JUDGMENT : V.L. Achliya, J. 1. The appellant (Orig. accused No. 4) has preferred this appeal against the judgment and order dated 7/02/2009 passed by Learned Special Judge (Under the M.C.O.C. Act, 1999), Greater Bombay, in MCOC Special Case Nos. 4 of 2008 and MCOC Special Case No. 4-A of 2008. By said judgment and order the learned Spl. Judge convicted the appellant u/s. 452of the Indian Penal Code and sentenced to suffer RI for three years and to pay fine of Rs. 5,000/-, in default to suffer one year SI. The appellant also convicted u/s. 326 of I.P.C. and sentenced to suffer RI for ten years and fine of Rs. 10,000/- in default to suffer SI for two years. The appellant also convicted of the offence u/s. 506(ii) of the IPC and sentenced to suffer RI for three years and fine of Rs. 5,000/-, in default to suffer SI for six months. The appellant/accused No. 4 was also convicted u/ss. 3(1)(ii) of the Maharashtra Control of Organized Crime Act, 1999 and sentenced to suffer RI for ten years and fine of Rs. 5,00,000/-, in default further RI for three years. The appellant/accused No. 4 was also convicted u/s. 3(4) of the Maharashtra Control of Organized Crime Act, 1999 and sentenced to suffer RI for ten years and fine of Rs. 5,00,000/-, in default further RI for three years. Being aggrieved by the judgment and order the appellant/accused No. 4 has preferred this appeal on various grounds as set out in the memo of appeal. In brief the facts of the prosecution case are as follows: "(i) In nutshell, it is the case of the prosecution that in the year 2007, Ashok Mohnani (PW 8) and his partners were running real estate business in the name of their company "Ekta Developers." They had office at Ekta Terraces, Mahaveer Nagar, Kandivali (W), Mumbai. At the relevant time Laxmikant Salian (PW 1) - the complainant was working with said company as Sales Executive and Ashok Manik (PW 2) was working with said company as Senior Sales Executive. (ii) On 21/12/2007 at about 4.00 p.m. two persons forcibly entered in the office premises of said company at Kandivali and inquired about the owner of the premises and told the person present there that "Poojari ko phone kiya kya? Phone nahi kiya to dekh lenge". (ii) On 21/12/2007 at about 4.00 p.m. two persons forcibly entered in the office premises of said company at Kandivali and inquired about the owner of the premises and told the person present there that "Poojari ko phone kiya kya? Phone nahi kiya to dekh lenge". One amongst them who was holding handgun in his hand and looking like Nepali entered into the premises and fired two shots from the handgun. One of the bullet fired by that person hit Ashok Manik (PW 2). Before firing the bullet from the gun in his hand, the person pointed gun towards Ashok Manik (PW 2) and stated that "Madharchod, kal tak Ravi Poojariko phone aana chahiye, nahi to dekh lenge". After firing and causing bullet injury to Ashok Manik (PW 2), the said person ran away from the premises. Laxmikant Salian (PW 1) and other person present in the office brought injured Ashok Manik (PW 2) to Bhagwati Hospital. Ashok Mohnani (PW 8) - the owner of the Ekta Developing Company was informed about the incident. Police officials also reached at Bhagwati Hospital. They recorded the complaint lodged by Laxmikant (PW8). Later on Ashok Manik was shifted to Lilavati Hospital. On the basis of complaint lodged by Laxmikant Salian (PW 1), the offence u/s. 452, 384 and307 of the Indian Penal Code and Sections 3, 25 and 27 of the Arms Act came to be registered vide C.R. No. 379 of 2007 with Police Station, Kandivali against unknown persons. Spot of incident was inspected in presence of panch witnesses and panchanama was carried out. The clothes of injured were seized. During the course of investigation, the statement of Ashok Manik (PW 2) - the injured, Vijay Londhe (PW 3), Anupkumar Mehta (PW 7), Ashok Mohnani (PW 8), Ramesh Bijlani (PW 22), Vivek Mohnani (PW 23) and other witnesses were recorded. While recording statements of Anupkumar Mehta (PW 7), Ashok Mohnani (PW 8), Ramesh Bijlani (PW 22), and Vivek Mohanani (PW 23), it was revealed that on and before 21/12/2007 they received calls from Ravi Pujari, who demanded extortion money from them. (iii) On 28/01/2008, the officers of C.I.D. (Operation) D.C.B. C.I.D., Mumbai, laid down trap at Palace Theater, Byculla (E), Mumbai. In the trap laid down, they caught two persons viz. Suraj Puran Bahadur (original accused No. 1) and Ravindra Dilbahadur Thapa @ RD (original accused No. 2). (iii) On 28/01/2008, the officers of C.I.D. (Operation) D.C.B. C.I.D., Mumbai, laid down trap at Palace Theater, Byculla (E), Mumbai. In the trap laid down, they caught two persons viz. Suraj Puran Bahadur (original accused No. 1) and Ravindra Dilbahadur Thapa @ RD (original accused No. 2). In the personal search of Suraj Bahadur, they found in his possession one hand gun loaded with live cartridge and one live cartridge. In the personal search of accused No. 2, they found in his possession one knife, one mobile phone and one mobile sim-card. Offences u/s. 3 and 25 of the Arms Act and section 37(1)(a) of the Bombay Police Act came to be registered against them with Police Station Byculla vide C.R. No. 1 of 2008. The weapons recovered from said accused No. 1 & 2 were seized and sealed. During the course of inquiry with said accused, it was revealed that they were involved in the incident dated 21/12/2007. It was further revealed that the firearm which was recovered from the possession of accused No. 1 was used in commission of said offence. Therefore, the custody of both the accused was obtained in C.R. No. 379 of 2007. The investigation of said case was taken over by Crime Branch by registering C.R. No. 20 of 2008. Both the accused were arrested in that case. Further investigation was then transferred to Unit No. 9 of D.C.B C.I.D., Mumbai. (iv) During the course of investigation it was revealed that at the behest of notorious criminal Ravi Poojari, the wanted accused persons viz. 1. Rajendra Somalal Chaudhary aged about 25 yrs. (2) Anna @ Thambi, aged about 22 yrs. (3) Ashraf, aged about 22 yrs. (4) Rahul, aged about 19 yrs. (5) Bunty aged about 27 yrs., and their other associates had hatched a criminal conspiracy to carry out an attack at the office of Ekta Developer at Kandivali (W), Mumbai, as the owner of that firm was not paying heed to the demand of extortion made by their gang leader Ravi Poojari. (v) During the course of investigation on 26/3/2008 the statement of one Kiran Sahil (PW 13) came to be recorded. On the basis of the statement of PW 13, the accused Nos. 3 & 4 were arrested on 27/3/2008. (v) During the course of investigation on 26/3/2008 the statement of one Kiran Sahil (PW 13) came to be recorded. On the basis of the statement of PW 13, the accused Nos. 3 & 4 were arrested on 27/3/2008. In the house search conducted on 30/3/2008 police seized two mobile phones and one sim card from house of accused No. 4. (vi) The muddemal property seized during the course of investigation i.e. handgun/deshi katta with the cartridge were sent to ballistic expert. The information in respect of the call details of the mobile phone and sim-cards seized at the instance of accused Nos. 3 and 4 as well as calls received by PW 7, PW 8, PW 22, PW 23 and other persons were obtained from Tata Communication, Vodafone and MTNL. The statement of the officials of said telephone companies were also recorded. In the course of investigation the confessional statement of accused Nos. 1 and 2 were recorded by PW 15 & 16. On the basis of evidence gathered during the course of investigation the offences u/s. 3 and 4 of the M.C.O.C. Act were added. On completion of investigation, the papers were produced before the competent authority for seeking requisite sanction u/s. 23 of M.C.O.C. Act, 1999 as well as under the Arms Act. After obtaining requisite sanction, the charge sheet was filed in the Court of Special Judge, M.C.O.C.A, Greater Bombay, which was numbered as Spl. Case No. 4/2008. MCOC Special Case No. 4-A of 2008 in respect of charge-sheet filed against Accused No. 1 Suraj and Accused No. 2 Ravindra u/s. 3, 25,27 of Arms Act, tried with MCOC Case No. 4 of 2008 being a part of same transaction of commission of offence. (vii) The appellant along with accused Nos. 1 to 3 were charged for commission of offences punishable under section 3(1)(ii), 3(2) and3(4) of the Maharashtra Control of Organized Crime Act, section 452,384 and 307 r/w 120(B) of the I.P.C. Section 25(1-B)(a), 25(1-B)(a)r/w section 27(1) of the Arms Act and Section 37 r/w 135 of the Bombay Police Act. All the accused pleaded not guilty to the charges framed against them and claimed to be tried. Hence case proceeded against the accused. (viii) The learned Special Judge (MCOC Act) Gr. Bombay by judgment and Order dated 7/2/2009 convicted accused No. 1 and 4 and acquitted the accused Nos. 2 and 3. All the accused pleaded not guilty to the charges framed against them and claimed to be tried. Hence case proceeded against the accused. (viii) The learned Special Judge (MCOC Act) Gr. Bombay by judgment and Order dated 7/2/2009 convicted accused No. 1 and 4 and acquitted the accused Nos. 2 and 3. The appellant was convicted and sentenced to imprisonment as stated in para (1) above. Being aggrieved by said judgment and order, the appellant has preferred this appeal." 2. We have heard Mr. Jagdish Shetty, the learned counsel for the appellant and Smt. Bhonsale, learned APP for the respondent-State. We have perused the oral and documentary evidence on record. We have also examined the reasons and findings recorded by learned Spl. Judge in convicting the appellant. 3. Mr. Shetty, the learned counsel for the appellant by referring the overall case of the prosecution, the evidence adduced by the prosecution and the reasons and findings recorded by the learned Spl. Judge, MCOCA, Mumbai, contended that the reasons and findings recorded by the trial court are totally perverse. He has submitted that the prosecution has examined three eye-witness i.e. Laxmikant Salian (PW 1), Ashok Manik (PW 2) and Vijay Londhe (PW 3). None of them attributed any role to appellant/accused No. 4 in commission of offence, still the learned Spl. Judge has held the appellant guilty of offences u/s. 326, 452 and 506(ii) of IPC and Section 3(1)(ii) and section 3(4) of the MCOC Act. Except the prosecution witness Kiran Sahil (PW 13), and Subhash Limbachiya (PW 24), the panch witnesses to alleged house search of the appellant/accused No. 4, none of the prosecution witnesses have deposed against the appellant. He has submitted that the learned Spl. Judge has treated PW 13 as accomplice. He has submitted that the statement of PW 13 was recorded after the period of about three months after the incident. The learned counsel has pointed out that the testimony of PW 13 is vague and there is no corroboration to his testimony. He has submitted that it is a settled legal position in law that the evidence of an accomplice should be corroborated by some other evidence. He has submitted that the testimony of PW 13 is full of contradiction and not worth to be relied to base the conviction. He has submitted that it is a settled legal position in law that the evidence of an accomplice should be corroborated by some other evidence. He has submitted that the testimony of PW 13 is full of contradiction and not worth to be relied to base the conviction. The learned counsel has further argued that prosecution has failed to adduce cogent, convincing and reliable evidence to connect the appellant with organized crime syndicate of alleged gangster Ravi Poojari. Although the prosecution has examined Ashok Mohnani (PW 8), Ramesh Bijlani (PW 22) Vivek Mohnani (PW 23) and Anupkumar Mehta (PW 7) to establish the threats and demand of money from gangster Ravi Poojari but none of these witnesses have deposed against the appellant. So also the call data reports produced as evidence no way connect the appellant with gangster Ravi Poojari or any activities of organized crime syndicate. He has further submitted that investigating officer Shri Chavan (PW 33) has admitted in the cross-examination that in the copies of the charge-sheet of two cases (Exh.-86 & 87), relied by prosecution, the appellant is not shown as accused in those cases. He has further submitted that the reasons and findings recorded by the learned Spl. Judge are perverse, based upon conjectures and surmises. He has submitted that for want of cogent, convincing and legally sustainable evidence, the conviction of appellant deserves to be set side. 4. On the other hand, Mrs. Bhonsale, learned APP for the State has supported the judgment and order passed by the trial court. By referring the testimony of Kiran Sahil (PW 13), and Subhash Limbachiya (PW 24) and call detail reports, the learned APP has submitted that the prosecution has established the complicity of the appellant in commission of offence. 5. In order to appreciate the submissions advanced, we have thoroughly examined the evidence adduced by the prosecution as well as the reasons and findings recorded by the learned Spl. Judge in convicting the appellant for offences u/s. 452, 326, 506(ii) of IPC and Section 3(1)(ii) and 3(4) of MCOC Act. The learned Spl. Judge has acquitted the appellant/accused u/s. 384, 307 and Section 120-B of IPC and Section 37 r/w Section 135of Bombay Police Act. 6. The conviction of appellant is mainly based upon the testimony of Kiran Sahil (PW 13), Subhash Limbachiya (PW 24) and call data reports Exhibits 59, 61 and 72. 7. The learned Spl. Judge has acquitted the appellant/accused u/s. 384, 307 and Section 120-B of IPC and Section 37 r/w Section 135of Bombay Police Act. 6. The conviction of appellant is mainly based upon the testimony of Kiran Sahil (PW 13), Subhash Limbachiya (PW 24) and call data reports Exhibits 59, 61 and 72. 7. We have already discussed in the foregoing paras the brief facts of the prosecution case. If we consider the case of the prosecution then according to prosecution on 21/12/2007, the accused No. 1 Suraj and Ravindra Thapa, the accused No. 2 entered into the premises of Ekta Builder and gave threats in the name of Ravi Poojari the gangster, who runs organized crime syndicate. As per the case of the prosecution the accused No. 1 has caused the firing in the premises which has resulted into causing bullet injury to Ashok Manik (PW 2). It is nowhere the case of the prosecution that the appellant/accused No. 4 was accompanied with accused Nos. 1 and 2, while entering into the premises of Ekta Developer at the time of incident dated 21/12/2007 or committed any overt act in commission of offence. So also there is no case of the prosecution that appellant/accused No. 4 was involved in hatching conspiracy along with gangster Ravi Poojari and other absconding accused. In fact as per prosecution case the appellant was working at the instance of gangster Ravi Poojari and making payment on his behalf to persons engaged for executing criminal acts as per the instructions of gangster Ravi Poojari and his organized crime syndicate. 8. The prosecution has examined Laxmikant Salian (PW 1), the complainant and eye-witness to incident dated 21/12/2007, Ashok Manik (PW 2), the person who sustained bullet injury in the incident dated 21/12/2007, and Vijay Londhe (PW 3) the another witness who had seen two persons entering into the premises and to whom threats in the name of gangster Ravi Poojari were given and who also witnessed the incident of firing. None of these witnesses have deposed a single word against the appellant/accused No. 4. The learned Spl. Judge has acquitted the appellant and all other accused u/s. 120-B of IPC. None of these witnesses have deposed a single word against the appellant/accused No. 4. The learned Spl. Judge has acquitted the appellant and all other accused u/s. 120-B of IPC. In absence of any charge being proved u/s. 120-B or accused being charged u/s. 34 of IPC with co-accused, the conviction of the appellant is not sustainable in law for the offences proved against accused No. 1 in relation to incident dated 21/12/2007. 9. According to prosecution the incident dated 21/12/2007 was committed pursuant to criminal conspiracy hatched by gangster Ravi Poojari and wanted accused in which accused Nos. 1 to 4 were also involved. The learned Judge has acquitted all the four accused from charge u/s. 120-B as well as Sec. 384 of IPC. Therefore, the appellant/accused No. 4 cannot be roped in with other accused, who participated in incident dated 21/12/2007. There is no iota of evidence to show the participation of appellant/accused No. 4 in relation to incident dated 21/12/2007. 10. The conviction of the appellant is mainly based upon the testimony of Kiran Sahil (PW 13) and Subhash Limbachiya (PW 24). It is, therefore, necessary to examine their evidence in detail. It is pertinent to note that the learned Spl. Judge though held appellant/accused No. 4 guilty on the basis of testimony of Kiran Sahil (PW 13) but at the same time acquitted accused No. 3 Divakar Shetty, on the basis of testimony of same witness. 11. The prosecution has examined Kiran Sahil as PW 13. His testimony is at Exh.-34. He has deposed that in the month of March, 2008, he was called at the office of Crime Branch. ACP Chavan (PW 33) recorded his statement. Later on he was produced before the Magistrate at Borivali Court, on 2/4/2008 and Magistrate has recorded his statement. He has further deposed that in the year 2006 during the period of Divali he came in contact with accused No. 4 - Ranjan and developed friendship with him. He gave him, his mobile number 9870422470 to contact him. In the month of October 2007 Ranjan came to his locality and during their meeting he gave his mobile No. 9323982182 to Ranjan (accused No. 4). In the month of October (day and year is not stated by the witness) Ranjan made phone call to him and asked to accompany him to go to hospital at Vashi. In the month of October 2007 Ranjan came to his locality and during their meeting he gave his mobile No. 9323982182 to Ranjan (accused No. 4). In the month of October (day and year is not stated by the witness) Ranjan made phone call to him and asked to accompany him to go to hospital at Vashi. Therefore, he accompanied with him to Vashi. He was made to wait outside the gate of the hospital. He told him that he will come back after paying Rs. 50,000/- to some person. After he came back from hospital, he told him that Divakar Shetty - accused No. 3 and Ravi Poojari had directed him to pay amount at Vashi. Next day he introduced him to Divakar Shetty. He gave him his cell number 9892073555. He has further deposed that he was offered to work as per the direction of 'Uperwala' (their boss) and further told him that they will pass on his instructions to him and for doing their work they will pay money to him. He has further deposed that in the second week of October, (no details of date and year given stated witnesses) he was called by Ranjan Kadri (accused No. 4) near Ghatkopar Station and asked him to find out the office of builder (No particulars of place, builder etc. stated by the witness). He has further deposed that he had shown the address to two persons, who were given code as 'Ram and Shyam'. In the third week (particulars of month and year are not given), he received phone call from Ranjan (accused No. 4). He accompanied with him to Santacruz to show the address of builder at Khera Nagar to two persons. Then in the first week of November (no particulars of date, month and year stated by witness) Ranjan (accused No. 4) phoned him and stated that he has received Rs. 1 lac from Ravi Poojari and same is to be paid to two persons as delivery. Therefore, he went to Sahakar Cinema at Tilak Nagar and from PCO he made phone call. He paid Rs. 50,000/- to one person after matching code and then went to Ghatkopar Station and paid Rs. 25,000/- to another person. He kept Rs. 5,000/- for himself and remaining Rs. 20,000/- were kept by Ranjan (accused No. 4). Therefore, he went to Sahakar Cinema at Tilak Nagar and from PCO he made phone call. He paid Rs. 50,000/- to one person after matching code and then went to Ghatkopar Station and paid Rs. 25,000/- to another person. He kept Rs. 5,000/- for himself and remaining Rs. 20,000/- were kept by Ranjan (accused No. 4). He has further deposed that he continued to work with Ranjan on the instructions of Divakar Shetty (accused No. 3) and their boss upto December, 2007. 12. Kiran Sahil (PW 13) has further deposed that in the second week of December, (no particulars of date and year are stated by the witness), he received phone call from Ranjan (accused No. 4) and asked to show address of Ekta Builder in Kandivali, East and West. At 9 O'clock in the night one person came there. He was Nepali, Rajendra. He showed him the office of Ekta Builder. He paid him Rs. 1 lac at Thane Station. In second week of November, he along with Ranjan went to Sun Shine Hotel at Kandivali and after matching the code word paid Rs. 2 lacs to that person. In the month of May, he received phone call from Divakar Shetty and in same night he paid Rs. 1 lac to that person at Thane. He paid Rs. 50,000/- to a person near Holy Spirit Hospital after matching the code word Ram and Shyam. He kept Rs. 20,000/- for himself and Rs. 30,000/- was kept by Ranjan. 13. In the cross-examination PW 13 has deposed that on 24th March, a message was kept at home by two constables that he was called by ACP Chavan. He first time met ACP Chavan on 26th March 2008 at Kandivali. He did not ask Mr. Chavan as to who has given his cell number nor Mr. Chavan said anything to him. He has denied the suggestion that he was taken for inquiry to the office of DCB CID - Unit No. 7 as well as called to Unit No. 3 at Lower Parel. He has also denied the suggestion that he was detained in crime branch since 7th February. He has also denied that he was regularly called for 15 days in the office of DCB CID. In the cross-examination he has admitted that Divakar Shetty (accused No. 3) has not given his cell number to him. He has also denied the suggestion that he was detained in crime branch since 7th February. He has also denied that he was regularly called for 15 days in the office of DCB CID. In the cross-examination he has admitted that Divakar Shetty (accused No. 3) has not given his cell number to him. He has stated that he has no knowledge that Divakar Shetty was owner of Deepa Bar. In further cross-examination, he has stated that his statement was recorded only once. He has deposed he was called in the office of Crime Branch before recording his statement on 26th but his statement was not recorded as officer was busy in the meeting. He was asked to come on next day. At that time he was told that inquiry is regarding some case. He has categorically stated that he was not knowing that inquiry was regarding accused in this case. He has further deposed that first time he learnt that the inquiry relates to this case when his statement was recorded. He has further deposed that he was only told that they were making inquiry with him about persons who is above him. He has further deposed that at the time of recording of his statement he has stated that 'do ladke wahan pe aaye the' but he is unable to state as to why police have recorded in his statement regarding only one person. He has further deposed that he has stated before the police regarding incident occurred in first week of November about money received from Ravi Poojari and same was to be given to two persons. He has deposed that he is unable to state as to why said fact is missing from his statement. He has further deposed that he has not visited Vashi on his own motorcycle. 14. If we consider the testimony of PW 13 in its totality then there is no consistency in the facts deposed by the witness. So also the testimony is vague. There are no specific dates, time etc., stated before the court in respect of various instances deposed by the witness. As per the case of the prosecution more than one person were involved in incident dated 21/12/2007. The witness has deposed in respect of only one person. So also the testimony is vague. There are no specific dates, time etc., stated before the court in respect of various instances deposed by the witness. As per the case of the prosecution more than one person were involved in incident dated 21/12/2007. The witness has deposed in respect of only one person. The witness has not identified any of the accused before the court to whom he has paid the amount on and before 21/12/2007 and shown them the office of Ekta Builder. The witness has deposed in the cross-examination that while recording his statement the police have only inquired about the persons above him. He has categorically stated that at the time of inquiry made with him, he was not knowing that the inquiry was in respect of accused person. At the time of recording of statement he first time came to know that inquiry was about the accused. 15. The testimony of PW 13 is without any corroboration. From the fact deposed by the witness, it reveals that he himself involved in commission of offence. There is no evidence on record that he was made approver. From the facts deposed by the witness, the witness can be termed as accomplice. Although it is well settle position in law that the evidence of accomplice can be relied upon if found to be voluntary and free from pressure. Otherwise the court should not rely such testimony unless corroborated by some other evidence. From the facts deposed by the witness itself the inference can be gathered that the statement was not voluntary. He was called in the office of ACP Chavan by the police constable and later on his alleged statement was recorded. It is, therefore, highly unsafe to place reliance on uncorroborated testimony of such witness. In our assessment the testimony of PW 13 inspires no confidence and sole testimony of such witness cannot form basis to convict the person. In this context the learned counsel for the appellant has rightly placed reliance on judgment of Apex Court in the case of Francis Stanley @ Station v. Intelligence Officer, Narcotic Control Bureau, 2007 CRI. L.J. 1157 : [2007 ALL SCR 675]. 16. It is pertinent to note that the prosecution has examined ACP Chavan (PW 33) the investigating officer. His testimony is at Exh.-85. L.J. 1157 : [2007 ALL SCR 675]. 16. It is pertinent to note that the prosecution has examined ACP Chavan (PW 33) the investigating officer. His testimony is at Exh.-85. He has deposed in detail as to investigation conducted by him in respect of incident of firing occurred in the premises of Ekta Builder at Kandivali. He has deposed that on 26/3/2008 he recorded statement of Kiran Sahil (PW 13), whose statement was also recorded u/s. 164 of Cr. P.C. on 27/3/2008. Thereafter he arrested Divakar Shetty (accused No. 3) and Ranjan Kadri (accused No. 4). In the house search of Divakar Shetty (accused No. 3) mobile phone and passport was seized and in the house search of Ranjan Kadri (accused No. 4) three mobiles were seized. He has not utterd a single word as to connection of accused Nos. 3 and 4 with incident dated 21/12/2007 and their connection with activities of organized crime syndicate. He has also not deposed about the cell phone numbers seized from the house of appellant accused No. 3 and its connection with the incident dated 21/12/2007 and unlawful activities of organized crime syndicate of gangster Ravi Poojari. It is pertinent to note that the appellant was arrested on 27/3/2008. Whereas the house search panchnama was made on 30/3/2008. The alleged recovery was not made pursuant to any statement of the accused recorded u/s. 27 of Evidence Act leading to discovery of fact relating to commission of offence. There are material contradictions in the testimony of PW 33 and PW 24 i.e. the panch witness to alleged house search panchnama Exh.-69. It is, therefore, unsafe to rely upon such recovery. 17. The prosecution has examined Subhash Limbachiya (PW 24), the panch witness of house search and alleged recovery made from the house of Divakar Shetty (accused No. 3) and Ranjan (appellant/accused No. 4). He has deposed that on 30/3/2008 he was called at police station. Police officer told him that he has to accompany them for house search of accused. Therefore, he went to house of Ranjan. From cupboard in his house two mobiles and one sim card of MTNL was found which was seized by the police. Then they went to house of Divakar Shetty (accused No. 3) in Thane. From the cupboard in the house of accused No. 3 - Divakar Shetty, one passport and xerox copy of lease agreement was seized. From cupboard in his house two mobiles and one sim card of MTNL was found which was seized by the police. Then they went to house of Divakar Shetty (accused No. 3) in Thane. From the cupboard in the house of accused No. 3 - Divakar Shetty, one passport and xerox copy of lease agreement was seized. The seizure panchnama of alleged house search is at Exh.-69. The witness has not deposed specifically about the cell numbers seized from the house of accused No. 4. The alleged sim card was also not produced before the court (as noted in the deposition of PW 24). It is pertinent to note that PW 13 has deposed before the court that he has provided his cell number to accused No. 4 to contact him. He has mentioned his cell number as 9323983182. It is pertinent to note that the cell phone of Kiran Sahil (PW 13) i.e. cell No. 9323983182 is shown as recovered in the house search of appellant/accused No. 4. This fact itself raises serious doubt as to genuineness of seizure of two cell phones from the house of appellant/accused No. 4. The prosecution has failed to explain as to how the cell phone of its witness Kiran Sahil (PW 13) recovered from the house of appellant/accused No. 4. 18. If we consider the panchnama Exh.-69 then recovery of two mobile phones with mobile Nos. 9820550984 and 9323983182 as well as one sim card of MTNL is shown to be recovered from house of appellant/accused No. 4. Where as ACP Chavan (PW 33) has deposed that mobile phone and passport was seized from house of accused No. 3 - Divakar Shetty. However, the panchnama (Exh.-69) no recovery of mobile phone shown as made from the house of accused No. 3. According to PW 33, three mobiles were seized from accused No. 4 Ranjan, whereas the panchnama shows recovery of two mobiles. As per the fact deposed by Kiran Sahil (PW 13) the accused had given his phone number as 9870422470 and he gave his mobile number as 9323983182. Thus the alleged recovery of mobile phones from the house of appellant/accused No. 4, is not free from suspicion and raises serious doubt as to overall creditability of testimony of prosecution witness PW 24 and PW 33. 19. The another circumstance relied by the learned Spl. Thus the alleged recovery of mobile phones from the house of appellant/accused No. 4, is not free from suspicion and raises serious doubt as to overall creditability of testimony of prosecution witness PW 24 and PW 33. 19. The another circumstance relied by the learned Spl. Judge in convicting the appellant is that the prosecution has established the connection of appellant with gangster Ravi Poojari on the basis of the testimony of Ashok Mohnani (PW 8), Ramesh Bijlani (PW 22) and Vivek Mohanani (PW 23) coupled with the call details reports Exhibits -58, 61 and 72. The learned Spl. Judge has observed that the cell phone number 9820550984 recovered from the house of accused No. 4 linked with cell number 37747607635 allegedly used by gangster Ravi Poojari in causing threat to Ashok Mohanani (PW 8) as some of the calls from said number found to have been received on said cell number of accused No. 4. The learned Spl. Judge has further observed that from call data record produced at Exh. 58 by Dhirendra Sinha (PW 20) the officer from Tata communication indicates that the partners of Ekta Builder had received phone calls from mobile numbers 37747608493, 37747607639 and 37747607635 from Ravi Poojari. The learned Spl. Judge has observed that from call details at Page No. 4 of Exh.-58 indicates that from cell No. 37747607635 call was received on cell No. 9820550984 on 9/1/2008. Similarly the call was also received on cell No. 9870176362 on 12/1/2008. 20. In our view, the aforesaid circumstance relied by the learned Spl. Judge to connect the appellant in commission of offence and his association with gangster Ravi Poojari is not sufficient to base the conviction. It is pertinent to note that none of the prosecution witness including PW 13 has deposed that appellant/accused No. 4 was using cell number 9820550984. On the contrary the prosecution witness PW 13 has deposed that appellant/accused No. 4 has given his mobile phone number to him as 9870422470. We have already discussed in the foregoing para that the alleged recovery of two mobile phone i.e. 9820550984 and 9323983182 itself found to be doubtful and not reliable for the reasons discussed in detail in the foregoing para. Admittedly 9820550984 found to be stand in the name of Mohd. Yusuf (PW 28) and not in the name of appellant/accused No. 4. Admittedly 9820550984 found to be stand in the name of Mohd. Yusuf (PW 28) and not in the name of appellant/accused No. 4. PW 28 has deposed that he has not obtained said cell number. No documents are produced as evidence in respect of said phone. PW 24 has deposed that one mobile phone was seized from the house of accused No. 3 Divakar and three mobile phones were seized from the house of accused No. 4. Whereas the recovery panchnama shows that two mobile phones were seized from the house of accused No. 4 which includes the mobile phone number 9323983182, which was possessed by Kiran Sahil (PW 13). The said witness has nowhere deposed that said cell phone was given by him to appellant/accused No. 4. It is pertinent to note that the statement of PW 13 was recorded on 26/3/2008 and at that time also he has mentioned his contact number as 9323983182. 21. Ramesh Bijlani (PW 22) the partner of Ekta Builder has not deposed anything as regards the caller number of phone calls received from gangster Ravi Poojari on his cell number 9821111856. The other prosecution witness Vivek Mohanani (PW 23) has deposed that he received phone calls on his cell number 9820079447 from Ravi Poojari to which he has not responded. On 19/5/2006 he received call from person who disclosed his name as David and asked to contact Ravi Poojari on phone No. 377747608493. Thus both the witnesses have not deposed as regards receipt of calls from phone No. 37747607635 which is alleged to be used by gangster Ravi Poojari with which the cell No. 9820550984 alleged to be recovered from house search of accused No. 4, has been connected as incriminating circumstance against the appellant/accused No. 4. The prosecution has examined Anupkumar Mehta, the Sales Manager of Ekta Builder who alleged to have received call from gangster Ravi Poojari. He has deposed that he has received one phone call on 21/12/2007 from gangster Ravi Poojari and he was given international phone No. 003774760763 to contact Ravi Poojari by the owners/partners of Ekta Developer. Thus the testimony of PW 7 also not establishes the use of cell number 37745607635 by gangster Ravi Poojari and its connection with alleged cell phone No. 9820550984 recovered from the house search of accused No. 4. Thus the testimony of PW 7 also not establishes the use of cell number 37745607635 by gangster Ravi Poojari and its connection with alleged cell phone No. 9820550984 recovered from the house search of accused No. 4. Except the prosecution witness Ashok Mohnani (PW 8) no other witness has deposed about receipt of phone from caller having international phone No. 0037745607635. PW 8 has deposed that on 14/1/2008 he received phone call from phone number 0037745607635 on his mobile No. 9820261222. He has further deposed that other phone calls which he has received of which last digit was 9 instead of 5. The prosecution has produced call details report in respect of said cell No. 37747607635 of the period 1/9/2006 to 19/2/2008 and same is at Exh.-58. The call details report reflects that on 14/1/2008 only two phone calls were made from cell No. 37747609635 and that too on phone No. 9739467568. The call data report reflects that no phone call was made and received on 14/1/2008 on the cell number of Ashok Mohnani (PW 8) i.e. cell No. 9820226122. It is no where the case of prosecution that cell No. 9739467568 belongs to Ashok Mohnani. Thus the facts deposed by PW 8 finds no corroboration from the call data report Exh.-58. On the contrary the call data report obtained from Vodafone company in respect of mobile No. 9820226122 of PW 8, produced at Exh.-61 reflects that on 14/1/2008 only one phone call was received on that phone and that from No. 00401. It nowhere reveals the receipt of phone call from cell No. 0037745607635. The IMEI number of said phone call is shown as 355772018620870. Thus the evidence on record nowhere establishes the connection between appellant/accused No. 4 and gangster Ravi Poojari on the basis of call data record and the testimony of PW 7, PW 8, PW 22 and PW 23. It appears that learned Spl. Judge has misread the evidence on record in recording his conclusion as to connection between appellant and gangster Ravi Poojari on the basis of alleged call data report. Therefore, the finding of guilt of accused No. 4 on the basis of call data record are totally contrary to evidence on record. 22. It appears that learned Spl. Judge has misread the evidence on record in recording his conclusion as to connection between appellant and gangster Ravi Poojari on the basis of alleged call data report. Therefore, the finding of guilt of accused No. 4 on the basis of call data record are totally contrary to evidence on record. 22. We have already discussed in the foregoing paras that prosecution witness Kiran Sahil (PW 13) has deposed that he was using mobile phone No. 9323983182 and he had given said phone number to accused No. 4 to contact him. In the statement of PW 13 recorded on 26/3/2008 he has given his contact number as 9323983182. The appellant was shown to be arrested on 27/3/2008. Surprisingly the cell phone No. 9323983182 is shown as recovered from house of accused No. 4 on 30/3/2008 during the house search. Perusal of call detail report reflects that on 27/12/2007 three times the calls were received from phone 37747607635 allegedly used by gangster Ravi Poojari, which leads to inference that Kiran Sahil (PW 13) was directly in contact with Ravi Poojari. Due to this season also no reliance can be placed on oral testimony of Kiran Sahil (PW 13) to form as basis to convict the appellant. For this reason also the conviction of appellant is not sustainable in law. In view of conclusion to which we have received, we are of the view that the appellant is entitle to be given benefit of doubt. In view of the discussion made in the foregoing para and the conclusions to which we have reached, that the reasons and findings recorded by the learned Spl. Judge in convicting the appellant are found to be perverse and based upon improper appreciation of evidence on record resulting into miscarriage of justice, the appeal deserves to be allowed and conviction of appellant is liable to be set aside. We are therefore, inclined to allow this appeal. In the result, we pass the following order: ORDER "(1) The Criminal Appeal No. 186 of 2009 filed by the appellant is allowed in terms of prayer clause (a). (2) The judgment and order of conviction dated 7/2/2009 passed in Spl. We are therefore, inclined to allow this appeal. In the result, we pass the following order: ORDER "(1) The Criminal Appeal No. 186 of 2009 filed by the appellant is allowed in terms of prayer clause (a). (2) The judgment and order of conviction dated 7/2/2009 passed in Spl. Case No. 4/2008 and 4A/2008 to the extent of appellant/accused No. 4 i.e. Ranjan Mohandas Kadri, convicting him for offences u/s. 452, 326, 506(ii) of IPC and Section 3(1)(ii) and Section 3(4) of MCOC Act, 1999, is hereby set aside. (3) The appellant/accused No. 4 Ranjan Mohandas Kadri be set at liberty, if not required in any other case.