State of Maharashtra thr.C.B.I Vs. Mujib Sharif Parkar
EmailAppeal: Criminal Appeal No. 415 of 2011
Petitioner: State of Maharashtra thr.C.B.I
Respondent: Mujib Sharif Parkar
Apeal: Criminal Appeal No. 415 of 2011
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Appearances:
Criminal Appeal No. 415 of 2011
Head Note:
Appeal against acquittal – No acts by Appellant A-131 beyond assisting in landing and transporting contraband – No other overt act done furthering the object of conspiracy – PW.2 approver not mentioning his name – Benefit of doubt given. Held, applying the parameters laid down for entertaining appeal against acquittal, no interference required. Mrinal Das & Ors. v. State of Tripura [JT 2011 (14) SC 434], relied upon.
Cases Reffered:
1. Mrinal Das & Ors. v. State of Tripura [JT 2011 (14) SC 434] (Para 388)
JUDGEMENT:
Dr. B.S. Chauhan, J.
381. This appeal has been preferred against the same impugned judgment and order dated 2.8.2007 passed by the Designated Court by which the respondent has been convicted under Section 3(3) TADA and awarded rigorous imprisonment for 5 years with a fine of Rs. 25,000/- and in default of payment of fine, to suffer further RI for 6 months. However, he has been acquitted of the general charge of conspiracy. Hence, this appeal by the State.
382. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that in addition to the general charge of conspiracy, the respondent (A-131) had been convicted for assisting the Tiger Memon (AA) and his associates in smuggling of arms, ammunition, handgrenades and explosives like RDX in India at Shekhadi, Dist. Raigarh and by purchasing empty gunny bags in the name of fictitious firms. Therefore, he has wrongly been acquitted of the charge of conspiracy.
383. Ms. Farhana Shah, learned counsel appearing for the respondent (A-131) has submitted that the basic evidence against the respondent (A-131) was the evidence of Usman (PW.2) who had been an accused and turned to be an approver and he did not refer to the respondent (A-131) in his confessional statement. More so, his evidence has not been corroborated by any other person. He had been involved in the case merely being the son of a landing agent of Tiger Memon (AA). The evidentiary value of the approver requires corroboration. Therefore, the appeal lacks merit and is liable to be dismissed.
384. We have considered the rival submissions made by learned counsel for the parties and perused the record.
384.1 The entire evidence against the respondent (A-131) has been referred to and as appreciated in the connected appeal no.207 of 2008, hence, for brevity sake does not require to be referred to herein.
385. So far as the charge of conspiracy is concerned, as accused A-131 had not transcended beyond the aforesaid acts having assisted and abetted Shekhadi landing and transportation operation and there was no other overt act and it was difficult to hold that he was involved in conspiracy. There was nothing to show that he committed any act furthering the object of conspiracy, beyond rendering assistance to the operation organized by his father alongwith other partners. The same made it extremely difficult to attribute knowledge of object of conspiracy to A-131. Therefore, he was given the benefit of doubt regarding the said charge and was held not guilty of conspiracy.
386. In view of the above, as the identity of accused (A-131) had not been fully disclosed by some of the accused and witnesses and even Usman (PW.2) who had involved respondent (A-131) in many activities did not mention his name in the confessional statement given by him. He (PW.2) further clarified in cross examination that he could not give any reason for not mentioning the name of the accused (A-131) in his confessional statement. Therefore, the respondent becomes entitled to the benefit of doubt.
387. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
388. More so, the evidence of Usman (PW.2) requires corroboration in view of the law laid down by this Court in Mrinal Das & Ors. v. State of Tripura [JT 2011 (14) SC 434].
388.1 In view of the above, we reach the inescapable conclusion that the appeal lacks merit. Thus, it is accordingly dismissed.
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381. This appeal has been preferred against the same impugned judgment and order dated 2.8.2007 passed by the Designated Court by which the respondent has been convicted under Section 3(3) TADA and awarded rigorous imprisonment for 5 years with a fine of Rs. 25,000/- and in default of payment of fine, to suffer further RI for 6 months. However, he has been acquitted of the general charge of conspiracy. Hence, this appeal by the State.
382. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that in addition to the general charge of conspiracy, the respondent (A-131) had been convicted for assisting the Tiger Memon (AA) and his associates in smuggling of arms, ammunition, handgrenades and explosives like RDX in India at Shekhadi, Dist. Raigarh and by purchasing empty gunny bags in the name of fictitious firms. Therefore, he has wrongly been acquitted of the charge of conspiracy.
383. Ms. Farhana Shah, learned counsel appearing for the respondent (A-131) has submitted that the basic evidence against the respondent (A-131) was the evidence of Usman (PW.2) who had been an accused and turned to be an approver and he did not refer to the respondent (A-131) in his confessional statement. More so, his evidence has not been corroborated by any other person. He had been involved in the case merely being the son of a landing agent of Tiger Memon (AA). The evidentiary value of the approver requires corroboration. Therefore, the appeal lacks merit and is liable to be dismissed.
384. We have considered the rival submissions made by learned counsel for the parties and perused the record.
384.1 The entire evidence against the respondent (A-131) has been referred to and as appreciated in the connected appeal no.207 of 2008, hence, for brevity sake does not require to be referred to herein.
385. So far as the charge of conspiracy is concerned, as accused A-131 had not transcended beyond the aforesaid acts having assisted and abetted Shekhadi landing and transportation operation and there was no other overt act and it was difficult to hold that he was involved in conspiracy. There was nothing to show that he committed any act furthering the object of conspiracy, beyond rendering assistance to the operation organized by his father alongwith other partners. The same made it extremely difficult to attribute knowledge of object of conspiracy to A-131. Therefore, he was given the benefit of doubt regarding the said charge and was held not guilty of conspiracy.
386. In view of the above, as the identity of accused (A-131) had not been fully disclosed by some of the accused and witnesses and even Usman (PW.2) who had involved respondent (A-131) in many activities did not mention his name in the confessional statement given by him. He (PW.2) further clarified in cross examination that he could not give any reason for not mentioning the name of the accused (A-131) in his confessional statement. Therefore, the respondent becomes entitled to the benefit of doubt.
387. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
388. More so, the evidence of Usman (PW.2) requires corroboration in view of the law laid down by this Court in Mrinal Das & Ors. v. State of Tripura [JT 2011 (14) SC 434].
388.1 In view of the above, we reach the inescapable conclusion that the appeal lacks merit. Thus, it is accordingly dismissed.
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