New Delhi: 24 years ago, in August 1997, ‘Cassette King’ Gulshan Kumar was shot dead in a cold-blooded murder outside a temple in suburban Andheri.
In 2002, the trial court gave its verdict, convicting one accused — fugitive gangster Dawood Ibrahim’s henchman Abdul Rauf Dawood Merchant — and acquitting the remaining 16.
However, it was only 19 years later that the Bombay High Court finally confirmed this trial court verdict last week, upholding the acquittal of film producer and Tips Industries co-founder Ramesh Taurani and confirming Merchant’s conviction.
The bench comprising Justice S.S. Jadhav and Justice N.R. Borkar also quashed the acquittal of Rauf Merchant’s brother and another accused in the case, Abdul Rashid Merchant, and sentenced him to life imprisonment, ruling that Rashid was one of the persons who shot at Kumar.
But why did the wheels of justice take 24 years to turn? While a lawyer associated with the case blamed it on the fact that Abdul Rauf had absconded for seven and a half years during the pendency of the appeal, other lawyers practising in the Bombay HC claimed that there was a more systemic problem at play when it comes to hearing of criminal appeals in the court.
4 charge sheets, 5 years, 45 witnesses, 1 conviction
Three months after the murder, the police had filed its first 400-page charge sheet in which it said the plot to kill Kumar had been hatched in the office of Anees, Dawood Ibrahim’s brother, in Dubai. This was followed by three supplementary charge sheets over the next few years.
There were 19 accused in all, but charges against two were dropped pending trial. The prosecution alleged that Taurani and music composer Nadeem Akhtar Saifee had paid a ‘supari (contract money)’ of Rs 25 lakh for Kumar’s murder.
However, when Saifee was declared a co-conspirator in the case, he was vacationing in London at the time. The delay in starting the trial is attributed to the extradition case initiated by the Indian government in the UK. However, the London high court discharged him in December 2000, in a judgment that came across as an “indictment of the Indian judicial procedure”. Saifee continued to be in London and was shown as an absconding accused in the case.
Abdul Rauf Merchant absconded after the killing, and was arrested from Calcutta only in 2001.
The trial in the case, therefore, began only in June 2001 and appears to have proceeded swiftly since, with the court pronouncing the judgment less than a year later in April 2002, convicting only one accused, Rauf.
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19-year-long appeal
The appeal in the Bombay High Court was filed right away.
Abdul Rauf Merchant filed his appeal on 5 August 2002 and the state government filed its appeal on 1 September 2002 challenging the acquittal of Taurani and Abdul Rashid Dawood Merchant.
According to lawyers connected with the cases, the appeals were admitted in 2002. However, Rauf, who was then serving his life sentence in a Nashik jail, absconded again when he was out on furlough in April 2009.
What was supposed to be a 14-day release turned into a seven-and-a-half-year-long wait before he was finally brought back to India from Bangladesh, where he was arrested and convicted for illegally entering and staying, in 2016.
The high court website shows that Rauf’s appeal was listed at least 70 times over the course of 19 years, with the first available order passed in August 2009. He was arrested and brought back to India in November 2016. Several orders passed by the court before this date spoke about the progress with regard to regaining Rauf’s custody.
The government’s appeal has been listed 25 times since 2005, and was tagged with Rauf’s appeal.
The lawyers connected with the case said the appeals were heard properly only in February and March this year, and the judgment in both the appeals was pronounced only last week, after 19 years, upholding the trial verdict with regard to two accused, but overturning one acquittal.
‘Cold blooded murder’
In its verdict, the high court called this a “cold blooded murder”, and said it had no doubts on Abdul Rauf Merchant having shot at Kumar. The brothers, Abdul Rauf Merchant and Abdul Rashid Merchant, were found guilty under Sections 302 (murder), 34 (common intention) and 120B (criminal conspiracy) of the Indian Penal Code along with provisions of the Arms Act.
It also asserted that Rauf “does not deserve any leniency”, and shall not be entitled to any remissions whatsoever.
With regard to Rashid, the court felt that “there are compelling reasons to set aside the acquittal”. It asserted that Rashid’s role cannot be separate from Rauf’s in any way since both of them shot at Kumar. He has now been asked to surrender within a week and hand over his passport to the authorities.
Commenting on the reversal of the acquittal, senior advocate Satish Maneshinde, who represented the Merchant brothers in the court, told ThePrint: “Turning an acquittal into a conviction needs very insightful grounds…I always feel that the trial court verdict was without any lacunae and having seen the witnesses depose, the trial court was much more aware of the depositions and mannerisms of the witnesses and had an opportunity to see them while deposing so it was more rightful in acquitting the accused.”
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Accused absconded for 7 years and a half
A lawyer associated with the case squarely blamed the delay on the fact that Abdul Rauf Merchant had absconded during the pendency of the appeal.
“If Merchant hadn’t absconded, the trial would’ve taken lesser time,” the lawyer told ThePrint.
However, Maneshinde said a criminal appeal taking 20 years is “unheard of”.
“My clients, waiting for the hearing, have suffered innumerably. It was a hanging sword on their head,” he added.
Maneshinde blamed it on the lack of judges and infrastructural issues in courts. “I really can’t tell you how frustrated we criminal lawyers are because of the lack of judges. 30-40 per cent of the judges’ posts in the high court are vacant. The number of judges has not been increased and infrastructure is not up to what it should be in all the courts.”
‘Quite normal for appeals to take this long’
However, lawyers in the Bombay HC pointed to a more systemic problem with regard to the disposal of criminal appeals.
Mumbai-based criminal lawyer Aditya Mithe told ThePrint: “It is quite normal for appeals to take this long for them to be heard in the Bombay High Court. This (Gulshan Kumar case) may have taken a little longer than usual but it does take about 10 to 12 years between admission of appeals and their final hearing in the Bombay HC.”
However, he said the high court has been taking steps to shorten this period. “For example, there was a scheme that came up a few years back where special benches were constituted during vacations especially to hear pending final hearings in appeals,” Mithe said.
During the pandemic when virtual hearings had begun, Mithe said, the chief justice constituted special benches to list five to six matters a day specifically for final hearings of criminal appeals.
“But these are really small steps. We need more judges, more benches for the waiting time to be reduced,” he added, echoing Maneshinde’s views.
The lawyers connected with the case said the appeals were heard finally only in February and March this year, and the judgment in both the appeals was pronounced only last week, after 19 years, upholding the trial verdict with regard to two accused, but overturning one acquittal.
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