Amit Alias Gotya Avinash Bhosale v. State Of Maharashtra And ORS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIRCUIT BENCH AT KOLHAPUR CRIMINAL APPELLATE JURISDICTION CR. APPEAL NO. 1002 OF 2025 Digitally signed by UDAY SHIVAJI JAGTAP Date:

2026.04.01 20:41:08 +0530 Amit Alias Gotya Avinash Bhosale ... Appellant UDAY SHIVAJI JAGTAP

Versus

The State of Maharashtra & Ors.

... Respondents .............

Ms. Tanvi Tapkire a/w Pranjal Survase i/b Mr. S.M. Sule for the Appellant.

Mr. Shrikant Yadav, APP for the Respondent - State. .............

CORAM : MADHAV J. JAMDAR & PRAVIN S. PATIL, JJ.

DATE : 11th MARCH, 2026.

ORAL JUDGMENT :- (Per Madhav J. Jamdar, J.) 1.

Heard Ms. Tanvi Tapkire, learned Counsel appearing for the Appellant and Mr. Shrikant Yadav, learned APP for the State. 2.

By the present Criminal Appeal, challenge is to the legality and validity of the order dated 5th November 2025 passed by the learned Additional Sessions Judge, Wai, Dist. Satara (below Exh.1) in Special Case No. 42 of 2023 (M.C.O.C. Act). By the impugned judgment, the learned Additional Sessions Judge, has directed that charge be framed against all accused persons for the offences punishable under Sections 1 of

302, 307, 364, 120(B), 396, 212, 201 r/w Section 34 of the Indian Penal Code (IPC) and offence under Sections 3(1)(i)(ii), 3(2), 3(3) and 3(4) of the Maharashtra Control of Organised Crime Act, 1999 (M.C.O.C. Act) and under Section 143 of the Bombay Police Act. 3.

At the outset, it is required to be noted that Ms. Tapkire, learned counsel appearing for the Appellant has stated that challenge is to the impugned order only with respect to the framing of charge under the provisions of M.C.O.C. Act and not as far as IPC offences are concerned. She submits that in this case, the motive to commit crime of murder of Onkar Kailas Chavan (deceased) is that the sister of accused No.2 - Rohan Jadhav had an love affair with the deceased, which has not been approved by the accused No.2 and that the deceased had taken money as well as gold from the sister of the accused No.2. She, therefore, submits that although the offence is very serious under Section 302 of the IPC and other offences under the IPC, M.C.O.C. Act cannot be invoked.

She submits that the offence committed is of personal vendetta and, therefore, M.C.O.C. Act cannot be invoked. She further submits that there is no nexus with the organised crime. To substantiate the said contention, she has relied on paragraph Nos. 37 to 38 of the decision of Division Bench of this Court in case of Govind Sakharam Ubhe Vs.

of Maharashtra1. She also relied on Full Bench judgment of this Court in case of State of Maharashtra Vs. Jagan Gagansingh Nepali @ Jagya & Anr.2 She therefore submits that the impugned order dated 5th November 2025 to the extent of framing charge for offences under Sections 3(1)(i)(ii), 3(2), 3(3) and 3(4) of the M.C.O.C. Act be quashed and set aside.

4.

On the other hand, Mr. Shrikant Yadav, learned APP points out statement of Gaurav Mankar (pg. 1512) recorded under Section 164(5) of the Cr.P.C. and more particularly last paragraph of page 1515. Learned APP has also relied on judgment of Govind Sakharam Ubhe (supra) as also the decision of the Supreme Court in case of Zakir Mirajkar Vs. State of Maharashtra & Ors.3. Learned APP submitted that charge is rightly framed even under the provisions of M.C.O.C. Act. 5.

Before consideration of the rival submissions, it is necessary to set out relevant portion in the chargesheet. The relevant portion of column No.20 of the chargesheet describing brief facts of the case are as under :- "

र्तुतगु्हादाखलहोणेपुी रथमसदरघटणे्यासंबंधानेयातीलमयतइसम ओंकारकैलासच्हाणहाघरातपाचीडयेथेजाीुनयेतो, असेसांगून्याचेमोबाईल शॉपीम्येकामकरणाराकामगारगौरीसंजयमतकरयाचेसोबतमोटरसायकलीुन गेलातोपरतआलानाही.

्हणूनीगैरेचीखबरिमसंगचेीडीलकैलासल्मणच्हाण यांनीिदलेखबरीीुनमनु्यिमसंगरिज्टरीदाखलआहे.

सदरिमसंगचेचौकशी 2009 (3) Mh.L.J. (Cri.) 131 2011 (5) Mh.L.J. 386 2023 (20) SCC 408 3 of

दर्यानयातीलमयतयानेगौरीसंजयमतकरयासिदनांक०४/०१/ २०२१रोजी १६.

३०ीा.

चेसुमारासफोनकुनआप्यालापाचीडयेथेजायचेआहे, असेसांगून बोलाीुनघेीूनतेदोचेसाषीदारयाचेमोटरसायकलनं.एम.एच.११.सी.यु. ८०४६ीुन भुईंजतेपाचीडअसेजातआसतानापाचीडगाीचेहदीतशेीाळेी्तीजीळआले असता, पाठीमागुनदोनमोटरसायकलीुनअनोळखी४मुलांनीयेीून्यांनाथांबीुन यातीलमयतासजबरद्तीनेमोटरसायकलीरबसीूनसाताराबाजुकडेघेीूनगेले अस्याचीमािहतीिन्पनझाली.

्याचरमाणे्था.गु.शा.

सातारायेथीलआिधकारी री.

रमेशस.

गजJ स.पो.िन.

यांनीसंशयीत्हणून१) रोहणराजंरजाधी२) रोहीत संजयघाडगे३) समाधानउफN चं्याराजंरंशदे४) सिलमखाजासाबशेखयांनीी ्यांचेइतरदोनसाथीदांर५) अिनकेतउफN बंटीनारायणजाधी६) बंटीमोरेयांनी िमळूनकाठयांनीमारहानकुन्याचीसो्याचीआंगठीीमोबाईलफोनकाढूनघेीून ्याचाखुनकेलेबाबतमािहतीिनळालीअसून पुढीलकायNीाहीकरणेकरीतािरपोटN सह अ.नं.

१ते४यांनाहजरकेले.

एकंदरिमसंगचेचौकशीम्येरातझालेमािहतीी परि्थतीज्यपुरा्याीुनिमसंगचेचौकशीअंमलदारयातीलिफयाNदीयांनीसरकार तफJ िफयाNदीहोीुनर्तूतगु्हादाखलकेलेलाआहे."

(Emphasis added) 6.

The chargesheet also records that as far as accused No.1 - Aniket alias Bunty Narayan Jadhav, gang leader is concerned, there are total 14 cases registered and the present offence took place although the gang leader was externed from Satara District.

7.

The chargesheet records various aspects about the other accused So far as role of the present applicant is concerned, the same is described on page 1440 in the chargesheet, which reads as under :- "

आरोपीरमांक०७ - अिमतऊफN गोटयाअिीनाशभोसलेीय३३ीेJ , समतानगर , भुईंजता . ीाई नमुदआरोपीनं.- ७हाभुईंजगांीातराहणाराअसून्याचामोबाईलशॉपीचा ्यीसायआहे.

्यामुळेटोळीसद्यआरोपीर२तसेचटोळीरमुखआरोपीर-१ यांचेसंपकाNततोआहे.

तोर्तुतगु्हयाNतीलटोळीरमुखीटोळीसद्यआरोपीर०२याचे पिरचयाचाअस्याणे्यानेघटणे्याआरोपीर१२याचेपो्टरीशेडीरहजरराहुन टोळीरमुखआरोपीयानेकेले्याकटाम्येर्यषसहभागीहोीुनसदरचाकट पुणN्ीासनेहणेकरीतासािषदारगौरीसंजयमतकरीशौकतउफN मुनामुशाकशेख 4 of

यांनामारहाणकुन्याचाखुनकरणे्यारय्नान्येइतरआरोपीयांनासहकायN केले.

यातीलमयतयासकायांनीमारहाणकुन्याचाखुनकुन्याचेरेतभुईंज येथील्मशानभुमीम्येदहनकुनपुराीानटकरणेम्येटोळीरमुखीइतरआरोपी साथीदारयांनामदतकेलीआहे."

(Emphasis added) Thus, the material on record shows that, so far as the alleged offence is concerned, the deceased was not only mercilessly assaulted, but his gold ring was also removed from his finger. Thereafter, he was killed, his body was burnt, and the ashes were thrown into the Krishna River. As per the prosecution case and the material on record, the appellant - accused No.7 has actively participated in the crime.

8.

Before further considering the contention of the appellant, it is necessary to set out the IPC offences as the learned counsel appearing for the Appellant, on instructions, has stated that as far as the IPC offences are concerned, the Appellant is not challenging the order framing charge under the IPC. The IPC offences are under Sections 302, 307, 382, 120B, 396, 212, 201 r/w 34 of the IPC. The relevant IPC offence for the purpose of appreciating the submission of learned counsel appearing for the Appellant is under Section 396 of the IPC. Section 396 of the IPC is concerning 'dacoity with murder' and provides that 'if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with 5 of

death, or for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine'. 9.

Section 391 defines 'dacoity' as 'when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit 'dacoity'.

10.

Section 390 provides that - "In all robbery there is either theft or extortion.

Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint."

"Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant 6 of

hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up thing extorted."

11.

Extortion is defined under Section 383 of the IPC as "Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion"."

12.

Theft is defined under Section 378 inter alia as "Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."

13.

As already noted hereinabove, the learned Counsel appearing for the Appellant has stated that as far as the IPC offences are concerned, she has instructions not to challenge the impugned order by which charge is framed inter alia with respect to the IPC offences. The relevant IPC offences are already set out hereinabove and the ingredients of the said offences are discussed hereinabove. In this back ground of the matter, 7 of

the only question which is before us for consideration is whether the charge can be framed under the provisions of the M.C.O.C. Act i.e. under Sections 3(1)(i)(ii), 3(2), 3(3) and 3(4). Thus, it is clear that relevant section is Section 3 which reads as under :- "3. Punishment for organised crime

(1) Whoever commits an offence of organised crime shall,- (i) if such offence has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees one lac; (ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.

(2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime, shall be punishable with imprisonment for a term which shall be not less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.

(3) Whoever harbours or conceals or attempts to harbour or conceal, any member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extent to imprisonment for life, and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.

(4) Any person who is a member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.

(5) Whoever holds any property derived or obtained from 8 of

commission of an organised crime or which has been acquired through the organised crime syndicate funds shall be punishable with a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees two lacs." (Emphasis added) 14.

'Organised Crime' is defined under Section 2(1)(e), which reads as under:- "[(e) "organised crime" means, any continuing unlawful activity, by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate,- (i) by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency, or (ii) (ii) by cultivating, producing, manufacturing, possessing, selling, purchasing, transporting or storing of narcotic drugs or psychotropic substances in commercial quantity, as notified under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), in contravention of the said Act or rules framed thereunder, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person;]"

(Emphasis added) 15.

'Organised crime syndicate' is defined under Section 2(1)(f), which reads as under :- "(f) "organised crime syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime;" (Emphasis added) 9 of

16.

'Continuing unlawful activity' is defined under Section 2(1)(d), which reads as under:- "2(1)(d) "continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence;"

(Emphasis added) 17.

Thus, what is important to note is that 'organised crime' means any continuing unlawful activity, by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate - by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency. Organised crime syndicate is a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime. 18.

This is a case where it is the submission of Ms. Tapkire, learned counsel for the Appellant that although the offence is very serious even

under the IPC offences, however, the motive of the offence is that sister of accused No.2 was having love affair with the deceased, which was not approved by the accused No.2 and apart from that deceased had taken from the sister of the accused No.2 money and gold. It is, therefore, her contention that the motive behind the offence is personal vengeance. 19.

As noted hereinabove, the organised crime inter alia means by use of by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency. This is a case where as per the prosecution case, deceased was not only killed but his Cell Phone and Gold ring were stolen. In this back ground, it is relevant to note the observations of the learned Additional Session Judge in paragraph Nos. 6 to 10, which reads as under :- "06. Perusal of charge-sheet it will find that investigating officer has described the role of each accused, in detail, played while committing serious crime by hatching conspiracy for committing the murder of Omkar Kailas Chavan by snatching golden ring and mobile from him and assaulted Gaurav Sanjay Matkar and Shoukat @ Munna Mashak Shaikh and destroyed the body deceased Omkar by burning it secretly in order to destroy the evidence.

07. Role of each accused played while committing crime has been described in detail in charge-sheet running in 10 pages.

They are in consonance with the statement of witnesses and other material placed on the record. They go to demonstrate that there are sufficient grounds for framing the charge. Charge-sheet also reveals that how all the accused have created terrorism by showing video of incident to one witness Vaibhav Gulumbkar. Charge-sheet also unfolds that each accused is having previous criminal background since considerable period. Charge-sheet also reveals that each accused persons appears to be the member of Organized Crime Syndicate/Gang and they have committed the murder of Omkar on account of fact that deceased had proposed the sister of accused Rohan, and on that count also assaulted above named witnesses in order to kill them. It also appears that while committing crime accused persons have snatched valuable property of deceased.

Allegations made in the chargesheet against each accused persons are supported by reports, panchnamas, the statements of four witnesses and various documents such as panchanama, memorandum panchanama, medical evidence, confessional statements etc. Record also further reveals that Sanction Order dated 05/07/2021 passed by Director General of Police Maharashtra State, Mumbai, which was sanctioned after sending proposal by investigating officer to the said authority. Record also reveals that there are certain confessional statements of accused. It can be collected from the record that prohibitory actions were taken against accused Aniket, Varun, Nikhil, Pratik, Nitin, Rohit, Mazhaar Noorahmed Shaikh and they have committed it's breach, for committing other serious crime.

Investigating officer appears to have collected call records of the accused relating to the incident in question. Record further indicates that identification parade was carried out by Tahsildar and accused persons were identified which appears to be sufficient to connect them to the incident in question.

Hashmuddin Momin, Kundlik Kisan Kanase, Kantilal Raya Devrase, Aniket Sunil Shetye, Kanhaiyya Ranjitsinha Dalwale were recorded u/s 164 of Cr.P.C. Various incriminating material touching to the crime appears to have been seized from the houses of accused namely, Rohan Rajendra Jadhav, Rohit Sanjay Ghadge, Samadhan @ Champya Rajendra Shinde, Salim Khajasab Shaikh, Mahendra @ Pintu Hanmant Jadhav, Pratik Pruthviraj Pawar and Shubham Ravindra Jadhav. Mobiles of accused appears to have been seized for investigation as per seizure panchanamas. It also appears that u/s: 27 of Evidence Act, pocket of deceased and weapons used in the crime appears to have been seized from accused Rohan Rajendra Jadhav and Rohit Sanjay Ghadge. It also further appears from the record that vehicle used in the crime was also seized under execution of panchnama done under 27 of Evidence Act. It also appears from the record that investigating officer has collected the information about criminal background of accused persons.

08.

No accused has filed discharge application before Court.

09. After hearing learned A.PP and learned counsels for accused named above, and having looked into the documents and statements of witnesses filed on record along with chargesheet, I am satisfied that there is prima facie case based on the material described above and sufficient evidence which is able to make out prima facie case against each accused mentioned above.

10.

As such, having considered above described material placed on record, according to me there is sufficient material and grounds available on record to frame the charges against all accused persons for the offences punishable u/ss. 302, 307, 364, 120 (B), 396, 212, 201 read with Section 34 of Indian Penal Code and offences punishable u/ss. 3(1) (i) (ii), 3(2), 3(3) & 3(4) of The Maharashtra Control of Organized Crime Act, 1999 and under Section 143 of Bombay Police Act. Hence, following order is passed."

(Emphasis added)

20.

Thus, the learned Additional Sessions Judge has after taking into consideration the material on record for the purpose of framing of the charge has held that there is sufficient material and grounds available on record to frame the charges against all the accused persons for the IPC offences as well as offence under the M.C.O.C. Act. 21.

As set out hereinabove, this is a case where the prosecution case is that the deceased was murdered inter alia for the purpose of committing dacoity and actually the Cell Phone and Gold ring of the deceased were stolen.

22.

Ms. Tapkire, learned counsel for the Appellant has relied on the confessional statement of co-accused - Vaibhav @ Chimya Gajanan Shewate. The relevant part of his statement is as under :- "िद.०४/०१/ २०२१रोजीसकाळी१०.

००ीा.

घरातुनिनघुनमीभुईजगाीाम्ये आलो.

तेथुनमीभुईंजकारखानारोडलागेलो.

तेथेअषयशेीतेीरितकपीारहेमला भेटले.

आ्हालादाु्यायचीसीयहोती, ्हणुनआ्हीपमरीबारम्येगेलो. आ्ही दुपारी२.

३०ीा.

पय_तीाुिपतबसलो.

्यानंतरआ्हीदुु्तीलाटाकलेलारितक पीारयाचामोबाईलघे्यासाठी्याचेसी.

डी१००मोटारसायकलीुनअिमतऊफN गोटयाभोसलेयाचेदुकानाीरगेलो.

अिमतऊफN गोटयाभोसलेयानेमोबाईलदुु्त नस्यानेमोबाईलिदलानाही.

्याीेळीरितकपीारीअिमतऊफN गोटयाभोसले यांचेतिकरकोळबादझाला.

्यानंतरमीीरितकपीारअसेसी.डी.

१००गाडीीुनी अषयशेीते, अिमतभोसले्कुटीीुनदो्हीमोटारसायकलीुन४.

००ीा. जाधी याचेंचधीलीरोडलाअसले्याकंबडीपालना्याशेडीरगेलो. आ्हीशेडीर गे्याीरतेथेमालदेीाडीचाजयेशऊफN बंटीमोरेयानेगेटउघडुनआ्हालाआतघेीुन कुलूपलाीले.

्यानंतरआ्हीशेडचेदारऊघडुनआतम्येगेलो, तेथेअिनकेतऊफN बंटीजाधीहोता, ्यालाआ्हीभेटलो.

्याीेळीआतम्येीाचनीाडीचामुलगागौरी मतकरहािदसला, तसेचरोडनजाधी, शुभमऊफN िच्याजाधी, सिलमशेख, रोहीत घाडगे, समाधानऊफN चं्यांशदेअसेहोतेआिणतेगौरीमतकरयासउघडाकुन

काठयांनीमारहाणकरीतहोते.

तसेचतेथेअजयऊफN गो्डन, िनखीलमोरे, का्या असेहोते.

्याीेळीमीचं्यांशदेलािीचारल्यालाकामारताय, ्याीेळी्याने सांगीतलेकी, ओंकारच्हाणयाचेरोहनजाधीयाचेबहीणीबरोबररेमआहेी ितचेकN डुनओंकारच्हाणयानेदोनतोळेसोने, ४ते५लाखुपयेघेतलेआहेतआिण गौरी्याचािमरआहे.

तोही्याचेम्येसािमलआहे, ्हणूनआ्ही्यालाअिनकेत ऊफN बंटीजाधीयाचेसांगणेीुनमारतोयअसे्हणाला.

्यानंतरआ्हीशेड्याबाहेर येीुनबसलो.

काहीीेळाने्यांनीओंकारच्हाणयासआणलेआिण्यालाहीशेड म्येआणुनमारहाणकेली.

्यानेसांगीतलेकीमाझाकाहीसंबंधनाहीमुनायाचा िीेयआहेअसेसांगीतले.

्यानंतरकाहीीेळानेमुनायालाआणलाआिण्यालाही उघडाकुनओंकारच्हाण, गौरीमतकरयांना अँगललाबांधुनीखालीओपीुन रोहनजाधी, शुभमऊफN ंच्याजाधी, सिलमशेख, रोहीतघाडगे, समाधानऊफN चं्यांशदे, अिनकेतऊफN बंटीजाधी, अषयकांताशेीते, रोिहतघाडगे, अिमतऊफN गोटयाभोसले, िमथुनघाडगे, रितकपीार, अषयजाधी, ीुनजाधी, महंरऊफN ंपटु जाधीअसेमारहाणकरीतहोते.

काहीीेळानेमीशेडबाहेरजाऊनबसलो, अ्याN तासानेशेड्याखोलीमधुनबाहेरआीाजआलाकी, सीा_नीखोलीतया.

्यानंतरमी हीगेलो, ्याीेळीओंकारच्हाणहाउता्याि्थतीतजिमनीीरपडलाहोता. तो हालचालकरीतन्हता, ्याीेळीबंटीजाधीयाचेसांगणेीून्यासउचलुनीुण जाधीयाचेआय१०गाडीतघालुन्यालारोहनजाधी, सिलमशेख, राहीतघाडगे, समाधानऊफN चं्यांशदेीरितकपीारअसेओंकारच्हाणयासभुईजयेथीलभंडारे डॉ्टरयांचेकडेघेऊनगेलेहोते.

्यानंतरबंटीजाधीयासफोनआ्यानंतर्यांनी ओंकारच्हाणयासीाईयेथीलहॉ्पीटलम्येघेीुनजा्याससांगीतलेहोते. ्यारमाणे्यांनीीाईयेथीलहॉ्पीटलम्येओंकारच्हाणयासघेीुनगेले. काही ीेळानेबंटीजाधीयानेआ्हासीा_नागाडीतबस्यासबांगीतले, ि्ी्टिडझायर गाडीम्येमी, अषयशेीते, रितकपीार, अिमतऊफN गोटयाभोसले, अिनकेतऊफN बंटीजाधीअसेबसलो.

्याीेळी्यानेपोलोगाडीआिणमोटारसायकलगाडयाि्ी्ट गाडी्यामागेघे्याससांगीतले.

तेथुनआ्हीसीNजनंचधीलीफायाीरआलो.

तसेचआमचेगाडी्यापाठीमागेबाईयेथीलअजय ऊफN गो्ीनमाचीपोलोगाडी होती, आिणतेथेअसले्यंपैकीकाहीजनमोटारसायकलीरहोती.

ंचधरोडलाजाी १०गाडीआली्यातुनओंकारच्हाणबालाआमचेि्ी्टगाडीम्येघेतले. तेगुन आमचीि्ी्ट िडझायरगाडी, पोलोमाहीअसेघेीुनआ्हीओंकारच्हाणयाला घेीुनसातारायेथेगेलो.

तेथेआमचेभागेआले्यादोनमोटारसायकलआ्याहो्या ्यातील, एकामोटारसायकलीररोहनजाधी, समाधानऊफN चं्यांशदेीिनखील मोरेअसेसातारायेथीलसंजीीनीहॉ्पीटलम्येघेीुनगेले. तेथेडॉ्टरयांनी्याला तपासूनतोमयतझालाआहेअसेसांगीतलेने, ्यासरोहनजाधी, िनखीलमोरे, समाधानऊफN चं्यांशदेयांनीऑकारच्हाणयासघेीुनआले. ्याीेळीऑकार च्हाणयालाि्ी्टगाडीम्येघालुनघेीुनआ्हीबाळेफाटायेधुनसि्हसरोडने पेटरोलपंपाचेपुढेिडमाटN समोरीलरोडीरजाऊनथांबलो. ्याीेळीि्ी्टिडझायर गाडीतुनओंकारच्हाणयालाअिमतऊफN गोटयाभोसले, समाधानऊफN चं्यांशदे यांनीगाडी्यािड्गीतटाकला.

्यानंतरमलाझोपआ्यानेभीझोपीगेलो. आ्ही िशरीळयेथेपंढरपुरफाटयाजीळआ्यानंतरतेथेआमचेमागेपोलोगाडीहीतेथे आली.

ि्ी्टगाडीतीलीपोलोगाडीतीलसीNजनआ्हीखालीउतुनकाहीमेळ बोलतथांबलो.

काहीयेळानेआ्हालाअिनकेतऊफN बंटीजाधीयानेतेथेचथांब्यास सांगीतले.

आिणपोलोगाडीचीचाीीकाीुनघेीुनि्ी्टगाडीतुनिनखीलमोरेयास घेीुनसातार्यािदशेनेिनघुनगेले.

िशरीळपंढरपुरफायाीरभी, अषयकांताशेीते, रितकपीार, अिमतऊफN गोटयाभोसले, अजयऊफN गो्डन, का्याकचरेीपोलो

गाडीतीलएकजणहोतो.

पोलोगाडीतीलगाडीतचझोपलेआिणआ्हीबाहेरउभेहोतो.

आलटुनपालडुनआ्हीपोलोगाडीतजाऊनझोपायचो.

िद.०५/०१/ २०२१रोजीपठाटे०४.

००ीा.

अिनकेतऊफN बंटीनारायणजाधी, िनखीलमोरेअसेआमचेजीळिशरीळयेथीलपंढरपुरफायाजीळआले. आ्हाला बंटीजाधीयानेगाडीतबस्याससांगीतले, तेथुनआ्हीसीNजन्ि्ी्टिडझायर गाडीीपोलोगाडीघेीुनपुणेयेथेसकाळी०६.

००ीा.

एकालॉजीरगेलोतेथेझोपलो.

लॉजीरभी, अिमतऊफN गोटयाभोसले, अषयशेीतेीिनखीलमोरेअसेबोलतबसलो असताना, िनखीलमोरेयानेसांगीतलेकी, ओंकारच्हाणयालापो्यातघालुन, ्याीर ीाळुघालुननदीतटाकुनिदलेआहेअसेसांगीतले.

आ्ही्याीेळीखुपघाबरलो ्यानंतर, आ्हीसीNजनदो्हीगाडयाघेीुन्यालॉजीुनसायं. ०४.

००ीा. िनघुन को्हापुरयेथेगोकुळहॉटेललास्या. ७.३०. ीा.

पोहचलोआिणतेथेचराहीलो.

िद.०६/०१/ २०२१रोजीसायं. ५.

३०ीा.

आ्हीसीNजनअिनकेतऊफN बंटीजाधी याचेसांग्याीुनको्हापुरयेथुनदो्हीगाडयाघेीुनसातारायेथेगौरीशंकरकॉलेज जीळआ्यानंतरपोलोगाडीतुनउतुनअिनकेतऊफN बंटीजाधीहाआमचेि्ी्ट गाडीतआला, आिणिनखीलमोरेहाखालीउतुनपोलोगाडीतबसला. ्यानंतर आ्हालाअिनकेतऊफN बंटीजाधीयानेकोणालाकाहीएकबोलुनका, तु्हीदाु िप्याीरकोणालाकाहीबोलाल, तु्हीगाीातथायुनकाअसे्हणाला.

्यानंतरमला अषयशेीते, अिमतऊफN गोटयाभोसले, रितकपीारअसेआ्हालाभुईंजयेथेि्ी्ट गाडीतुनसोडलेीपाचीडयेथुनपोलोगाडीतुनअजयऊफN गो्डन, िनखीलमोरे, का्याकचरेी्यांचेबरोबरआलेलाडराय्हरअसेिनघुनगेले. मीमा्याघरीगेलो. मी ्यािदीशीघरीथांबलो.

िद.०७/०१/ २०२१रोजीमीिभतीपोटीसकाळीभुईंजयेचुनमाझाचुलतभाऊ दयानंदशेीतेयाचेकडेगेलो.

तेथुनमीजुनरयेथेमाझािमरबाळकृ्णयाचेकडेगेलो, तेथेमीएकआठीडाभरथांबलो.

्यानंतरमीपुणेयेथेमाझाभाऊदयानंदशेीते याचेकडेगेलो.

्याीेळीमलामा्याभाीाने्याचे्हॉ्सअपीरआलेलामॅसेज, पेपर कारणदाखीले्याम्येभुईंजयेथीलओंकारच्हानयासमारहाणकुन्याचेरेत जाळुन, - नदीम्येटाकलेअस्याबाबतहोते.

्याीेळीमीखुपघाबरलोआिणतेथुन िभतीपोटीको्हापुरयेथेजाऊन, तेथुनकनाNटकम्येिनपानी्यापुढेिहपनीयेथेगेलो.

्यानंतरमा्याकडेअसलेलाओ्पोकंपनीचाएफ५हामोबाईलएकादुकानात िीकलाआिणिसमकाडN हरीलेलेआहे.

्यानंतरिठपनीयेथेसागरढाबायेथेमजुरीने कामकुनराहीलो.

दोनमिह्यानंतरमीमाझाभाऊमहंरगजाननशेीतेयासफोन केला्यानेमलासांगीतलेको, ओंकारच्हाणयालामारहाणकुन, ्याचेरेतजाळुन, ्याचेआि्थीराखनदीम्येटाकुनपुराबानटकेलाअस्याने्याम्येतुझाही सहभागअस्यानेतुझेनाीेआहे, तुलाजेमािहतीआहेतेपोलीसांनासांग, भुईंज पोलीसठाणेसहजरहोअसेसांगीतले, ्यामुळेमीआजरोजीभुईंजपोलीसठाणेयेथे हजरझालो्यानंतरमलापोलीसांनीअटककेलीआहे."

(Emphasis added) Even perusal of the above confessional statement of the co-accused, on

which Ms. Tapkire, learned counsel for the Appellant has heavily relied, clearly show that the offence under the provisions of M.C.O.C. Act for which charge has been framed, is made out.

23.

Ms. Tapkire, learned Counsel has relied on decision of Division Bench of this Court in the case of Govind Sakharam Ubhe (supra) and more particularly paragraph nos. 37 and 38, which read thus :- "37. But even otherwise, if all provisions are read together we reach the same conclusion. Section 2(1)(d) which defines `continuing unlawful activity' sets down a period of 10 years within which more than one charge-sheet have to be filed. The members of the crime syndicate operate either singly or jointly in commission of organized crime. They operate in different modules. A person may be a part of the module which jointly undertakes an organized crime or he may singly as a member of the organized crime syndicate or on behalf of such syndicate undertake an organized crime. In both the situations, the M.C.O.C. Act can be applied.

It is the membership of organized crime syndicate which makes a person liable under the M.C.O.C. Act. This is evident from Section 3(4) of the M.C.O.C. Act which states that any person who is a member of an organized crime syndicate shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum of fine of Rs.5 lakhs. The charge under the M.C.O.C. Act ropes in a person who as a member of the organized crime syndicate commits organized crime i.e. acts of extortion by giving threats, etc. to gain economic advantage or supremacy, as a member of the crime syndicate singly or jointly. Charge is in respect of unlawful activities of the organized crime syndicate.

said charge-sheet can be taken against a member of the said crime syndicate for the purpose of application of the M.C.O.C. Act against him even if he is involved in one case. The organized crime committed by him will be a part of the continuing unlawful activity of the organized crime syndicate. What is important is the nexus or the link of the person with organized crime syndicate. The link with the `organized crime syndicate' is the crux of the term `continuing unlawful activity'. If this link is not established, that person cannot be roped in.

38. In order to substantiate our construction of Section 2(1) (d) of the M.C.O.C. Act, we will take hypothetical example of accused 1(A), accused 2(B), accused 3(C) and accused 4(D), who are members of the organized crime syndicate and who have committed crimes within preceding ten years. Insofar as accused A is concerned, it is alleged that he has committed an offence resulting in the death of any person which is punishable with death or imprisonment for life as described in Section 3(1) of the M.C.O.C. Act. Accordingly, one chargesheet is filed against him. Insofar as accused B is concerned, it is alleged that he has committed an offence resulting in the death of any person which is punishable with death or imprisonment for life as described in Section 3(2) of the M.C.O.C. Act. Accordingly, one charge-sheet is filed against him.

Likewise, insofar as accused C is concerned, it is alleged that he has committed an offence resulting in the death of any person which is punishable with death or imprisonment for life as described in Section 3(3) of the M.C.O.C. Act. Accordingly, one charge-sheet is filed against him. Finally, it is alleged that accused D is a member of organized crime syndicate as described in Section 3(4) of the M.C.O.C. Act and as such has indulged in organized crime and against whom also one charge-sheet is filed."

(Emphasis added) Admittedly, in this case charge-sheet is filed against the other co-accused.

24.

Ms. Tapkire, learned Counsel also relied on the Full Bench decision of this Court in the case of Jagan Gagansingh Nepali @ Jagya (supra) and more particularly observations made in paragraph No. 38 of the same, which read as follows :- "38. The legislative intent is clear, that M.C.O.C. Act is for curbing the organised crime. Unless there is prima facie material, firstly, to establish that there is an organised crime syndicate and, secondly, that organised crime has been committed by any member of the organised crime syndicate or any person on behalf of such syndicate, the provisions of M.C.O.C. Act cannot be invoked. In the earlier paragraph we have discussed in detail as to what are the ingredients so as to constitute an offence of "organised crime".

The prosecution will, therefore, have to firstly establish that there is an organised crime syndicate. It will have to satisfy that there exist the ingredients of "continuing unlawful activity". It will thereafter have to satisfy that the ingredients of the "organised crime" as spelt out by us hereinbefore exist, prior to invoking the provisions of M.C.O.C. Act. We are, therefore, unable to accept the contention that if the wider meaning is given, the M.C.O.C. Act can be invoked even for sundry offences. As held by the Apex Court in the case of Ranjitsing Brahmajeetsing Sharma (supra), merely because the person who cheats or commits a criminal breach of trust more than once, the same by itself may not be sufficient to attract the provisions of M.C.O.C. Act.

By the same analogy, if a person commits murder more than once, would not by itself be sufficient to attract the provisions of M.C.O.C. Act. At the cost of repetition, we make it clear that unless all the ingredients to constitute the offence punishable under M.C.O.C. Act are available, it will not be permissible to invoke the provisions of M.C.O.C. Act."

(Emphasis added) Even on the touchstone of the above statement of law, if the factual

aspects in this case are examined, then also it is clear that prima facie offence under M.C.O.C. Act is made out for framing of charge. Apart from the other aspects which have been discussed hereinabove, it is also required to be noted that learned APP has pointed out statement of Gaurav Mankar (pg. 1512) recorded under Section 164(5) of the Cr.P.C. and more particularly last paragraph of page 1515, which reads as under :- "

्यािठकाणीसकाळीजीमुलेहोतीतीचमुलेहोती.

्यांनीआ्हालादोघांनाअंगाीरील कपडेकाढायलालाीले्हणूनमीीओंकारनेअभाीरीलकपडेकाढली. ्यांनतरमला सकाळी्याछता्याअँगललाबांधलेहोते्यािठकाणीओंकारयासबांधलेी्याला काठयानेमारहाणकर्याससुुीातकेली.

दर्यानलेमलाहीकाठयानेमारहाणकरत होती.

तेओंकारयासपैसेीदािगनेकोठेआहेतअसेिीचारतहोते.

थोयाीेळाने ्यांनीमलाआत्याखोलीतबसीलेीपु्हाओंकारयासमारहाणकुलागले. दर्यान्यांनीओंकारयाचािमरमुनायालातेथेआणलेी्याचेहीअंगाीरीलकपडे काढून्यालाकाठंयानीमारहाणकेली.

काहीीेळानेअंधारपडला्यादर्यानमला माझेीडीलांचाफोनआला्याीेळी्यांनीमलाफोनउचलून१०. ००ीाजेपय_तघरी येतोअसेसांगायलालाीलं.

्यारमाणेफोनउचलून्पीकरीरठेीूनमीीिडलांनातसे सांिगतले."

(Emphasis added) 25.

Thus, the material on record clearly shows that the accused has hatched conspiracy for committing the murder of Omkar Kailas Chavan inter alia with a motive of snatching golden ring and mobile from him and assaulted Gaurav Sanjay Matkar and Shoukat @ Munna Mashak Shaikh and destroyed the body of deceased Omkar by burning it secretly in order to destroy the evidence. Thus, there is material on record to frame charges even under Sections 3(1)(i)(ii), 3(2), 3(3) and 3(4) of the M.C.O.C. Act.

26.

Learned APP has relied on the judgment of the Supreme Court in case of Zakir A. Mirajkar (supra). The relevant paragraphs are paragraph Nos. 77 to 79, which read as under :- "77.

From the analysis above, the appellants' submission that the allegation of engaging in illegal gambling would not sustain the invocation of the penal provisions of Section 3(2) M.C.O.C.Act is simplistic. Although gambling may not, by itself, constitute an organized crime, it may be the route through which the accused are abetting the commission of organized crime. The question of whether the appellants are in fact abetting organized crime in this manner, is to be determined at the stage of trial. Similarly, the question of whether offences under the IPC would attract M.C.O.C.Act in the present case is to be determined at the stage of trial and depends on the facts and circumstances of each case. The observation in Lalit Somdatta Nagpal (supra) that some degree of coercion or violence is required to charge an accused under provisions of M.C.O.C.Act must be read together with Section 2(1)(e) which recognizes that "other unlawful means" may be used while committing organized crime, in addition to coercion and violence.

c. More than one charge-sheet is not required to be filed with respect to each accused person.

The appellants have argued that in the preceding ten years, more than one charge-sheet has not been filed in respect of each of them. This submission does not hold water. It is settled law that more than one charge sheet is required to be filed in respect of the organized crime syndicate and not in respect of each person who is alleged to be a member of such a syndicate.

78. In Govind Sakharam Ubhe v. State of Maharashtra, 2009 SCC OnLine Bom 770 a two-judge Bench of the Bombay High Court, speaking through Justice Ranjana Desai (as the learned judge then was) held that:

"37. Section 2(1)(d) which defines 'continuing unlawful activity sets down a period of 10 years within which more than one charge-sheet have to be filed It is the membership of organized crime syndicate which makes a person liable under the M.C.O.C.Act. This is evident from section 3(4) of the M.C.O.C.Act which states that any person who is a member of an organized crime syndicate shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum of fine of Rs. 5 lakhs. The charge under the M.C.O.C.Act ropes in a person who as a member of the organized crime syndicate commits organized crime i.e. acts of extortion by giving threats, etc.

to gain economic advantage or supremacy, as a member of the crime syndicate singly or jointly. Charge is in respect of unlawful activities of the organized crime syndicate. Therefore, if within a period of preceding ten years, one charge-sheet has been filed in respect of organized crime committed by the members of a particular crime syndicate, the said charge-sheet can be taken against a member of the said crime syndicate for the purpose of application of the M.C.O.C.Act against him even if he is involved in one case. The organized crime committed by him will be a part of the continuing unlawful activity of the organized crime syndicate. What is important is the nexus or the link of the person with organized crime syndicate. The link with the 'organized crime syndicate' is the crux of the term 'continuing unlawful activity'.

If this link is not established, that person cannot be roped in."

79. Other courts, too, have held that persons who are alleged to be members of an organized crime syndicate need not have more than one charge-sheet filed against them in an individual capacity. Rather, charge-sheets with respect to the organized crime syndicate are sufficient to fulfil the condition in Section 2(1)(d)."

(Emphasis added) 27.

The Division Bench of this Court as approved by the Supreme Court, has held that if within a period of preceding ten years, one

chargesheet has been filed in respect of organised crime by the members of a particular crime syndicate, the said chargesheet can be taken against a member of the said crime syndicate for the purpose of application of the M.C.O.C.Act against him even if he is involved in only one case. The organised crime committed by him will be a part of the continuing unlawful activity of the organised crime syndicate. It has been held that what is important is the nexus or the link of the person with organised crime syndicate. The link with the 'organised crime syndicate' is the crux of the term 'continuing unlawful activity'. If this link is not established, that person cannot be roped in. This is a case where admittedly as far as gang leader is concerned, there are 15 offences registered against him and in those cases charge-sheets have been filed. In fact, he has been externed from District Satara and the present crime has taken place during that period, when the gang leader was externed from District Satara.

28.

Admittedly, the accused No.1 - Aniket alias Bunty Narayan Jadhav, gang leader is the accused in this case and there are offences against some of the co-accused. Although, it is correct that as far as the Appellant is concerned there are no other offences, however, in view of the law laid down by the Division Bench of this Court in case of Govind Sakharam

Ubhe (supra), as approved by the Supreme Court in Zakir A. Mirajkar (supra) it is very clear that if within a period of preceding ten years, one charge-sheet has been filed in respect of the organised crime committed by the members of a particular crime syndicate, the said chargesheet can be taken against a member of the said crime syndicate for the purpose of application of the M.C.O.C. Act against him even if he is involved in one case. Thus, the said statement of law is squarely applicable to this case. 29.

In case of Zakir Mirajkar (supra), the Supreme Court in paragraph No.79 has observed that persons who are alleged to be members of an organised crime syndicate need not have more than one chargesheet filed against them in an individual capacity. Rather, charge-sheets with respect to the organised crime syndicate are sufficient to fulfil the condition in Section 2(1)(d) of the M.C.O.C. Act. Thus, it is clear that the order passed by the learned Additional Sessions Judge of framing charge even under the provisions of M.C.O.C. Act, is legal. 30.

In case of Jagan Gagansingh Nepali @ Jagya (supra), what the full bench has held that the legislative intent in enacting M.C.O.C. Act is very clear that for curbing the organised crime, it has been held that unless there is prima facie material, firstly, to establish that there is an organised crime syndicate and, secondly, that organised crime has been committed

by any member of the organised crime syndicate or any person on behalf of such syndicate, the provisions of M.C.O.C. Act cannot be invoked. These aspects have already been discussed hereinabove in detail. In fact, in this case, there is prima facie material to establish that there is organised crime syndicate and secondly that organised crime has been committed by any member of the organised crime syndicate or any person on behalf of such syndicate. Thus, the learned Additional Sessions Judge has rightly invoked the provisions of M.C.O.C. Act and rightly framed charges even under the M.C.O.C. Act.

31.

Accordingly, there is no substance in the contentions raised by the Appellant. The Criminal Appeal is dismissed. [PRAVIN S. PATIL, J. ] [MADHAV J. JAMDAR, J.]