Holding

The Supreme Court upheld the convictions and life sentences of accused Nos. 1, 4, 7 and 8, set aside the acquittals of accused Nos. 5 and 6 and sentenced them to life imprisonment, and held that the death sentence for accused No. 7 was not justified, while confirming that confessional statements under MCOCA are admissible and may be used against co‑accused even without the Rule 3(6) certificate.

Summary

The case involved a gang‑led shoot‑out in Mumbai that resulted in three deaths and several injuries. The accused were charged under the IPC, the Maharashtra Control of Organized Crime Act (MCOCA) and the Arms Act. The trial court convicted six of the eight accused, sentencing three to death, while two were acquitted. On appeal, the Supreme Court upheld the convictions of accused Nos. 1, 4, 7 and 8, confirmed life sentences for them, set aside the acquittals of accused Nos. 5 and 6 and sentenced them to life imprisonment, and held that the death sentence for accused No. 7 was not justified. The Court ruled that confessional statements recorded under MCOCA are admissible even without the specific certificate required by Rule 3(6) and may be used to convict co‑accused, that the Test Identification Parade evidence was reliable, and that the "rarest of rare" doctrine did not warrant capital punishment in this case.

Issues considered

The admissibility of confessional statements recorded under MCOCA, especially when the statutory certificate under Rule 3(6) is absent
Whether a confessional statement of one accused can be used to convict a co‑accused
The reliability and admissibility of the Test Identification Parade (TIP) evidence
The appropriateness of the death penalty under the "rarest of rare" doctrine for the accused

Legislation cited

Arms Act, 1959s. 25, s. 27, s. 3, s. 35, s. 39, s. 7
Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 109, s. 120-8, s. 201, s. 212, s. 25, s. 27, s. 3, s. 302, s. 307, s. 34, s. 35, s. 411, s. 52A, s. 7
Maharashtra Control of Organized Crime Act, 1999 (MCOCA)s. 18, s. 3(1)(i), s. 3(1)(ii), s. 3(2), s. 3(4)

Subjects

MCOCAconfessional statementsco‑accused testimonyadmissibility of evidenceTest Identification Paradedeath penaltyrarest of rare doctrineorganized crimeArms Actprocedural fairnessArticle 14Article 21

Judgment

[2009) 12 S.C.R. 1093

MOHD. FAROOQ ABDUL GAFUR AND ANOTHER A
1' A v.
STATE OF MAHARASHTRA
(Criminal Appeal Nos. 85-86 of 2006)

AUGUST 6, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]

Penal Code, 1860/Maharashtra Control of Organized
i>' t Crime Act, 1999/Arms Act, 1959 - ss. 302, 307, 120-8134,
109, 201134, 411134, 212, 520A, 424, 414 Is. 3 (1), (2) and c
(4) Is. 25 rlw ss. 3 and 7 - Prosecution under- Eye-witnesses
and injured witnesses to the incident - Confessional
statements made by the accused persons - Identification of
the accused in TIP as well as in the court by eye-witness -
Recovery of weapons of offence - Trial court acquitting D
• -+ accused Nos. 2 and 3 and conviction of the rest of the
accused - Accused Nos. 5, 6 and 7 sentenced to death -
High Court convicting accused No. 1 u/s. 3 (2) MCOCA rlw
s. 120-8 /PC and acquitted him u/s. 52A and 120-8 /PC -
Conviction of accused 4, 7 and 8 confirmed - Death sentence E
of accused No. 7 altered to life imprisonment - Accused Nos.
5 and 6 acquitted of all the charges - On appeal, held:
-"!
Conviction of accused Nos. 1, 4, 7 and 8 confirmed -
Accused Nos. 5 and 6 also liable to be convicted -
Prosecution case proved - Confessional statements F
corroborated by the evidence of witnesses, recoveries and
confessional statements of co-accused - Confessional
statements recorded in compliance with the MCOC Act and
Rules - Conviction under MCOC Act can be based solely on
the basis of confessional statement of accused as also on the
F
basis of confessional statement of the co-accused - All the
-f accused sentenced to life imprisonment - In the facts of the
"' case, capital punishment to accused No. 7 not justified -
Maharashtra Control of Organized Crime Act, 1999 - s. 18 -

1093 H
1094 SUPREME COURT REPORTS [2009] 12 S.C.R.

A Maharashtra Control of Organized Crime Rules - r. 36 -
Sentence/sentencing - Death sentence.

Sentence/Sentencing - Death sentence - 'Rarest of rare'
rule - Application and nature of - Need to give an objective
value to the term 'rarest of rare' - Application of article 14 to
8
award of death sentence - Constitution of India, 1950 - Article
14.

Appellants-accused were prosecuted under various
t •
provisions of IPC, Maharashtra Control of Organized
C Crime Act, 1999 and also under provisions of Arms Act,
1950. They were alleged to have hatched a conspiracy to
eliminate 'M' and with that common object, they aided
each other for causing the murder. Appellants were said
to be belonging to the gang of fugitive criminal who
D allegedly operated his organized crime activities from
Karachi, Pakistan. He was also aided by another gang
leader. The appellants had been provided with arms and
ammunitions and money by the fugitive criminals.

E Special court acquitted accused Nos. 2 and 3 while
convicting the six appellants-accused. Accused Nos. 5,
6 and 7 were sentenced to death.

Convicted accused filed appeal before High Court.
Death sentence was also referred to High Court. High
F Court confirmed the conviction of accused No. 1 uls. 3
(2) of MCOCA rlw s. 120-B IPC and acquitted him uls. 212
rlw ss. 52A and 120-B IPC. Conviction of accused Nos.
4, 7 and 8 was confirmed. However, death sentence of
accused No. 7 was substituted to life imprisonment.
G Accused Nos. 5 and 6 were acquitted of all the charges.
Hence the present appeals by the convicted accused and ... t
by State against acquittal of accused No. 1 and acquittal
of accused Nos. 5 and 6 and against substitution of death
sentence to life imprisonment of accused No. 7.
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1095
MAHARASHTRA

Dismissing the appeal filed by accused Nos. 1, 4 and A
' !' J-4
8; dismissing State's appeal against accused Nos. 1 and
7; and partly allowing State's appeal against accused
Nos. 5 and 6, the Court

HELD:
B
Per Dr. Mukundakam Sharma, JJ:

1.1. Accused No. 1 is guilty of all the charges which
~· +- were already found to be proved and established by the
trial court and affirmed by the High Court. The sentence c
passed by the High Court is confirmed and the
punishment awarded by the trial court u/s. 212 rlw
Section 52(A) rlw. Section 120-8 IPC is also restored.
[Para 58] [1148-B]

.... 1.2. Conviction under Maharashtra Control of
Organized Crime Act, 1999 could be based solely on the
D

basis of the confessional statement and such conviction
is also permissible on the basis of the confessional
statement of the co-accused which could be used and
relied upon for the purpose of conviction. [Para 59] [1148- E
CJ
....,. -r
State v. Nalini (1999) 5 SCC 253; Devender Pal Singh
v. State of NCT of Delhi (2002) 5 SCC 234; Jameel Ahmed
v. State of Rajasthan (2003) 9 sec 673, relied on. F
1.3. Though it is proved and established from the
records that accused No. 1 did not himself participate in
. ,- the actual shootout, it is alleged against him that he was
a part of the gang and he was in touch with the gang
G
leaders in Karachi (Pakistan) and he also acted on behalf
---i ~
of the said gang so much so that he had effected
payment of money arranged by the leaders of the gang
to accused Nos. 5, 6, and 8 for causing the shootout. The
evidence placed before this court clearly establishes that
accused No. 1 was responsible for procuring a pistol and H
1096 SUPREME COURT REPOR~S [2009] 12 S.C.R.

A handing over the same to accused No. 5 which was used
in the shootout. The said fact is also established and "'-.
proved by the confessional statement of accused No. 5.
[Paras 47 and 48] [1142-B-F]

1.4. The confessional statement of accused No. 1
B
substantially complies with the requirements of Section
18 of Maharashtra Control of Organized Crime Act, 1999
(MCOCA) r/w. rule 3 (6) of Maharashtra Control of
Organized Crime Rules (MCOC Rules). It was a
t +
categorical case of the prosecution that PW-51 who
C recorded the said confessional statement was never
involved with the investigation of the case. On going
through all the material available on record, the High
Court came to the categorical finding that the aforesaid
confessional statement was made voluntarily and while
D recording the same, post confessional formalities were
followed. It was held by the High Court that although the
confessional statement does not bear any certificate in
the identical terms as specified under Rule 3(6) of the
MCOC Rules, it nevertheless complies with the
E requirements of Section 18 MACOCA. Apart from that,
there is ·also evidence on record indicating that accused
No. 1 made several phone calls to gang leaders in
Pakistan from various phone booths. The said fact is also
accepted by the trial court as well as by the High Court.
F [Paras 51 and 52] [1145-E-H; 1146-A-C]

1.5. The confessional statement of accused No. 8
was held to be admissible by both the courts below in
which he had categorically stated that he knew accused
G No. 1 from childhood and that accused No. 1 had brought
him to act as a driver in the said shootout and also paid
him Rs. 10,000/- for the job. Accused No. 8 in his
confessional statement had also stated that accused No.
5 visited accused No. 1. The confessional statements of
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1097
MAHARASHTRA
accused No. 5 and 6 are also relevant to prove and A
establish the involvement of accused No. 1 with the
incirf,:-.-,t. [Paras 53 and 54] [1146-D-E]

1.6. The High Court while disbelieving the
confessional statements of PWs 5 and 6, ignored the fact 8
that there is evidence of PW-64, the typist who had
deposed that the preliminary warning was in fact given
which was so recorded. Considering the facts and
circumstances of the case, there is no reason, not to
accept the said statement of PW-64, the typist. The
aforesaid confessional statement of the co-accused C
cou_ld be the basis of conviction under the provisions of
MCOCA. [Paras 56 and 57] [1147-E-G-H; 1148-A]

1.7. There is also evidence of other witnesses namely
PW-21, owner of an STD booth. He stated that accused D
No. 1 made a phone call to a specific number in Karachi
(Pakistan). PW-35, who is the owner of another phone
booth stated that he personally knew accused No. 1. He
deposed that accused No. 1 would come to his booth
regularly to make phone calls to Pakistan. PW-37, who E
was another witness stated in his evidence that accused
No. 1 had made calls on specified numbers in Pakistan
on certain dates. Evidence of PW-37 is also found to be
corroborated by the evidence of PW-54. Similar is the
evidence of PW-43 who deposed that calls were made by F
accused No. 1 to Pakistan. [Para 55] [1147-B-D]

2.1. There is no reason to interfere with the findings
recorded by the High Court so far as involvement of
....... accused No. 4 in the incident is concerned. There are
cogent and convincing evidence available against him to G
prove and establish his involvement in the entire incident
which justifies his convictions and sentences on each
count. The High Court rightly held that accused No. 4 had
played an active and important role in the conspiracy
H
1098 SUPREME COURT REPORTS [2009] 12 S.C.R.

A even though he did not participate in the actual shoot out
and that he had the knowledge of the conspiracy. [Para )'.. ~

71] [1159-D-G] .
2.2. Accused No. 4 he was an active member of the
B gang who actively participated in the activities of the
organized crime syndicate which fact is corroborated by
his confessional statement. [Para 65] [1157-D]

2.3. The confessional statement of accused No. 4 is
trustworthy and reliable. It is evidently clear from the t ~

c records that his confessional statement was found to be
in substantial compliance with the requirements of
Section 18 of MCOCA. The High Court came to the
categorical finding that post confessional formalities
have been followed and although the confessional
D statement does not bear a certificate in the identical terms
as specified under Rule 3(6) of the MCOC Rules, there is ,.
nevertheless compliance of Section 18 of MCOCA. There
is no plausible ground to discard the view taken by the
High Court in this regard. [Para 66] [1157-E-H]
E
2.4. The confessional statement is supported by the
deposition of PW-53, who deposed that accused No. 4
led the police to the place from where he had bought six I- '
or seven mobile phones. The aforesaid confessional
statement is also supported by the evidence of the
F Manager of a Petrol Pump, who corroborated the fact that
the aforesaid Maruti car was brought by accused No. 4
to his petrol pump for repairs and servicing. Further, the
evidence of PW-20, a pancha witness, whose name was
.
kept secret, establishes and proves that accused No. 4 ;

G led the police to the said petrol pump. Accused No. 4 also
led the police to Motor Training School wherefrom he !- .
obtained a duplicate driving license in the name in his
brother. The evidence of PW-15 the real owner of the
Maruti Car, proves that the car was stolen and that he had
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1099
MAHARASHTRA

_,.. Ii< lodged a complaint to that effect. Another witness A
deposed about the seizure of the aforesaid Maruti car
clearly throws light on the fact that accused No. 4 was
using the stolen car. Confessional statement of a
accused No. 7, which was found to be admissible in
evidence by the trial court as well as the High Court, also B
corroborates and supports the facts admitted by
accused No. 4 in his confessional statement with regard
to his (accused No. 4's) role. It is clear that accused No.
" .,... 4 had heard the conversation prior to the shootout and
thus had the knowledge about the conspiracy. [Paras 68 c
and 69] [1158-C-H; 1159-A-B]

2.5. PW-18, who was an eye-witness to the incident
described in detail what he saw on the day of the
incident. He deposed that he had seen accused No. 4
along with accused Nos. 5, 6 and 7. Later he identified D
,. ""1"
him during TIP. Apart from him, accused No. 4 was also
' identified by PW-2, PW-3, PW-12, PW-13, PW-22 and PW-
30 in the TIP. [Para 70] [1159-C]

3.1. Order of acquittal passed by the High Court in E
respect of accused Nos; 5 and 6 is liable to be set aside
1' in the appeal filed by the State of Maharashtra. Both the
accused persons are convicted for the charges as
alleged against them and sentenced to undergo rigorous
imprisonment for life. [Para 90] [1169-E] F
3.2. The evidence of PW-18 who was an eye-witness
of the incident is credible and trustworthy as he
_,,-• described the incident as well as the assailants in detail.
Furthermore, he identified the accused persons i.e.
accused Nos. 4 to 7 in the court as well as during the TIP. G
' -I
His evidence has been found to be trustworthy and
reliable by both the courts below. [Para 75] [1161-A-B]

3.3. The High Court held that TIP with respect to
H
1100 SUPREME COURT Rl~PORTS [2009J 12 S.C.R.

A Accused Nos. 5 and 6 was vitiated because accused No.
5 had a squint in the right eye and the dummies used in
the TIP did not have the similar squint in the right eye.
But, the High Court did not make it clear as to why the
identification of accused No. 6 was also vitiated. Accused
B Nos. 5 and 6 were also identified by ten witnesses.
Therefore, the TIP is a reliable piece of evidence as the
same proves the identity of accused persons beyond
reasonable doubt. [Para 75] [1161-B-C]

3.4. It cannot be said that there was inordinate delay
C in conducting the TIP in view of the fact that TIP was
conducted only after a period of 45 days which is not
such a long period to cast any doubt over the evidentiary
value of the TIP. Even otherwise, a TIP does not
constitute substantive evidence but can only be used for
D corroboration of the statement in court. It is primarily
meant for the purpose of helping the investigating
agency with an assurance that their progress with the
investigation is proceeding on the right lines. The
substantive evidence is the evidence of identification in
E court, which in the present case has been done by PW-
18. [Para 76) [1161-0-G]

Amitsingh Bhikamsingh Thakur v. State of Maharashtra
(2007) 2 sec 310, relied on.
F 3.5. The plea that the photograph of accused No. 5
was published in an Urdu Daily thereby making the
identity of accused No. 5 public also does not find favour
in view of the fact that the witnesses are Maharashtrians
and, therefore, there is no likelihood of their reading the
G paper and seeing the photograph of accused No. 5. [Para
77] [1163-G-H; 1164-A]

3.6. The evidence of another eye-witness PW-13, a
student who was a by-stander, was not believed by the
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1101
MAHARASHTRA

)> ,.,
High Court on the premise that he did not disclose the A
incident to anybody for four days. His evidence ought to
have been relied upon by the High Court as he clearly
stated in his evidence that though he did not see the
faces of the assailants, he saw the face of accused No.
8. He stated that PW 3 chased the car with a rifle. He also B
noted the number of the car. His statement gets support
from the evidence of PW-3, who was an eye-witness of
the incident and from the evidence of PW-30, who was
,.. -.- an injured witness of the incident. Therefore, it would not
be proper and justified to discard his evidence only c
because he did not state about the incident to anyone for
four days. Since his evidence is corroborated and
supported by other material evidence on record '1he same
cannot be discarded only because of the aforesaid '
reason. [Para 78) (1164-A-E]
. --;.-
3.7. The injured witnesses as well as the other eye-
D

witnesses have no reason to falsely depose against the
accused persons as it was not shown that they had either
any prior enmity with the accused persons or they are
interested parties. In fact, they are the victims of the E
horrendous and ghastly attack made by the perpetrators.
.... [Para 79) (1164-H; 1165-A)

3.8. PW-2 and PW-3, who were the bodyguards of the
intended target, were eye-witnesses of the incident. Their F
statements are corroborated by the evidence of PW-30.
Their Statements are also supported by the evidence of
another eye-witness PW-13. Both of them were the
persons who actually witnessed the shootout and were
present at the site of the shootout. Furthermore, both of G
~ -4 them have given a description of the physical features of
the assailants including Accused Nos. 5 and 6. Therefore,
the High Court ought to have relied upon the evidence
of PWs-2 and 3 in the light of the circumstantial evidence
brought on record. The trial court rightly found the
H
1102 SUPREME COURT REPORTS [2009] 12 S.C.R.

A evidence of PW-2 and 3 trustworthy and reliable as both
of them have the best available opportunity to see the
assailants. [Para 80) [1165-8-F]

3.9. On an analysis·of the confessional statement of
accused No. 5 it is found that he has made a detailed
8
statement of the instructions he received from the
leaders of the gang to kill the intended target and has
stated the involvement of accused Nos. 1, 6, 7 and 8 in
the shootout. [Para 81) [1165-G-H; 1166-A]
*.
C 3.10. Accused No. 6 stated about his earlier
involvement in murder cases in his confessional
statement. He also stated as to how he met accused No.
5 and that accused No. 5 introduced him to the gang.
Confessionat statement of accused No. 6 is found to be
D almost identical to the confessional statement of accused
No. 5. [Para 82] [1166-C] ~ ·

3.11. On analysis of the material on record and. the
confessional statements of accused Nos. 5 and 6, it is
E found that although the fact that the pre-confessional
statements were recorded on 23.07, 1999 is not traceable,
the fact that they were actually recorded is corroborated
by the evidence of PW-64, the typist who had deposed
that the preliminary statements were recorded on
23.07.1999. Thereafter, they were given a period of
F reflection for 48 hours which is corroborated by PW-60,
PW-63 and PW-64. Therefore, there can be no doubt that
the accused were sufficiently warned in advance about
the consequences of their confessions. The High Court
altogether failed to take into account the evidence of PW-
G 64, the typist. The trial court has rightly held that all the
requirements u/s. 18 (3) of MCOCA were fully complied .._ -
with while recording the confessional statements. [Para
84) [1166-F-H; 1167-A]

H
MOHD. FAROOQ ABDUL GAFUR v. STATE· OF 1103
MAHARASHTRA
3.12. Accused Nos. 7 and 8 also described the A
involvement of accused Nos. 5 and 6 in the shootout in
their respective confessional statements. The
confessional statements are consistent with the
confessional statements of accused Nos. 5 and 6. [Para
84] [1167 -8-C] B

Jaywant Dattatray v. State of Maharashtra (2001) 10
sec 109, relied on.
3.13. The reasoning of the High Court that the
confessional statements of the co-accused are not C
admissible in evidence because Section 313 CrPC had
not been complied with, is not tenable as there is a non-
obstante clause in Section 18 (3) which precludes the
application of CrPC and, therefore, the evidence of a co-
accused is admissible as a piece of substantive D
evidence. [Para 85] [1167-D]

State vs. Nafini (1999) 5 SCC 253, relied on.

3.14. The report of the ballistic expert shows that the
weapon and bullets tally with each other and, therefore, E
the court comes to a clear conclusion that the weapon
was used in firing during the shootout. Moreover, there
is a clear finding of fact by both the courts below that the
9 mm pistol was recovered at the instance of accused No.
5 from his hut. Therefore, this recovery of weapon clearly F
proves and establishes the guilt of accused No. 5. [Para
86] [1167-E-G]

3.15. It is clear from the material on record that
accused No. 5 made certain telephone calls to gang G
leaders in Karachi, Pakistan. This fact gets corroboration
from the discovery of 3 telephone booths at the instance
of accused No. 5 wherefrom telephone calls were made
by him to the gang leaders. This evidence gets further
H
1104 SUPREME COURT REPORTS [2009] 12 S.C.R.

A corroboration from the evidence of the owners of the
telephone booths. Therefore, the view taken by the High
Court with respect to accused No. 5 is not a plausible
~ .
view as the same is in contradistinction of the view taken
by the High Court with regard to other accused persons.
B [Para 87] [1167-H; 1168-A-E]
•
3.16. The High Court erroneously held that
conviction u/s. 27(3) rlw Section 7 of the Arms Act could
not be sustained although a 9 mm pistol was recovered
at the instance of accused No. 5 and it is proved that
*.
c accused No. 5 had used the pistol. Further, the report of
the. ballistic expert establishes and proves that the
weapon and the bullets tally each other. The ballistic
expert also opined in the report that one of the victims
of the shootout was killed due to a bullet from a 9 mm
D pistol. Apart from the report of ballistic expert there is
medical evidence available on the record which show .; '
that the death of the three deceased persons was caused
by the injuries sustained due to fire arms during the
shootout and, therefore, it can be inferred that the weapon
E was used in the shootout. Accused No. 6 had also used
the pistols and fired during the shootout. [Para 88] [1168-
F-H; 1169-A] ,.
3.17. The finding of the High Court that the sanction
order u/s. 39 of the Arms Act suffered from non-
F
application of mind is not sustainable in view of the
material available on record. The sanction order in the
present case is a detailed one and displays proper
application of mind. [1169-B]
G Gunvantlal v. State of M. P. (1972) 2 SCC 194, relied
/-'
..,
on.
4.1. Even though Accused No. 8 has not fired any
shot and he was not carrying any arms with him but he
H
- MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1105
MAHARASHTRA

played an active role in the crime and his participation in A
the crime was significant. He was the person who took
the assailants to the place of incident by driving the
stolen Maruti car and he received the money for driving
the car which fact was admitted by him in his
confessional statement. It is also clear from the records B
that he was an active member of the gang and was
involved in the criminal activities of the organized crime
syndicate run by the gang leaders. Therefore, the order
of conviction and sentence passed by the High Court
against him is upheld. The sentence of imprisonment of c
life is maintained on the same ground. [Paras 98 and 99)
[1172-C-D; 1173-B]

4.2. The confessional statement of accused No. 8
was recorded under Section 18 of MCOCA. The statement
is found to be admissible in evidence and relied upon by D
·- y both the courts below having been found to be recorded
in compliance with Section 18 of MCOCA. The statement
has given a detailed account of the incident and the
modus operandi of the accused persons. He has given
complete description of the role played by Accused Nos. E
5, s· and 7 in the shootout. [Para 95) [1171-8-C]

4.3. The confessional statement of accused No. 8 is
supported by the confessional statements of the co-
accused namely, accused Nos. 5, 6 and 7. The F
I
·' confessional statement of accused No. 7 which is found
to be admissible in evidence and relied upon by both the
courts below clearly establishes the role played by
Accused No. 8. The role played by accused No. 8 is also
proved and established from the evidence of PW-22, who G
has given a sufficiently detailed account of what he saw
on the day when the car was abandoned. He identified
accused No. 8 in the TIP. Accused No. 8 was also
identified by PW-13, an eye-witness to the crime. The High
H
1106 SUPREME COURT REPORTS [2009] 12 S.C.R.

A Court found the testimony of PW-22 as truthful and
trustworthy. [Para 96) [1171-E-G]

4.4. Evidence of PW-54, and PW-31, pancha witness
proves that accused No. 8 led the police to the palce
where his parents were also present and he took out two
8
number plates of the car from the place which was used
in the shootout wrapped in a paper underneath a wooden
bench. [Para 97) [1171-H; 1172-A-8]

5. Considering the entire facts and circumstances of + •
C the case and the evidence placed on record against
accused No. 7, it is found that capital punishment in the
instant case would not be justified and, therefore, the
appeal of the State so far the issue with regard to
alteration of the sentence of imprisonment of life to that
D of capital punishment is dismissed. [Para 91) [1170-8-C]

PER S.8. SINHA, J. (Supplementing)

1. The review courts are supposed to assess the
findings emerging from the pre-sentencing hearing at the
E trial stage as also other available material and then arrive
at conclusion of its· own on the propriety of sentence.
Apex Court as the final reviewing authority has a far more
serious and intensive duty to discharge. The court not
only has to ensure that award of death penalty does not
F become a perfunctory exercise of discretion u/s. 302 IPC
after an ostensible consideration of rarest of rare doctrine,
but also that the decision making process survives the
special rigors of procedural justice applicable in this
regard. [Para 6] [1174-H; 1175-A-C]
G
Bachan Singh v. State of Punjab 1980 (2) SCC 684;
Santosh Kumar Satishbhushan Bariya v. State of
Maharashtra 2009 (7) SCALE 341, relied on.

2. Administration of death penalty is carried out in
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1107
MAHARASHTRA

the intensive gaze of Article 14 and Article 21 A
requirements of the Constitution of India. Article 14
applies to judicial process including exercise of judicial
discretion as it applies to the executive process. The
nature of Article 14 application in this case will be on a
different plane altogether and an objective analysis on B
that count would have to meet the Ceteris paribus (with
other things the same) requirement. [Para 6 and 7) [1175-
D; 1176-A-B]

Aloke Nath Dutt and Ors. vs. State of West Bengal 2006
(13) SCALE467; Swamy Shraddananda @ Murli Manohar C
Mishra v. State of Kamataka 2008 (10) SC.ALE 669, referred
to.

3. Rule based judging norms and sound rules of
prudence are the only guarantee to fair and equitable D
sentencing. This emerges from the constitutional context
to the administration of capital sentencing problem as
also a closer reading of rarest of rare test. The
assessment of "rarest of the rare case" is incomplete
without coming to the conclusion that the "the lesser E
alternative is unquestionably foreclosed' and procedural
fairness and justice concerns form part of the latter
condition. [Para 8) [1176-D-F]

4. The selection of life imprisonment as a lesser
alternative can not be deemed to be "unquestionably F
foreclosed" till the time objective fairness standards as
to the sentencing process are attained with regard to
capital sentence. Capital Sentencing is not a normal
penalty discharging the social function of punishment. In
this particular punishment, there is heavy burden on G
court to meet the procedural justice requirements, both
emerging from the black letter law as also conventions.
In terms of rule of prudence and from the point of view
of principle, a court may choose to give primacy to life
imprisonment over death penalty in cases which are H
1108 SUPREME COURT REPORTS [2009] 12 S.C.R.

A solely based on circumstantial evidence or where High
Court has given a life imprisonment or acquittal. [Para 9
and 11] [1176-F-G; 1178-D-E]

State of Maharashtra v. Suresh 2000 (1) SCC 471,
referred to.
8
5. In the light of serious objections to disparity in
sentencing by this court flowing out of varied
interpretations to the rarest of rare expression, it is clear
that the test has to be more than what a particular judge
C locates as rarest of rare in his personal consideration.
There has to be an objective value to the term rarest of
rare, otherwise it will fall foul of Article 14. In such a
scenario, a robust approach to arrive at rarest of rare
situations will give primacy to what can be called the
D consensus approach to the test. In the tiered court
system, an attempt towards deciphering a common view
as to what can be called to be the rarest of rare, vertically
across the trial court, High Court and apex court and
horizontally across a bench at any particular level, will
E introduce some objectivity to the precedent on death
penalty which is crumbling down under the weight of
disparate interpretations. This is only a rule of prudence
and as such there is no statutory provision to this effect.
[Paras 12 and 13] [1178-F-H; 1179-B]
F Suthendraraja alias Suthenthira Raja alias Santhan and
Ors. v. State AIR 1999 SC 3700; Devender Pal Singh v. State
N.C. T. of Delhi and Anr. 2002 (5) SCC 234; Ucchamadevi
v. State of Rajasthan AIR 1988 SC 1785; State of
Maharashtra v. Suresh 2000 (1) SCC 471; State of U.P. v.
G Babu Ram 2000 (4) SCC 515; State of Maharashtra v. Damu
s/o Gopinath Shinde and Ors. 2000 (6) SCC 269; State of >- -
Maharashtra v. Bharat Fakira Dhiwar AIR 2002 SC 16; State
of Rajasthan v. Kheraj Ram 2003 (8) SCC 224; Devender
Pal Singh v. State, N. C. T. Of Delhi and Anr. AIR 2003 SC
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1109
MAHARASHTRA

886 and State of UP. v. Satish AIR 2005 SC 1000, referred A
... ,,..
to.

6. Swinging fortunes of the accused on the issue of
determination of guilt and sentence at the hand of
criminal justice system is something which is perplexing B
for the Court when it comes to fair trial. The situation is
accentuated due to the inherent imperfections of the
system in terms of delay, mounting cost of litigation in
High Courts and apex court, legal aid and access to
<I -+
courts and inarticulate information on socio-economic
and criminological context of crimes. In such a context,
c
some of the. leading commentators . on death penalty
. hold
the view that it is invariably the marginalized and destitute
who suffer the extreme penalty ultimately. [Para 18] [1181-
D-E]
D
~· '! State of Haryana v. Sher Singh and Ors. 1981 (2) SCC
300; State of U.P. v. Hakim Singh and Ors. AIR 1980 SC
184; Gumam Kaur v. Bakshish Singh and Ors. AIR 1981 SC
631; State of Uttar Pradesh v. Sahai and Ors. 1982 (1) SCC
352; State of Uttar Pradesh v. Suresh alias Chhavan and Ors. E
1981 (3) sec 635, relied on .
.. Amnesty International report titled " Lethan Lottery: The
Death Penalty in India - A Study of Supreme Court
Judgments in Death Penalty Cases 1950-2006.
F
7. One of the accused in the instant case was\
acquitted in December 2003 by the High Court. It has
been more than 8 years since he was freed in relation to
the matter at hand. At this juncture, this becomes a
relevant factor. [Para 19] [1181-F-G] G
~
State of Maharashtra v. Mang/ya Dhavu Kongil AIR 1972
SC 1797; State of Uttar Pradesh v. Sughar Singh and Ors.
AIR 1978 SC 19, relied on.
8. The alleged criminal history of the accused had a H
1110 SUPREME COURT REPORTS (2009) 12 S.C.R.

A mojor bearing on the imposition of the death sentence by
the trial court on the three accused. This is why he had
erred in this respect. Nothing has been brought on behalf
of the State that the criminal trials that had been pending
against the accused had resulted in their conviction.
B Unless the same is shown by documents on records,
presumption would be to the contrary. Presumption of
innocence is a human right. The trial judge should also
have presumed the same against all the three accused.
The trial court has brought on record various irrelevant
c and invidious considerations with respect to sentencing.
[Paras 26, 27 and 28] [1184-A-E]

9. The High Court had acquitted both accused 5 and
6. If at least one of the courts below had acquitted the
accused person in respect of the crimes for which they
D are to be sentenced, the burden on the prosecution
would be even more heavier, which the State has not
been able to discharge. [Para 29] [1184-G-H]

10. If a person sentenced to imprisonment, even if it
E be for life, and subsequently it is found that he was
innocent and was wrongly convicted he can be set free.
Such a reversal is not possible where a person has been
wrongly convicted and sentenced to death. The
execution of the sentence of death in such cases makes
F miscarriage of justice irrevocable. It is a finality which
cannot be corrected. [Para 30] [1185-A-B]

11. Once accused 5 and 6 have been sentenced to
life, there remains no question of awarding a death
sentence to accused 7, who had played no greater a role
G in the said incident as accused 5, and 6. All the three
accused stand on ail equal footing and therefore the ;..
sentences to be imposed upon them must not differ. [Para
31) [1185-C-D]

H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1111
MAHARASHTRA
State of Punjab v. Manjit Singh and Ors. 2009 (8) SCALE A
'---! ,.ii(
622; Rameshbhai Chandubhai Rathod v. State of Gujarat
2009 (6) SCALE 469 referred to.

Case Law Reference:
Judgment of Mukundakam Sharma, J.: B
(1999) 5 sec 253 Relied on. Paras
59 and 85
.. i
(2002) 5 sec 234 Relied on. Para 60
(2003) 9 sec 673
c
Relied on. Para 61
(2007) 2 sec 310 Relied on. Para 76
(2001) 10 sec 109 Relied on. Para 84

. )
(1972) 2 sec 194 Relied on.

Judgment of S.B. Sinha, J.:
Para 89 D

1980 (2) sec 684 Relied on. Para 6
Referred to. Para 10
E
2009 (7) SCALE 341 Relied on. Para 6
¥
Referred to. Para 10
2006 (13) SCALE 467 Referred to. Para 7
F
2008 (10) SCALE 669 Referred to. Para 7
2000 (1) sec 411 Referred to. Para 9
AIR 1999 SC 3700 Referred to. Para 13
2002 (5) sec 234 Referred to. Para 14 G
. ~
AIR 1988 SC 1785 Referred to. Para 15
2000 (1) sec 471 Referred to. Para 16
2000 (4) sec 515 Referred to. Para 16 H
1112 SUPREME COURT REPORTS [2009] 12 S.C.R.

A 2000 (6) sec 269 Referred to. Para 16
-,. ,..
AIR 2002 SC 16 Referred to. Para 16
2003 (8) sec 224 Referred to. Para 16
AIR 2003 SC 886 Referred to. Para 16
B
AIR 2005 SC 1000 Referred to. Para 16
AIR 1972 SC 1797 Relied on. Para 19
f ..
AIR 1978 SC 191 Relied on. Para 20
c 1981 (2) sec 300 Relied on. Para 20
AIR 1980 SC 184 Relied on. Para 20
AIR 1981 SC 631 Relied on. Para 20
D 1982 (1) sec 352 Relied on. Para 20
'{ '
1981 (3) sec 635 Relied on. Para 20
2009 (8) SCALE 622 Referred to. Para 21

E 2009 (6) SCALE 469 Referred to. Para 22
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 85-86 of 2006. ·~

From the Judgment & Order dated 17.12.2003 of the High
F Court of Judicature at Bombay in Criminal Appeal Nos. 679 &
758 of 2000.

G
WITH

CRIMINAL APPEAL NOS. 87 of 2006.

WITH f'
- -
CRIMINAL APPEAL NOS. 91-94 of 2006.

Zafar Sadique, Asghar Khan, Balraj Dewan, Vivekanand
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1113
MAHARASHTRA
Rana for the Appellants. A
~ ,.,
Madhuri Divan, Ravindra Keshavrao Adsure, Dr. Rajeev
B. Masoodkar (A.C.), K.M.M. Khan N.R. Ramkumar, Varinder
Kumar Sharma for the Respondent.

The Judgment of the Court was delivered by B

DR. MUKUNDAKAM SHARMA J. 1. These appeals are
filed against a common judgment and order dated 17th
" i December, 2003 passed by a Division Bench of the High Court
of Judicature at Bombay in Confirmation Case No. 01 of 2001 c
and Criminal Appeal Nos. 661 of 2000; 679 of 2000; 753 of
2000 and 758 of 2000 and are being disposed of by this
common judgment.

2. The prosecution case in brief is as follows: -
D
• 'f One Milind Vaidya is the ex-Mayor of Mumbai. He belongs
to the Shiv Sena, a political party, active in Maharashtra. On
4th March, 1999 at about 9.45 p.m. he alongwith 7-8 workers
were sitting in an open shed by the side of Mori Road. He was
guarded by his two body guards, namely, Constable Dinanath E
Pawar (PW-2) and Constable Sandeep Eaghmare (PW-3).
¥ They were armed with a 9 mm pistol and 9 mm carbine with
90 rounds respectively. The said shed house is an office of Shiv
Sena 'Shakha'. At about 5 minutes past 10.00 p.m. a white
Maruti car with a number plate MH-03-H-1749 came from the F
side of Mahim Railway Station. When it reached near the said
open shed three persons started firing at Milind Vaidya and
others who were sitting in the shed. One of the assailants was
-- sitting alongside the driver on the front seat and the other two
were sitting at the back seat. . In the aforesaid incident three
persons died while seven to eight persons, including Shri
G
~
Milind Vaidya, injured.

3. The said Maruti car was being driven allegedly by Abdul
Hasan (Accused No.8) and Azzizuddin (Accused No.7) was
sitting by his side being armed with a AK-56 rifle. Mohd. Zuber H
1114 SUPREME COURT REPORTS [2009] 12 S.C.R.

A (Accused No.5) and Fazal Mohd. (Accused No.6) were sitting
.,_ ~
on the rear side of the said car and were armed with 9 mm
pistol. All the aforementioned three persons were said to have
fired at Milind Vaidya and his associates indiscriminately, who
were sitting in the shed.
B
4. Body guard Dinanath Pawar, who examined himself as
PW-2, is said to have fired three rounds from his pistol on the
Maruti Car. Other body guard namely Sandeep Waghmare
(PW-3), is said to have chased the car upto some distance but y ..
did not fire any shot, although armed with a carbine. The
c incident of firing lasted for a few seconds whereafter the Maruti
car sped away. Milind Vaidya sustained bullet injuries. Besides
six others, namely - Nishchal Krishna Chaudhari; Vinay
Narayan Akare; Babu Kashinath Mangela; Niteen Narayan
Mehar; Murugan V Tewar; and Vijay Kashinath Akare also
D sustained bullet injuries. Three of his associates, namely -
Milind Gunaji Chaudhari, Vilas Gopinath Akare and Deepak ~ .
Sitaram Akare succumbed to their injuries.

5. All the aforesaid victims were immediately rushed to
E Hinduja Hospital, Mumbai where they were admitted for
examination and treatment. Post mortem examinations of the
three deceased were carried out on the next day. They were
found to have sustained bullet injuries on different parts of their
body and lead pieces were recovered therefrom.
F 6. It is worthwhile to mention here that a similar attempt
on the life of Milind Vaidya had also been made by unknown
persons three months prior to the incident in question. At that
time he had escaped with some injuries. He earlier used to
have a body guard for his personal safety. However, after the
G said incident he was provided with three body guards during
-
day time and two during night time. One of the guards was •
provided with a carbine weapon while the other two were
provided with 9 mm pistols. Milind Vaidya used to sit alongwith
his workers at night time in the shed adjoining the foot-path of
H Mori Road, Mahim for the purpose of hearing the grievances
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1115
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

. ,, of the people. At that time he used to be escorted by his body-
guards.
A

7. First Information Report was lodged on 4th March, 1999
at Mahim Police Station. The investigation of the case was
taken up by Pl Yashwant Puntambekar (PW-36). However, B
having regard to the gravity of the offence the Commissioner
of Police, Mumbai, directed the Senior Police Inspector, CID
- Unit IV, to take over further investigation of the case, pursuant
whereof Senior P.I. Bagul took over the investigation. Thereafter
- 1'
Pl Bharat Tambe (PW-59) took over the investigation on
c
06.03.1999. A Maruti car was located on 8th March, 1999 in
an abandoned _condition having been found parked in. Jain
Derasar Lane at Wadala. On inspection of the car one empty
shell of AK-56 rifle; 2 empties of 9 mm caliber pistols and two
empties of mouser pistols etc. were found. It was suspected
that the said car was used in the commission of the aforesaid D
> )'
crime.

8. After appellant No.1 (Mohd. Farooq) was arrested on
13th March, 1999, the Joint Commissioner of Police (Crime)
granted permission to apply the provisions of Maharashtra E
Control of Organised Crime Ordinance, 1999 to the present
case pursuant whereto the investigation was taken over by an
Assistant Commissioner of Police namely, Pradeep Sawant
(PW-61) from Pl Bharat Tambe on 26th March, 1999. He was
said to have been supervising the investigation of the case in F
his capacity as ACP (Detection-I) and for effective and
extensive investigation of the present case, he formed a team
of 13 police officers.

9. In all there were eight accused persons namely,
Mohammed Farooq Abdul Gafur Chipa Rangari (Accused No. G
~
1), Aslam Mohammed Kutti (Accused No. 2), Abdul Kadar
Abdul Gafoor Rizvi (Accused No. 3), Mansoor Hasan Haji Iqbal
Pankar (Accused No. 4), Mohd. Juber Kasam Shaikh alias
Tabrej alias Jugnu (Accused No. 5), Fazal Mohd. Shaikh alias
Manni Argamutu Shetiyar (Accused No. 6), Azzizuddin H
1116 SUPREME COURT REPORTS [2009] 12 S.C.R.

A Zahiruddin Shaikh alias Abdul Sattar (Accused No. 7) and
Abdul Hasan Sande Hasan Mistri (Accused No. 8) involved in ... ~

the case.

10. Accused No.1 (Appellant No.1 herein) was arrested
on 13th March, 1999 whereas Accused No.4 (Appellant No.2
B
herein) was arrested on 21st June, 1999 along with Accused
Nos. 2 and 3. Accused Nos. 5 and 6 were arrested on 18th
June, 1999 by the Special Cell of Delhi Police. Accused No. 7
was arrested on 15th June, 1999 with AK-56 rifle by Hazariganj
Police Station, Lucknow, U.P. and Accused No. 8 was arrested " •
c on 21st July, 1999.

11. On 4th April, 1999 the Appellant No.1 took police and
panchas to certain places and STD booths on Mohd. Ali Road,
Masjid Road, near J. J. Marg Police Station at Dongri
D wherefrom he used to contact Faheem. Appellant No.1 made
a confessional statement on 10th April, 1999 regarding his '( '
involvement in the incident. It was recorded by DCP Parambir
Singh (PW-51).

12. On 25th June, 1999, Mansur Hasan (Accused No. 4)
' E
took police party to the garage of one Chaggan Vithal where
he is said to have given the Maruti car used in the commission
of the crime for repairs. He also showed to the police on 6th ·
July, 1999 an STD booth at Dongri wherefrom he had contacted
Faheem and obtained mobile phones as well as a duplicate
F motor driving licence. At the instance of Mohd. Zuber (Accused
No. 5) on 18th July, 1999, discovery of 9 mm China made pistol,
which was found kept in a cup-board in a hut behind Mahim
Bus Depot was made. His confessional statement was
recorded on 30.07.1999 by Ravindra Kadam, DCP (Zone IV)
G who examined himself as PW- 39 which was however
subsequently retracted. ~

13. Confessional statement of appellant No.2 was
recorded on 30th July, 1999 by DCP Kadam who examined
H himself as PW-39. However, appellant No.2 retracted his
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1117
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

confession when he was produced before the Chief Judicial A
.. "" Magistrate.

14. On 9th August, 1999 Accused No. 5 led the police party
to a telephone booth at Mahim wherefrom he had contacted
Faheem and Chhota Shakeel in Karachi, Pakistan. Discovery
B
of AK 56 rifle together with 5 cartridges which was found kept
in a rexine bag on the loft of a hut behind Mahim Bus Depot
was made on 17th July, 1999 at the instance of Azzizuddin
.. ) (Accused No.7). A finger print expert, who was called, found
one chance finger print on the said rifle. Discovery of two plates
from room No.15 on the ground floor of building No.1 in Kidvai
c
Nagar, Wadala , was made at the instance of Abdul Hasan
(Accused No.8).

15. Confession of the aforementioned six persons was
recorded by three DCPs namely, Mr. Kadam (PW-39), Mr. D
). --., Paramvir Singh (PW-51) and Mr. Shindre (PW-60). Test
Identification Parade of accused Nos. 4 to 8 was conducted
/
on 10th August, 1999 by the Special Executive Officer who
examined himself as PW-32.
E
16. Upon completion of the investigation, a voluminous
charge sheet was filed before the Designated Court on 8th
v
September, 1999. The charges were framed against all the
aforesaid accused persons under various provisions of the
Indian Penal Code, 1860 (for short 'the IPC') and the Arms Act.
F
Considering the gravity of the crime and the fact that all the eight
accused persons being members of organized crime syndicate
of Chhota Shakeel, the provisions of Maharashtra Control of
Organised Crime Act, 1999 (hereinafter referred to as
'MCOCA') were also invoked. All the aforesaid accused
persons were charged for conspiring, abetting and facilitating G
L
~
I commission of the aforesaid crime as members of the said
organized crime syndicate.

17. In the charge sheet Chhota Shakeel and Mohd.
Faheem have been shown as the absconding accused. The H

~.

;r1
1118 SUPREME COURT REPORTS [2009] 12 $.C.R.

A prosecution case proceeded on the premise that all the
accused had hatched a conspiracy to eliminate Milind Vaidya
and with that common object in mind they aided each other for
causing his murder. They were said to be in constant touch with
Mohd. Faheem for the purpose of taking instructions from him
B on telephone. They had been provided with arms and
ammunitions and money by the absconding accused persons
namely, Chhota Shakeel and Mohd. Faheem.

18. Appellants herein are said to be belonging to the gang
of fugitive criminal namely Chhota Shakeel who allegedly
••
C operates his organised crime activities from Karachi, Pakistan.
He is also aided by another ganglord namely, Mohd. Faheem.
Both of them are said to belong to the gang of underworld don
Dawood Ibrahim.

D 19. All the eight accused persons allegedly being
members of organized crime syndicate of Chhota Shakeel r .
were charged under Sections 3(1) r/w 2(e) of MCOCA. They
were further charged of conspiring, abetting and facilitating
commission of aforesaid crime as members of the said
E organized crime syndicate under Sections 3(2) of MCOCA read
with Section 1208 of IPC. For their agreement to do the
abovesaid illegal act they were also charged under Section
120-B IPC.

20. Mohammed Farooq Abdul Gafur Chipa Rangari
F (Accused No.1) was separately charged under Sections 302,
307 read with Section 1208/34 and 109 IPC on the ground that
he, in pursuance of the said conspiracy, was in constant contact
on mobile with Faheem, collected money and also three mobile
phones from Guddu and delivered the same to Accused Nos.
G 5 and 6, provided driver i.e. Accused No. 8 with the car
facilitating commission of the crime and thus had the common
intention to commit the crime. He was also charged under
Sections 201, 34 IPC for assisting accused Nos. 5, 6 and 7 to
cause disappearance of AK-56 rifle with intent to screen the
H offenders from legal punishment.
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1119
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

./ _. 21. Aslam Mohammed Kutti (Accused No. 2) was A
separately charged under Sections 302, 307, 1208 r/w 34, rt
w 109 of IPC being in contact with Mohd. Faheem, who was in
Karachi, Accused Nos. 2 and 3 collected weapons from Neeta
from Mazgaon and handed it over to Accused Nos. 4 and 7
for using the same in the aforesaid offence. Further, Accused B
No. 2 purchased three mobile phones and handed over the
same to Accused No. 4 thus, facilitated commission of crime
as a member of conspiracy in furtherance of common intention.
...
'" He was further charged under Sections 25(1A) and 25(18) of
the Arms Act for possessing jointly with Accused No. 3 a rexin c
bag containing two 9 mm pistols and AK-56 rifle in
contravention of Section 3 & 7 of the Arms Act.

22. Abdul Kadar Abdul Gafoor Rizvi (Accused No. 3) was
.,.
charged under Sections 25 r/w 3 & 7 of the Arms Act for
. -, collecting jointly with Accused No.2 a rexin bag from Neeta
containing two pistols, one rifle for use in the aforesaid offence
D

and handed over the same to accused Nos. 4 & 7 and thus
committed offence of possession of unlicensed and prohibited
arms in contraventions of Sections 3 & 7 of the Arms Act. He
was also charged under Sections 302, 307 of IPC r/w 1208, E
34 & 109 of IPC for delivering weapons to accused Nos. '4 and
~
7 which were later used in the commission of the aforesaid
... , offence thus, facilitated commission of offence as a member
of conspiracy and in furtherance of common intention. He was
further charged under Sections 302, 307 r/w 34, 1208, and 109 F
of IPC for purchasing three mobile phones along with Accused
No. 2 from Hira Panna Market to facilitate the aforesaid crime.

23. Mansoor Hasan Haji Iqbal Pankar (Accused No.4) was
charged under Sections 411 r/w 34 and 120-B of IPC for
G
conspiring, as per the directions of Faheem, in collecting white
" coloured Maruti 800 Car from Phila House, Mumbai and the
aforesaid stolen car was used by accused Nos. 4 and 7 and
.,.,. thus was a member of conspiracy and committed offence of
dishonestly receiving stolen property. He was further charged
H
....'
'
-
1120 SUPREME COURT REPORTS [2009] 12 S.C.R.

A under Sections 302, 307 r/w 34, 120-B and 109 of IPC for >- ..
handing over the stolen car to Accused No. 8 which was
actually used in the aforesaid offence. He was further charged
under Section 201 r/w 34 and 120-B of IPC for taking over
charge of two mobile phones from accused Nos. 5 and 7 after
B the aforesaid offence and for concealing the same in his house.
24. Mohd. Juber Kasam Shaikh alias Tabrej alias Jugnu,
Fazal Mohd. Shaikh alias Manni Argamutu Shetiyar, Azzizuddin
Zahiruddin Shaikh alias Abdul Sattar and Abdul Hasan Bande
Hasan Mistri (Accused Nos. 5 to 8) respectively were charged "' •
c under Sections 25 r/w 3 & 7 of the Arms Act for traveling in the
stolen Maruti Car, carrying unlicensed pistols and prohibited
firearms i.e. A-56 rifle in furtherance of conspiracy and common
intention with accused Nos. 5 to 7. They were further charged
under Sections 25 (1A), 25(18) r/w 3, 7 and 35 of the Arms
D Act for having joint possession/control of the said vehicle i.e.
r ,
the stolen Maruti car which was used in the aforesaid crime and
were aware of existence of fire arms in the vehicle.

25. Accused Nos. 5 to 7 were charged under Sections 3
E (1) (i) of MCOCA read with Sections 302 & 1208 of IPC for
committing the offenee of organized crime on behalf of the
syndicate with the object of gaining advantage of syndicate and
promoting insurgency. They were also charged under Sections
3 (1) (ii) of MCOCA read with Sections 307 & 1208 of IPC for
F firing with weapons, causing injuries and endangering the life
of 7 persons. They were further charged under Sections 302,
307 r/w 34 and 120-8 of IPC for being taken in a stolen Maruti
Car by Accused No. 8 at the spot and for firing with their pistols
and rifles on the victims. They were charged under Sections
25(1A), 25(18) and 27(3) of the Arms Act for possessing fire
G
arms in contravention of Section 3 & 7 of the Arms Act. They ~

were also charged under Section 201 r/w 34 and 120-8 of IPC
for hiding their respective fire arms knowing that they were used
in commission of offence thus, attempted disappearance with
an intention to screen the offender.
H
~
,...
1122 SUPREME COURT REPORTS [2009] 12 S.C.R.

A on. A card was prepared by him making certain noting ). .
regarding the number of the car, the repairs done to it, the name
of the customer and his telephone number etc. A note was also
made in the card stating "Do not take again for servicing". He,
however, did not know Accused No. 4 earlier. He saw and
B identified Accused No.4 for the first time in the court on 31st
March, 2000. However, the identification of Accused No. 4 was
found to be doubtful.
'{ ~
29. The Special Court, Mumbai by its judgment and order
dated 05.09.2000 acquitted Accused Nos. 2 and 3 and
c recorded judgment and order of conviction and sentence ...
against the other six accused which are as under:-

"I (a) The Accused No. 1 Mohammed Farooq Chipa
{-
Rangari is found guilty and convicted of an offence
D punishable under Section 3(2) of the Maharashtra Control r .,
·of Organised Crime Act, 1999 (hereinafter referred as
"M.C.O.C. Act, 99") read with section 120-B l.P.C. and is
sentenced to Rigorous Imprisonment for ten years and to
.......
pay fine in the sum of Rs.5 lakhs. In default of payment of
E fine he shall undergo R. I. for three years.

(b) The Accused No.1 is also found guilty and ,.
convicted of an offence punishable under section 3(4) of
M.C.O.C. Act 99 read with section 120-B l.P.C. and is
sentenced to R.I. for ten years and shall also pay fine in
F the sum of Rs.5 lakhs. In default of payment he shall under ll
go R.I. for three years.

(c) The Accused No.1 is further held guilty and
convicted for an offence punishable under Section 212
G read with section 52-A read with section 120-B l.P.C. and
!>-
is sentenced to Rigorous Imprisonment for five years and
shall also pay a fine in sum of Rs.5000/-. In default of
payment of fine he shall undergo R.I. for six months.
IV. (a) The Accused No. 4 Mansur Hasan Haji Iqbal Pankar
H
MOHD.· FAROOQ ABDUL GAFUR v. STATE OF 1121
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

"' ,., 26. Abdul Hasan Bande Hasan Mistri (Accused No. 8) was A
. separately charged under Sections 302, 307 r/w 34 and 120-
B of IPC for taking Accused Nos. 5 to 7 in Maruti car in
furtherance of conspiracy and common intention thereby
facilitating the crime of murder and fatal injuries. He was also
charged under Sections 424, 414 r/w 34 and 120-8 of IPC for 8
dishonestly receiving the stolen Maruti Car and changing the
number plate and thus assisting in concealment of stolen
~ )'
property in furtherance of conspiracy and common intention. He
was further charged under Section 212 of IPC for harbouring
Accused Nos. 5 to 7 in stolen Maruti Car immediately after the c
aforesaid offence with the intention of screening them.
27. · 1n support of its case the prosecution examined 64
witnesses out of them 5 were eye witnesses including the

. .,.
injured persons. Six STD/ISO booth owners were also
examined to prove that some of the accused had made
telephone calls from their booths to Karachi, Pakistan. 4
D

witnesses were examined to depose about subsidiary
circumstances. 14 witnesses were panch witnesses. 4 medical
officers were examined to prove the post-mortem reports as
well as the certificates of injuries. 25 Police Officers including E
two investigating officers were also examined. 5 other
... witnesses were examined on different points. A large number
of documents were produced by the prosecution.
28. Sabiul Hasan (PW-15) was the owner of the Maruti car
F
... bearing registration No. MH-03-H-1759 which was stolen. He
had lodged a complaint to that effect on 30th January, 1999.
The evidence of PW-20, who is a panch witness, established
recovery of the car on 25th June, 1999. Accused No. 4 led
police to a garage situated opposite to Chhagan Mitha Petrol
.<(
Pump where the car was given for repair. Manager of petrol G
pump PW-17 stated that on 5th February, 1999 Accused No.
4 had brought one white car bearing No. BLD 1949 for certain
repairs and servicing. He did not take back the car
immediately, although he was informed that the repairing and
servicing had been completed. He visited the petrol pump later H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1123
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
is found guilty and convicted of an offence punishable A
' .. j., under Section 3(2) of M.C.O.C. Act 99 read with Section
120-B l.P.C. and is sentenced to R.I. for ten years and to
pay fine in the sum of Rs.5 lakhs. In the default of payment
of fine he shall undergo R.I. for three years.
B
(b) The Accused No.4 is further held guilty and
convicted of an offence punishable under Section 3(4) of
M.C.O.C. Act 99 read with Section 120-B l.P.C. and is
sentenced to R.I. for ten years and shall pay fine in sum of
" r-- Rs.5 lakhs. In default of payment of which he shall undergo
R.I. for three years.
c
(c) The Accused No.4 is also found guilty and ·
convicted of an offence punishable under Section 411 read
with Section 120-B l.P.C. and is sentenced to suffer R.I.
for two years and shall pay a fine in sum of Rs.5000/-. In D
• '1
default of payment of fine he shall undergo R.I. for six
months.
V. (a)The Accused No. 5 Mohd. Zuber Kasam Shaikh is
found guilty and convicted for an offence punishable under
E
Section 302 l.P.C. read with Section 3(1)(i) of M.C.O.C.
Act 99 read further with Section 120-B further read with
Section 34 l.P.C. for causing murder of:-

(i) Shri Milind Gunaji Chaudhary, aged 34 years.
F
(ii) Shri Vilas Gopinath Akre, aged 28 years
(iii) Shri Deepak Sitaram Akre, aged 30 years

And is hereby sentenced to death. He shall be
hanged by neck till he dies. G
-<i
(b) (i) The Accused No. 5 is also found guilty and is
convicted for an offence punishable under Section 27(3)
read with Section 7 of the The Arms Act 1959 and is
hereby sentenced to death. He shall be hanged by neck' H
1124 SUPREME COURT REPORTS [2009] 12 S.C.R.

A till he dies.

(ii) The Accused No. 5 is also found guilty and
convicted of an offence punishable under Section 25(1-A)
read with Section 7 of the Arms Act and is sentenced to
R.I. for ten years and payment of fine of Rs.5000/-. In
B
default of payment of fine he shall undergo R.I. for one year.

(c) The Accused No.5 is also found guilty and
convicted for an offence punishable under Section 307
l.P.C. read with Section 3(i) (ii) of the M.C.O.C. Act 99 1 •
c read further with Section 34 and Section 120-8 l.P.C. for
attempted murder of Ex mayor and sitting corporator of
Bombay municipal corporation Shri Milind Dattaram
Vaidye, aged 35 years and is sentenced to R.I. for life and
payment of fine of Rs.5 lakhs. In default of payment of fine
D he shall undergo R.I. for three years.

(d) The Accused No. 5 is also found guilty and r •
convicted for an offence punishable under Section 326
read with section 120-8 l.P.C. read with Section 34 l.P.C.
and further read with Section 3(i) (ii) M.C.O.C. Act 99 for
E causing grievous hurt to-

(i) Shri Nischal Krishan Choudhari aged 27 years

(ii) Shri Vinay Narayan Akre
F and is hereby sentenced to R. I. for ten years and payment
of fine in the sum of Rs. 5 lakhs. In· default of payment of
fine he shall undergo R.I. for three years.

(e) The Accused No. 5 is also convicted for an
G offence punishable under section 324 l.P.C. read with
section 34 and 120-8 l.P.C. read further with section
3(1 )(ii) of M.C.O.C. Act 99 and is sentenced to suffer R.I.
for five years and shall pay fine in the sum of Rs.5 lakhs
for causing fire arm injuries by dangerous weapons with
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1125
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

pistols and AK-56 rifle to- A
:> j..

(i) Shri Babu Kashinath Mangela, aged 40 years.

(ii) Shri Niteen Narayan, aged 43 years.

(iii) Shri Murguan V. Tewar, aged 26 years B

In default of payment of fine he shall undergo R.I. for one
year.
~
" (f) The Accused No.5 is also convicted of an offence
c
punishable under section 3(2) M.C.O.C. Act 99 read with
Section 120-B l.P.C. and is sentenced to suffer'~.!. for life
and to pay fine in the sum of Rs.5 lakhs. In default of
payment of fine he shall undergo R.I. for three years.

(g) The Accused No.5 is also convicted of an offence D
.. ..,. punishable under section 3(4) M.C.O.C. Act 99 read with
section 120-B l.P.C. and is sentenced to suffer R.I. for life
and also pay fine in the sum of Rs.5 lakhs. In default of
payment of fine he shall undergo R.I. for three years.

VI. The Accused No.6 Fa?al Mohd. Shaikh @ Manni E
Argamutu Shetiyar is found guilty and-

(a) Convicted for an offence punishable under
Section 302 l.P.C. read with section 3(1)(i) of
M.C.O.C. Act 99 read with Section 34 and section F
120-B l.P.C. for causing murder of-

(i) Shri Milind Gunaji Chaudhari, aged 34 years

(ii) Shri Vilas Gopinath Akre, aged 28 years
G
-\
(iii) Shri Deepak Sitaram Akre, aged 30 years.

And is hereby sentenced to death. He shall be
hanged by neck till he dies.

H
1126 SUPREME COURT REPORTS [2009] 12 S.C.R.

A (b) (i) Convicted for an offence punishable under section
27(3) read with section 7 of the The Arms Act 1959 read .._ .
with section 120-B 1.P.C. and is hereby sentenced to
death. He shall be hanged by neck till he dies.

(iii) also convicted for an offence punishable under
B
section 25(1-A) of the The Arms Act and is
sentenced to R.I. for ten years and payment of fine
in the sum of Rs.5000/-, and in default of payment
of fine to undergo further R.I. for one year.
"1
"
c (c) Convicted for an offence punishable under
Section 307 J.P.C. read with Section 3(1)(ii) of the
M.vu.c. Act 99 read further with Section 34 and 120-B
l.P.C. for attempted murder of Ex-Mayor and sitting
Corporator of Bombay Municipal Corporation Shri Milind
D Dattaram Vaidya aged 35 years and sentenced to R.I. for
life and shall pay fine in the sum of Rs.5 lakhs and in default
of payment of fine to undergo further R.I. for three years.
;-- .
(d) Convicted for an offence punishable under Section 3(2)
of the M.C.O.C. Act 99 read with section 120-B l.P.C. for
E facilitating the organized crime and is sentenced to suffer
R.I. for life and to pay fine in the sum of Rs.5 lakhs and in
default of payment of fine to undergo further R.I. for three ..,
years.

F (e) Convicted for an offence punishable under Section 326
read with section 34 and section 120-B l.P.C. further read
with Section 3(i)(ii) of the M.C.O.C. Act 99 for causing
grievous hurt to-

(i) Shri Nischal Krishna Choudhari aged 27 years
G
(ii) Shri Vinay Narayan Akre, aged 31 years.

and is sentenced to undergo R.I. for ten years and payment
of fine in the sum of Rs.5 lakhs and in default of payment
H of fine to undergo R.I. for two years.
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1127
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
(f) also convicted for an offence punishable under Section A
324 l.P.C. read with Section 3(1)(ii) of M.C.O.C. Act 99
read further with Section 34 and 120-B l.P.C. for causing
fire arm injuries to persons namely-

(i) Shri Babu Kashinath Mangela, Aged 40 years.
B
(ii) Shri Niteen Narayan, aged 43 years

(iii) Shri Murguan V. Tewar, aged 26 years.
•. and is hereby sentenced to R.I. for five years and shall pay
"' fine in the sum of Rs.5 lakhs and in default of payment of c
fine to undergo RJ for one year.

VII. The Accused No. 7 Azizuddin Zahiruddin Shaikh @
Abdul Sattar is found guilty and-
D
~ -;-
(a) Convicted for an offence punishable under
Section 302 read with section 3(1)(i) of the M.C.O.C. Act
... 99 read further with section 34 and 120-8 l.P.C. for
causing murder of-

(i) Shri Milind qunaji Chaudhari, aged 34 years. E

(ii) Shri Vilas Gopinath Akre, aged 28 ye"rs

(iii) Shri Deepak Sitaram Akre, aged 30 years.

and is hereby sentenced to death. Accused No. 7 shall be F
hanged by neck till he dies.

(b) (i) Convicted for an offence punishable under section
27(3) read with Section 7 of the The Arms Act, 1959 and
is hereby sentenced to death. He shall be hanged by neck G
till he dies.

(ii) Also convicted under section 25(1-A) of the The
Arms Act for possession of AK-56 rifle prohibited arms
and is sentenced to suffer R.I. for ten years and payment
H
1128 SUPREME COURT REPORTS [2009] 12 S.C.R.

A of fine in the sum of Rs.5,000/- and in default of payment
of fine to undergo R.I. for one year.

(c) Convicted of an offence punishable under Section
307 1.P.C. read with section 3(i) (ii) of M.C.O.C. Act 99
further read with section 34 and 120-8 l.P.C. for attempted
8 murder of Ex-Mayor and sitting Corporator of Bombay
Municipal Corporation Shri Milind Dattaram Vaidya, aged
35 years and is sentenced to undergo R.I. for life and
payment of fine in the sum of Rs.5 lakhs and in default of
payment of fine to undergo R.I. for three years.
c
(d) Convicted for an offence punishable under
Section 326 read with section 120-8 l.P.C. further read
with Section 3(i) (ii) of M.C.O.C. Act 99 for causing
grievous hurt to--
D
(i) Shri Nischal Krishan Choudhari, aged 27 years
+- •

E
(ii) Shri Vinay Narayan Akre, aged 31 years.

and is sentenced to suffer R.I. for ten years and payment
of fine in the sum of Rs.5 lakhs and in default of payment
--
of fine to undergo further R.I. for two years.

(e) Convicted for an offence punishable under
section 324 l.P.C. read with section 3(1)(ii) of M.C.O.C.
Act read further with section 34 and 120-8 l.P.C. for
F causing fire arms injuries to persons namely,

(i) Shri Babu Kashinath Mangela, Aged 40 years

(ii) Shri Niteen Narayan Akre, aged 43 years
G (iii) Shri Murguan V. Tewar, aged 26 years

and is hereby sentenced to R.I. for five years and
shall pay fine in the sum of Rs.5 lakhs. In default of
payment of fine he shall undergo R.I. for one year.
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1129
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
(f) Convicted of an offence punishable under Section 3(4) A
:"· of the M.C.O.C. Act read with Section 120-8 l.P.C. and is
sentenced to R.I. for life and fine in the sum of Rs.5 lakh
and in default of payment of fine to further undergo R.I. for

-j
three years.

VIII. The Accused No. 8 Abul Sande Hansan Mistry is found
guilt and -- ·
B

(a) Convicted of an offence punishable under Section 302
.. ~ read with section 34 l.P.C. read with Section 3(1)(i) of
M.C.O.C. Act 99 read further with section 109 read with c
section 120-8 l.P.C. and is sentenced to undergo R.I. for
life and shall· pay fine in the sum of Rs.1 lakh and in default
of payment of fine to undergo R.I. for three years.

(b) Convicted of an offence punishable under Section 307 D
l.P.C. read with section 3(1)(ii) of M.C.O.C. Act 99 read
• "t-
with Section 34, 109 and 120-8 l.P.C. for attempted
murder of Shri Milind Dattaram Vaidya, aged 35 years and
---- is sentenced to R.I. for life and shall pay fine in the sum of
Rs.5 lakhs and in default of payment of fine to undergo E
further R.I. for three years.

(c) Convicted under section 326 l.P.C. read with
section 3(1)(ii) of M.C.O.C. Act 99 read with section 34
l.P.C. for causing grievous hurt to -
F
(i) Shri Nischal Krishna Choudhari, aged 27 years.

(ii) Shri Vinay Narayan, aged 31 years

and is sentenced to undergo R.I. for ten years and
payment of fine in the sum of Rs.5 lakhs and in G
default of payment of fine to undergo further R.I. for
two years.
(d) Convicted also for an offence punishable under
Section 324 read with (34, 109) and 120-B l.P.C. read with H
1130 SUPREME COURT REPORTS [2009] 12 S.C.R.

A section 3(1 )(ii) of M.C.O.C. Act 99 for causing fire arm
injuries caused to--

(i) Shri Babu Kashinath Mangela, Aged 40 years,

(ii) Shri Niteen Narayan, aged 43 years ,_;,-
B
(iii) Shri Murguan V. Tewar, aged 26 years.

and is sentenced to R.I. for five years and fine in the sum
of Rs.5 lakhs and in default of payment of fine to suffer R.I.
for six months. .. ,.
c
(e) Convicted for an offence punishable under
section 201 l.P.C. read with section 120-8 l.P.C. and is
sentenced to R.I. for five years and shall pay fine in the
sum of Rs.5,000/- and in default of payment of fine to
D undergo further R.I. for six months.
(f) Convicted for an offence punishable under Section
r .

E
424 IPC and is sentenced to R.I. for two years.

(g) Convicted for an offence punishable under
section 414 l.P.C. and is sentenced to suffer R.I. for three
-
years."

As regards fine, the Special Judge directed :- •

F "Thirty percent of the amount of total fine if recovered shall
be paid towards compensation payable under section 357
Cr. P.C. to family members of three victims in 1/3 share
for each victim who were died. This is without prejudice
to their rights to recover compensation· independently at
Civil Law.
G
Twenty percent of the amount of total fine if
recovered be paid as compensation payable under
section 357 Cr. P.C. to each of the of the injured, Viz.
H (i) Shri Milind Dataram Vaidya
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1131
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
---'· ~ (ii) Shri Nischal Krishna Choudhari A

(iii) Shri Vinay Naryan Akre

in equal shares. This is without prejudice to their right to
.......
recover compensation at Civil law.
B
Fifty percent of the amount of total fine if recovered
appropriate by State of Maharahstra towards defrayal of
• ~
costs/expenses of the prosecution properly incurred."

30. Feeling aggrieved by the aforesaid judgment and order
dated 05.09.2000 passed by the Special Court, Mumbai
c
Accused No. 7 filed Criminal Appeal No. 661 of 2000; Accused
Nos. 1, 5 and 6 preferred a common appeal which was
registered as Criminal Appeal No.679 of 2000; Accused No.

..
8 filed Criminal Appeal No. 753 of 2000; and Accused No. 4
.. -+- filed Criminal Appeal No. 758 of 2000 in the High Court of D
Bombay. The State of Maharashtra did not prefer any appeal
against the aforesaid judgment and order of acquittal of
Accused Nos. 2 and 3. So far as the death sentence imposed
by the Special Judge against Accused Nos. 5, 6 and 7 is
concerned, the matter was referred to the High Court for E
confirmation ·which was registered as Confirmation Case No.
1 of2001.

31. The Division Bench of the High Court by its impugned
-.-
judgment and order dated 17.12.2003 confirmed the conviction F
of Accused No. 1 under Section 3(2) of MCOCA read with

-
Section 120-B IPC and under Section 3(4) of MCOCA read
' with Section 120-8 IPC and acquitted him of the charges under
Section 212 read with Section 52A and Section 120-8 IPC.
The appeal filed by Accused No. 4 was dismissed and his
G
conviction and sentence on all counts were confirmed. So far
as Accused Nos. 5 and 6 are concerned, they have been
acquitted of all the charges by the High Court. Though
conviction of Accused No. 7 was confirmed under Sections 302
read with Section 34, 120-8 of IPC read with Section 3(1)(i)
H
1132 SUPREME COURT REPORTS [2009] 12 S.C.R.

A of MCOCA, his death sentence was substituted by rigorous -'<

imprisonment for life plus a fine of Rs.24,000/- and in default
thereof, simple imprisonment of one year was imposed. His
conviction under Sections 304 read with Section 34, 1208 IPC
read with Section 3 (1) (ii) MCOCA; 326 read with Section
8 1208 IPC read with 3 (1) (ii) MCOCA; 324 read with Section
34, 1208 IPC read with Section 3 (1) (ii) MCOCA and Section
3(4) of MCOCA read with Section 1208 IPC was maintained.
Conviction and sentence of Accused No. 8 was also
... •
maintained.
c 32. Aggrieved by the aforesaid judgment and order dated
17.12.2003 passed by the High Court of Bombay Mohammed
Farooq Abdul Gafur Chi pa Rangari (Accused No.1 ), Mansoor
Hasan Haji Iqbal Pankar (Accused No. 4) and Abdul Hasan
Sande Hasan Mistri (Accused No. 8) have filed Criminal
D Appeal No. 85 of 2006, Criminal Appeal No. 86 of 2006 and -;.-

-
<
Criminal Appeal No. 87 of 2006 respectively. Azzizuddin
Zahiruddin Shaikh alias Abdul Sattar (Accused No. 7) had
preferred a special leave petition being SLP (Crl.) No. 1469
of 2004 which stood dismissed on 8th April, 2004.
E
33. The State of Maharashtra has also filed Criminal
Appeal Nos. 91-94 of 2006 against the acquittal of Accused
No.1 of the charges under Section 212 read with Section 52
(A) and Section 120-8 IPC; acquittal of accused Nos. 5 and 6
of all the offences and substitution of sentence from death to
F
life of Accused No. 7 by the High Court.

34. Accused Nos. 5 and 6 were not being represented
before us. We, therefore, requested Dr. Rajeev 8. Masodkar, ......
Advocate, to represent them as amicus curiae. It is necessary
G to place on record that two of the aforesaid accused have
jumped the bail and are absconding.

35. Having dealt with the facts leading to the initiation of
the criminal proceedings and having given a detailed account
of the trial held against all the accused persons, we have set
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1133
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

~
out the nature of the orders of convictions and sentences A
" passed by the trial court as also the orders passed by the High
Court on the appeals filed before it by the accused persons.
~

Accused Nos. 1, 4 and 8 as well as the State of Maharashtra
filed cross appeal in this Court. All the aforesaid appeals were
listed before us for final hearing upon which we heard the B
learned counsel appearing for the respective parties
extensively. Some of the submissions of the learned counsel
appearing for the parties were overlapping and, therefore, we
IL
" are going to set out the said submissions of the learned counsel
broadly. We, however, deal with the appeals filed by the c
accused persons in respect of each of the accused and the
State separately for the purpose of convenience ..

36. The broad submissions of the counsel appearing for
the accused persons mainly center around the confessional
statements of Accused Nos. 8 and 4 having been retracted D
~ ~
subsequently, the same are inadmissible not only against the
co-accused but also against the accused who allegedly have
made some confessional statements particularly with regard to
the making of such confessional statements which fact was not
put in their examination under Section 313 of Criminal E
1 Procedure Code, 1973 (for short 'CrPC').
....
37. It was submitted that no credence should have been
placed on the Test Identification Parade (for short 'TIP') held in
respect of Accused Nos. 4, 5, 6, 7 and Accused No. 8 F
particularly when they were arrested on different dates i.e.
Accused No. 4 was arrested on 21.06.1999, Accused Nos. 5
and 6 were arrested on 18.06.1999, Accused No. 7 was
arrested on 15.06.1999 and Accused No. 8 was arrested on
21.07.1999. TIP was held on 10.08.1999 after inordinate delay
G
... in as much as in case of Accused No. 4 it was held after 50
days, in case of Accused Nos. 5 and 6 it was held after 53 days,
in case of Accused No. 7 it was held after 55 days and in case
of Accused No. 8 it was held after 19 days. Therefore, in that
view of the matter the said TIP has been rendered inadmissible
H
1134 SUPREME COURT REPORTS (2009) 12 S.C.R.

A in evidence and should not and cannot be relied upon for the
purpose of convicting the accused persons.
. ...
38. Another submission which was very forcefully placed ...
before us was that the confessional statements cannot be the
basis of conviction in the present cases as the said
B
confessional statements which were proved in the instant case
did not contain the mandatory certificate as mentioned under
Rule 15 of Maharashtra Control of Organized Crime Rules,
1999 (for short 'the MCOC Rules'). Rule 15 of the MCOC Rules .. ~

requires a certificate to be attached with the confessional
c statement but the same apparently is not a part of the record
in the instant case thereby rendering the confessional
statement as invalid. The mandatory certificate contained the
warning which are admittedly not proved in the trial and the
same having been not proved, all the confessional statements
D lost its sanctity and, therefore, could not have been the basis
~ <

of any conviction.
.
39. It was submitted that the basic ingredients for a '

conviction under MCOCA were not made out in any of the
E cases. It was further submitted that there are a number of major
and vital contradictions in the evidence of the witnesses ~

produced on behalf of the prosecution in support of its case. It ,.
was pointed out that the incident admittedly happened during
the night time and it was a case of sudden happening as
F alleged by the prosecution itself and, therefore, none of the
accused could have been identified in such a short span of
about few seconds. Since the identity of the accused persons
could not be established and there are a number of vital
contradictions in the evidence of the prosecution witnesses, the . .
accused persons are liable to be acquitted.
G
40. The next contention was that the recovery of weapon
alleged to have been used by Accused No. 7 was made from
an open space i.e. the hutment roof of a house in a slum
hutment, which was accessible to all for which Accused No. 7
H could not have been held responsible as the weapon was not
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1135
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

in his exclusive possession. It was submitted that thei'e cannot A
be any conviction and sentence under the provisions of Arms
Act in as much as the sanction order which was issued was
illegal and vitiated and the recovery of the weapons allegedly
at the instance of the accused persons are also not in
accordance with law rather in violation of the same. B

41. The learned counsel appearing for the State of
Maharashta, however, refuted all the aforesaid contentions and
submissions and submitted that all the ingredients of the
offences alleged against each of the accused were fully
established in the present case and, therefore, the only C
punishment which should have been given to the accused
persons is the capital punishment for carrying out the daredevil
attack and for killing innocent persons. It was submitted that
there are substantive and clinching evidence available on
record against all the accused persons and, therefore, the High D
Court was not justified in converting the capital punishment
awarded to the accused-appellants i.e., Azzizuddin Zahiruddin
Shaikh alias Abdul Sattar (Accused No. 7) to that of life
. imprisonment, acquitting Mohammed Farooq Abdul Gafur
Chipa Rangari (Accused No. 1) of the charges under Section E
212 read with Section 52(A) and Section 120-B 1PC and
acquitting Accused Nos. 5 and 6.

42. It was submitted by the learned counsel appearing for
the State that necessary warnings were given to the accused F
persons before recording their confessional statements but part
one of the said statements which contained warning was
misplaced and, therefore, the same could not be brought on
record. The said confessional statements were recorded in
.
I'
accordance with the required formalities and after giving propar • G
' i warning to the .accused person which fact is proved by the
police officer recording such statements and also by the
stenographers who recorded the said statements. It was further
submitted that there could be some minor irregularities while
recording the aforesaid statements but the same would not in
H
1136 SUPREME COURT REPORTS [2009] 12 S.C.R.

A any manner vitiate the trial. Besides, reference was made by
.
the counsel appearing for the Government of Maharashtra to "'
Section 15 of MCOCA and ·placing reliance on the same he
submitted that the said section contained a non-obstante clause
and, therefore, it cannot be held that the confessional statements
B were not recorded in accordance with law.

43. Learned counsel appearing for the State pointed out
that the submissions of the learned counsel appearing for the
appellants that the sanction order is vitiated is not borne out from -l "'
c the record as the sanction order passed by the competent
authority was a detailed order and not a mechanical order as
sought to be suggested by the accused persons. He submitted.
that the weapons used by the various accused is proved and
established by the prosecution witnesses and injury caused to
the deceased and the injured tally substantially with the medical
D report and, therefore, the accused persons should have been
convicted and sentenced to the maximum punishment provided
.. .
· in law. He further submitted that the order of acquittal passed
by the High Court in respect of Accused Nos. 5 and 6 namely
Mohd. Juber Kasam Shaikh alias Tabrej alias Jugnu and Fazal
E Mohd. Shaikh alias Manni Argamutu Shetiyar is liable to be set
aside for which the· State has filed an appeal against the order
of acquittal which should be allowed and the said accused-
appellants should be convicted and sentenced to the maximum
punishment.
F
44. In the light of the aforesaid submissions of the counsel
appearing for the parties we have scrutinized the entire records
and the relevant provisions of law applicable to the case at
hand.
G Section 2 (1) (e) of the MCOCA defines "organsied crime"
as follov..s: - ...

"(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
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1137
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

.,._ syndicate, by use of violence or threat of violence or A
"' intimidation or coercion, or other unlawful means, with the
objective of gaining pecuniary benefits, or gaining undue
economic or other advantage for himself or any other
person or promoting insurgency;"
B
Section 3 of the MCOCA reads as follows: -

"Section 3 - Punishment for organised crime
. )>.
(1) Whoever commits an offence of organised crime shall.-
c
(i) if such offence has resulted in the death of any person,
be punishable with death or imprisonment for life and shall
also be liable to a fine, subject to a minimum fine of rupees
one lac;

(ii) in any other case, be punishable with imprisonment for D
'~ -+ 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.

(2) Whoever conspires or attempts to commit or E
advocates, abets or knowingly facilitates the commission
... of an organised crime or any act preparatory to organised
crime, shall be punishable with imprisonment for a term
which shall be not less than five years but which may extend
to imprisonment for life and shall also be liable to a fine, F
subject to a minimum fine of rupees five lacs.

Section 3 of the Arms Act, 1959 reads as -fotlews;-
G
"Sect.ion 3 - Licence for acquisition and possession of
firearms and ammunition

[(1)] No person shall acquire, have in his possession, or
carry any firearm or ammunition unless he holds in this
behalf a licence issued in accordance with the provisions H,
1138 SUPREME COURT REPORTS [2009] 12 S.C.R.

A of this Act and the rules made thereunder: .. ...,
Provided that a person may, without himself holding a
licence, carry any firearms or ammunition in the presence,
or under the written authority, of the holder of the licence
for repair or for renewal of the licence or for use by such
B
holder.

[(2) Notwithstanding anything contained in sub-section (1),
no person, other than a person referred to in sub-section ...
~
(3), shall acquire, have in his possession or carry at any
c time, more than three firearms:

Provided that a person who has in his possession more
firearms than three at the commencement of the Arms
(Amendment) Act, 1983, may retain with him any three of
such firearms and shall deposit, within ninety days from
D
such commencement, the remaining firearms with the ~ .
officer in charge of the nearest police station, or subject
to the conditions prescribed for the purposes of sub-
section (1) of section 21, with a licensed dealer or, where
such person is a member of the armed forces of the Union,
E
in a unit armoury referred to in that sub-section.

(3) Nothing contained in sub-section (2) shall apply to any ..
dealer in firearms or to any member of a rifle club or rifle
association licensed or recognised by the Central
F Government using a point 22 bore rifle or an air rifle for
target practice.
(4) The Provisions of sub-section (2) to (6) (both inclusive)
of section 21 shall apply in relation any deposit of firearms
G under the proviso to sub-section (2) as they apply in
relation to the deposit of any arms or ammunition under
sub-section (1) of that section.]"

Section 7 of the Arms Act, 1959 reads as follows:

H "Section 7 - Prohibition of acquisition or possession, or
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1139
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

of manufacture or sale of prohibited arms or prohibited A
~
,._
ammunition

No person shall-

(a) acquire, have in his possession or carry; or
B
(b) [use, manufacture,] sell, transfer, convert, repair, test or
prove; or

~ ). (c) expose or offer for sale or transfer or have in his
possession for sale, transfer, conversion, repair, test or
proof; c
any prohibited arms or prohibited ammunition unless he
has been specially authorised by the Central Government
in this behalf."
D
~ -'t Section 25 - Punishment for certain offences

[(1A)Whoever acquires, has in his possession or carries
any prohibited arms or prohibited ammunition in E
contravention of section 7 shall be punishable with
imprisonment for a term which shall not be less than five
years, but which may extend to ten years and shall also
be liable to fine.
F

(1 B) Whoever--

(a) acquires, has in his possession or carries any firearm
or ammunition in contravention of section 3;or G
(b) acquires, has in his possession of carries in any place
specified by notification under section 4 any arms of such
class or description as has been specified in that
notification in contravention of that section; or
H
1140 SUPREME COURT REPORTS [2009] 12 S.C.R.

A (c) sells or transfers any firearm which does not bear the
name of the maker, manufacturer's number or other
identification mark stamped or otherwise shown thereon
.. ...
as required by sub-section (2) of section 8 or does any
act in contravention of sub-section (1) of that section; or
8 (d) being a person to whom sub-clause (ii) or sub-clause
(iii) of clause (a) of sub-section (iii) of clause (a) of sub-
section (1) of section 9 applies.acquires, has in his
possession or carries any firearm or ammunition in
~ ~
contravention of that section;
c
(e) sells or transfers, or converts, repairs, tests or proves
any firearm or ammunition in contravention of clause (b)
of sub-section (1) of section 9; or

(f) brings into, or take out of, India, any arm or ammunition
D
in contravention of section 1O; or .
(g) transports any arms or ammunition in contravention of
'"
section 12; or .....
E (h) fails to deposit arms or ammunition as required by sub-
section (2) of section3, or sub-section (1) of section 21;

(i)being a manufacturer of, or dealer in, arms or
ammunition, fails, on being required to do so by rules
made under section 44, to maintain a record or account
F or to make therein all such entries as are required by such
rules or intentionally makes a false entry therein or prevents
or obstructs the inspection of such record or account of the
making of copies of entries therefrom or prevents or
obstructs the entry into any premises or other place where
G arms or ammunition are or is manufactured or kept or
intentionally fails to exhibit or conceals such arms or
ammunition or refuses to point out where the same are or
is manufactured or kept;

H shall be punishable with imprisonment for a term which
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1141
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

shall not be less than 5 [one year] but which may extend A
·-· ~
to three years and shall also be liable to fine;

Provided that the Court may for any adequate and special
reason to be recorded in the judgment impose a sentence
of imprisonment for a term of less than 6 [one year]" B
Section 35 of the Arms Act, 1959 reads as follows:

- ).
, "Section 35 - Criminal responsibility of persons in
occupation of premises in certain cases

Where any arms or ammunition in respect of which any
c
offenc!3 under this Act has been or is being committed are
or is found in any premises, vehicle or other place in the
joint occupation or under the joint control of several
persons, each of such persons in respect of whom there
D
_, is reason to believe that he was aware of the existence of
}
the arms or ammunition in the premises, vehicle or other
place shall, unless the contrary is proved, be liable for that
offence in the same manner as if it has been or is being
committed by him alone."
E
45. Now we propose to deal with the various aspects of
the contentions raised in respect of each of the accused
persons separately.

46. We first proceed to deal with the case of Mohammed
F
Farooq Abdul Gafur Chipa Rangari (Accused No. 1) who was
arrested on 13.03.1999. Mr. Zafar Sadique, learned counsel
appearing for Accused No. 1 very forcefully submitted before
us that Accused No. 1 was convicted only on the basis of the
confessional statement but there is no corroboration of the said
G
confessional statement. It was also submitted that even no
-J allegation regarding making of any confessional statement was
put to the accused when he was examined under Section 313
CrPC. It was further submitted that since the aforesaid
confessional statement was inadmissible against a co-
H
1142 SUPREME COURT REPORTS [2009] 12 S.C.R.

A accused and the same not being a part of Section 313 CrPC,
the sentence passed against the said accused is liable to be ... .,..-
set aside and quashed.

47. The aforesaid submission when examined in the light
B of the records does not find favour. Though it is proved and
established from the records that Accused No. 1 did not himself
participate in the actual shootout, it is alleged against him that
he was a part of the gang of Chhota Shakeel, that he was in
touch with the gang leaders in Karachi (Pakistan) and he also ,_
~
acted on behalf of the said gang so much so that he had
c effected payment of money arranged by the leaders of the gang
to Accused Nos. 5, 6, and 8 for causing the shootout. It was
submitted by the Public Prosecutor appearing for the State of
Maharashtra that Accused No. 1 paid Rs. 25,000/- to Mohd.
Juber Kasam Shaikh alias Tabrej alias Jugnu (Accused No. 5)
D on 06.03.1999 and Rs. 10,000/- to Abdul Hasan Bande Hasan
Mistri (Accused No. 8). He pointed out that the allegation is that ; .
Accused No. 1 had paid a similar amount even to Fazal Mohd.
Shaikh alias Manni Argamutu Shetiyar (Accused No. 6).

E 48. The evidence that is placed before us clearly
establishes that Accused No. 1 was responsible for ·procuring
a pistol and handing over the same to Accused No. 5 which
.,.
was used in the shootout. The said fact is also established and
proved by the confessional statement of Accused No. 5.
F Whether or not the said confessional statement could be used
against a co-accused is a different matter which we will discuss
at an appropriate stage.

49. Evidence is also available to prove and establish the
fact that Accused No. 1 is also responsible for arranging a
G driver i.e. Accused No. 8 who drove the car which was used in
the shootout. 'The other material which is placed against
Accused No. 1 is his own confessional statement recorded
under Section 18 of MCOCA. The legality of the aforesaid
confessional statement is, however, challenged by Accused
H No.1 on the ground that the same does not bear a certificate
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1143
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
in the identical terms as specified under Rule 3(6) of the MCOC A
., 7- Rule~ and that the same was recorded by Parambir Singh (PW-
51) who was an officer associated with or interest in the
investigation of the same.

50. A perusal of Section 29 of MCOCA shows that it B
confers a rule making power on the State. The State of
Maharshtra in exercise of the said power under sub-section (1)
of Section 29 of the Act framed rules known as 'Maharahstra

-- , Control of Organised Crime Rules, 1999'. Rule 3 provides for
the procedure to be followed for recording of confession under
Section 18 of MCOCA. Section 18 of the MCOCA reads as
c
follows:

"Section 18 - Certain confessions made to police officer
to be taken into consideration
D
, -~
(1) Notwithstanding anything in the Code or in the Indian
Evidence Act, 1872 (I of 1872), but subject to the provisions
of this section, a confession made by a person before a
police officer not below the rank of the Superintendent of
Police ad recorded by such police officer either in writing
E
or on any mechanical devices like cassettes, tapes or
sound tracks from which sounds or images can be
reproduced, shall be admissible in the trial of such person
or co-accused, abettor or conspirator:

Provided that, the co-accused, abettor or conspirator is F
charged and tried in the same case together with the
accused.

(2) The confession shall be recorded in a free atmosphere
in the same language in which the person is examined and G
as narrated by him.

(3) The police officer shall, before recording any
confession under sub-section (1), explain to the person
making it that he is not bound to make a confession and
H
1144 SUPREME COURT REPORTS [2009] 12 S.C.R.

A that, if he does so, it may be used as evidence against
_,..
him and such police officer shall not record any such
confession unless upon questioning the person making it,
he is satisfied that it is being made voluntarily. The
concerned police officer shall, after recording such
8 voluntary confession, certify in writing below the confession
about his personal satisfaction of the voluntary character
of such confession, putting the date and time of the same.

c
(4) Every confession recorded under sub-section (1) shall
be sent forthwith to the Chief Metropolitan Magistrate or
the Chief Judicial Magistrate having jurisdiction over the
.;
-
area in which such confession has been recorded and such
Magistrate shall forward the recorded confession so
received to the Special court which may take cognizance
of the offence.
D
(5) The person whom a confession had been recorded ~ .
under sub-section (1) shall also be produced before the
Chief Metropolitan Magistrate or the Chief Judicial
Magistrate to whom the confession is required to be sent
-
E under sub-section (4) alongwith the original statement of
confession, written or recorded on mechanical device
without unreasonable delay.
+
(6) The Chief Metropolitan Magistrate or the Chief Judicial
Magistrate shall scrupulously record the statement, if any,
F made by the accused so produced and get his signature
and in case of any complaint of torture, the person shall
be directed to be produced for medical examination
before a Medical Officer not lower in rank than of an
Assistant Civil Surgeon."
G
Further, Rule 3(6) of the Rules reads as follows:-

"3. Procedure for recording of confession under Sector
18 of the Act.
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1145
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
A
) 7-

(6) The confession recorded under sub-rule (5) shall, if it
is in writing, be signed by the person who has made such
confession and by the Police Officer, who has recorded
the said confession. Such Police Officer shall, under his B
own hand, also make a memorandum at the end of the
confession to the following effect:-

"I have explained to (name of the confessor) that he
... ~
is not bound to make a confession and that, if he does so,
any confession that he makes, may be used as evidence c
against him and I am satisfied that this confession has
been made voluntarily. It has been made before me and
in my hearing and has been recorded by me in the
language in which it is made and as narrated by, the
confessor. I have read it over to the confessor and he· has D
~ ·'I admitted it to be verbatim and correct, and containing also
full and true account of the confession/statement made by
him."

51. We have perused the aforesaid confessional statement E
which substantially complies with the requirements of Section
18 of MCOCA read with the aforesaid rule.

52. It was a categorical case of the prosecution that
Parambir Singh (PW-51) who recorded the said confessional
statement was never involved with the investigation of the case. F
The prosecution has also brought on record that Pl Yashwant
Puntambekar (PW-36) of Mahim Police Station was handling
the investigation from 04.03.1999, then Pl Bharat Tambe (PW-
59) took over investigation on 06.03.1999 and thereafter, ACP
Pradeep Sawant (PW-61) took charge of the investigation from G
Police Inspector Bharat Tambe on 26.03.1999. On going
through all the material available on record the High Court came
to the categorical finding that the aforesaid confessional
statement was made voluntarily and while recording the same
post confessional formalities were followed. It was held by the H
1146 SUPREME COURT REPORTS [2009] 12 S.C.R.

A High Court that although the confessional statement does not
bear any certificate in the identical terms as specified under ~

Rule 3(6) of the MCOC Rules, 1999, it nevertheless complies
with the requirements of Section 18. Apart from that, there is
also evidence on record indicating that Accused No. 1 made
B several phone calls to gang leaders in Pakistan from various
phone booths. The said fact is also accepted by the trial court
as well as by the High Court. We find no plausible reason as

c
to why this Court should take a different view than what is taken
by the trial court and the High Court on proper appreciation of
the evidence on record.

53. The confessional statement of Accused No. 8 was held
~
-
to be admissible by both the courts below in which he nad
categorically stated that he knew Accused No. 1 from childhood
and that Accused No. 1 had brought him to act as a driver in
D the said shootout and also paid him Rs. 10,000/- for the job.
Accused No. 8 in his confessional statement had also stated ~
•
that Accused No. 5 visited Accused No. 1.

54. The confessional statements of Accused Nos. 5 and
E 6 are also relevant to prove and establish the involvement of
Accused No. 1 with the incident. In the said confessional
statement, Accused No. 5 had stated that on 02.03.1999,
Faheem informed Accused No. 5 on the phone that he would
be sending two pistols with Accused No. 1. In fact, Accused
F No. 1 came to the house of Accused No. 5 to deliver the said
pistols. It has also come out in the said confessional statement
that out of the two pistols one was not in order and so the same
was returned to Accused No. 1 and that on 05.03.1999
Accused No. 5 called Accused No. 1 who informed him that
he (Accused No. 1) has spoken to Chhota Sha keel over the
G
phone and informed him about the incident on the previous day.
Accused No. 5 has also stated in his confessional statement
that Accused No. 1 informed him that Chhota Shakeel had
asked Accused No. 1 to pay Accused No. 5 some money.
Thereupon, Accused No. 1 paid Rs. 20,000/- to Accused No.
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1147
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

5 at Vakola and Accused Nos. 5 and 6 together informed A
... -t·
Accused No. 1 that they were going to Kolkata.

55. Besides aforesaid evidence on record there is also
evidence of other witnesses namely PW-21, owner of an STD
booth which was functioning under the name and style of J. J.
B
Brothers Communication Centre. He stated in his statement
that on 01.03.1999, Accused No. 1 made a phone call to a
specific number in Karachi (Pakistan). PW-35, who is the owner
~ ~ of phone booth named Data Link, stated that he personally
knew Accused No. 1. He deposed that Accused No. 1 would
come to his booth regularly to make phone calls to Pakistan.
c
PW-37, who was another witness .and the owner of Azari
Communication Action Centre, stated in his evidence that
Accused No. 1 had made calls on specified numbers in
Pakistan on 01.03.1999 and 09.03.1999. This evidence of PW-
37 is also found to be corroborated by the evidence of PW- D
~ i
54. Similar is the evidence of PW-43 who deposed that calls
were made by Accused No. 1 to Pakistan.

56. The High Court disbelieved the aforesaid confessional
statements of Accused Nos. 5 and 6 on the ground that the said E
confessional statements were inadmissible in evidence thereby
~- it reversed the findings of the trial court. The High Court came
to the aforesaid conclusion on the basis that there is no
evidence to show that any preliminary warning was given prior
to the recording of the confessional statement and that in F
absence of proof of the fact that a warning was given prior to
the recording of the confessional statement, the same was

- inadmissible in evidence.

57. In our considered opinion the High Court ignored the
fact that there is evidence of PW-64, the typist who had G
deposed that the preliminaf'Y warning was in fact given which
was so recorded on 23.07.1999. Considering the facts and
circumstances of the case we find no reason not to accept the
said statement of PW-64, the typist. We also hold that the
aforesaid confessional statement of the co-accused could be H
1148 SUPREME COURT REPORTS [2009] 12 S.C.R.

A the basis of conviction under the provisions of MCOCA.
"'
58. We, therefore, hold Accused No. 1 guilty of all the
charges which were already found to be proved and established
by the trial court and affirmed by the High Court. So far the
sentence is concerned we, however, uphold and confirm the
B
sentence passed by the High Court and also restore the
punishment awarded by the trial court under Section 212 read
with Section 52(A) read with Section 120-B IPC.

59. So far as conviction under MCOCA is concerned, it is • ,..
c quite clear that conviction could be based solely on the basis
of the confessional statement itself and such conviction is. also
permissible on the basis of the confessional statement of the
co-accused which could be used and relied upon for the
purpose of conviction. In the case of State v. Na/ini, (1999) 5
D SCC 253, it was held by this Court in the context of Section
~
15 of the Terrorist and Disruptive Activities (Prevention) Act, '
1987 (now repealed), which is pari materia with Section 18 of
the MCOCA that the evidence of a co-accused is admissible
as a piece of substantive evidence and in view of the non
-
E obstante clause, the CrPC will not apply. The Court observed
as follows in the relevant paras:

"415. When Section 15 TADA says that confession of an
accused is admissible against a co-accused as well, it
would be substantive evidence against the co-accused. It
F is a different matter as to what value is to be attached to
the confession with regard to the co.accused as that would
fall in the realm of appreciation of evidence.

G
416. The term "admissible" under Section 15 has to be
given a meaning. When it says that confession is
admissible against a co-accused it can only mean that it •
-
is substantive evidence against him as well as against the
maker of the confession.

417. Mr Natarajan said that the confession may be
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1149
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

substantive evidence against the accused who made it but A
not against his co-accused. He reasoned that the
confession was not that of the co-accused and it was not
the evidence; it is the confessor who owned his guilt and
not the co-accused; it is not evidence under Section 3 of
the Evidence Act; it is not tested by cross-examination; B
and lastly, after all it is the statement of an accomplice.
According to him it can have only corroborative value and
that is a well-established principle of the evidence even
though Section 3 and Section 30 of the Evidence Act be
ignored. But then Section 15 TADA starts with non c
obstante clause. It says that neither the Evidence Act nor
the Code of Criminal Procedure will apply. This is certainly
a departure from the ordinary law. But then it was also the
submission of Mr Natarajan that the bar which is removed
under Section 15 is qua Sections 24, 25 and 26 of the D
Evidence Act and not that all the provisions of the
Evidence Act have been barred from its application. He,
therefore, said that the view taken by this Court in Kalpnath
Rai case? that Section 30 of the Evidence Act was in any
case applicable, was correct. We think, however, that the E
Vi€1W expressed in that case needs reconsideration. .

418. If we analyse Section 15, the words which have been
added by the amending Act, 1993 have to be given proper
meaning and if we accept the argument of Mr Natarajan
these words will be superfluous which would be against F
the elementary principles of interpretation of statute. For
the confession of an accused to be admissible against a
co-accused, proviso to Section 15 says that they should
be tried together. That is also Section 30 of the Evidence
Act. Clauses (c) and (d) of Section 21 wen~ deleted which G
raised a presumption of guilt against the co-accused.
According to Mr Natarajan, that provision made the
2 ' confession of a co-accused a substantive evidence and
''.:;'Parliament did not think it proper that it should be so. But
..,'"l:Hetiwhy ada 1the"words in Section 15? H
, '.~~.:J'.;p 811} ~;-:.., Gf:'.:· =··!:;:..
1, · ..~'
1150 SUPREME COURT REPORTS [2009] 12 S.C.R.

A 419. "Admissible" according to Black's Law Dictionary .. ~, ...
means:

"Pertinent and proper to be considered in reaching a
decision. Used with reference to the issues to be decided
in any judicial proceeding."
B
420. It defines "admissible evidence" as:

c
"As applied to evidence, the term means that the evidence
introduced is of such a character that the court or judge is
bound to receive it; that is, allow it to be introduced at trial.
~
-
To be 'admissible' evidence must be relevant, and, inter
alia; to be 'relevant' it must tend to establish material
proposition .... "

If we again refer to Black's Law Dictionary "substantive
D evidence" means: ~ •
"That adduced for the purpose of proving a fact in issue,
as opposed to evidence given for the purpose of
discrediting a witness (i.e. showing that he is unworthy of
E belief), or of corroborating his testimony."

421. TADA was enacted to meet extraordinary situation
existing in the country. Its departure from the law relating
to confession as contained in the Evidence Act is
deliberate. Law has to respond to the reality of the
F situation. What is admissible is the evidence. Confession
f-
of the accused is admissible with the same force in its
application to the co-accused who is tried in the same
case. It is primary evidence and not corroborative. When
the legislature enacts that the Evidence Act would not
G apply, it would mean all the provisions of the Evidence Act
including Section 30. By judicial interpretation or judicial
rigmarole, as we may put it, the court cannot again bring
into operation Section 30 of the Evidence Act and any such
attempt would not appear to be quite warranted.
H Reference was made to a few decisions on the question
MOHD.. FAROOQ ABDUL GAFUR v. STATE OF 1151
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

~
r of interpretation of Sections 3 and 30 of the Evidence Act, A
foremost being that of the Privy Council in Bhuboni Sahu
v. R.8 and though we note this decision, it would not be
applicable because of the view which we have taken on
the exclusion of Section 30 of the Evidence Act. In Bhuboni
Sahu case8 the Board opined as under: B
"Section 30 seems to be based on the view that an
admission by an accused person of his own guilt affords
some sort of sanction in support of the truth of his
"' confession against others as well as himself. But a
confession of a co-accused is obviously evidence of a very c
weak type. It does not indeed come within. the definition
of 'evidence' contained in Section 3, Evidence Act. It is
not required to be given on oath, nor in the presence of
the accused, and it cannot be tested by cross-examination.
t
_,_ It is a much weaker type of evidence than the evidence of D
an approver which is not subject to any of those infirmities.
Section 30, however, provides that the court may take the
confession into consideration and thereby, no doubt,
makes it evidence on which the court may act; but the
section does not say that the confession is to amount to E
proof. Clearly there must be other evidence. The
confession is only one element in the consideration of all
the facts proved in the case; it can be put into the scale
and weighed with the other evidence. Their Lordships think
that the view which has prevailed in most of the High Courts F
in India, namely that the confession of a co-accused can
be used only in support of other evidence. aAG-cannot -be
made the foundation of a conviction, is correct."

422. In Kashmira Singh v. State of M.P.9 one of the
-"· questions was how far and in what way the confession of G
an accused person can be used against a co-accused.
The Court relied on the observations made by the Privy
Council in Bhuboni Sahu case8 and said that testimoAy
of an accomplice can in law be used to corroborate
H
1152 SUPREME COURT REPORTS [2009] 12 S.C.R.

A another though it ought not to be used save in exceptional --r
"'"
circumstances and for reasons disclosed.

423. In Haricharan Kurmi v. State of Bihar1 O this Court
again relied on its earlier decision in Kashmira Singh
case9 and on the decision of the Privy Council in Bhuboni
B
Sahu case8. It said that technically construed, definition of
evidence as contained in Section 3 of the Evidence Act
will not apply to confession. Even so, Section 30 provides
~
that a confession may be taken into consideration not only
a~ainst its maker, but also against a co-accused person;
c that is to say, though such a confession may not be
evidence as strictly defined by Section 3 of the Act, it is
an element which may be taken into consideration by the
criminal court and in that sense, it may be described as
evidence in a non-technical way. But it is significant that
D like other evidence which is produced before the court, it »- ;

is not obligatory on the court to take the confession into
account. When evidence as defined by the Act is produced
before the court, it is the duty of the court to consider that
evidence. What weight should be attached to such
E evidence is a matter in the discretion of the court. But a
court cannot say in respect of such evidence that it will just
not take that evidence into account. Such an approach can,
however, be adopted by the court in dealing with a
confession, because Section 30 merely enables the court
F to take the confession into account.

424. In view of the above discussions, we hold the
confessions of the accused in the present case to be
voluntarily and validly made and under Section 15 of TADA
confession of an accused is admissible against a co-
G accused as a substantive evidence. Substantive evidence,
however, does not necessarily mean substantial evidence.
It is the quality of evidence that matters. As to what value
is to be attached to a confession will fall within the domain
of appreciation of evidence. As a matter of prudence, the
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1153
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

...., ·r court may look for some corroboration if confession is to A
be used ·against a co-accused though that will again be
within the sphere of appraisal of evidence."

60. Reiterating the aforesaid position of law, this Court in
Devender Pal Singh v. State of NCT of Delhi, (2002) 5 SCC B
234, at page 261 observed as follows:

"33. As was noted in Gurdeep Singh case2 whenever an

·- \.
accused challenges that his confessional statement is not
· voluntary, the initial burden is on the prosecution for it has
to prove that all requirements under Section 15 of TADA c
and Rule 15 of the Terrorist and Disruptive Activities
(Prevention) Rules, 1987 (hereinafter referred to as "the
Rules") have been complied with. Once this is done the
prosecution discharges its burden and then it is for the
accused to show and satisfy the court that the D
t ....
confessional statement was not made voluntarily. The
confessional statement of the accused can be relied upon
for the purpose of conviction, and no further corroboration
is necessary if it relates to the accused himself. It has to
be noted that in Nalini case7 by majority it was held that E
as a matter of prudence the court may· look for some
corroboration if confession is to be used against a co-
accused though that will be again within the sphere of
appraisal of evidence. It is relevant to note that in Nalini
case7 the Court was considering the permissibility of F
conviction of a co-accused on the confessional statement
made by another accused. In this case, we are concerned
with the question as to whether the accused making the
confessional statement can be convicted on the basis of
that alone without any corroboration. The following G
obs.ervations in Jayawant Dattatray case6 are relevant:
(SCC p. 146, para 60)

"60. 2. Confessiona,I statement before the police officer
under Section 15 of the TADA is substantive evidence and
it can be relied upon in the trial of such person or co- H
1154 SUPREME COURT REPORTS [2009) 12 S.C.R.

A accused, abettor or conspirator for an offence punishable ~ ..,,.
under the Act or the Rules. The police officer before
recording the confession has to observe the requirement
of sub-section (2) of Section 15. Irregularities here and
there would not make such confessional statement
B inadmissible in evidence. If the legislature in its wisdom
has provided after considering the situation prevailing in
the society that such confessional statement can be used
as evidence, it would not be just, reasonable and prudent
to water down the scheme of the Act on the assumption ~
~

c that the said statement was recorded under duress or was
not recorded truly by the officer concerned in whom faith
is reposed. It is true that there may be some cases where
the power is misused by the authority concerned. But
such contention can be raised in almost all cases and it
would be for the court to decide to what extent the said
D
statement is to be used. Ideal goal may be: confessional .. •
statement is made by the accused as repentance for his
crime but for achieving such ideal goal, there must be
altogether different atmosphere in the society. Hence,
unless a foolproof method is evolved by the society or such
E atmosp.here is created, there is no alternative, but to
implement the law as it is."

(emphasis supplied in original)

61. In the case of Jameel Ahmed v. State of Rajasthan,
F
(2003) 9 SCC 673, at page 689, this Court summarized the
aforesaid legal position as follows:

"35. To sum up our findings in regard to the legal
arguments addressed in these appeals, we find:
G
(i) If the confessional statement is properly recorded,
satisfying the mandatory provision of Section 15 of the
TADA Act and the Rules made thereunder, and if the same
is found by the court as having been made voluntarily and
H truthfully then the said confession is sufficient to base a
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1155
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

conviction on the maker of the confession. A
-· +·
(ii) Whether such confession requires corroboration or not,
is a matter for the court considering such confession on
facts of each case.

(iii) In regard to the use of such confession as against a B
co-accused, it has to be held that as a matter of caution,
a general corroboration should be sought for but in cases
where the court is satisfied that the probative value of such
confession is such that it does not require corroboration
then it may base a conviction on the basis of such c
confession of the co-accused without corroboration. But
this is an exception to the general rule of requiring
corroboration when such confession is to be used against
a co-accused.
D
(iv) The nature of corroboration required both in regard to
' "" the use of confession against the maker as also in regard
to the use of the same against a co-accused is of a
general nature, unless the court comes to the conclusion
that such corroboration should be on material facts also
E
because of the facts of a particular .case. The degree of
corroboration so required is that which is necessary for a
prudent man to believe in the existence of facts mentioned
in the confessional statement.

{v) The requirement of sub-rule (5) of Rule 15 of the TADA F
Rules which contemplates a confessional statement being
sent to the Chief Metropolitan Magistrate or the Chief
Judicial Magistrate who, in turn, will have to send the same
to the Designated Court is not mandatory and is only
directory. However, the court considering the case of direct G
transmission of the confessional statement to the
Designated Court should satisfy itself on facts of each case
whether such direct transmission of the confessional
statement in the facts of the case creates any doubt as to
the genuineness of the said confessional statement." H
1156 SUPREME COURT REPORTS [2009] 12 S.C.R.

A 62. Reverting back to the factual position of the present
case, so far as Aslam Mohammed Kutti (Accused No. 2) and
Abdul Kadar Abdul Gafoor Rizvi (Accused No. 3) are
+ .•
concerned, they have been acquitted by the trial court as
against which no appeal was filed in the High Court, therefore,
B the said acquittal is not the subject matter of appeal before us
and we are not called upon to look into the aforesaid order of
acquittal passed by the trial court.

63. We now come to the case of Mansoor Hasan Haji Iqbal
Pankar (Accused No. 4) who was also represented by the
c same counsel who appeared for Accused No. 1. He was
arrested on 21.06.1999 along with Accused Nos. 2 and 3'. Mr.
Zafar Sadique, learned counsel appearing for Accused No. 4,
who is also appearing for Accused No. 1, submitted before us
that the prosecution failed to show that the confession statement
D made by him was voluntary or truthful as there is no
corroboration of the said confessional statement. It was also ~
...
submitted that the confessional statement made by Accused
No. 4 having been retracted and the same having not been
corroborated by the prosecution witnesses, the impugned
E judgment cannot be sustained. It was further submitted that
since the aforesaid confessional statement was inadmissible
against a co-accused and the same not being a part of Section
313 CrPC, the sentence passed against the said accused is
liable to be set aside and quashed. The learned counsel next
F submitted that Accused No. 4 had not played an active role in
the shootout and had no knowledge of the conspiracy.

64. The aforesaid submissions when examined in the light
of the records cannot be accepted. Though it is proved and
established from the records that Accused No. 4 did not himself
G participate in the actual shootout, it is alleged against him that
he was a part of the gang of Chhota Shakeel, that he was in
constant touch with Mohd. Faheem and also he acted on behalf
of the said gang so much so that he purchased mobile phones
and sim cards and he also arranged the Maruti Car on the
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1157
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

instructions of Mohd. Faheem which was used for the shootout A
.,. and received payment for the same, that he was present during
the handing over of AK-56 and pistol to Accused No. 7 on the
morning of the incident and he was privy to the conversations
between Chhota Shakeel, Mohd. Faheem and Accused No. 7
on the day of the shootout. B

65. Accused No. 4 himself has admitted that he was in
regular contact over phone with Mohd. Faheem, the associate
of Chhota Shakeel, that he purchased mobile phone and sim
'" cards on the instructions of Mohd. Faheem and received
payment for the same, that he arranged the Maruti car which
c
was used for the shootout on the instructions of Mohd. Faheem,
that he was present during the handing over of AK-56 and pistol
to Accused No. 7 on the morning of the incident and he was
privy to the conversations between Chhota Shakeel, Mohd.
Faheem and Accused No. 7 on the day of the shootout and that D
')"
_.. he was an active member of the gang of Chhota Shakeel who
actively participated in the activities of the organized crime
syndicate which fact is corroborated by his confessional
statement.
E
66. So far as confessional statement of Accused No. 4 is
concerned, we find the same to be trustworthy and reliable. It
is evidently clear from the records that the confessional
statement of Accused No. 4 was recorded on 30. 07 .1999 by
Ravindra Kadam (PW-39) who was DCP (Zone-IV) which was F
produced before CMM in a sealed envelop. The aforesaid
confessional statement was found to be in substantial
compliance with the requirements of Section 18 of MCOCA.
The High Court came to the categorical finding that post
confessional formalities have been followed and although the
G
confessional statement does not bear a certificate in the
identical terms as specified under Rule 3(6) of the MCOC
Rules, there is nevertheless compliance of Section 18 of
MCOCA. We find no plausible ground to discard the view taken
by the High Court in this regard.
H
1158 SUPREME COURT REPORTS [2009] 12 S.C.R.

A 67. The submission of the learned counsel appearing for
the State that Accused No. 4 has rendered assistance to the
organized crime syndicate by providing phones, sim-cards and
arranging the car which was used in the shootout gets support
from the fact that Accused No. 4 himself admitted in his
B confessional statement that he was in constant touch with
Mohd. Faheem on the phone, bought secondhand mobile
phones and sim cards for gang members, stole the Maruti car,
brought it to the petrol pump for repairs and subsequently
handed over the same to Accused No. 7.
.
c 68. The aforesaid confessional statement is supported by
the deposition of Deepak Narayan Shinde (PW-53), PSI, Crime
Branch, Unit IV who deposed that Accused No. 4 led the police
to Asia Communication Centre from where he had bought six
or seven mobile phones. The aforesaid confessional statement
D is alsb supported by the evidence of the Manager of Chhagan
Mitha Petrol Pump, who corroborated the fact that the aforesaid ~
f
Maruti car was brought by Accused No. 4 to his petrol pump
for repairs and servicing. Further, the evidence of PW-20, a
pancha witness, whose name was kept secret establishes and
E proves that Accused No. 4 led the police to the said petrol pump
o'n 25.06.1999. Accused No. 4 also led the police to Lucky
Motor Training School wherefrom he obtained a duplicate
driving license in the name in his brother. The evidence of
Shabibul Hasan Munir Hasan Sayyed (PW-15), real owner of
F the Maruti Car, proves that the car bearing No. BLD 1949 was
stolen and that he had lodged a complaint to that effect on
30.01.1999. The evidence of another witness Abdul Nabi
Bagwan(PW-42), PSI, RA Kidwai Marg, Police Station who
deposed about the seizure of the aforesaid Maruti car at Jain
G Derasar Lane clearly throws light on the fact that Accused No.
4 was using the stolen car.
69. Confessional statement of Accused No. 7, which was
found to be admissible in evidence by the trial court as well as
the High Court, also corroborates and supports the facts
H
MOHD. FAROOQ ABDUL. GAFUR v. STATE OF 1159
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.)

=- ...
admitted by Accused No. 4 in his confessional statement with
regard to his (Accused No. 4's) role in arranging the Maruti Car
A

which was used in the shootout, his presence during the
handing over of the deadly weapons by Accused No. 3 to
Accused No. 7 and that he was present when Accused No. 7
was talking to Chhota Shakeel on 04.03.1999. Therefore, it is B
clear that Accused No. 4 had heard the conversation prior to
the shootout and thus had the knowledge about the conspiracy.

70. PW-18, cousin of Milind Vaidya, who was an eye-
... witness to the incident described in detail what he saw on the
day of the incident. He deposed that he had seen Accused No. c
4 along with Accused N1os. 5, 6 and 7. Later he identified him
during TIP. Apart from him, Accused No. 4 was also identified
by PW-2, PW-3, PW-12, PW-13, PW-22 and PW-30 in the TIP.

71. In view of the aforesaid submissions made by the D
-lo· learned counsel appearing for the State and the materials
~
placed on record, we c'lo not find any reason to interfere with
the findings recorded by the High Court so far as involvement
of Accused No. 4 in 1he incident is concerned. There are
cogent and convincing •;!vidence available against him to prove E
and establish his involvement in the entire incident which
justifies his convictim1s and sentences on each count.
,.....
Therefore, in our considered opinion, the High Court rightly held
that Accused No. 4 had played an active and important role in
the conspiracy even though he did not participate in the actual F
shoot out and that he had the knowledge of the conspiracy. In
that view of the matter I he contention of the learned counsel
appearing for Accused I\ o. 4 that he had not played any active
role in the shootout and t 1e had no knowledge of the conspiracy
... is found to be baseless .
G
.,. 72. We now take 11p the case of Mohd. Juber Kasam
Shaikh alias Tabrej alia: > Jugnu (Accused No. 5) and Fazal
Mohd. Shaikh alias Manr 1i Argamutu Shetiyar (Accused No. 6)
who were brought to rv umbai on 26.06.1999, pursuant to
wireless message receh ed from Delhi Police regarding their H
1160 SUPREME COURT REPORTS [2009] 12 S.C.R.

A arrest by the Special Cell of Delhi Police.

73. Learned counsel appearing for Accused Nos. 5 and
6 vehemently argued that the present appeal being an appeal
against acquittal, in a situation wherein two views are manifestly
B possible, this Court must not interfere with the decision of the
High Court. It submitted that the judgment of the High Court is
a perfectly valid based on the basis of true appreciation of the
material on record and the same does not call for any
interference.
~

c 74. On the other hand, learned counsel appearing for the
State refuted the aforesaid submissions. He submitted that
evidence of PW-18, a 12th standard student, who was the eye-
witness of the incident and identification by him in the court has
been found to be extremely credible by both the courts below.
D He submitted that PW-18 saw the car from which the assailants
alighted shortly prior to the incident and observed them quite
carefully and he saw the car again with the assailants shortly
.. .,-
after the incident as well and has given a detailed description
;
of assailants i.e. Accused Nos. 5, 6 and 7. He also described
E Accused No. 4 and identified all these persons i.e. Accused
Nos. 4 to 7 in court. He identified Accused No. 7· as the person
who had fired shots in the air. Counsel f1Jrther submitted that in
addition to the evidence of PW-18 therEi are evidence of certain
eye-witnesses namely, PW-2, PW-3, PW-12, PW-13 and PW-
F 30 also which prove the guilt of accused persons. He next
submitted that confessional statement made under Section 18
of MCOCA as well as confessional statements of the co-
accused namely, Accused Nos. 1, 7 and 8 are strong evidence

G
against Accused Nos. 5 and 6. Momover, the confessional
statements of co-accused have been found to be admissible
by both the courts below. He further submitted that discovery
of B mm pistol which was used in the firing at the instance of
-
Accused No. 5 proves and establishes the guilt of Accused No.
5.
H 75. On a careful perusal of the rnaterial on record and in
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1161
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

the light of the submissions made by the learned counsel for A
' + the parties we find that the evidence of PW-18 who was an eye-
witness of the incident is credible and trustworthy as he
described the incident as well as the assailants in detail.
Furthermore, he identified the accused persons i.e. Accused
Nos. 4 to 7 in the court as well as during the TIP. His evidence B
has been found to be trustworthy and reliable by both the courts
below. The High Court held that TIP with respect to Accused
Nos. 5 and 6 was vitiated because Accused No. 5 had a squint
in the right eye and the dummies used in the TIP did not have
the similar squint in the right eye. But, the High Court did not c
make it clear as to why the identification of Accused No. 6 was
also vitiated. Accused Nos. 5. and 6 were also identified by ten
witnesses. Therefore, we find the TIP as a reliable piece of
evidence as the same proves. the identity of accused persons
beyond reasonable doubt.
D
). "' 76. The contention of the learned counsel appearing for
accused persons that there was inordinate delay in conducting
, the TIP cannot be acceipted in view of the fact that both the
accused persons were taken into custody on 25.06.1999
whereas the TIP was held on 10.08.1999. Therefore, the TIP E
was conducted only after a period of 45 days which is not such
a long period to cast any doubt over the evidentiary value of the
TIP. Even otherwise, a TIP does not constitute substantive
evidence but can only be used for corroboration of the statement
in court. It is primarily meiant for the purpose of helping the F
investigating agency with a.'1 assurance that their progress with
the investigation is proceeding on the right lines. The substantive
evidence is the evidence of identification in court, which in the
present case has been dons by PW-18. This Court in the case
of Amitsingh Bhikamsingh Thakur v. State of G
Maharashtra,(2007) 2 SCC 310, at page 315, has succinctly
observed as follows :

"13. As was observ·ed by this Court in Matru v. State of
U.P.1 identification tests do not constitute substantive
H
1162 SUPREME COURT REPORTS [2009] 12 S.C.R.

A evidence. They are primarily meant for the purpose of
helping the investigating agency with an assurance that .
their progress with the investigation into the offence is
proceeding on the right lines. The identification can only
be used as corroborative of the statement in court. (See
8 Santokh Singh v. lzhar Hussain2.) The necessity for
holding an identification parade can arise only when the
accused are not previously known to the witnesses. The
whole idea of a test identificaJion parade is that witnesses
who claim to have seen the culprits at the time of ...
c occurrence are to identify them from the midst of other
persons without any aid or any other source. The test is
done to check upon their veracity. In other words, the main
object of holding an identification parade, during the
investigation stage, is to test the memory of the witnesses
based upon first impression and also to enable the
D
prosecution to decide whether all or any of them could be _,_
.(
cited as eyewitnesses of the crime. The identification
proceedings are in the nature of tests and significantly,
therefore, there is no provision for it in the Code of
Criminal Procedure, 1973 (in short "the Code") and the
E Evidence Act, 1872 (in short "the ~vidence Act"). It is
desirable that a test identification parade should be
conducted as soon as after the arrest of the accused. This
becomes necessary to eliminate the possibility of the
accused being shown to the witnesses prior to the test
F identification parade. This is a very common plea of the
accused and, therefore, the prosecution has to be cautious
to ensure that there is no scope for making such allegation.
If, however, circumstances are beyond control and there
is some delay, it cannot be said to be fatal to the
G prosecution.

14. "7. It is trite to say that the substantive evidence is the
evidence of identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position
in law is well settled by a catena of decisions of this Court.
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1163
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

The facts, which establish the identity of the accused A
persons, are relevant under Section 9 of the Evidence Act.
As a general rule, the substantive evidence of a witness
is the statement made in court. The evidence of mere
identification of the accused person at the trial for the first
time is from its very nature inherently of a weak character. B
The purpose of a prior test identification, therefore, is to
test and strengthen the trustworthiness of that evidence. It
is accordingly considered a safe rule of prudence to
generally look for corroboration of the swom testimony of
witnesses in court as to the identity of the accused who
are strangers to them, in the form of earlier identification
c
proceedings. This rule of prudence, however, is subject to
-? exceptions, when, for example, the court is impressed by
a particular witness on whose testimony it can safely rely,
without such or other corroboration. The identification
... parades belong to the stage of investigation, and there is D
no provision in the Code of Criminal Procedure which
J obliges the investigating agency to hold, or confers a right
upon the· accused to claim a test identification parade.
They do not constitute substantive evidence and these
parades are ~ssentially governed by Section 162 of the E
..lo-
Code of Criminal Procedure. Failure to hold a test
identification parade would not make inadmissible the
evidence of identification in court. The weight to be
attached to such identification should be a matter for the
.....- courts of fact. In appropriate cases it may accept the F
evidence of identification even without insisting on
corroboration. (See Kanta Prashad v. Delhi Admn.3,
I.,,._/
Vaikuntam Chandrappa v. State of A.P.4, Budhsen v.
State of U.P.5 and Rameshwar Singh v. State of J&K6.)."
G
1 77. Next contention of the learned counsel appearing for
the accused persons that the photograph of Accused No. 5 was
published in an Urdu daily thereby making the identity of
Accused No. 5 public also does not find favour in view of the
fact that the witnesses are Maharashtrians and, therefore, there
H
1164 SUPREME COURT REPORTS [2009) 12 S.C.R.

A is no likelihood of their reading the paper and seeing the
photograph of Accused No. 5.

78. The evidence of another eye-witness PW-13, a student
who was a by-stander, was not believed by the High Court on
the premise that he did not disclose the incident to anybody
8
for four days. In our view, the evidence of PW-13 ought to have
been relied upon by the High Court as he clearly stated in his
evidence that though he did not see the faces of the assailants,
he saw the face of the driver-Accused No. 8 whom he
described. He stated that he saw the bodyguard of Milind
C Vaidya chase the car with a rifle. He also noted the number of
the car as MH 01 N 7514. His statement gets support from the
evidence of PW-3, the body-guard of Milind Vaidya who was
an eye-witness of the incident and who deposed that he chased
the car up to some distance but did not fire any shot, although
D armed with a carbine. The statement of PW-13 also gets
corroboration from the evidence of PW-30, who was an injured
witness of the incident and who deposed that he saw both the
bodyguards of Milind Vaidya chase the car and one of them
fired at it. Therefore, it would not be proper and justified to
E discard his evidence only because he did not state about the
incident to anyone for four days.· Since his evidence is
corroborated and supported by other material evidence on
record the same cannot be discarded only because of the
aforesaid reason.
F
79. The evidence of PW-12 and PW30, who were injured
witnesses, was disbelieved by the High Court though these
witnesses have given a reasonable description of the
assailants. Moreover, their evidence was not shaken in the
cross-examination. PW-30 deposed that he saw all the 3
G . assailants and saw both the bodyguards of Milind Vaidya chase
the car and one of them fired at it. He also described the
assailants. In our opinion, the injured witnesses as well as the
other eye-witnesses have no reason to falsely depose against
the accused persons as it was not shown that they had either
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1165
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
_.,
any prior enmity with the accused persons or they are interested A
parties. In fact, they are the victims of the horrendous and
ghastly attack made by the perpetrators.

80. Dinanath Pawar PW-2 and Sandeep Waghmare PW-
3, who were the bodyguards of the intended target, Milind
B
Vaidya were eye-witnesses of the incident. PW-2 stated in his
deposition that he fired three rounds from his pistol at the Maruti
car. PW-3 stated in his deposition that he chased the car up
~
to some distance but did not fire any shot, although armed with
a carbine. Their statements are corroborated by the evidence
of PW-30 who deposed that he saw all the 3 assailants and
c
saw both the bodyguards of Milind Vaidya chase the car and.
one of them fired at it. Statements of both the eye-witnesses
i.e. PW-2 and PW-3 are also supported by the evidence of
another eye-witness PW-13, a student who was a by-stander
... who deposed that he saw the bodyguard of Milind Vaidya D
chase the car with a rifle. Both of them were the persons who
,, actually witnessed the shootout and were present at the site of
l
the shootout. Furthermore, both of them have given a
description of the physical features of the assailants including
Accused Nos. 5 and 6. Therefore, in our considered opinion, E
the High Court ought to have relied upon the evidence of PW-
2 and PW-3 in the light of the circumstantial evidence brought
on record. Thus, the trial court rightly found the evidence of PW-
2 and 3 trustworthy and reliable as both of them have the best
available opportunity to see the assailants. F

81. Confessional statements of Accused Nos. 5 and 6
were recorded before DCP Shinde on 26.07.1999. Accused
No. 5 stated in his confessional statement that he had joined
the Chhota Shakeel gang and was constantly in touch with
~
G
Chhota Shakeel. He also stated that he had been receiving
funds from Chhota Shakeel and had been arrested on three
different occasions. On an analysis of the confessional
statement of Accused No. 5 we find that he has made a
detailed statement of the instructions he received from Mohd.
H
1166 SUPREME COURT REPORTS (2009] 12 S.C.R.

A Faheem and Chhota Shakeel in Karachi, Pakistan to kill Milind
Vaidya and has stated the involvement of Accused Nos. 1, 6,
7 and 8 in the shootout. After the shootout he was advised by
Mohd. Faheem to leave Mumbai and so he fled to Kolkata and
subsequently to Nepal wherefrom he was finally arrested on or
B about 09.06.1999.
82. Accused No. 6 stated about his earlier involvement in
murder cases in his confessional statement. He also stated as
to how he met Accused No. 5 in Aurther Road Jail and that 1
Accused No. 5 introduced him to the Chhota Shakeel gang.
c Confessional statement of Accused No. 6 is found to be almost
identical to the confessional statement of Accused No. 5.

83. Both the aforesaid confessional statements of
Accused Nos. 5 and 6 were held to be vitiated and
D inadmissible by the High Court on the ground that the f
requirements under Section 18 (3) of MCOCA were not fully
complied with. The High Court came to this conclusion on the
basis that the record of the preliminary inquiry in respect of
Accused Nos. 5 and 6 recorded on 23.07.1999 could not be
E traced. The High Court also held that there was no compliance
of the mandatory provisions of Rule 15 of the MCOC Rules
which requires a certificate to be attached with the confessional
statement.

84. When we analyze the material on record and the
F aforesaid confessional statements of Accused Nos. 5 and 6
we find that although the fact that the pre-confessional
statements were recorded on 23.07.1999 is not traceable, the
fact that they were actually recorded is corroborated by the
evidence of PW-64, the typist who had deposed that the
G preliminary statements were recorded on 23.07 .1999.
Thereafter, they were given a period of reflection for 48 hours
which is corroborated by PW-60, PW-63 and PW-64.
Therefore, there can be no doubt that the accused were
sufficiently warned in advance about the consequences of their
H confessions. In our considered opinion, the High Court
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1167
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

altogether failed to take into account the evidence of PW-64, A
+
the typist. The trial court has rightly held that all the requirements
under Section 18 (3) of MCOCA were fully comp1iedwith while
recording the confessional statements. Moreover, Accused Nos.
7 and 8 also described the involvement of Accused Nos. 5 and
6 in the shootout in their respective confessional statements. B
We find that the confessional statements of Accused Nos. 7
and 8 are consistent with the confessional statements of
Accused Nos. 5 and 6. Reliance in this regard may be made
" ·~ to the decision of this Court in the case of Jaywant Dattatray
v. State of Maharashtra, (2001) 10 SCC 109, wherein it was c
held that irregularities here and there would not make the
confessional statement inadmissible.

85. The reasoning of the High Court that the confessional
,-
statements of the co-accused are not admissible in evidence

- "'
because Section 313 of CrPC had not been complied with is
not tenable as there is a non-obstante clause in Section 18 (3)
which precludes the application of CrPC and, therefore, the
evidence of a co-accused is admissible as a piece of
D

substantive evidence. [See Nalini case (supra)]
E
86. ·When we examine the report of the ballistic expert and
. the submission of learned counsel appearing for the State with
respect to the discovery of 9 mm pistol at the instance of
Accused No. 5 which was used in the firing, we find that the
report of the ballistic expert shows that the weapon and bullets F
tally with each other and, therefore, we come to a clear
conclusion that the weapon was used in firing during the
shootout. Moreover, there is a clear finding of fact by both the
courts below that the 9 mm pistol was recovered on 18.07.1999
at the instance of Accused No. 5 from his hut in Mahim. G
Therefore, in our consipered opinion, this recovery of weapon
" clearly proves and establishes the guilt of Accused No. 5.

87. It is clear from the material on record that Accused No.
5 made certain telephone calls to gang leaders in Karachi,
Pakistan. This fact gets corroboration from the discovery of 3 H
1168 SUPREME COURT REPORTS [2009] 12 S.C.R.

A telephone booths in Sandra and Mahim at the instance of
t
Accused No. 5 wherefrom telephone calls were made by him '
to the gang leaders in Karachi, Pakistan. This evidence gets
further corroboration from the evidence of the owners of the
telephone booths who deposed that calls were actually made
B to certain specific numbers in Karachi, Pakistan by Accused
No. 5. In our opinion the High Court was not justified in holding
that it was not established with certainty that those telephone
calls even though made indeed from the booths identified by
Accused No. 5 and on the numbers disclosed by him, were • ""'.

c actually made by Accused No. 5 because the prosecution has
examined six STD/ISO booth owner's to prove that some of the
accused had made telephone calls from their booths to
Karachi, Pakistan and their evidence was found to be cogent
and trustworthy by both the trial court as well as by the High
D Court itself. Therefore, the view taken by the High Court with
respect to Accused No. 5 is not a plausible view as the same
is in contradistinction of the view taken by the High Court with
regard to other accused persons and it is proved from the
" -
material on record that Accused No. 5 has made certain
telephone calls to gang leaders at specific numbers in Karachi,
E
Pakistan.

88. The High Court erroneously held that conviction under
Section 27 (3) read with Section 7 of the Arms Act could not
be sustained although a 9 mm pistol was recovered at the
F instance of Accused No. 5 and it is proved that Accused No. 5
had used the pistol. Further, the report of the ballistic expert
establishes and proves that the weapon and the bullets tally
each other. The ballistic expert also opined in the report that
one of the victims of the shootout was killed due to a bullet from
G a 9 mm pistol. Apart from the report of ballistic expert there is
medical evidence available on the record which show that the
death of the three deceased persons was caused by the injuries
sustained due to fire arms during the shootout and, therefore,
it can be inferred that the weapon was used in the shootout. It
H is pertinent to note that Accused No. 6 had also used the pistols
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1169
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

and fired during the shootout. Moreover, though in case of A
·+ Accused No. 7 the High Court held that the evidence does not
disclose that the bullets fired from AK-56 had resulted in the
death of any person, it convicted him under Section 27 (2) of
the Arms Act.
B
89. The finding of the High Court that the sanction order
under Section 39 of the Arms Act suffered from non-application
of mind is not sustainable in view of the material available on
record as we find that the sanction order in the present case
t is a detailed one and displays proper application of mind.
Reference in this regard may be made to the decision of this c
Court in Gunvantlal v. State of M. P., (1972) 2 SCC. 194,
wherein it was held that under the Arms Act all that is required
for sanction for prosecution 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 D
... the possession of the firearm was without a valid licence .

90. In view of the above, the order of acquittal passed by
the High Court in respect of Accused Nos. 5 and 6 is hereby
set aside in the appeal filed by the State of Maharashtra. Both E
the accused persons are convicted for the charges as alleged
against them and sentenced to undergo rigorous imprisonment
_,. for life.

91. So far as Azzizuddin Zahiruddin Shaikh alias Abdul
Sattar (Accused No. 7) is concerned, he was sentenced to F
capital punishment by the trial court, The High Court, however,
on appeal while maintaining the order of conviction altered the
sentence from capital punishment to that of imprisonment for
life. Being aggrieved by the aforesaid order of conviction
passed by the High Court, Accused No.7 preferred a special G
leave petition being SLP (Crl.) No. 1469 of 2004 which was
'I
dismissed by an order dated 8th April, 2004. Therefore, the
order of conviction passed against Accused No. 7 sentencing
him to undergo imprisonment for life stood upheld. So far as
H
1170 SUPREME COURT REPORTS [2009] 12 S.C.R.

A the State appeal as far as Accused No. 7 is concerned, it is
filed only for the purpose of enhancement of his sentence in as t

much as the State by filing the present appeal has questioned
the order of the High Court altering the sentence of capital
punishment to that of imprisonment for life. However,
B considering the entire facts and circumstances of the case and
the evidence placed on record against him, we find that capital
punishment in the instant case would not be justified ·and,
therefore, the appeal of the.State so far the issue with regard
to alteration of the sentence of imprisonment of life to that of
i
c capital punishment is dismissed.
92. Lastly, we take up the case of Abdul Hasan Bande
Hasan Mistri (Accused No. 8) who was arrested on 21.07.1999.
The learned counsel appearing for Accused No. 8 vehemently
contended that the confessional statement was recorded in
D contravention of Section 18 of MCOCA and Rules and the said
confessional statement was not corroborated by any cogent
evidence to establish the guilt of the accused. It was further
contended that the identification of Accused No. 8 by PW 22
,
-
in TIP does not inspire confidence and the same should not
E have been taken into consideration by the Court.

93. Learned counsel appearing for the State, submitted
that Accused No. 8 was the person who drove the car on the •·
day of incident. He made Accused No. 1 drive the Maruti car
F in which Accused Nos. 5, 6 and 7 reached the place of incident
and from the said car they fired at the victims. Furthermore, he
was paid for the job by Accused No. 1.
94. On a meticulous perusal of the materials placed on
record we find that the confessional statement of Accused No.
G 8 was recorded under Section 18 of MCOCA by DCP Ravindra
Kadam (PW-39) on 16.08.1999 in which Accused No. 8 y
disclosed that he knew Accused No. 1 and has seen Accused
No. 5 visiting Accused No. 1, that Accused No. 1 promised to
pay Rs. 10,000/- to him for acting as a driver for the purpose
H of committing the crime and the amount was actually paid to
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1171
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

~ him by Accused No. 1 on 06.03.1999, that he met Accused No. A
5 at the instance of Accused No. 1 and both of them then
contacted Chhota Shakeel, that he was driving the car and
Accused No. 7 sat by his side while Accused Nos. 5 and 6 sat
at the back seat.
B
95. The aforesaid confessional statement of Accused No.
8 is found to be admissible in evidence and relied upon by both
the courts below having been found to be recorded in
·~ compliance with Section 18 of MCOCA. When we examine the
aforesaid confessional statement we find that Accused No. 8
has given a detailed account of the incident and the modus C
operandi o.f the accused persons. He has given complete
description of the role played by Accused Nos. 5, 6 and 7 in
· the shootout. Therefore, in our considered opinion, the High
Court rightly came to the conclusion that Accused No. 8
,. ' conspired with the other accused persons and also rendered D
assistance in the commission of organized crime even though
he did not fire any shot or carry arms with him. His participation
in the crime was significant.

96. On an analysis we find that the aforesaid confessional E
statement of Accused No. 8 is supported by the confessional
-..
statements of the co-accused namely, Accused Nos. 5, 6 and
7. The confessional statement of Accused No. 7 which is found
to be admissible in evidence and relied upon by both the courts
below clearly establishes the role played by Accused No. 8. The F
role played by Accused No. 8 is also proved and established
from the evidence of PW-22, a boy from Vadala (Jain Darsan
Lane), who has given a sufficiently detailed account of what he
saw on the day when the car was abandoned. He deposed that
he had seen Accused No. 8 on 07.03.1999 while he was
G
" abandoning the car which was used in the shootout. He
identified Accused No. 8 in the TIP. Accused No. 8 was also
identified by PW-13, an eye-witness to the crime. The High
Court found the testimony of PW-22 as truthful and trustworthy.

97. Evidence of Shrirang Balwanrao Shinde (PW-54), PSI, H

' ' '
1172 SUPREME COURT REPORTS [2009] 12 S.C.R.

A Crime Branch, Unit-IV and PW-31, pancha witness proves that ~
..__
Accused No. 8 led the police to Room No. 15, 3rd Floor,
Building No. 1, Kidwai Nagar, Vadala on 29.07.1999 where his
parents were also present and he took out two number plates
of the car from the place. which was used in the shootout
B wrapped in a paper underneath a wooden bench. Both the
number plates bore No. MH 01 N 7514.

98. In the light of the aforesaid evidence on record we find
that even though Accused No. 8 has not fired any shot and he ..
was not carrying any arms with him but he played an active role
c in the crime and his participation in the crime was significant.
He was the person who took the assailants to the place of
incident by driving the stolen Maruti car and he received the
money for driving the car which fact was admitted by him in his
confessional statement. It is also clear from the records that he
-
D was an active member of the gang of Chhota Shakeel and was ,.
involved in the criminal activities of the organized crime
syndicate run by the gang leaders. Therefore, we uphold the
order of conviction and sentence passed by the High Court
against him.
E
99. In nutshell, order of conviction and sentence passed
by the High Court in respect of Accused Nos. 1, 4 and 8 are to
.
be maintained. Since no appeal against the acquittal of
Accused Nos. 2 and 3 filed in the High Court against their
F acquittal by the trial court, the said acquittal is not the subject
matter of appeal before us. Order of acquittal passed by the
High Court in respect of Accused Nos. 5 and 6 is set aside in
the appeal filed by the State and they are directed to undergo
rigorous imprisonment for life. Accused No. 7 has been
sentenced to capital punishment by the trial court which was
G
altered to the rigorous imprisonment for life by the High Court '
against which an SLP was filed in this Court which was
dismissed. Since in one of the appeals relating to a co-
accused, life sentence awarded was upheld by this Court
without issuing any notice for enhancement of sentence, we find
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1173
MAHARASHTRA

no reason to take a different view in cases of the other accused A
-- ~
herein, particularly when in respect of Accused Nos. 5 and 6
there was an order of acquittal by one Court. Lastly, the order
of conviction and sentence passed by the High Court against
Accused No. 8 is upheld and the sentence of imprisonment of
-; life is maintained on the same ground. Before parting with the B
records, we would like to place on record our deep appreciation
for the valuable assistance provided by Dr. Rajeev B. Masodkar,
Advocate as amicus curiae of Accused Nos. 5 and 6.
1-
S.B. SINHA, J.
c
INTRODUCTION

1. I have had the opportunity of going through the draft
_....
. circulated by my brother judge Mukundakam Sharma, J. and I
am in complete agreement with the views expressed by him D
therein.
"'
2. However, I may add a few words on the appeals by the
. State of Maharashtra against the impugned judgment as
regards imposition of capital sentence on three Accused herein
namely, Accused 5, M Zuber Kasam Shaikh, Accused 6, Fazal E
Mohd Shaikh and Accused 7, Azzizuddin Zahiruddin Shaikh.
CONTENTIONS OF THE STATE

3. It was argued before us by the State of Maharashtra that F
the case at hand falls within the category of the 'rarest of rare'.
It was submitted that in the facts and circumstances of the case
only a death sentence would meet the requirements of justice.
Contention of the State that what brought this case within the
special category of the ·rarest of rare cases' was the fact that
G
the incident in question was not a stray crime of murder but was
in fact an extremely sophisticated and organised crime whose
strings had been attached to outside the country. Accordingly
the incident which resulted in the death of three persons and
caused grievous injury to seven, was an assault on civilised
society. H
1174 SUPREME COURT REPORTS [2009] 12 S.C.R.

A 4. The State of Maharashtra has further relied on the long
criminal history of all the three accused namely, Accused 5, M "'
Zuber Kasam Shaikh , Accused 6, Fazal Mohd Shaikh and
Accused 7, Azzizuddin Zahiruddin Shaikh to show that they
were hardened and seasoned criminals. ft is emphasized that
B Accused 7, Azzizuddin Zahiruddin Shaikh had received training :-
from the ISi in Pakistan, likewise both Accused 5, M Zuber
Kasam Shaikh and Accused 6, Fazal Mohd Shaikh were
contract killers who were working for Chotta Shakeel and
Faheem. ft has been argued that the imposition of a prison
c sentence on the accused would not be deterrent but would only
serve as an opportunity for these criminals to further network
on behalf of their gang. In fact it has been argued that Accused
5, M Zuber Kasam Shaikh had come in contact with Accused
6, Fazal Mohd Shaikh while serving his prison sentence and
D therefore the jail sentence would hardly prove a deterrent to such
seasoned and hardened criminals. These submissions of the
State in our opinion deserve to be rejected in the strongest
.;
-....

words.

CAPITAL SENTENCING AND PROCEDURAL JUSTICE
E
5. Indian courts have a long experience in exercising wide
discretion to select penalty under section 302. A fair capital
sentencing system, which aims towards achieving a consistent
and principled approach and delineating articulate sentencing
F pegs has long been the concern of this court. Bachan Singh v.
State of Punjab [(1980 2 sec 684] and thereafter numerous
judgments have tried to clear the fog on this issue.
6. In this regard, it is pertinent to revisit the basic tenets of
our sentencing system. Any capital sentencing system, by virtue
G of the nature of penalty it deals with, inheres a hierarchical
review mechanism. A tiered court system is at the heart of
achieving a substantial standard of review which essentially
kicks in as soon as death punishment is awarded. The review
courts are supposed to assess the findings emerging from the
H pre-sentencing hearing at the trial stage as also other available
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1175
MAHARASHTRA [S.B. SINHA, J.]
material and then arrive at conclusion of its own on the A
~· propriety of sentence. In this context, apex court as the final
reviewing authority has a far more serious and intensive duty
to discharge. The court not only has to ensure that award of
death penalty does not become a perfunctory exercise of
discretion under section 302 after an ostensible consideration B
of Rarest of Rare doctrine, but also that the decision making
process survives the special rigors of procedural justice
applicable in this regard. Procedural justice threshold not only
~ emphasizes the substantive compliance of Bachan Singh
dicta, [for a comprehensive treatment of Bachan Singh (supra) c
see Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra [2009 (7) SCALE 341] in relation to selection of
penalty, but also compliance of other due process
requirements. It must be noted that administration of Death
Penalty is carried out in the intensive gaze of Article 14 and D
.., Article 21 requirements. Bariyar (supra) aptly captures the
sentiment in this regard:
"We are also governed by the Constitution of India. Article
14 and 21 are constitutional safeguards and define the
framework for state in its functions, including penal E
functions. They introduce values of institutional propriety,
in terms of fairness, reasonableness and equal treatment
challenge with respect to procedure to be invoked by the
state in its dealings with people in various capacities,
including as a convict. The position is, if the state is F
precariously placed to administer a policy within the
confines of Article 21 and 14, it should be applied most
sparingly. This view flows from Bachan Singh (supra) and
it this light, we are afraid that Constitution does not permit
us to take a re-look on the capital punishment policy and G
meet society's cry for justice through this instrument."
7. It is universally acknowledged that judicial discretion is
subjective in nature and left to itself has potential to become
erratic and personality based which makes it antithetical to the
spirit of Article 14. Article 14 applies to judicial process H

-
1176 SUPREME COURT REPORTS [2009] 12 S.C.R.

A including exercise of judicial discretion as it applies to the
executive process. Of course, the nature of Article 14
application in this case will be on a different plane altogether
and an objective analysis on that count would have to meet the
Ceteris paribus (with other things the same) requirement. The
B disparity in capital sentencing has been unequivocally asserted
not only in Bariyar (supra) but also in Aloke Nath Dutt and ors.
v. State of West Bengal, (2006 (13) SCALE 467] and in
Swamy Shraddananda @ Murli Manohar Mishra v. State of
Karnataka [2008 (10) SCALE 669]. i

c 8. In such a scenario, rule based judging norms and sound
rules of prudence are the only guarantee to fair and equitable
sentencing. This emerges from the constitutional context to the
administration of capital sentencing problem as also a closer
reading of rarest of rare test. The Bachan Singh court invoked
D the superlative standard safeguarded the judicial space to
award death penalty. We should bear in mind that the test will ,,
be fulfilled not merely by employing the "personal predilection"
of a judge [see Swamy Shraddananda (supra)] and deciding
the rarest of rare instance on the facts of the case, but only after
E due consideration of the intangibles relating to the case. The
assessment of "rarest of the rare case" is incomplete·without
coming to the conclusion that the "the lesser alternative is ""
unquestionably foreclosed". And procedural fairness and
justice concerns form part of the latter condition.
F 9. What are the other due process requirements such that
the lesser alternative can be said to be unquestionably
foreclosed? It is to be noted that the selection of Life
Imprisonment as a lesser alternative can not be deemed to be
"unquestionably foreclosed" till the time objective fairness
G standards as to the sentencing process are attained with
regard to capital sentence. We may come across instances •
where the case may belong to the rarest of rare category, but
in court's view the objective fairness standards necessary to
be met before death penalty can be awarded have not been
H complied with diligently. In State of Maharashtra v. Suresh,
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1177
MAHARASHTRA [S.B. SINHA, J.]
_,. [(2000) 1 sec 471]), this court observed: A

"regarding sentence we would have concurred with the
Sessions Court's view that the extreme penalty of death
can be chosen for such a crime, but as the accused was
once acquitted by the High Court we refrain from imposing B
that extreme penalty in spite of the fact that this case is
perilously near the region of ·rarest of rare' cases."
,_ 10. Objective fairness standards as engrained under
Bachan Singh (supra) will include opportunity of review of
capital sentence, timely trial, and comparative review. In Bariyar c
(supra), this court held:

"The aggravating and mitigating circumstances hatie to be
separately identified under a rigorous measure. Bachan
Singh (supra), when mandates principled precedent based D
"' sentencing, compels careful scrutiny of mitigating
circumstances and aggravating circumstances and then
factoring in a process by which aggravating and mitigating
circumstances appearing from the pool of comparable
cases can be compared. E
The weight which is accorded by the court to particular
aggravating and mitigating circumstances may vary from
case to case in the name of individualized sentencing, but
at the same time reasons for apportionment of weights
shall be forthcoming. Such a comparison may point out F
excessiveness as also will help repel arbitrariness
objections in future.

A sentencing hearing, comparative review of cases and
similarly aggravating and mitigating circumstances G
analysis can only be given a go by if the sentencing court
opts for a life imprisonment.

H
1178 SUPREME COURT REPORTS [2009] 12 S.C.R.

A To translate the principle (to translate the rarest of rare
case) in sentencing terms, firstly, it may be necessary to
establish general pool of rare capital cases. Once this
general pool is established, a smaller pool of rare cases
may have to established to compare and arrive at a finding
B of Rarest of rare case."

PRIMACY TO RULES OF PRUDENCE

11. In an apparent conflict between a "fair and equitable" i

sentencing system and an "efficient and deterrent" sentencing
C philosophy in the context of Death Penalty, the Bachan Singh
verdict, without a doubt, favours the former. It is not to suggest
that deterrent as a theory of punishment is not relevant at all in
section 302, but that there is more to this question. Capital
Sentencing is not a normal penalty discharging the social
D function of punishment. In this particular punishment, there is •
heavy burden on court to meet the procedural justice
requirements, both emerging from the black letter law as also
conventions. In terms of rule of prudence and from the point of
view of principle, a court may choose to give primacy to life
E imprisonment over death penalty in cases which are solely
based on circumstantial evidence or where high court has given
a life imprisonment or acquittal.

12. At this juncture, it will be pertinent to assess the nature
F of rarest of rare expression. In light of serious objections to
disparity in sentencing by this court flowing out of varied
interpretations to the Rarest of Rare expression, it is clear that
the test has to be more than what a particular judge locates as
rarest of rare in his personal consideration. There has to an
objective value to the term rarest of rare, otherwise it will fall
G foul of Article 14. In such a scenario, a robust approach to arrive
at rarest of rare situations will give primacy to what can be called·
the consensus approach to the test. In our tiered court system,
an attempt towards deciphering a common view as to what can
be called to be the rarest of rare, vertically across the trial court,
H high court and apex court and horizontally across a bench at
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1179
MAHARASHTRA [S.B. SINHA, J.]

any particular level, will introduce some objectivity to the A
' precedent on death penalty which is crumbling down under the
weight of disparate interpretations.

13. This is only a rule of prudence and as such there is no
statutory provision to this effect. Minority opinion of Justice B
Thomas in Suthendraraja alias Suthenthira Raja alias
Santhan and Ors. v. State [AIR 1999 SC 3700] very aptly
capture this point of view:

t "17. The Constitution Bench in Bachan Singh v. State of
Punjab has narrowed down the scope for awarding death C
sentence to the extremely restricted radius of "rarest of rare
cases" ih which the alternative lesser sentence of
imprisonment for life is unquestionably foreclosed. In the
main judgment in the present case one of the three Judges
found that sentence of imprisonment for life would be D
sufficient to meet the ends of justice as far A-1 Nalini.

18. In a case where a Bench of three Judges
delivered judgment in which the opinion of at least one
Judge is in favour of preferring imprisonment for life to E
death penalty as for. any particular accused, I think it would
be a proper premise for the Bench to review the order of
sentence of death in respect of that accused. Such an
approach is consistent with Article 21 of the Constitution
as it helps saving a human life from the gallows and at the
same time putting the guilty accused behind the bars for F
life. In my opinion, it would_be a sound proposition-tomake
a precedent that when one of the three Jud_g_es refr.atns
from awarding death penalty to an accused on stated
reasons in preference to the sentence of life imprisonment
that fact can be regarded sufficient to treat the case as not G
falling within the narrowed ambit of "rarest of rare cases
when the alternative option is unquestionably foreclosed".

·H
1180 SUPREME COURT REPORTS [2009} 12 $.C.R.

A "I may add as an explanatory note that the reasoning
is not to bEi understood as a suggestion that a minority
opinion in the judgment can supersede the majority view
therein. In the realm of making a choice between life
imprisonment and death penalty the above consideration
B is germane when the scope for awarding death penalty
has now shrunk to the narrowest circle and that too only
when the alternative option is "unquestionably foreclosed".
In a special situation where one of the three deciding
judges held the view that sentence of life imprisonment is
c sufficient to meet the ends of justice it is a very relevant
consideration for the Court to finally pronounce that the
prisoner can be saved from death as the lesser option is
not "unquestionably foreclosed" in respect of that prisoner."

14. Justice Shah (in minority) in Devender Pal Singh v.
D State, N.C. T. of Delhi and anr. ((2002) 5 SCC 234} also heavily
relied on the minority opinion in Suthendraraja (supra) for that
matter.

15. In Licchamadevi v. State of Rajasthan, AIR 1988 SC
E 1785 this court observed:

"Where there are two opinions as to the guilt of the
accused, by the two courts, ordinarily the proper sentence
would be not death but imprisonment for life."

F 16. The rule that it would not be proper to award the death
sentence where the two lower courts disagreed on conviction
developed in Licchamadevi v. State of Rajasthan (supra) was
followed in State of Maharashtra v. Suresh ((2000) 1 SCC
471)). Reliance has also been placed on the same principle in
G State of UP. v. Babu Ram ((2000) 4 SCC 515], State of
Maharashtra v. Damu slo Gopinath Shinde and ors. ((2000)
6 SCC 269] and State of Maharashtra v. Bharat Fakira Dhiwar
(AIR 2002 SC 16). It will also be in the fitness of this discussion
that we mention the departure from this rule in State of
H Rajasthan v. Kheraj Ram [(2003) 8 SCC 224), Devender Pal
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1181
MAHARASHTRA [S.B. SINHA, J.]

~
Singh v. State, N. C. T. of Delhi and anr. (with Krishna Mochi) A
(AIR 2003 SC 886) and State of U.P. v. Satish (AIR 2005 SC
1000).

17. It is only apt to mention here that the Law Commission
in its 187th Report has recommended that in cases where the B
Supreme Court Bench hearing a particular case finds that an
acquittal by a High Court should be overturned and the accused
be sentenced to death, or where it finds that the punishment
t should be enhanced from life imprisonment to death, such
cases should be transferred by the Chief Justice to a Bench of
at least five judges.
c
"SWINGING FORTUNES"

18. Swinging fortunes of the accused on the issue of
determination of guilt and sentence at the hand of criminal D
justice system is something which is perplexing for us when we
speak of fair trial. The situation is accentuated due to the
inherent imperfections of the system in terms of delays,
mounting cost of litigation in High Courts and apex court, legal
aid and access to courts and inarticulate information on socio- E
economic and criminological context of crimes. In such a
context, some of the leading commentators on death penalty
hold the view that it is invariably the marginalized and destitute
who suffer the extreme penalty ultimately.

19. One of the accused in the instant case was acquitted F
in December 2003 by the High Court. It has been more than 8
years since he was freed in relation to the matter at hand. At
this juncture, this becomes a relevant factor. In State of
Maharashtra v. Mang/ya Dhavu Kongil, AIR 1972 SC 1797,
even though the Supreme Court reversed the acquittal by the G
High Court and restored the original conviction of the trial court,
it did not award the sentence of death observing that the death
sentence had been awarded over four years previously and in
the period in between, the accused had been freed from prison.
H
1182 SUPREME COURT REPORTS [2009) 12 S.C.R.

A 20. In State of Uttar Pradesh v_ Sughar Singh and Ors,
AIR 1978 SC 191 this court awarded life imprisonment stating,
"having regard to the considerable time that has elapsed since
the date of the occurrence and having regard to the fact that
the High Court's decision of acquittal in their favour is being
8 set aside by us, the extreme penalty of death ought not to be
imposed ... ". Similar reasoning was offered by this court in State
of Haryana v. Sher Singh and Ors., [(1981) 2 SCC 300], State
of U.P. v. Hakim Singh and Ors. (AIR 1980 SC 184), Gurnam
Kaur v. Bakshish Singh and Ors. (AIR 1981 SC 631), State t

c of Uttar Pradesh v. Sahai and Ors. [(1982) 1 sec 352) and
State of Uttar Pradesh v. Suresh alias Chhavan and Ors.
[(1981).3 sec 635)) (for a rigorous and comprehensive review
of death penalty jurisprudence on this issue and otherwise
please see Amnesty International Report titled "Lethal Lottery:
The Death Penalty in India - A study of Supreme Court
D
judgments in death penalty cases 1950-2006")

RECENT DECISIONS

21. Recently the question as to the imposition of death
E penalty again came for consideration before this court in State
of Punjab v. Manjit Singh & Ors, [-2009 (8) SCALE 622).
Therein the two accused had been held responsible for the
murder of four persons which included the husband and the son
of the women both of them were having an illicit relationship
F with. The deceased had objected to the said relationship and
even physically abused the lady. This is what ultimately incited
the accused to murder the deceased persons in cold blood.
The trial court sentenced both the accused to a death sentence.
The High court in reference however commuted the sentence
to one for life. Brother Sharma, J. while deciding the question
G
of sentencing reiterated the law with respect to the imposition
of a death penalty, observing:

"17. The above discussed legal principles have been
followed consistently in numerous judgments of this Court.
H Whether the case is one of the rarest of the rare cases is
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1183
MAHARASHTRA [S.B. SINHA, J.]

- a question which has to be determined on the facts of each
case. It needs to be reiterated that the choice of the death
sentence has to be made only in the rarest of the rare
A

cases and that where culpability of the accused has
assumed depravity or where the accused is found to be
an ardent criminal and menace to the society and; where B
the crime is committed in an organized manner and is
gruesome, cold-blooded, heinous and atrocious; where
innocent and unarmed persons are attacked and murdered
\- without ariy provocation."

22. The Court accordingly affirmed the judgment of the
c
High Court on the ground that the accused had only acted out
in the gruesome manner after corning to know of the ill treatment
meted out by the deceased persons to the women they had
feelings for.
D
.. ~
23. We may also place on record that in Rameshbhai
Chandubhai Rathod v. State of Gujarat [2009 (6) SCALE
469], two of the Hon'ble Judges of this Court differed on the
question of imposition of death penalty.
E
FACTS AND §ITUATIONS OF THE PRESENT CASE
-,
24. In the facts and circumstances of the case, and having
regard to the well settled principles of law that we have referred
to hereinbefore, we are not persuaded, as has rightly been held
by Brother Sharma, that it is not a case where the only sentence F
to which the accused persons herein were entitled to that of
death.

25. In our opinion the trail court had wrongly rejected the
fact that even though the accused had a criminal history, but G
~ there had been no criminal conviction against the said three
accused. It had rejected the said argument on the ground that
a conviction might not be possible in each and every criminal
trial. In our opinion unless a person is proven guilty, he should
be presumed innocent.
H
1184 SUPREME COURT REPORTS [2009) 12 S.C.R.

A 26. Further nothing has been brought on behalf of the State
even after all these years, that the criminal trials that had been •
pending against the accused had resulted in their conviction.
Unless the same is shown by documents on records we would
presume to the contrary. Presumption of innocence is a human
B right. The learned trail judge should also have presumed the
same against all the three accused.

27. In our opinion the alleged criminal history of the
accused had a major bearing on the imposition of the death
sentence by the trial court on the three accused. That is why in •
c our opinion he had erred in this respect.

28. It is also to be noted that the trail court has brought on
record various irrelevant and invidious considerations with
respect to sentencing. The trial court observes that death
D penalty must be awarded in this case so as to motivate police
not to indulge in encounter killings and catch the accused alive.
Role of ISi agency of Pakistan, black money racketeering in the
organized crime syndicate has also been discussed at great
length in the sentencing part of the judgment. These aspects
E are not only absolutely irrelevant to sentencing in the instant
case but also bears an extremely subjective and loose
articulation and delineation of factors relevant to sentencing in
the instant case.

29. It is worth mentioning that in the present case the High
F Court had acquitted both Accused 5, M Zuber Kasam Shaikh
and Accused 6, Fazal Mohd Shaikh. It is from that acquittal that
appeals for their conviction and sentencing come before us.
While imposing the sentence of life on the accussed the Court
must have the judgment of acquittal of the High Court in the
G back of its mind. In our considered opinion if at least one of
the courts below had acquitted the accused person in respect
of the crimes for which they are to be sentenced, the burden
on the prosecution would be even more heavier, which the
State in our opinion has not been able to discharge.
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF 1185
MAHARASHTRA [S.B. SINHA, J.]

30. If a person is sentenced to imprisonment, even if it be A
~
for life, and subsequently it is found that he was innocent and
was wrongly convicted, he can be set free. Of course, the
imprisonment that he has suffered till then cannot be undone
and the time he has spent in the prison cannot be given back.
Such a reversal is not possible where a person has been B
wrongly convicted and sentenced to death. The execution of the
sentence of death in such cases makes miscarriage of justice
irrevocable. It is a finality which cannot be corrected.
t
31. And once Accused 5, M Zuber Kasam Shaikh and
Accused 6 Fazal Mohd Shaikh have been sentenced to life
c
there remains no question of awarding a death sentence to
Accused 7, Azzizuddin Zahiruddin Shaikh who had played no
greater a role in the said incident as Accused 5, M Zuber
Kasam Shaikh and Accused 6 Fazal Mohd Shaikh. All the three
accused stand on an equal footing and therefore the sentences D
• to be imposed upon them must not differ. It is for the
aforementioned reasons that the appeals filed by the State as
regard the imposition of a death Sentence deserves to be
dismissed.
E
32. We must not lose sight of another fact. The High Court
has awarded life imprisonment. This Court, save and except
in very rare cases, should interfere therewith. One view has
been expressed. Unless it can be objectively held that such a
view is illogical, a contrary view should not be taken for the F
purpose of imposing death penalty.

33. I respectfully agree with the opinion of Brother Sharma,
J. that the appeal of the State should be dismissed.
K.K.T. Appeals disposed of.