01 Jul 2121

The accused cannot be convicted if there are major flaws in the investigation and there is no clear and convincing evidence - Bombay High Court

Case : The State of Maharashtra. v. Ramesh Sadhuram Taurani and Abdul Rashid Dawood Merchant Criminal Appeal No. 1006 of 2002

Court : Bombay High Court

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

Decided on : 01 Jul 2121

The Relevant Statutes

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

Section 132 of the Indian Evidence Act, 1872 

Section 27 of the Indian Arms Act, 1959

Brief Facts & Procedural History

1. The circumstances, in this case, are identical to those in Criminal Appeal No. 878 of 2002. In Criminal Appeal No. 878 of 2002, the witnesses' testimony was also addressed.

2. The State of Maharashtra has filed this appeal after the acquittal of Respondent Nos. 1 and 2 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.

The Issue(s) of the Case

Whether the original Accused No. 11 Ramesh Sadhuram Taurani and Accused No. 16 Abdul Rashid Dawood Merchant were rightfully acquitted?

The Observations of the Court

1. Honourable High Court of Judicature at Bombay observes that the learned APP, on the other hand, has called attention to the fact that the witnesses have reiterated in cross-examination that they were able to identify the perpetrators because of their faces were etched in their memories. They had witnessed a horrifying occurrence, and the witnesses quickly informed the authorities. It is argued that the trial Court compared the evidence of two witnesses and concluded that they are consistent with one another and that the discrepancies are minor discrepancies that cannot be taken into account, especially given that all of the witnesses saw the incident from different angles and in different situations. Immaterial omissions in cross-examination are given undue weight.

2. Referring to the case of Dhuleshwar v/s. State of Madhya Pradesh (Now Chhattisgarh) (2020) 11 SCC 440, The Accused were charged under sections 147, 148, 302 of the Indian Penal Code, 1860, read with section 149, and 13 Accused were tried. The Supreme Court was happy to reconsider the evidence and dismissed the appeal in the case of five of the accused, while Accused Nos. 8 and 13 were acquitted. The trial court and the High Court acquitted the other Accused.

3. Honourable High Court of Judicature at Bombay also observes that the inquiry has major flaws, and there is no solid and persuasive proof that Respondent No. 1 communicated with Abu Salem in Dubai. There has been no inquiry on whether Abu Salem utilised that phone number at the time. Abu Salem has been on the run since a series of bombings in 1993. P.W. is the sole witness who has testified concerning Respondent No. 1's participation. P.W. 37's testimony would indicate that he was also there when Respondent No. 1 called Abu Salem during their meeting in Juhu. With the use of section 132 of the Indian Evidence Act, the plea for the arraignment of P.W. 37 as an Accused was denied. The order of denial was not appealed and has now become final. As a result, the acquittal of Respondent No. 1 requires no intervention.

4. Referring to the case of Shivaji Sahebrao Bobade & anr. vs. State of Maharashtra 1973 AIR 2622, the Apex Court observes that if unjustified acquittals become common, they can rise to a contemptuous contempt for the law, which can lead to a public desire for stricter legal presumptions against certain 'persons' and harsher punishment for those proven guilty. As a result, too many acquittals of the guilty may lead to a harsh criminal code, weakening the legal protection of the innocent.

5. Honourable High Court of Judicature at Bombay also observes that the perpetrators had no particular hatred or prejudice towards Gulshan Kumar, who had just died. They had carried out the heinous deed after being recruited by Nadeem Saifee and Abu Salem, who had a personal grudge against the dead. Unjustified acquittals would not only send the incorrect message to society, but they would also jeopardise law and order. As a result, Accused No. 16/Respondent No. 2 also deserves to be found guilty of the crime punishable under section 120B of the Indian Penal Code, 1860.

The Decision Held by the Court

Honourable High Court of Judicature at Bombay held that 

1. Criminal Appeal No. 1006 has been partly allowed.

2. The appeal contesting the acquittal of Respondent No.1 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 on April 29, 2002, is thus rejected.

3. The appeal challenging the acquittal of Respondent No. 2 - Abdul Rashid 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 in Judgment and Order dated 29th April 2002 is partly permitted.

4. Respondent No. 2 Abdul Rashid Dawood Merchant was found guilty of violating section 302 of the Indian Penal Code, 1860, as well as sections 34 and 120B of the Indian Penal Code, 1860, and section 27 of the Indian Arms Act.

5. For the offence punishable under section 302 read with sections 34 and 120B of the Indian Penal Code, 1860, Respondent No. 2 is sentenced to life imprisonment and a fine of Rs. 5,000/-, in default of which he is sentenced to R.I. for 6 months. For the offence punishable under section 27 of the Indian Arms Act, Respondent No. 2 is sentenced to R.I. for 3 years and a fine of Rs. 2,000/-, in default of which he would be punished to R.I. for 2 months.

6. The offence punishable under sections 307, 392, and 397 of the Indian Penal Code, 1860 was acquitted of Respondent No. 2 Abdul Rashid Dawood Merchant.

7. Respondent No. 2 Abdul Rashid Dawood Merchant is entitled to a set-off for the time spent awaiting the outcome of the case.

8. His bail bonds stand cancelled.

9. Respondent No. 2 Abdul Rashid Dawood Merchant must appear before the Sessions Court or the D.N. Nagar Police Station immediately. Respondent No. 2 must give his passport to the police authorities when he surrenders. If he does not surrender within one week, the Sessions Court will issue a Non-bailable Warrant against Respondent No. 2 and place him in custody.

10. The Criminal Appeal is disposed of accordingly.

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