REPORTABL E

IN THE SUPREME COURT OF INDIA    CRIMINAL APPELLATE JURISDICTION

      CRIMINAL APPEAL NO. 537 OF 2009

Nilesh Dinkar Paradkar                        … Appellant (s)

VERSUS

State of Maharashtra                         …Respondent (s)

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. This  appeal  is  directed against  the  judgment  and  

order of the Bombay High Court dated 21st August,  

2008 passed in Criminal Appeal No. 1044 of 2006  

whereby  the  High  Court  dismissed  the  appeal  by  

confirming the conviction and sentence imposed on  

the  appellant  (A5)  by  the  Special  Judge  of  the  

Maharashtra Control of Organized Crime Act, 1999  

(hereinafter  referred to as “MCOC Act”)  in Special  

Case No. 3 of 2005.

2. The aforesaid appeal came up for hearing along with  

Criminal Appeal No. 1040 of 2006 filed by original  

accused No. 1, Vinod Sitaram Yadav @ Bapu and  

the original accused No.3, Jagdish Bhaskar Shetty  

@ Raghu.  Criminal  Appeal  No.  1048 of  2006 has  

been filed by original accused No.4, Amit Suryakant  

Dalvi  and Criminal  Appeal  No.  1049 of  2006 has  

been  filed  by  original  accused  No.2,  Vishwanath  

Atmaram Jadhav.

PROSECUTION CASE

3.  According to the prosecution, accused Nos. 1, 2, 3  

and 5 are  active  members of  the  organized  crime  

syndicate  of  Chhota  Rajan.   Accused  No.  4  has  

aided, abetted and conspired with accused Nos. 1,  

2,  3  and  5  in  commission  of  various  offences  

punishable under the MCOC Act.  It had come to  

the notice of the police that there was a conspiracy  

to eliminate a prominent businessman of Mumbai,  

namely Bharat Shah.  The plan was to kill him at  

the pan shop near ‘Mehta Bhuvan’.   The office of  

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Bharat Shah is situated at ‘Mehta Bhuvan’, Charni  

Road, Mumbai.  In order to successfully carry out  

the assassination, movements of Bharat Shah were  

kept  under  close  watch.   His  office  timings  were  

communicated to these accused through telephone  

no.  0060133402008  by  Bharat  Nepali.  The  

information about the conspiracy was received on or  

before 14th October, 2004 by D.C.P. (Detection), Mr.  

Dhananjay  Dattatraya  Kamlakar,  PW-42  from  his  

sources.   He  was  informed  that  gangster  Chhota  

Rajan, his gang members, and Bharat Nepali were  

communicating  with  the  associates  and  other  

members  of  their  syndicate  on  the  aforesaid  

telephone number.  According to the information of  

PW-42,  the  telephone  number  was  of  Malaysian  

origin.   Although, the aforesaid telephone number  

was under surveillance of P.S.I. Vijay Dalvi    (PW-

17) since 1st October, 2004, on receipt of the definite  

information with regard to the conspiracy, a request  

was put up to the Additional Chief Secretary (Home)  

seeking  permission  to  intercept  the  aforesaid  

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telephone number.  The request was made on 14th  

October, 2004 and it was approved on 20th October,  

2004.

4. Although the tapping of the aforesaid telephone had  

been officially  approved  since  20th October,  2004,  

P.S.I.  Dalvi  (PW-17)  did  not  hear  any  worthwhile  

conversation till 28th October, 2004.  On that day,  

he intercepted and recorded a conversation on the  

aforesaid  telephone  number.   According  to  the  

prosecution,  this  was a  conversation  between the  

absconding accused Bharat Nepali on one hand and  

the accused Nos. 1, 2 and 5 on the other hand.  The  

duration of the conversation recorded was of 9.16  

minutes.   The  recorded  conversation  revealed  a  

conspiracy to spread terror in the Dawood group in  

Mumbai.   The  conversation  was  also  about  the  

nature of the weapons to be used; the manner in  

which  the  assassination  was  to  be  carried  out;  

behaviour of the assassin in the completion of the  

alleged crime;  use of  the weapons,  i.e.,  one being  

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.45  revolver  and  the  other  three  being  .38  bore  

revolver.  The conversation on the telephone having  

been recorded,  PW-17 noted the date and time of  

the  cassette.   He  took  the  cassette  to  the  senior  

officer, D.C.P. Kamlakar,     PW-42.  On receipt of  

cassette, D.C.P. Kamlakar played the cassette and  

heard the details about the conspiracy.

5. It  is  further  the  case  of  the  prosecution that  five  

accused  and  Bharat  Nepali  have  contacted  each  

other  on their  respective  cell  phones.   The entire  

conspiracy  was hatched on the  cell  phones.   The  

police had, therefore, obtained printouts of the cell  

phones  of  the  accused  from  the  concerned  

telephone  companies.   The  numbers  of  those  cell  

phones of the accused were as follows:-

Accused No.1 9819861417

Accused No.2 9819240297, 38096524

Accused No.3  9890299354

Accused No.4 38950501

Accused No.5 9892849523, 9892367596,  

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9892296496, 9892295687

Bharat Nepali 0060133402008 (absconding accused)

6. It  appears  that  Amit  Dalvi,  accused  No.  4  had  

rented a flat on Leave and Licence basis, on the first  

floor  of  a  building  known  as  ‘Ambika  Niwas’,  

Girgaum (Mumbai).   The room had been taken in  

the name of Sachin Patil.   The Leave and Licence  

agreement was signed on 17th October,  2004.  All  

the  accused  were  regularly  using  the  aforesaid  

premises.  

7. On 7th November, 2004, P.I. Nagesh Lohar received  

some reliable information at about 5.00 p.m. that  

members  of  Chhota  Rajan  gang  were  staying  in  

Girgaum area.  He was also informed that they had  

planned  to  kill  a  prominent  businessman  in  the  

locality  (Bharat  Shah) on the directions of  Bharat  

Nepali,  who was the  henchman of  Chhota  Rajan.  

The  Police  Inspector  Lohar  communicated  this  

information to his staff and asked them to assemble  

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at  5.30  a.m.  on  the  next  day  morning  as  the  

informant had told him that he was working on the  

information  and  will  confirm  the  same  only  next  

morning.   On 8th November,  2004,  the  informant  

again arrived at the office of P.I. Lohar at about 5.00  

a.m.  and  supplied  further  information.  He  stated  

that about five members of the Chhota Rajan gang  

were  residing  in  Girgaum  and  they  were  in  

possession of lethal weapons.  Name of one of the  

members was Mr. Bapu, accused    No. 1.

8. Police Inspector, Lohar called the officers and staff,  

who were present in the office and told them that  

they would have to act upon the information.  He  

told one of the Constable Gaikwad, to go and bring  

two respectable Panchas. Consequently, PW-1, Hiro  

Khatri  was  joined  as  a  Panch  witness.   He  was  

introduced  to  the  police  party  as  well  as  the  

informant.  He was told the purpose of raid and why  

the police party has assembled.  On                8th  

November,  2004,  raid  was  duly  conducted  at  the  

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rented premises. They reached first floor and found  

the door of the flat was half open.  Standing next to  

the door, P.S.I. Jadhav listened to the conversation  

within the flat.  He had heard one male voice saying  

the following words:-  

“As the game was not hot, Nana and Bharat  Nepali were frustrated.  That man is going to  the office.  Nilesh Paradkar (A5) had called us  to the spot at 10.00 a.m. He was going to come  along  with  Ajay.   So  we  must  finish  him  today.”   He heard another  male  voice  saying  that “we will finish him today. You cause him  to fall down by firing four bullets in his chest  and he will fire four five shots in his head.”

9. In the mean time, P.I. Lohar also reached the first  

floor  and  on  signal  being  given,  they  entered  the  

room.  All the four accused persons were sitting on  

the mat.  They were immediately apprehended.  P.I.,  

Lohar  disclosed  his  identity  and  asked  for  

explanation about their presence in the room.  They  

could not give any satisfactory explanation.  Each of  

the four persons were then searched.

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10. Accused  No.1  was  searched  by  A.P.I.  Pasalwar,  

PW-38.  The search of accused No.1 revealed that  

he was in possession of one pistol of .45 bore of Colt  

make  which  was  tucked  on  the  right  side  waist  

portion of his pant.  On opening its magazine, the  

pistol was found to contain seven live cartridges. A  

cell phone was also recovered from the shirt pocket  

of A1.  On being asked, he disclosed his telephone  

number  as  9819862417.   A.P.I.  Pasalwar  opened  

the  cell  phone  and  removed  the  sim  card.  On  

further  search  of  this  accused,  13  live  cartridges  

with inscription of .45 were found from the trouser  

pocket of this accused.  The pocket also contained a  

chit  with  some  mobile  phone  numbers.   The  

accused was also having two colour photocopies of  

the photographs of an individual.   On the reverse  

side of the photocopies, some numbers and words  

BMW Neela (blue), Lexus 25, 123 Kala (black) were  

written.  Search was also conducted of A2, which  

led to the recovery of .38 bore revolver of Smith and  

Wesson Company.  It had six chambers of the pistol  

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loaded with six live cartridges.  One blue colour cell  

phone of Nokia company model 2100 was recovered  

from  the  shirt  pocket.   His  leather  wallet  also  

contained a chit with mobile numbers.  He was also  

carrying  color  photocopies  of  photograph of  same  

person. In this photocopy, face of  the person was  

encircled.  On  the  reverse  side  of  the  said  

photographs, words were written in Devnagari script  

“Charni road station javal, Mehta Bhuvan”. He also  

disclosed  his  cell  phone  number  as  9819240297.  

Similar search of accused No.3 produced .38 bore  

revolver kept into left side of his pant waist.  The  

revolver was of Smith and Wesson make. It had five  

chambers loaded with five  live  cartridges.  He was  

also  carrying  a  silver  colour  cell  phone  of  Nokia  

company.   This  accused  disclosed  his  mobile  

number  as  9890299354.  This  accused  was  also  

carrying a chit with names and phone numbers of  

Bharat Nepali, Balu Dhokare, Visha and Bapu.  He  

was  also  carrying  photocopies  of  the  colour  

photograph of  the  same person as  the  one found  

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with accused Nos. 1 and 2.  Under the photocopy  

car  No.  BMW  MH01  T125  was  written.  It  also  

carried  the  same  words  ‘Mehta  Bhuvan’,  Opera  

House.   The  search  of  accused  No.4  similarly  

produced a cell phone and photograph and the chit.  

Number of other articles were also recovered lying in  

the rented room.  The four accused were arrested  

and brought to the police station.

11. Thereafter formalities of registration of crime under  

DCB CID were completed.  CR No. 258 of 2004 was  

registered with V.P. Road Police Station, Mumbai for  

offences punishable under Sections 302, 115, 120  

(B)  of  IPC and under Section 3, 7,  and 25 of  the  

Arms Act.  Thereafter, approval was also granted on  

20th November,  2004  to  apply  the  provisions  of  

MCOC Act.  

12. On 25th November, 2004, accused No.2, Vishwanath  

Jadhav  and  accused  No.4,  Amit  Dalvi  voluntarily  

made  statements  before  the  I.O.  Valishetty  

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indicating  their  willingness  to  make  confession  

statements.   It  appears  that  first  part  of  the  

confession  of  accused  No.4  was  recorded  on  29th  

November,  2004  and  the  second  part  on  1st  

December,  2004.   Similarly,  the  confessional  

statement  of  accused  No.  2,  Vishwanath  Jadhav  

was  recorded  on  30th November,  2004  and  on  

1st December,  2004.   On 7th December,  2004 the  

identification  parade  was  held  in  so  far  as  the  

accused Nos. 1, 2, 3 and 4 were concerned, PW-2  

and PW-12 identified accused No. 4 as the person,  

who had been seen by them during the time of grant  

of lease and licence in respect of the rented room in  

‘Ambika Niwas’ belonging to mother of PW-2.  Both  

the confession statements were denied by A2 and  

A4 on 17th December, 2004 on the ground that it  

had been obtained under duress and threats that  

their family members would be falsely involved as  

accused in the crime.

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13. On verification of the sim cards of the accused, it  

was found that only the sim cards of accused No. 4  

stood in  his  own name.   The  sim cards  allegedly  

belonging to accused No.2 Vishwanath stood in the  

name of one Sandeep Mhatre and Ayub Bakar. The  

names  of  sim  card  holders  in  the  cell  phones  

recovered  from  accused  Nos.  3  and  5  were  not  

brought on record.  The record also indicates that  

the  print  out  in  respect  of  telephone        No.  

9892367596  allegedly  used  by  the  appellant,  i.e.,  

accused No.5 was received by the police on or about  

14th January, 2005. The print out indicates that at  

about  5.55  p.m.,  there  was  a  call  of  about  9.16  

minutes  on  the  telephone.  The  number  was  

allegedly  used  by  absconding  accused  Bharat  

Nepali.  The print out of                       Cell No.  

0060133402008 was forwarded to the police by the  

BSNL  by  letter  dated  18th January,  2005(Ex.71).  

This  print  out  also  confirms  that  there  was  a  

telephone  conversation  at  5.55  p.m.  on  28th  

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January, 2004 of about 9.15 minutes.  The number  

mentioned there was that of the appellant.   

14.    We may now briefly notice the further facts as  

brought  on  record  by  the  prosecution.   On  15th  

January,  2005,  PW-41,  A.C.P.  Vinayak  Kadam  

asked PW-42, D.C.P. (Detection),  Mr. Kamlakar as  

to whether he had intercepted any communication  

on  telephone  number  0060133402008.   On  17th  

January, 2005,                   Mr. Kamlakar, D.C.P.  

(Detection),  PW-42  asked  P.S.I.  Dalvi,  PW-17  to  

handover the sealed cassette to        A.C.P. Kadam  

on 18th January,  2005. The sealed cassettes were  

duly  handed  over  to  A.C.P.  Kadam  on      18th  

January,  2005.   A.C.P  Kadam  was  aware  that  

A.C.P.  Tejasingh  Chavan,  PW-18  had  arrested  

absconding  accused  Bharat  Nepali  on  11th  

February,  1997.  He  was  also  aware  that  Jagdish  

Kulkarni, PW-19 had earlier arrested the appellant  

on 2nd March, 2002.  The Cassette was, therefore,  

duly  played  in  the  presence  of  Panchas  and  the  

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aforesaid police officers.  In this manner, the voice  

test  identification  was  stated  to  have  been  

conducted.  The voice was also said to have been  

identified  as  belonging  to  the  appellant  and  to  

absconding accused Bharat Nepali by PW-18, ACP  

Tejasingh Chavan and PW-19, Jagdish Kulkarni.  It  

is also the case of the prosecution that A.P.I. Raut,  

who was Investigating Officer, identified the voice of  

A2, Vishwanath Jadhav.  A.P.I. Pasalwar, PW-38, is  

stated to have identified the voice of accused Vinod  

(A1).   The  Panchnama  was  duly  prepared.  

Transcript  of  the conversation incorporated in the  

Panchnama (Ex.45) was proved through Panch Anil  

Shukla, PW-11.

15. It  is  further  the  case  of  the  prosecution  that  the  

appellant  was  arrested  on  30th March,  2005  in  

connection  with  another  case  registered  at  Nerul  

Police Station. His custody was duly transferred to  

the present case on 12th April, 2005. After obtaining  

the custody, a further identification parade was held  

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on 16th April, 2005 in respect of the appellant.  It is  

a matter of record that Vithal Saliyan, PW-7 was the  

only witness, who was put up as an identification  

witness.  This witness duly identified the appellant  

as  the  person  who  used  to  visit  ‘Zunka  Bhakar’  

Stall,  situated  near  the  office  of  the  victim,  Mr.  

Bharat Shah.  It is however, noteworthy that this  

witness could not identify the appellant in Court.

16. It  is  further  the  case  of  the  prosecution  that  

on 13th May, 2005, the appellant made a voluntary  

statement to the effect that he had concealed the  

revolver  in  Sawantwadi  Town  in  District  

Sindhudurga.  According  to  the  prosecution,  the  

appellant  led  the  police  to  the  house  where  his  

cousin sister Afroza was staying.  Behind the south  

side of the house, he dug out a weapon which was  

kept  in  a  plastic  bag  and buried  in  the  soil.  The  

revolver so discovered was a .38 bore revolver.  It  

was seized and wrapped in a plastic cover sealed by  

the police.  On completion of the investigation, the  

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Commissioner  of  Police  granted  sanction  for  

prosecution  of  appellant  on  6th July,  2005.   On  

receipt of the sanction, additional charge sheet was  

filed against the appellant on 7th July, 2005.   

17. In due course, charges were framed against all the  

accused  on  8th December,  2005  under  relevant  

provisions of MCOC Act, IPC, and Arms Act. Since  

all the accused had pleaded not guilty, they were all  

put on trial.  

18. The  Trial  Court  convicted  all  the  five  accused  as  

under:-

“1) Charge head firstly is not considered as it  is  repetition  in  charge  heads  secondly,  thirdly and fifthly.

2). Accused Nos. 1 to 5 are held guilty for the  offence punishable under Section 3(1)(iii)  r/w Sec. 3(2) of the MCOC Act, 1999 and  are  sentenced  to  suffer  RI  for  5  (five)  years and to pay a fine of  Rs.5,00,000/-  (Five  lacs),  each,  in  default,  to  suffer  further RI for 1 (One) year.

3)  Accused Nos. 1, 2, 3 and 5 are held guilty  for  the  offence  punishable  under  Section 3(4) of the MCOC Act, 1999 and  are sentenced to suffer RI for  7 (seven)  years and to pay a fine of Rs.5,00,000/-  

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(Five  lacs),  each,  in  default,  to  suffer  further RI for 1 (one) year . Accused No.4  is not held guilty U/Sec.3(4) of the MCOC  Act and is acquitted from the said charge.

4) Accused Nos. 4 and 5 are held guilty for  the offence punishable under Section 3(5)  of  the  MCOC  Act,  1999  and  are  sentenced to suffer RI for 3(three) years  and  to  pay  a  fine  of  Rs.2,00,000/-(two  lacs), each in default, to suffer further RI  for 6(six) months.  Accused Nos. 1, 2 and  3  are  not  held  guilty  U/Sec.3(5)  of  the  MCOC Act, 1999 and are acquitted from  the said charge.

5) Accused Nos. 1,  2,  3,  4 and 5 are held  guilty  for  the  offence  punishable  under  Section 120-B r/w Sec.302 r/w Sec.115  of  IPC are  sentenced  to  suffer  RI  for  3  (three)  years  and  to  pay  a  fine  of  Rs.10,000/-(ten  thousand),  each.   In  default,  to  suffer  further  RI  for  6  (six)  months.

6)  Accused Nos. 4 and 5 are held guilty for  the offence punishable under Section 419  r/w Sec.120-B of IPC and are sentenced  to suffer RI for 1 (one) year.  Accused Nos.  1, 2 and 3 are not held  guilty U/Sec.419  r/w Sec.120-B of IPC and are acquitted  from the said charge.

7) Accused Nos. 1, 2 and 3 are held guilty  for  the  offence  punishable  under  Sec.3  r/w Sec. 25 of the Indian Arms Act, 1959  and  are  sentenced  to  suffer  RI  for  3  (three) years and to pay fine of Rs.5,000/-  (five thousand) each, in default, to suffer  further  RI  for  6(six)  months.  Accused  No.4, is not held guilty U/Sec. 3 r/w 25  of the Indian Arms Act and is acquitted  from the said charge.

8)  Accused No.5  is  not  held  guilty  for  the  offence  punishable  under  Sec.3  r/w  

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Sec.25 of the Indian Arms Act, 1959 and  is acquitted from the said charge.

9)  Accused No.4 is held guilty for the offence  punishable  under  Sec.36  r/w Sec.30  of  the  Indian  Arms  Act,  1959  and  is  sentenced to suffer RI for 6 (six) months.

10)  All  the  substantive  sentences  to  run  concurrently.

11) Accused  are  entitled  to  set  off  for  the  period already undergone in custody.”

19. From the  above,  it  is  evident  that  the  trial  court  

acquitted  the  appellant,  herein  of  charges  under  

Section 3 read with Section 25 of the Indian Arms  

Act.   

20. The aforesaid judgment and order of conviction and  

sentence was challenged by the accused Nos. 1 and  

3 in Criminal Appeal No. 1040 of 2006, by accused  

No.5 (appellant herein) in Criminal Appeal No. 1044  

of  2006,  by accused No.4 in Criminal  Appeal  No.  

1048  of  2006  and  by  accused  No.2  in  Criminal  

Appeal No. 1049 of 2006.

21. All the appeals were heard together and disposed off  

by  a  common judgment  dated  21st August,  2008.  

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The High Court was pleased to allow the appeals of  

original  accused  Nos.  1,  2,  3  and  4.   They  were  

acquitted  of  all  the  charges  leveled against  them.  

However,  the  appeal  filed  by  the  appellant  was  

dismissed  by  confirming  the  conviction  and  

sentence awarded by the Special Court.  It may also  

be noteworthy here that the acquittal of appellant  

under Section 3 read with Section 25 of the Arms  

Act  was  not  challenged  by  the  prosecution/State.  

Therefore, the findings and acquittal regarding the  

same have become final and binding.

22. Aggrieved  by  the  judgment  of  the  High  Court  in  

Criminal  Appeal  No.  1044  of  2006,  the  appellant  

has filed the present special leave petition.

23. We have heard the learned counsel for parties.   

24. Mr.  Shekhar  Naphade  submitted  that  the  High  

Court disbelieved the prosecution version in so far  

as  the  accused A1 to  A4 are  concerned.   Having  

20

disbelieved  the  prosecution  version  against  A1  to  

A4,  the  High  Court  committed  a  grave  error  in  

upholding  the  conviction  of  the  appellant.   He  

submits that the evidence against A1 to A4 and the  

appellant is identical.  The High Court has made a  

distinction in the case of appellant only on the basis  

of the voice identification evidence. Learned counsel  

further  submitted  that  the  High  Court  has  

committed  a  grave  error  in  treating  the  voice  

identification  evidence  as  substantive  evidence.  

Such  evidence  could  at  best  be  used  as  

corroboration of the other independent evidence.  In  

support  of  the  submission,  learned counsel  relied  

on the judgments in Mahabir Prasad Verma Vs. Dr.  

Surinder kaur  1  , Ram Singh And Ors. Vs. Col. Ram  

Singh  2   and  People’s  Union  for  Civil  Liberties  

(PUCL) Vs. Union of India & Ors.  3    

1 1982 (2) SCC 258 2 1985 (Supp.) SCC 611 3 1997 (1) SCC 301

21

25. We are of the considered opinion that there is much  

merit  in  the  submissions  made  by  Mr.  Naphade.  

While  acquitting  accused  Nos.  1  to  4,  the  High  

Court recorded that the defence had succeeded in  

creating a grave doubt about the veracity of search  

and  seizure  alleged  to  have  taken  place  on  8th  

November, 2004. This conclusion has been reached  

by the High Court on appreciation of the evidence  

on  the  record.   The  High  Court  disbelieved  the  

prosecution  version  with  regard  to  the  entire  

sequence of events leading to the raid.  The High  

Court observed as follows:-

“Thus, in my view the defence have succeeded  in  creating  a  reasonable  doubt  about  the  prosecution case that accused Nos. 1 to 4 were  spotted  and  apprehended  at  Ambika  Niwas  building on 8.11.2004.  The defence case that  the  accused  were  in  fact  picked  up  on  3.11.2004  by  the  police  appears  to  be  very  probable.  Unfortunately, if the defence version  is found to be probable, then the entire case of  the  prosecution  regarding  the  finding  of  various incriminating articles from the persons  of the accused for the first time on 8.11.2004  and the seizure of three loaded revolvers, live  cartridges,  four  zerox  copies  of  the  photographs  of  the  victim,  four  mobiles  and  four slips are rendered suspect and must also  be therefore, disbelieved.  It would have been  

22

far  better  for  the  prosecution  if  the  investigation would have recorded the true and  correct  facts.   It  may  be  mentioned  that  as  regards  the  search  and seizure  said  to  have  been  carried  out  on  8.11.2004,  not  a  single  independent  witness  has  been  examined.  Admittedly, there were several neighbours and  the statements of some of these persons were  alleged  to  have  been  recorded  but  none  of  these persons were produced as witnesses in  the  trial.   The  accused  Nos.  1,  2,  3  and  4  herein must therefore, get benefit of doubt as  regards  the  circumstance  of  finding  incriminating  articles  during  the  search  and  seizure of articles said to have been seized by  the police on 8.11.2004.”  

26. The trial court had discarded the voice identification  

of accused Nos. 1 and 2.  The High Court did not  

see any reason to differ with the aforesaid finding.  

The High Court  even after  personally  hearing  the  

conversation between the Bharat Nepali on the one  

hand and accused Nos. 1 and 2 on the other hand,  

disbelieved the voice identification.  It was held to  

be  not  established  beyond  reasonable  doubt.  

Similarly,  with  regard  to  the  alleged  confession  

made  by  accused  Nos.  2  to  4,  the  High  Court  

observes  that  “Both  these  confessions  make  clear  

reference  to  the  evidence  of  search  and  seizure  

23

which according to the prosecution took place on 8th  

November, 2004 and which does not appear to be  

true”.  Both  the  confessions  were  rejected  as  a  

whole.  The High Court even disbelieved the story of  

the prosecution with regard to accused No.4 taking  

room at ‘Ambika Niwas’ on Leave and Licence basis.  

As  a  consequence  of  the  aforesaid  facts,  accused  

Nos. 1, 2, 3 and 4 were acquitted.  

27.  In our opinion, these conclusions recorded by the  

High Court have destroyed the entire substratum of  

the prosecution case. Having disbelieved the entire  

prosecution  version,  the  High  Court  proceeds  to  

distinguish  the  case  of  the  appellant.  The  only  

additional  circumstance  relied  upon  by  the  High  

Court  against  the  appellant  is  that  his  voice  was  

identified  by  the  officer  Jagdish  Kulkarni,  PW-19,  

who had taken him in custody.  The voice of Bharat  

Nepali  was  also  identified  by  PW-18,  A.C.P.  

Tejasingh Chavan.

24

28. We are of the considered opinion that the approach  

adopted by the High Court was wholly erroneous.  

Having  disbelieved  the  voice  identification  in  the  

case of accused Nos. 1 and 2, there was no reason  

to  adopt  a  different  yardstick  in  the  case  of  the  

appellant  herein.   The  High  Court  discarded  the  

evidence  of  PW-36,  A.P.I.  Dilip  Raut  and  PW-38,  

A.P.I. Pasalkar mainly on the ground            that  

they  were  accompanying  the  raiding  party  

on 8th November, 2004 and had not heard the voice  

of  accused  Nos.  1  and  2  prior  thereto.   Another  

reason given by the High Court is that these officers  

being  members  of  the  investigating  team  were  

interested  in  successful  completion  of  the  

investigation.   But  the  same  yardstick  was  not  

applied  to  the  voice  identification  of  absconding  

accused Bharat  Nepali  by  Tejasingh Chavan,  PW-

18.   He was also attached to DCP CID when the  

present offence was registered.  He would, therefore,  

also be equally interested in successful completion  

of the investigation.

25

29. Similarly,  voice  identification  of  the  appellant  by  

Jagdish Kulkarni, PW-19 would also suffer from the  

same weakness as he was also attached to the office  

of DCP CID.  The High Court also ignored the fact  

that the witnesses were being asked to identify the  

voice of Bharat Nepali, which they had last heard in  

the year 1997.  Similarly, PW-19, Jagdish Kularni  

had only heard the voice of  appellant  in the year  

2002.

30. In our opinion, the evidence of voice identification is  

at best suspect, if not, wholly unreliable.  Accurate  

voice  identification  is  much  more  difficult  than  

visual identification.  It is prone to such extensive  

and sophisticated tampering, doctoring and editing  

that  the  reality  can  be  completely  replaced  by  

fiction. Therefore, the Courts have to be extremely  

cautious  in  basing  a  conviction  purely  on  the  

evidence  of  voice  identification.   This  Court,  in  a  

number of judgments emphasised the importance of  

26

the precautions, which are necessary to be taken in  

placing  any  reliance  on  the  evidence  of  voice  

identification.   In  the  case  of  Ziyauddin  

Burhanuddin  Bukhari Vs.  Brijmohan  Ramdass  

Mehra  &  Ors.  4  ,  this  Court  made  following  

observations:-

“We think that the High Court was quite right  in  holding  that  the  tape-records  of  speeches  were “documents”, as defined by Section 3 of  the Evidence Act, which stood on no different  footing than photographs, and that they were  admissible  in  evidence  on  satisfying  the  following conditions: “(a) The  voice  of  the  person  alleged  to  be  

speaking must be duly identified by the  maker  of  the  record  or  by  others  who  know it.

(b) Accuracy of  what  was actually  recorded  had  to  be  proved  by  the  maker  of  the  record and satisfactory evidence, direct or  circumstantial,  had to be there so as to  rule  out  possibilities  of  tampering  with  the record.

(c) The  subject-matter  recorded  had  to  be  shown to be relevant according to rules of  relevancy found in the Evidence Act.”

(emphasis supplied)

4 (1976) 2 SCC 17

27

In the case of  Ram Singh & Ors. Vs. Col. Ram Singh  5  ,  

again this Court stated some of the conditions necessary  

for admissibility of tape recorded statements, as follows:-  

“(1) The  voice  of  the  speaker  must  be  duly  identified by the maker of the record or  by  others  who  recognise  his  voice.  In  other  words,  it  manifestly  follows  as  a  logical  corollary  that  the  first  condition  for the admissibility of such a statement  is  to  identify  the  voice  of  the  speaker.  Where the voice has been denied by the  maker it will  require very strict proof to  determine whether or not it was really the  voice of the speaker.

(2) The  accuracy  of  the  tape-recorded  statement has to be proved by the maker  of the record by satisfactory evidence —  direct or circumstantial.

(3) Every  possibility  of  tampering  with  or  erasure  of  a  part  of  a  tape-recorded  statement must be ruled out otherwise it  may  render  the  said  statement  out  of  context and, therefore, inadmissible.

(4) The  statement  must  be  relevant  according to the rules of Evidence Act.

(5) The recorded cassette must be carefully  sealed and kept in safe or official custody.

(6) The voice of the speaker should be clearly  audible and not lost or distorted by other  sounds or disturbances.”

In  Ram Singh’s  case  (supra),  this  Court  also  notices  

with  approval  the  observations  made  by  the  Court  of  

5 1985 (Supp) SCC 611

28

Appeal in England in the case of R. Vs. Maqsud Ali  6  .    In  

the aforesaid case, Marshall, J. observed thus:-

“We can see no difference in principle between  a tape-recording and a photograph. In saying  this we must not be taken as saying that such  recordings  are  admissible  whatever  the  circumstances,  but  it  does  appear  to  this  Court  wrong  to  deny  to  the  law  of  evidence  advantages  to  be  gained  by  new  techniques  and new devices, provided the accuracy of the  recording  can  be  proved  and  the  voices  recorded properly identified; provided also that  the  evidence  is  relevant  and  otherwise  admissible,  we  are  satisfied  that  a  tape- recording  is  admissible  in  evidence.  Such  evidence should always be regarded with some  caution  and  assessed  in  the  light  of  all  the  circumstances of each case. There can be no  question of laying down any exhaustive set of  rules  by  which  the  admissibility  of  such  evidence should be judged.”

To the same effect is the judgment in the case of R. Vs.  

Robson  7  , which has also been approved by this Court in  

Ram Singh’s case (supra).  In this judgment, Shaw, J.  

delivering  the  judgment  of  the  Central  Criminal  Court  

observed as follows:-

“The determination of the question is rendered  more difficult because tape-recordings may be  altered  by  the  transposition,  excision  and  insertion  of  words  or  phrases  and  such  alterations  may  escape  detection  and  even  elude it on examination by technical experts.  

6 (1965) 2 AER 464 7 (1972) 2 AER 699

29

31. Chapter  14  of  Archbold  Criminal  Pleading,  

Evidence and Practice8 discuss the law in England  

with regard to Evidence of Identification.  Section 1  

of this Chapter deals with Visual Identification and  

Section II relates to Voice Identification.  Here again,  

it  is  emphasised  that  voice  identification  is  more  

difficult than visual identification.   Therefore, the  

precautions  to  be  observed  should  be  even  more  

stringent than the precautions which ought to be  

taken in relation to visual identification.  Speaking  

of  lay  listeners  (including  police  officers),  it  

enumerates the factors which would be relevant to  

judge  the  ability  of  such  lay  listener  to  correctly  

identify the voices. These factors include:-  

“(a) the  quality  of  the  recording  of  the  disputed voice,  

(b) the  gap  in  time  between  the  listener  hearing the known voice and his attempt  to recognize the disputed voice,  

(c) the  ability  of  the  individual  to  identify  voices in general (research showing that  this varies from person to person),  

8  2010 edition at pg: 1590-91

30

(d) the  nature  and  duration  of  the  speech  which is sought to be identified and  

(e) the  familiarity  of  the  listener  with  the  known  voice;  and  even  a  confident  recognition of  a familiar  voice  by a way  listener may nevertheless be wrong.”  

The Court of Appeal in England in R Vs. Chenia  9   and R.  

Vs.  Flynn and St. John  10   has reiterated the minimum  

safeguards which are  required to be observed before  a  

Court can place any reliance on the voice identification  

evidence, as follows:-

“(a) the voice  recognition exercise should be  carried  out  by  someone  other  than  the  officer investigating the offence;

(b)proper  records  should  be  kept  of  the  amount  of  time  spent  in  contact  with  the  suspect  by  any  officer  giving  voice  recognition evidence,  of  the  date  and time  spent by any such officer in compiling any  transcript of a covert recording, and of any  annotations  on  a  transcript  made  by  a  listening  officer  as  to  his  views  as  to  the  identify of a speaker; and  

(c) any  officer  attempting  a  voice  recognition  exercise  should  not  be  provided  with  a  transcript  bearing  the  annotations  of  any  other officer.”   

In  America,  similar  safeguards  have  been  evolved  

through a series of judgments of different Courts.  The  

9 [2003] 2 Cr. App. R. 6 CA 10 [2008] 2 Cr.APP.R.20,CA

31

principles  evolved  have  been summed up  in  American  

Jurisprudence 2d (Vol. 29) in regard to the admissibility  

of tape recorded statements, which are stated as under:-

“The cases are in general agreement as to what  constitutes  a  proper  foundation  for  the  admission of a sound recording, and indicate a  reasonably  strict  adherence  to  the  rules  prescribed  for  testing  the  admissibility  of  recordings,  which  have  been  outlined  as  follows:

(1) a showing that the recording device  was capable of taking testimony;

(2) a showing that the operator  of  the  device was competent;

(3) establishment  of  the  authenticity  and correctness of the recording;

(4) a showing that changes,  additions,  or deletions have not been made;

(5) a  showing  of  the  manner  of  the  preservation of the recording;

(6) identification of the speakers; and  (7) a  showing  that  the  testimony  

elicited  was  voluntarily  made  without any kind of inducement.

... However, the recording may be rejected if it  is  so  inaudible  and  indistinct  that  the  jury  must speculate as to what was said. (emphasis  supplied)”

32. This apart, in the case of  Mahabir Prasad Verma  

Vs.  Dr. Surinder Kaur  11  , this Court has laid down  

that  tape  recorded  evidence  can  only  be  used  as  

11 (1982) 2 SCC 258

32

corroboration  evidence  in  paragraph  22,  it  is  

observed as follows:-  

“Tape-recorded conversation can only be relied  upon as corroborative evidence of conversation  deposed  by  any  of  the  parties  to  the  conversation and in the absence of evidence of  any  such  conversation,  the  tape-recorded  conversation is indeed no proper evidence and  cannot  be  relied  upon.  In  the  instant  case,  there  was  no  evidence  of  any  such  conversation  between  the  tenant  and  the  husband of the landlady; and in the absence of  any  such  conversation,  the  tape-recorded  conversation could be no proper evidence.”

33. In our opinion,  the High Court  has failed to take  

into consideration any of the precautions indicated  

above  in  accepting  the  evidence  of  Tejasingh  

Chavan, PW-18 and Jagdish Kulkarni, PW-19 with  

regard to the identification of Bharat Nepali and the  

appellant.   The  High  Court,  in  our  opinion,  has  

given  a  wholly  erroneous  justification  by  holding  

that the voice of both the accused are distinctive,  

clear and identifiable. It is further observed that the  

conversation between the two accused is not a short  

conversation as in the case of accused   Nos. 1 and  

2.  The High Court was also influenced by the fact  

33

that accused Bharat Nepali was in the custody of  

Tejasingh Chavan, PW-18 for a period of two weeks.  

Similarly, appellant was in the custody of Jagdish  

Kulkarni,  PW-19 for  a  substantial  period of  time.  

Therefore, their voice identification was held to be  

reliable.  This reasoning of the High Court is a mere  

repetition of the reasons given by the trial court.   

34. We  are  of  the  considered  opinion  that  there  is  

hardly any distinction in the evidence with regard to  

the voice identification of accused Nos. 1 and 2 on  

the one hand and Bharat Nepali and the appellant  

on the other hand.

35. In  our  opinion,  the  voice  test  identification  by  

PW-19,  Jagdish  Kulkarni  is  even  otherwise  

unreliable.  The voice identification was conducted  

without  taking  any  precautions  similar  to  the  

precautions  which  are  normally  taken  in  visual  

identification  of  suspects  by  witnesses.   It  is  a  

matter  of  fact  that  PW-19,  Jagdish  Kulkarni  was  

34

informed  in  advance  that  he  had  to  identify  the  

voice  of  the  appellant.  Similarly,  PW-18  was  

informed that he had to identify the voice of Bharat  

Nepali. No attempt was made even to mix the voices  

of Bharat Nepali and the appellant with some other  

unidentified  voices.   In  such  circumstances,  the  

voice identification evidence would have little value.  

It appears that the exercise was performed only for  

the record.

36. This  apart,  there  is  no  evidence  on  record  to  

indicate  that  the  mobile  No.  0060133402008 was  

that  of  the  absconding  accused  Bharat  Nepali.  

There is  also no evidence to indicate that he was  

using  said  number  except  voice  identification  by  

Tejasingh  Chavan,  PW-18.  There  is  no  other  

material  on the record to connect  the absconding  

accused  Bharat  Nepali  with  the  number  allegedly  

used  by  him.   Similarly,  there  is  nothing  on  the  

record to indicate that the appellant was having or  

using any of the following mobile number:-

35

9892849523, 9892367596, 9892296496 and  

9892295687.

37. There is no seizure of any mobile phone or even sim  

card at the behest of the appellant.  The prosecution  

has  failed  to  produce  any  evidence  from  the  

operators  with  regard  to  the  registration  of  the  

aforesaid phone numbers. In fact, the Investigating  

Officer,  Nagesh  Lohar  specifically  stated  in  his  

evidence  that  “we  could  not  get  those  four  

subscription  forms  and  the  documents  of  the  

company though we enquire. It is true that till today  

we do not know who are the subscribers of those  

cell phones”.

38. This apart, the High Court erroneously overlooked  

the  infirmities  in  the  evidence  with  regard  to  the  

authenticity  of  the  tape  recording  produced  in  

Court.  The conversation between the appellant and  

Bharat Nepali  was said to have been recorded on  

28th October,  2004  by  PW-17,  P.S.I.  Vijay  Dalvi.  

36

According to him, although, he had been monitoring  

the  Malaysian  number  of  Bharat  Nepali  from  1st  

October, 2004 till 27th October, 2004, he had heard  

no incoming or outgoing calls.   The incriminating  

conversation was said to have been recorded on 28th  

October, 2004.  This conversation was relayed to a  

police telephone and recorded.  He put a slip on the  

recorded cassette indicating the date and time of the  

conversation as recorded.  He then handed the tape  

over to the D.C.P., Dhananjay Kamlakar.  He heard  

the  tape  on  the  same  day.   Even  though  the  

conversation revealed a conspiracy for commission  

of  a serious offence,  like  murder of  an influential  

personality  in  Mumbai  city,  he  took  no  further  

action.  He just sealed the tape and kept it in his  

personal custody.   

39. Even when the accused A1 to A4 were arrested on  

8th November, 2004 the cassette was not produced  

before  the  Investigating  Officer.   It  was  kept  by  

Kamlakar  till  17th January,  2005,  when  he  

37

instructed P.S.I. Vijay Dalvi to hand over the tape to  

the Inspector of Police. It is a matter of record that  

the tape was received by the Investigating Officer on  

18th January, 2005.  Even the trial court refers to  

the inaction on the part of the   D.C.P. Dhananjay  

Kamlakar as shocking. Thereafter,  the High Court  

observed as follows:-

“The  evidence  of  DCP  Dhananjay  Kamlakar  suggest  that  he  had  forgotten  about  the  existence  of  the  tape  and  only  when  Investigating Officer asked about the tape he  remembered,  checked  his  record  and  then  informed the investigating officer that he had  such tape  in  his  custody.   It  is  not  easy  to  believe  this  story  given  by  DCP  Dhananjay  Kamlakar  as  he  was  a  highly  trained  and a  Senior IPS Officer.  The least which he could  had done was to find out from the telephone  companies as to who was the recipient of this  call from the number under surveillance.  He  made  no  efforts  to  find  out  as  to  who  had  received this call.  The conduct of this officer  leads  me  to  believe  that  this  tape  was  suppressed  for  some  reasons  which  best  known to DCP Kamlakar.”

40. Having  concluded  as  such,  the  High  Court,  

however,  proceeds  to  hold  that  even  such  lapses  

cannot  enure  to  the  benefit  of  the  appellant.  The  

High Court  believed the  recording as it  had been  

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made upon prior approval  by the Home Secretary  

given on 20th October, 2004.  

41. In  our  opinion,  the  veracity  of  the  voice  

identification would not improve merely because a  

recording  has  been  made  after  receiving  official  

approval.  The crucial identification was of the voice  

of  the  person talking  on  the  tape.  We  are  of  the  

considered  opinion  that  the  High  Court  has  

committed  a  grave  error  in  confirming  the  

conviction of the appellant as recorded by the trial  

court only on the evidence of voice identification.   

42. Other circumstance relied upon by the High Court  

in  convicting  the  appellant  is  the  recovery  of  the  

alleged revolver from the house of the cousin of the  

appellant. In our opinion, the recovery from an open  

space, at the back of the house, which did not even  

belong to the appellant, could be of little assistance  

to the prosecution.  Even otherwise it needs to be  

remembered  that  the  trial  court  had  in  fact,  

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acquitted  the  appellant  for  the  offences  under  

Section 3 read with Section 5 of the Arms Act.  This  

acquittal  was never challenged by the prosecution  

in appeal.  Therefore, it was wholly inappropriate by  

the High Court to reverse the findings of the trial  

court in the absence of an appeal by the State.

43.  In  view  of  the  above,  we  are  of  the  considered  

opinion  that  the  appellant  was  entitled  to  the  

benefit  of  doubt  as  the  prosecution  has  failed  to  

prove  its  case  beyond  reasonable  doubt.  

Consequently, the appeal is allowed.  The appellant  

is acquitted of all the charges levelled against him.  

The conviction and sentence imposed by the  trial  

court and confirmed by the High Court are quashed  

and set aside.  The appellant shall be set at liberty  

forthwith unless wanted in any other case.  

    ……………………………..J.

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                 [B.Sudershan Reddy]

……………………………..J.   [Surinder Singh Nijjar]

New Delhi; March 9, 2011.          

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