehicle. But he failed discharge the
burden.
702. It was then argued by the learned Advocate for the accused no.2
that though it has come in the evidence of PW.143ACP Duraphe that
479
whenever any investigation is carried out the papers concerning the

investigation are placed before the senior PI and the ACP within 24 hours,
the important documents such as the various panchanama (Exh.493,
Exh.504, Exh.1285, Exh.512, Exh.1272, Exh.1247, Exh.1204, Exh.1254,
Exh.519, Exh.731, Exh.526, Exh.758, Exh.756, Exh.1315, Exh.554 and
Exh.1201.) do not bear the signature and the stamp of the Senior Police
Officer of having seen the same during the course of the investigation
suggesting thereby that the above documents were created later on to suit
the case of the prosecution. The said submission is without any basis. The
learned Advocate for the accused no.2 could not point out any provision of
the law which mandates that whenever any document is placed before an
Officer for perusal, the said Officer must put his signature and seal as a
mark of proof of having gone through the documents. That apart, the
entries regarding the various documents including the panchanama which
were drawn during the course of the investigation have been made in the
case diary which is before the Court.
OBJECTIONS REGARDING THE RECOVERY OF THE MOTORCYCLE
(ARTICLE261) AND RAINCOAT (ARTICLE254) AT THE INSTANCE
OF THE ACCUSED NO.4NILESH SHEDGE.
703. To prove the recovery of the motorcycle bearing registration no.
MH01AF8843 (Article261) and the raincoat (Article254) at the
instance of the accused no.4Nilesh Shedge, the prosecution has relied
upon the evidence of the panch PW.131Meer Usman Ali and PW.133API
Gopale.
704. It has come in the evidence of PW.131Meer Usman Ali that on
26/06/2011, on being called by the Police he went to the Property Cell of
the Crime Branch. He deposed that on being asked by PW.133API Gopale,
he agreed to act as a panch witness. He deposed that in his presence the
480
accused no.4Nilesh Shedge stated that he could give the motorcycle. He
deposed that the Police recorded the disclosure statement (Exh.1285) in
his presence. He deposed that the accused no.4Nilesh Shedge, himself
and another person signed the statement. He deposed that thereafter all of
them sat in a Police vehicle and went to the Janata Cooperative Society at
the 90 feet road at Dharavi. He deposed that they went near a building by
walk and the accused no.4Nilesh Shedge showed them a black colored
two wheeler vehicle there. He deposed that when the accused no.4Nilesh
Shedge was asked about the key of the vehicle he said that the key was
with his friend namely Shri. More (PW.30). He deposed that when the
name of Shri. More was called out, he came outside. He deposed that
when the Police Officer asked PW.30Dattatray More as to who was the
owner of the vehicle, he replied that the vehicle belonged to his friend. He
deposed that after PW.30Dattatray More brought the key of the vehicle,
PW.133API Gopale opened the dicky of the vehicle. He deposed that the
papers found in the dickey of the motorcycle were seized, sealed and
labeled with their signatures.
705. He deposed that the accused no.4Nilesh Shedge also said that he
had kept a raincoat in his house in a mori (washing place). He deposed
that the accused no.4Nilesh Shedge took them to his house where his
wife was present. He deposed that the wife of the accused no.4Nilesh
Shedge brought a green (mehendi color) color raincoat from inside which
was then seized, sealed and labeled with their signatures. When the
disclosure panchanama was shown to him he identified his signatures at
two places as panch witness (Sr.no.1). He stated that his signatures were
taken by PW.133API Gopale at that time only. He then stated that his
signatures were taken at the time of recording of statement of the accused
no.4Nilesh Shedge. He then stated that he was not aware about the
481
contents of the panchanama as they were written in Hindi and he could
not read Hindi. To a Court question, he stated that he did not remember
when his two signatures (Exh.1286) were taken. He identified the key
(Article252) and the raincoat (Article254). As PW.131Meer Usman Ali
did not support the prosecution in so far as the proceedings of the
panchanama were concerned, he was crossexamined by the learned SPP.
In crossexamination, he admitted that after the motorcycle and the rain
coat were seized the panchanama in that regard was prepared in Marathi.
He admitted that the panchanama was read over and explained to them in
Hindi and after he said that it was correctly recorded, their signatures
were taken. He admitted that his signatures (Exh.1286) was taken at that
time. He admitted that the other panch also signed the panchanama at
that time. He admitted that after the proceedings of seizure of motorcycle
was complete they went to Kadarbhai chawl, SionDharavi Road, Mumbai.
He admitted that when they went there he saw that a raincoat (Article
254) was hanging near mori on a hook.

stated that he did not personally know PW.133API Gopale and that he
had never seen him prior to the date of panchanama. He denied that prior
to this case also he had acted as panch witness. He stated that after this
case also he never acted as panch witness. He stated the Police did not ask
him whether he had acted as a panch witness on earlier occasion and
whether any case was registered against him. He stated that the Police did
not ask him anything except his name, address and occupation. He stated
that he had gone to the Crawford market for purchasing fruits and at that
time the Police had met him. He stated that he could not read and write
Marathi and Hindi but if the panchanama was read over to him in Marathi
he might understand it except few words. He denied that he was not
482
aware in what language the contents of the disclosure statement were

written. He denied that when he went to the Office of the Property Cell
there were many accused present there in veil. He denied that he was
made to understand the contents of the panchanama before deposing in
the Court. He denied that they did not go to any place and that he signed
the documents in the Police Station.
stated that he was residing at Nagpada. He stated that now he did not
remember the name of the Apartment where the motorcycle was parked.
He stated that PW.30Dattatray More was living in that building and that
the key of the motorcycle was with him. He stated that the building was
adjacent to the 90 feet road on the left side. He stated that he had met
PW.133API Gopale for the first time when he went to the Office of Crime
Branch. He stated that the house from which the raincoat was seized was
near to the Apartment from which the motorcycle was seized. He stated
that the length of the 90 feet road was approximately 1 km to 1.5 km and
there were shops on both the sides of that road. He stated that the rain
coat was recovered from the house number 116. He stated that PW.30
Dattatray More brought the key from his house and gave it to PW.133API
Gopale. He stated that after giving the key PW.30Dattatray More went
away. He stated that there was only one room and a bathroom in the
house from which the raincoat was recovered. He stated that one was
required to go to the bathroom through the room. He stated that he did
not go inside that room and therefore he could not say what was the exact
location of the bathroom.

stated that the other panch Shri. Ali was present in the Office of Crime
483
Branch before he had gone there. He stated that he came to know that the
name of the other panch was Shri. Ali as some persons were talking about
him and while he was giving his name and address. He stated that he did
not know where Shri. Ali was residing. He stated that he was not given
any information by the Police about the date of arrest of the accused no.4
Nilesh Shedge.
709. It has come in the evidence of PW.133API Gopale that on

26/06/2011 at about 03:45 pm, during interrogation after the arrest, the
accused no.4Nilesh Shedge stated that he wanted to disclose some
information about the offence. He deposed that he then directed HC
Madne to call for two panch witnesses and accordingly, at around 04:00
pm two panch witnesses namely PW.131Meer Usman Ali and Abdul Latif
Kadar Shaikh were called to his Office and in the presence of the panch
witnesses the accused no.4Nilesh Shedge disclosed that he could show
the motorcycle, the raincoat and the place where those articles were kept.
He deposed that the disclosure statement (Exh.1285) of the accused no.4
Nilesh Shedge was recorded in presence of the two panch witnesses.
710. PW.133API Gopale then deposed that thereafter they took the
articles required for sealing and labeling and all of them including the
accused no.4Nilesh Shedge and the panch witnesses sat in a Government
vehicle and the accused no.4Nilesh Shedge led them to the passage which
was on the ground floor of the building Janta Nagar Cooperative Housing
Society, Sion and showed them the Honda Unicorn motorcycle (Article
261) which was parked there. He deposed that when he asked the accused
no.4Nilesh Shedge about its keys, he said that the keys of the motorcycle
was with PW.30Dattatray More and thereafter the accused no.4Nilesh
Shedge called PW.30Dattatray More. He deposed that after PW.30
484
Dattatray More came there he was briefed about the present case and then
PW.30Datatray More went to his house and brought the keys of the
motorcycle (Article261). He deposed that the papers (Article260) of the
motorcycle and the keys (Article252) were seized. He deposed that from
that place, the accused no.4Nilesh Shedge led them to the room no.116,
Kadarbhai Chawl at laxmibaug slums where his wife Ms.Sushma Nilesh
Shedge was present. He deposed that thereafter all of them went inside
and then the accused no.4Nilesh Shedge produced the raincoat (Article
254) which was hanging on a hook in the bathroom (mori). He deposed
that he seized, packed, sealed and labeled the same after noting down its
description in the panchanama (Exh.1315). He deposed that both the
panch witnesses, himself and PW.30Dattatray More signed the said
panchanama in his presence.
711. From the evidence of PW.131Meer Usman Ali and PW.133API

Gopale it is clear that the disclosure statement made by the accused no.4
Nilesh Shedge was voluntary. There is nothing in the evidence of PW.131
Meer Usman Ali and PW.133API Gopale to suggest that the accused no.4
Nilesh Shedge was either pressurized or coerced to make the disclosure
statement. The accused no.4Nilesh Shedge made the disclosure statement
(Exh.1285) on the same day on which he was arrested. It was not as if the
statement was recorded after many days of his arrest so as to raise any
suspicion. The oral evidence of PW.131Meer Usman Ali is duly
corroborated by the evidence of PW.133API Gopale and the contents of
the disclosure statement (Exh.1285) on material points. He also identified
the accused no.4Nilesh Shedge in the Court.
712. The evidence of the panch PW.131Meer Usman Ali, is also reliable
in so far as the recovery of motorcycle (Article261) at the instance of the
485
accused no.4Nilesh Shedge is concerned. His evidence on this point is

consistent with the evidence of PW.133API Gopale and is corroborated by
the contents of the panchanama (Exh.1315). However, he has faltered
with regard to the recovery of the raincoat at the instance of the accused
no.4Nilesh Shedge. He has firstly stated that the wife of the accused no.4
Nilesh Shedge had brought the raincoat from inside the house. Thereafter,
he stated that he did not go inside the room from which the accused no.4
Nilesh Shedge brought the raincoat. However, much weightage is not
required to be given to the error committed by him. In the present case, it
appears that though PW.131Meer Usman Ali was a wholly truthful
witness, he was overawed by the Court atmosphere since he was deposing
before the Court for the first time and out of nervousness he mixed up
facts and got confused. In any case, evidence of PW.133API Gopale
regarding the recovery of the raincoat at the instance of the accused no.4
Nilesh Shedge is cogent, trustworthy and reliable. The same can be
accepted as there is nothing suspicious in his evidence. Having said this,
even if the evidence regarding the recovery of the raincoat at the instance
of the accused no.4Nilesh Shedge is discarded still it would not be fatal to
the case of the prosecution.
713. In so far as the recovery of the motorcycle (Article261) at the

instance of the accused no.4Nilesh Shedge is concerned, as stated earlier,
the evidence of PW.131Meer Usman Ali is consistent, reliable and is duly
corroborated by the evidence of PW.133API Gopale and the contents of
the panchanama (Exh.1315) on material points. PW.131Meer Usman Ali
and PW.133API Gopale were exhaustively crossexamined on this point
but nothing adverse could be elicited by the defence. There is nothing to
suggest that either PW.131Meer Usman Ali or PW.133API Gopale were
aware about that place where the motorcycle (Article261) was found
486
even before they were led to that place by the accused no.4Nilesh Shedge.
714. The recovery of the motorcycle (Article261) was sought to be

doubted on the basis of the evidence of PW.30Dattatray Mane who has
deposed that the motorcycle was given by him to the Police on
26/06/2011. PW.30Dattatray Mane was the owner of the motorcycle. He
had purchased the said motorcycle from PW.55Rajiv Bhaskar Mane in the
year 2010 for Rs.35,000/. He deposed that the accused no.4Nilesh
Shedge was his cousin brother. He deposed that the Police did not make
any enquiry with him regarding the motorcycle. He deposed that on
26/06/2011, he had given the papers of the motorcycle to the Police. He
deposed that he handed over the motorcycle along with its papers to the
Police on being asked to do so.
stated that he gave the motorcycle only because the Police asked him to do
so. He admitted that he was called to Police Station for that purpose. He
admitted that he handed over the motorcycle to the Police in the Police
Station. He stated that the Police had taken his signature on a blank paper
and had told him that they would call him after two days.
716. It may be noted that PW.30Dattatray More was not declared hostile
by the prosecution. But, that does not mean that his evidence must be
blindly accepted. This Court can very well evaluate his evidence to find
out whether he was speaking the truth. If the evidence of PW.30Dattatray
More is considered as a whole then it will be clear that he was not
speaking the truth probably for the reason that the accused no.4Nilesh
Shedge was his cousin brother. Therefore, he was trying to help him. It
has come in his evidence that he gave the motorcycle and its papers to the
487
Police on 26/06/2011. If that was so then in the normal course it was
expected from him that he should have asked the Police as to why the
motorcycle was required. After all, motorcycles are quite expensive and no
one would hand it over to the Police or anybody else just like that. Not
only that, the motorcycle (Article261) is lying in the Court for the last
seven years. The fact that PW.30Dattatray More has still not come
forward to claim the possession of the motorcycle also indicates that he
was not the person who was actually using the motorcycle at the relevant
time. Otherwise, nothing prevented him from approaching the Court for
taking the custody of the motorcycle.
717. At this stage, it necessary to have a look at the stand taken by the
accused no.4Nilesh Shedge on this point in his statement recorded
u/s.313(b) of Cr.P.C.,1973. He has stated as follows:
“Q.315: It has come in the evidence of PW.131Meer Usman
Ali that PW.30Dattatraya More brought the key of the
motorcycle. What do you have to say about it ?
Ans.: It is not correct. Dattatraya More was called to the crime
branch on the next day and he was produced before me. He was
asked whether he knew me. He identified me as his cousin
brother and then he was told to go.”
718. From the answer given by the accused no.4Nilesh Shedge to the
question no.315, it is clear that he is also falsifying the evidence of PW.30
Dattatray More. According to PW.30Dattatray More, the Police had called
him with the motorcycle on 26/06/2011 itself. But according to the
accused no.4Nilesh Shedge, PW.30Dattatray More was called by the
Police on the next day i.e. on 27/06/2011 and was produced before him.
Thus, neither the evidence of PW.30Dattatray More nor the stand taken
by the accused no.4Nilesh Shedge is reliable.
488
719. Let's assume for a moment that PW.30Dattatray More voluntarily
handed over the motorcycle to the Police. Then he must have been given
some acknowledgment in writing by the concerned Officer about the
receipt of the same by him. But PW.30Dattatray More is silent about it.
His conduct was unusual. That apart, no suggestion was given to panch
PW.131Meer Usman Ali that the motorcycle was not recovered but was
brought to the Police Station by PW.30Dattatray More on 26/06/2011.
Therefore, his evidence cannot be relied upon in the light of the evidence
of the PW.131Meer Usman Ali and PW.133API Gopale which is cogent,
trustworthy and reliable and corroborated by the panchanama
(Exh.1315).
recovery of the motorcycle (Article261) at the instance of the accused
no.4Nilesh Shedge has no relevance as in the confession made by the
accused no.5Arun Dake, he has neither stated that on 11/06/2011 (date
of the incident) the accused no.4Nilesh Shedge had come on a motorcycle
nor the accused no.5 has given registration number of the motorcycle
which was used in the crime. The said submission has no basis. The
confession made by the accused no.5Arun Dake was his voluntary
statement. PW.122DCP Dr. Mahesh Patil recorded whatever the accused
no.5Arun Dake voluntarily told him. If, while making the confession the
accused no.5Arun Dake did not give the registration number of the
motorcycle the use of which is attributed to the accused no.4Nilesh
Shedge, PW.122DCP Dr. Mahesh Patil cannot be blamed. Further, from
the confession made by the accused no.5Arun Dake it appears that on the
day of the incident the accused no.3Abhijit Shinde had come on a
motorcycle. When the accused persons saw J.Dey, the accused no.1Rohee
489
Tangappan Joseph @ Satish Kalya sat on one motorcycle which was

driven by the accused no.5Arun Dake, the accused no.4Nilesh Shedge sat
on the motorcycle of the accused no.3Abhijit Shinde as a pillion rider and
the accused no.2Anil Waghmode was the pillion rider on the motorcycle
of the accused no.6Mangesh Aagvane. The accused no.7Sachin Gaikwad
was entrusted with the duty of driving the Qualis vehicle. The prosecution
has already proved the use of three motorcycles in the incident. The
motorcycle (Article261) was recovered at the instance of accused no.4
Nilesh Shedge. Admittedly, he was not the owner of the said motorcycle.
He has not explained as to how he came to know where the said
motorcycle was parked after the incident. Some explanation was expected
from him on this point but he chose to be in denial mode. Therefore, the
learned Advocate for the accused no.4 cannot now contend that the
motorcycle (Article261) is not the same one motorcycle which was used
in the crime.
OBJECTIONS REGARDING THE RECOVERY OF THE MOTORCYCLE
(ARTICLE240) AT THE INSTANCE OF THE
ACCUSED NO.6MANGESH AAGVANE.
MH02AN4648 (Article240) at the instance of the accused no.6
Mangesh Aagvane, the prosecution has relied upon the evidence of the
panch PW.127Bhagwansingh Thakur and PW.138PI Bhosle.
722. Panch PW.127Bhagwansingh Thakur deposed that on 26/06/2011,
he was called to the Office of the Crime Branch near Crawford Market by a
Constable at around 06:30 pm. He deposed that after he went there he
was told that some panchanama was to be prepared. He deposed that one
more person was also present there. He deposed that on being asked by
the Police Officer both of them agreed to act as panch witnesses. He
490
deposed that the Officer asked him about his occupation and his address.
He deposed that the Officer told him that one person was arrested and he
was going to say something which he should hear and accordingly help in
the proceedings of panchanama. He deposed that the accused no.6
Mangesh Aagvane disclosed that he could show the place where the
motorcycle (Article240) was kept. He deposed that the Police recorded
the disclosure statement (Exh.1254) in that regard. He deposed that both
the panch witnesses and the Police Officer signed the same.
723. He deposed that thereafter, both the panch witnesses, the Police
Officer, the staff and the accused no.6Mangesh Aagvane went in a vehicle
to the Amboli Fata at Andheri and that place the accused no.6Mangesh
Aagvane told the driver to stop the vehicle. He deposed that the directions
were being shown by the accused no.6Mangesh Aagvane. He deposed
that after the vehicle was stopped, all of them got down from it and went
by walk at some distance where there was a ladies hosiery shop by name
M/s. Asha Creations. He deposed that the black colored Pulsar motorcycle
(Article240) was standing near the wall which was adjacent to the said
shop. He deposed that the accused no.6Mangesh Aagvane showed that
motorcycle. He deposed that the accused no.6Mangesh Aagvane said that
the key of the motorcycle was kept with PW.28Dattatray Chavan who was
residing in the nearby chawl and that it could be collected from his house.
He deposed that accordingly, one of the staff members brought the key
and then the motorcycle was unlocked. He deposed that the cover of the
seat was removed and some documents of the vehicle in the name of
PW.28Dattatraya Chavan were found which were then seized, sealed and
labeled with the signatures of the panch witnesses. He deposed that the
keys (Article239 colly) and the motorcycle (Article240) were also seized.
He deposed that the panchanama (Exh.1254A) was prepared in that
491
regard and their signatures were taken on it.

stated that he had gone to the Office of the Crime Branch at about 06:15
pm. He stated that he did not know how the motorcycle was taken to the
Office of the Crime Branch. He denied that the chasis number and the
engine number was noted down in the panchanama only on the basis of
the entry in the registration papers. He stated that when he had gone to
the Office of the Property Cell he had seen only one accused. He denied
that he had acted as a panch witness in many cases prior to this case. He
voluntarily stated that after the year 2011 he had acted as panch witness
in one or two cases. He denied that whenever the Police required his help
they used to telephone him.

stated that it took them about one hour to reach Amboli from the Office of
the Crime Branch. He stated that they had gone to Amboli via Dadar,
Mahim, Bandra, S.V. Road, Andheri. He stated that he did not remember
from which route they went from V.T. to Mahim. He stated that he could
not say whether they went to Dadar, from there to Sion, from Sion
Hospital they took left, went to Dharavi and from there they went to
Bandra. He stated that he could not give the details as he had forgotten
due to lapse of time. He stated that they had left the Office of the Crime
Branch, Crawford market at about 06:45 pm to 07:00 pm. He stated that it
took approximately half an hour for them to reach Bandra. He stated that
he did not know what was the approximate distance between the Office of
the Crime Branch and Bandra. He stated that they had traveled from the
road on the western side. He stated that he did not remember whether
they first went to Bandra (E) and then to Bandra (W). He stated that he
492
did not know where Bandra (E) was located. He stated that he did not
know what was the distance between Malad and Amboli. He stated that it
took about half an hour for them to reach Amboli from Bandra on that
day. He stated that they had gone on the S.V. Road but he was not sure
about the name of the road where the vehicle was stopped. He stated that
they were required to walk for about 5 minutes to reach M/s. Asha
Creations after the vehicle was stopped. He stated that after the vehicle
was stopped they went straight by walk on the same road. He stated that
he did not know the name of the shop which was on the left side or on the
right side of the shop M/s. Asha Creations. He stated that he had no
occasion to meet the owner of shop M/s. Asha Creations. He stated that
after the proceedings were completed he went to Worli to attend the
marriage of his friend. He stated that after the panchanama was written in
Marathi their signatures were taken and thereafter it was read out and
explained to them in Hindi. He stated that the motorcycle was standing
near the wall which was near the shop M/s.Asha Creations and then there
were other shops. He denied that he had signed the panchanama in the
Office of the Crime Branch at the request of the Police. He denied that on
26/06/2011 nobody produced the motorcycle nor it was seized by the
Police.
726. It has come in the evidence of PW.138PI Bhosle that on

26/06/2011, during interrogation after the arrest, the accused no.6
Mangesh Aagvane stated that he wanted to disclose some information
about the offence. He deposed that he then directed Havaldar Shri.
Chougule to call for two panch witnesses and accordingly, at around
06:30 p.m. two panch witnesses namely PW.127Bhagwansingh Thakur
and another panch witness were present in his Office. He deposed that in
the presence of the panch witnesses the accused no.6Mangesh Aagvane
493
disclosed that he could produce the motorcycle from the place where it
was kept. He deposed that the disclosure statement (Exh.1254) of the
accused no.6Mangesh Aagvane was recorded in presence of the two
panch witnesses.
727. PW.138PI Bhosle has then deposed that thereafter himself, the
accused no.6Mangesh Aagvane and the panch witnesses sat in a
Government vehicle and the accused no.6Mangesh Aagvane led them to
Solanki Chawl where there was a shop by name M/s. Asha Creations and
showed them the motorcycle (Article240) which was parked near the wall
of M/s. Asha Creations. He deposed that the said motorcycle was locked
and when they asked the accused no.6Mangesh Aagvane about its keys,
he said that the keys of the motorcycle was with PW.28Dattatray Chavan
who was residing in the Ahir Chawl which was nearby. He deposed that
the accused no.6Mangesh Aagvane called for the keys from PW.28
Dattatray Chavan and after the keys were brought the motorcycle was
opened and checked, its engine number and chasis number was noted
down. He deposed that the papers (Exh.186) of the motorcycle and the
keys were packed separately, sealed and labeled with the signatures of the
panch witnesses and himself. He deposed that the motorcycle (Article
240) was also seized and the panchanama (Exh.1254A) was prepared in
that regard. He deposed that both the panch witnesses and himself signed
the same.

stated that his role in the investigation was restricted to drawing the
panchanama only. He denied that he had prepared the panchanama as per
the directions of the Investigating Officer. He stated that he had made
enquiry with the panch witnesses whether they had acted as panch earlier
494
also and that the panch no.2 had told him that he had acted as panch in 1
2 cases. He stated that the Office of the Property Cell had only one seal.
He stated that he could not give the exact location where the vehicle was
stopped at Amboli fatak. He stated that the distance traveled by them was
not mentioned in the panchanama. But, he stated that the log book entry
was made in that regard.
729. From the evidence of panch PW.127Bhagwansingh Thakur and

PW.138PI Bhosle it is clear that the disclosure statement made by the
accused no.6Mangesh Aagvane was voluntary. There is nothing in the
evidence of panch PW.127Bhagwansingh Thakur and PW.138PI Bhosle
to suggest that the accused no.6Mangesh Aagvane was either pressurized
or coerced to make the disclosure statement. The accused no.6Mangesh
Aagvane made the disclosure statement (Exh.1254) on the same day on
which he was arrested. It was not as if the statement was recorded after
many days of his arrest so as to raise any suspicion. Also, the identity of
the accused no.6Mangesh Aagvane is duly established. The oral evidence
of panch PW.127Bhagwansingh Thakur is consistent with the evidence of
PW.138PI Bhosle and is duly corroborated by the contents of the
disclosure statement (Exh.1254).
730. The evidence of PW.127Bhagwansingh Thakur and PW.138PI

Bhosle regarding the recovery of the motorcycle at the instance of the
accused no.6Mangesh Aagvane is also consistent and is corroborated by
the contents of the panchanama (Exh.1254A) on material points. Both
these witnesses were exhaustively crossexamined but nothing adverse
could be elicited by the defence. There is nothing to suggest that PW.138
PI Bhosle was aware about that place even before they were led to that
place by the accused no.6Mangesh Aagvane.
495
731. It was argued by the learned Advocate for the accused no.6 that the
proceedings regarding the panchanama (Exh.1254A) are suspicious
because the log book entries about the distance traveled by them were not
produced before the Court. Though the above objection was raised the
learned Advocate for the accused no.6 with a lot of force, he could not
point out any provision under the law which mandates that such act is
required to be performed. In any case, it has come in the evidence of
PW.138PI Bhosle that the log book entry was made. It may be added here
that there is always a presumption in favour of the correctness of official
acts. The said presumption can be rebutted by the defence by adducing
some evidence. The defence had an option to call for the log book for the
purposes of satisfying itself. But that was not done.
732. At this stage, it may also be noted that PW.138PI Bhosle has
narrated about the route as shown by the accused no.6Mangesh Aagvane
which they followed which leaves no room for a doubt that they were led
to that place by the accused no.6Mangesh Aagvane. It is not the stand of
the defence that the route as narrated by PW.138PI Bhosle does not exist
or that it does not lead to the place near the shop M/s. Asha creations at
Solanki Chawl, Amboli fatak, Jogeshwari (W).
733. The other major ground on which recovery of the motorcycle

(Article240) was challenged is the evidence of PW.28Dattatray Chavan
who was the real owner of the said motorcycle. It was argued that PW.28
Dattatray Chavan never gave his motorcycle to the accused no.6Mangesh
Aagvane and therefore, the alleged recovery of the motorcycle (Article
240) has no value. In this regard it will be appropriate to have a look at
the evidence of PW.28Dattatray Chavan.
496
734. PW.28Dattatray Chavan has deposed that in the year 2011, the
Police took away his motorcycle because the accused no.6Mangesh
Aagvane had taken it. He deposed that the Police took away his
motorcycle on 25th (He did not remember the month.)

admitted that the Police had told him that the accused no.6Mangesh
Aagvane had taken the motorcycle and therefore they were taking it. He
admitted that he did not give the keys of motorcycle and the motorcycle to
the accused no.6Mangesh Aagvane on his own. He stated that the Police
had taken away the motorcycle on 25/06/2011. He stated that the Police
had telephoned him on 25/06/2011. He stated that the Police had come
to his area for taking the motorcycle. He admitted that on 25/06/2011, he
realized that Police had caught the accused no.6Mangesh Aagvane. He
then stated that the Police had called him to the Office of the DCB CID
Unit no.1 on 25/06/2011.
stated that the accused no.6Mangesh Aagvane did not take the
motorcycle from him in June 2011 and therefore, there was no question of
him returning it. He then stated that he did not know anything about the
motorcycle.
737. It may be noted that PW.28Dattatray Chavan was not declared

hostile by the prosecution. But, that does not mean that his evidence must
be blindly accepted. This Court can very well evaluate his evidence to find
out whether he was speaking the truth. If the evidence of PW.28Dattatray
Chavan is closely seen then it will be clear that he was knowing the
497
accused no.6Mangesh Aagvane very well. Therefore, probably for this

reason he was inclined to take his side. He has first stated that the Police
had taken away his motorcycle on the ground that the accused no.6
Mangesh Aagvane had take it for use. Now, if PW.28Dattatray Chavan
had not given the motorcycle to the accused no.6Mangesh Aagvane then
in the normal course it was expected from him that he should have
protested the action of the Police in taking away his motorcycle. After all,
motorcycles are quite expensive and no one would hand it over to the
Police or anybody else just like that. Not only that, the motorcycle (Article
240) is lying in the Court for the last seven years. The fact that PW.28
Dattatray Chavan has still not come forward to claim the possession of the
motorcycle also indicates that he was not the person who was actually
using the motorcycle at the relevant time. Otherwise, nothing prevented
him from approaching the Court for taking the custody of the motorcycle
(Article240).
738. Let's assume for a moment that PW.28Dattatray Chavan voluntarily
handed over the motorcycle to the Police. Then he must have been given
some acknowledgment in writing by the concerned Officer about the
receipt of the same. But PW.28Dattatray Chavan is silent about this.
PW.28Dattarray Chavan has then stated that the Police had telephoned
him on 25/06/2011. Now, the question is how the Police came to know
his telephone number. He has not stated anything about it. He then
changed his version and said that the Police had come to his area. He then
again changed his version and stated that the Police had called him to the
Office of the DCB CID Unit no.1 on 25/06/2011. Now, if the Police was
already in his area then why would the Police telephone and tell him to
come to their office. He has then stated that the accused no.6Mangesh
Aagvane did not take the motorcycle from him in June 2011. This would
498
mean that till June 2011, the accused no.6Mangesh Aagvane used to take
his motorcycle. He then stated that he did not know anything about the
motorcycle. He has also stated that he did not give the motorcycle and its
keys 'on his own' to the accused no.6Mangesh Aagvane. From the
evidence of PW.28Dattatray Chavan it is very much clear he was trying to
help the accused no.6Mangesh Aagvane probably for the reason that he
was knowing him very well. Therefore, his evidence cannot be relied upon
in the light of the evidence of PW.138PI Bhosle and PW.127
Bhagwansingh Thakur which is cogent, trustworthy and reliable and fully
corroborated by the panchanama (Exh.1254A).
OBJECTIONS REGARDING RECOVERY OF MOTORCYCLE (ARTICLE
233) AT THE INSTANCE OF THE ACCUSED NO.7SACHIN GAIKWAD.
MH06AH4891 (Article233) at the instance of the accused no.7Sachin
Gaikwad the prosecution has relied upon the evidence of the panch
PW.123Aslam Haji Mansuri and PW.134PI Pasalwar.
740. Panch PW.123Aslam Haji Mansuri did not support the case of the
prosecution. Therefore, he was crossexamined by the learned SPP. In
crossexamination, he stated that on 26/06/2011, the accused no.7Sachin
Gaikwad made the statement that he would point out the motorcycle and
accordingly, the disclosure statement (Exh.1204) was recorded. He stated
that he had signed the disclosure statement. He stated that thereafter the
accused no.7Sachin Gaikwad led the Police, the other panch and him to
the place where the motorcycle was kept. He stated that the accused no.7
Sachin Gaikwad took them to the lane of Chhagan Mitha Petrol Pump,
Suman Nagar, Chembur and produced the motorcycle from a place in
front of Buddha Vihar at Subhash Bose Nagar. He stated that the accused
499
no.7Sachin Gaikwad called PW.31Suresh Waghmare who was his cousin
brother and took the key of the motorcycle from him and handed over the
same to the Police. He stated that the Police packed, sealed and labeled
the documents of the motorcycle with their signatures. He stated that
himself and the other panch witness had signed the same. He stated that
the panchanama (Exh.1205) was prepared in that regard. He stated that
himself and the other panch witness also signed the same. He identified
the motorcycle (Article233), its key and the papers of the motorcycle.

stated that on 26/06/2011, a Policeman had come to him between 03:30
pm to 04:00 pm but he did not remember the exact time. He then stated
that the Policeman had come to him between 03:00 pm to 03:30 pm. He
the stated that he had gone to the Office of the Property Cell at about
05:00 pm to 05:30 pm. He stated that they left the Office of the Property
Cell by about 05:00 pm to 05:30 pm. He denied that because of that he
could not identify the motorcycle. He denied that the motorcycle which
was identified by him was not the same which was seized by the Police.
He denied that PW.31Suresh Waghmare had produced the motorcycle in
the Police Station.

stated that he had studied upto 2nd standard. He stated that he could not
read and write Marathi or English or Hindi. He stated that no case was
registered against him. He stated that prior to this case he had acted as
panch witness for the V.P. Road Police Station. He stated that he had also
acted as panch witness for the J.J. Marg Police Station and for the
Property Cell, Crime Branch. He stated that he had worked as a panch
witness on 4 to 5 occasions. He stated that prior to 26/06/2011, he had
500
not visited the Office of the Property Cell, Crime Branch.
743. It has come in the evidence of PW.134PI Pasalwar that on

26/06/2011, during interrogation after the arrest, the accused no.7
Sachin Gaikwad expressed his willingness to disclose some information
about the offence. He deposed that he then called for two panch witnesses
namely PW.123Aslam Haji Mansuri and Siddiqui Imran Niyaz Ahmed
through PN Shri Ghosalkar and in the presence of the panch witnesses the
accused no.7Sachin Gaikwad disclosed that he was ready to show the
place where the motorcycle was kept and also the motorcycle. He deposed
that the disclosure statement (Exh.1204) of the accused no.7Sachin
Gaikwad was recorded in presence of the two panch witnesses.
744. PW.134PI Pasalwar then deposed that thereafter himself, the

accused no.7Sachin Gaikwad and the panch witnesses sat in a
Government vehicle and the accused no.7Sachin Gaikwad led them to a
lane in the Buddh Vihar at Subashchandra Nagar, Chembur and showed
them the motorcycle (Article233) which was parked there. He deposed
that the accused no.7Sachin Gaikwad told them that the motorcycle
belonged to his cousin brother i.e. PW.31Suresh Waghmare. He deposed
that PW.31Suresh Waghmare handed over the keys of the motorcycle to
them. He deposed that thereafter the motorcycle was opened and checked
and the papers (Article267 colly) of the motorcycle were seized, packed,
sealed and labeled with the signatures of the panch witnesses and himself.
He deposed that the two keys (Article230) of the motorcycle were also
seized. He deposed that the panchanama (Exh.1205) was prepared in that
regard. He deposed that both the panch witnesses and himself signed the
same.
501
745. The perusal of the evidence of PW.134PI Pasalwar will show that
there is nothing to suggest that the accused no.7Sachin Gaikwad was
either pressurized or coerced to make the disclosure statement. The
accused no.7Sachin Gaikwad made the disclosure statement (Exh.1204)
on the same day on which he was arrested. It was not as if the statement
was recorded after many days of his arrest so as to raise any suspicion. His
evidence on this point is corroborated by the contents of the disclosure
statement (Exh.1204).
746. As stated earlier, PW.123Aslam Haji Mansuri did not support the
case of the prosecution in so far as the recovery of the motorcycle at the
instance of the accused no.7Sachin Gaikwad was concerned and
therefore, he was required to crossexamined by the learned SPP. The
effect of recovery not substantiated by panch witness was considered by
the Hon'ble Supreme Court of India in several matters. In the case of
Mohd. Aslam V. State of Maharashtra reported in (2001) 9 SCC 362,
the Hon'ble Supreme Court of India has held that the evidence of an Police
Officer effecting recovery u/s.27 of the Evidence Act, 1872 cannot be
stated to be vitiated on the ground that the panch witness with regard to
the said recovery turns hostile. The position of law on this aspect was
summarized by the Hon'ble Supreme Court of India in the case of
Rameshbhai Mohanbhai Koli V. State of Gujarat reported in 2010 ALL
MR (Cri) 3868 (SC). The judgment in the case of Mohd. Aslam (supra)
was also considered in that case. Paragraphs nos.23 to 25 of the said
judgment are reproduced below for ready reference:
"23. An argument was advanced about reliance based on the

evidence of investigating Officer. This Court in State of U.P. vs.
Krishna Gopal and another, (1988) 4 SCC 302 has held that
Courts of law have to judge the evidence before them by
502
applying the well recognized test of basic human probabilities.
Prima facie, public servants must be presumed to act honestly
and conscientiously and their evidence has to be assessed on its
intrinsic worth and cannot be discarded merely on the ground
that being public servants they are interested in the success of
their case [Vide State of Kerala vs. M.M. Mathew and anr.,
(1978) 4 SCC 65]
24. In Modan Singh vs.State of Rajasthan, (1978) 4 SCC 435, it
was observed that where the evidence of the investigating
Officer who recovered the material objects is convincing, the
evidence as to recovery need not be rejected on the ground that
seizure witnesses did not support the prosecution version.
Similar view was expressed in Mohd. Aslam vs. State of
Maharashtra, (2001) 9 SCC 362. In Anter Singh vs. State of
Rajasthan, (2004) 10 SCC 657, it was further held that even if
panch witnesses turn hostile, which happens very often in
criminal cases, the evidence of the person who effected the
recovery would not stand vitiated.
25. This Court has held in large number of cases that merely
because the panch witnesses have turned hostile is no ground to
reject the evidence if he same is based on the testimony of the
Investigating Officer alone. In the instance case, it is not the case
of defence that the testimony of Investigating Officer suffer from
any infirmity or doubt. [Vide Modan Singh's case (supra) Krishna
Gopal's case (supra) and Anter Singh's case (supra)."
747. In view of the above, it is clear that the evidence as to recovery need
not be rejected on the ground that panch witnesses did not support the
prosecution version. Even evidence of the Investigating Officer can be
considered for proving recovery as official acts are regularly done is a wise
presumption of law recognized by the legislature as seen from the
provisions of section 114 of the Evidence Act,1872.
748. In the light of the above, if the evidence of PW.134PI Pasalwar is
considered, then it can be said that it is consistent, reliable and is also duly
503
corroborated by the contents of the panchanama (Exh.1205) on material
points. There is nothing to suggest that PW.134PI Pasalwar was aware
about that place even before he as led to that place by the accused no.7
Sachin Gaikwad. There is also nothing to suggest that he had any grudge
against the accused no.7Sachin Gaikwad so as to falsely implicate him in
this case though he was thoroughly crossexamined.
749. It was argued by the learned Advocate for the accused no.7 that
proceedings regarding the panchanama (Exh.1205) are suspicious because
according to PW.134PI Pasalwar he was only a signatory to the said
panchanama meaning thereby that he was not the Officer who prepared
the panchanama. It is not necessary that the Police Officer should himself
note down the contents of the panchanama as more often than not they
are provided with the services of a writer and in other situations a Police
Constable may also note down the contents of the panchanama under the
supervision of the concerned Police Officer. In the present case, from the
evidence of PW.134PI Pasalwar it appears that the contents of the
panchanama were noted down by PN Shri Ghosalkar under his dictation
and then PW.134PI Pasalwar signed the same. There is no illegality in the
same. In any case, what is important are the contents of the panchanama
the genuineness of which is not in doubt.
750. The other major ground on which recovery of the motorcycle

(Article233) was challenged is the evidence of PW.31Suresh Waghmare
who was a close relative of the accused no.7Sachin Gaikwad. He claimed
to be the real owner of the motorcycle (Article233). As per the
prosecution, as the accused no.7Sachin Gaikwad was unable to purchase
the motorcycle in his name for the want of certain papers, he purchased
the same in the name of PW.31Suresh Waghmare and he was the person
504
who was actually using the motorcycle (Article233). As per the

prosecution, even at the time of the incident, it was the accused no.7
Sachin Gaikwad who was using the said motorcycle. But PW.31Sachin
Waghmare he did not support the case of the prosecution. Therefore, he
was crossexamined on behalf of the prosecution and in paragraph no.2 of
the crossexamination conducted by the learned SPP, he made the
following statement:
“While giving statement I had told the police that as Sachin

Gaikwad was not getting loan from the bank, he decided to
purchase the motorcycle in my name. The motorcycle was
purchased by me.”
751. In the crossexamination on behalf of the accused nos.1,6 and 7, he
stated that on 11/06/2011, the motorcycle (Article233) was with him
and between 02:30 pm to 03:30 pm., (the time at which the incident took
place) he had parked the motorcycle near Mankhurd Railway Station and
he had gone to the Hospital along with his wife. He stated that the Police
made enquiry with him on 24/06/2011 and at that time he came to know
that the accused no.7Sachin Gaikwad was arrested. He then made certain
other statements in favour of the accused no.7Sachin Gaikwad.
752. From the evidence of PW.31Suresh Waghmare it is quite clear that
he was trying to help the accused no.7Sachin Gaikwad who was his very
close relative. But while do so, he stated the truth by admitting the fact
that as the accused no.7Sachin Gaikwad was not getting loan from the
Bank, he decided to purchase the motorcycle in his name and accordingly
he purchased the motorcycle (Article233). Thus, it is quite clear that
though the motorcycle was purchased in the name of PW.31Suresh
Waghmare, it was the accused no.7Sachin Gaikwad who was using the
505
same. It may also be added here that according to PW.31Suresh

Waghmare the cost of the motorcycle (Article233) was Rs.86,000/ which
is quite a big amount. Considering the cost of the motorcycle, and
assuming for a moment that he was only using the said motorcycle the
natural conduct of PW.31Suresh Waghmare would have been to apply to
the Court for taking back the custody of the motorcycle. But he did not do
so. The motorcycle (Article233) is lying in the Court since the last seven
years. This conduct of PW.31Suresh Waghmare indicates that he was not
actually using the said motorcycle at the relevant time. Therefore, it will
have to be said that the recovery of the motorcycle (Article233) at the
instance of the accused no.7Sachin Gaikwad is not doubtful in any
manner.
recovery of the motorcycles at the instance of the accused no.4Nilesh
Shedge vide panchanama (Exh.1315), the accused no.6Mangesh Aagvane
vide panchanama (Exh.1254A) and the accused no.7Sachin Gaikwad vide
panchanama (Exh.1205) is doubtful as though the same were prepared at
different places but at about the same time. It was submitted that as the
Office of the Property Cell was having only one Official seal, the one and
the same seal could not have been used by three different Officers of the
Property Cell at different places for sealing the articles which were
recovered at the instance of the above named accused persons. It may be
noted that the timing of the proceedings of the panchanama (Exh.1351)
with regard to the motorcycle seized at the instance of accused no.4
Nilesh Shedge is between 05:15 pm to 06:00 pm and it was drawn by
PW.133API Gopale. The timing of the proceedings of the panchanama
(Exh.1254A) with regard to the motorcycle seized at the instance of
accused no.6Mangesh Aagvane is between 07:00 pm to 08:30 pm and it
506
was drawn by PW.138PI Bhosle. The timing of the proceedings of the

panchanama (Exh.1205) with regard to the motorcycle seized at the
instance of accused no.7Sachin Gaikwad is between 07:05 pm to 07:45
pm and it was drawn by PW.134PI Pasalwar. The papers of the
motorcycle which was recovered at the instance of accused no.4Nilesh
Shedge were kept in the labeled envelope (Exh.1287) and were sealed.
The papers of the motorcycle which was recovered at the instance of
accused no.6Mangesh Aagvane were kept in the labeled envelope
(Exh.1256) and were sealed. Similarly, papers of the motorcycle which
was recovered at the instance of accused no.7Sachin Gaikwad were kept
in the labeled envelope (Exh.1206) and were sealed. In so far as the
argument which was made, it may be noted that no explanation was
sought either from PW.133API Gopale or PW.137PI Pasalwar or PW.138
PI Bhosle as to how they got the possession of the official seal at that time
though they were questioned on the other aspects. Therefore, no adverse
inference can be drawn automatically. That apart, from the evidence of
PW.133API Gopale, PW.137PI Pasalwar and PW.138PI Bhosle though it
can be seen after the documents were seized they were placed in a packet
and then sealed they have nowhere deposed that the packet in which the
documents were kept was sealed on the spot. Therefore, it is quite possible
that the packets containing the documents were brought to their Office
and after perusing the same, the packets were sealed. Further, there is no
evidence to show that the registration papers of the three motorcycles
which were recovered at the instance of the three accused persons were
tampered with. Also, the ownership of the three motorcycles is not
disputed by anybody. As such, the objection raised by the learned
Advocate for the accused nos.6 and 7 has no basis.
507
OBJECTIONS REGARDING THE RECOVERY OF THE MOBILE PHONE
(ARTICLE228) AND GLOBAL ROAMING SIM CARD (ARTICLE229) AT
THE INSTANCE OF THE ACCUSED NO.10PAULSON PALITARA.
754. The learned Advocate for the accused no.10 has raised several
objections with regard to the recovery of the mobile phone (Article228)
and Global Roaming SIM card (Article229) at the instance of accused
no.10Paulson Palitara. However, as this Court has already held above that
no offence is made out against the accused no.10Paulson Palitara as there
is no substantive evidence against him to show his involvement in the
murder of J.Dey, it is not necessary to deal with the objections raised by
the learned Advocate for the accused no.10 regarding the recovery of the
mobile phone (Article228) and the Global Roaming SIM card (Article
229) as in absence of any substantive evidence against the accused no.10
Paulson Palitara the recovery of these articles is of no use to the
prosecution.
OBJECTIONS REGARDING THE INTERCEPTION OF PHONE CALL
MADE BY THE ACCUSED NO.12CHHOTA RAJAN TO
PW.90MANOJ SHIVDASANI.
755. According to the learned Advocate for the accused no.12 the CD
(Exh.777) in which the intercepted conversation between the accused
no.12Chhota Rajan and PW.90Manoj Shivdasani was copied from the
server of 'XProject' was prepared after unexplained delay of about 5
months after the phone call was intercepted which makes the case of the
prosecution suspicious. In this regard, it is necessary to have a look at the
evidence of PW.74API Sawant. The perusal of his evidence will show that
the intercepted conversation was directly recorded in the server. He has
further deposed that for logging on to the server he was required to use
his user name and password. Thus, no unauthorized person could have
access to the server. In the crossexamination, it was brought on record
508
that the calls were generally correctly recorded. It was further brought on
record that the calls which were recorded in the server cannot be
manipulated in any manner. Therefore, from the evidence of PW.74API
Sawant, it is very much clear that the record of the phone call in question
could not be tampered with. That apart, no explanation was sought from
PW.74API Sawant as to why he did not immediately prepare the CD
(Exh.777) after the conversation was intercepted. Therefore, the fact that
the CD (Exh.777) containing the record of the conversation between the
accused no.12Chhota Rajan and PW.90Manoj Shivdasani after about 5
months is inconsequential.
OBJECTIONS REGARDING THE CDRS AND MOBILE NUMBERS.
756. The evidence led by the prosecution with regard to validity of the
various CDRs relied upon by it is generally and specifically was challenged
by the defence on various grounds. They are discussed below.
757. It was firstly submitted that the various CDRs relied upon by the
prosecution have no value as the prosecution has not verified the
complicity of the persons who were in contact with the various mobile
number, the use of which is attributed to the accused persons. The said
submission has no basis. Through the evidence of various Investigating
Officers, the prosecution has proved that during the course of
investigation, the complicity of the accused persons who are before this
Court and the other accused who are wanted in this case was established.
Under such circumstances, the Investigating Officers very rightly probed
the role of the accused persons in this case and it was not necessary for
them to interrogate each and every person who had received any phone
call from the mobile numbers, the use of which is attributed to the various
accused persons.
509
758. It was argued that though the prosecution has relied upon various
CDRs in support of its case, some of the requisitions (u/s.91 of
Cr.P.C.,1973) issued by the Investigating Officers to the Nodal Officers of
the various service providers were not proved and as such the CDRs
cannot be used by the prosecution in support of its case. The said
submission has no merit. It needs to be noted that most of the requisitions
which were issued to the various Nodal Officers were filed along with the
chargesheet. Some of them were marked for identification purposes
during the course of the evidence of the Nodal Officers. The Investigating
Officers who had issued the requisitions were also examined. They
deposed about sending the requisitions to the Nodal Officers. But in some
cases, the learned SPP failed to show the requisitions to the concerned
Investigating Officer. As a result of which those requisitions could not be
exhibited. That was an error on the part of the learned SPP. But that does
not mean that the evidence in the form of the CDRs should be discarded
on that ground alone especially when the replies issued by the various
Nodal Officers furnishing the necessary details of the mobile numbers is
duly proved through them.
759. It was next argued that in the replies issued by the various Nodal
Officers to the requisitions issued to them, the period/ duration of which
the CDRs were provided and the Crime number in connection with which
the CDRs were furnished is not mentioned and as such the CDRs are not
reliable. It needs to be noted that the replies issued by the Nodal Officers
to the requisitions issued to them were accompanied with the necessary
subscriber details and the CDRs. The perusal of any of the CDR will show
that the period for which the details were provided is mentioned at the top
of the CDR. That apart, one wonders how mere nonmentioning of the
510
period for which the CDRs were being provided affects the authenticity of
the same. In so far as the nonmentioning of the Crime number in
connection with which the CDRs were being provided, it is not at all
necessary to mention the same. The information about the CDRs is always
confidential. The Nodal Officer is not supposed to know in connection
with which crime the information is being called for. If such information is
divulged, there is always a possibility of leaking of such information
thereby adversely affecting the investigation.
760. It was next argued that the Nodal Officers retrieved the CDRs in
'.csv' format from their server and there is every possibility of tampering
with the CDRs to suit the case of the prosecution. The said submission has
no basis. Almost each and every Nodal Officer who has been examined in
this case has specifically stated that once the necessary information is fed
in the server, the CDRs were automatically generated without any human
intervention. They have specifically deposed that the entries in the CDRs
cannot be edited. During the course of the evidence of the Nodal Officers,
the defence could not point out a single entry in the various CDRs (In all
there are about 56 CDRs on the record) from which it could be gathered
that the CDR can be manipulated in any manner. That apart, the Nodal
Officers who were examined on behalf of the prosecution were
independent witnesses who had no interest in this case. They had no
motive to manipulate any record of their Company.
761. It was then argued that the fact that the fields in the CDR containing
information can be added or deleted itself shows that the CDRs can be
manipulated. It was also argued that the fact that some of the Nodal
Officers had also furnished the information (CDRs) on email to the
Investigating Officer also does not rule out the possibility of tampering
511
with the CDRs. The above submissions have no basis as they are based on
conjectures and surmises. It must be stated that though the defence is
entitled to argue that the case of the prosecution is doubtful, the doubts
should not be fanciful as is seen in the present case. Doubt should be
created on the basis of the material before the Court and not on the basis
of what is in the mind of the crossexaminer. The perusal of the evidence
of the various Nodal Officers will show that the defence was always shy to
ask any direct question about the probability of manipulation of the data
in the CDRs. In so far as the above objections are concerned none of the
Nodal Officers was asked as to why they were sending the CDRs to the
Investigating Officer on email. Similarly, as stated earlier, almost all the
Nodal Officers have deposed that the data in the CDRs cannot be edited.
Therefore, there is no question of any manipulation.
762. In so far as the evidence of PW.110Nodal Officer Reliance is

concerned, the same was sought to be doubted by suggesting that he had
furnished the necessary details to the Investigating Officer even before the
requisition in that regard was issued to him. The said submission is based
on incorrect reading of the evidence of PW.110Nodal Officer Reliance. In
paragraph no.9 of the deposition, PW.110Nodal Officer Reliance has
clearly stated that he had furnished the information on email prior to
receiving the requisition from PW.142API Datir as a requisition was first
received by him on email of Commissioner's Office and accordingly the
details were furnished. No fault can be found with the conduct of PW.110
Nodal Officer Reliance.
763. In so far as the evidence of PW.113Nodal Officer Aircel is

concerned, it was argued that though the guidelines (Exh.1003) issued by
the Department of Telecommunications provide that the requisite
512
information in the form of the CDRs should be furnished in the format as
prescribed in the guidelines (Exh.1003) i.e. information should be
furnished in 13 mandatory fields, PW.113Nodal Officer Aircel has on his
own given certain extra information which can be only done by editing the
data. On the basis of the above, it was argued that the CDRs furnished by
PW.113Nodal Officer Aircel are prone to tampering. The said submission
has no basis. PW.113Nodal Officer Aircel was an independent witness. He
had no reason to furnish any false record to the Investigating Officer. Also,
the guidelines (Exh.1003) nowhere mandate that the required information
should be furnished in 13 mandatory fields only. It only means that
whenever such information is furnished it should always give the details
with regard to the 13 fields which are mentioned in the guidelines though
the other extra information may or may not be furnished by the service
provider. The perusal of the CDRs (for eg. Exh.991) will show that it
contains all the necessary information which the service provider is
required to furnish as per the guidelines (Exh.1003). Just because
PW.113Nodal Officer Aircel has chosen to furnish some extra information
does not by any stretch of imagination mean that the data is manipulated.
The value of the CDRs could have been questioned had PW.113Nodal
Officer Aircel failed to furnish the information which was mandatory as
per the guidelines (Exh.1003). Such is not the case either with Aircel or
any other service provider. Similarly, the fact that PW.113Nodal Officer
Aircel has deposed that his Company is required to furnish the details of
cell IDs to all security agencies every month is also no reason to suspect
the case of the prosecution as it is a standard procedure followed by all
service providers and the same is done in view of the guidelines
(Exh.1103) issued by the Department of Telecommunications. The
defence cannot object to the same.
513
764. It was then argued that the possibility of tampering with the list

containing the physical addresses of the cell IDs which was filed on record
by the Nodal Officers of the respective service providers cannot be ruled
out as the same are manually prepared. Again, this objection appears to
have been taken just for the sake of it. The list containing the physical
addresses of the cell IDs is always prepared manually. During the course of
the trial, when these lists were produced by the Nodal Officers of the
respective service providers, a copy of the same was supplied to each of
the defence Advocates. If they had any genuine doubt about the
correctness of the physical addresses of the cell IDs mentioned in the list,
they could have very well got the same verified. But that was not done.
Now, the defence cannot turn around and cast a doubt about the
genuineness of the physical addresses mentioned in the list.
765. In so far as the CDR (Exh.909) of the mobile no.8655292230 which
is proved by the prosecution through the evidence of PW.108Nodal
Officer TATA is concerned, it was argued that the same cannot be used as
the evidence of PW.108Nodal Officer TATA shows that as per the system
of their company though the details of all the calls were recorded and
noted in a switch and were extracted as and when required, he has also
admitted that the Senior Manager (Switch) used to operate the switch and
he had nothing to do with the operation of the switch. The above
submission has no basis. PW.108Nodal Officer TATA has specifically
deposed that as a Nodal Officer it was his duty to furnish the information
about the call details of the required mobile numbers to the Law
Enforcement Agencies. That part of his evidence was not shattered in his
crossexamination. As per section 65B(4) of the Evidence Act,1872 a
certificate can be issued by any person occupying a responsible position in
relation to the operation of the relevant device or the management of the
514
relevant activities. PW.108Nodal Officer TATA was a person holding

responsible position in relation to the master computer though he may not
have been the only person holding the responsible position in relation to
the master computer. Hence, he had the authority to issue the certificate
(Exh.908). Therefore, the CDR (Exh.909) can very well be read in
evidence.
766. It was then argued that some of the Nodal Officer have produced
the certificate u/s.65B of the Evidence Act,1872 during the course of
recording their evidence in this case in the year 2017 though the CDRs
were furnished by the Nodal Officers to the Investigating Officers in the
year 2011 itself. In this regard, it needs to be stated that the present
position of the law is that the certificate u/s.65B of the Evidence Act,1872
can always be produced at a later stage of the trial.
767. At this stage, it may be stated that it has come in the evidence of
PW.113Nodal Officer Aircel that the format of the certificate u/s.65B of
the Evidence Act,1872 is fed and stored in their computer and whenever
required they take a printout of the same after filling in the necessary
details. There is nothing wrong in the above statement in as much as it is
not the stand of the defence that what is fed is not correct or that the
certificates are signed by PW.113Nodal Officer Aircel without first
verifying whether the contents of the certificate are in consonance with
the requirements of the law or not. It is also not the stand of the defence
that the certificates were issued without verifying the conditions which are
mentioned in section 65B(2) of the Evidence Act,1872. Therefore, the
validity of the certificates u/s.65B of the Evidence Act, 1872 cannot be
doubted on this ground.
515
768. In so far as the evidence of PW.113Nodal Officer Aircel is

concerned there is one minor discrepancy in the sense that vide requisition
(Exh.1072) dated 30/06/2011, PW.142API Datir had directed PW.113
Nodal Officer Aircel to furnish the subscriber details and the CDRs of the
mobile numbers used by the accused nos.2 and 7. PW.113Nodal Officer
Aircel had furnished the necessary details to PW.142API Datir vide reply
(Exh.990) dated 24/08/2011. But inadvertently the date '27th July 2011”
was typed in the reference of the reply instead of the date “30/06/2011”
though the outward number and the other contents were correct.
According to the learned Advocate for the accused nos.1,6 and 7 the
discrepancy was major and fatal to the case of the prosecution. It may be
noted that it has come in the evidence of PW.113Nodal Officer Aircel that
they used to receive many requisitions every day. He has explained that
there may be a typographical error in writing the date which cannot be
ruled out considering the fact that they used to receive numerous
requisitions every day and while drafting reply such mistakes are not
unusual. There is no need to read much into this discrepancy especially
because the perusal of the reply (Exh.990) will show that it was issued in
response to the requisition (Exh.1072) only.
as the date of activation of the mobile no.9768114422 is not mentioned in
the customer application form (Exh.1070), it cannot be said that the said
mobile number was active at any time prior to the incident or at the time
of the incident or any time thereafter and therefore, it cannot be said that
the accused no.7Sachin Gaikwad was actually using the said mobile
number. The submission has no basis. Firstly, there is no requirement of
law that the date of activation of the mobile number must be mentioned in
the customer application form. Further, PW.113Nodal Officer Aircel has
516
clearly stated that as per the guidelines of the Department of

Telecommunications, the date on which the Distributor authenticates the
documents of the customer is the date of activation of the mobile number.
In the present case case, the date of authentication was 11/11/2009. The
fact that when PW.113Nodal Officer Aircel offered to produce the
relevant guidelines issued by the Department of Telecommunications the
learned Advocate for the accused nos.1,6 and 7 did not ask him to
produce the same further shows that the above statement made by him
was correct. That apart, the perusal of the CDR (Exh.991) clearly shows
that the said mobile number was very much active during the period
01/05/2011 to 23/06/2011. Further, as the SIM card (Article140) of the
said mobile number was recovered from the accused no.7Sachin
Gaikwad, the burden was upon him to show that the said SIM card was
not active during the period mentioned above. But he failed to discharge
the said burden.
770. The correctness of the various CDRs was also sought to doubted on
the ground that the CDRs were not retrieved on the basis of the IMEI
numbers of the mobile handsets and the CDRs do not show the exact
place where the subscriber was found to be roaming. In so far as the
objection regarding nonretrieval of the CDRs on the basis of IMEI
numbers of the mobile handsets is concerned, the defence has not pointed
out how the said fact has affected the correctness of the entries in the
CDRs which are available on the record. That apart, none of the
Investigating Officers was asked anything about it. It was also not shown
how it has prejudiced the defence. Hence, the objection is not sustainable.
In so far as the second aspect is concerned, it needs to be noted that on
the basis of a CDR the exact location of a person cannot be found. A
mobile tower covers an area of anything between 500 meters to 1 km or
517
may be more. Each mobile tower in a particular area is given a cell ID for
its identification. If a particular mobile number is used in an area which is
covered by a particular mobile tower then in the CDR the cell ID of that
mobile tower will be reflected and on the basis of the same, the location of
a particular customer can be gathered in that 'area'. The cell ID provides
the probable location of the customer and after the same is found the
Investigating Officer can find out the exact location of the customer after
physically searching that area. Therefore, the submission made on this
point is required to be rejected.
771. It was then argued that the CDR (Exh.991) cannot be relied upon as
according to PW.113Nodal Officer Aircel though the mobile
no.9768114422 was a prepaid number the entry marked 'f' in the CDR
(Exh.991) shows that the said mobile number was converted into a post
paid number. It was submitted that as per the CDR (Exh.991) the
customer was in roaming and in view of the evidence of PW.113Nodal
Officer Aircel that for converting a prepaid connection into a postpaid
connection and vice versa the customer has to be in the home network, no
value can be attached to the CDR (Exh.991). The said submission has no
basis. PW.113Nodal Officer Aircel has explained what might have
happened. He has stated that as the customer was in roaming the call
related information received from the other circle may have shown the
customer to be a postpaid customer instead of a prepaid customer.
PW.113Nodal Officer Aircel was not confronted with any other material
to show that the explanation furnished by him was not correct. Therefore,
it cannot be said that the CDR (Exh.991) is not reliable. In any case, for
the purposes of the present case, what is important is that whether the
SIM card of the mobile no. 9768114422 was in use at the relevant time or
not and not whether the connection was a prepaid or postpaid connection.
518
772. It was next argued that though PW.113Nodal Officer has stated
that the cell IDs are required to have minimum 5 digits, some of the cell
IDs which are mentioned in the CDR (Exh.991) have only 4 digits. On the
basis of this, it was submitted that the CDR (Exh.991) is a tampered
document. The said submission has no basis. The cell IDs are numbered
for the purposes of the convenience of the service provider as from the cell
ID the physical address of the place where the mobile tower is located can
be ascertained. The learned Advocate for the accused nos.1,6 and 7 could
not point out as to how the fact that certain cell IDs have only 4 digits has
affected the corresponding physical addresses of the cell IDs. That apart,
there are no Rules which say that the Cell IDs must always contain
minimum 5 digits.
773. The authenticity of the CDRs produced by the prosecution was also
challenged on the ground that the CDRs do not show any entry regarding
the messages regarding recharging of the prepaid mobile number,
promotional SMS etc. In so far as message regarding recharge of the
mobile number is concerned, the same will be received by the customer
only when the customer recharges the mobile number and only then such
SMS will be reflected in the CDR. It is not the case that any of the accused
had recharged his mobile number at that time. Therefore, the messages in
that regard were not reflected in the relevant CDRs. With regard to the
receipt of promotional SMS also, they will be reflected in the CDR only if
the service provider sends the same. No questions were asked to the Nodal
Officers on this point. It also depends upon the fact whether the customer
has activated the 'Do not disturb' service on his mobile phone. If the
customer has activated such service then surely he will not receive any
promotional SMS on his mobile number.
519
774. It was next argued that the various CDRs produced by the
prosecution cannot be relied upon as there is difference in the last digit of
the IMEI number found on the handsets which were seized from the
accused persons and the last digit of the IMEI number which is recorded in
the various CDRs which changes the identity of the mobile phones and as
such the accused persons cannot be linked with the use of those mobile
phones.
775. The International Mobile Equipment Identity number (IMEI) (14

digits plus a check digit) or IMEISV number (14 digits plus two software
version digits) includes information on the origin, model and serial
number of the device. The model and origin comprise initial 8 digit
portion of the IMEI/SV known as the Type Allocation Code (TAC). The
remainder of the IMEI is a manufacture code defined with a Luhn check
digit at the end. In so far as the present case, is concerned, it has been
brought on the record through the evidence of the various Nodal Officers
that the system automatically generates the last digit of the IMEI as '0'. It
has also come on the record that the identity of a mobile phone can be
ascertained from the first 14 digits of the IMEI number. The above facts
are sufficient to take care of the argument made by the learned Advocate
for the accused nos.1,6 and 7 on this point. However, in order to
understand this point better it will be proper to make a note of Luhn
algorithm. The understanding of the Luhn algorithm will show that the
identity of the mobile handset does not change if the last digit of the IMEI
number is reflected in the CDR as '0'.
776. Luhn algorithm calculates digit sequence checksum (mod 10),

calculates validation digit (the digit to be appended to the digit sequence
520
to make whole sequence checksum equal to zero). The Luhn algorithm
was developed by German computer scientist Hans Peter Luhn in 1954. It
calculates simple checksum formula used to validate identification number
such as credit card numbers and IMEI numbers. The algorithm was
designed to protect against accidental errors, such as a digit mistyping. It
will detect any singledigit error, as well as almost all transpositions of
adjacent digits. It will not, however, detect transposition of the twodigit
sequence 09 to 90 (or vice versa). The calculator below gives Luhn
checksum of the given digit sequence. The sequence is considered valid if
the checksum mod 10 equals to zero. It also gives the next check digit to
be appended at the end of source sequence to form valid number
according to Luhn algorithm. The formula is quite simple: to calculate
Luhn checksum one needs to sum all odd digits (calculating from right to
left, so last digit is considered N1) plus sum of all even digits multiplied by
2, if the product of multiplication is greater than 9 one must subtract 9. If
the last digit of the checksum is zero, the whole sequence is valid. To
produce validation digit one can simply append "0" to source sequence and
calculate Luhn checksum again. If last digit of the obtained checksum is
zero then the validation digit is also zero, otherwise validation digit can be
obtained by subtracting last checksum digit from 10.
How the last digit of any IMEI number is calculated.
777. The last number is also called a check digit and can be calculated by
using the Luhn algorithm. One has to note down the first 14 digits of IMEI
number from left side. One can get this displayed on the screen of the
phone by typing *#06#. As a test case, let's consider the IMEI number
354865047936636 of the mobile phone (Article75) which was recovered
from the accused no.1Rohee Tangappan Joseph @ Satish Kalya. In the
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CDR (Exh.972), the said IMEI number is reflected as 354865047936630.
The last (15th) digit can be found out by calculation using first 14 digits.
Step 1 : Note down first 14 digits of IMEI number.
Step 2 : Multiply alternate digits by 2 starting from right hand side.
Step 3 : Add digits of each cell.
Step 4 : Added result.
Step 5 : Add digits of all cells.
Step 1 3 5 4 8 6 5 0 4 7 9 3 6 6 3
Step 2 3 10 4 16 6 10 0 8 7 18 3 12 6 6
Step 3 3 1+0 4 1+6 6 1+0 0 8 7 1+8 3 1+2 6 6
Step 4 3 1 4 7 6 1 0 8 7 9 3 3 6 6
Step 5 3+1+4+7+6+1+0+8+7+9+3+3+6+6
Total Sum =64
Next higher value of 64 in multiple of 10 is 70.
So the desired last digit is 7064= 6. It matches with the original IMEI
number.
778. This is the reason why the last digit is always reflected as '0' in the
CDRs. Thus, in view of the above, it is clear that the objection raised by
the learned Advocate for the accused nos.1,6 and 7 about the authenticity
of the CDRs is without any basis.
779. It was next argued that the CDRs are not reliable for the reason that
though the call details were called by the Investigating Agency for a
particular period, the call details of each date during that period are not
reflected in the CDRs. The said submission has also no basis. When the
details are called for, the record will show only dates on which the phone
calls/ SMS were made or received. The dates on which there was no
activity will not be reflected in the CDRs. In this regard, let's consider the
522
example of a pass book of Bank. Whenever the customer updates the

entries in his pass book only the dates on which there is some activity in
the account and the corresponding activity will be reflected in the pass
book.
780. It was then argued that the CDRs cannot be read in evidence as in
the certificates which were issued u/s.65B of the Evidence Act,1872 by the
various Nodal Officers the date of which the printout of the CDR was
taken, the crime number in relation to which the certificates were issued,
the number of pages of the CDR and the period for which the information
was being furnished was not mentioned. It was also submitted that the
Nodal Officers have nowhere specifically stated in the certificates that the
same were prepared by them and that their contents were correct. It may
be noted that section 65B of the Evidence Act,1872 does not say that all
the above details should be mentioned in the certificate u/s.65B of the
Evidence Act,1872. The statements which are required to be mentioned in
the certificate are provided in section 65B(4) of the Evidence Act,1872.
The various certificates which are issued u/s.65B of the Evidence Act,1872
by the Nodal Officers fulfill the necessary requirements of the law. Hence,
the submission stands rejected.
781. In so far as the CDR (Exh.1112) of the SIM card (Article77) of the
international no.+447924557108 is concerned, it was submitted that the
same is suspicious as the printout of the same was taken on 28/07/2011
and the certificate (Exh.1111) u/s.65B of the Evidence Act,1872 was
prepared on 27/07/2011 itself suggesting that the documents were
already prepared to implicate the accused no.1Rohee Tangappan Joseph
@ Satish Kalya. In this regard, if the evidence of PW.121Nodal Officer
Vodafone is seen then it will be clear that he has explained that the error
523
in stating the date had occurred inadvertently. The explanation is

reasonable and needs to be believed. It has come in the evidence of
PW.121Nodal Officer Vodafone that on daily basis they received several
requisitions from the Law Enforcement Agencies directing them to furnish
the necessary information of certain mobile numbers. Therefore, it is quite
possible that while signing the reply, inadvertently wrong date may have
been mentioned. It can happen to anybody. In any case, this does not
affect the correctness of the contents of the CDR (Exh.1112) which is for
the period 01/01/2011 to 25/06/2011.
782. It was then argued that though the prosecution has claimed that the
SIM card of the international no.+447924557108 was seized from the
accused no.1Rohee Tangappan Joseph @ Satish Kalya at the time of his
arrest, the personal search and arrest panchanama (Exh.493) does not
show that the SIM card of the no.+447924557108 was seized and
therefore, the same cannot be used to connect the accused no.1Rohee
Tangappan Joseph @ Satish Kalya with the use of the same. It may be
noted that in the personal search and the arrest panchanama (Exh.493)
the serial number of the SIM card (Article77) is mentioned as
8923418450000035108. During the crossexamination of PW.136PI Kale
it was brought on the record that the accused persons themselves had
given the mobile numbers. It is also necessary to note that during cross
examination of PW.136PI Kale it was not suggested to him that the serial
number which is mentioned on the SIM card (Article77) does not
correspond to the international mobile no.+447924557108. In view of the
same, the argument advanced by the learned Advocate for the accused
no.1 on this point cannot be accepted. That apart, softwares are available
with the cybercell department and by feeding the serial number of the SIM
card the mobile number can be generated. Further, during the
524
investigation, the said SIM card was sent to the FSL,Kalina for analysis and
after the analysis the CA report (Exh.242) was issued. The said report
shows that the SIM card (Article77) bearing serial
no.8923418450000035108 [which is mentioned in the panchanama
(Exh.493)] corresponds to the international no.+447924557108.
783. The learned Advocate for the accused no.5 argued that the use of
the mobile no.8652449019 cannot be attributed to the accused no.5Arun
Dake as there is no evidence to show that he was using the same. Reliance
was placed on the evidence of PW.16Sanjay Kamble who has stated that
he had no connection with that mobile number and that he had given his
document i.e. copy of driving license to PW.99Vijay Chauhan who has
also stated that he did not know anything about the mobile
no.8652449019. It may be noted that PW.99Vijay Chauhan did not
support the case of the prosecution. However, it has come in the evidence
of PW.16Sanjay Kamble that he had given his documents to PW.99Vijay
Chauhan prior to 45 months from 03/09/2011 and by using the said
document, PW.99Vijay Chauhan had purchased the SIM card of mobile
no.8652449019. There is no reason to disbelieve the statement made by
PW.16Sanjay Kamble. That apart, through the confession made by the
accused no.5Arun Dake which is a substantive piece of evidence under
MCOC Act,1999 the prosecution has already proved that the mobile
nos.8652449019 and 8652490277 were being used by the accused no.5
Arun Dake till 10/06/2011. Hence, the objection raised by the learned
Advocate for the accused no.5 cannot be sustained.
ANALYSIS
784. Before analyzing the evidence led by the prosecution in support of
the substantive evidence, it may be stated that the rule of prudence
525
namely requiring corroboration of the substantive evidence does not mean
that each and every circumstance should be separately and independently
corroborated. It is sufficient if there is general corroboration of the
important incidents, just like in the case of an approver's evidence and it is
not necessary that the corroborative evidence itself should be sufficient for
conviction.
ANALYSIS OF THE CORROBORATIVE EVIDENCE WITH RESEPCT TO
THE CONFESSION MADE BY THE ACCUSED NO.5ARUN DAKE.
785. The fact that on 07/06/2011, J.Dey had gone to the Uma Palace Bar
and Restaurant, LBS road, Mulund along with one person in the evening
time and that he was with the deceased accused no.8Vinod Asrani at that
place is duly corroborated by the evidence of PW.7Ms.Subha Sharma,
PW.56Dr.Shivaji Kachare, PW.60Mahesh Singh, PW.73Sanjay Prabhakar
and PW.77Sanjeev Devasia. The conjoint reading of the evidence of all
these witnesses clearly shows that on 07/06/2011, in the evening J.Dey
had gone to the Uma Palace Bar and Restaurant, LBS road, Mulund where
he met the deceased accused no.8Vinod Asrani and had liquor with him.
Their evidence corroborates the statement made by the accused no.5Arun
Dake in his confession on this point.
786. It has come in the confession made by accused no.5Arun Dake that
on 07/06/2011 between 08:30 pm to 11:45 pm he was near the Uma
Palace Bar and Restaurant, LBS Road, Mulund along with the accused
no.2Anil Waghmode. The CDR (Exh.958) of the mobile no.8652580503
and the CDR (Exh.961) of mobile no.8652449019 which were being used
by the accused no.5Arun Dake at that time corroborates the fact that on
07/06/2011, at 08:20 pm to 11:06 pm he was near Deep Mandir offAgra
Road, next to Johnson & Johnson, Mulund (West) area (physical address
as per cell ID list Exh.986) which is near to the Uma Palace Bar and
526
Restaurant, LBS Road, Mulund.
787. It has come in the confession made by the accused no.5Arun Dake
that on 10/06/2011, when he went to the Andheri railway crossing along
with the accused no.3Abhijit Shinde, the accused no.4Nilesh Shedge and
the accused no.7Sachin Gaikwad at about 07:30 am, the accused no.2
Anil Waghmode also came there in a Qualis vehicle along with the accused
no.1Rohee Tangappan Joseph @ Satish Kalya. It has further come in the
confession made by the accused no.5Arun Dake that on 11/06/2011 also
(date of the incident) the Qualis vehicle used at the time of the incident
and the accused no.7Sachin Gaikwad was driving the same. The fact that
the Qualis vehicle (Article236) was recovered at the instance of the
accused no.2Anil Waghmode after the incident and the fact that he has
failed to give any satisfactory explanation about the location of the said
Qualis vehicle (Article236) on 10/06/2011 and 11/06/2011 though he
has admitted the ownership of the said vehicle further supports the case of
the prosecution that the Qualis vehicle (Article236) was the same vehicle
which was used in the incident.
on 10/06/2011 he along with the accused no.3Abhijit Shinde, the
accused no.4Nilesh Shedge and the accused no.7Sachin Gaikwad went
near the railway crossing of Andheri at about 07:30 am where they met
the accused no.1Rohee Tangappan Joseph @ Satish Kalya, the accused
no.2Anil Waghmode and the accused no.6Mangesh Aagvane and from
there all of them went to Amrut Nagar Bus depot, Ghatkopar (West) at
about 08:30 am. It has further come in the confession made by the
accused no.5Arun Dake that they waited there for J.Dey till about 12:30
pm in the afternoon but as J.Dey did not come they all went to Peninsula
527
Chamber, Lower Parel (where the Office of J.Dey was situated). The CDRs
of the mobile numbers used by the accused no.1Rohee Tangappan Joseph
@ Satish Kalya, the accused no.5Arun Dake, the accused no.6Mangesh
Aagvane, the accused no.7Sachin Gaikwad corroborate the above fact.
The CDR (Exhs.923 and 1112) of mobile no.+447924557108 which was
recovered from the accused no.1Rohee Tangappan Joseph @ Satish Kalya
not only shows that on 10/06/2011 he was in Amrut Nagar, Ghatkopar
area and then in lower Parel area (It take about 2 minutes to reach
Peninsula Chamber from Currey Road) (physical address as per cell ID list
Exh.1096) but it also shows he was in continuous contact with the accused
no.12Chhota Rajan on phone on the number 3444 (CDR Exh.1112).
Similarly, the perusal of the CDR (Exh.1048) of the mobile
no.9867464129 which was also used by the accused no.1Rohee
Tangappan Joseph @ Satish Kalya also shows that on that day he was in
the Amrut Nagar, Ghatkopar area (physical address as per cell ID list
Exh.1172) since morning from about 08:30 am till 12:16:55 pm.
Thereafter, at around 01:14:39 pm he received a phone call from the
number 3444 which was made by the accused no.12Chhota Rajan and
the duration of the call was 37 seconds. Further, at around 03:37 pm he
was in the lower Parel area (physical address as per cell ID list Exh.1172).
The perusal of the CDR (Exh.963) of the mobile number 8652490277 and
the CDR (Exh.1035) of the mobile no.9987017977 which were used/
recovered by/from the accused no.5Arun Dake shows that on
10/06/2011 at around 08:05 am he was at Andheri and between 08:22
am to 03:00 pm he was in the area of Amrut Nagar, Ghatkopar (physical
address as per cell ID list Exh.986). Similarly, the perusal of the CDR
(Exh.1039) of mobile no.9967844960 recovered from the accused no.6
Mangesh Aagvane shows that on 10/06/2011, at around 12:23:50 pm to
03:42:34 pm he was also in the area of Golibar Road, Ghatkopar and then
528
he went to Lalbaug, Currey Road, Mumbai which is next to Lower Parel
(physical address as per cell ID list Exh.1172). The perusal of the CDR
(Exh.1100) of the mobile no.9833625491 which was registered in the
name of the accused no.6Mangesh Aagvane shows that on that day at
around 03:14:01 pm he was in lower Parel area (physical address as per
cell ID list Exh.1096). The CDR (Exh.991) of the mobile number
9768114422 which was recovered from the accused no.7Sachin Gaikwad
shows that on 10/06/2011 from 08:31:11 am till 12:18:08 pm he was in
the Amrut Nagar area, Ghatkopar (West), Mumbai (physical address as
per cell ID list Exh.1074).
that on 11/06/2011 in the morning he had called the accused no.7Sachin
Gaikwad with his motorcycle. Thereafter, he went along with accused
no.4Nilesh Shedge near the railway crossing of Andheri. At that place, the
accused no.3Abhijit Shinde also came there with his motorcycle. It has
also come in the confession that the accused no.1Rohee Tangappan
Joseph @ Satish Kalya, the accused no.2Anil Waghmode and the accused
no.6Mangesh Aagvane also came there and from there all of them went
to the RCity Mall, Amrut Nagar at Ghatkopar where the accused no.7
Sachin Gaikwad had directly come on his motorcycle. The above
statements are duly corroborated by the relevant CDRs. The CDR
(Exh.1048) of the mobile no.9867464129 which was used by the accused
no.1Rohee Tanagappan Joseph @ Satish Kalya shows that on
11/06/2011 from about 09:13 am to 01:57 pm he was in the Amrut Nagar
area of Ghatkopar (physical address as per cell ID list Exh.1172). The CDR
(Exh.1035) of the mobile no.9987017977 which was recovered from the
accused no.5Arun Dake shows that on 11/06/2011 from about 08:00 am
to 02:00 pm he was also in Amrut Nagar area of Ghatkopar (physical
529
address as per cell ID list Exh.986). Similarly, the perusal of the CDR
Mangesh Aagvane shows that on 11/06/2011, at around 09:24:11 am to
01:40:47 pm he was also in the Amrut Nagar, Ghatkopar area (physical
address as per cell ID list Exh.1172). The perusal of the CDR (Exh.991) of
mobile no.9768114422 recovered from accused no.7Sachin Gaikwad
shows that on 11/06/2011 from 08:21:45 am to 02:09:37 pm he was also
in Amrut Nagar, Ghatkopar (West) area (physical address as per cell ID
list Exh.1074).
790. It has come in the confession of accused no.5Arun Dake on the
same day (11/06/2011) at around 01:30 pm, he saw J.Dey driving his
motorcycle and then all of them started following J.Dey. It has further
come in his confession that after driving for some time J.Dey entered the
Hiranandani area and they all followed him and when J.Dey was near the
D'Mart Shopping Mall the accused no.1Rohee Tangappan Joseph @
Satish Kalya fired the first bullet on the back of J.Dey. The perusal of the
CDR (Exh.1048) of the mobile no.9867844960 which was used by the
accused no.1Rohee Tangappan Joseph @ Satish Kalya shows that on
11/06/2011 between 02:10:44 pm to 02:54:30 pm he was in Powai area
(physical address as per cell ID list Exh.1172). The perusal of the CDR
(Exh.991) of mobile no.9768114422 recovered from accused no.7Sachin
Gaikwad also shows that on 11/06/2011 at 02:26:54 pm he was in Powai
area near the main gate of IIT, Powai. Thereafter, from 02:28:19 pm to
02:55:35 pm he was in the area which was close to the spot of the
incident and at 02:58:47 pm he was at Central Avenue Road, Hiranandani
Business Park, Powai (physical address as per cell ID list Exh.1074) which
was just near the spot of the incident. Similarly, the perusal of the CDR
530
Mangesh Aagvane also shows that on 11/06/2011, at 02:26:16 pm he was
near Hiranandani Hospital, Powai (physical address as per cell ID list
Exh.1172). It may be noted that the incident took place at around that
time only. The perusal of the CDR (Exh.1035) of mobile no.9987017977
recovered from the accused no.5Arun Dake also shows that on
11/06/2011 at around 02:12:03 pm he was near Hiranandani Hospital,
Powai (physical address as per cell ID list Exh.986).
that on 11/06/2011 i.e. at the time of the incident, he was driving a
motorcycle and the accused no.1Rohee Tangappan Joseph @ Satish Kalya
was the pillion rider. Similarly, the accused no.3Abhijit Shinde was
driving another motorcycle and the accused no.4Nilesh Shedge was the
pillion rider. The accused no.6Mangesh Aagvane was driving the third
motorcycle and the accused no.2Anil Waghmode was the pillion rider and
the accused no.7Sachin Gaikwad was driving a Qualis vehicle and
following all of them. The prosecution has already proved the recovery of
the Qualis vehicle at the instance of the accused no.2Anil Waghmode. The
prosecution has also proved the recovery of three motorcycles at the
instance of the accused nos.4,6 and 7. The motorcycle bearing registration
no.MH01AF8843 (Article261) was recovered at the instance of the
accused no.4Nilesh Shedge. This motorcycle was registered in the name
of PW.30Dattatray More who was the cousin brother of the accused no.4
Nilesh Shedge. The accused no.4Nilesh Shedge has not explained as to
how he came into the possession of the said motorcycle at the time of the
incident or how he came to know about the place where the said
motorcycle was parked. The motorcycle bearing registration no.MH02
AN4648 (Article240) was recovered at the instance of the accused no.6
Mangesh Aagvane. This motorcycle was registered in the name of PW.28
531
Dattatray Chavan. The accused no.6Mangesh Aagvane has not explained
as to how he came into the possession of that motorcycle at the time of the
incident or how he came to know about the place where the said
motorcycle was parked. The motorcycle bearing registration no.MH06
AH4891 (Article233) was recovered at the instance of the accused no.7
Sachin Gaikwad. This motorcycle was registered in the name of PW.31
Suresh Waghmare who was the brotherinlaw of the accused no.7Sachin
Gaikwad. The accused no.7Sachin Gaikwad has not explained as to how
he came into possession of the said motorcycle at the time of the incident
or how he came to know the place where the said motorcycle was parked.
Therefore, the only inference which can be drawn is that the above
mentioned vehicles were the same vehicles which were used by the
accused nos.1 to 7 at the time of the incident.
792. At this stage, it may be reiterated that none of the owners of the
three motorcycles have come forward for taking the custody of their
motorcycles. From the make of the motorcycles, it can be said that each of
the motorcycle costs anything between Rs.50,000/ to Rs.80,000/. The
evidence of PW.30Dattatray More, PW.28Dattatray Chavan and PW.31
Suresh Waghmare it is quite clear that they were not so affluent that they
could have afforded to leave their motorcycles just like that. The fact that
none of these witnesses has bothered to apply to the Court for return of
the custody of their motorcycles is also indicative of the fact that these
motorcycles were used in committing the murder of J.Dey.
793. As stated earlier, it has come in the confession made by the accused
no.5Arun Dake that it was the accused no.1Rohee Tangappan Joseph @
Satish Kalya who had fired five bullets at J.Dey resulting in his death. It
may be stated that through the confession made by the accused no.9
532
Deepak Sisodiya, the prosecution has already proved that the accused
no.1Rohee Tangappan Joseph @ Satish Kalya had procured two revolvers
and 25 cartridges from Haldvani, Nainital on 14/05/2011 i.e. 22 days
prior to the incident. The recovery of one revolver i.e. revolver (Article
249) and 20 live cartridges (Article250 colly.) at the instance of the
accused no.1Rohee Tangappan Joseph @ Satish Kalya corroborates the
statement made by the accused no.5Arun Dake regarding the use of
revolver by the accused no.1Rohee Tangappan Joseph @ Satish Kalya in
committing the murder of J.Dey. Further, the conjoint reading of the
CA/Ballistic reports (Exhs.230, 231 and 236) shows that the lead (Article
215) which was found near the spot of the incident and the lead (Article
247) recovered from the body of J.Dey were fired from one and the
same .32” caliber revolver (Article249). As per CA report (Exh.236) the
revolver (Article249) was found to be in working condition and residue of
fired ammunitionnitrate was detected in the barrel washing indicating
that the revolver (Article249) was used for firing prior to its receipt in the
FSL. This further confirms the fact that the revolver (Article249) which
was recovered at the instance of the accused no.1Rohee Tangappan
Joseph @ Satish Kalya was used for committing the murder of J.Dey. The
accused no.1Rohee Tangappan Joseph has failed to give any explanation
about the same.
794. It has further come in the confession made by the accused no.5

Arun Dake that after the incident the accused no.1Rohee Tangappan
Joseph @ Satish Kalya got down from the motorcycle of the accused no.5
Arun Dake and told him to meet him near the Goregaon Railway Station
Bus depot and accordingly, he went there. The CDR (Exh.1035) of the
mobile no.9987017977 used by the accused no.5Arun Dake at that time
corroborates the above statement made by him. The perusal of the CDR
533
(Exh.1035) of mobile no.9987017977 shows that at 03:14:13 pm i.e. after
about 1520 minutes after the incident the location of the accused no.5
Arun Dake was at Goregaon (physical address as per cell ID list Exh.986).
on the next day of the incident i.e. on 12/06/2011, the accused nos.2 to 5
went to Dahisar in the morning where the accused no.1Rohee Tangappan
Joseph @ Satish Kalya had come in the Qualis vehicle and from there all
the five of them went to Pavagarh, Gujarat in the same Qualis vehicle. The
CDR of the mobile number used by the accused no.1Rohee Tangappan
Joseph @ Satish Kalya and the accused no.4Nilesh Shedge corroborates
the above statement. The perusal of the CDR (Exh.909) of mobile
no.8655292230 which was recovered from the accused no.1Rohee Joseph
@ Satish Kalya shows that on 12/06/2011, at around 10:13 am and 10:16
am he was at Charoti, Dahanu, at 02:13 pm he was at Kamrej MCN, Surat
which is in Gujarat (physical address as per list annexed to CDR Exh.909).
Similarly, the perusal of the CDR (Exh.1095) of the mobile
no.8879140112 which was registered in the name of the accused no.4
Nilesh Shedge shows that on 12/06/2011 and 13/06/2011 he was in the
Gujarat circle of the Vodafone service operator (physical address as per
cell ID list Exh.1096).
on the next day i.e. on 13/06/2011, they left Pavagarh and went to Shirdi.
They reached Shirdi late in the night. On 14/06/2011, they went to Sai
Mandir and from there they went to Shani Shingnapur. The perusal of the
CDR (Exh.909) of mobile no.8655292230 which was recovered from the
accused no.1Rohee Joseph @ Satish Kalya shows that on 13/06/2011 at
10:02:32 pm he was at village Lakhanpur, Taluka Dhindori, Dist. Nashik.
534
Similarly, at 11:16:06 pm he was at village Shinde, Taluka and Dist.

Nashik. On 14/06/2011 between 03:38:01 am to 08:32:27 am he was at
Shirdi. Thereafter, at 01:21:06 pm he was still at Shirdi. Similarly, from
02:21:24 pm to 10:53:15 pm he was at Shirdi and then at Shani
Shingnapur (physical address as per list annexed to CDR Exh.909). The
perusal of the CDR (Exh.1095) of the mobile no. 8879140112 which was
registered in the name of the accused no.4Nilesh Shedge shows that on
14/06/2011 he again returned to Maharashtra (Home) circle of Vodafone
service operator and he was in the Home circle till 16/06/2011.
that from Shani Shingnapur, on the same day i.e. on 14/06/2011, they
went to Solapur and reached there in the night and on 15/06/2011, the
accused nos.1,2,3 and 5 went to a 'math' in Akkalkot area and stayed there
for one night. Further, on 16/06/2011 they went to Yadgir, Karnataka and
reached there at around 02:30 am in the midnight. The perusal of the
CDR (Exh.909) of mobile no.8655292230 which was recovered from the
accused no.1Rohee Joseph @ Satish Kalya shows that from 16/06/2011
at 03:13:23 pm till 17/06/2011 he was at Solapur and then at Akkalkot
which is in District Solapur. Similarly, on 17/06/2011 at 07:32:27 pm he
was at village Sindagi area at Gulbarga which is in Karnataka. [NOTE:
Yadgir (the place mentioned by the accused no.5Arun Dake in his
confession) was carved out from the erstwhile District Gulbarga on
10/04/2010]. Thereafter, on 17/06/2011, they went to Vijapur (officially
known as Bijapur District), Karnataka after 03:00 pm (physical address as
per list annexed to CDR Exh.909). Similarly, the perusal of the CDR
(Exh.1095) of the mobile no.8879140112 which was registered in the
name of the accused no.4Nilesh Shedge shows that from 17/06/2011 at
10:09:11 pm to 23/06/2011 at 03:37:56 pm he was in the Karnataka
535
circle of the Vodafone service operator (physical address as per cell ID list
Exh.1096).
that on 18/06/2011, he went to Swargate, Pune and stayed there for two
days as the Father of the Church was known to him and thereafter he
returned to Mumbai. As per CDR (Exh.1053) of mobile no.7709131255
which was registered in the name of accused no.5Arun Dake, on
20/06/2011 at 08:34:54 pm till 21/06/2011 he was at Kondwa, Pune. So
also, from 22/06/2011 at 10:54:46 am he was at transit camp, Dharavi
(physical address as per cell ID list Exh.1172).
799. From the above, it can be seen that the locations of the above
mentioned accused persons on the dates prior to the incident, on the date
of the incident and after the incident which are reflected from the various
CDRs correspond to the locations of the accused persons which are stated
by the accused no.5Arun Dake in his confession. It is important to note
that the accused nos.1 to 7 were not residents of either Ghatkopar area or
the Powai area. From the addresses given by them in their statement
which was recorded u/s.313(b) of Cr.P.C.,1973, it can be seen that they
were residents of places which were somewhat far away from Ghatkopar
and Powai. The accused nos.1 to 7 have not explained as to what they
were doing in the Ghatkopar and Powai area on 10/06/2011 and
11/06/2011. It cannot be a matter of coincidence that on the above
mentioned dates they were found in Ghatkopar and Powai area where
J.Dey was found. Similarly, the concerned accused persons have not
explained as to what they were doing in Gujarat or Shirdi or Akkalkot or
Yadgir after the incident. All these facts further strengthen the case of the
prosecution.
536
ANALYSIS OF THE CORROBORATIVE EVIDENCE WITH RESEPCT TO
THE VARIOUS EXTRAJUDICAL CONFESSIONS MADE BY THE
ACCUSED NO.12CHHOTA RAJAN.
800. Through the evidence of PW.76Jitendra Dixit, PW.78Sunilkumar
Singh, PW.87Nikhil Dixit and PW.100Aariz Chandra, the prosecution has
proved the various extrajudicial confessions made by the accused no.12
Chhota Rajan. The fact that on 01/07/2011, PW.78Sunilkumar Singh had
received the phone call on his mobile no. 7738409480 from the accused
no.12Chhota Rajan from the number +5032 after about 09:00 pm is
corroborated by the CDR (Exh.1059). The entry dated 01/07/2011 at time
09:00:35 pm in the CDR (Exh.1059) shows that PW.78Sunilkumar Singh
had received a call from the number 005032 and its duration was 1720
seconds(28.66 minutes). This is further corroborated by the evidence of
PW.68Sachin Ramesh Kalbag. He was in the field of journalism since last
23 years and an independent witness. His evidence shows that after the
news about the conversation of PW.78Sunilkumar Singh with the accused
no.12Chhota Rajan was aired on the 'NDTV India' news channel, he was
also interviewed by the 'NDTV India' news channel with reference to the
phone call received by PW.78Sunilkumar Singh and the involvement of
the accused no.12Chhota Rajan in the murder of J.Dey.
801. Similarly, the fact that on 18/08/2011, PW.87Nikhil Dixit had

received the phone call on his mobile no.9930900303 from the accused
no.12Chhota Rajan from the number +3444 at about 04:00 pm is
corroborated by the CDR (Exh.1128). The entry dated 18/08/2011 at time
05:12:57 pm in the CDR (Exh.1128) does show that PW.87Nikhil Dixit
had received a call from the number 003444 and its duration was 661
seconds(11.01 minutes). There is a minor discrepancy regarding the time
of the call as stated by PW.87Nikhil Dixit. This appears to be due to lapse
537
of memory and needs to be ignored as PW.87Nikhil Dixit was deposing in
the Court after about six years of the incident. He cannot be expected to
possess a photographic memory and recall the exact time at which he
received the phone call from the accused no.12Chhota Rajan.
802. The fact that in August 2011, PW.100Aariz Chandra had received
two phone calls on his mobile no.9819582444 from the accused no.12
Chhota Rajan from the number +3444 and that he received the second
phone call at about 06:00 pm is corroborated by the CDR (Exh.1124). The
entry dated 25/08/2011 at time 03:05:47 pm and the entry dated
27/08/2011 at time 06:04:16 pm in the CDR (Exh.1124) does show that
PW.100Aariz Chandra had received calls from the number +3444 and its
duration was 1699 seconds (28.31 minutes) and 1138 seconds (18.9
minutes) respectively.
803. Through the evidence of PW.76Jitendra Dixit, the prosecution has
already proved that the accused no.12Chhota Rajan had confessed to him
that J.Dey was murdered at his instance. It may be noted that along with
the chargesheet, the prosecution had filed the CDR of the mobile no.
9820703347 which belongs to PW.76Jitendra Dixit along with the
certificate u/s.65B of the Evidence Act,1872 which was furnished by
PW.121Nodal Officer, Vodafone to the Investigation Agency during the
course of investigation. It appears that due to oversight of the learned SPP,
the said CDR and the certificate u/s.65B of the Evidence Act,1872 were
not proved by the prosecution through the concerned Nodal Officer. The
said CDR shows that on 16/11/2011, he received the first call from the
number +3444 at 01:50:16 pm and the duration of the call was 1 second.
Immediately thereafter, i.e. at 01:51:16 pm he received the second call
and the duration of the said call was 1590 seconds which was quite long.
538
However, as the prosecution has not proved the same, it is not being
considered.
804. It has come in the evidence of PW.76Jitendra Dixit and PW.78

Sunilkumar Singh that the accused no.12Chhota Rajan had told them that
he was called by J.Dey to London but he did not go there, that J.Dey had
told him that he could meet him in Philippines. Through the oral evidence
of PW.35Jacob George, PW.42Rajan Seth, PW.45V.R. Divakaran,
PW.46Ms.Poornima Swaminathan, PW.68Sachin Kalbag and PW.104
Shaikh Fakrullah the prosecution has proved in AprilMay, 2011 i.e. about
one month prior to the incident, J.Dey had visited London and that he was
also planning to visit Philippines. The evidence of the above witnesses
further shows that there was some contact between J.Dey and the accused
no.12Chhota Rajan. Otherwise, there was no reason for the accused
no.12Chhota Rajan to know that J.Dey had gone to London and that he
was also planning to go to Philippines.
805. At this stage, it is also necessary to make a note of the fact that
through the evidence of PW.42Rajan Seth, it has come on the record that
J.Dey had told him that he was receiving phone calls from the accused
no.12Chhota Rajan because of which J.Dey had a feeling that he might
have committed some mistake and that he had told J.Dey to take care.
This part of his evidence has not been shattered in crossexamination. It is
true that it has come in his evidence that his statement was not recorded
by the DCB, CID. But the DCB, CID had made an enquiry with him when
the case was being investigated by it. He has also stated that the facts
which were deposed by him in his examinationinchief were never stated
by him before the Mumbai Police. During the crossexamination of PW.42
Rajan Seth, he was not asked by the defence as to why he did not state
539
these facts at that time. Also, none of Investigating Officers from the Crime
Branch were asked by the defence as to why they did not record the
statement of PW.42Rajan Seth. Further, it is also not the stand of the
defence that PW.42Rajan Seth was a planted witness. At least, no such
suggestion was given to PW.152IO CBI who had recorded his statement.
Therefore, his evidence can also be taken into consideration to hold that
J.Dey was killed at the instance of the accused no.12Chhota Rajan.
806. The case of the prosecution regarding the involvement of the

accused no.12Chhota Rajan in the murder of J.Dey is further
strengthened by the evidence of PW.90Manoj Shivdasani. It has come in
his evidence that on 04/08/2011, the accused no.12Chhota Rajan had
made a phone call to him for making enquiry about the health of the
deceased accused no.8Vinod Asrani. That phone call was intercepted. The
CD (Exh.777) containing the record of the conversation between PW.90
Manoj Shivdasani and the accused no.12Chhota Rajan has been duly
proved by the prosecution. If one hears the contents of the conversation it
will be clear that during the conversation the accused no.12Chhota Rajan
was referring to none other than J.Dey. During the conversation, the
accused no.12Chhota Rajan told PW.90Manoj Shivdasani that he was
sure that J.Dey was working for Dawood and the ISI. He also said that he
was writing wrong things about him. He further stated that J.Dey had
called him to London and Philippines. The fact that J.Dey had gone to
London earlier in the year and was intending to go to Philippines is
already proved by the prosecution. As stated earlier, even in the various
extrajudicial confessions made by the accused no.12Chhota Rajan, it has
come on record that J.Dey had requested the accused no.12Chhota Rajan
to meet him in London or Philippines. It is not disputed that Dawood
Ibrahim is the arch rival of the accused no.12Chhota Rajan. Through
540
independent evidence the prosecution has already proved that J.Dey had
written various news articles against the accused no.12Chhota Rajan. All
the above facts taken together makes it further clear that J.Dey was killed
at the instance of the accused no.12Chhota Rajan.
807. The fact that on 04/08/2011, PW.90Manoj Shivdasani had received
a phone call on his mobile no.9820048533 from the accused no.12Chhota
Rajan is further corroborated by his statement (Exh.1601) which was
recorded u/s.164 of Cr.P.C.,1973 and the CDR (Exh.1131) of his mobile
number. The perusal of the CDR (Exh.1131) shows that on 04/08/2011 at
02:21:52 pm PW.90Manoj Shivdasani had received a phone call on his
mobile no.9820048533 from the number 03444 and the duration of the
said call was 138 seconds (2.3 minutes). The above fact further
corroborates the fact that the accused no.12Chhota Rajan was using the
number 03444 for making phone calls which in turn corroborates the
evidence of PW.76Jitendra Dixit, PW.87Nikhil Dixit, PW.100Aariz
Chandra and PW.50Indukumar Amin who had also received the phone
call from the accused no.12Chhota Rajan from the same number.
ANALYSIS OF THE OTHER COROBORATIVE EVIDENCE.
808. Through the confession made by the accused no.9Deepak Sisodiya,
the prosecution has proved that the relations between the accused no.9
Deepak Sisodiya and the accused no.12Chhota Rajan were good. They
were rather strong. This is clear from the fact that even after the incident
there was some contact between both of them. This fact has come on the
record from the examination report (Exh.1305). This report is with respect
to the data which was retrieved from the two IPhones (Articles289 &
291) and the IPad (Article171) which were recovered from the accused
no.12Chhota Rajan.
541
809. The accused no.11Deepak Sisodiya has admitted in his statement
which was recorded u/s.313(b) Cr.P.C.,1973 that the mobile
no.9675778971 belongs to him. The perusal of the relevant part of the
report contained in DVD (Article294) shows that on 11/02/2015, the
accused no.12Chhota Rajan had received a message (entry at Sr.no.1239)
from the number 447700068837 at 07:40:52 hrs. and the contents of the
said message showed the mobile number 9675778971 of the accused
no.9Deepak Sisodiya and his name. This clearly shows that there was
some relation between the accused no.12Chhota Rajan and the accused
no.9Deepak Sisodiya and even after the incident in question there was
some contact between the two of them. However, neither of them has
given any explanation in this regard. At this stage, it may be stated that
while recording the statement u/s.313(b) of Cr.P.C.,1973 of the accused
no.12Chhota Rajan, a specific question was put to him in this regard. It is
reproduced below for ready reference:
“Q. 467: It has come in the evidence of PW.151Vishal Subash
Koik that the entry at Sr.No.1239 was a message received from
the no.447700068837 on 11/02/2015 at 07:40:52 Hrs. and the
contents of the said message shows the number 9675778971
and the name 'Deepak Shisodia'. What do you have to say about
it?
Ans.: It is not correct. I do not know. The mobile phone does not
belong to me.”
810. From the above, it is clear that instead of explaining as to for what
purpose the accused no.12Chhota Rajan had received the mobile number
and the name of the accused no.9Deepak Sisodiya, he has simply chosen
to be in denial mode. Some plausible explanation was expected from him.
As no explanation is furnished, adverse inference needs to be drawn
542
against the accused no.12Chhota Rajan.
OTHER SUBMISSIONS MADE BY THE DEFENCE.
811. As per the defence, the conspiracy to kill J.Dey was hatched after
J.Dey wrote the articles dated 20/05/2011 and 02/06/2011 (Article752
colly.) but as per the confession made by the accused no.9Deepak
Sisodiya, the revolver and cartridges were produced by accused no.1
Rohee Tangappan Joseph @ Satish Kalya on 14/05/2011 which was much
prior to the publication of the new article (Exh.752 colly.) and as such the
case of the prosecution that there was a conspiracy to commit the murder
of J.Dey cannot be accepted.
812. It is no doubt true that as per the confession made by the accused
no.9Deepak Sisodiya that the 25 cartridges and the revolvers were given
to the accused no.1Rohee Tangappan Joseph @ Satish Kalya on
14/05/2011 which was much prior to 28/05/2011 and 02/06/2011. But,
it cannot be forgotten that a conspiracy is hatched in private and it is
rarely possible to establish a conspiracy by direct evidence. Also, it is well
settled that it is always difficult to spell out the details as to what is the
starting point of a conspiracy. In the case of Esher Singh V. State of A.P.
reported in (2004) SCC 585 it was held that it is not always possible to
give affirmative evidence about the date of the formation of a criminal
conspiracy. Therefore, the existence and object of the same has to be
inferred from the circumstances and the conduct of the accused.
813. In the present case, through the confession made by the accused

no.9Deepak Sisodiya, the prosecution has proved that the accused no.9
Deepak Sisodiya and the accused no.12Chhota Rajan were in contact with
each other. The prosecution has also proved that through the accused
no.12Chhota Rajan the accused no.9Deepak Sisodiya was knowing the
543
accused no.1Rohee Tangappan Joseph @ Satish Kalya since long. The

prosecution has also proved that on 14/05/2011, two of the revolvers and
the cartridges which were supplied by the accused no.9Deepak Sisodiya
and the wanted accused no.1Nayansingh Bista to the accused no.1Rohee
Tangappan Joseph @ Satish Kalya at the instance of one person by name
Sahil who was very close to the accused no.12Chhota Rajan. One of the
revolvers and the cartridges were used for committing the murder of the
J.Dey. The revolver (Article249) which was used for committing the
murder of J.Dey was recovered at the instance of the accused no.1Rohee
Tangappan Joseph @ Satish Kalya. From the various extrajudicial
confessions made by the accused no.12Chhota Rajan, it is very much clear
that the accused no.12Chhota Rajan was not happy with what J.Dey was
writing about him. He was sure that J.Dey was working for Dawood
Ibrahim who was his arch rival. PW.42Rajan Seth has also deposed that
J.Dey had also told him that he had also received phone calls from the
accused no.12Chhota Rajan as he might have committed some mistake.
Therefore, it is quite possible that the accused no.12Chhota Rajan may
have thought of getting rid of J.Dey and started planning for the same.
Accordingly, the accused no.1Rohee Tangappan Joseph @ Satish Kalya
was instructed to get the firearm and cartridges from the accused no.9
Deepak Sisodiya and the wanted accused no.1Nayansingh Bista and after
the news articles (Exh.752 colly.) were published and which were read by
the accused no.12Chhota Rajan he decided to draw the final straw. Even
assuming for a moment that the accused no.1Rohee Tanagappan Joseph
@ Satish Kalya had procured the revolver and the cartridges for some
other purpose, the fact remains that the revolver and the cartridges which
were procured by the accused no.1Rohee Tangappan Joseph @ Satish
Kalya from the accused no.9Deepak Sisodiya and the wanted accused
no.1Nayansingh Bista were used for committing the murder of J.Dey. The
544
evidence and the circumstances taken together clearly show that there was
an agreement between the accused no.12Chhota Rajan and the accused
no.1Rohee Tangappan Joseph @ Satish Kalya and for accomplishing the
task the accused nos.2 and 7 were roped in by accused no.1Rohee
Tanagappan Joseph @ Satish Kalya who were more than willing to help
accused no.1Rohee Tanagappan Joseph @ Satish Kalya in committing
murder of J.Dey. Therefore, it cannot be said that there is an improbability
in the case of the prosecution.
814. The learned Advocate for the accused nos.3,4 and 12 vehemently
argued that though section 18 of the MCOC Act,1999 makes confessional
statement of an accused admissible evidence against the other accused,
still the same cannot be used by the Court against the coaccused without
further corroboration on material facts to base a conviction. It was urged
that the provisions of section 10 of the Evidence Act,1872 will come into
play only when there is other substantive evidence against the accused
nos.3 and 4. Similar argument was made on behalf of the accused no.12
Chhota Rajan with regard to the various extrajudicial confessions made
by him. In this regard, reliance was placed upon the judgments in the case
of Sidharth etc. V. State of Bihar reported in AIR 2005 SC 4352, Mirza
Akbar V. Emperor reported in (1941) 43 BOMLR 20, Emperor V.
Abani Bhusan Chakrabutty reported in (1910) ILR 38 Cal 169,
Jayendra Saraswati Swamigal V. State of Tamil Nadu reported in AIR
2005 SC 716, Sardul Singh Caveeshar V. The State of Bombay
reported in 1958 SCR 161, Kadambini Dassi V. Kumudini Dassi
reported in (1903) ILR 30 Cal 983, Natwarlal Shankarlal Mody V.
Bombay reported in 1964 Mh.L.J. 1, Sk. Md. Omar V. The State
reported in 1965 Cri. L.J. 443, CBI V/s. V.C. Shukla reported in AIR
1998 SC 1406, Ranjitsingh Brahmajeetsing Sharma V. State of
545
Maharashtra reported in AIR 2005 SC 2277, Kishor Bhagtani V. State
of Rajasthan reported in 2009 Cri.L.J. 1172, State of Gujrat V.
Mohammed Atik and ors. reported in AIR 1998 SC 1686 and Aghnoo
Nagesia V. State of Bihar reported in AIR 1966 SC 119. The submission
made on behalf of the accused nos.3,4 and 12 cannot be accepted. The
accepted principle in law is that a confessional statement of an accused
recorded u/s.18 of the MCOC Act,1999 is a substantive piece of evidence
even against the coaccused provided the concerned accused are charged
and tried together. Therefore, the confession made by the accused no.5
Arun Dake which was recorded u/s.18 of the MCOC Act,1999 being a
substantive evidence against the maker and the coaccused, abettor or
conspirator the same can certainly be used against the accused nos.3 and
4. In so far as the judgments which are relied upon are concerned, they
are not applicable to the facts of the present case. In the case of Sidharth
(supra), Mirza Akbar (supra), Emperor (supra), Jayendra Saraswati
Swamigal (supra), Sardul Singh Caveeshar (supra), Kadambini Dassi
(supra), Sk. Md. Omar (supra) and V.C. Shukla (supra) the Hon'ble
Higher Courts were basically considering the evidentiary value of a
statement/ confession made under the General law. As stated earlier, a
confession u/s.18 of the MCOC Act, 1999 is a substantive piece of
evidence against the maker and the coaccused who are charged and tried
together. In so far as the judgments in the case Natwarlal Shankarlal
Mody (supra), Ranjitsingh Brahmajeetsing Sharma (supra), Kishor
Bhagtani (supra), Mohammed Atik (supra) and Aghnoo Nagesia
(supra) are concerned, they are not relevant in so far as the point which
has been argued above.
815. In so far as the case of the accused no.12Chhota Rajan is

concerned, section 10 of the Evidence Act, 1872 has no application at all
546
as the statements made by him in the various extrajudicial confessions are
restricted to him only. The extrajudicial confessions made by the accused
no.12Chhota Rajan have been considered independently and the
prosecution has already proved that the various extrajudicial confessions
which were made by the accused no.12Chhota Rajan to PW.76Jitendra
Chandra are cogent, trustworthy and reliable.
816. It was also argued that the provisions of section 30 of the Evidence
Act,1872 cannot be invoked in the present case and the accused nos.3 and
4 cannot be roped in on the basis of the confession made by the accused
no.5Arun Dake. In this regard, reliance was placed on the judgments in
the case of Kashmira Singh V. State of Madhya Pradesh reported in
AIR 1952 SC 159, Hari Charan Kurmi and Jogia hajam V. State of
Bihar reported in AIR 1964 SC 1184. This Court has gone through the
above judgments. The above judgments are also not applicable to the facts
of the present case. In the above judgments also, basically the evidentiary
value of a confession made under the General law was under
consideration. However, having said this, it needs to be noted that in the
case of Jameel Ahmed V. State of Rajasthan reported in (2003) 9 SCC
673, the Hon'ble Supreme Court of India while dealing with a case under
the TADA Act,1987 has held that section 30 of the Evidence Act,1872 has
no role to play when the Court considers the confession of an accused
made u/s.15 of the TADA Act,1987 either in regard to himself or in regard
to the coaccused. As stated earlier, the provisions of section 18 of the
MCOC Act,1999 and the provisions of Section 15 of TADA Act,1987 are
pari materia and the law settled under TADA Act,1987 will be applicable
as binding precedent in a case under MCOC Act,1999. But that does not
affect the case of the prosecution in any manner in view of the provisions
547
of section 18 of the MCOC Act, 1999.
817. In so far as the accused no.9Deepak Sisodiya is concerned, it quite
clear from the confession made by him that he was not aware that the
cartridges and the revolver were going to be used for committing the
murder of J.Dey. But the fact remains that he was associated with the
accused no.12Chhota Rajan and the accused no.1Rohee Tangappan
Joseph @ Satish Kalya. From his statement, it very much clear that on the
say of his friend Sahil who was very close to the accused no.12Chhota
Rajan, he procured 25 cartridges of revolver from the Anurag Gun House.
Thereafter, he along with the wanted accused no.1Nayansingh Bista
handed over those cartridges and two revolvers to the accused no.1Rohee
Tangappan Joseph @ Satish Kalya. There was conscious/active
participation and active consent of the accused no.9Deepak Sisodiya in
the said transaction. Also, it is seen that though he was initially unaware
about the fact that the cartridges and the revolvers were meant to be given
to the accused no.1Rohee Tangappan Joseph @ Satish Kalya, he did not
express any surprise on seeing him at the Katgodam Railway Station
meaning thereby that he was aware about the activities of the accused
no.1Rohee Tangappan Joseph @ Satish Kalya. The accused no.9Deepak
Sisodiya has a criminal background. It is said that "the birds of the same
feather flock together". Therefore, he did not express any surprise when
the revolvers and cartridges were handed over to the accused no.1Rohee
Tangappan Joseph @ Satish Kalya. It is well settled that one who enters
into a conspiratorial relationship is liable for every reasonably foreseeable
crime committed by every other member of the conspiracy in furtherance
of its objectives, whether or not he knew of the crimes or aided in their
commission.
548
818. At this stage, it will be appropriate to make a note of the judgment
of the Hon'ble Supreme Court of India in the case of State of
Maharashtra V. Som Nath Thapa reported in AIR 1996 SC 1744. This
judgment was relied upon by the prosecution as well as by the defence. In
that case, one of the accused was charged for supplying RDX which was
ultimately used in the Mumbai bomb blasts. The argument was that the
said accused could not have been charged for conspiracy as he was
unaware about the fact the RDX was to be used for causing bomb blasts in
Mumbai. Negativing the said contention, the Hon'ble Supreme Court of
India observed as under:
“17. The Additional Solicitor General has, according to us,

stolen a march over the counsel for the accused because of what
was stated in Lauria case, as he is undoubtedly right in
submitting that RDX, or for that matter bombs, cannot be put to
any legitimate use but only to illegitimate use; and it is RDX or
bomb which was either handled or allowed to slip by the
accused before us. So, this act by itself would establish the
intent to use the goods for illegitimate purposes.
21. The Additional Solicitor General has thus a point when he
contended that to establish the charge of conspiracy in the
present case, it would not be necessary to establish that the
accused knew that the RDX and/or bomb a was/were meant to
be used for bomb blast at Bombay, so long as they knew that the
material would be used for bomb blast in any part of the
country.
22. As in the present case the bomb blast was a result of a chain
of actions, it is contended on behalf of the prosecution, on the
strength of this courts decision in Yash Pal Mittal v. State of
Punjab which was noted in para 9 of Ajay Aggarwal case that of
such a situation there may be division of performances by
plurality of means sometimes even unknown to one another;
and in achieving the goal several offences may be committed by
the conspirators even unknown to the others. All that is relevant
is that all means adopted and illegal acts done must be and
549
purported to be in furtherance of the object of the conspiracy,
even though there may be sometimes misfire or overshooting by
some of the conspirators.
24. The aforesaid decisions, weighty as they are, lead us to

conclude that to establish a charge of conspiracy knowledge
about indulgence in either an illegal act or a legal act by illegal
means is necessary. In some cases, intent of unlawful use being
made of the goods or services in question may be inferred from
the knowledge itself. This apart, the prosecution has not to
establish that a particular unlawful use was intended, so long as
the goods or service in question could not be put to any lawful
use. Finally, when the ultimate offence consists of a chain of
actions, it would not be necessary for the prosecution to
establish, to bring home the charge of conspiracy, that each of
the conspirators had the knowledge of what the collaborator
would do, so long as it is known that the collaborator would put
the goods or service to an unlawful use.”
819. The observations made by the Hon'ble Supreme Court of India in

the case of Som Nath Thapa (supra) are squarely applicable to the case
against the accused no.9Deepak Sisodiya. Therefore, it will have to be
said that the charge u/s.120B of the IPC has been clearly brought home
by the prosecution as against the accused no.9Deepak Sisodiya.
820. It was argued that the accused no.9Deepak Sisodiya cannot be

connected with the offence in question as the cartridges which were
recovered from the accused no.1Rohee Tangappan Joseph @ Satish Kalya
were never shown to the accused no.9Deepak Sisodiya. However, there is
no such requirement of law. Also, for that reason only the case of the
prosecution cannot be doubted in the light of the fact that the prosecution
has proved that the confession made by the accused no.9Deepak Sisodiya
was voluntary and truthful.
550
821. It was next argued that the case of the prosecution that the accused
no.9Deepak Sisodiya had procured 25 cartridges from the M/s.Anurag
Gun House, Haldvani is suspicious as Shri Sanjaysingh Bansal who was the
owner of the said shop had submitted a report that no cartridges were sold
by him to the accused no.9Deepak Sisodiya. It was further submitted that
the fact that the Investigating Agency did not even bother to record the
statement of Shri Sanjaysingh Bansal casts a serious doubt about the case
of the prosecution.
822. With regard to the above submission, it is necessary to have a look
at the evidence of PW.143ACP Duraphe. It has come in his evidence that
he did not record the statement of Shri Sanjaysingh Bansal though he had
made correspondence with him. He stated that he had issued summon
u/s.91 of Cr.P.C.,1973 dated 03/02/2012 calling upon Shri Sanjaysingh
Bansal to produce the record maintained by him with respect to the sale
and purchase of ammunition and also for recording his statement. He
admitted that from the reports it was seen that the cartridges before the
Court were not sold by Shri Sanjaysingh Bansal to the accused no.9
Deepak Sisodiya.
823. From the evidence of PW.143ACP Duraphe it is quite clear that the
report given by Shri Sanjaysingh Bansal was not favorable to the
prosecution. However, the fact that the said report does not support the
case of the prosecution is not fatal to the case of the prosecution. The case
of the prosecution is that the cartridges were given by Shri Sanjaysingh
Bansal to the accused no.9Deepak Sisodiya illegally. Therefore, it would
be too much to expect that on being confronted, Shri Sanjaysingh Bansal
would admit that he had given the cartridges to the accused no.9Deepak
Sisodiya illegally. Had he done so he would have invited criminal action
551
against himself. Therefore, he was bound to deny the fact that he had
illegally given the cartridges to the accused no.9Deepak Sisodiya. As such,
the fact that during the investigation the statement of Shri Sanjaysingh
Bansal was not recorded is insignificant.
DELAY IN RECORDING STATEMENTS OF WITNESSES.
judgments in the case of Ashraf Hussain Shah V. State of Maharashtra
reported in 1996 CRI.L.J. 3147 and Sunil s/o. Chokhoba Shambhakar
and anr. V. State of Maharashtra reported in 2008 ALL MR (Cri) 360
to contend that the unexplained delay in recording the statements of
witnesses by the Police during the course of the investigation of this case
is fatal to the case of the prosecution. It may be noted that though the
learned Advocate for the accused nos.1,6 and 7 has raised this point, the
said aspect was argued generally. The learned Advocate for the accused
nos.1,6 and 7 did not specifically point out the evidence of any particular
witness which could be doubted on the ground that there was delay in
recording his statement by the Investigating Officer. It is well settled that
mere delay in examination of a witness does not render the case of the
prosecution suspect. It depends upon the circumstances of the case and
the nature of the offence under investigation. It would also depend upon
the availability of information by which the Investigating Officer could
reach the witness and examine him. It would also depend upon the
explanation, if any, which the Investigating Officer may offer for the
delay. Further, the question of delay in examining a witness during
investigation is material only if it is indicative and suggestive of some
unfair practice by the Investigating Agency for the purpose of introducing
a core of witness to falsely support the case of the prosecution. In the
present case, no such circumstance was shown to exist. The evidence of
552
PW.141PI Gosavi, PW.142API Datir and PW.143ACP Duraphe will show
that they have explained the reasons for delay in recording the statement
of witnesses about whom they were asked. Having said this, it needs to be
noted that there is no material on the record from which it can be inferred
that the statement of any particular witness was deliberately recorded
late.
MOTIVE
825. According to the learned Advocate for the accused no.12, the case of
the prosecution is doubtful as the prosecution has failed to prove the
motive for the accused no.12Chhota Rajan to commit the murder of
J.Dey. The submission made by the learned Advocate for the accused
no.12 cannot be accepted. Firstly, it needs to be noted that motive is not
the ingredient of an offence u/s.300 of the IPC. It may also be stated that
in each and every case it is not incumbent upon the prosecution to prove
the motive for the crime. The proof of motive only adds to the weight and
value of the evidence adduced by the prosecution. If the prosecution is
able to prove its case on motive, it will only be a corroborative piece of
evidence. On the other hand, if the prosecution fails to prove its case on
motive, its case cannot be thrown out only on that ground. The failure of
the prosecution to prove the motive for the crime does not corrode the
credibility of the witnesses. Having said this, it may be noted that the
accused persons before this Court are also charged for the offences
punishable under the provisions of the MCOC Act,1999. For the purposes
of the MCOC Act,1999, it is incumbent upon the prosecution to prove the
motive for the accused no.12Chhota Rajan to get rid of J.Dey. Therefore,
whether the accused no.12Chhota Rajan had any motive to get rid of
J.Dey will be discussed in detail while dealing with point nos.7 to 9 which
relate the offences punishable under the MCOC Act,1999. However, at this
553
stage, it will be suffice to say that through the evidence of PW.76Jitendra
Chandra, the prosecution has proved that the accused no.12Chhota Rajan
got J.Dey murdered as he was not happy with what J.Dey was writing
against him and because J.Dey was working for ISI and Dawood. The
murder of J.Dey was committed at the instance of the accused no.12
Chhota Rajan as he was having doubt about the honesty of J.Dey.
ALIBI
826. It may be noted that in the statement of the accused no.5Arun Dake
which was recorded u/s.313(b) of Cr.P.C.,1973 he has taken a plea of
alibi. The stand taken by the accused no.5Arun Dake is quite surprising
because during the course of recording of the evidence in this case no such
stand was taken by him. Whenever an accused raises a plea of alibi, then
the burden is upon him to prove that at the time of the incident he was
neither present at the scene of the offence nor he participated in the
crime. But, the accused no.5Arun Dake has failed to show that at the time
of the incident he was not present at the scene of the offence. The false
plea of alibi is an additional circumstance in the chain of circumstances
against the accused no.5Arun Dake.
827. From the evidence on the record, it is clear that the prosecution has
proved that the murder of J.Dey was committed in pursuance of a criminal
conspiracy hatched by the accused no.12Chhota Rajan. The evidence on
the record clearly shows that the accused no.12Chhota Rajan was not
happy with J.Dey as he was writing articles against him which showed
him in bad light and in a weaker position as compared to his arch rival
Dawood Ibrahim. Not only that, the accused no.12Chhota Rajan was
convinced that J.Dey was working for Dawood Ibrahim and the ISI.
554
Therefore, on his instructions, the accused no.1Rohee Tangappan Joseph
@ Satish Kalya roped in the accused nos.2 to 7 for accomplishing the task.
He also procured the revolver and cartridges through the accused no.9
Deepak Sisodiya and the wanted accused no.1Nayansingh Bista. The
same revolver and cartridges were used for committing the murder of
J.Dey. For accomplishing the task, the accused nos.1 to 7 kept a watch on
the movements of the J.Dey. The accused no.1Rohee Tangappan Joseph
@ Satish Kalya was in constant touch with the accused no.12Chhota
Rajan and ultimately, on 11/06/2011, in the afternoon, J.Dey was
murdered.
828. In view of the above position, the accused nos.1 to 7 and the
accused no.12Chhota Rajan are liable for being convicted for the offence
of criminal conspiracy and murder of J.Dey. In so far as the accused no.9
Deepak Sisodiya is concerned, though he had no role to play in the murder
of J.Dey but he was involved in criminal conspiracy which ultimately
resulted in the murder of J.Dey. Therefore, is liable to be convicted for the
offence of criminal conspiracy. In so far as the accused nos.10 & 11 are
concerned, there is nothing to suggest that they were involved in the
criminal conspiracy or the murder of J.Dey. Hence, they are required to be
acquitted of all the charges against them. Hence, the point no.2 is
answered in the affirmative as against the accused nos.1 to 7, 9 and 12
only, the point no.3 is answered in the affirmative as against the accused
nos.1 to 7 and 12 only.
AS TO POINT NOS.4 AND 5 [OFFENCE UNDER THE ARMS ACT,1959]
829. The accused no.1Rohee Tangappan Joseph @ Satish Kalya is also
charged of committing the offence punishable u/s.3 r/w. 25 and 27 of the
Arms Act,1959. The prosecution has already proved the recovery of the
555
revolver (Article249), cartridges (Article250 colly) and the five empties
(Article269 colly) at the instance of the accused no.1Rohee Tangappan
Joseph @ Satish Kalya. The prosecution has also proved that the same
revolver was used by the accused no.1Rohee Tangappan Joseph @ Satish
Kalya on 11/06/2011 to commit the murder of J.Dey. The accused no.1
Rohee Tangappan Joseph @ Satish Kalya did not produce any evidence in
his defence to show as to how he came into possession of the revolver
(Article249). Once it is proved that the accused no.1Rohee Tangappan
Joseph @ Satish Kalya was in possession of the revolver (Article249) and
cartridges (Article250 colly), the onus was on him to show that he had
the license to possess them. However, he failed to discharge the onus.
Hence, it is proved that the accused no.1Rohee Tangappan Joseph @
Satish Kalya was in possession of revolver (Article249) and cartridges
(Article250 colly.) without any license. Therefore, the accused no.1
Rohee Tangappan Joseph @ Satish Kalya has contravened the provisions
of offence u/s.3(1) of the Arms Act,1959 which is punishable u/s.25(1B)
(a) of the Arms Act,1959 for which the sanction (Exh.252) was granted by
PW.154Sanctioning Authority. As the prosecution has also proved that
the accused no.1Rohee Tangappan Joseph @ Satish Kalya had also used
the said revolver for committing the murder of J.Dey, he has also
contravened the provisions of section 5(1)(a) of the Arms Act,1959 which
is punishable u/s.27 of the Arms Act,1959.
830. It may be noted that the sanction order under the Arms Act,1959
dated 16/09/2011 was marked as Exh.252 by the then learned Presiding
Officer in view of the judgment of the Hon'ble Supreme Court of India in
the case of State of M.P. V. Jiyalal reported in AIR 2010 SC 1451. In
that case, the Hon'ble Supreme Court of India has held that examination
of the Sanctioning Authority is not necessary to prove the sanction order
556
and that the defence can always test the contents of the sanction order by
applying to the Court for crossexamination of the Sanctioning Authority.
Accordingly, PW.154Sanctioning Authority was crossexamined at length
on behalf of the accused nos.1,6 and 7.
831. It was tried to be shown that PW.154Sanctioning Authority had

issued the sanction order with reference to the Crime no.57/2010 and not
with reference to the Crime no.57/2011 i.e. the present case. The perusal
of the sanction order (Exh.252) shows that there is a typographical error
in writing the crime number in the sanction order (Exh.252). However,
PW.154Sanctioning Authority has clearly stated that she had issued the
sanction order with reference to this case only. The perusal of the entire
sanction order will also show that it refers to the present case only. The
sanction order (Exh.252) is a detailed one and shows proper application of
mind on the part of PW.154Sanctioning Authority. In any case, under the
Arms Act,1959, all that is required for sanction for prosecution u/s.39 of
the said Act is that the person to be prosecuted was found to be in
possession of the firearm, the date on which he was found to be in
possession and the possession of the firearms was without a valid license.
In this regard, reference may be made to the judgment in the case of
Gunwantlal V. State of Madhya Pradesh reported in (1972) 2 SCC
194. In the said case, the Hon'ble Supreme Court of India has observed as
under:
“6. …......... Under the Arms Act all that is required for sanction
under Section 39 is, that the person to be prosecuted was found
to be in possession of the firearm, the date or dates on which he
was so found in possession and the possession of the firearm
was without a valid licence. As all the elements are contained in
the sanction in this case, it is not an illegal sanction nor can it be
said that the charge travels beyond that sanction.”
557
832. The above judgment still holds the field and has been followed in
the case of Mohd. Farooq Abdul Gafur & Anr. V. State of Maharashtra
reported in (2010) 14 SCC 641.
833. It was then argued that the sanction order (Exh.252) was vitiated as
all the details as mentioned in the ballistic reports are not recorded in the
sanction order. The said submission cannot be accepted as there is no
requirement under the law that the sanction order should contain all the
details which are mentioned in the ballistic reports. Having said this, it
needs to be noted that in the present case, all the necessary details are
recorded in the sanction order (Exh.252).
834. It was next argued that the sanction order (Exh.252) was not valid
as the revolver (Article249) was not produced before PW.154Sanctioning
Authority at the time of issuing the sanction order (Exh.252). In this
regard, reliance was placed upon the judgment in the case of Bapu V.
State of Madhya Pradesh reported in 2004 (2) Crimes 609.
835. Section 39 of the Arms Act, 1959 deals with the grant of sanction. It
reads as under:
"39. Previous sanction of the district magistrate necessary in
certain cases. No prosecution shall be instituted against any
person in respect of any offence under section 3 without the
previous sanction of the district magistrate."
836. From the above, it is clear that there is nothing in section 39 of the
Arms Act,1959 which requires that at the time of grant of sanction, the
weapon should also be produced before the District Magistrate for
examination. It is the personal satisfaction of District Magistrate and it is
558
upto the District Magistrate to see as to what documents or objects are
required for his/her personal satisfaction. No other provision of law was
pointed out to this Court which mandates that the weapon must always be
placed before the Sanctioning Authority. Therefore, mere nonproduction
of weapon before PW.154Sanctioning Authority is no ground to hold that
she did not apply her mind to the facts of the case before granting the
sanction.
837. In so far as the judgment in the case of Bapu (supra) is concerned,
the nonproduction of the weapon before the Sanctioning Authority was
not the sole ground on which the conviction and sentence of the accused
therein was set aside. Further, in that case, the Sanctioning Authority was
also not examined. Such is not the case here. In the present case, PW.154
Sanctioning Authority was thoroughly crossexamined. Her evidence
shows that she had issued the sanction order (Exh.252) after perusing the
relevant papers and after applying her mind. Therefore, the said judgment
is of no use to the accused no.1Rohee Tangappan Joseph @ Satish Kalya.
838. In view of the above, it is proved that the accused no.1Rohee

Tangappan Joseph @ Satish Kalya has committed the offence punishable
u/s.25(1B)(a) and 27 of the of the Arms Act,1959. Hence, point nos.4
and 5 are answered in the affirmative.
AS TO POINT NO.6 [OFFENCE UNDER THE BOMBAY POLICE ACT,1951]
839. The accused no.1Rohee Tangappan Joseph @ Satish Kalya is also
charged for committing the offence punishable u/s.37(1)(a) r/w. 135 of
the Bombay Police Act,1951. As per the prosecution, on 11/06/2011, he
was possessing the revolver (Article249) in contravention of the
prohibitory order issued on 21/05/2011 by the Office of the Commissioner
559
of Police, Mumbai. But the prosecution failed to prove the issuance of the
prohibitory order. What was produced on the record was a printout of the
order dated 21/05/2011. It did not bear the signature the
Dy.Commissioner of Police (Operations), Brihan Mumbai or the seal of his
office. Hence, it was marked as ArticleX92 for identification purposes.
The prosecution failed to prove the prohibitory order in accordance with
the law.
840. Let’s assume for a moment that the prosecution has proved the
prohibitory order dated 21/05/2011. Then the next question which arises
for consideration is whether it was executed in true letter and spirit i.e.
whether it was advertised in such a manner so as to bring it to the notice
of the general public. To prove the same, the prosecution examined
PW.98Sambhaji Jagdale and PW.101Deepak Kamble who were attached
to the Police Station, Powai at the relevant time.
841. PW.98Sambhaji Shivaji Jagdale deposed that on 24/05/2009, he
was on duty along with PW.101Deepak Budhaji Kamble who was posted
as the ASI (Mill Special). He deposed that the prohibitory order was
executed by him and PW.101Deepak Kamble. He deposed that the xerox
copy of the said order was prepared and after making the necessary entry
in the station diary, both of them went to various places within the
jurisdiction of the Police Station, Powai and the Police Outposts and
pasted the xerox copy of the order. He deposed that the general public
was also informed about the order through megaphone. The evidence of
PW.101Deepak Kamble is also on the same lines.
842. The perusal of the evidence of PW.98Sambhaji Jagdale and

PW.101Deepak Kamble shows that though both of them have deposed
560
that they executed the prohibitory order by pasting the xerox copy of the
order at various places within the jurisdiction of the Police Station, Powai
and the Police Outposts and that the general public was also informed
about the order through megaphone, none of them was able to name even
one public place where the said order was pasted. Even the station diary
entry (Exh.872) which was made after the prohibitory order was executed
is silent about the places where both of them had visited. Therefore, there
is no material on the record to show that both of them had actually visited
any place for informing the general public about the order.
843. In the case of Ramesh Mulchand Ramani V. State of Maharashtra
reported in 1980 Bom.C.R. 822, the revision applicant therein was
convicted and sentenced by the learned Trial Court for the offence u/s.135
read with section 37 of the Bombay (Maharashtra) Police Act, 1951. The
appeal against the said judgment before the Session Court was partly
allowed in the sense that the period of imprisonment and the amount of
fine was reduced. The Hon'ble High Court allowed the revision application
observing that there was no evidence to show that the prohibitory order
was publicly promulgated as required u/s. 37 of the Bombay
(Maharashtra) Police Act, 1951. The observations made by the Hon'ble
High Court in the case of Ramesh Mulchand Ramani (supra) are
squarely applicable to the facts of the present case in as much as in the
present case also there is no evidence to show that the prohibitory order
was publicly promulgated as required u/s.37 of the Bombay
(Maharashtra) Police Act,1951. There is no evidence to show that this
order was published in the Government Gazette. Hence, it has to be said
that the prosecution has failed to prove that the accused no.1Rohee
Tangappan Joseph @ Satish Kalya has committed the offence punishable
u/s.37(1)(a) r/w. 135 of the Bombay (Maharashtra) Police Act,1951.
561
Therefore, point no.6 is answered in the negative.
AS TO POINT NOS.7 TO 9 [OFFENCES UNDER THE MCOC ACT,1999]
844. As per the prosecution the murder of J.Dey was as organized crime
committed by the Organized Crime Syndicate headed by the accused
no.12Chhota Rajan and the other accused persons who are before this
Court along with the wanted accused persons are the members of the said
Organized Crime Syndicate.
845. From the evidence of PW.142API Datir it has come on the record
that on 01/07/2011, he had sent the proposal to the Joint Commissioner
of Police, Mumbai for granting approval for invoking the provisions of the
MCOC Act,1999 in the present case. Accordingly, the Joint Commissioner
of Police, Mumbai granted the prior approval (Article285) on
07/07/2011 and the provisions of the MCOC Act,1999 were invoked in
this case. It may be noted that though the order granting prior approval
which was issued by the Joint Commissioner of Police, Mumbai was
marked as Article as he could not be examined due to his health issues the
defence had crossexamined the other witnesses especially PW.149CP
Patnaik on this point. This shows that the defence did not dispute that the
prior approval u/s.23(1)(a) of the MCOC Act,1999 was granted in this
case. After the prior approval was granted, the investigation was handed
over to PW.143ACP Duraphe. PW.149CP Patnaik issued the sanction
order (Exh.250) on 13/10/2011 with reference to the first chargesheet.
He also issued the sanction order (Exh.251) against the accused no.11
Ms.Jigna Vora on 18/02/2012 with reference to the first supplementary
chargesheet.
846. Before considering whether the murder of J.Dey was an organized
562
crime, it will be appropriate to have a look at certain definitions under the
MCOC Act,1999 which are relevant for the purposes of the present case.
847. Section 2(1)(d) of the MCOC Act,1999 reads as under:
“2(1)(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
organised crime syndicate or on behalf of such syndicate in
respect of which more than one chargesheets have been field
before a competent Court within the preceding period of ten
years and that Court has taken cognizance of such offence;
848. Section 2(1)(e) of the MCOC Act,1999 reads as under:
“2(1)(e). "organised crime" means any continuing unlawful
activity by an individual, singly or jointly, either as a member of
an organised 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 person or promoting insurgency;
849. Section 2(1)(f) of the MCOC Act,1999 reads as under:
“2(1)(f). "organised crime syndicate" means a group of two or
more persons who, acting either singly or collectively, as a
syndicate of gang indulge in activities of organised crime;”
850. From the joint reading of the above definitions, it can be said that in
order to consider an offence as an organized crime, the following
ingredients will have to be proved by the prosecution:
i) that there was a continuing unlawful activity;
ii) that such a continuing unlawful activity was done by an
individual, singly or jointly;
iii) that such a continuing unlawful activity was either by a
563
member of an Organized Crime Syndicate or on behalf of
such syndicate;
iv) that there was use of violence or threat of violence or
intimidation or coercion or other unlawful means;
v) that such a continuing unlawful activity was done with an
objective of gaining pecuniary benefits or gaining undue
economic or other advantage for the person who
undertakes such an activity or any other person or
promoting insurgency;
vi) that such a continuing unlawful activity was prohibited by
law for the time being in force;
vii) that such a continuing unlawful activity was a cognizable
offence punishable with imprisonment of three years or
more;
viii) that such a continuing unlawful activity was undertaken
either singly or jointly, as a member of an Organized
Crime Syndicate or on behalf of such syndicate;
ix) that in respect of such a continuing unlawful activity more
than one chargesheet was filed before a competent Court;
x) that the chargesheet was filed within a preceding period
of ten years; and
xi) that the competent Courts had taken cognizance of such
offences.
851. In the present case, the prosecution will have to show that the
unlawful activity mentioned in the previous chargesheets was undertaken
by the person(s) as members of Organized Crime Syndicate or on behalf of
such syndicate.
852. To prove that the unlawful activity was committed by the syndicate,
the prosecution has relied upon two previous chargesheets. The first
chargesheet (Exh.563) which was proved through the evidence of PW.20
PSI Suresh Avad (He filed the said chargesheet) arises out of
C.R.No.07/2005 registered with Police Station, Bhandup for the offences
564
punishable u/s. 387, 342, 452, 427, 323, 147, 148, 149, 504, 506 (II) of
the IPC and u/s.37(1), 135 of Mumbai (Maharashtra) Police Act,1951.The
second chargesheet (Exh.571) which was proved through the evidence of
PW.21Ramesh Pargunde (He filed the said chargesheet) arises out of
C.R. no.86/2005 registered with DCB CID for the offences punishable
u/s.384, 385, 386, 387, 34 r/w 120B r/w. 466, 467, 468, 471, 420 of the
IPC, u/s.3(1)(ii), 3(2), 3(5) of MCOC Act,1999 and u/s. 12(1)(b) of the
Passports Act, 1967.
853. It may be noted that though PW.20PSI Suresh Avad was cross
examined on behalf of the accused nos.2, 5 and 11 and though PW.21
Ramesh Manohar Pargunde was crossexamined on behalf of the accused
nos.1,6 and 7 surprisingly both these witnesses were not crossexamined
on behalf of the accused no.12Chhota Rajan who is alleged to the head of
the Organized Crime Syndicate. That apart, both these witnesses were not
crossexamined on the point of filing of the respective chargesheets and
taking cognizance of the offence by the Competent Court.
854. The perusal of the chargesheet (Exh.563) shows that the provisions
of the IPC and Arms Act,1959 were invoked whereas the perusal of the
chargesheet (Exh.571) shows that the provisions of the IPC and MCOC
Act,1999 were invoked. It may be noted that in so far as the chargesheet
(Exh.563) is concerned, the sections under MCOC Act,1999 were not
applied. But, it is not necessary that in the previous chargesheet it should
be specifically mentioned that the act was done by the accused as a
member of an Organized Crime Syndicate or on behalf of such syndicate.
Therefore, the said chargesheet cannot be kept out of consideration as the
perusal of the said chargesheet will clearly show that the act was
allegedly committed by the accused therein as members of Organized
565
Crime Syndicate or on behalf of such syndicate.
855. The chargesheet (Exh.563) shows that in all there were sixteen
accused persons in that case. Similarly, the chargesheet (Exh.571) shows
that in all there were seventeen accused persons in that case. From these
two chargesheets, it is clear that the offence therein was committed at the
behest of the accused no.12Chhota Rajan. In both the cases, the offences
with which the accused persons were charged were punishable with
imprisonment of 3 years or more. Both the chargesheets were filed in the
year 2005. The offence in the present case was committed on
11/06/2011. Thus, both the previous chargesheets were filed within
preceding period of ten years. In so far as the chargesheet (Exh.563) is
concerned, the last page of the chargesheet itself show that the then
learned Additional Chief Metropolitan Magistrate, 37 th Court, Esplanade,

Mumbai had taken cognizance of the offence on 10/05/2006. In so far as
the second case is concerned, it was registered as MCOC Special Case
no.25/2005. The certified copy of the chargesheet (Exh.571) obtained
from the copying branch of the Hon'ble High Court, Appellate Side,
Bombay shows that Criminal Appeal no.517/2011 was filed by Vikrant
Vishal Malhotra @ Viki Malhotra @ V.R. Chowhari, one of the accused in
the chargesheet (Exh.571). Hence, the MCOC Special Case no.25/2005 is
decided and one of the accused therein has filed appeal against judgment
of the Special Court. Therefore, it can be safely concluded that cognizance
was taken by the MCOC Special Court as the judgment could be passed
only after the cognizance of the offence was taken. As such, it is clear that
in both the cases, the Competent Court had taken the cognizance of the
offence mentioned therein.
856. At this stage, it may also be stated here that while giving answer to
566
question no.499 in his statement u/s.313(b) of Cr.P.C.,1973 the accused
no.12Chhota Rajan has admitted that till the year 1993 he was working
with Dawood Ibrahim and after the Mumbai bomb blasts he separated
from Dawood Ibrahim. This further reinforces the fact that he was
indulging in unlawful activities even at that time.
857. In view of the above, it will have to be held that all the necessary
ingredients to prove continuing unlawful activity as defined u/s.2(1)(d) of
the MCOC Act,1999 are established in terms of the law.
858. It may be noted that in the previous chargesheets (Exh.563 and

571) the accused no.12Chhota Rajan is shown as wanted. On the basis of
the above, the learned Advocate for the accused nos.1,6 and 7 submitted
that there was no previous chargesheet against the head of the syndicate
and therefore, the provisions of MCOC Act,1999 cannot be invoked. As
already discussed above, the offences mentioned in the previous charge
sheets (Exh.563 and 571) were committed at the instance of the accused
no.12Chhota Rajan. All other ingredients of section 2(1)(d) of the MCOC
Act,1999 are attracted. The cognizance of the offence was taken by the
Competent Court. The accused no.12Chhota Rajan was shown as wanted
in the two previous chargesheets as admittedly he was not in India at that
time. Therefore, he could not be arrested and taken into custody. Hence,
the objection cannot be sustained.
859. It may be noted that during crossexamination of the concerned

witnesses it has been brought on record that in so far as the previous
chargesheets (Exh.563 & 571) are concerned, none of the present accused
except the accused no.12Chhota Rajan is arrayed as an accused in those
cases. In the case of Govind Sakharam Ubhe V. State of Maharashtra
567
reported in 2009(3) Bom.C.R.(Cri) 144, the Hon'ble High Court has

discussed in detail about unlawful activity referred to in MCOC Act,1999
and about the relevance of the previous chargesheets to prove continuing
unlawful activity. Paragraph nos.36,37,39 and 44 are reproduced below
for ready reference :
"36. The words 'in respect of which more than one chargesheet
have been filed' cannot go with the words 'a member of a crime
syndicate' because in that case, these words would have read as
'in respect of whom more than one chargesheet have been filed'.
37. But even otherwise, if all provisions are read together we
reach the same conclusion. Section 2(1)(d) which defines 'con
tinuing unlawful activity' sets down a period of 10 years within
which more than one chargesheet have to be filed. The mem
bers of the crime syndicate operate either singly or jointly in
commission of organized crime. They operate in different mod
ules. A person may be a part of the module which jointly under
takes an organized crime or he may singly as a member of the
organized crime syndicate or on behalf of such syndicate under
take an organized crime. In both the situations, the MCOCA can
be applied. It is the membership of organized crime syndicate
which makes a person liable under the MCOCA. This is evident
from section 3(4) of the MCOCA which states that any person
who is a member of an organized crime syndicate shall be pun
ished with imprisonment for a term which shall not be less than
five years but which may extend to imprisonment for life and
shall also be liable to fine, subject to a minimum of fine of Rs.5
Lakhs.
The charge under the MCOCA ropes in a person who as a
member of the organized crime syndicate commits organized
crime i.e. acts of extortion by giving threats, etc. to gain eco
nomic advantage or supremacy, as a member of the crime syndi
cate singly or jointly. Charge is in respect of unlawful activities
of the organized crime syndicate. Therefore, if within a period of
preceding ten years, one chargesheet has been filed in respect
of organized crime committed by the members of a particular
crime syndicate, the said chargesheet can be taken against a
member of the said crime syndicate for the purpose of applica
tion of the MCOCA against him even if he is involved in one
568
case. The organized crime committed by him will be a part of
the continuing unlawful activity of the organized crime syndi
cate. What is important is the nexus or the link of the person
with 'organized crime syndicate.' The link with the 'organized
crime syndicate' is the crux of the term 'continuing unlawful ac
tivity.' If this link is not established, that person cannot be roped
in.
39. The submission on behalf of the appellant is that even

though all the four accused namely, A,B,C and D may be mem
bers of the organized crime syndicate since against each of the
accused not more than one chargesheet is filed, it cannot be
held that they are engaged in continuing unlawful activity as
contemplated under Section 2(1)(d) of the MCOCA. Apart from
the reasons which we have given hereinabove as to why such a
construction is not possible, having regard to the object with
which the MCOCA was enacted, namely to make special provi
sions for prevention and control of organized crime syndicate
and for coping with criminal activity by organized crime syndi
cate, in our opinion, Section 2(1)(d) cannot be so construed.
Such a construction will defeat the object of the MCOCA. What
is contemplated under Section 2(1)(d) of the MCOCA is that ac
tivities prohibited by law for the time being in force which are
punishable as described therein have been undertaken either
singly or jointly as a member of organized crime syndicate and
in respect of which more than one chargesheets have been filed.
Stress is on the unlawful activities committed by the organized
crime syndicate. Requirement of one or more chargesheet is
qua the unlawful activities of the organized crime syndicate.
44. Since in Asifkhan, the point which we are considering was
squarely raised and answered, its ratio is attracted to the present
case. In Deepak Bajaj V/s. State of Maharashtra and Anr.
2009(2) LJSOFT (SC) 36 2008 AIR SCW 7788, which
considering the precidential value of a judgment, the Supreme
Court took a resume of several decisions rendered by it. The
Supreme Court referred to its judgement in Ambica Quarry
Works V/s. State of Gujarat and Ors. (1987) 1 SCC 213, where
it has observed that the ratio of any decision must be understood
in the background of the facts of that case and a case is only an
authority for what is actually decides and not what logically
follows from it. In the light of this, we are of the opinion that the
words 'more than one chargesheet' contained in Sec.2(1)(d)
569
refer to unlawful activities of the organized crime syndicate.

Requirement of more than one chargesheet is qua the unlawful
activities of the organized crime syndicate and not qua
individual member thereof."
860. In view of the above, it cannot be said that for invoking the
provisions of the MCOC Act,1999 in the present case, all the accused in
this case should be coaccused in previous chargesheet. It may be noted
that it is a common phenomenon that new members join existing
Organized Crime Syndicate and commit offence. Under such
circumstances, their involvement in previous chargesheets will not be
disclosed. However, section 3(4) of the MCOC Act,1999 provides for
punishment to a person who is a member of an Organized Crime
Syndicate. In that sense, merely because, accused nos.1 to 7 and 9 are not
coaccused in previous chargesheets, it cannot held that they are not the
members of an Organized Crime Syndicate.
judgments in the case of State of Maharashtra V. Shiva @ Shivaji
Sonawane and others reported in (2016) 2 SCC 375 and in the case of
Prafulla s/o. Uddhav Shende V. State of Maharashtra reported in 2009
ALL MR (Cri) 870 to contend that mere filing of the previous charge
sheets was not sufficient to rope in the accused persons for the offences
under the MCOC Act,1999 and that all the other requirements as
contemplated by the definition of "continuing unlawful activity" must be
fulfilled. This Court has gone through the above judgments. The said
judgments are not applicable to the facts of the present case, as in the
present case, the prosecution has proved the continuation of the
'continuing unlawful activity' by the Organized Crime Syndicate of the
570
862. The next question which arises for consideration is whether the
accused persons committed 'organised crime' as defined u/s.2(1)(e) of the
MCOC Act,1999 and the same was committed by the 'Organised Crime
Syndicate' as defined u/s.2(1)(f) of the MCOC Act,1999. It has already
been held above that the prosecution has duly proved that the murder of
J.Dey was committed in pursuance of a criminal conspiracy. The
prosecution has also proved that the accused no.1Rohee Tangappan
Joseph @ Satish Kalya fired five bullets at J.Dey from his revolver at the
instance of the accused no.12Chhota Rajan. The prosecution has also
proved that the accused nos.2 to 7 were consciously present with him at
that time and they were actively assisted the accused no.1Rohee
Tangappan Joseph @ Satish Kalya in completing the task. The prosecution
has also proved that the cartridges and the revolver used in the crime were
supplied by the accused no.9Deepak Sisodiya and the wanted accused
no.1Nayansingh Bista. The accused no.12Chhota Rajan was the
mastermind of this offence. Therefore, the continuance of the unlawful
activity at the instance of the accused no.12Chhota Rajan is proved. The
accused no.12Chhota Rajan is the head of the Organized Crime Syndicate
and as such he is also a member of the syndicate along with the accused
nos.1 to 7.
863. Evidently, the act of committing the murder of J.Dey was not done
for any pecuniary gain or economic advantage. Therefore, the question is
what was the advantage which the accused persons were seeking by
committing the murder of J.Dey and whether it would be covered within
the term “other advantage” as mentioned in section 2(1)(e) of the MCOC
Act,1999?.
571
864. As stated earlier, the case of the prosecution is that J.Dey had
written two articles (Exh.752 colly) which were published in the daily
'MidDay' dated 30/05/2011 and 02/06/2011 respectively which were
against the interests of the accused no.12Chhota Rajan. Also, J.Dey was
in process of writing and publishing one book related to the accused
no.12Chhota Rajan and another book related to Dawood Ibrahim. As per
the prosecution, these books were in the preliminary stages and portrayed
the accused no.12Chhota Rajan as a small time criminal and at the same
time glorified Dawood Ibrahim which made the accused no.12Chhota
Rajan angry.
865. In so far as the writing and publication of the two books is

concerned, the prosecution has relied upon the evidence of PW.41Aakash
Shah who was a Publisher and the evidence of PW.46Ms.Poornima
Swaminathan who was working with J.Dey at the relevant time. The
prosecution has also relied upon emails (Exh.651 colly) which were
exchanged between PW.46Ms.Poornima Swaminathan and the publisher
which contained a draft of some of the chapters of the books. The perusal
of the contents of the emails shows that PW.46Ms.Poornima
Swaminathan had gathered information about the gangsters belonging to
the gang of Dawood Ibrahim, his rivals from the gang of the accused
no.12Chhota Rajan, his childhood friends and several retired Police
Officers regarding the rise of Dawood Ibrahim from a smuggler to a Don
and then to a terrorist. The book was to focus on the qualities of Dawood
Ibrahim. It was also to focus on the failed assassination plots of Dawood
Ibrahim by the accused no.12Chhota Rajan and his gang. PW.46
Ms.Poornima Sawminathan has deposed that the proposed name of the
book which was about the accused no.12Chhota Rajan was “Chindirags
to riches”. In crossexamination, it was brought on the record that the said
572
book was about the rise of small time offenders.
866. It is no doubt true that from the evidence of PW.46Ms.Poornima
Swaminathan it appears that while the book which was to be written
about Dawood Ibrahim was to focus on his qualities, the book which was
about the accused no.12Chhota Rajan portrayed him as a small time
offender. However, this Court is not inclined to rely upon the evidence of
PW.46Ms.Poornima Swaminathan for the reason that whatever she has
deposed before this Court about the books and the exchange of emails
with the publisher was in private domain. All the information about this
was known either to her or the Publisher or J.Dey. There is nothing on the
record to show that these emails were in public domain so as to enable
the accused no.12Chhota Rajan or any other person to access them. There
is nothing on the record to show that the accused no.12Chhota Rajan was
aware that these books were going to be published or that he was aware
about contents of these books. Hence, no value can be attached to the
evidence of PW.41Aakash Shah and PW.46Ms.Poornima Swaminathan or
to the emails (Exh.651 colly).
867. In so far as the newspaper articles (Exh.752 colly) are concerned,
these news articles were in public domain and could be easily accessed by
one and all. The accused no.12Chhota Rajan was also aware about the
news articles (Exh.752 colly.) The prosecution has proved this fact
through the evidence of PW.78Sunilkumar Singh to whom the accused
no.12Chhota Rajan had made the extrajudicial confession. Just to recall,
during the phone call which the accused no.12Chhota Rajan had made to
him on 01/07/2011, while giving the reason for eliminating J.Dey, the
accused no.12Chhota Rajan had told PW.78Sunilkumar Singh that J.Dey
was tarnishing his image and in the articles dated 30/05/2011 and
573
02/06/2011 (Exh.752 colly.) J.Dey had written bad things about him and
had created a picture as if he was an antinational.
868. In view of the above position, it will be appropriate to

independently consider the effect of the articles (Exh.752 colly.) which
were proved by the prosecution through the evidence of PW.68Sachin
Kalbag who was the Executive Editor of the daily 'MidDay' at the relevant
time. He was the person who had certified the news articles and furnished
the same to the Police during the course of the investigation. The perusal
of his evidence makes it clear that the defence has not challenged the fact
that these articles were written by J.Dey and published in the daily 'Mid
Day'. In fact, the learned Advocate for the accused no.12 has also relied
upon these news articles along with the other news articles (Exh.584 colly
at page 22, 69).
869. Before considering the news articles (Exh.752 colly), it needs to be
clarified that this Court is not going into the genuineness of the contents
of the news articles (Exh.752 colly.). But as the publication of these news
articles is admitted by the learned Advocate for the accused no.12 and
considering the fact that through the evidence of PW.78Sunilkumar
Singh, the prosecution has proved that the accused no.12Chhota Rajan
was aware about the publication of these two news articles, this Court is
only trying to find out whether on their face value, these two news articles
could have prompted the accused no.12Chhota Rajan to draw the final
straw and to get rid of J.Dey.
870. The perusal of the first news article dated 30/05/2011 titled “DID
RAJAN PLAN HIT ON KASKAR?” will show that J.Dey had written this
article with reference to the shootout which had taken place in the Bhendi
574
Bazar area. With reference to the accused no.12Chhota Rajan following
remarks were made in the news article:
(i) J.Dey had written that as per the sources ageing gangster
accused no.12Chhota Rajan may have plotted the shootout as a
desperate attempt to seize a Lion's claim in the underworld pie.
(ii) Accused no.12Chhota Rajan was making an effort to muscle
his way back into Mumbai's underworld.
(iii) Accused no.12Chhota Rajan did what very few gangster

would attempttake on the might of D company.
(iv) Accused no.12Chhota Rajan was careful to spare the life of
Dawood's sibling Iqbal, fearing a serious backlash.
(v) Quoting the accused no.12Chhota Rajan it was stated that
he did not have the power and clout of rival Dawood.
(vi) Quoting accused no.12Chhota Rajan it was stated as

follows : " I was provided with a chauffeurdriven car and a
villa in Dubai. Mere bhi izzat thi. But I gave away every thing
after the 1993 blast. I worked for the Indian Intelligence, but
that was something of the past. Ab to dukh mein sukh mana rahe
hain."
(vii) Accused no.12Chhota Rajan was ageing and getting

restive. He was burned with overseas expenses and there was
very little protection money generated by his depleted gang
members.
(viii) Accused no.12Chhota Rajan was backing on his reserves
in Kathmandu to relaunch himself in the upper echelon of
Mumbai's underworld.
(ix) Quoting a source it was written that "But stirring the

575
Hornet's nest by opening fire at Iqbal's residence is a clear sign of
desperation. It is like sending the message that I am still active."
(x) Other reasons for his desperation could be because most of
the constructions work in North Mumbai and Navi Mumbaihis
strongholdswere completed and he was now looking for
greener pastures like SOBO and BorivaliVirar Belt and firing on
Kaskar's residence was seeking mileage from the incident.
(xi) It was also stated that the accused no.12Chhota Rajan was
putting the Dawood siblings in Mumbai under continuous Police
surveillance, something which most gangsters want to stay away
from.
871. In the news article dated 02/06/2011 titled "FEARING DGANG

BACKLASH... RAJAN GANGSTERS OFF TO 'PILGRIMAGES'" J.Dey had
made the following remarks with reference to the accused no.12Chhota
Rajan:
(i) His gang members were missing from their hideouts in the
city.
(ii) His gang members were going underground fearing back
lash after the attack on Dawood Ibrahim's brother Iqbal Kaskar
at Bhendi Bazar one month ago.
(iii) Members of his gang had shifted base to safer showers to
avoid being targeted by shooters from the DCompany. Quoting
the Joint Commissioner of Police (Crime), it was stated that
"Glaring cases in point are a large number of Rajan Gangster
operating from Dharavi and Tilaknagar, Chembur, who have
gone on pilgrimages to avoid the DGang's warth".
(iv) Officers also believed that the point men of the accused
no.12Chhota Rajan in Mumbai, including Umedur Rehman and
members of his faction were on the run and Police teams were
trying to trap them.
872. From the point of view of a prudent mind the comments made by
576
J.Dey in the two news articles with reference to the accused no.12Chhota
Rajan may not have any value. A prudent mind may even ignore such
comments. But for analyzing the effect of the above mentioned comments
on a criminal mind, one will have to step out of the shoes of a prudent
mind, enter into the shoes of a criminal mind and then analyze the effect
of such comments. This is because a criminal mind acts differently than
what a normal and prudent mind would do and rules of prudence
sometimes fail while dealing with a scheming mind.
873. When the statements made by J.Dey through the newspaper articles
(Exh.752 colly) are considered from the point of view of a criminal mind
then certainly, these articles would anger a criminal mind. On reading
such news, a criminal mind will feel that he was undervalued, demeaned
and was shown to be very weak in comparison to his arch rival. Ego would
have been hurt. In so far as the accused no.12Chhota Rajan is concerned,
it may be reiterated that prosecution has already proved that he was angry
with J.Dey as J.Dey was giving credit to others for the work done by him
and J.Dey was working for Dawood who was his arch rival. Prosecution
has also proved that the accused no.12Chhota Rajan suspected that J.Dey
was working for Dawood Ibrahim. It cannot be forgotten that while in the
Courts of law it is said that suspicion howsoever strong does not take place
of proof, but in the underworld slightest of suspicion about one’s conduct
can lead to his elimination. The articles written by J.Dey had the potential
to affect the activities of the syndicate adversely as the accused no.12
Chhota Rajan was shown to be not only in a very weak position but also
desperate to show that he had a very strong hold in the underworld.
Criminals and gangs thrive on the fear factor. In order to ensure their gang
flourishes, they instill fear in the mind of others. The fear so created
would further the cause of the syndicate. Therefore, if the accused no.12
577
Chhota Rajan was shown to be in a weak position, people would not have
feared him. By committing murder of J.Dey who was a reputed Journalist
a clear message was sent to the media and through the media to the
general public & the rivals that the Organized Crime Syndicate of the
accused no.12Chhota Rajan was very much alive and kicking, that
nobody should dare to say anything against him and if anybody dared to
do so, then he would meet the same fate as J.Dey. Thus, the advantage
which was sought to be taken was to establish fear in the minds of the
people and to show that the Organized Crime Syndicate of the accused
no.12Chhota Rajan was still strong and active. This is one of the 'other
advantage' which every Organized Crime Syndicate seeks so as to ensure
that due to fear the public and the opponents are wary of the Organized
Crime Syndicate. Therefore, in so far as the present case is concerned, it
has to be said that the advantage which was sought to be achieved by the
act of committing the murder of J.Dey is very much covered within the
words “other advantage” as mentioned in section 2(1)(e) of the MCOC
Act,1999.
874. At this stage, a reference may also be made to the newspaper

articles (Exh.584 colly) which were written by J.Dey. It needs to be noted
that these news articles were brought on the record on behalf of the
accused no.12Chhota Rajan through the evidence of PW.25Shiva
Devnath who was a Journalist in the daily 'MidDay' at the relevant time
and was working under J.Dey. During the course of hearing, the learned
Advocate for the accused no.12Chhota Rajan relied upon these news
articles to show that J.Dey was killed at the instance of Dawood Ibrahim
or other bookies/ gangsters as he had written news articles against them.
But no evidence was brought on the record to even prima facie show that
J.Dey could have been murdered by somebody else. Additionally, it may
578
be stated that during the course of the evidence of PW.152IO CBI, it has
come on the record, that during the further investigation conducted by
him, he had found that during the investigation conducted by the DCB
CID, the involvement of the oil mafia, cable operators, bookies and
punters was examined but nothing was found.
875. According to the learned Advocate for the accused no.2, as it is the
case of the prosecution that the murder of J.Dey was committed at the
instance of accused no.12Chhota Rajan in order to show supremacy in
underworld, the provisions of MCOC Act, 1999 are not attracted to the
present case. In this regard, reliance was placed upon the judgment in the
case of Niranjan Singh Karam Singh Punjabi, Advocate V. Jitendra
Bhimraj Bijja and others reported in 1990 Cri.L.J. 1869. This Court has
gone through the above mentioned judgment. The said judgment is not
applicable to the facts of the present case. It is no doubt true that in the
said judgment the allegation on the accused persons therein was that they
had committed the murder of the deceased for gaining supremacy in the
underworld. But in that case the accused persons therein were charged for
committing offence u/s.3 of the TADA Act,1987 and not under the MCOC
Act,1999. The TADA Act,1987 was enacted to make a special provision for
the prevention of, and for coping with, terrorist and disruptive activities
and for matter connected therewith or incidental thereto. On the other
hand, the MCOC Act,1999 was enacted for prevention and control of and
for coping with, criminal activity by Organized Crime Syndicate or gang
and for matters connected therewith or incidental thereto. Thus, the object
of the MCOC Act,1999 is different from the object of TADA Act,1987.
Therefore, considering the object of the MCOC Act, 1999 the case of the
prosecution is clearly covered under the provisions of the MCOC Act,
1999.
579
SANCTION FOR PROSECUTION UNDER THE MCOC ACT,1999.
876. As per section 23(2) of the MCOC Act,1999 no Special Court shall
take cognizance of any offence under this Act without the previous
sanction of the Police Officer not below the rank of Additional Director
General of Police.
877. In the present case, the sanction orders (Exh.250 and 251) were

marked as exhibits in view of the judgment of the Hon'ble Supreme Court
of India in the case of Jiyalal (supra). However, the prosecution
examined PW.149CP Patnaik who was the Sanctioning Authority under
the MCOC Act, 1999 in support of the sanction order.
878. PW.149Sanctioning Authority deposed that for the purposes of

passing the sanction order in the present matter he had received the
papers of investigation from the Crime Branch which included the FIR,
confessional statements, other statements, various panchanamas, seizure
memorandums etc. He deposed that he went through all the papers and
scrutinized them. He deposed that he also called the Investigating Officer
and discussed the case and thereafter, as he was convinced that this was a
fit case for granting sanction he issued the sanction order (Exh.250) dated
13/10/2011. He deposed that he also issued the sanction order (Exh.251)
against one accused (Accused no.11Ms.Jigna Vora) subsequently in the
month of February 2012 and that time also, he had studied the proposal
initiated by the Investigating Officer, scrutinized all the papers and the
evidence.

stated that he did not put the date on the sanction order himself. He
stated that the sanction order (Exh.250) did not bear the seal of his office.
580
He admitted that in the sanction order, the date of the incident or the date
on which he had received the papers was not mentioned. He stated that
the papers of investigation also did not bear the initials of the Jt.
Commissioner of Police, the Addl. Commissioner of Police and the Dy.
Commissioner of Police of having gone through them. He denied that the
sanction orders were mechanically passed. He denied that there was no
evidence to show that there was any conspiracy to commit the murder of
J.Dey.
he was generally aware about the facts of the case before he had received
the case papers for according sanction. He stated that he did not
remember as to when for the first time he was appraised about the facts of
this case. He stated that there may have been some discussion between
him and the Jt. Commissioner of Police before he received the case papers.
He stated that in the previous chargesheets which were relied upon by
him only the names of accused no.12Chhota Rajan and accused no.1
Rohee Tangapan Joseph @ Satish Kalya were shown and considered for
the purposes of invoking the provisions of the MCOC Act,1999 in this case.
He admitted that the other persons who were shown as the accused in this
case were not concerned with those two chargesheets. He stated that the
accused no.12Chhota Rajan was not chargesheeted in the two cases
(Exh.563 and Exh.571). He admitted that in the chargesheets (Exh.563
and Exh.571) the name of accused no.1Rohee Tangappan Joseph @
Satish Kalya was also not reflected as accused.
881. He stated that he did not come to any conclusion that the crime in
the present case was committed to show supremacy in the underworld. He
stated that it was his personal opinion that the crime was committed to
581
give a message to the rest of the world. He admitted that while holding
the post of the Commissioner of Police he had issued the sanction orders
under the MCOC Act,1999 in a number of cases. He admitted that before
issuing the sanction order he used to always have discussion with the
concerned Officer. He denied that the draft sanction order was provided to
him along with the papers of investigation. He denied that the sanction
which was accorded was not a proper sanction. He denied that he had
relied upon a team of Officers and accorded the sanction orders or that he
had accorded the sanctions blindly.
882. The learned Advocate for the accused nos.3,4 and 12 declined to
crossexamination.

stated that before according sanction, he had gone through the case
papers. He denied that he was occasionally inspecting the records of this
case after the investigation was started. He stated that he did not
remember the exact date on which the proposal for sanction was placed
before him for the first time. He stated that before the papers were placed
before him, the Dy. Commissioner of Police (Crime), Addl. Commissioner
of Police (Crime) and the Jt. Commissioner of Police (Crime) had analyzed
the case papers. He stated that the proposal contained all the documents
on which he had relied. He stated that the papers were not sent to the
legal department for opinion before he accorded the sanction. But he
stated that he had orally consulted with the Law Officer prior to
13/10/2011. He stated that it was the usual practice of the department to
consult the Law Officer to ensure that there was no legal infirmity in the
process. He denied that the Law Officer had opined that the sanction was
required to be granted in this case.
582

884. He stated that though he could not say as to what were the
observations of the Commissioner of Police (Crime), Addl. Commissioner
of Police (Crime) and Jt. Commissioner of Police (Crime) on the proposal
they had all unanimously agreed that this was a fit case for according
sanction. He admitted that the Jt. Commissioner of Police (Crime) had
accorded the prior approval in this case. He stated that he had relied upon
two prior cases of accused no.12Chhota Rajan and two prior cases of
accused no.1Rohee Tangappan Joseph @ Satish Kalya for the purposes of
granting sanction. He stated that in all he had relied upon four previous
chargesheets.
885. He stated that the details and the crime numbers of the previous
chargesheets were not mentioned in the sanction order. He denied that
he did not recollect what was the material before him to show the
complicity of accused no.11Ms.Jigna Vora in this case. He stated that he
had considered the conduct of accused no.11Ms.Jigna Vora immediately
prior to the incident i.e. she had gone on leave one or two days prior to
the incident and had returned on the job after about 10 days of the
incident, during that time she was not accessible, that she had written a
news article suggesting that drug peddlers from U.K. could have been
behind the murder of J.Dey. He denied that he passed both the sanction
orders were issued mechanically. He denied that the sanction orders were
already prepared and he only signed them.
886. Before deciding the validity of the sanction orders, it will be

appropriate to have a look at the well settled principles which are required
to be borne in mind while deciding the validity of a sanction order. The
following are the principles in that regard:
583
(a) It is incumbent on the prosecution to prove that the valid
sanction has been granted by the Sanctioning Authority after
being satisfied that a case for sanction has been made out.
(b) The sanction order may expressly show that the Sanctioning
Authority has perused the material placed before him and, after
consideration of the circumstances, has granted sanction for
prosecution.
(c) The prosecution may prove by adducing the evidence that
the material was placed before the Sanctioning Authority and
his satisfaction was arrived at upon perusal of the material
placed before him.
(d) Grant of sanction is only an administrative function and the
Sanctioning Authority is required to prima facie reach the
satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the Sanctioning

Authority cannot be gone into by the Court as it does not sit in
appeal over the sanction order.
(f) If the Sanctioning Authority has perused all the materials

placed before him and some of them have not been proved that
would not vitiate the order of sanction.
(g) An order of sanction should not be construed in a pedantic
manner and there should not be a hyper technical approach to
test its validity.
887. Keeping in mind the aforesaid principles, it will have to be seen
whether the sanction orders issued by PW.149Sanctioning Authority
withstand the scrutiny or not.
888. It is not necessary to analyze the sanction order (Exh.251) with

respect to the accused no.11Ms.Jigna Vora as the prosecution has failed
to prove her involvement in this case. In so far as the sanction order
584
(Exh.250) is concerned, on careful reading of the evidence of PW.149

Sanctioning Authority it is clear that after the prior approval u/s.23(1) of
MCOC Act,1999 was granted by the Joint Commissioner of Police, Birhan
Mumbai, the necessary papers for granting sanction under MCOC
Act,1999 were placed before it. The sanction order (Exh.250) was issued
by PW.149Sanctioning Authority after going through the material which
was placed before it and after verifying the facts from the concerned
Officers. PW.149Sanctioning Authority recorded its prima facie
satisfaction about the commission of offence only after going through the
record which was placed before it. It cannot be forgotten that material in
the form of confessions of accused persons, statement of witnesses,
previous chargesheets etc. were before PW.149Sanctioning Authority
while granting such sanction. Section 114(e) of Evidence Act,1872 raises a
presumption that the official acts have been regularly performed. The
defence could not point out any material from which it can be gathered
that the sanction order (Exh.250) was passed mechanically. Therefore, it
has to be said that the sanction order (Exh.250) was valid.
889. According to the learned Advocate for the accused nos.1,6 and 7,
the sanction order (Exh.250) is vitiated as it does not mention that any
reliance was placed by PW.149Sanctioning Authority on the previous
chargesheets. The said submission cannot be accepted as the perusal of
the sanction order (Exh.250) clearly shows that on the basis of the
material before it, PW.149Sanctioning Authority was satisfied that more
than one chargesheet with respect to activities prohibited by law,
punishable for imprisonment of three years or more were filed within the
preceding 10 years against the accused no.12Chhota Rajan and that the
cognizance of those offences was taken by the competent Court. Further, it
is not the requirement of the law that all the details of the previous
585
chargesheets should be mentioned in the sanction order. In fact, it needs
to be stated that though this point has been raised in the written notes of
arguments, PW.149Sanctioning Authority was not asked any questions on
this point during his crossexamination by the learned Advocate for the
accused nos.1,6 and 7. On the contrary, during crossexamination by the
learned Advocate for the accused nos.5 and 11 it was brought on the
record that while considering the proposal for grant of sanction he had
relied upon four previous chargesheets. As such, the argument made by
the learned Advocate for the accused nos.1,6 and 7 cannot be accepted.
PRESUMPTIONS UNDER THE MCOC ACT,1999.
890. The prosecution has proved that the provisions of the MCOC
Act,1999 were rightly invoked in the present case. Therefore, the
presumptions u/s. 17 and 22 of the MCOC Act,1999 come into play. For
ready reference, they are reproduced below:
“17. Special Rules of evidence. (1)...............
(2) Where it is proved that any person involved in an organised
crime or any person on his behalf is or has at any time been in
possession of movable or immovable property which he cannot
satisfactorily account for, the Special Court shall, unless contrary
is proved, presume that such property or pecuniary resources
have been acquired or derived by his illegal activities.
(3).....................
22. Presumption as to offences under section 3.(1) In a

prosecution for an offence of organised crime punishable under
section 3, if it is proved
(a) that unlawful arms and other material including documents
or papers were recovered from the possession of the accused
and there is reason to believe that such unlawful arms and other
materials including documents or papers were used in the
586
commission of such offence; or
(b) that by the evidence of an expert, the finger prints of the
accused were found at the site of the offence or on anything
including unlawful arms and other material including
documents or papers and vehicle used in connection with the
commission of such offence,
the Special court shall presume, unless the contrary is proved,
that the accused had committed such offence.
(2) In a prosecution for an offence of organised crime

punishable under subsection (2) of section 3, if it is proved that
the accused rendered any financial assistance to a person
accused of, or reasonably suspected of, an offence of organised
crime, the Special Court shall presume, unless the contrary is
proved, that such person has committed the offence under the
said subsection (2).”
891. In the present case, the prosecution has proved that the murder of
J.Dey was an organized crime. The prosecution has also proved recovery
of the revolvers and cartridges from the accused no.1Rohee Tangappan
Joseph @ Satish Kalya. The prosecution has also proved the recovery of
the Qualis vehicle, three motorcycles, various mobile phones and SIM
cards from the accused nos.1,2,4 to 7 and 12. All these articles are
certainly movable property. None of the motorcycles was registered in the
name of any of the accused. Some of the mobile phones and SIM cards
which were recovered from the accused persons were also not registered
in their names. None of the accused persons has proved that they were in
possession of the above articles legally. Therefore, the presumption
u/s.17(2) of the MCOC Act,1999 that they obtained the possession of the
same by their illegal activities for using them in committing the murder of
J.Dey will apply in favour of the prosecution. The accused persons were
entitled to rebut the said presumption by adducing the necessary evidence
587
but unfortunately instead of doing so, they chose to be in denial mode.
892. As stated earlier, the prosecution has proved that the revolver
recovered at the instance of the accused no.1Rohee Tangappan Joseph @
Satish Kalya was used in committing the murder of J.Dey. Therefore, the
presumption u/s.22(1)(a) of the MCOC Act,1999 will operate in favour of
the prosecution. The accused no.1Rohee Tangappan Joseph @ Satish
Kalya was entitled to rebut the said presumption by adducing the
necessary evidence but unfortunately instead of doing so, he chose to be in
denial mode. Hence, it has to be presumed that he was involved in
committing the murder of J.Dey.
893. In view of the above, it is clear that the prosecution has proved that
the provisions of the MCOC Act, 1999 were rightly applied in this case.
Therefore, the confession made by the accused no.9Deepak Sisodiya once
again comes into picture. He has abetted the offence as defined u/s 2(1)
(a) of the MCOC Act,1999 r/w section 107 and 108 of the IPC in as much
as he had rendered assistance in the form of supplying cartridges to the
accused no.1Rohee Tangappan Joseph @ Satish Kalya having the actual
knowledge that he was engaged in assisting the Organized Crime
Syndicate of the accused no.12Chhota Rajan. He was also consciously
present when the wanted accused no.1Nayansingh Bista gave two
revolvers to the accused no.1Rohee Tangappan Joseph @ Satish Kalya.
One of the revolver and the cartridges were used for the committing the
murder of J.Dey. Therefore, he is liable to punished for the offence u/s
3(2) and 3(4) of the MCOC Act,1999 for abetting, knowingly facilitating
the commission of the organized crime, for doing act preparatory to the
organized crime and for being a member of the Organized Crime
Syndicate.
588
894. In view of the above, it is clear that the prosecution has proved the
involvement of the accused nos.1 to 7, 9 and 12 in the conspiracy. The
prosecution has also proved the involvement of accused nos.1 to 7 and 12
in the conspiracy and murder of J.Dey beyond all reasonable doubts. The
prosecution has also proved that the murder of J.Dey was an organized
crime committed by the Organized Crime Syndicate of the accused no.12
Chhota Rajan. The crossexamination of the witnesses was conducted in
such a manner to suggest that a particular thing was “possible” whereas
the defence was required to show that a particular thing was “probable”.
The words “possible” and “probable” both contain 8 alphabets. But the
similarity ends there. Under the Indian law, once the prosecution has led
credible evidence in support of its case, the defence has to prove its
defence on preponderance of “probabilities” and not on “possibilities” as
anything is possible in this world. The defence has indulged in “Hit and
run” kind of crossexamination which was of no use to the defence in any
manner. Hence, point no.7 is answered in the affirmative as against the
accused nos.1 to 7 & 12 only and point nos.8 and 9 are answered in the
affirmative as against the accused nos.1 to 7, 9 and 12 only.
AS TO POINT NO.10 [OFFENCE U/S.201 IPC]
895. As per the prosecution, after the incident, the accused nos.1 to 5, 9
and 10 destroyed some of the SIM cards and mobile phones which were
used for communicating with each other for the purposes of accomplishing
the task of committing the murder of J.Dey. The claim of prosecution that
these accused persons destroyed the SIM cards and mobile phones is only
on the basis that the prosecution could not recover the said SIM cards and
mobile phones. There is absolutely nothing on the record to show that the
Investigating Officers of this case made any effort to find out whether said
589
SIM cards and mobile phones are still working. Merely because a
particular SIM card or mobile phone is not recovered, it cannot be
automatically said that they were destroyed. Efforts made by Investigating
Officers to trace out such SIM cards and the mobile phones must be placed
on the record before concluding that a particular article/evidence is
destroyed. Hence, it has to said that the prosecution has failed to prove
that the accused nos.1 to 5, 9 and 10 have committed an offence u/s.201
of the IPC. Therefore, point no.10 is answered in the negative.
896. The judgment is stopped here for hearing the accused persons on the
point of sentence.
(S.S. ADKAR)
HEARING ON THE POINT OF SENTENCE
897. The accused nos.1 to 7, 9 & 12 and their respective Advocates are
heard on the point of sentence.
898. On behalf of the accused nos.1,6 and 7, it was submitted that they
have a family to maintain and there is nobody to take care of their family.
Hence, it was prayed that minimum sentence may be imposed on the
accused nos.1,6 and 7.
899. On behalf of the accused no.2, it was submitted that there is no

direct evidence against him, he belongs to a good family, he has no
criminal background, that he is suffering from HIV, that his mother is
handicapped and that there is nobody to take care of her. Hence, it was
590
prayed that minimum sentence may be imposed upon the accused no.2.
900. On behalf of the accused nos.3 and 4, it was submitted that they are
the sole bread earners, they are of young age i.e. the accused no.3 is aged
33 years and the accused no.4 is aged 42 years, that the father of the
accused no.4 is handicapped, his sister is also suffering from cancer and he
has to take care of his family. Hence, it was prayed that minimum
sentence may be imposed upon the accused nos.3 and 4.
901. On behalf of the accused no.5, it was submitted that he is only 35
years old, his son is 8 years old, he comes from a poor family, that his
mother is old and he has to take care of her. It was prayed that as this is
not a rarest of rare case, death penalty may not be imposed.
902. On behalf of the accused no.9, it was submitted that he is 46 years
old, partially handicapped, his father is 75 years old, his child is 10 years
old and he has to take care of them. It was also submitted that the accused
no.9 was not involved in the murder of J.Dey. Hence, it was prayed that
minimum sentence may be imposed.
903. On behalf of the accused no.12, it was submitted that he has three
daughters and he has to take care of them. It was also submitted that he is
suffering from various ailments and that he is victim of circumstances.
Hence, it was prayed that minimum sentence may be imposed as this is
not the rarest of rare case for imposing death penalty.
904. The learned SPP submitted that considering the manner in which
the offence was committed the accused persons are required to be dealt
with firmly. He submitted that the Press is the fourth pillar of democracy
591
and J.Dey was an eminent Journalist. He submitted that the murder of
J.Dey was nothing but an attack on a fourth pillar of democracy and that
death penalty should be imposed upon the accused persons. He also
submitted that considering the object of the MCOC Act,1999 maximum
fine may be imposed upon the accused persons and a substantial part of
the same be awarded to the sister of J.Dey who is mentally retarded and
who was solely dependent upon J.Dey for her survival.
905. This Court has considered the submissions made on behalf of the
accused persons and on behalf of the prosecution.
906. For the offence punishable u/s. 302 r/w 120B of the IPC and for
the offence punishable u/s. 3(1)(i) of the MCOC Act,1999, the minimum
sentence which can be imposed is imprisonment for life with fine. For the
offence punishable u/s. 3(2) & 3(4) of the MCOC Act,1999, the minimum
sentence which can be imposed is imprisonment for five years which can
be extended to imprisonment for life with fine of minimum Rs.5,00,000/.
The accused no.1 is also convicted for the offence punishable u/s.25(1B)
of the Arms Act,1959. For the said offence, the minimum sentence which
can be imposed is imprisonment for one year which can be extended to
three years with fine. The accused accused no.1 is also convicted for the
offence punishable u/s.27 of the Arms Act,1959. For the said offence, the
minimum sentence which can be imposed is imprisonment for three years
which can be extended to seven years with fine.
907. The prosecution has proved that the murder of J.Dey was
committed in a well planned manner and in pursuance of criminal
conspiracy. It was an organized crime committed by the Organized Crime
Syndicate of the accused no.12Chhota Rajan. Five bullets were fired at
592
J.Dey. The murder of J.Dey was a cold blooded act. The accused
nos.1,2,4,6,7,9 and 12 have criminal antecedents. In so far as the accused
no.2 is concerned, it was submitted that he was suffering from HIV. But,
that is no ground to show leniency in view of the nature of the offence and
the manner in which it was committed. In so far as the accused no.9 is
concerned, it is no doubt true that he was not aware that the revolver and
the cartridges which were procured through him were going to be used for
committing the murder of J.Dey. But he was fully aware as to for what
purposes such weapons are used. From the evidence on the record, it is
also clear that he was having close connection with the accused no.12
Chhota Rajan. He was in contact with him even after the incident. He was
also knowing the accused no.1 quite well. The mere fact that he is using a
prosthetic foot (Jaipur foot) in his right leg is no ground to show leniency.
From the record, it is seen that no previous case was registered against the
accused no.3. However, that by itself cannot be a ground for showing
leniency considering the fact that he was actively involved in the
conspiracy and murder. The offence committed by the accused nos.1 to 7,
9 and 12 is very serious though it does not fall in the category of the rarest
of rare case so as to invite death penalty. At the same time, the reasons
given by the accused nos.1 to 7,9 and 12 for showing leniency are
common. The accused nos.1 to 7,9 and 12 ought to have thought about
the consequences of their acts before attempting it. As stated earlier, this
is not a case where death penalty needs to be imposed. However,
considering the nature of the offence, the manner in which it was
committed and the purpose for which it was committed, the following
order is passed:
ORDER
1) The accused no.1Rohee Tangappan Joseph @ Rohi @ Satish Kalya
@ Sir, accused no.2Anil Bhanudas Waghmode, accused no.3Abhijit
593
Kashinath Shinde, accused no.4Nilesh Narayan Shedge @ Bablu, accused
no.5Arun Janardan Dake, accused no.6Mangesh Damodar Aagvane @
Mangya, accused no.7Sachin Suresh Gaikwad, accused no.9Deepak
Dalvirsingh Sisodiya and accused no.12Rajendra Sadashiv Nikalje @
Chhota Rajan @ Nana @ Seth @ Sir are convicted as per the 235(2) of
Cr.P.C.1973, for the offence punishable u/s.120B of the IPC (criminal
conspiracy to commit murder) and they are sentenced to suffer rigorous
imprisonment for life with fine of Rs.1,00,000/ (Rupees One Lakh only)
each, in default, to suffer simple imprisonment for three years each.
Mangya, accused no.7Sachin Suresh Gaikwad and accused no.12
Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir are
convicted as per section 235(2) of Cr.P.C.,1973 for the offence punishable
u/s.302 r/w.120B of the IPC and they are sentenced to suffer rigorous
imprisonment for life with fine of Rs.1,00,000/ (Rupees One Lakh only)
each, in default, to suffer simple imprisonment for three years each.
Mangya, accused no.7Sachin Suresh Gaikwad and accused no.12
Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir are
convicted as per section 235(2) of Cr.P.C.,1973 for the offence punishable
u/s.3(1)(i) of the MCOC Act,1999 and they are sentenced to suffer
594
rigorous imprisonment for life with fine of Rs.10,00,000/ (Rupees Ten
Lakhs only) each, in default, to suffer simple imprisonment for five years
each.
Chhota Rajan @ Nana @ Seth @ Sir are convicted as per section 235(2) of
Cr.P.C.,1973 for the offence punishable u/s. 3(2) of the MCOC Act, 1999
and they are sentenced to suffer rigorous imprisonment for life with fine
of Rs.10,00,000/ (Rupees Ten Lakhs Only) each, in default, to suffer
simple imprisonment for five years each.
Chhota Rajan @ Nana @ Seth @ Sir are convicted as per section 235(2) of
Cr.P.C.,1973 for the offence punishable u/s. 3(4) of the MCOC Act, 1999
and they are sentenced to suffer rigorous imprisonment for life with fine
of Rs.5,00,000/ (Rupees Five Lakhs Only) each, in default, to suffer
simple imprisonment for three years each.
595
@ Sir is also convicted as per section 235(2) of Cr.P.C.,1973 for the
offence u/s.3 punishable u/s.25 (1B) of the Arms Act,1959 and he is
sentenced to suffer rigorous imprisonment for three years with fine of
Rs.15,000/ (Rupees Fifteen Thousand only), in default, to suffer simple
imprisonment for six months.
@ Sir is also convicted as per section 235(2) of Cr.P.C.,1973 for the
offence u/s.5 punishable u/s. 27 of the Arms Act,1959 and he is sentenced
to suffer rigorous imprisonment for seven years with fine of Rs.20,000/
(Rupees Twenty Thousand only), in default, to suffer simple imprisonment
for one year.
@ Sir is acquitted as per section 235(1) of Cr.P.C.,1973 for the offence
punishable u/s.37(1)(a) r/w. 135 of the Bombay (Maharashtra) Police
Act,1951.
9) The accused no.9Deepak Sisodiya is acquitted as per the provision
u/s.235(1) of Cr.P.C.,1973 for the offence punishable u/s.302 of the IPC
and section 3(1)(i) of the MCOC Act,1999.
10) The accused no.10Paulson Joseph Palitara and the accused no.11
Ms. Jigna Jitendra Vora are acquitted as per the provision u/s.235(1) of
Cr.P.C.,1973 for the offence punishable u/s. 120B, 302 of the IPC r/w.
3(1)(i), 3(2), 3(4) of the MCOC Act, 1999.
596
no.5Arun Janardan Dake, accused no.9Deepak Dalvirsingh Sisodiya and
accused no.10Paulson Joseph Palitara are acquitted as per the provision
u/s.235(1) of Cr.P.C.,1973 for the offence punishable u/s.201 of the IPC.
12) The accused no.9Deepak Dalvirsingh Sisodiya is on bail. His bail

bond stands canceled and his surety stands discharged. He is taken into
custody.
13) The accused no.10Paulson Joseph Palitara and the accused no.11
Ms. Jigna Jitendra Vora shall execute P.R. Bond of Rs.50,000/ (Rupees
Fifty Thousand only) each with one surety in the like amount as provided
u/s.437A of Cr.P.C.,1973 to appear before the Hon'ble High Court as and
when such Court issues notice in respect of any appeal or petition that
may be filed against the judgment of this Court. The bail bonds shall be in
force for a period of six months.
14) The substantive sentences imposed on the accused no.1Rohee

Tangappan Joseph @ Rohi @ Satish Kalya @ Sir, accused no.2Anil
Bhanudas Waghmode, accused no.3Abhijit Kashinath Shinde, accused
no.4Nilesh Narayan Shedge @ Bablu, accused no.5Arun Janardan Dake,
accused no.6Mangesh Damodar Aagvane @ Mangya, accused no.7Sachin
Suresh Gaikwad, accused no.9Deepak Dalvirsingh Sisodiya and accused
no.12Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir
shall run concurrently.
597

Chhota Rajan @ Nana @ Seth @ Sir shall be entitled for set off u/s.428 of
Cr.P.C, 1973 for the period of detention already undergone by them
during the investigation/trial of this case, against the substantive sentence
awarded.
16) An amount of Rs.5,00,000/ (Rupees Five Lakhs Only) shall be paid
to Ms.Leena d/o Nipendra Kumar Dey who is the real sister of deceased
J.Dey, from the amount of fine towards compensation.
17) The muddemal Articles namely the Station diaries (ArticlesX57,

Article220,221,222 and 223) be returned to the concerned Police Station.
18) The laptop (Article292) belonging to Advocate Shri S.M.Deshpande
be returned to him. However, before returning the said laptop, the
Shirestedar of this Court shall copy the the video clip namely 'India today
commissioner press conference' (Exh.1494) having duration of 09:53
(Nine minutes and fifty three seconds) and size of 44.0 MB located in the
subfolder 'j.dey News report' in folder'j.dey case folder' stored and saved
in (Location C:\Users\Santosh Deshpande\Desktop) in the laptop (Article
292) in a pen drive and then seal the said pen drive. The pen drive shall
be kept with the other muddemal of this case.
19) The currency notes (Articles63 colly, 71, 83 colly, 121, 129 colly
and 207) be confiscated and deposited in the Treasury of the Government
of Maharashtra.
598
20) The other muddemal Articles be preserved for the trial against the
wanted accused no.1Nayansigh Bista and the wanted accused no.2Ravi
Ram Rattesar, on their arrest.
21) The copy of the judgment be furnished to all the accused persons
free of cost. Considering the fact that the judgment is bulky and some time
may be consumed in preparing the hard copies of the judgment, on the
request of the learned Advocates for the defence the copy of this judgment
be provided to them in PDF format today itself. Hard copies be given to
the accused persons tomorrow.
Chhota Rajan @ Nana @ Seth @ Sir are made aware about their right to
file appeal against this Judgment.
(S.S. ADKAR)
Dictated on : 04/04/2018, 07/04/2018, 09/04/2018, 10/04/2018, 13/04/2018,
16/04/2018, 17/04/2018, 18/04/2018, 19/04/2018, 20/04/2018,
21/04/2018, 23/04/2018, 24/04/2018, 25/04/2018 & 26/04/2018.
Transcribed on : 04/04/2018, 07/04/2018, 09/04/2018, 10/04/2018, 13/04/2018,
16/04/2018, 17/04/2018, 18/04/2018, 19/04/2018, 20/04/2018,
21/04/2018, 23/04/2018, 24/04/2018, 25/04/2018 & 26/04/2018.
Signed on : 02/05/2018.
599
"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER"
DATE : 02/05/2018, AT 05:00 P.M. MAHESH KESHAV SAKHARKAR
STENOGRAPHER (S.G.)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court no.) : Shri S.S. Adkar. Court no.57
Date of pronouncement of judgment/order : 02/05/2018.
Judgment/order signed by the P.O. on : 02/05/2018.
Judgment/order uploaded on : 02/05/2018, AT 05:00 P.M.

MCOCA Court Judgment J Dey Murder Case

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MCOCA Court Judgment J Dey Murder Case

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1

SR.NO. TOPIC PAGE

7­G Objections regarding the arrest/taking into 141

15­A Gist of confession made by the accused no.10­ 292

18­A Objections regarding seizure from the accused 412

1) Rohee Tangappan Joseph @ Rohi @

12) Rajendra Sadashiv Nikalje @ Chhota

13) Nayansingh Pratapsingh Bista ....Wanted accused no.1

14) Ravi Ram Rattesar ....Wanted accused no.2

3. The case of the prosecution is that the accused no.12­Rajendra

4. It is the case of the prosecution that the accused no.12­Chhota

5. On 30/05/2011 and 02/06/2011, J.Dey wrote two news articles

and "FEARING D­GANG BACKLASH... RAJAN GANGSTERS OFF TO

6. In pursuance of the conspiracy, the accused no.12­Chhota Rajan

7. On the instructions of the accused no.12­Chhota Rajan, on

9. At about 03:00 pm to 03:30 pm, PW.1­Sandip Shikhre who was

10. On the next day, i.e. on 12/06/2011, the investigation was

invoking the provisions of the MCOC Act,1999. Accordingly, on

lodged at Tihar Jail, New Delhi in connection with Case

SR.NO. POINTS FINDINGS

4 Whether it is proved that in furtherance of the Yes.

5 Whether it is proved that in furtherance of the Yes.

6 Whether it is proved that in furtherance of the No.

7 and 9 to 12 have committed an offence

10 Whether it is proved that in furtherance of the No.

SR. PW NAME EXH. ROLE

1 1 Sandip Rangnath Shikhre 288 Assistant to Police Inspector who

SR. PW NAME EXH. ROLE

the incident on phone and

2 2 Mahavir Neminayh 289 Police Inspector on whose

3 3 Prakash Ramchandra 297 Day Beat Marshal in whose

4 4 Bapusaheb Dnyaneshwar 299 Police Officer who deposited the

5 5 Girish Ramdhari Mishra 304 Panch witness.

6 6 Suhas Purushottam Joshi 340 He prepared the sketch map of

7 7 Ms.Shubha Sharma 479 Wife of J.Dey.

8 8 Bhushan Kumar Singh 488 He took photographs of the dead

9 9 Malang Ismail Sheikh 492 Panch witness.

10 10 Habib Jamal Mansuri 503 Panch witness.

11 11 Vikram Gulabchand Jain 511 Panch witness.

12 12 Mohd. Ayub Mohd. Umar 518 Panch witness.

SR. PW NAME EXH. ROLE

13 13 Manik Kapurchand Raja 525 Panch witness.

14 14 Arshad Ahmed Memon 537 His documents were used for

15 15 Banka Amarnath Gaud 538 His documents were used for

17 17 Siddarth Rajendra Kale 547 He had given the SIM of mobile

18 18 Mohd. Abbas Jilani 553 Panch witness.

19 19 Pramod Tukaram Tambe 555 He had taken the SIM of mobile

20 20 Suresh Shivnath Avad 562 Police Officer who filed charge­

21 21 Ramesh Manohar 570 Police Officer who filed charge­

22 22 Narsihn Shrinivas 572 Father­in­law of J.Dey.

SR. PW NAME EXH. ROLE

23 23 Sanjay Harinarayan 578 One of the security guards of

24 24 Zakirullah Karimullah 579 One of the security guards of

25 25 Shiva Shukhranjan 583 Journalist who was associated

26 26 Dinesh Pundlik Arekar 593 Officer of the RTO who had

27 27 Yogesh Ganpat Shitap 594 Engineer from whom the Police

28 28 Dattatray Tanaji Chavan 599 Owner of the motorcycle no.MH­

29 29 Dnyandev Pandharinath 602 Officer of the RTO who had

30 30 Dattatray Raghunath 604 Owner of the motorcycle no.MH­

31 31 Suresh Sadhu Waghmare 608 Owner of the motorcycle no.MH­

SR. PW NAME EXH. ROLE

06­AH­4891 which was used in

32 32 Pramod Ratnakar 612 He deposited the seized

33 33 Murtuza Tayyab 615 Accused no.11 had given her

7G Objections regarding the arrest/taking into 141

15A Gist of confession made by the accused no.10 292

18A Objections regarding seizure from the accused 412

3. The case of the prosecution is that the accused no.12Rajendra

4. It is the case of the prosecution that the accused no.12Chhota

and "FEARING DGANG BACKLASH... RAJAN GANGSTERS OFF TO

6. In pursuance of the conspiracy, the accused no.12Chhota Rajan

7. On the instructions of the accused no.12Chhota Rajan, on

9. At about 03:00 pm to 03:30 pm, PW.1Sandip Shikhre who was

20 20 Suresh Shivnath Avad 562 Police Officer who filed charge

21 21 Ramesh Manohar 570 Police Officer who filed charge

22 22 Narsihn Shrinivas 572 Fatherinlaw of J.Dey.

28 28 Dattatray Tanaji Chavan 599 Owner of the motorcycle no.MH

30 30 Dattatray Raghunath 604 Owner of the motorcycle no.MH

31 31 Suresh Sadhu Waghmare 608 Owner of the motorcycle no.MH

06AH4891 which was used in

51 51 Nilesh Dinkar Paradkar 663 Exmember of the gang of the

52 52 Prashant Laxman 664 Exmember of the gang of the

95 95 Kailas Bhalchandra 859 He deposited Xray plates and

96 96 Prasad Sharad Shah 860 Brotherinlaw of the accused