B.R. Gavai, J.@mdashThese three appeals arise out of common judgment and order dated 23rd of February, 2009, passed by the learned Special Court, Nagpur in Special Case No. 3 of 2005. The original four accused came to be tried for the offences punishable under Sections 341, 342, 323, 506 Part IT, 376(2)(g) r/w 34 of the Indian Penal Code, Section 4 read with 25 of the Arms Act, u/s 135 of the Bombay Police Act and under Sections 3(1)(ii) and 3(4) of the Maharashtra Control Organized Crime Act, 1999 (for the sake of brevity, hereinafter referred to as ''MCOC Act''). The learned Special Judge has convicted accused Nos. 1 Sachin Mukinda Manerao, accused No. 2 Vinod @ Ballya Kalbande and accused No. 4 Satish @ Kadiballya Dhoke for the offences punishable under Sections 376(2)(g), 341, 342, 323, 506 Part II read with Section 34 of the Indian Penal Code. They were sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 1000/- and in default of payment of fine to suffer rigorous imprisonment for one year for the offence punishable u/s 376(2)(g) r/w Section 34 of the Indian Penal Code, simple imprisonment for one month for the offence punishable u/s 341 of the Indian Penal Code, rigorous imprisonment for one year for the offence punishable u/s 342 of the Indian Penal Code, rigorous imprisonment for three months for the offence punishable u/s 323 of the Indian Penal Code and rigorous imprisonment for one year for the offence punishable u/s 506 Part II of the Indian Penal Code. By the said order, all the accused have been acquitted of the offences punishable u/s 4 read with Section 25 of the Arms Act, Section 135 of the Bombay Police Act and Section 3(1)(ii) and 3(4) of the MCOC Act. The accused No. 3 Gabbar has been acquitted of all the offences for which he was charged.
2. Being aggrieved by the conviction and sentence accused No. 1-Sachin Mukinda Manerao and accused No. 2-Vinod @ Balya Ramchandra Kalbande have filed Appeal No. 291 of 2013 and accused No. 4 Satish @ Kadiballya Yadavrao Dhoke has filed appeal No. 257 of 2010. The State has preferred appeal No. 317 of 2010 being aggrieved by the acquittal of accused No. 3 and so also acquittal of rest of the accused for the offence punishable under the MCOC Act, the Bombay Police Act and the Arms Act. As such all the three appeals have been heard together by us and are being disposed of by this common judgment.
3. The prosecution story in brief is as under:-
Prosecutrix Savita, aged about 35 years, resides in a locality called as Sudam Nagari, Nagpur. At the time of incident, she was residing at the said locality along with her daughter Supriya, son Suhas and husband Namdeo (PW 4). The prosecutrix came from a poor strata of society and was doing the work of cooking in the house of other persons. On 3rd of November, 2004, as usual, at around 5.30 p.m. she had gone to three houses for doing the work of cooking. After completing work she was returning to her house at about 8.15 p.m. along with a girl namely Ganga, who was also working at one of the households wherein prosecutrix used to work as a Cook. When the prosecutrix and Ganga reached in Sudani Nagari locality, near the house of one Sanjay Neware, four accused namely, Sachin Manerao, Vinod @ Balya Kalbande, Satish @ Kadiballya Dhoke and Amit Thosar-a juvenile in conflict with law, intercepted them on the way. Out of them, three were holding swords and knife. They pointed those swords to the prosecutrix and therefore, Ganga ran away from that place. Accused Sachin and Vinod @ Balya told the prosecutrix that she had made complaint to the police against them for assaulting one Rajesh Sonone. Due to this, prosecutrix was frightened and she rushed into nearby house of Latabai Deware (PW 2). All the four accused entered the house of Latabai. They drove Latabai and other inhabitants out of the house under the threat of swords. Out of those four accused, Amit Thosar-Juvenile in conflict with law, stood outside the house of Latabai near the door and other three accused assaulted the prosecutrix upon her nose, pressed her mouth, removed her clothes from her body and they had forcibly committed intercourse with the prosecutrix one after the other. Thereafter, the said accused made the prosecutrix to wear her clothes and took her into the another house of Tulsabai Kinkar (PW 5). After entering in the house of Tulsabai, the accused drove all inhabitants of that house and closed the door. They again had forcibly sexual intercourse with the prosecutrix one after the other. Thereafter, they took her to the third house owned by Rajkumar Pali and in his house also they had forcibly sexual intercourse with the prosecutrix. They threatened the prosecutrix to kill her husband, son and daughter in case a report of the incident was lodged with the police. They also threatened her that if the report was lodged by her she would be again raped. As per the prosecution, accused No. 3 Gubbar @ Shiva Chavhan had also joined the aforesaid four accused persons near the house of Tulsabai Kinkar (PW 5) and he was standing on the road in front of the house of Rajkumar Pali. According to the prosecution, accused Gabbar had told other accused persons that the prosecutrix be taken to other place as many persons were watching them. He had also told the prosecutrix that she would be taken to a flat on the next day and would be paid money. Thereafter, accused No. 3 Gabbar @ Shiva reached the prosecutrix to her house at around 10.30 p.m.
4. After reaching of the prosecutrix to her house, her husband Namdeo (PW 4) came after some time and prosecutrix narrated the aforesaid incident to him. Since they were frightened, they closed their house and went to the house of one Thakre. One Mahadeo Chaudhary (PW 37) with another person came there and the prosecutrix also narrated the said incident to them. They told the prosecutrix that they would accompany her up to the police station. Due to this, she gathered courage and along with those persons and her husband, went to the Ambazari Police Station and lodged a report at around 1 p.m.
5. On the report of the said prosecutrix, Crime No. 288 of 2004 came to be registered against aforesaid accused persons. The prosecutrix was referred to the Medical College and Hospital, Nagpur for examination. A certificate came to be issued vide Exch. 55.
6. During investigation, the statement of the witnesses were recorded by the Investigating Officer Ramdas Patil (PW 59). He prepared spot panchanama (Exh. 194) and seized clothes of the prosecutrix as per seizure panchanama (Exh. 56). Accused No. 1 was arrested on 4th of November, 2004. The other accused and juvenile in conflict with law i.e. Amit Thosar were arrested on 6th of November, 2004. The accused No. 3 Gabbar was arrested on 7th of November, 2004.
7. PW 59 Ramdas Patil also collected information about the crimes in past committed by accused No. 1 Sachin Manerao, accused No. 2 Vinod Kalbande and accused No. 4 Satish Dhoke. He found that they formed an organised crime syndicate and therefore, he sent a proposal to Additional Commissioner of Police (Crime) through his superior Police Officer for seeking application of provisions of Section 3 of MCOC Act to the Crime No. 288 of 2004. Permission of application of provisions of MCOC Act was received and thereafter further investigation was carried out by Sheshrao Pande (PW64)-Assistant Commissioner of Police. Subsequently, accused No. 4 Satish was also arrested. A proposal was subsequently forwarded by Sheshrao Pande (PW 64) through his superior Police Officers to the Additional Commissioner of Police, Shri Dalbir Bharti, for making the provisions of MCOC Act applicable against accused No. 3 Gabbar and juvenile in conflict with law i.e. Amit Thosar. The said permission was granted. The further investigation was done by PW 58 Shantaram Nandanwar, Assistant Commissioner of Police, Sitabuldi. He also made correspondence to various Authorities to collect the information about the properties of the accused.
8. The Investigating Officer also collected certified copies of various First Information Reports and charge-sheets from different courts which were filed against the accused persons in past. Finding that the accused had formed an organized crime and they were members of the said organized crime syndicate, a proposal was sent by PW 58 Shantaram Nandanwar to the Additional Director General of Police-Cum-Commissioner of Police, Nagpur seeking permission for filing charge-sheet against accused persons for the offences under the provisions of MCOC Act, On receiving the said permission, PW 58 Shantaram Nandanwar submitted charge-sheet before the learned Sessions Court against all the accused persons.
9. After filing of the charge sheet, the learned Sessions Court found that it had no jurisdiction to proceed against the juvenile in conflict with law, Amit Thosar, and therefore, his trial was separated and it was directed to forward the said juvenile in conflict with law before the Juvenile Justice Board for trial under Juvenile Justice Act, 2000.
10. Insofar as the remaining four accused are concerned, the learned Special Judge framed the charges for the offences as aforesaid. The charges were read over to each of the four accused and explained to them in vernacular. They pleaded not guilty and claimed to be tried. The defence of the accused was that of total denial. At the conclusion of the trial, the learned Special Judge passed the order of conviction and sentence insofar as accused Nos. 1, 2 and 4 are concerned and acquitted accused No. 3. Insofar as offences under the MOCO Act, the Bombay Police Act and the Arms Act are concerned, the Special Judge acquitted all the accused. Being aggrieved thereby, aforesaid three appeals have been filed.
11. The learned counsel for the appellants/original accused submits that the learned Special Judge has grossly erred in convicting the appellants for the offence punishable u/s 376(2)(g) of the Indian Penal Code. The learned counsel submits that in view of medical evidence, the learned Special Judge ought to have held that the prosecution story of forcible intercourse was not at all possible and as such ought to have acquitted all the accused. Insofar as accused Nos. 2 and 4 are concerned, it is submitted that since no blood stains were found on the clothes the prosecution case against them was totally unbelievable. It was also sought to be urged on behalf of the accused that the prosecutrix was having affair with accused No. 1 and on account of differences between them, all the accused have been falsely implicated. The learned counsel for the appellants/accused, therefore, submits that this is the fit case wherein the order of conviction needs to be set aside.
12. Insofar as the appeal of the State is concerned, the learned APP submits that the evidence as placed on record would clearly reveal that accused No. 3 Gabbar had a common intention with the rest of the accused and as such though there was no evidence regarding his having committed forcible intercourse, in view of Section 34 of the Indian Penal Code, he ought to have been convicted for the offence punishable u/s 376(2)(g) of the Indian Penal Code. The learned APP further submits that insofar as the acquittal of all the accused of the offence punishable under MCOC Act is concerned, the learned Special Judge has grossly erred in acquitting them. He submits that all the requirements for establishing an offence as required under the provisions of MCOC Act were duly fulfilled by the prosecution and as such the learned Special Judge ought to have convicted all the accused for the offence under the provisions of MCOC Act also. The learned APP, therefore, submits that the order of acquittal insofar as accused No. 3 Gabbar is concerned, needs to be reversed and the conviction for an offence punishable u/s 376(2)(g) r/w 34 of the Indian Penal Code needs to be awarded. The learned APP further submits that the order of acquittal insofar as the offence punishable under MCOC Act is concerned, the same needs to be reversed and all the accused need to be convicted for the offence under the provision of MCOC Act.
13. Shri Thakur, the learned counsel appearing on behalf of the original accused No. 3 Gabbar, on the contrary, submits that the prosecution has utterly failed to prove the case against accused No. 3 Gabbar. He submits that there is no evidence against accused No. 3 in respect of either abetting or participating in the crime along with other three accused. According to him, from the evidence it is clear that accused No. 3 Gabbar tried to help the said prosecutrix and took prosecutrix to her home and freed her from the clutches of other accused. The learned counsel further submits that in any case the learned Special Judge has given cogent and sound reasonings for acquitting accused No. 3 which in any way cannot be said to be perverse or impossible and as such no interference is warranted insofar as acquittal of accused No. 3 is concerned.
14. With the assistance of the learned counsel for the appellants and the learned Additional Public Prosecutor, we have thoroughly scrutinized the entire evidence on record, which we propose to discuss hereinafter.
15. In view of the rival submissions, we will be required to determine the following questions.
(i) As to whether the conviction of accused Nos. 1, 2 and 4 for the offence punishable u/s 376(2)(g) of the Indian Penal Code requires interference or not.
(ii) As to whether the order of acquittal acquitting accused No. 3 Gabbar for the offence punishable u/s 376(2)(g) of the Indian Penal Code requires interference or not.
(iii) As to whether the acquittal of accused for the offence under the provisions of MCOC Act is correct or not.
16. Insofar as the first question is concerned, the evidence of P W 1 prosecutrix Savita would be material. The prosecutrix has clearly deposed regarding the incident of sexual assault on her by accused Nos. 1, 2 and 4 at three places i.e. at the residence of PW 2 Latabai, at the residence of PW 5 Kinkarbai and at the residence of Rajkumar Pali. It would not be necessary for us to reproduce the entire narration of her deposition inasmuch as the learned Special Judge has reproduced the same in paragraph No. 20 of the said judgment.
17. The evidence of PW 1 prosecutrix is corroborated by PW 2 Latabai Deware, who states that complainant Savita entered into her house at 8.30 p.m. by saying ''save me save me''. It is further deposed that one girl namely Ganga was with her. She states that accused Nos. 1, 2 and 4 and one Amit Thosar entered her house along with prosecutrix Savita. They were holding knives and swords. She further states that under the threat of knives and swords she, her husband and Gangabai were forced to go out of the house. She states that when they left their house, Savita was in their house and all the four accused were also in the house. She states that after some time Savita came outside her house and at that time she was weeping. She further states that all the four accused then came outside following Savita. It can thus be seen that the evidence of PW 1 Savita is fully corroborated by PW 2 Latabai.
18. PW 3 Ganga is the girl who was also working in one of the households where the prosecutrix Savita was working and was accompanying the prosecutrix when they were returning after completing the work. She also states in her evidence that after completing the work at the house of Dr. Kulkarni they were returning to their houses at about 8.30 p.m. When they reached Sudam Nagari locality, they saw four boys, who were holding swords. She also states that she along with prosecutrix Savita entered into the house of Latabai. She further states that those four boys started talking to Savita in the house of Latabai and that at that time she came out of the house and ran away.
19. PW 5 Tulsabai Kinkar is the witness at whose place the second incident of rape is said to have taken place. She stated in her evidence that Savita, at about 9.00 p.m., came near to her and embarrassed her and said "Kinkarbai save me". She states that accused Sachin and accused Balya entered her house. She states that accused Gabbar and accused Kadiballya were holding knife and sword when they entered into her house. She further stated that she requested accused Sachin to leave the woman as she was belonging to their locality. However, accused Balya under the threat of knife ousted her and her husband from the house. She states that Balya closed the door of the house and Sachin stood near the door. He was knocking at the door and saying "allow him to come inside". Balya said, "allow me to complete and thereafter you come." He states that at that time Dilip Narnaware came to the courtyard of her house and gave understanding to Sachin. She further deposes regarding accused going inside the house. She states that thereafter Savita came outside the room after half an hour, her hair were scattered and she had caught hold her Saree in her hand. She further states that thereafter Savita went towards the house of Rajkumar Pali and accused followed her.
20. Though these witnesses have been thoroughly cross examined, nothing damaging has come in their evidence. The defence of accused appears to be that there was love affair between accused Sachin and the prosecutrix and on account of differences between them, the other accused were falsely implicated. It is further to be noted that in the Identification Parade the prosecutrix has identified accused No. 3 Gabbar, accused No. 4 Satish and juvenile Amit Thosar.
21. PW 17 Prakash Somkuwar, who conducted the Identification Parade, was examined to prove the Identification Parade and though he was thoroughly cross-examined, his evidence also could not be shattered.
22. As per the evidence of PW 1 Savita, after she went home, her husband (PW 4) returned from his work after some time and she informed the incident to him. PW 4 Namdeo in his evidence has corroborated the version of PW 1 Savita. He also states regarding PW 1 Savita going to the Police Station for lodging the report. It can thus be seen that the evidence of this witness also substantially corroborates the evidence of PW 1 Savita. PW 6 Usha Bhimte and PW 7 Rajesh Kumar Sonone have deposed regarding the earlier incident wherein accused Nos. 1 and 2 along with others had assaulted Rajesh Sonone. They deposed regarding accused Nos. 1 and 2 threatening PW 1 prosecutrix Savita and PW 6 Usha, not to lodge a report of the said incident. PW 6 Usha also states about the prosecutrix telling her, on 5th of November, 2004, about the incident of accused committing rape on her. It appears from the case of the prosecution that the accused were under the impression that the prosecutrix was lodging report against them with respect to assault on Rajesh Sonone and enraged with this, committed the crime.
23. PW 15 Sunita Saneshwar, who is also a resident of the said locality, also deposes regarding the incident that took place in the house of Kinkarbai. She deposes that when prosecutrix was present inside the house of Kinkarbai, accused No. 1 Sachin was standing inside that gate and was threatening people telling them not to come inside, otherwise they would meet the same consequences. There are other witnesses examined by the prosecution residing in the same locality. PW 16 Nirmala Sahu is also corroborating the version of the prosecutrix.
24. PW 33 Dr. Vaishali Mohokar has also stated in her evidence about the blood stains found on the Saree of the prosecutrix and prosecutrix telling her that said blood stains were on account of injuries to her nose. The said witness has also stated that the prosecutrix had tenderness over the nasal bridge. This version of this witness also corroborates the version of the prosecutrix. In cross examination, when this witness was asked a question-if a woman is raped by 4 to 5 persons, one after another, on three occasions on a single day, injuries can be caused to her private part ?. She answered that it depends upon the force and violence in having sexual intercourse with such a woman. She has agreed with the case put up by the prosecution that if a lady is gang raped, there may not be injuries on her external and internal parts of the body, as causing of injuries depends on resistance power and surrounding circumstances.
25. It is to be noted that, in the present case, the absence of injuries would not be of much consequence to the defence of the accused. It is not the case of the prosecutrix that she attempted to put resistance. She was forced to undergo through the heinous act under the threat to her life as accused were armed with swords and knives.
26. One more incriminating circumstance against accused No. 1 is that the report of the D.N.A. Testing (Exh. 514) which establishes that the semen stains of the accused No. 1 Sachin were found on the petticoat of the prosecutrix which were on her person when the rape was committed on her.
27. In view of the evidence of PW 1 prosecutrix, which we find to be trustworthy, reliable and cogent, and corroboration to her testimony by the evidence discussed herein above, we do not find that any interference is warranted with the findings of the learned Special Judge insofar as conviction u/s 376(2)(g) of the Indian Penal Code of accused Nos. 1, 2 and 4 is concerned. We find that the learned Special Judge has rightly, upon appreciation of the evidence led before him, convicted the accused Nos. 1, 2 and 4 for the offence punishable u/s 376(2)(g) of the Indian Penal Code.
28. That leads us to the next question as to whether the acquittal of accused No. 3 Gabbar warrants interference or not. By now, the law governing the principles of interference in a finding of acquittal is well settled. It has been time and again held that unless the finding of acquittal is found to be perverse or impossible, it is not permissible for this court to interfere with the same. In that view of the matter, we will have to examine as to whether the finding of acquittal as recorded by the learned Special Judge acquitting accused No. 3 is perverse or impossible.
29. The prosecution in respect of the case against accused No. 3 has relied on the evidence of PW 1 prosecutrix, PW 2 Latabai, PW 4 Namdeo and PW 5 Tulsabai. The learned Special Judge found that, even according to the prosecution, it is only accused No. 1 Sachin, accused No. 2 Vinod and accused No. 4 Satish @. Kadiballya who have committed sexual intercourse with the prosecutrix at three places. The learned Special Judge also found that it was clear from her evidence that accused No. 3 Gabbar did not commit rape on her at any time. From the evidence of prosecutrix, the learned Special Judge found that accused No. 3 Gabbar was not along with rest of three accused when she was intercepted on her way back to home and when the prosecutrix was raped for the first time in the house of Latabai. According to the prosecutrix, accused No. 3 Gabbar came when she was inside the second house belonging to PW 5 Kinkarbai. However, evidence regarding breaking open of door has not been found to be reliable by the learned Special Judge as the same was not corroborated by the spot panchanama. The learned Special Judge found that the role attributed to accused No. 3 Gabbar was that he told other accused that she should be taken to some other place as many persons were watching the prosecutrix in the house of Kinkarbai and be taken to the flat on next day and should be given money for expenses, did not find place in report (Exh. 53) and FIR (Exh. 54) and as such was an improvement. The learned Special Judge found that as per report (Exh. 53) lodged by the prosecutrix, accused No. 3 Gabbar, who was also known as Shiva, was standing on the way and he took the prosecutrix to her house. The learned Special Judge further found that PW 38 Atmaram Mule, P.S.I., who recorded the statement of prosecutrix, has admitted that the prosecutrix did not state before him that accused Gabbar entered into the house of Kinkarbai after breaking the door of the house occupied by the tenant of Kinkarbai. It is thus clear that role attributed by the prosecutrix in respect of accused No. 3 is by way of an improvement. The learned Special Judge further found that husband of the prosecutrix (PW 4 Namdeo) in his evidence has also not stated that his wife had made any such statement about the involvement of accused No. 3 Gabbar.
30. The learned Special Judge further found that even from the evidence of PW 5-Tulsabai Kinkar there was nothing to establish the involvement of accused No. 3 Gabbar in the sexual assault on prosecutrix. The learned Special Judge, therefore, found that as a matter of fact the conduct of the accused No. 3 Gabbar to reach the prosecutrix to her house after other accused had committed the crime, was that he tried to save the prosecutrix. Though it was sought to be urged on behalf of the learned APP that in view of Section 34 of the Indian Evidence Act, accused No. 3 was also liable to be convicted for the offence punishable u/s 376(2)(g) of the Indian Penal Code, we find that the said contention is without substance. Even, according to the prosecution case, the accused No. 3 was not along with the other accused when they initially intercepted the prosecutrix and took her to the house of PW 2 Latabai and committed sexual intercourse with her. It is not the case of the prosecution that at any point of time accused No. 3 had committed rape on prosecutrix. We find that nothing has been placed on record by the prosecution to establish that accused No. 3 was also having a common intention with other three accused for committing the rape on prosecutrix. In that view of the matter, we do not find that the finding of the learned Special Judge holding that accused No. 3 was entitled to acquittal can be said to be either perverse or impossible to warrant interference. In that view of the matter, we find that no interference is warranted with the finding of acquittal of accused No. 3 as recorded by the learned Special Judge.
31. That leads us to the next question as to whether the acquittal of accused Nos. 1, 2 and 4 for the offence under the provisions of MCOC Act deserves interference or not. It is not necessary for us to go into that question insofar as accused No. 3 is concerned, inasmuch as in paragraph No. 78 of the judgment of the learned Special Judge, itself would reveal that the learned Special Police Prosecutor has stated to the effect that offence of an organised crime cannot be established against the accused No. 3 Gabbar. In that view of the matter, the only question would be as to whether the acquittal of accused Nos. 1, 2 and 4 under the provisions of MCOC Act requires interference or not.
32. Full Bench of this Court in the case of
11. From the perusal of Section 2(1)(e), it can be seen that the following ingredients will be necessary to make out the case of an organized crime: (1) that there has to be a continuing unlawful activities; (ii) that such an activity will have to be by an individual, singly or jointly; ((iii) that such an activity is either by a member of an organized crime syndicate or on behalf of such syndicate; (iv) that there has to be use of violence or threat of violence or intimidation or coercion or other unlawful means; (v) that such an activity has to be with an objective of gaining pecuniary benefits or gaining undue economic or other advantage for the person who undertakes such an activity or any other person or promoting insurgency. The ingredients of continuing unlawful activities would be: (i) that such an activity should be prohibited by law for the time being in force; (ii) that such an activity is a cognizable offence punishable with imprisonment of three years or more; (iii) that such an activity is undertaken either singly or jointly, as a member of an organized crime syndicate or on behalf of such syndicate; (iv) that in respect of such an activity more than one charge-sheet must have been filed before a competent Court; and (v) that the charge-sheets must have been filed within a preceding period often years; and (vi) that the Courts have taken cognizance of such offences.
33. It could thus be seen that for punishing an accused for the offence punishable u/s 3(1)(ii) of the MCOC Act, it would be necessary for the prosecution to firstly establish the ingredients of continuing unlawful activities i.e. (i) that such an activity should be prohibited by law for the time being in force; (ii) that such an activity is a cognizable offence punishable with imprisonment of three years or more; (iii) that such an activity is undertaken either singly or jointly as a member of an organized crime syndicate or on behalf of such syndicate; (i v) that in respect of such an activity more than one chargesheet must have been filed before a competent Court; and (v) that the charge-sheets must have been filed within a preceding period often years; and (vi) that the Courts have taken cognizance of such offences.
So as to bring a case under the ambit of organised crime, the prosecution will have to establish (1) that there has to be a continuing unlawful activities; (ii) that such an activity will have to be by an individual, singly or jointly; ((iii) that such an activity is either by a member of an organized crime syndicate or on behalf of such syndicate; (iv) that there has to be use of violence or threat of violence or intimidation or coercion or other unlawful means; (v) that such an activity has to be with an objective of gaining pecuniary benefits or gaining undue economic or other advantage for the person who undertakes such an activity or any other person or promoting insurgency.
34. The prosecution has examined PW 9 to PW 63 in support of the case under MCOC Act. The prosecution has examined various witnesses like PW 9 Ranjanabai Kawde who has deposed that the accused used to tease the girls and women in the Sudam Nagari area. PW 11 Prakash Kukde has deposed about assault made by accused Sachin, with knife and about lodging of the complaint. PW 22 Sumit Thakur has deposed about accused committing robbery in grocery shop along with 3 to 4 persons under the threat of knife and snatching away Rs. 1500/- from his cash box. PW 23 Manohar Mate has deposed about committing of theft of Scooter by accused Sachin and his one another associate. PW 25 Sushilabai Parteki has deposed about accused Sachin and associates pelting of stones on her house. PW 28 Malini Deshmukh has deposed about snatching of marriage locket of gold from her neck by one person. PW 32 Jitendra Tomar has deposed about commission of robbery by three boys in his shop by removing Rs. 100/- from his cash box. PW 40 Arjun Bhonde has deposed about assault on him by accused Ballya Kalbande by knife. PW 41 Surendra Shivhare has deposed about commission of theft in his house by some persons. PW 42 Ramesh Soni has deposed about extortion by removing Rs. 1200/- by three boys from him. PW 49 Laxmibai Salame has deposed about accused Sachin, Ballya Kalbande and his associates entering into her house and demanding of Rs. 500/- from her. The rest of the witnesses are Police Officers who have registered FIR or filed change sheet in respect of various crimes in which accused Nos. 1, 2 and 4 are shown as accused. The learned Special Judge has given details of around 38 crimes which are registered against the present appellants. Though the learned Special Judge has charted out 38 crimes, in view of the aforesaid legal position it will be only permissible to take into consideration such activities which are cognizable offence punishable with imprisonment of three years or more, such activities are undertaken either singly or jointly, as a member of an organized crime syndicate or on behalf of such syndicate, that in respect of such an activity more than one chargesheet must have been filed before a competent Court and that the charge sheets must have been filed within a preceding period often years and that the courts have taken cognizance of such offences. We find that the following charge-sheets filed against the accused would meet the aforesaid requirements.
35. The filing of chargesheet in respect of aforesaid crimes and the cognizance taken by the Courts has been established by prosecution by the evidence of PW51 Vasant Sayam, PW 14 Laxmikant Pande, PW 13 Bhagwat Taywade, PW 21 Arun Ombase, PW 19 Pandurang Lade, PW 64-Sheshrao Pande, PW 31 Anugraha Thakur, PW 41 Surendra Shivare, PW 47 Harishchandra Mate and PW 59 Ramdas Patil. Perusal of the said charge-sheets would reveal that the activities in respect of which charge sheets have been filed were carried out by the aforesaid three accused at times by two of them or at times singly. However, perusal of the charge-sheets would reveal that such activities were carried out either singly or jointly as a member of an organised crime syndicate or on behalf of such syndicate. The learned Special Judge has basically found that case under the provisions of MCOC Act was not made out in view of the judgment of the Division Bench of this Court in the case of
36. The Full Bench of this Court in a clear terms held that the term "other advantage" cannot be ejusdem generis with the words "pecuniary benefits or economic advantage". It will be relevant to refer paragraph Nos. 34 and 35 of the said Judgment.
34. It can, thus, clearly be seen that the purpose behind enacting the MCOCA was to curb the activities of the organized crime syndicates or gangs. The perusal of the Preamble and the Statement of Objects and Reasons and Preface, in our considered view, does not lead to any narrower meaning that MCOCA has been enacted only for the purpose of curbing activities which involve pecuniary gains or undue economic advantages. The mischief which is sought to be cured by enactment of MCOCA is to curb and control menace of organized crime. The law has been enacted with the hope that the elements spread by the organized crime in the Society can be controlled to a great extent and for minimizing the fear spread in the society. If a narrower meaning as sought to be placed is accepted, it will frustrate the object rather than curing the mischief for which the Act has been enacted.
35. For appreciating this issue, it would also be relevant to refer to sub-section (4) of section 3 of MCOCA, it can be seen that the said provision also provides for punishment only by virtue of a person being a member of the organised crime syndicate, if the contention advanced by the respondents is to be accepted, subsection (4) of section 3 will be rendered redundant, we are also of the considered view that there could be various "unlawful continuing activities" by a member of "organised crime syndicate" or by any person on behalf of such a syndicate which can be for the advantages other than economic or pecuniary, we will consider some illustrations.
(i) A politician is murdered by a member of organised crime syndicate or gang on its behalf at the behest of rival political leader. In the facts of a given case, this was without any pecuniary or economic consideration, it was to gain an advantage in the nature of political patronage to the said organised crime syndicate by the political leader at whose behest the murder has taken place.
(ii) If a member of an organised crime syndicate or any person on its behalf murders or kills the leader of another syndicate or rival gang in order to get supremacy in the area, there may be no direct economic or pecuniary advantage by that particular unlawful activity. However, in the long term by the very fact of having supremacy in the area, the organised crime syndicate would be in a position to get economic or pecuniary advantage,
(iii) A witness in the trial against the member of an organised crime syndicate may be killed. There may not be any pecuniary advantage in such an activity, however, advantage of assuring acquittal of member of the syndicate could be here.
(iv) A member of an organised crime syndicate murders another member of such syndicate. There may be no pecuniary or economic benefit by such an activity, however, there may be advantage to a person committing murder of getting a stronghold or supremacy in the ''organised crime syndicate'' of which he is a member.
These could be some of the few illustrations which may come in the term "other advantage". There can be many more.
37. Apart from the fact that various activities which are mentioned herein above in respect of which the charge-sheets are filed, were also with respect to gaining pecuniary advantages. However, it can clearly be seen that most of the activities have been committed by use of violence, or threat of violence or intimidation or coercion or other unlawful means. The tenor of the activities committed by the organised crime syndicate consisting of accused Nos. 1, 2 and 4, was of indulging into various activities of threatening people, extorting them, committing dacoities and in general causing a terror in the Sudam Nagari area of Nagpur. It is clear that the activities were intended with an intention of getting a stronghold or supremacy as the ''organized crime syndicate'' consisting of said accused persons in the area of Sudam Nagari. We, therefore, find that the prosecution has established that the activities of the accused Nos. 1, 2 and 4 which clearly come under the definition of Section 2(e) of the MCOC Act and therefore, they are liable to be punished for an offence punishable u/s 3(1)(ii) of the MCOC Act. In that view of the matter, the appeal of the State needs to be partly allowed.
38. Before parting with the judgment, we will be failing in our duty to place on record our appreciation for the efficient investigation and the prosecution in the present case. Day in and day out, we come across with various cases when only on account of faulty investigation or casual attitude of the prosecution, we are required to record the orders of acquittal. However, we find that in the present case investigators have investigated the crime and collected the evidence by putting a lot of hard work and the learned prosecutor has conducted the prosecution in an efficient manner. We, therefore, direct the copy of the judgment to be forwarded to the Principal Secretary of Law and Judiciary, State of Maharashtra and the Commissioner of Police Nagpur.
39. In that view of the matter, we pass the following order.
The Criminal Appeal No. 317 of 2010 is partly allowed.
In addition to the conviction and sentence recorded by the learned Special Judge against the accused/respondent Nos. 1, 2 and 4, the aforesaid accused are also held guilty for the offence punishable u/s 3(1)(ii) of the Maharashtra Control of Organized Crimes Act, 1999 and are sentenced to suffer imprisonment for a period often years and to pay a fine of Rs. 5,00,000/- (Rupees Five Lakhs) each. In default of payment of fine, the accused shall suffer further imprisonment for a period of three years.
The appeal stands dismissed insofar as rest of the prayers are concerned.
Needless to state that the sentences shall run concurrently.
Criminal Appeal Nos. 257 of 2010 and 291 of 2013 are dismissed.
