This article is authored by Nidhi Bajaj, of Guru Nanak Dev University, Punjab. It discusses in detail the Bombay High Court judgment passed in the Gulshan Kumar murder case on July 1, 2021.
This article has been published by Sneha Mahawar.
On August 12, 1997, legendary music mogul, T-series founder Gulshan Kumar was assassinated in broad daylight while coming out of a temple in Juhu, Mumbai. In 2002, Abdul Rauf Dawood Merchant was convicted for murder of Gulshan Kumar and sentenced to life imprisonment by the Sessions Court. It was 19 years later, in July 2021, that the Bombay High Court confirmed his conviction and dismissed his appeal. Also, an appeal filed against the acquittal of TIPS co-founder Ramesh Taurani was dismissed.
In this article, the author will take you through the factual discussion and the order and judgment of the Bombay High Court in the Gulshan Kumar murder case.
|Case name||Abdul Rauf Dawood Merchant v. the State of Maharashtra (2021)The State of Maharashtra v. Ramesh Taurani, Abdul Rashid Dawood Merchant (2021)|
|Case details||Criminal Appeal No. 878 of 2001Criminal Appeal No. 1006 of 2002|
|Court||High Court of Bombay|
|Date of judgement||July 1, 2021|
|Parties||In appeal no. 878 of 2001, Appellant/Accused no. 19: Abdul Rauf Dawood MerchantRespondent: State of MaharashtraIn appeal no. 1006 of 2002Appellant: The State of MaharashtraRespondents: Ramesh Taurani, Abdul Rashid Dawood Merchant|
|Bench||Smt. Sadhana S. Jadhav and N.R. Borkar, JJ|
A quick timeline of events
|August 12, 1997||Gulshan Kumar was shot dead by 3 assailants who fired 16 bullets at him.|
|August 30, 1997||Music composer Nadeem Saifi was declared a co-conspirator in the case. He blamed Kumar for not giving due publicity to his album due to which it became a flop. It was alleged that he and Ramesh Tuarani had given a supari of Rs. 25 lakh for the murder of Gulshan Kumar.At the time Saifi was in London, and extradition proceedings were initiated to bring him back. But the London High Court discharged him in December 2000 and he hasn’t come back since. He was named as an absconding accused.|
|October 1997||Ramesh Taurani, owner of TIPS (main rival of T-Series) was arrested for his alleged involvement in the crime as an abettor. He was accused of paying Rs. 25 lakhs to the killers. The police however failed to establish his involvement in the crime in the court.|
|November 1997||A 400-page charge sheet was filed in which about 26 people were named as accused. It was stated in the charge sheet that the plot to kill Gulshan Kumar had been hatched in Dubai, in the office of Dawood Ibrahim’s brother Anees. 15 people were arrested. One, Mohammad Ali Sheikh, turned approver in the case.3 supplementary charge sheets were filed over the next few years.|
|January 2001||Abdul Rauf, one of the assassins who was absconding after the killing was arrested from Kolkata.|
|June 2001||Trial began.|
|April 2002||Abdul Rauf was found guilty and sentenced to life imprisonment.|
|April 2009||Abdul Rauf absconded again when he was on furlough. He was brought back from Bangladesh after 7 and a half years in November 2016.|
|July 1, 2021||The Bombay High Court gave a judgment confirming the conviction of Abdul Rauf and also convicted Rashid Merchant, brother of Rauf. The appeal against the acquittal of Ramesh Taurani was dismissed.|
- DECEASED: Gulshan Kumar Dua, the Managing Director of Super Cassette Industries, founder of T-Series and a film producer was engaged in the business of purchasing rights of audio cassettes of hindi movies and private albums. He was in the habit of visiting Shiv Mandir situated at Jeet Nagar, Andheri(W) twice a day, once in the morning and once in the evening. The President of the Shiv Temple Management Association namely Ramachandra (P.W.1) used to be in attendance during his visit.
- THE INCIDENT: On 12th August 1997, Gulshan Kumar went to the temple in the morning as usual and offered his prayers for about 15 minutes. He met Ramachandra there and was returning home. He was proceeding towards his car which was parked about 6-7 ft. away from the temple followed by his driver Rooplal(P.W.7) and P.W.1. On reaching the car, the driver crossed to the other side of the car to take the driver’s seat. When Gulshan Kumar was opening the door of his car, suddenly a person touched his back with a pistol and fired a battery of bullets at him. Taken by surprise, he turned his back only to receive more bullets on his chest. He was just about to collapse when another assailant rushed towards him and fired more bullets at him. Struggling to escape, Gulshan walked a few steps up to the gate of Raundal’s bungalow and then he was showered with bullets by a third assailant. His driver tried to help him but he was also shot in his right thigh. P.W.1 laid him on the rear seat of the car and asked Rajesh Johari (P.W.3) to take him to the Cooper Hospital. P.W.1 followed the car in an auto-rickshaw.
- F.I.R. FILED: Some persons from Jeet Nagar gave information about the incident to the D.N. Nagar Police station. PSI Rashmi Jadhav (P.W.10) reached Cooper Hospital[with P.W.11 (Inspector Rane), P.W.13 (PSI Shinde) and a police constable] where she saw one severely injured man on a stretcher (Gulshan Kumar). P.W. 10 recorded the statement of P.W.1 and a crime was registered for offences punishable under Sections 302, 307 read with Section 34 of Indian Penal Code, 1860 and Section 25 of the Indian Arms Act, 1959 The statement of P.W.1 was recorded and he informed the police that he had witnessed the whole incident and that he would be able to identify the assailants if shown to him. P.W.1 showed the scene of offence to the police and the Punchnama was drawn by P.W.11.
- INVESTIGATION: 45 witnesses were examined by the prosecution and 17 accused persons were identified. Accused no. 6 and accused no. 15 were discharged in April 2002.
- The witnesses in the case can be divided into five categories. These are as follows:
- Eyewitnesses to the incident of shooting and subsequent conduct of assailants: P.W.1 Ramchandra Lavangare, P.W. 2 Shankar Fukhe, P.W.3 Rajesh Johari, P.W.4 Labh Shankar Sharma, and P.W.7 Rooplal Saroj.
- Officers who conducted the Test Identification Parade: P.W.20 Shrikant Kauthankar, P.W.21 Vinod Ghedia, and P.W.36 Sitaram Jadhav.
- The panchas to the recovery of incriminating articles at the behest of the accused persons: P.W.24 Ashok Shah, P.W.22 Kishor Goyal for recovery of passport, P.W.38 Sanjay Desai, P.W.6 Arun More for the scene of offence Panchanama, P.W.8 Dhanaji Kadam Panch for recovery of taxi of P.W.4 which was abandoned at Kapaswadi Exh.73.
- Witnesses to the conspiracy to kill Gulshan Kumar: Kishan Kumar Dua P.W.32 and P.W.37 Arif Lakdawala.
- The local police who investigated on 12th and 13th of August, 1997: P.W.10 Rashmi Jadhav, P.W.17 Subhash Salvi and P.W.45 Arjun Bagdi of DCB CID Unit.
- P.W.2 (Shankar Fukhe) informed the police that he saw the assailants running towards Bharat Nagar and chased them too. He identified accused no. 16 and accused no. 19 in the Test Identification Parades.
- P.W.3 Rajesh Johari who is a rickshaw driver and resident of the Bharat Nagar area informed that he saw one assailant and chased him. The assailant then threatened him by brandishing his pistol to restrain him from chasing. He also said that he saw the assailants leaving in a taxi.
- P.W.4 Labh Shankar, a taxi driver deposed that at Versova link road, two persons pulled him out of his taxi by holding his hair, terrorised him with their pistol and then fled towards Juhu with his taxi. He identified accused no. 19 in the TIP. Later, the taxi was found by the police at Kapaswadi and the P.W.4 identified the same.
- Lastly, a statement of P.W.7 i.e. driver Rooplal was recorded who also reiterated the facts as mentioned in the FIR. He identified accused no.19 before the court as the assailant who shot him and as the last assailant to have shot at the deceased.
- Two imported pistols were recovered from accused no. 17 who is the father of accused no. 4,16 and 19.
- Pistols and live cartridges were recovered from the house of Lakshmibai (maternal aunt of accused no. 4, 16, and 19) at the instance of accused no. 16.
- A forged passport was recovered at the behest of accused no. 16 from his sister’s house.
- MOTIVE: The police came to the conclusion that there was a larger conspiracy that was planned to kill Gulshan Kumar(deceased) and that the assailants were hired killers.
- EXAMINATION OF KISHAN KUMAR DUA (P.W.32): The police examined Kishan Kumar Dua, younger brother of the deceased and one of the directors of Super Cassettes Industries. He told the police that music director Nadeem Saifi wanted the deceased to buy the purchase rights of his album “Hi, Ajnabi ”, which the deceased had refused. The deceased had told P.W.32 that he was not interested in buying the album rights as Nadeem was not a good singer. Later P.W.32 got to know that the deceased had purchased the audio rights of ‘Hi, Ajnabi’ and filmed a song for album promotion as well. However, the album was a huge flop and Nadeem blamed the deceased for the same. He was of the view that the deceased had not given enough publicity to the album and had even threatened the deceased with dire consequences. On 5th August, P.W.32 saw the deceased in a frightening condition and upon enquiring from him found out that he had received a threatening call from Abu Salem. The deceased refused to inform the police as Abu Salem was a dangerous man. Then, on August 9, 1997, the deceased got a call from Abu Salem in presence of P.W.32 and was telling Salem Bhai that he could not be blamed for the failure of ‘Hi, Ajnabi’. The deceased had told P.W.32 that the call was a clear threat to kill him.
- After completion of the investigation, a 400-page charge sheet was filed and 3 supplementary charge sheets were also filed over the next few years. Accused no. 4, brother of accused no. 16 and 19 were arrested.
- TRIAL: The eye-witnesses and other prosecution witnesses were thoroughly examined and cross-examined before the court.
- Examination of P.W.1 Ramachandra: P.W.1 deposed all the facts before the court and proved the contents of the FIR. He also testified that he attended the Test Identification Parades (TIP) and has identified the following accused-
- Accused no.16 at the test identification parade conducted on 21st February 1999 as the assailant i.e., the person who came from the side of the auto-rickshaw and fired at the deceased.
- On 2nd February 2001, he identified accused no.19 as the assailant who came from the side of the stall and fired at the deceased in front of Raundal’s house.
- On 3rd February, 2001 he identified accused no. 19.
- Cross-examination of P.W.1: P.W.1 was thoroughly cross-examined and he gave a sterling testimony, reiterating and clarifying all the facts. He deposed that he could see the assailant at three stages i.e. on their arrival, when they fired and when they were running away from the spot.
- RECORDING OF EVIDENCE OF ARIF LAKDAWALA (P.W.37): P.W.37 was acquainted with Abu Salem since 1991 and had also met him in Dubai in 1996. He was also acquainted with accused Keki Balsara who had died before the trial commenced. P.W.37 deposed that he accompanied Keki to Juhu and collected Rs. 25 lacs from Nadeem and accused Ramesh Taurani on the instruction of Abu Salem. P.W.37 had also received the box from Nadeem and had placed the same in the rear seat of the car. Nadim had made a phone call to a person and told him that the money was already handed over and Gulshan should be dealt with immediately. P.W. 37 deposed that he conversed with the caller and identified the voice of the caller to be that of Abu Salem. He also identified accused no. 11 Ramesh Taurani (acquitted accused) before the Court as the person who accompanied Nadeem. He deposed that the bag kept on the rear seat of the car was taken by three persons who had met Keki Balsara in K.D.Compound and identified them as accused no. 7,8 and 9. The cross-examination of P.W.37 showed that he was a witness to the aforementioned transfer of money and that he was aware of the alleged involvement of Abu Salem, Nadeem, Keki Balsara and Taurani in the murder.
- An application was filed to arraign P.W.37 as the accused under the present case which was rejected on the ground that the evidence given by him is protected by the provision to Section 132 of the Indian Evidence Act, 1872.
- The call records of Ramesh Taurani were also brought before the court which showed that he had made international calls to a certain number from the Juhu area on 27th June 1997.
- Decision of Additional Sessions Judge
On 29th April 2002 the Additional Sessions Judge, Mumbai convicted appellant Abdul Rauf Merchant (accused no. 19) and sentenced him as under-
- For offence punishable under Section 302 IPC: Life imprisonment and a fine of Rs. 5000 and in default of payment of fine to suffer S.I. for 3 months;
- For the offence punishable under Section 307 IPC: Life imprisonment
- For the offence punishable under Section 392 IPC: Rigorous imprisonment for a period of 7 years and a fine of Rs. 1,000/- (in default) to suffer S.I. for one month.
- For the offence punishable under Section 397 IPC: Rigorous imprisonment of 7 years and a fine of Rs. 1,000/- (in default) to suffer S.I. for one month.
- For the offence punishable under Section 27 of the Arms Act: Rigorous imprisonment of 3 years and to pay a fine of Rs. 1,000/- (in default) to suffer S.I. for one month.
Respondents no. 1 and 2 were acquitted by the Court.
- Against the said order and judgment, two appeals were filed, one by Appellant-accused no. 19 against his conviction and the other by the State of Maharashtra against the acquittal of Respondents Ramesh Taurani and Abdul Rashid. The two appeals were heard together.
- Whether testimony of the eye-witness P.W.1 and other eye-witnesses can be relied upon?
- Whether accused no. 19 has been falsely implicated?
- Whether the acquittal of Respondent no.1 and 2 is correct and justified?
- Whether Test Identification Parade can be challenged on the ground of delay and is therefore not to be relied upon in the facts and circumstances of the present case?
Contentions of the parties
Submissions made on behalf of the accused
Following submissions were made on the behalf of the accused:
- Appellant/accused no.19 in Criminal Appeal no. 878 of 2001 i.e. Abdul Rauf Dawood Merchant.
- Respondent no.2/accused no.16 in Criminal Appeal no. 1006 of 2002 i.e Abdul Rashid Dawood Merchant
- Respondent no.1 in Criminal Appeal no. 1006 of 2002 i.e. Ramesh Taurani
- The evidence of P.W.1 should not be relied upon as it could not have been possible for P.W.1 to have seen the incident of shooting since he had rescued himself and was hiding behind a coconut tree. Hence, the identification made by him was useless since he could not see anything from behind the tree.
- P.W.1 has identified accused no. 16 in the year 1999 which is almost after two years and he identified accused no. 19 after 4 years of the incident. Thus, no reliance can be placed upon such evidence as his memory must have faded after 4 years. It was submitted that as far as P.W.7 was concerned since he was shot when he was trying to lift the deceased he could not have seen the accused while they were shooting.
- Accused no. 19 has been falsely implicated and hence he deserves to be acquitted.
- Since P.W.2 was chasing the assailants, he could not have seen their faces.
- P.W.3 and the other prosecution witnesses are got up witnesses.
- Accused no.16 has been rightly acquitted and accused no. 19 who was arrested on mere suspicion deserves to be acquitted.
- It was contended that ballistic expert who examined the pistol recovered at instance of absconding accused no.1 had deposed that his evidence cannot be relied upon as he had failed to record the number of similarities and dissimilarities in respect of striations found on the land grooved impression, the similarities and dissimilarities in firing pin impressions and breech face marks.
- It was contended that the prosecution has not proved the case beyond reasonable doubt and to support the contention, the learned counsel for the appellant (accused no.19) relied on the case of Somasundram @ Somu v. State represented by the Deputy Commissioner of Police (2020), Suresh Chandra Bahri v. State of Bihar (1995), Rampal Pithwa Rahidas & Ors. v. State of Maharashtra (1994), Sarwan Singh v. the State of Punjab (1957), Ghurey Lal v. State of Uttar Pradesh (2008), Anwar Ali & Anr. v. State of Himachal Pradesh (2016).
Submissions made on behalf of State of Maharashtra
- It was submitted that the prosecution has established the case against accused no.19 beyond a reasonable doubt.
- It was contended that the witnesses have seen a ghastly incident and the faces of the culprits have been imprinted in their minds. This was reaffirmed in their cross-examination as well. The evidence of the witnesses are consistent and there are only minor discrepancies that cannot be taken into consideration given that all the witnesses saw the incident at different stages and in different situations.
- The Trial Court has placed undue reliance upon immaterial omissions in the cross-examination.
Decision of Bombay High Court
In Criminal Appeal no. 878 of 2001
Testimony of eyewitnesses – reliable
After evaluation of the evidence of the eyewitnesses, the Court held that the evidence of eyewitnesses is sterling testimony which could not be shattered despite lengthy cross-examination. Thus, the Court found that the testimony of the eyewitnesses was reliable.
The Court observed that the statement of P.W.1 was taken within half an hour of the alleged incident and he explained the entire incident of how he saw the deceased being shot dead to the police. He reiterated repeatedly and consistently that he had actually seen accused no. 16 and 19 firing at the deceased as well as Rooplal at the spot and also when assailants were fleeing from the spot. Thus, the Court held that there was no delay in disclosing the incident.
With regard to the testimony of P.W.2 Sahebrao Fukhe who had chased the accused when they were running towards Bharat Nagar, the Court noted that Bharat Nagar Gate is adjacent to the compound wall of Shiv Temple and the P.W.2 has clearly stated that he had seen the accused loitering in the area before 12th August 1997.
With regard to the testimony of P.W.4 Labhshankar, the taxi driver, the Court held that his testimony was reliable as he was the one terrorised by accused no. 19 who pulled him out of the car and therefore, he could very well identify the accused no. 19.
The Court also accepted the testimony of P.W.7 Rooplal, the driver of the deceased as he was the one who had accompanied the deceased to the temple. He had seen the whole incident from a very close distance and could therefore identify the accused.
The Court noted that the presence of all other prosecution witnesses at the spot of the incident was natural as they were residents of the said area.
Whether Test Identification Parade could be challenged on grounds of delay
The Court placed reliance on the case of Brij Mohan and ors. v. the State of Rajasthan(1993), wherein it was held that “… the identification made by the witnesses cannot be rejected merely on the ground that it was not possible for them to identify after the lapse of a period of three months.” In that case, dacoity was committed in a gruesome manner and 4 persons were killed. The Court had held that in such a case the culprits and the incident must have left an imprint on the minds of witnesses which could not have been erased within three months only.
Hence, the Court held that the murder of Gulshan Kumar took place in broad daylight, and the eyewitnesses P.W.1 and P.W.7 could not have forgotten such a horrendous incident that had occurred right in front of them. The whole incident must have been permanently imprinted in their mind and thus, this is not a case of mistaken identity. The Court concluded that the eyewitnesses had no reason to falsely implicate the accused.
The Court pointed out that the delay in conducting the Test Identification Parade was caused due to the absconding of the accused who could be arrested only after he was arrested in another state in another crime.
The Court remarked that this is not a case of a sole eyewitness but 5 eyewitnesses, each of whom emphasised the role of accused Nos. 16 and 19 at different stages. The incident was explained thoroughly and graphically which could not have been possible unless they had really seen the incident. The eyewitnesses were consistent in the cross-examination as well.
The Court held that the credibility of a witness has to be judged based on his examination and his evidence must be appreciated by referring to his evidence individually and ascertaining as to how he has fared in the cross-examination and what impression is created by his substantive evidence taken in the context of the case and not upon surmises and conjecture. The evidence of P.W.1 is consistent with the evidence of P.W.7 as well as P.W.3 who had driven the car of the deceased to Cooper Hospital, at the request of P.W.1. The fact that 18 bullets were retrieved from the body of the deceased, coupled with the fact that the empty cartridges were found on the scene of the offence, would clearly establish that there was more than one person who had shot at the deceased and that they had arrived at the scene of offence from 3 different directions.
Also, the act of the accused was further corroborated by the recovery of pistol and live cartridges at the instance of accused no. 16.
The Court referred to the local inspection notes drawn by the Sessions Judge to dislodge the appellant’s contention that the shooting could not have been noticed by P.W.1 from behind the coconut tree. Also, the evidence of the doctor who examined the injury on the deceased as well as the injuries of P.W.7 is in conformity with the evidence of the eye witnesses that bullets were first fired on the back and then on the chest.
It was held that no delay could be attributed to the recording of statements of eyewitnesses who made voluntary disclosures. Also, the incident was of such a nature that it could not have been erased from the memory of eyewitnesses.
In the case at hand, the test identification parade was conducted within one month. The investigating agency could reach accused no. 19 on the basis of the interrogation of accused Nos. 16 and 17 as well as accused no. 4. Also, there was evidence to indicate that accused no. 19 was present in Dubai when the conspiracy was hatched and had executed it as well with the help of accused Nos. 1 and 16. The court referred to the judgment of Chandraprakash v. the State of Rajasthan(2014), wherein the TIP was conducted within 3 weeks from the date of arrest. In Ramanand Ramnath v. the State of M.P.(1996) the identification parade was held within a period of one month from the date of arrest and it was held that there was no unusual delay in holding the Test Identification Parade.
Accused no.19 part of the conspiracy and not falsely implicated
The Court rejected the contention that there was a lack of evidence to show that accused no. 19 was a part of any conspiracy to murder. The Court referred to the evidence of P.W.37, Arif Lakadawala who had deposed that he was a witness to the dialogue between Nadeem, acquitted accused Taurani and Abu Salem and he had identified “Caller” of Taurani to be Abu Salem with whom he was acquainted since 1991, and had met in Dubai in 1996. The Court was of the view that it is not necessary to determine the question as to whether the accused had any personal animosity with the deceased.
The Court then examined the fact as to whether accused no. 19 could be one of the persons hired to kill the deceased by appreciating his conduct before the incident, at the time of the incident, soon after the incident and thereafter. The Court observed that there was evidence that accused no. 19 had travelled to Dubai six months before the incident and a forged passport was also recovered at the instance of his brother accused no. 16 from the house of his sister Shehenaz. Also, P.W.4 Labhshankar Sharma had identified him as the person who had terrorised him, dragged him out of his taxi and hijacked his taxi. Thus, the evidence of P.W.37 was consistent with P.W.2 and 4 and this establishes that accused no. 19 was one of the assailants.
The Court also emphasised the fact that the accused no.19 had criminal antecedents and soon after the incident, he was absconding. Also, when he was released on furlough on 15/4/2009, he absconded again and was re-arrested in 2016.
The Court held that contention regarding the evidence of ballistic expert needs no consideration as one pistol was recovered at the instance of accused no. 16, one was recovered from P.W.31 and two pistols were recovered from accused no. 17 i.e. the mother of accused Nos. 16 and 19.
Reliance was placed on the case of Dhanaj Singh @ Shera & Ors. v. the State of Punjab (2004), wherein it was observed that the defective investigation should not deter the courts from evaluating the evidence as that would lead to denial of justice to the complainant.
The Court held that the facts of the judgments relied upon by the counsel for the appellant are not relevant in the present case.
Thus, the Court held that the murder of the deceased was a cold-blooded murder committed in broad daylight. In such circumstances, the eyewitnesses could not have mistaken the identity of the assailants. Also, the eyewitnesses clearly stated that accused no.1 who was shot in the first instance was not present in court and they had not mistaken any other person to be accused no. 1. This shows that the murder was committed by none other than accused no. 16 and 19. The Court held that the case at hand is one of direct evidence and the conduct of eyewitnesses has to be appreciated who had helped the deceased, tried to catch the miscreants and had disclosed the whole matter to the police and even stood the test of scrutiny. Thus, there was no delay in recording statements and the prosecution had proved its case beyond a reasonable doubt. The Court held that the Appellant-accused no. 19 had no personal grudge against the deceased but was hired to kill him by Nadeem Saifi and Abu Salem. (It has to be noted that Nadeem Saifi, Abu Salem as well as one Kayyum @ Chacha have been shown as absconding accused who could not be tried.)
As the appellant had criminal antecedents and had absconded earlier, the Court held that he would not be entitled to any remissions. The appeal was partly allowed.
Order passed by the Court
- The Criminal Appeal no. 878 of 2001 was partly allowed.
- The conviction and sentence of Appellant Abdul Rauf Dawood Merchant under Sections 302, 307 read with Section 34 of the Indian Penal Code read with Section 27 of the Indian Arms Act was upheld.
- The Court also convicted the appellant under Section 120B of the Indian Penal Code but no separate sentence was awarded.
- The conviction and sentence passed against the Appellant under Sections 392 and 397 of the I.P.C. was quashed.
- The Appellant shall not be entitled to remissions if any.
Criminal Appeal no. 1006 of 2002
The question that arose for the determination of the court in this appeal was whether the acquittal of the original accused no. 11 Ramesh Taurani and accused no. 16 Abdul Rashid Dawood Merchant is justified.
Acquittal of Ramesh Taurani does not call for intervention
It was the case of the prosecution that respondent no. 1 Ramesh Taurani had hatched a criminal conspiracy with Abu Salem and Nadeem Saifi to murder Gulshan Kumar. The only witness for the involvement of Respondent no.1 in the conspiracy was P.W.37 Arif Lakadwala.
It was admitted by P.W.45 that he had not conducted an investigation to trace the identity of the person to whom the call was made by Keki Balsara or the subscriber of the said phone number. Also, the Court noted that P.W.37 had not met Taurani before 27/6/1997 and that was the only occasion when he had seen accused no. 11. Respondent no. 1 Taurani was not subject to the Test Identification Parade and was identified by P.W.37 for the first time before the Court.
The Court held that there is no convincing and cogent evidence to prove the involvement of respondent no. 1 in the criminal conspiracy to kill Gulshan Kumar.
Respondent no. 2 held guilty
The Court relied upon the evidence of eyewitnesses to examine the role of respondent no. 2 in the incident.
The Court discussed the testimony given by P.W.1 who had stated that accused no. 16 is the third assailant i.e. the person who had come from behind an auto-rickshaw and shot at the deceased. The said evidence is supported by the local inspection notes drawn by the Sessions Judge and is corroborated by the spot panchnama as well.
The Court said that the P.W.1 in his testimony has clearly stated the location from where the three assailants arrived and it should not have been held that the P.W.1 could not have seen accused no. 16. The Court pointed out the fact that the bullets were found from the body of the deceased not only from the back and chest but from other body parts as well which clearly shows the involvement of two other persons. In such circumstances, the testimony of P.W.1 has to be relied upon.
The Supreme Court disagreed with the finding of the Trial Court that there was a possibility that the three assailants had not shot the deceased and the third one must be giving cover to the other two. The Court held that it was an established principle of criminal jurisprudence that where an act is committed as a result of pre-meditation and executed by several persons, then the persons who had shared the common intention are to be held liable for the offence(The Court referred to Section 34 of the I.P.C.)
The Court held that the trial court had given undue importance to the testimony of the ballistic experts as mentioned above.
Relying on the case of Inder Singh v. State of Rajasthan (2015), the Court held that the Trial Court was wrong in discarding the testimony of P.W.1 indicating the involvement of accused no.16 after comparing it with testimonies of other eyewitnesses. It was observed that using the evidence of one witness to contradict the evidence of other witnesses is unfair as it is natural that there will be some variations in the testimonies of two witnesses especially in the case at hand, wherein all the eyewitnesses saw the assailants from different locations and at different stages of the incident.
Reliance was placed on Leela Ram(D) through Duli Chand v. the State of Haryana (1999), wherein it was held that the discrepancies in the ocular account of two witnesses cannot affect the credibility of their evidence unless those discrepancies are vital and material.
It was held that the evidence of P.W.1 is sufficient to convict accused no.16. relying on the landmark judgement in the case of Shivaji Bobade & Anr. v. the State of Maharashtra (1973), the Court set aside the acquittal of Respondent no. 2 and held that unwarranted acquittals pose a threat to law and order.
Hence, the appeal is partly allowed.
Order passed by the Court
- Criminal appeal no.1006 was partly allowed.
- Appeal challenging acquittal of Respondent no.1 Ramesh Taurani was dismissed.
- Appeal challenging acquittal of Respondent no. 2 Abdul Rashid Dawood Merchant was partly allowed.
- Respondent no. 2 was convicted under Section 302 read with Section 120B, Section 34 of I.P.C. and Section 27 of Arms Act. He was sentenced as under:
- Imprisonment for life for an offence under Section 302 read with Section 34 and Section 120B and in default of payment of fine, rigorous imprisonment of 6 months.
- Rigorous imprisonment of 3 years and a fine of Rs. 2000 and in default to undergo rigorous imprisonment of 2 months for an offence under Section 25 of Arms Act.
- Respondent no. 2 was acquitted of an offence under Sections 307, 392 and 397 of I.P.C.
- The period already undergone by respondent no.2 during the pendency of the trial was allowed to be set off against the sentence awarded.
- The bail bonds of respondent no.2 were cancelled and he was ordered to surrender himself before the Sessions Court or the police.
The Gulshan Kumar Murder case is an important case not only because of the ghastly murder of a well-known figure but also because it involves an acute analysis and appreciation by the court of the evidence of the eye-witnesses whose sterling testimonies along with the corroborating circumstances constituted direct evidence to uphold the conviction of culprits.
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