21 Jul 2121

Under Section 120 B of the Indian Penal Code, 1860, the accused might be convicted alongside others even if there was no personal hatred against the deceased - Bombay High Court

Case : Abdul Rauf Dawood Merchant v. The state of Maharashtra Criminal Appeal No. 878 of 2002

Court : Bombay High Court

Bench : Justice Smt. Sadhana S. Jadhav and Justice N. R. Borkar

Decided on : 21 Jul 2121

The Relevant Statutes

section 154, 319 of Code of Criminal Procedure, 1973

section 25, section 25(1B) (a), 3 of the Indian Arms Act, 1959

Section 224, 34, 147, 148, 302, 120 B, 149, 307, 392, 397 of the Indian Penal Code, 1860

Section 132 of the Indian Evidence Act, 1872 

Brief Facts & Procedural History

1. This case concerns the assassination of Gulshan Kumar Dua, the Managing Director of Super Cassette Industries, which specialised in the procurement of audio cassette rights for Hindi films and private music. He founded the T-Series Company and produced several films. In broad daylight, he was shot and killed. The deceased's devoted follower Gulshan Kumar Dua presented the deity SHIVA with his final gifts. As part of his daily ritual, he went to Shiv Mandir at Jeet Nagar, Andheri(W). In 1976, he funded the renovation of the temple in question. He had been going to the temple twice a day since then, in the morning at around 10 a.m. and in the evening at around 6 p.m. On that day, Rooplal (P.W.7), his driver, had taken him to the temple in his Red Opel Car, as was customary. As usual, Ramchandra Lavangare (P.W.1), President of the Shiv Temple Management Association, was present. He prayed for around 15 minutes before making the offerings and returned home. He was walking towards his automobile, which was parked across the temple at a distance of only 6 to 7 feet, facing Navkiran Road. As usual, he was trailed by his drivers P.W. 7 and P.W. 1. When they arrived at the car, the driver had crossed to the opposite side to occupy the driver's seat, thus P.W. 1 trailed Gulshan Kumar by a few paces. Gulshan Kumar was about to unlock the car door when a guy waiting in ambush suddenly touched his back with a handgun and fired a battery of bullets in a fraction of a second. Gulshan Kumar whirled around, surprised, only to be hit by additional bullets in the chest. Another assailant came towards him and sprayed shots on him just as he was about to collapse. He tried to free himself and proceeded a few metres up to the Gate of Raundal's bungalow when the third assailant sprayed him with bullets once again. When his driver attempted to assist him in rising, he was shot in the right thigh as well. P.W. 1 had placed him in the back seat of the automobile and immediately requested that Rajesh Johari (P.W.3) take the vehicle to Cooper Hospital. In an auto-rickshaw, P.W.1 followed the vehicle. By the time the injured arrived at Cooper Hospital, someone from Jeet Nagar had given D.N. Nagar Police Station telephonic information, which PSI Rashmi Jadhav (P.W. 10) got at 10.35 a.m. She hurried to Cooper hospital with P.I. Rane (P.W.11), PSI Shinde (P.W.13), and a police constable after making a station diary entry at Sr. No. 23/97. She observed one seriously injured man on a stretcher, a mob of onlookers, and P.W. 1 Laxman Lavangare, the only one who knew what had occurred. P.W. 10 then made a statement, which may be found at Exh. 54. She returned to D.N. Nagar Police Station on PI Rane's orders and filed Crime No. 572 of 1997 for offences punishable under sections 302, 307, and 34 of the Indian Penal Code, 1860, as well as section 25 of the Indian Arms Act. The inquiry was launched.

2. The prosecution called 45 witnesses to prove the guilt of 17 defendants. In April of 2001, Accused No. 6 and Accused No. 15 were released. The witnesses must be categorised into five groups to examine the prosecution's case.

3. P.W. 1 Ramchandra Lavangare, P.W. 2 Shankar Fukhe, P.W. 3 Rajesh Johari, P.W. 4 Labh Shankar Sharma, and P.W. 7 Rooplal Saroj were all eyewitnesses to the gunshot and the perpetrators' following behaviour.

4. P.W. 20 Shrikant Kauthankar, P.W. 21 Vinod Ghedia, and P.W. 36 Sitaram Jadhav were the officials in charge of the Test Identification Parade.

5. The panchas to recover incriminating materials at the request of the accused, i.e., P.W. P.W. Ashok Shah, 24 P.W. 22 Kishor Goyal for passport recovery P.W. Sanjay Desai, 38 6 Arun More for the panchanama of the crime site, P.W. 8 Dhanaji Kadam Panch for the return of P.W.'s taxi 4 which was left at the Kapaswadi Exh. 73.

6. Kishan Kumar Dua P.W. 32, the deceased's younger brother, and P.W. 37 Arif Lakdawala are witnesses to the plot to assassinate Gulshan Kumar.

7. P.W. 10 Rashmi Jadhav, P.W. 17 Subhash Salvi, and P.W. 45 Arjun Bagdi of DCB CID Unit were probed by local police.

8. P.W. 1 Ramchandra Lavangare testified in court about all of these circumstances and established the contents of the FIR he filed at Cooper Hospital. P.W. 1 then gave the Court a narrative account of the occurrence, including how it transpired and the perpetrators who murdered Gulshan Kumar.

9. P.W.1 Ramchandra Lavangare said he knew the dead and his driver, P.W.7, Rooplal because the deceased had been visiting the Shiv temple twice a day since 1976. Whenever the deceased arrived at the temple, P.W.1 made it a point to be present. He was also there at the shrine on the tragic day when Gulshan Kumar paid a visit. The deceased's driver removed the goods from the deceased's hands and accompanied him to the car after Gulshan Kumar completed his daily rituals and said prayers. As usual, P.W.1 followed them up to the car. P.W.1 was walking a few feet behind the dead since the driver had stepped over to assume the driver's seat as soon as the deceased arrived at the automobile. Suddenly, an unknown figure dashed towards Gulshan Kumar slung a handgun over his shoulder and fired a hail of bullets into the victim's corpse. The assailant, according to P.W.1, came from the eastern side. The shots were fired in the deceased's chest as he stared back aghast. When the other Accused emerged from the side of the stall and shot at the deceased again, P.W.1 saw the wounded trying to go to Raundal's house. P.W.1 was terrified and dashed to the opposite side of the coconut tree, where he spotted a third person firing at the deceased. When the driver stepped in to help the injured, he was shot in the leg as well.

10. P.W.1 Lavangare had asked P.W.3 Rajesh Johari to drive the deceased's automobile to the hospital for them. In an auto-rickshaw, he followed the vehicle. He saw the deceased on a stretcher at Cooper Hospital. He came face to face with P.W.10 PI Rashmi Jadhav. P.W.10 was informed that the guy on the stretcher was Gulshan Kumar when he inquired. He went on to say that he had observed the entire affair. He told P.W.10 the entire storey and assured her that if the perpetrators were presented to him, he would be able to identify them. Exhibit 54 is his statement, which was recorded in the proforma under section 154 of the Code of Criminal Procedure, 1973. The contents of FIR have been proven by P.W.1. The cops arrived at the crime scene in the afternoon of the same day. P.W.11 drew the scene of the offence panchnama. P.W.1 had shown P.W.11 the location of the crime, while P.W.6 Arun More had functioned as a panch for the crime scene. Exhibit 62 contains the aforementioned panchnama.

11. P.W.1 Lavangare further testified that he was present at the Central Prison Thane's test identification parade, which was led by P.W.20 Shreekant Kauthankar. At the test identification parade, PW1 recognised Accused No.16 as the assailant, i.e., the person who shot the dead from the side of an auto-rickshaw. In the test identification parade conducted by P.W.20, he recognised Accused No.19 as the assailant who approached from the side of the stall and shot at the dead in front of Raundal's house. He also recognised Accused No. 19 in the test identification parade organised by P.W.21 in Arthur Road jail on February 3, 2001. The test identification parade performed by P.W.36 is being contested since he was not presiding as a Special Executive Officer on February 2, 2001; nevertheless, the test identification parade conducted by P.W.21 on February 3, 2001, cannot be ignored. Accused No. 1 Javed Kaliya is not present before the Court, according to P.W.1.

12. All of P.W. 1's cross-examination assertions would demonstrate that he was an eyewitness to the incident and that his impeccable evidence could not be swayed by cross-examination. Cross-examination is said to be used to undermine or discredit a witness' testimony. However, in this case, the prosecution's case is reinforced through cross-examination.

13. When P.W.11 arrived at the crime scene about 4.30 p.m., P.W.2 Shankar Fukhe approached the officers and informed them that he was a resident of Jeet Nagar. On that day, he went in that way after hearing gunshots and observed the deceased lying in a pool of blood in front of Raundal's house. He also watched two people shooting at the corpse, but he was unharmed. As a result, he yelled and spotted the two perpetrators fleeing towards Bharat Nagar, which he pursued. He noticed the assailants glancing behind, most likely to see whether they were being pursued. Their facial characteristics were noticeable at the moment, and they were etched on his consciousness. He first recognised Accused No. 16, then Accused No. 19, and finally Accused No. 20. The following are the ideas he accepted during his cross-examination:

a. The assailants had fled away towards Bharat Nagar, as is accurate.

b. It is accurate to claim that the perpetrators looked back from time to time as they fled the scene.

c. I recognised the Accused since I had seen them before.

d. Even after the dead had collapsed, Accused No. 16 and Accused No. 19 proceeded to fire bullets at him.

14. It's worth noting that the following was elicited during cross-examination: "Before the 12th of August, 1997, I had noticed the aforementioned individual lurking in the neighbourhood," I told the cops.

15. The recommendation at item No. “(e)” would show that the Accused had indicated the location where the dead was killed.

16. P.W.3 Rajesh Johari was a rickshaw driver with a licence to operate both light and heavy motor vehicles. He also lives in the Bharat Nagar neighbourhood of four bungalows. He raced towards Jeet Nagar after hearing a noise similar to crackers bursting and observed people fleeing helter-skelter as they were terrified. He noticed one individual attempting to leave while waving his black handgun. He was 10 feet away from the aforementioned individual. He began following the individual, but when the individual realised, he was being pursued, he threatened P.W. 3 with his gun, halting the pursuit. He had even picked up something he had dropped, and then both the criminals fled towards the Versova Link Road, where he later observed them departing in a cab.

17. P.W.4 Labh Shankar Sharma was not there during the shooting but was present throughout the perpetrators' following behaviour. He works as a taxi driver, and his cab number is MHO-891. He works from 9 a.m. to 10 p.m. The passenger who had hired him had come to a halt in front of the Dominic Garage on Versova Link Road. Two people with pistols had yanked him out of his cab by his hair at that point. The lady passenger became frightened and exited the cab. The two individuals terrorised him by brandishing a gun at him and escaped in his Taxi to Juhu. He claims he recognised Accused No. 19 as the guy who dragged him out of the cab. He recognised Accused No. 19 in the test identification parade because of the facial traits of Accused No. 19 were engraved in his mind.

18. P.W.4 was sent to D. N. Nagar Police Station after calling the police on the 100 number from a nearby business. The police received telephone information that a cab had been abandoned at Kapaswadi, which is half a kilometre from D. N. Nagar police station, as he was recounting the event to them. PW4 accompanied the cops and was able to identify the Taxi that had been observed in Kapaswadi. The guy who had hijacked the Taxi had been described by P.W. 4.

19. P.W.7 Rooplal Saroj, who has been the deceased's driver since 1983, is the final eyewitness to the entire incident. He used to accompany the dead to Shiv Mandir in Jeet Nagar whenever he went there. The temple was roughly a 10-minute drive from the deceased's home. Because he went to the temple every day, he was familiar with P.W. 1, who used to be there at the temple whenever the deceased went there. P.W. 7 is a witness who has been injured. The dead's mobile phone was with P.W. 7, as the deceased never brought it inside the temple. He'd left his automobile near the Dhoopchav Society. P.W.7 had grabbed the goods from the deceased as he exited the shrine after giving prayers. Fruits, ‘Bel Leaves,' and the canister were among the items. P.W. 1 followed him to the automobile as he followed the deceased. He went on to say that as the deceased approached the automobile, he was abruptly attacked by an unknown person who approached from behind, placed the gun on his back, and fired bullets, and as soon as the deceased turned around, the said assailant shot him in the chest again. Following that, the dead attempted to save himself by moving forward. Soon after, another assailant approached the dead from the side of the stall and fired at him, only to be followed by another assailant who approached from the side of the auto-rickshaw and fired at him as well. P.W. 7 ran towards the deceased as he slumped in front of Raundal's house to take him away from the scene, but he was also fired at. P.W.7 was shot in the right thigh and witnessed two of the perpetrators fleeing towards Shiv Temple. He further claims that P.W. 1 summoned someone to drive them to the hospital. While he was in the ICU, he made a statement that was recorded. He had identified Accused No. 19 as the one who had shot at him in front of the Court, indicating that Accused No. 19 was the final person who had shot at the dead and P.W. 7.

20. P.W.7 said under cross-examination that he could see the perpetrators' faces when they were shooting them dead. The perpetrators were firing from a distance of three to four feet, according to him. It is further said that only Accused No. 19 was in front of him while he was removing the corpse from the scene, and that he had fired a shot at him. At the test identification parade, he had seen the Accused from a close distance and recognised him as Accused No. 19. P.W. 21 Vinod Ghedia, who was working as a Special Executive Officer at Arthur Road Prison, led the identification parade. In 1996, P.W.21 was named Special Executive Officer. He has proven the panchnama of the Test Identification Parade (Exh. 26).

21. No. 4 Accused Nos. 16 and 19 have a brother named Imtiaz Daud Merchant. Accused No. 4 was apprehended. The sons of Accused No. 17, from whom two imported handguns were discovered, are Accused No. 4, Accused No. 16, and Accused No. 19. Accused No. 16 was apprehended. PW45 In cross-examination, Mr Bagdi, the investigating officer, admitted that Accused No. 16 was in the custody of the Barabanki Police Station in Uttar Pradesh when he was detained in this case. A passport was recovered on the 6th of October 1999 at the request of Accused No. 16. In the name of Shabbir, the passport was forged and manufactured. The recovery came from the home of Shehenaz, who happens to be Accused No. 16's sister. She was a resident of the Wippo apartment complex. Shehenaz's statement is not recorded, even though her three brothers and mother were charged in this case. P.W.20 Mr Goyal has testified that he worked as a panch for the aforementioned recovery. Exh. 28 has the panchnama. P.W.1 and others identified Accused No. 16. P.W. 24 Ashok Shah, who functioned as a panch, testified that the handgun and live cartridges were recovered at the request of Accused No.16 from the residence of Lakshmibai in Devipada. Accused Nos. 4, 16, and 19 have a maternal aunt named Lakshmibai, while Accused No. 17 has a sister named Lakshmibai.

22. When P.W. 14 inspected the dead, he discovered 18 gunshots in various regions of his body. Exhibit 102 has the medico-legal certificate. Dr Umesh Patil P.W.25 did the autopsy on the deceased's corpse. Exh.138 contains the post-mortem notes. P.W. 7 was also examined by P.W. 14, and his medico-legal certificate may be seen in Exh. 161. P.W. 7 suffered a gunshot wound at the beginning of his right thigh and a contused lacerated cut on his right upper gluteal area, according to the certificate.

23. It's worth noting that P.W.14's testimony indicates that he checked one Madhukar Govankar at 11:05 a.m. on that day and discovered one bullet damage on the left mid scrotum with blood clots. The prosecution was unable to prove Madhukar Gavankar's identification. Exhibit 162 has his medical certificate. According to the testimony of PW17 Subhash Salvi, the Assistant Commissioner of Police, CID, he was informed by API Desai that three to four additional people had been hurt in the event, in addition to Gulshan Kumar. Unfortunately, it appears that no further research into the material has been conducted.

24. PI Rane P.W.11 conducted the scene of offence panchnama, which was held at Exh 62. P.W.6 Arun More served as a panch for the scene of offence panchnama. There are bloodstains, a pair of blood-stained chappals, and 12 spent cartridges in front of the Gate of Dhoopchau Society, according to Exh. 62's report. D'Souza's house, which is 11 to 12 feet from where the automobile was parked, has a chunk of lead in it. The exterior wall of the stated home and Mr Raundal's neighbouring house had a hole in it. Raundal's home is direct across the street from the three booths that run across the compound wall of Simple Apartment. Blood traces and a lead piece were discovered in the sewer (Mori) outside Raundal's residence. Outside Raundal's residence, four empty cartridges were also discovered. Two empty cartridges and two magazines were discovered at the front of Simple Apartment. In the vicinity of Shiv Temple, a chunk of lead was also discovered.

25. P.W.5 Ramesh Mahimkar, who had retired as a draughtsman from the Public Work Department, drew the map of the crime site. P.W.5 Ramesh Mahimkar and P.W. 45 Mr Bagdi presented the site of the crime, which is on display at Exh. 5. The map corresponds to the panchanama of the crime site and corroborates eyewitness accounts.

26. After attempting to identify the identities of the assailants, the investigative agency conducted more research to ascertain the Accused's motivation for murdering the dead. During the investigation, it was discovered that there was a wider plot to assassinate dead Gulshan Kumar and that the assailants were paid, murderers. The inquiry indicated that there was a conspiracy, and the prosecution called the following people to testify.

27. P.W.32 Kishan Kumar Dua is the deceased's younger brother. According to him, at 10.30 a.m., Bhushan Kumar, the deceased's son, went to his residence and informed him that Rooplal (P.W.7) had informed him that his father had been shot by some people and transported to Cooper Hospital. P.W. 32 hurried to Cooper Hospital, where he saw Rooplal weeping and learned that his brother Gulshan Kumar had died. P.W.3 informed him that while shooting the dead, he had spotted three assailants and that he had taken the body to the hospital. P.W. 32 had passed out after hearing this.

28. P.W. 32 was one of Super Cassettes Industries' directors. He knew music director Nadeem Saifee since he used to attend their office in his company's presence. Nadeem had created an audio album titled "Hi Ajnabi" in 1996 and was urging the deceased to acquire the audio rights, but the deceased was hesitant to comply. Nadeem had visited the deceased's workplace numerous times in the company of P.W.32 around the end of 1996. The dead, on the other hand, was uninterested. The dead had informed P.W.32 that he had declined the offer to acquire the audio rights because Nadeem was not a good vocalist. However, for reasons unknown to P.W., things changed afterwards. 32, the dead had bought the audio rights to the album and picturized a song for its promotion. The album was released in March of 1997; however, it was a huge flop. Enraged by the record's failure to sell in the market, Nadeem addressed the deceased, blaming him for the failure, claiming that the deceased had not given his music adequate attention, and threatening him with terrible repercussions. P.W. 32 observed his brother in a terrified state and, when questioned, revealed that he had received a threatening call from Abu Salem. Abu Salem was a violent man who would not take police interference lightly, therefore the dead refused to tell the authorities. The deceased had got a call on his mobile phone while in the company of P.W.32. He introduced himself as Salim Bhai to the caller and said that he could not be held responsible for the failure of "Hi Ajnabi" in the market because he had given it adequate advertising. He also stated that Nadeem's voice was not pleasant. He spoke to the caller in a terrified tone but asked him bluntly why his life should be jeopardised at the caller's hands for the sake of Nadeem. Following that, he was advised by the deceased that he was facing a definite threat of death. The dead informed the caller that he will trust Lord Shiva with his fate. The deceased's mobile phone number. The deceased's mobile phone was with P.W. 7 at the time of the event, according to P.W. 7.

29. P.W. 37 Arif Lakdawala, who has known Abu Salem since 1991 and met him in Dubai in 1996, is another key witness on the conspiracy charge. He also knew Accused Keki Balsara, who died in the bathroom of the Commissioner of Police's office before the trial ever started. On the orders of Abu Salem, P.W.37 followed Keki to Juhu to collect Rs. 25 lakhs from Nadeem and Accused Ramesh Taurani. P.W. was introduced to Ramesh Taurani. As the proprietor of Tips Industries, I am 37 years old. Nadeem had also given P.W.-37 a box, which he had put on the back seat of the vehicle. Nadeem had called someone and told him that the money had already been given over and that Gulshan needed to be dealt with right now. “Paisa to de diya hai Gulshanka kaam jaldi niptaa do,” says P.W.37. P.W.37 claims to have spoken with the caller and to have identified the caller's voice as that of Abu Salem. P.W. 37 identified Accused No. 11 Ramesh Taurani (Acquitted Accused) as the person who had accompanied Nadeem and was chatting on the phone before the Court.

30. P.W.37 has also provided Abu Salem's phone number. P.W.37 had observed Keki Balsara conversing with three people in the K. D. Compound. Two boxes kept in the back seat of the automobile were stolen by two people under Keki Balsara's orders before they departed K.D. Compound. Accused Nos. 7,8, and 9 were the people they encountered at the K.D. complex, according to P.W. 37.

31. P.W.37's cross-examination would reveal that he explained that he was a witness to the money being moved from Nadeem and Taurani to the dead Keki Balsara and then to three others in Nagpada. His statement that he spoke with Abu Salem on his cell phone indicates that he was aware of Abu Salem, Nadeem, Keki Balsara, and Taurani's suspected participation in the murder of Gulshan Kumar.

32. Following the completion of the recording of P.W.37's testimony, an application was made on behalf of Accused Nos. 8, 9, and 10 under section 319 of the Criminal Procedure Code, 1973, to arraign P.W.37 as an Accused in this matter. The application was submitted. Exh.186 contains the said application. The application was denied because P.W.37's testimony is protected by the caveat to Section 132 of the Indian Evidence Act, 1872.

33. P.W.40 The prosecution questioned Sunil Mehta, an Associate Vice President of Hutchison Max Telcom. He recognised the signatures of Rajit Barthakur and Seema Dubey, who worked for the firm in 1997 but left to live in another country. P.W. 40 was called upon to establish Seema Dubey and Bharthakur's signatures on Exhibit 201. The following are the contents of Exhibit 201: ‘In response to your enquiry, we can confirm that the cell phone number in the name of Mr Ramesh Taurani, Tips Industry Pvt. Ltd. was used on June 27, 1997, at 16.04 hours at cell Id 10031803 in the Juhu region. The caller dialled a number from another country.' P.W.41 Debojeet Datta, the Chief General Manager of Videsh Sanchar Nigam, backs up this claim. In response to the letter, he sent thirteen printouts, which may be seen at Exhibit 203, confirming that international calls were received and made from cell phone No. The phone call was made from Juhu, according to Videsh Sanchar Nigam, and the printouts provided would back up this claim. Mr P. K. Rahul, P.W.43, has also confirmed this.

34. P.W.45 Arjun Bagadi was assigned to DCB CID's Unit VII. He was assigned with the investigation of Crime No. 572 from 1997. D.N. Nagar Police Station handed over the paperwork to him. He had taken down P.W. 31, the approver's statement. Exhibit 156A contains the statement. P.W. 31 was found with one imported handgun, five live cartridges, and a magazine. The Accused Nos. 1 and 4 were arrested as a result of the approver's statement. P.W.45 apprehended the Accused Nos. 16 and 19. Along with Accused No. 16, Accused No. 17 was also apprehended. At the request of Accused No. 17, who was acquitted, two revolvers were retrieved.

35. According to P.W.45, Accused No. 16 ordered the seizure of a handgun, live cartridges, and one Maxine. P.W.45 has also applied for sanction to prosecute the Accused of the act punishable under section 25(1B) (a) of the Arms Act, read with section 3. The Deputy Commissioner of Police gave sanction to prosecute the accused under the Arms Act, and the sanction order is at Exh. 199. P.W. 45 had filed the charge sheet once the investigation was completed.

36. It is confessed that he did not undertake any research into the telephone number used to make calls to Dubai other than recording Arif Lakadawala's testimony, although knowing that the discovery of Abu Salem's phone number was a crucial fact for the investigation in this case. It has been acknowledged that international calls were made from a PCO in Bandra throughout the inquiry. According to the investigative files, there was evidence that the PCO belonged to one Faiyaz. He had collected printouts of Keki Balsara's mobile phone numbers, but he had made no attempt to gather evidence regarding the identity of the subscriber of the phone number, and he had not submitted Accused No. 11 to a test identification parade from P.W. 37.

37. When the accomplice was deemed hostile in this case, the prosecution filed a motion to dismiss P.W. 31. The Sessions Court dismissed the claimed application. The order in question was contested at the High Court by filing Criminal Application No. 4140 of 2001, which was permitted to be withdrawn at the admission stage on 13/1/2003. On April 29, 2002, the trial court issued a final judgement in this matter, and the Criminal Application was most likely dropped.

38. The impugned Judgment and Order of April 29, 2002, issued by the Additional Sessions Judge, Gr. Mumbai in Sessions Case Nos. 15/1998 a/w. 448/1998 a/w. 1473/1998 a/w. 18/2000 a/w. 365/2001, convicted and sentence Accused No.19-appellant Mohd. Rauf Dawood Merchant as follows:

39. To suffer life imprisonment and a fine of Rs. 5,000/- I.d. to suffer S.I. for 3 months for the offence punishable under section 302 of the Indian Penal Code, 1860;

a. To be imprisoned for life for an offence punishable under section 307 of the Indian Penal Code, 1860.

b. To receive R.I. for a term of seven years and to pay a fine of Rs. 1,000/- I.d. to get S.I. for one month for the offence punishable under section 392 of the Indian Penal Code, 1860.

c. To receive R.I. for a term of seven years and to pay a fine of Rs. 1,000/- I.d. to get S.I. for one month for the offence punishable under section 397 of the Indian Penal Code, 1860.

d. For the offence punishable under section 27 of the Arms Act, he was sentenced to three years of R.I. and a fine of Rs. 1,000/- I.d. to one month of S.I.

40. Being aggrieved from the judgment and order the Accused No. 19 appeals in the High Court of Judicature at Bombay.

The Issue(s) of the Case

Whether the judgment and order dated 29 April 2002 thereby convicting and sentencing the Accused No.19-appellant Mohd. Rauf Dawood Merchant valid?

The Observations of the Court

1. Honourable High Court of Judicature at Bombay observes that the identification of the people who killed the dead in broad daylight could not have been questioned by eyewitnesses. It was, without a doubt, a cold-blooded murder. It's also worth noting that eyewitnesses have said unequivocally that the Accused No. 1 who fired the initial shot was not present in the courtroom. They had not misidentified anyone else as Accused No. 1. This alone would indicate that they were certain it was the Accused Nos. 16 and 19 who had carried out the heinous act of murdering Gulshan Kumar. It's a straight evidence case. In this situation, it is important to recognise the actions of the eyewitnesses, who not only claimed to be witnesses but also quickly assisted the deceased and the driver by transporting them to the hospital, reporting the incident to the police, and not hesitating to stand up to examination. In reality, P.W. 2 and 3 had attempted to apprehend the criminals right away. There was no delay in registering their testimonies, and all eyewitnesses' accounts were recorded by the D.N. Nagar Police Station.

2. Honourable High Court of Judicature at Bombay also observes that the prosecution has proven beyond a reasonable doubt that the appellant caused the homicidal murder of deceased Gulshan Kumar by shooting and injuring P.W. 7. The Honourable High Court of Judicature at Bombay is convinced that the accused has committed an offence punishable under section 302, 307 read with Section 34 of the Indian Penal Code, 1860 read with Section 27 of the Indian Arms Act, based on the sterling testimony of the eyewitnesses and the corroborating circumstances that have come to light. As a result, the Sessions Court's judgement in respect of Accused No. 19's conviction under sections 302, 307, and 34 of the Indian Penal Code, 1860, as well as section 27 of the Indian Arms Act, is reasonable and merits no intervention.

3. Honourable High Court of Judicature at Bombay also observes that the dead Gulshan Kumar had no personal hatred or resentment towards the Appellant-Accused No. 19. He had carried out the heinous deed after being recruited by Nadeem Saifee and Abu Salem, who had a personal grudge against the dead. As a result, the Appellant/Accused No. 19 deserves to be found guilty of the offence punishable under section 120B of the Indian Penal Code, 1860. It's worth noting that in this case, Nadeem Saifee and Abu Salem, as well as one Kayyum @ Chacha, have all been identified as absconding defendants. As a result, the trial against them was halted.

4. Honourable High Court of Judicature at Bombay also observes that the appellant has also been found guilty of violating sections 392 and 397 of the Indian Penal Code, 1860. The appellant deserves to be acquitted of the accusation under sections 392 and 397 of the Indian Penal Code, 1860, due to a lack of evidence on the record to support the charge.

5. Honourable High Court of Judicature at Bombay also observes that the appellant absconded shortly after the incident and was finally apprehended in 2001, according to the record. The appellant was on furlough and had failed to submit within the time limit. Later, he was apprehended. The appellant had a criminal history, and he continued to engage in illegal activity after that. As a result, the appellant does not deserve any indulgence in the interests of justice and society at large. As a result, the appellant will not be entitled to any remissions.

The Decision Held by the Court

Honourable High Court of Judicature at Bombay held that

1. The Criminal Appeal No. 878 of 2002 is partly allowed.

2. The conviction and sentence passed against the Appellant-Mohd. Rauf Dawood Merchant in Sessions Case Nos. 15/1998 a/w. 448/1998 a/w. 1473/1998 a/w. 18/2000 a/w. 365/2001 by the Additional Sessions Judge, Gr. Mumbai under sections 302, 307 read with section 34 of the Indian Penal Code, 1860 read with section 27 of the Indian Arms Act is hereby upheld. The Appellant has also been found guilty of an offence under Section 120B of the Indian Penal Code. There is no need for a separate sentence for this.

3. The conviction and sentence passed against the Appellant-Mohd. Rauf Dawood Merchant under sections 392 and 397 of the Indian Penal Code by the Additional Sessions Judge, Gr. Mumbai in Sessions Case Nos. 15/1998 a/w. 448/1998 a/w. 1473/1998 a/w. 18/2000 a/w. 365/2001 in Sessions Case Nos. 15/1998 a/w. 448/1998 a/w. 1473/19 The Appellant was found not guilty of the accusation.

4. The Appellant shall not be entitled to remissions if any.

5. The Criminal Appeal is disposed of accordingly.

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