Criminal Appeal no- 537 of 2009
Supreme Court of India
BENCH: Hon’ble B. Sudarshan Reddy J., Hon’ble Surinder Singh Nijjar J.
DATE OF JUDGEMENT: 09-03-11
BRANCH OF FORENSIC SCIENCE: Voice analysis (Forensic Physics)
RELEVANT SECTIONS:
IPC (Indian penal code) Act, 1860
- Section 302 – Punishment for murder.
- Section115 – Abetment of offence punishable with death or imprisonment for a life-if offence not committed.
- Section 120(B) – Punishment of criminal conspiracy.
The Arms act, 1959
- Section 3 – Licence for acquisition and possession of firearms and ammunition.
- Section 7 – Prohibition of acquisition or possession, or manufacture or sale, of prohibited arms or prohibited ammunition.
- Section 25 – Punishment for certain offences i.e. Manufacture, sale, possession or offer for sale, etc. of firearms and ammunition.
Maharastra control of organized crime Act, 1999 – This act was enacted by the Maharastra state to combat organized crime and terrorism.
BACK STORY
This case is all about the conspiracy to eliminate the prominent businessman of Mumbai, namely “Bharat Shah” by the active members (Accused Nos. 1-5) of organized crime syndicate of Chotta Rajan.
Accused 1 – Vinod Sitaram Yadav @ Bapu
Accused 2 – Viswanath Atmaram Jadhav
Accused 3 – Jagdish Bhaskar Shetty@ Raghu
Accused 4 – Amit Suryakant Dalvi
Accused 5 – Bharat Nepali (Absconding accused)
On 14t oct, 2004 D.C.P (detention), Mr.Dhananjay Kamlakar (PW-42 ) from his sources informed the police about gangster Chotta Rajan with a conspiracy to kill the Bharat shah at pan shop near “Mehta Bhuvan”, where his office is situated. Movement of Bharat Shah kept under close watch and his office timing was communicated to all the accused through telephone no-0060133402008 by Bharat Nepali. The mobile no is of Malaysian origin (PW-42) although the aforesaid telephone number was under surveillance of P.S.I. Vijay Dalvi(PW-17) since 1st Oct 2014, on the receipt of definite information with regard to the conspiracy and the tapping of aforesaid number officially done since 20th Oct 2004. On 28th Oct 2004 Vijay Dalvi (PW-17 )intercepted and recorded the conspiracy conversation between the accused nos 1,2,4 and the absconding accused Bharat Nepali and noted the date and time of cassette and, then on 7th Nov 2004 P.I. Nagesh Lohar received the reliable information about the plan to kill the Bharat shah by the informant who was residing in the Giragum area (Mumbai) where the accused no. 4 rented a flat in building name “Ambika Niwas” in the fake name of Sachin Patil, then on 8th Nov 2004, informant again arrive at the office of P.I.Lohar at about 5:30 a.m. to give further information and then police inspector Lohar conducted the 2 panchas and then raided conducted by Hiro Khatri (one of the panch witnesses) on the rental premises. All of the 4 accused then searched by A.P.I Plasawar (PW-38)All the accused recovered with the phones, the firearms with live cartridges, and a colorful photograph of the same individual(Bharat shah) with them.
There is no such evidence, in this case, to identify the voice of the accused expects voice identification, so the voice identification did with taking more precautions as is done in case of visual identification.
VOICE IDENTIFICATION REPORT
The voice identification with the help of voice spectrogram produced by the analysis of recorded cassette and, by A.C.P. Tejasingh Chauhan (PW-18) who had arrested the absconding Bharat Nepali and by Jagdish Kulkarni (PW-19), who had earlier arrest the appellant on 2nd March 2002. Even after hearing the conversation, the high court disbelieved the voice identification and also the story of the prosecution with regards to accused no-4 taking a room at ‘Ambika Niwas’ on leave and license basis.
Having disbelieved the entire prosecution version, the high court proceeds to distinguish the case of the appellant. The only additional circumstances relied upon by the high court against the appellant is that his voice was identified by the officer Jadish Kulkarni (PW-19), who had taken him in custody. The voice was Bharat Nepali was also identified by (PW-18), A.C.P. Teja Singh Chauhan.
JUDGMENT
The charges were framed against all the accused on 8th December 2005 under relevant provisions of MCOC Act, IPC, Arms act. Since all the accused had pleaded not guilty, they were all put on trial. Charge head firstly is not considered as it is repetition in charge head secondly, thirdly, and fifthly.
The trial convicted to all the 5 accused as under:
- Accused no (1-5) – Punishable under sec 3(1)(iii)r/w Sec. 3(2) of MCOC Act,1999 with fine of 5lakhs.
- Accused no (1, 2, 3, 5) – Punishable under sec 3(4) of MCOC Act with imprisonment of 7 years and fine of Rs5lakhs.
- Accused no(4,5)- ) – Punishable under sec 3(5) of MCOC Act with imprisonment of 3 years and a fine of Rs 2 lakhs.
- Accused no (1-5) – Punishable under sec120-B r/w sc.302r/w sec 115 of IPC with imprisonment of 3 years and fine of Rs10,000 (ten thousand).
- Accused (4, 5) – Punishable under sec 419 r/w sec120-B of IPC with imprisonment of 1 year.
- Accused no (1, 2, 3) – Punishable under sec.3 r/w Sec.25 of the Arms act, 1959 with imprisonment of 3 years and fine of Rs5, 000 (five thousand).
- Accused no (1, 2) – Punishable under Sec.3 r/w Sec.25of the Arms act, 1989.
- Accused no (2, 3) – Punishable under Sec.3 r/w Sec.30 of the arms act, 1959.