S.N.
Dube Vs. N.B. Bhoir & Ors [2000] INSC 11 (12 January 2000)
G.T.Nanavati, S.P.Kurdukar Q.T. Nanavatt. J.
1. One
Suresh Dube was shot dead on a platform of Nalasopara (a suburb of Bombay) Railway Station in broad day
light. Many persons saw it and many knew who were the murderers. Because of the
terror of the gangs Involved none except two persons, one accompanying the
deceased and the other who was at that time polishing shoes of that person,
have come forward to give evidence against the murderers.
One
Mukesh Ratilal Shah (P.W.13), who was injured by one of the bullets fired at
that time, has thought it fit not to ,r)arr)e the person who had fired the
shot. initial dishonest investigation by the police, on account of close nexus
between those gangs and some of the police officers of the area where the said
gangs were operating, not only delayed the prosecution of the real culprits but
also weakened it considerably. On these allegations 17 ^ persons (thirteen
belonging to the two gangs and four police officers) were tried in the Court of
the Judge, Designated Court, Pune in Terrorist Sessions Case No. 32 of 1993 and
Terrorist ri Sessions Case No. I of 1996 (amalgemated with original TSC No.
32/1993), for the murder of Suresh and for commission of terrorist acts and
other offences .The trial Court did not consider it safe to convict them on the
basis of the prosecution evidence and, therefore, acquitted them of aH the
charges. Shyam Sunder Dube, brother of Suresh Dube, feeling aggrieved by the
acquittal has filed Criminal Appeal No. 678 of 1997. The State of Maharashtra has also filed Criminal Appeal Nos.
709-710 of 1997.
2. The
prosecution case is as follows:
(a)
Nalasopara is a suburb of the City of Bombay.
Formerly
it was a small and a quite place but with the expansion of the city of Bombay It also started growing.
Development
of lands and construction of buildings became a lucrative business. That also
led to illegal activity of land grabbing, compulsory s^les and forcible taking
of possession of lands. Those Illegal activities were carried on by the gangs
of Pendhad, Suresh Dube and Bhal Thakur since 1980. In 1984 ManikPatil's gang
also started operating in Nalasopara area. Bhai Thakur's gang was operating
from Virar, a nearby suburb and the last station for the suburban trains
running between Churchgate (Mumbai) and Virar. Often there were conflicts and
fights between these gangs and because of that one Ram Naresh Chourasiya-was
murdered in 1984 and Bharat Pendhari was murdered in 1989. Dube brothers having
made money stopped that illegal activity one or two years prior to the date of
the incident, but continued to carry on the business of land development and
construction of buildings. One of the Dube brothers. Dr. 0m Prakash Dube
(P.W.I) had opened a Nursing Home on the first floor of their building called
'Dube Estates'. Naresh (P.W.3) was doing business of building materials.
Another brother Jai Prakash (P.W.4) was looking after their Pandava Hotel.
Shyam Sunder Dube and Suresh Dube continued to look after land development and
building activity. All the brothers were residing on the second floor of 'Dube
Estates'.
(b)
Dube brothers had agreed to purchase one land bearing Survey No. 110 ofViHage
Achole and some other lands of nearby places. Bhai Thakur wanted those lands
and had forcibly taken possession of them. Bhai Thakur wanted Dube brothers to
transfer Survey No. 110 ofAchole to him and for that reason had called Suresh
Dube at his office In Virar a few days prior to 9.10.1989. As the relations between
Bhai Thakur's gang and Dube brothers were Inimical Suresh Dube was not allowed
to go alone to Bhai Thakur's office. Dr. 0m
Prakash had accompanied him. In his office Bhai Thakur, his brother Hitendra
Thakur and other associates were present. They had told Suresh Dube to part
with that land and also to pay 'haftas" to Bhai Thakur If he and his
brothers wanted to remain in Nalasopara and carry on the land development and
building construction activity. Suresh Dube was even threatened and warned that
if he did not comply with that demand and took any other action, then the
members of his family shall have to perform 'aarti' of his photo within a short
time. Because of this threat Suresh Dube was not moving out of his house since
then. As there was no response from Suresh Dube Bhai Thakur and his associates
decided to finish him. On 8.10.1989 a warning was given to him on telephone
that If he did not transfer that land to Bhal Thakur he would be finished. On
that day at night one Srikant Pandey, who was working with Bhai Thakur and had
some contact with Suresh, went to the house of Suresh and tried to convince him
that If he wanted to remain alive It was advisable for him to give up the land
and go away to his native place. On account of this serious threat Surash and
his brothers had decided that Suresh should leave Nalasopara and stay at his
native place till there was danger to his life.
(c)
Since a few days prior to 9.10.1989 Amarnath Tripathi (P.W.48), brother-in-law
of Suresh, had come to Nalasopara and was staying with them. He had to go to
Vilay Parle (another suburb of Bombay) to^see
a boy in connection with marriage of his brother's daughter. Suresh also wanted
to go in that direction for purchasing a ticket for going to his native place Gorakhpur, in Uttar Pradesh. Both of them,
therefore, left their house for going to Nalasopara Railway Station at about 10.15 A.M. They reached the station within about two minutes
time. There were many passengers on the platform. As the train by which they
wanted to go towards Churchgate (Mumbal) side was running late Suresh purchased
a newspaper from a stall on the platform and started reading It. Amarnath
Tripathi went to a shoe polish wala, who was siting near that stall, for
getting his shoes poHshed. OB
(d) The gang
of Mamk Patll had accepted supermacy of the gang of Bhai Thakur and both the
gangs were cooperating with each other i'n committing terrorist acts and In
carrying on the illegal activities of land grabbing and forcible purchasing of
lands. In September 1989, it was decided between the two gangs that Bhai Thakur
would liquidate the person whom the gang of Manik Patil wanted to eliminate and
that Manik Patil's gang would do away with Suresh Dube.
Bhai
Thakur's gang had already done their job but Manik Patii's gang was not able to
finish Suresh. Bhai Thakur was, therefore, very angry with Manik Patil's gang
and had sent messages that the work should be finished as early as possible.
The members of Manik PatiTs gang were, therefore, keeping a watch over the house
of Suresh Oube. On 9.10.1989 one of the members of the gang saw Suresh going
towards the railway station and after locating his position immediately rushed
to the nearby hotel belonging to Manik Patil and Informed other members of the
gang including Narendra Bhoir (A-1) about the presence of Suresh on platform
No. 2. So Narendra Bhoir and some other members of the gang who were present
there rushed to the. platform. Narendra was armed with a pistol. Other members
of the gang were also variously armed. Narendra found Suresh standing near the
newspaper stall and then fired three shots from a close range. Suresh got
injured and fell down on the platform.
Narendra
went near him and fired one more shot. One of the shots fired by Narendra also
caused an injury to Mukesh (P.W.13). After thus killing Suresh ail those
assailants ran away from that place.
(e)
Someone known to Dube brothers immediately ran to their house and informed
Shyam Sunder that Suresh was shot dead on the railway platform. One of the two
persons who had als(9 accompanied Amarnath to the railway station went back and
informed Naresh (P.W.3) about the incident. Shyam Sunder along with his
brothers rushed to the platform and brought bacic his brother to their house
with the help of others. Dr. OfTiv Prakash, Dr. Ajmera and Dr.Bindwani, who
were present in the Nursing Home found Suresh dead.
(f)
Within a very short time PI Kukdol^ar, who was in-charge of Vasai Police
Station, went to the house of Dube brothers, and first talked to Dr. Dube
(P.W.I) and tried to persuade him not to Involve Bhai Thakur and then
threatened him by stating that if he involved Bhai Thakur, then the
consequences would be serious for him. Thereafter, PSI Padekar, attached to
Pa'ghar Railway Police Station had gone to the house of Dube brothers and made
enquiries about the incident. Because of the threat given by PI Kukdoikar and
also because they knew that the police was protecting and helping the gang of
Bhai Thakur they did not lodge any complaint. A complaint (Ext. 615) was
prOBared by PSI Padekar in present of PI Kukdoikar on the basis of what was
stated by Shyam Sunder (P.W.2) and his signature was taken thereon. Police
Inspectors Kukdoikar and Nimbalkar often used to visit the house of Dube
brothers and threaten them not to disclose the name of Bhai Thakur as he was a
strong man and whoever complained against him was killed by him.
Investigation
was not made honestly. Some of the em'pties found from thel platform were
substituted or tampered with.
^ At
the instance 6f Police Inspectors Kurdolkar and Nfrnbalkar and Bhai Thakur,
Patric (A-4) and Anant Shankar Patil (A-11) were arrested as the persons
responsible for the murder of Suresh. A revolver was recovered at the instance
of A- 4 as the weapon with which Suresh was killed.
Those
two accused were then charge-sheeted and put up for trial before the Sessions
Court, Thane in Sessions Case No.88/91.
Hearing of the said case could not proceed further as both the accused were
shownlabsconc^ng after they were released on ball and no effort was made by the
police for getting warrants issued for securing their presence before the
court.
(g) On
February 19, 1992 the police set up at the Vasai
police station and Palghar railway police station, within whose jurisdiction
those gangs were operating, had changed. DIG Suradkar (P.W.75) of the Railways,
during his visit to Palghar railway police station, had an occasion to look
into the investigation papers relating to the murder of Suresh. He became
suspicious about honesty of the investigation and identity of the real
assailants. He, therefore, sent for Shyam Sunder Dube to know the truth. In
view of the attitude of the police till then Shyam Sunder did not personally
go. but sent his mother Bhagwati (P.W.5) and Dr. Ritu, wife of Dr.Om Prakash
Dube. They complained to him about the dishonest investigation made by PSI
Padekar and PI Berge and the role played by Pis Kukdolkar and Nimbalkar. On
being assured by Suradkar that proper investigation will be made, a written
complaint (Ext. 237) was then given by Dube brothers on 18.5.1992. Suradkar
forwarded it to DSP Deshmukh for further enquiry. The enquiries made by him and
PI Shinde revealed that the gangs of Bhai Thakur and Manik Patil were
committing terrorist acts in Nalasopara and surrounding areas, they had created
a reign of terror and that Suresh was Killed by a person belonging to the gang
of Manik Patil at the instance of Bhai Thakur. Deshmukh, therefore, submitted a
report under Section 173(8) of the Code of Criminal Procedure to the Sessions
Court at Thane and sought permission for re-investigation of the case.
Permission was granted.
Further
investigation made by Mr. Deshkukh and his officers revealed existence of the
gangs of Bhai Thakur, Bharat Pendhari, Suresh Dube and Manik Patil. It also
revealed that Bhai Thakur's brothers Hitendra Thakur (A-9) and Deepak Thakur,
Prashant Rajaram Tandel (A-8), Istiyak Mukhtyar Khan (A-13) and some others
were members of the Bhai Thakur's gang. It also revealed that terrorist acts
were committed by the gangs of Bhai Thakur and Manik Patil and that those two
gangs were responsible for the murder of Suresh Dube.
During
the Investigation by Deshmukh A-1 discovered a pistol from which he had fired
shots at Suresh. A-1 to A-8 and A-11 also made confessions about the terrorist
acts committed by the two gangs, the motive for committing murder of Suresh
Dube, the manner In which it was committed and how accused Nos. 14 to 17 had
helped Bhai Thakur In concealing rea' offenders.
3. Pi
Dssai (PW 90), who took over the investigation after superannuation of Deshmukh
on 30.6.1993, submitted a charge-sheet to the Designated Court on 27.8.1993 against A-l to A-ll and deceased accused
Narayan Gauda. Thereafter, supplementary charge-sheets were filed against A-12
to A-17 on different dates. The Designated Court, however, took cognizance against A-l to A13 only as no
sanction to prosecute A-14 to A-17 was obtained under the TADA Act.
Their
case was, therefore, forwarded to the Sessions Court at Thane. Later on
sanction was obtained to prosecute those police officers also under the TADA
Act and their case was amalgamated with the original T.S.C. No. 32/1993 and the
charge was suitably amended.
4. The
charge against A-l to A-13 was that between January 1984 and December 1989,
they had entered into continued crimirval conspiracy to commit terrorist acts
by use and/or show of criminal force, fire arms and other lethal weapons to
extort mone-y, to illegally grab lands belonging to others and to create terror
amongst the people to achieve the objects of their conspiracy. It was also
alleged that in pursuance of the said objects they had committed various
illegal and terrorist acts, the last or which was the murder of Suresh Dube and
causing hurt to Mukesh Shah. A-l was speaflcaHy charged for the murder of
Suresh Dube and causing injuries to Mukesh Shah. Accused Nos. 1-5, II, 12, 13,
deceased accused Narayan and absconding accused Sanjay were also charged for
having committed the murder of Suresh in prosecution of the object of their
unlawful assembly. It was alleged against A-14 to A-17 that as a part of the
criminal conspiracy they had caused evidence of commission of those offences to
disappear and by that dishonest investigation they had tried to screen the real
offender^ from legal punishment. A-l to A-13 were slso charged for commission
of offences punishable under Sections 120B, 201, 217, 218, 302 read with 149,
307 read with 149 of Indian Penal Code, Sections 3, 3(3) and 3(4) of TADA Act
an
5. All
the accused pleaded not guilty to the charge and their defence was of total
denial. A-14 had raised the defence that on the day of the incident he had gone
to Bareilley in connection with investigation of a theft case and had returned
to Palghar on 12.10.1989. A-15 had also raised the defence that he was at the
Vasai police station till 11.00 A.M. on
the date of the incident and had reached the place of offence after about 11.30 A.M. He had merely taken steps for keeping 'bandobasf and
was not involved with the investigation of the case.
6. The
prosecution, in order to prove its case regarding existence of the two gangs of
Bhai Thakur and Manik Patil and the- terrorist acts committed by them and the
help rendered to them by the police/had oxarnined OrnPrakash (P.W.I), Shyam
Sunder (P.W.2), Naresh (P.W.3), Pushpa Pondhari (P.W.19), Sitaram Yadan
(P.W.25), Balaram (P.W.34),Kanhiya Lal Misra (P.W.35), Jafar (P.W.40), Waman
(P.W.41), Sakharam (P.W.42), Jagganath (P.W.45), Mohammad (P.W.52), Subhash
(P.W.67), Rubab (P.W.68), Madhukar (P.W.69), Rarnkishan (P.W.70), Vasant
(P.W.90), Naaz Asif Patel (P.W.97) and the police officers connected with the
subsequent investigation as witnesses. The prosecution had also heavily relied
upon the confessions state^ to have been made by A-1 to A-8 and A-11. In order
to prove the murder of Suresh Dube the prosecution had mainly relied^ uponOOhe
evidence of the two eye witnesses Amsmath Tripathi (P.W.48) and 0m Prakash
Brahamania (P.W.49). Evidence was also led to prove that the investigation made
by the police prior to September 1992 was not honest. Evidence regarding
discovery of pistol by A-1 and the evidence of a Ballistic Expert and medical
officers and other formal witnesses was also led.
7. The
trial Court found many faults with the confessions and also held them
inadmissible in evidence. It also held that they were not voluqtarily made. The
trial Court disbelieved the witnesses examined to prove the terrorist acts on
the ground that their evidence was too general and vague and they were not
independent anc
responsible members of the locality. The evidence of two eye
witnesses was dis-belleved on the ground that there were material improvements
and contradictions in their evidence ^nd their version was also not believable.
Identification of the accused in the court by these two eye witnesses was not
believed because it was after a long time and no previous test identification
parade was held. For all these reasons it further held that the prosecution
case against A- 1 to A-13 was not proved. As regards A-14 toA-17 the trial
Court held that the sanction given for their prosecution under Section 3(1) o*
the TADA Act was vitiated on account of non- application of mind. It also held
that the reinvestigation was done with an oblique motive as most of the terrorist
activities fell outside the jurisdiction of the railway police and yet they
were investigated by them and the regular police having jurisdiction over the
areas was not associated with it. Thus the case against A-14 to A-17 was also
held not proved.
8.
Whether the eartiar investigation was dishonest or the subsequent
re-investigation by Deshmukh and his officers was done with some oblique motive
wilt have to be considered first as acceptability of the evidence of the
witnesses and the confessions would depend upon the answer to that question. If
the earlier Investigation was honest as held by the learned trial Judge, then
the contradictions and Improvements found in the evidence of the two eye
witnesses will assume importance. But if the earlier investigation is found to
be not honest, then the major ground on which the evidence of the eye witnesses
has been disbelieved will disappear. If we confirm the finding of the learned
trial Judge that the re-investigation was made with some oblique motive then that
would certainly affect evidentiary value of the confessions. The trial Court
held the investigation by Mr. Deshmukh and his officers motivated for the
following reasons:
(1) in the application (Ext. 237) made for re-investigation
it was not stated that the earlier investigation was faulty and that A-4 and
A-11 were wrongly shown as murderers of Suresh Dube.
(2)
there was no material before Deshmukh on the baste of which he could have
stated that the earlier investigation was faulty and for that reason no good
ground was mentioned in the application for re-investigation.
(3) there was no
reason for Deshmukh to take possession of the Mudemmal articles on the very day
on which application for re-investigation was made as there was no material
before him to show that an unconnocted weapon was seized by the earUer
investigating officer.
(4) after obtaining the sealed packet of Muddamal
empties and bullets from the court for getting them examined by a ballistic
expert the Court, he first opened it and then again resealed it for no .reason
except for tampering with the Mudammal articles, particularly the three bullets
recovered from the body of Suresh Dube.
(5) even though there was no material
before Dehmukh on the basis of which he could have lawfully invoked the
provisions ofTADA on 28.9.1992 very probably he did so with a view to defeat
the anticipatory bail application filed by some of the accused.
(6) even though
in the first FIR Shyam Sunder Dube (P.W.2) had stated that he was suspecting
none for the murder of his brother, the entire theory got changed during the
subsequent re-investigation.
9.
Suradakar (P.W.75) who took over as DIG, Railways, Bombay in August 1991 had been to Palghar
Railway Police Station in February 1992. While examining case papers relating
to the murder of Suresh Dube he felt some doubt about the investigation.
Therefore, he had directed his subordinate officers to send a message to Shyam
Sunder Dube to meet him. Pursuant thereto Bhagwati (P.W.5) and Dr. Rijuta
Dube (P.W.37) had met him within about 8 to 10 days.
Suradkar
has deposed that they had orally complained to him about the honesty of the
police officers who had investigated the case. On his assurance that he would
look Into the matter and take appropriate action they again met him after about
15 days and gave further details regarding the murder of Suresh. He had,
therefore, advised -them to give a complaint in writing and pursuant thereto a
complaint (^xt. 237) dated 18.5.1992 was given to him. This part of his
evidence has almost remained unchallenged in cross- examination. Only
suggestion made to the witness was that after Dubes had met him-he got the
investigation of the case re- opened in ordar to help Dube brothers. No
material has been brought on record to infer that Suradakar was m any manner
interested in Dubes or had any other reason to help Dubes by falsely involving
Bhai ThakLir or Manik Pat'l or their men. The doubt feit by him regarding
honesty of the inve-stfgation was justified because even though five empties
were recovered from the place of offence a revolver was seized as the weapon of
offence A poUce officer even With little experience would have realised that
the murder was committed not by using a revolver but with a pistol.
The
learned trial Judge was, therefore, wrong in holding that there was no material
before Suradakar for entertaining any doubt and re-opening the investigation
and that he had done so with some oblique motive.
10.
.Thetricri Court was also not right in holding that Suradakar, got re-investigation
done with some oblique motive because in the complaint (Ext.237) it was not
specifically stated that the investigation made by the police officers till
then was not honest. The complaint does indicate that the Investigation made
till then was not honest. It should have been appreciated that Dube brothers,
in the position in which they were placed at that time, could not have
specifically alleged that the previous investigation was dis-honest. So also
from the fact that in the application made to the Court for permission to
re-investigate it was not statp^ that the previous investigation was not
honest, no inference of oblique motive could have been legitimately inferred.
The application din refer to the complaint made by Dube brothers. Without ^"::h
II.
The adverse Inference drawn by the learned trial Judge from the circumstance
that Deshmukhhad takon back Mudemmal articles from the Court on the same day on
which permission to reinvestigate was granted and that he had opened the sedsd
packet containing bullets and empties and agalrv sealed them, is wholly
unjustified. For ascertaining from which type of weapon - pistol or revolver -
the bullets which were found from the body of Suresh Dube were fired, It was
really necessary for Deshmukh to obtain possession of those bu^ets and also the
empties and get an opinion of a ballistfc expert, particularly when no clear
opinion on that point was given by him in his earner report. As the said
Mudemmal artides were lying in the Court in a pealed packet he had to obtain
them from the Court and without opening the packet he could not have given a
receipt as to which articles were taken possession of by him. It was necessary
for him to open that packet and verify the contents. Al? those steps were
regular and necessary and it is difficult to appreciate how the learned trial
Judge could infer from them that ail that was done by Deshmukh with a view to
tamper with those Muddemal articles and particularly the three. bullets ^ound
from the body ofSuresh.
12 The
trial Court also grievously erred in holding that the TADA Act was wrongly
invoked. The complaint made by Dube brothers and inquiries made by Deshmukh and
his officers disclosed some of the illegal activities committed by the gangs of
Bhai Thakur and Manik Patil and the terror created by them in Nalasopara and
surrounding areas.
Deshmukh
was handed over the complaint of Dube brothers for further enquiry on
18.5.1992. On 31.7.1992 he had interrogated Mukesh Shah and on 18.8.1992 he had
interrogated Amarnath Tripathi. He had also made some discreet enquiries
through his subordinates and gathered some information regarding involvement of
accused other than A4 and All. .On 22.9.1992 he had interrogated accused
Dnyaneshwar Pati) (A-3). It was thereafter that he had submitted a report to
the Sessions Court, Thane under Section 173(8) of the Code of Criminal
Procedure for further investigation. Afterobtaining that permission he was able
to obtain custody of OiHp Waghchoure (A-7) and interrogate him. On 25.9.1992
he, had recorded statements of MiraDube, Bhagwati Dube and Jayprakash Dube. It
was on .the basis of this material that he was satisfied that the accused had
committed offences punishable under the TADA Act. Disposing aii this material
he had made a report to the Superintendent of Pouce,- Railways on 28.9.1992 for
invoking the provisions of the TADA Act. It Is, therefore, not correct to say
that without any justifiable reason provisions of TADA were invoked by Deshmukh
and that he had done so ^ for frustrating the bail applications which were to
come up for hearing on 13.9.1992.
13.
The last reason given by the trial Court is also not sound. It wrongly assume.d
that the first complaint was correct and tha FIR was recorded at the time
stated therein.
If the
evidence of Shridhar Thakur (P.W.30), Rajendra Panjwani (P.W.79) and Gosa'Mar
(p.w.66} had been analysed more carefully it would have become apparent that
the FIR could not have been recorded at Paighar railway station at 12.30 p.m. as mentioned Iff the FIR. The teamed trial Judge
also faiied So appreciate that some days prior to 9.10.1989 Suresh was called
by Bhai Thakur and was threatened that If he did not part with the lands wanted
by Bhai Thakur, then his family members shail have to perform Aarti of his
photograp'h-and on 8.10.1989 one Srikant Pandey, who was a man of Bhai Thakur,
had met Suresh and advised him to leave Nrdasopara if he wanted to remain
alive. Because of this threat a decision was taken by Dube brothers that Suresh
should goto his native place and remain there till the danger to his life
continues. Pursuant to that decis'on Suresh had left his house wIthAmarnath
Tripathi on 9.10.1989 for going to Mumbai for purchasing a railway ticket for Gorakhpur. This conduct of Suresh
corroborated the evidence of the prosecution witnesses on that point. It Is,
therefore, difficult to appreciate how in view of this evidence the (earned
Judge could pe"suade himself to hold that the first complaint was correct
and during the re-investigation the whole version was charged deliberately, 'he
r.tatement in the complaint that ths complainant did not suspect anyone as the
more careful whUe appreciating the relevant evidence.
14. As
regards the earHar investigation by PSI Padekar and PI Berge, It was contended
by the learned counset for the appellants that it was not honest, it was
submitted that PI Kukdotkar, PI Nimbalkar ^n^ the police^ officers attached to
the Vasai and Virar police stations and even higher officers were supporting
and protecting Bhai Thakur, Manik Patil and their men by helping them in
tampering with the evidence or by "ot taking action against them. There is
sufficient evidence on record to hold that the gangs of Bhai Thakur and Manik
PatU were operating in Vasai and Nalaropara areas since 1980 and 1984 respectively.
There
is also evidence to show that in order to achieve their objects or extorting
money and grabbing land they used to indulge in violence and other criminal
activities.
Whether
those two gangs were committing terrorist acts or not is a separate point and
we shall deal with it later.
For
the present we are examining the evidence to find out whether investigation in
respect of murder of. Suresh Dube was honestly done. The evidence of the family
members of Suresh Dube is consistent on the point that PI Kukdolar and PI
Nimbalkar had pressurised thern not to mention the name of Bhai Thakur or his
men as the murderers of Suresh and had even threatened therr. that if they did
so they -would have to suffer serious consequences. P.W.I, Dr. 0m PraKssh has deposed
that within about 10-15 minutes after Suresh was brouight home and examined by
the doctors, PI Kukdoikar had come to thss'r house and toid that as he had not
personaUy seen who had committed ' the murder he should not name Bhai Thakur as
a suspect. PI Kukdoikar had further toid them that even if Bhai Thakur was
named as the murderer nothing would happen to him and on the contrary he and
all his brothers wouid have to d'e. PI KLikdoiksr had theroafter gone awayand
had returned wit.hPSI Padekar and had remained wfth him when the complaint was
written down by PSI Padekarand Ccn.stable Sridhar Thakur (P.W.80). Dr. 0m
prakash has 3^0 deposed, that .PI Kukdolkar used to come.
to
their house even thereafter and on. some occasions he had come with PI Nimbalkar
and that both of them had tried to impress upon him and his family-members that
Bhai Thakur being a strong mar) end whoever filed a complaint against him was
killed and that it was enough .that .one of the Dube brothers was 'kiiied.
P.W.2, Shyam Sunder has also stated that within about 10 minutes after Suresh
was declared dead PI Kukdolkar had come to thefr house and had a tafk with his
brother Dr. 0m Prakash. He has further stated that after talking with his
brother PI Kukefolkar had told him and other members of the family that they
should not name Bhai Thakur as the murderer of Suresh. PI Kukdolkar had
specifically told him that he was the eldest member of the family ahd should
understand the consequences otherwise all the brothers would meet the same fate
as that of Suresh. He has further stated that PI Kukdolar had also told them
that whatever property BhaiThakur was demanding should be handed over to him
and that they should leave Nalasopara and go away to their native place. Us has
aiso stated that PI Kukdolkar had again come back with P51 Padekarand told them
that they should cooperate with him and that they should act according to what
he had told them. P.W.3 Naresh Dube, P.W.4 Jalprakash, P.W.5 Bhagwati and P.W.6
Meera Dube have also supported the evidence of Dr. 0m Prakash and Shyam Sunder.
All this evidence has been disbelived by the trial Court on the ground the
Dubes had not complained about the conduct of PI Kukdolkar and PI Nimbaikar to
Mr. Zarekar, who was then working as SDPO Vasai nor to any other higher
officer. It is not qu'te cor"ect to say that these witnesses had not
complained obcL-t the conduct of PI Kukdofkar and P! N.'mbalkar to anyone. He
had complained to Pi Rathod who used to go to them for investigation. All these
witnesses have further stated that it was because of this attitude of the
police officers connected with the investigation or interrogation that they had
not complamed to higher police officers or taken any other action.
The-learned
counsel for the appellants submitted that the learned trial Court was not right
in brushing aside this evidence and it shcuid have appreciated that there was
no particular reason for the members of Dube family to make false allegations
against the four police officers (A-14 to A-17) and PSI Padekar. It was
submitted that the learned trial judge failed to appreciate that for some years
Suresh Dube was also involved in similar illegal activities and was, therefore,
likely to know about the relations of police with the gangs of BhaiThakurand^anikPatil.
.
15. .
The learned counset for the appellants also submitted that the time of
recording the FIR was not correctly mentionee and that is a circumstance
Indicating dishonesty of the previous investigation. Undisputedly murder of
Suresh took place on the Nalasopiars railway platform at about 10.30 A.M.
P.W.80, Sridhar Thakur who was working as a writer constable under PI Berge at
the Peighar railway police station, 27 has stated PI Berge was absent on
9.10.1989 ard PSi Padekar was in-charge of the poUce station. On receive
information regarding murder of Suresh he had accompanied 'PSI Padekar to
platform No. 2 of Naiasopara railway station and thereafter to the residence of
Dube brothers.
PSI
Padekar had questioned Shyam Sunder and the reply given by him was written down
by him and that writing was taken as the complaint of Shyam Sunder.'-' The said
complaint was then sent to the Palghar railway police station for registration.
'In his cross-examination however he denied this version and stated that on 9.10.1989
he was cailed by PSI- Padekar at Natasopara bysending a wireless message. It is
proved that in his police 'statement dated 15.5.1993 he had stated that after
receiving the wireless message he had gon<3 to Naiasopara and that he had
reached there at 2.00
P.M. The murder had
taken place at Naiasopara railway platform at abut 10.30 A.M. PaSghar raltway
police station is 6t a considerable distance and as disclosed by the evidence
of police constable 'RaJendra Panjawant (P.W.79), who was'also attached toPalghar
raiiway-poHCe'statlon, that the first train available ek Palghar for going
towards Mumbal si^e after 10.15 A.M. was at 12.30 P.M. It is, therefore, quite
clear that writer constable Sridhar Thakur could not have taken down the
complaint at Naiasopara at 10.40 A.M. Poiice.constabte Rajendra Panjwani has
also stated that the message regarding murder of Suresh was received at Paighar
railway police station sometirna between 11.00 and 11.15 A.M. and that he
wasaiso directed to leave for Naiasopara. He caught the next available tram at 12.30 P.M., got down at Virar and then caught the suburban
train for Naiasopara which took him there at about 3.00 P.M.
P.W.66,
Gosalkar was a police constable on duty at Palghar railway police.station on
9/10.1989. He has stated that while he was on duty at gate No. 38 situated on
the western side oftha railway platform he saw s^me passengers running across
the railway ime. On enquiry he.wastold thatfirmghad taken place on the
railway-platform and so. he rushed to that place and found one person iytng. ;m
an: injured- condition.-He then went to the station master's room to.
send a
telephon call to Vasai railway station master for sending more police force.
That was between 10.45 and 11.00 A.M.
-Thereafter heyvent to the house ofDube .. brothers and after about 20 minutes
PI Kukdolkar had come there.
From
this evidence also it becomes quite clear that the complaint could; not have
been recorded by Sridhar Thakur at 10.40 A.M, nor..could it have reached Palg^ar railway police -station by 12.30 P.M. as deposed by P.W.72, Hanumant Jadhav. In all
probability the first information was recorded atPalghar railway police station
much later and after PSI Padtekarhad gone back to Palghar. No time was
rrtentlohed In the register. Copy of the FIR was not sent to the Magistrate
either on that day or on the next day. It had reached the Magistrate on
12.10.1989. This delay does create a suspicion regarding influence of the two
gangs oyer the police. Another circumstance and a stronger one indicating that
the first Investigation was not honest Is the attempt made by the previous
investigating officers to connect revolver article (No. 47) with the crime. It
is not in dispute and also stands proved by the spot panchnama and the entry
made in the, case diary (Ext. 754) that five empties were recovered from the
scene of offence. If shots had been fired from a revolver then the empties
would have remained inside the chamber of the revolver and would not have
fallen out on the platform. Presence of five empties on the platform clearly
indicated that the weapon used for firing shots was a pistol. Yet a revolver
(Article 47) was seized and shown as the weapon of offence. Obviously that was
done with the object of helping the murderers as no Court could have convicted
them on the basis of such evidence. Very probably two of the five empties
seized from the railway platform were substituted. That becomes apparent on
comparison of the description given in the Panchnama with the description
mentioned in the case? di'ary.
16.
Another circumstance which creates a ^cubt regarding honesty of the previous
investigation is the making of a false statement in the application for taking
A-4 on remand. The police had already recovered the revolver on 20.10.1989
sometime between 5.30 and 6.30 A.M.
and
yet in the application made to the Court at: about 12.30 P.M. on that day it was stated that the weapon of offence was
yet to be recovered. One more circumstance having a bearing on the connaction
of the previous investigating officers with accused A-1 to A-13 is absence of
any serious attempt by the police till 1992 to secure presence of the accused
before the Court and see that the trial proceeded against them. Even though A-4
and A-11 were released on bail and were not attending the court and summons
were not served upon them, yet no attempt was made by the police to get any
warra-nt for their arrest issued by the court. The proceedings of the Court
discloses that the case was required to be adjourned from time to time on the
ground that the summons could not be served^pon them.
17. in
our opinion these circumstances do create a doubt regarding honesty of the
first investigation. We are also of the opinion that the subsequent
Investigation made by the police under the direction of Suradakar after
September 1992 was not done with any oblique motive.
18.
The prosecution had led evidence of P.W.I (Dr. 0m
Pra^ash), P.W.2 (Shyam Sunder), P.W.3 (Naresh Dube), P.W.4 (Jaiprakash), P.W.5
(Bhagwati) and P.W.6( Meera Dube) to prove the motive for the murder of Suresh.
The evidence of P.Ws. I and 2 discloses that Dube brothers had purchased
certain lands of villages Achole, Mi'lemore, Manikpur, Tuiinej and other
villages touching Nalasopara. Bhai Thakur and his associates had taken illegal
possession thereof.
Suresh
was trying to take back those lands. Bhai Thakur wanted those lands to be
trar^erred to him and wanted Suresh to pay 'haftas' for carrying on iand
developing and house building activities in that area. In this connection, Suresh
was called by Bhai Thakur at his office at Virar a few days before 8.10.1989.
We have already referred to the discussion and the threats given by Bhai Thakur
and his associates to Suresh. We have also referred to the warning given to
Suresh on telephone on 6.10.1989. P.W.6 had also stated in her evidence that
Suresh was much worried after he had received the threat. The evidence of P.Ws.
1, 4 and 6 further discloses that it was decided by al? the fami'y mernbfers
that Suresh should leave Nalasoparaandgo to his native piacQ till the danger to
his life continued. In the cross-examination of those witnesses it has been
brought out that except in respect of Survey No. 110 of Achole there was no
document to establish that Suresh and his brother were ever in possession of
those lands pursuant to agreements of sale. The evidence of these witnesses is
found trustworthy and the motive can be held proved.
19.
The evidence of P.Ws. I and 2 and that of P.W.28, Amarnath Tripathi proves and
that is not indispute that Suresh had left his house at about 10.15 A.M., reached platform No. 2 within about 2 minutes lime
and was shot between 10.30 and 10.35 A.M. At
that time Amarnath Tripathi was with him. Two other persons had also
accompanied as Suresh wanted to have a talk with them in connection with his
business. One of them was Mukesh Shah (P.W.53). As to what happened thereafter
on platform No. 2 of the Nalasopara railway station has been deposed by
Amarnath Tripathi (P.W.48) and 0m Prakash (P.W.49). Others who had seen the
indctent and were examined as eye witnesses but did not support the prosecution
were Ranjit Thakkar (P.W.iO), Alex Marthin (P.W.Ji), Sanjay Dube (P.W.39),
Dinesh Kashyap (P.W.39) and Mukesh Shah (P.W.53). Ranjit and Sanjay were the
passengers wait'no on that platform for the train to come. Both of them have
deposed about firing of shots and seeing Suresh lying on the platform in an
Injured condition, but they did not identify any of the accused as' the
assailants of Suresh. Sanjay stated that A-l and A4 were not the persons who
were seen by him running away on the railway track. Alex Martin (P.W.31) was
the person near whose book-stall the incident had happened. He has stated that
he had seen the person who had fired shots at Suresh and had also seen other
persons running away after the incident, but he did not identify the assailants
stating that he had seen them from the back side. He specifically denied that
A-l was the person who had fired the shots.
Dinesh
Kashyap (P.W.44) had a pan-bidi stall on the platform. He also stated in the
Court that he was not able to identify the assailants. All these witnesses
were, therefore, declared hostile.' 'Mukesh Shah (P.W.53), who new Suresh and
A-l and who was also injured, did not say in the court that A-l and some of the
accused were the assailants of Suresh. The learned Mat Judge doubted
involvement of A-1 on the ground that Mukesh Shah being dose to Suresh would
have disclosed the Identity of the real assailants If he had really seen them.
This witness must have been very dose to Suresh as ha had gone on the platform
to have a talk with Surssh. The fact that he was injured by one of the shots
fired at Suresh also indicates that he must have been close to Suresh. This
witness at first denied that he know A-1, but admitted in cross- examination by
the public prosecutor that he knew A.-.1 since before the incident. It was,
therefore, more probable that he did not want to identify them out of fear and
not because in fact he had not identified them. His evidence, however, remains
unhelpful to the prosecution.
20. ,
. ...Amsmath Tripsthi (P.W.4S) hsd come from his native place to Nalasopara on
4.10.1989 or 5.20.1909 and was sta/i'ng with ms sister and brother-in-law Shyam
Sunder (P.W.2). tie.^ad come to see his sister and also to find a match for the
daughter of his younger brother. Between 5.10.1989 and 9.10.1989 he had seen
two boys. On 9.10.1989 he wanted to goto Vills Parle to see one boy. As further
stated by him Suresh wanted to purchase a railway ticket for going to his
native place Gorakhpur and, therefore, both of them had
left together at 10.15
A.M. They went to
platform no. 2 and were waiting for the train to arrive. As the train by which
they were to leava for Mumbal was running late he went to a shoe-polishwaia to
get his shoes polished.
Suresh
Dube purchased a newspaper from a nearby book-stall and started reading the
same. While his shoes were being polished he heard the sound of a firearm shot
and when he looked in that direction he saw one person with a pistol firing
further shots at Suresh. Ha has also stated that 4 to 5 persons, had encircled
Suresh. Because of firing persons standtn^ on the platform started running
helter skelter. The shoepolishwala also got up and ran away.. He then got a
push from one of those persons who had encircled C-uresh and, therefore, foil
down from the platform. He immediately got up and looked at Suresh. He saw the
same person who had earlier fired shots firing one more shot at Suresh who was
by then lying on the platform. He, therefore, raised shouts "Save
Save". By that time one train arrived and taking advantage thereof all the
assailants ran away. He has also deposed about how Suresh was taken home and
declared dead by the doctors. According to him he become giddy, fell down and
on hearing that Suresh was dead he became unconscious and remained unconscious
for three days. After he regained consciousness he was toid by the relatives
ofSuresh that murder was committed by Bhai Thai'ur's men and he should not say
anything to the pol'ce about the incident as that could prove to be dangerous
to their lives because the police was well connected with Bhai Thakur.
Therefore, he refused to give a statement to the police on 12.10.1989 when they
had come to record it. In the court he identified A-1 to A-4 as the persons who
had encircled Suresh. He also identified A-1 as the person who had fired shots
at Suresh. This witness was confronted in his cross-examination by the police
statements dated 12.10.1989 and 20.10.1989 purported t6 have been recorded by
PI Berge. What the defence wanted to establish was that on 12.10.1989 he had
given a different version as regards the manner in which the incident h-ad
happened. His version in the said statement was that Suresh was standing on his
left side while he was getting his shoes polished and when the bootwala was
polishing his shoes with cloth, suddenly words "Are Is Ki Ma Ki" came
out of Suresh's mouth. At that time people on the platform started shouting
"Run Run".
Immediately
a big sound like bursting of a cracker was heard. He received a push from
somebody, lost his balance and remained standing by leaning against
the'Soo''-.^a.;.
He
looked at Suresh. He had bent down keeping his hand on ''5 stomach. It was also
brought out in thecross-exsi-nmation that this witness had not given any
description of the assailants m his statement dated 18.8.1992 and that he had
further stated that the person who had fired shots' was having In his hand a
weapon like pistoL He was also contradicted by his police statement dated
18.8.1992 wherein he had stated that "immediately thereafter Suresh Dube
sat down with hisb'oth hands on his forehead I had fallen down on the railway
track because of the push.
In the
meantime local train 'from Virar side and Churchgate side arrived. Dunng 'that
'time people who fired on Suresh Dube ran away towards Nalasopara West. This
witriess had not stated in his said statement that "after I stood up on
the railway track I saw Suresh Dube lying on the platform and the person who
was firing bent down and fired on the head of Suresh Dube". It was
submitted by the learned counsel appearing for the respondents-accused that
these omissions and contradictions clearly disdose an attempt on the part of
this witness to make improvements upon his earlier version so as to mak-2 his
evidence agornst A-1 to A-4 certain and acceptable. It w&s also urged' that
this witness in his statement dated 18.8.1992 had stated that "I had
given,my statement before the police during my stay of 20-25 days with^Dubes'JamHy.
^er the incident of murder".
It was
urged that this witness has falsely stated white giving evidence that he had
not given any statement to the police either on 12.1G.19SS or 20.10.1939. It
was further urged that this witness had denied to have made any statement on
12.10.1989 and 20.10.1989 as he knew that it contained a different and an
uncertain version not only as regards the manner in which the incident had
happened but also with regard to his seeing this assailants. The trial Court
was also much impressed by these omissions and contradictions, and taking into
consideration the circumstance that the incident had happened suddenly and
large number of persons who were standing on the platform had started running
helter skelter after hearing the sound of firing of a shot, held that this
witness could not have sufficiently seen the assailants so as to correctly
identify them in the court after.many years. In arriving at this conclusion ths
trial Court also rdisd upon the statement in h's cross-examination that he did
not know from which direction the .sound of the first shot hed come and from
what distance it was fired. ^We have earlier held that the previous
Investigation was not. honest and; therefore, no importance could have been
given to these omissions and contradictions proved from the statement dated
12.10.1989.
Even
if we proceed on the assumption that a statement of this witness was recorded
by the police on 12.10.1999 it is not possible to agree with the submissions
made on behalf of the respondents that the earlier version of this witness was
totally different from his version in the Court. The discrepancies were with
respect to number of assailants and number of shots fired by the assailants and
also on the point of his seeing the assailant firing one^mpreshot after he had
neceirVcd a push and fallen down onthe.railway track.
Even
the omissions and contradictions with respect to the statement dated 18.8.1992
are also not such as would,lead,to an inference that this witness was
deliberately making improvements before the court in order to faiseiy say
something that he had not seen. What appears from the statement is that this
witness had stated in his statement dated 15.8.1992 that he h^d seen the last
shot fired on Suresh after he ha^ faUen dovw from-the platform. Whathehad
notstatei3.wasthathe.hadseen the.assailant firing thelastshot after he ^adgot
up from the railway track,. The fact that this witness had gone to
Nalasoparatome^t ^5.sister and had some work has remained unchallenged., Th^ fact
that on 9.10.1989 he had left the house of Dubes with Suresh at 10.15 A.M. has also remained unchallenged. The presence of this
witness on the platform at the time of incident has not been questioned. His
version that he was getting his shoes polished at the time of the incident has
also not been disputed. Whatwa's urged before the trial Court and what has been
bdisved by 'tis that as the incident had happened suddenly and the people
standing on the platform had started running better skelter immediately after
fhe first shot was fi^ed^th^ witness coritd not have seen the assailants
clearly foral suftideh^y ong Wneso as to correctly recognise them after a lapse
of few years. It was also urged that as this witness was not abia to make out
from which direction the sound of firing a shot had come and was not able to
state the distance from which it was fired would also support the finding that
this witness really did not know the mannet and circumstances in which the
assault on'Sure^h had taken place.' '^hi5 witness has said that he was at a
distance of about 3 ft. from Suresh when the incident had happened. That
appears to be more probable and natural also. Both of them had left the house
together and were to go together in the train. Except the circumstance that
people on the platform had started running helter shelter a*te" hearing
the sound of firing of shots, there was nothing before the court on the basis
of which it could have-^dthat Amarnath cou.'d not have seen the assailants
firing shots at Suresh. and surrounding him. Though the inddent had
happenecTsuddeniy, firing of five shots from a pistol must have taken some
time. Thte witness in our opinion had sufficient time to^e and registsr hh^s
mind what was then happening to Suresh, his- brother-in-law. In our opinion the
learned trial Judge was not right in hoid«ng that this witness very probably
did not have sufFident opportunity to see the manner In which the whole
incident had happened and who were the assailants.
21,
The next point to be considerad is Whether identification of the accused by
this witness in the Court can be believed when no attempt was made earlier by
holding a te$t trial Court has found it unsafe and it was contended by the
learned counsel for the accused that such identification has ^ LWhla f(AIR 1980
SC 1382]. A-1 to A-4 who were identified by February 1993. Three years had
passed by then. Perhaps th^ was the reason why test identincatjon' parade was
not held. Anyway this infirmity of not hoping a test identification parade does
diminish the evidentiary value of identification of these accused by this
witness in the Court. If this was the only evidence regarding identification of
those accused we would have held that it was not su^dent for convicting any of
those four accused. But it stands corroborated by the evidence of another
eye-witness and also by ti'e confessions of A-1 to A-4, if they are held
admissible and voluntary.
22. It
was contended by the learned counsel for the respondents-accused that the
version of this witness that he.had become unconscious on hearing .that Suresh
had died and had remained unconscious for three days was not believable and th^
trial Court was right in rejecting the evidence of.this witness oh that ground.
It is difficult to appreciate what this witness wo^id have gained by falsely
saying so. He had seen his brother^n- r law being shot dead. Therefore it was
not unlikely that h.e got a shock and became unconscious. If what he has stated
was no^ correct then the police would have recorded his statement befo/e
12.10.1989. The fact .that his statement co^.'d not be record before 12.10.1989
lends support to his evidence that he had remained unconscious, though not
continuously, for three days.
23. 0m
Prakash Brahmania (P.W.49), another eye- witness, was earning his livelihood in
Bombay by working as a boot-polisher on the platforms of Nalasopara railway
station. He had been doing so since about 10 years before the date of the
Incident. He usad to sit on the platform from 6.30 in the morning till 6.00
o'clock in the evening.
He
knew Suresh and some accused as they often used to come to the railway platform
to get their shoes polished. He also knew some of the accused as he was
threatened by them on some occacions as a '.'. part of their activity of
terrorising people of the locality. He has' deposed that on the date of
incident he had seen Suresh Dub^ and one person accompanying him on the railway
platform ^t about 10.30 A.M.
The
person who had accompanied Sur^h came to him for getting his shoes polished.
While he ^as polishing his shoes Suresh was reading a newspaper near'ihe
book-stall at a distance of about 2 ft. from him. He then s^/v Narendra (A-1)
nephew of Ma-nik Pstil, coming there and firf^g shots G*~ Suresh. He also s^w
that 3 cr
It may
be that he was afraid of naming any person belonging to the gang This witness
has denied to havs made any statement on II.10.1989 or 13.10.1989. Wa will
later on point out that naming of A-4 aid A-li as th« murderers Suresh was a
manipulation done by the gangs of Bhai Thakur and Manik Pstil with the help of
A- 14 to A-17. It is also not factudll correct to say that the witness had on
20.10.19S9 identified A-4 and A-li as the assailants of Suresh. According to
the police statement this witness had only confirmed that the persons A-4 and
A-11 who were in the police custody were the persons who had attacked Suresh.
Therefore,
the learned trial Judge was not right in rejecting his evidence on these two
grounds. The trial Court also disbelieved his evidence on the ground that if he
really knew the names of the accused then he should have disclosed the same not
only to the police but to other persons with whom he hed a talk. He had nether
disclosed the names to the police nor to his father with whom he had a talk
about the incident. The evidence on this point is also not correctly read by
the trial Court. What this witness has stated in his evidence is that he knew
A-l byname and others by their faces According to this witness he did not have
any talk with anyone with respect to the incident except with his father. It
may be that hs was afraid of naming any person belonging to tha Jang has Q'ven
the reason why he knew Suresh and some of the accused. It was, therefore, more
probable that he knew Suresh and also some of tha accused including A-l. This
witness had no reason to falsely involve any of the accused. Moreover, being
aware of the existence of Manik Patil's gang and the terror which they had
crested he would not have dared to falsely depose against them. His presenca on
the railway platform on the date and time of the incident cannot be seriously
disputed as that was the usual thing for him to do. There is nothing on record
to show that he was close to Dube or was under any influence of the police and
for that reason would depose falsely against A-l, A-3 and A-4.
24.
The trial Court also has recorded a finding that possibly he knew the accused
belonging to the gang of Manllc Patil. His evidence by the trial Court has been
disbeliever mainly on the ground that the description of the assailants giver)
by him in the earlier statements did not tally with A-l and that on 20.10.1989
he had identified A-4 and A-ll as the assailants of Suresh, while in the Court
he had identified A-l, A-3, A-4 and Narain (A-10) as the real assailants of Suresh.
We have already pointed out that the earlier investigaticn was not honest. of
Manik Petll as the murderer and therefore had not disclosed' the name of A-1 as
the murdersr of Su'resh. A-l, A-3 and A-4 were sll Known to aim and, therefore
there was no point in holding a test identification parade after this witnes
had returned from Haryanac. Therefore, the learned this judge was not right in
rejecting his evidence en :ne groundi that he had not disclosed names of the
accused to anyone and that no test identification parade was held to test the
identity of the real culprits. We are of the opinion that the trial Court was
not justified in discarding the evidence of this witness on the ground that it
was not believable. His evidence deserved to be accepted without any
independent corroboration.
25.
The prosecution has also relied upon the circumstance of discovery of a pistol
by A-1 as an independent circumstance corroborating the evidence of
eye-witnesses. The Panch Withnesstn^s did) not support the prosecution and it
is also difficult to hold that it was really a case of discovery of pistol by
A-l as contemplated by Section 27 of the Indian Evidence Act. The learned trial
Judge has not relied upon the evidence relating to this circumstance and we are
also of the opinion that the stated by these actused while retracting their
eonfessions was:
that
they were obtained by giving threats.Of under undue influence. It was generally
suggested to Shinde in crosses examination that he had obtained signatures of
the accused on those confessions under undue Influence, coercion, fraud and
mental and physical torture. It was not stated by the accused nor even
suggested in the cross-examination of Shinde that particular type of physical
or-mental torture or coercion was caused to the accused or in which
rnanner-thay were defrauded or what undue 'influence was exersed upon .them.
Only suggestion that was made to the witneeses was that whiie recording the
confessions he told them that he was Superintendent of Police and he had-stated
so in order to impress the accused. In our opinion Shinde ha,ddone nothing
wrong In disclosing his identity as he was really required to do so before
recording the confessions. At this stage we will refer to some of the
admissions and statements made by Shinde in his cross-examination. He admitted
that he had felt that it was unfair on his part to record the confessions as he
was supervising the investigation. He also admitted that he was not aware of
the statutory requirements of Section 15 of the TADA Act and Rule 15 of the
TADA Rules till he recorded the first confession. He also admitted that he had
inadvertently committed a breach of the TADA Ruies while recording those
confessions. He also admitted that .while recording the confessions he was not
aware of the.procedure prescribed under Section 164 of the Criminal Procedure
Code for recording confessions and also the provisions made by the Bombay High
Court in its Criminal Manual. He also admitted that he had put. some more
questions to the accused before recording their confessions in order to find
out that they were willingly making those confessions but all those questions
have not been recorded by him-in-the confessions. It was really on the basis of
these admissions and some other reasons to be dealt with hereinafter that the
trial Court held the confessions not admissible, not voluntary and not
reliable.
. '
27. Section 15 of the TADA Act makes certain confessions made to police
officers admissible in the trial of such person or co-accused, abettor or
conspirator for.
an
offence under the Act or rules made there under. This Court
considering its constitutionaiity in Kartar Sinah v. State
of Punjab [(1994) 3 SCO 569] observed that "having, regard to the legal
competence of the legislature to make the law prescribing a different mode of
proof, the meaningful purpose and object of the legislation, the gravity of
terrorism unieashsd by the terrorists and disruptionists endangering not only
the sovereignty and integrity of the country but also the normal life of the
citizens, and the reluctance of even the victims as well as the public in
coming forward, at the risk of their to give evidence" - held that the
impugned section cannot be said to be suffering from any vice of
unconstitutionality. Section 15 is thus an important departure from the
ordinary law and must. receive that interpretation which would achieve the
object of that provision and not frustrate or truncate it.
Interpreting
the said provision this Court in Statethrough Superintendent of police,CBI/SIT
etc.. V. Nalini & Ors. (popularly
known as Rajiv Gandhi Murder case), this Court has held that a confession
recorded under Section IF of the TADA Act is to be considered as a substantive
piece of evidence not only against the maker of, it but also against its
co-accused. There was difference of opinion amongst the three learned Judges
who decided that case regarding the evidentiary value of such a confession
against the co-accused is tried in the same case. Wadhwa,J. observed that what
weight snould be attached to such a confession is a matter of discretion of the
Court and as a matter of prudence the Court may look for some corroboration
before relying upon such confession against the co-accused.
Quadri,J.
held that the rule of prudence would require that the Court should examine the
same with great care and should not be relied upon unless it is corroborated
generally by other evidence on record. Thomas, J. held that "Thus the
established position which gained ground for a very long time is that while a
confession is substantive evidence against ita maker it cannot be used as
substantive evidence against another person even if the latter is a co-
accused, but it can beused as a piece of corroborative material to support
other substantive evidence." Relying upon the decision of this Court in
Kaipnath Rai v. State [(1997) 8SCC 732], it was submitted by the learned
counsel for the respondents that even a confession made admissible under
Section 15 of the TADA Act can be used as against the co- accused only in the
same manner and subject to the same conditions as stipulated .under Section 30
of the Evidence Act. An observation to the same effect is to be found in
paragraph 75 of the judgement. In fact no such point fell for decision in that
case and it appears to be a passing observation only. In view of the decision
of this Court in NaUni's case the said observation can now be regarded as
correct position of law. The correct legal position Is that the confession
recorded under Saction 15 of the TADA Act is a substantive piece of evidence
and can be. used aoainst a co -accused also otherwise held to be admissilbie
voluntary and believable.
28.
The confessions have been held inadmissible mainly on two grounds. The first
ground given by the learned trial Judge is that the power under Section 15 of
the TADA Act was exercised either malafide or without proper application of
mind. The second ground on which they are held inadmissible is that they were
recorded in breach of Rules 15(2) and 15(3) of the TADA Rules and also in
breach of the requirements' of Section 164 and the High Court Criminal .Manual.
The learned trial Judge held that the TADA Act was applied in -this case
without any justification. The permission was granted in. that behalf without
any application of mind. According to the trial Court there was material on the
basis of which TADA Act could have been invoked at that stage and that most
probably the said Act Was invoked in order to defeat the ball application filed
by two accused in the High Court. In our opinion the trial Court.was wrong in
taking this view. We have already pointed out earlier that Deshnukh) had
collected enough materil on the basis or which reasonable satisfaction could
have been arrived at that the acts committed by the two gangs were terrorist
acts. It is no doubt true that it was wrongly reported by Deshm.mukh that
Section 5 was also applicable in this case and that without proper verification
sanction was granted to proceed under that section also. The applicability of Section
5 depended upon existence of a requirsite notification by the State Government.
It was wrongly reported by PI Deshmukh in his report that such a notification
was issued and relying upon his statement the higher officer had given the
sanction.
Merely
on this ground it cannot be said that Shinde has exercised the power under
Se-':t'ion 15 of the TADA Act mala fide. The learned trial Judge has also held
that it was not fair on the part of Shinde to record the concessions as he was
also supervising the investigation. Shinde has clearly stated in his evidence
that he had made attempts to find out if any other Superintendent of Police was
available for recording the confessions and as others had declined to oblige
him he 'had no other option but t'o record them. We see no illegality or
impropriety in Shinde recording the confessions even though he was supervising
the investigation. One more flimsy reason given by the trial Court for holding
that the power under Section 15 was exercised male fide is that the accused
making the confessions were not told that they have been recorded under tne
TADA Act. No such grievance was made by the accused in their statement under
Section 313. On the other hand, it appears from the confessions themselves that
the accused were made aware of the fact that those confessions were recorded
under the TADA Act.
29.
The learned trial Judge has held the confessions Inadmissible on the ground
that they have been recorded in breach of Rules 15(2) and 15(3) of the TADA
Rules. The rules read as under:
S.15(2).
The police officer shall before recording any confession under sub- section.
(1), explain to the person making it that he is not bound to make a confession
and that, if he does so, It may be used as evidence against him and such police
officer shall not record any such confession unless upon questioning the person
making it, he has reason to believe that it is being made voluntarily."
"R.15(3). Tne confession shall, if it is in writing, be - (a) signed by
tha person who makes the confession; and (b) by the police officer who shall
also certify under his own hand that such confession was taken in his presence
and recorded by him and that the record contains a full and true account of the
confession made by the person and .such police officer shall make a memorandum
at the end of the confession to the follHowing effect.'- "I have explained
to (name) that he is not bound to make a confession and that, if he does so,
any confession he may make may be used as evidence against him and, I believe
that this confession was voluntarily made.. lt was taken in my presence and
hearing and recorded by me and was read over to the person making it and
admitted by mm to be correct, and it contains a full and true account of the
statement made by him.
Sd/-
Police Officer." Relying on sub-rule 2 of Rule 15 it was contended on
behalf of the respondents that: the notice officer Is required to explain to
the person making confession that he is not bound to make it and that if he
makes it it can be used agsinst him as evidence. The said provision also
requires that he should question the person making it in order to assure him
that he is making it voluntarily. It was submitted by Mr. Kotwal, learned
counsel appearing for some of the respondents that both these things are
required to be done 'before recording' any confession. When a confession is
recorded in two parts - the preliminary part containing record of how and for
what the person was forwarded and the questions and answers put to him for
ascertaining his voluntary willingness to make a confession even after being
told that the confession may be used against his as evidence and the second
part which contains the actual confessional statement it is the second part
which has to be regarded the confessional statement and not the preliminary
part. Therefore, the obligation to explain and ascertain is to be performed
.vhile recording the real confessional part and doing so earlier when the
preliminary part Is recorded cannot be regarded proper compliance of the requirement
of Rule 15 (2). The police officer must explain and give the statutory warning
before recording the actual confessional part and it is at that point of time
that he has to ascertain by questioning the person making it that he is making
the confession voluntarily. He submitted that the confessional statements were
recorded in this case in two parts and while recording the second part no
questions were asked to the accused to ascertain whether he was making the
confession voluntarily. He also submitted that while recording the second part
no Warning was given to the accused that he was not bound to make the
confession and that if he made it, then it can be used against him.
30.
Neither Section 15 nor Rule 15 contemption recording of confessional statement
in two parte or giving time. to the person making a confession to think over
and reconsider whether he still wants to make it in spite of being told that ha
his not bound to make it and that it can be used against him. If in order to be
assured that the person concerned makes the confession willingly and
voluntarily the recording officer gives him some time to think over and for
that reason records the confessional statement in two parts, then they cannot
be regarded as two independent and separate statements. The second part being
in continuation of the first part both the parts. have to be treated as one
confessional statement. If the recording police officer feels assured after
giving the statutory warning that the person who wants' to make a confession is
doing so voluntarily he may not give any time for reconsideration and in that
case there would be only one continuous statement Therefore, the contention
that when the confession is recorded in two parts, only the second part-can be
regarded as. the confession and while recording the second part the police
officer should give the statutory warning ana and ascertain if the person
concerned is making it voluntarily, cannot be accepted. The requirement of law
is that before recording the confession the police officer should ascertain by
putting questions to the maker of it that he is making the confession
voluntarily and he *, should also explain to him that he is not bound to make
the confession and that if he makes it that can be used against him as evidence.
In this case DSP Shinde had put questions to each of the accused who was
brought before him to ascertain if he was willing to make a confession
voluntarily and had also given the statutory warning to him on that day.
Even
after the accused had shown his willingness to make a confession Shinde had
given him time not exceeding 48 hours to think over his readiness to make the
confession. When the accused was brought to him again he had again ascertained
if he was still ready and willing to give a statement. He had also asked him if
he was making it under any pressure or coercion or threat. Only after the
accued had replied sn negative he had told the accused to say whatever he
wanted to state about Suresh Dube's murder. In view of these facts and circumstances
it is not possible to uphold the finding recorded by the trial Court and to
accept the contention raised on behalf of the respondents that while recording
the confessions of the accused Shinde had committed a breach of Rule 15(2).
31. As
regards the breach of Rule 15(3) it has been held that Shinde tdid not write
the certificates and the memorandums "'' in the same form and terms as are
prescribed by that rule. It was submitted by the learned counsel for the
respondents that the certificates and memorandums have not been recorded by
Shinde in identical terms and as Rule 15 is held mandatory the trial Court was
right in holding them inadmissible for non- compliance with that mandatory
requirement. Therefore, the question to be considered is whether the
certificate and ' memorandum are required to be written by that rule in the
same form and terms. What Rule 15(3)(b) requires is that the police "
officer-should certify under his own hand that "such confession'"'
was taken in.his presence end recorded by him and that the record contains a
full and true account of the confession made by the' person". According to
that rule the memorandum should be to the following effect:
"I
have explained to (name) that he is not bound to make a confession and that; it
he does so, any confession he may make may be used as evidence against him and
I belleve that this confession was voluntarily made. It was taken in my
presence and hearing and recorded by me and was read over to the person making
it and admitted by him to be correct, and it contains a full and true account
of the statement made by him." Writing the certificate and making the
memorandum are thus made mandatory to prove that the accused was explained that
he was not bound to make a confession and that if he made it it can ba used
against him as evidence, that the confession was voluntary and that it was
taken down by the police officer fully and correctly. These matters are not
left to be proved by oral. evidence atone. The requirement of rule is
preparation of contemporaneous record regarding the manner of recording the
conf ssion in presence of the person making tt. Though giving cf the statutory
warning ascertaining voluntariness of the contession and preparation of a
contemporaneous record in presence of the person making the confession are
mandatory requirements of that rule, we see no good reason why the form and the
words of the certificate and memorandum should also be held mendatorry.
What
are the mandatory requirements of a provision cannot be decided by overlooking
the object of that provision. They need not go beyond the purpose sought to be
achieved. The purpose of the provision is to see that all frmalities are
performed by the recording off:-:c-' ^nself and by- others to ensure full
compliance of the procedure and seriousness of recording a confession. We fall
to appreciate how any departure from the form or the words can adversely affect
the object of the provision or the person making the confession so long as the
court is able to conclude that the requirements have been substantially
complied with. No public . purpose is likely to be achieved by holding that the
certificate and memorandum should be in the same form and also in the
"same terms are to be found in Rule l5(3)(b). We fail to appreciate how
sanctity of the confession would get adversely affected merely because the
certificate and memorandum are not separately written but are mixed up or
because different words conveying the samething as is required are used by the
-recording officer.
We hold
that the trial Court committed an error of law in holding that because the
certificates and mernorandums are not in the same form and words they must be
regarded as inadmissible. Having gone through the certificates and the
memorandums made by Shinde at the end of the confessions what we find Is that
he had mixed up what is retired .to be stated in the certificate and what is
required to be stated in the memorandum. He has stated in each of the
certificates and the memorandums that he had ascertained that the accused was
making the confession willingly and voluntarily and that he was under no
pressure or enticement.
It is
further stated therein that he had recorded the confession in his own
hand-writing (except in case of A-7 whose confession was recorded with the help
of a writer).
He has
also stated that it was recorded as per the say of the accused, that it was
read over to the accused completely, that the accused had personally read it,
that he had ascertained thereafter that it was recorded as per his say and that
the confession was taken in his presence and recorded by him. It is true that
he has not specifically stated therein that the record contains 'a full and
true account of the confession made'. The very fact that he had recorded the
confession in his own hand-writing would imply that it was recorded in his
presence and was recorded by him. So also when he stated in the certificates
and memorandums that the confession was recorded as per the say of the accused,
that it was read over to him fully, that the accused himself personally read it
and that he had ascertained that 't was recorded as per his say that would mean
that it contains 'a full and true account of the confession' and that the
contents were admitted by the accused. Thus, while writing the certificats and
the memorandum what Shinde has done is to mix up the two and use his own words
to state what he had done. Only thing that we find missing therein is a
statement to the effect that he had explained to the accused that he was not
bound to make a confession and that if he did so the confession might be used
as evidence against him. Such a statement instead of appearing at the end of
the confession in the memorandum appears in the earlier part of the confession
in the question and answer form. Each of the accused making the confession was
explained about his right not to make the confession and the danger of its
being used against him as evidence. That statement appears In the body of the
confession but not at the end of it. Can the confession be regarded as not
in-conformity with Rule 15(3)(b) only for that reason? We find no good reason
to hoid like that. We hold that the triat Court was wrong in holding that there
was a breach of Rule 15(3) and, therefore, the confessions were inadmissible
and bad. ,-. - /..
32. It
was next submiittsd that though Section 164 Cr.P.C. does not strictly apply to
confessions recorded under Section 15 of 7.^^ A"t, the provisions
contained in Section 15(2) of TADA Act and 162 (2) and 164(4} of Cr.P.C. are
similar and that would imply that the requirements of law regarding the
procedure for recording a confession are the same. Both the provisions require
that before recording confessions the accused must be told that he is not bound
to make a confession and that if he makes it then it can be used as ..,
evidence against him. Both these provisions require that before ,- recording
the confession the recording officer has to question .. the accused in order to
satisfy himself that he is making the confession voluntarily and after
recording it to issue a certificate and memorandum to the effect that the
accused was explained about his right to be informed that he was not bound to
make -;:' -;K. --q..-.-, -- - P^^ the confession and that it could be used
against him, that he believed that the confession was made voluntarily, that it
was , taken down in his presence and was read over to him, that it was admitted
as correct by him and that it contains a full and true account of the statement
made him. It was, therefore, submitted that the guidelines issued by the High
Court for recording a confession under Section 164 Cr.P.C. are also required to
be followed by the police officer recording a confession under the TADA Act.
Otherwise a situation may arise where in the same trial there may be a
confession of an accused recorder by a Magistrate without following the
guidellnes contained in the High' Court Manual and a confession made by another
accused and recorded by a police officer under the TADA Act who has not
followed these guidelines while the one recorded by the Magistrate may not bs
recorded as evidence the 'other one will be treated as evidence and can be used
against him. in the aliternative, it was submitted that even if it is held that
the guidelines issued under Section 164 Cr.P.C. by the High Court are not
'required to ba followed while recording a confession undersection 15 of TADA
Act at least the well recognised principles pointed out by this Court in Kartar
Singh's case (supra) are required to be followed. The said guidelines have been
suggested by this Court as well recognised principles of fairness to be
followed to ensure that the confession obtained in the pre-indictment
interrogation by a police 'officer not lower in rank than a Superintendent of
Police is not' tainted with any vice. What is missed by the learned counsel is
that while recommending those guidelines it was made clear by this Court that
it is really for the Court trying the offence to decide the question of
admissibllity or reliability of a confession by Using its judicial wisdom, from
what has been observed in the said' decision it does not follow that if the
suggested guidelines are not followed then the confession must be discarded as
inadmissible or bad on that score or on the ground that it Is not in confirmity
with Section 15(2) of the TADA Act and Rule 15 of the TADA Rules. The police
officer recording a confession under Secion 15 is really pot bound to follow
any other procedure. The rules or the guidelines framed by the Bombay High Court
for recording a confession by a Magistrate under Section 164 Cr.P.C. do not by
themselves apply to recording of a confession under Section 15 of the TADA Act.
Therefore
merely because some of those guidelines were not followed while recording the
confessions it cannot for that reason be held that the said confessions have
lost their evidentiary value. If while recording the confessions Shinde had
followed all those guidelines also then that would have been a circumstance
helpful in infering that the confessions were made after full understanding and
voluntarily. In this case there is nothing on record to show, except that the
confessions were recorded by Shinde in police station, that they were not
recorded in free atmosphere. No other person was allowed to remain present at
that time and ail the accussed were given time to reconsider their willingness.
After they were produced again Shinde had ascertained whether they were still
willing to make confessions. All- the accused were previously toid that they were
not bound to make a confession. Each one of them was warned that if he made a
confession then it could be used against him.
33. '
Shinde had tried to ascertain if any threat or inducement was given to them or
whether they were ill treated or pressurized. Alt the accused had categorically
stated that no such thing had happened. From the answers given by the accused
it can be said that Shinde had good reason to believe that the accused were ,
making confessional statements voluntarily. In his evidence also he has stated
so and nothing has been brought out in his cross examination from which It can
be said that he was not so satisfied or that he did not really believe that the
confessions were made by the accused voluntarily. The learned
trial Judge held the confessions not voluntary as he was of the view that A-l
to A-8 and A-ll were hardened criminals and it was not believabla that they
would have one after the other shown their willingness, to make confessions. It
was not even the case of the accused that they * , were nottaken to Shinde for
recording their confessions. The only suggestion that was made in his
cross-examination was that he had obtained those confessions after exerting
influence, coercion and physical and mental torture. We have already pointed
out earlier that in absence of any specific act suggested by the defence it Is
not possible to accept the belated allegation made by those accused that their
confessions were obtained In that manner.
On
careful consideration of the evidence of PI Deshmukh and DSP Shinde, we find
that all those accused had made their confessions voluntarily. The confessions
also receive independent corroboration on material points from the evidence of
the two eye-witnesses and also from the evidence of P.Ws. I to 5. We have,
therefore, no hesitation in holding that they are true and reliable and can
form a iafe basis for conviction of those respondents/accused who have admitted
to have taken part in the murder of Suresh and in commission of terrorist acts.
34.
A-1 in his confession (Exts. 571 and 571-A) has admitted that he was a member
of the gang of Manik Patil.
He has
further admitted therein that Manik Patil and his men were entrusted by Bhai
Thakur the job of finishing Suresh and because they had not done their work quickly,
Bhai Thakur was angry with them. So they were keeping a watch on Suresh Dube
and on the day of the incident he was informed by one Kalidas Patil that Suresh
was on platform No. 2. He immediately loaded his pistol and along with A-2 to
A-5 and Narain Gouda went to the railway station. Suresh was seen reading a
newspaper and another person with Him was 'standing nearby and getting his
shoes polished. He crossed him and went ahead and also did Namaskar. As there
were many persons near the book-stall at that point of time he went ahead on
the platform and again returned near that book-stall. He then took out the
pistol from his pocket and fired seven shots at Suresh. He has also stated in
his confession how he and others thereafter ran away and what he and others did
thereafter. A-2, A-3 and A-4 in their confessional statements (Exts. 578 and
578-A, 563 and 563-A and 584 and 584-A respectively) have also stated that
Manik Seth had given Instructions to Narendra (A-l) to finish Suresh and they
were told to accompany Narendra whenever Narendra called them for help. They
have admitted that on being told by A-l that "Suresh Dube has come at
Nalasopara railway station. Let us all go", they went to the railway
platform along with A-l. They have all stated that Narendra fired shots and
after Suresh had collapsed on the platform they had run away. A-5 has also
admitted in his confession that he had gone to the railway platform running
aiong with A-l to help him as decided earlier All of them have clearly admitted
that the murder of Suresh was committed on instructions of Manik Patil (A-6)
and Bhai Thakur. A-6 also confessed that he was the leader of the gang and that
as decided by Bhaii Thakur, Don (Pendari) was to finished by the men of Bhai
Thakur and they were to finish Dube.
Therefore,
A-l and his boys were keeping a watch upon movements of Suresh and he had
instructed A-l and his boys to finish Suresh as soon as possible. So far as
participation of A-l to A-4 in the murder of Suresh is concerned the
confessions stand corroborated by the evidence of the two eye-witnesses. The
confessions of A-5 and A-6 being substantive evidence are sufficient for
considering them and they also receive corroboration from the confessions of
A-l to A-4 and also receive genera' corroboration as regards the other illegai
activities committed by them from the evidence of P.Ws. I to 5 and those
withness examined by the prosecution to prove that they were the victims of
some of the terrorist acts committed by Thakur and Manik Patil. Therefore,
relying upon the .<-..^'on of A-l to A-6 and the evidence of the two any
witnesses Amanath and 0m Prakash, we hold that Suresh was k'illed by
A-1.~-flring shots from his pi'stol and- that was done in prosecution of the
object of the larger conspiracy hatched by Bhai Thakur, Manik Patii and some
members of their gangs and the unlawful assembly consisting of A-l to A-6 and
some others. We, therefore, hold A-l gulity under Section 302 I.P.C. and A-2 to
A-6 under Section 302 read with Sections 120 B and 149 I.P.C.
We may
state that the finding recorded by tha trial Court that the death of Suresh was
homicidal and that he died of the injuries caused to him by the bullets with
which he was hit has not been questioned before us.
35. To
prove the terrorist acts committed by the gangs of Bhai Tnakui and Manik Patil,
the prosecution had examined some police officers and some others who were the
victims of the to rorist acts. The police officers examined by the prosecution
were PI Tadavi (P.W.68), ASI Paradkar (P.
W.
6Q), PSI Ram Krishna (P.W.70), SDPO Deshmukh (P.W.71),
DIG Suradaka'- (P.W.75}. DGP Baraokar (P.W.77) and ACP Vasant Pagare (P.W.90).
PI Tadavi (P.W.68) was attached «-o the Virar police station between 9.4.1985
and 24.1.1986. He has deposed that during that period he had found the three
gangs operating in the area under the police station. They were the gangs
"of Bhal Thakur. Nizam and Karu. Bhai Thakur's gang was and stay with PI
Kukdolkar and both of them used to car Prashant Tandel (A-8) to see them. He
admitted that he had not taken any, action against-any of these gangs nor he
had suspected anything wrong or improper because of those meetings. He denied
that he was deposing falsely against the accused at the instance of Deshmukh.
Ram
Krishna Rengunthawar (P.W.70) was a senior PSI of Virar police station from,
17.5.1981 to 15.8.1982. He has deposed that during that period he had
registered three offences against Bhai Thakur. ' In 1984 he was attached to CID
Crime. Out of those three cases two cases were transferred to CID branch and in
the third case the accused were acquitted. He stated that the said two cases
were compounded out of fear. But he admitted in his cross- examination that he
had not made any report to any higher officer in that behalf. Deshmukh (P.W.71)
was the SDPO of the Western Railway between 1.3.1992 and 30.6.1993. He had no
persona' knowledge with respect to the illegal activities of the two gangs of
Bhai Thakur and Manik Patil. But during the investigation made between
18.5.1992 and 23.9.1992 and also thereafter he had come to know about their
illegal activities and the terror created by them in the area. He admitted that
he had not recived any complaint against thoso two gangs for forcibly
36.
The prosecution also examined Pushpa Pendhari (P.W.19), Balram (P.W.34),
Kanhaya (P.W.35), Jaffar (P.VV.40),' Waman (P.W.41), Sakharam (P.W.42),
Jsjannath (P.W. 45), Subhash (P.W.67) and Naaz (P.W .97) to prove that the
gangs of Bhai Thakur and Manik Patil were engaged in committing terrorist acts.
Out of these witnesses P.Ws. 34,
41, 42 and 4^ have not referred to any specific terrorist act committed by
those two gangs. P.W.97 has deposad about an incident which is beyond the
charge period and, therefore, her evidence was rightly not considered by the
trial Court. P.W.19 has deposed about some acts of the gangs of Bhai Thakur and
Kanik Patil, the rivalry between Bharat Pendhari and those two gangs and the
murder of Bharat Pendhari on 14.9.1989 but they at the most suggest that there
were gang wars. P.W.25 has deposed that his property was demanded and threats
were given to him by Bhai Thakur and therefore he had to leave Virar. P.W.26
has also stated that he was required to sell his land because of threats and
terror of Bhai Thakur. P.W.35 was staying in Virar since 1966. He has deposed
that he was assaulted by the men of Bhai Thakur >n 1984 and, therefore, he
shifted to Vasai in January 1985 and for some time had gone to his native place
in U.P. What was submitted by the learned counsel for the respondents was that
the evidence of these witnesses even if it is believed it proves commission of
illegsl acts involving Violence but fails short of constituting 'terrorist
acts' as contempiated by Section 3 of the TADA Act. It is no doubt true that the
evidence of these witnesses, except that of P.W.19, is not specific and by
itself may not be regarded as sufficient to prove terrorist acts but they
provide sufficient corroboration to the admissions made by A-1 to A-6 in their
confessional statements that the gangs of Bhai Thakur and Manik Patil had
created terror in the areas of their operation. We, therefore, see no reason
why relying upon those confessions and the evidence of these witnesses a
finding that A-1 to A-6 were engaged in committing terrorist acts, cannot be
recorded. A-7 has not confessed in clear terms his involvement in commission of
terrorist acts or in the murder of Suresh. A-8 and A-11 have also not admitted
to have played any role in the murder of Suresh or in commission of terrorist acts
by Bhai Thakur and Manik Patil, though both these accused have generally stated
in their confessional statements about the illegal activities committed by
those two gangs. We, therefore, hold A-1 to A-6 guilty under Section 3 (3) of
the TADA Act also.
37.
The charge against the police officers A-14 to A-17 was that as a part of the
criminal conspiracy with Bhai Thakur and his men, they had caused evidence of
commission of the offence to disappear and by that dishonest investigation have
tried to screen the real offenders from legal punishment and thereby they have
committed offences punishable under Sections 201, 217 and 218 read with 120-B
I.P.C. They are also charged for the offences punishable under Sections 3(3)
and 3(4) of the TADA Act read with 120-B I.P.C. Except the confessional
statements of the co-accused there is no other independent evidence to show the
involvement of A-14 to A-17 as alleged. The confessions no doubt create a
strong suspicion that A-14 to A-17 were maintaining good relations with Bhai
Thakur and A-8 (Prashant) and that they had possibly helped Bhai Thakur and
Manik Patil in screening the real offenders. The role which they played creates
a strong suspicion regarding their connection with the gangs of Bhai Thakur and
Manik Patil.
However,
we do not think it safe to convict them only on the basis oft theConfessions of
the co-accused. ' 38. In the result, these appeals are partly allowed.
The
Judgment and the order of acquittal passed by the learned Judge, Dasignsted
Court, Pune in Terrorist Sessions Case No. 32 of 1993 in favour of respondent
Nos. I to 6 (A-1 to A-6) are set aside, Respondent NO. I Narendm Bhoir is
convicted under Section -02 I.P.C. and santencad to suffer imprisonment for
life. He is also cenvicted under Section 25(l)(a) of the Arms Act. and
sentenced to suffer rigorous imprisonment for six months. Respondent Nos. 2 to
6 are convicted under Section 302 read with Section 120-B and Section 149
I.P.C. and sentenced to suffer imprisonment for life. Respondent Nos. I to 6
are also convicted under Section 3(3) of the TADA Act and sentenced to suffer
imprisonment for 10 years. All of them are acquitted of other charges.
Acquittal of the rest of the respondents 1s- confirmed andappeals against them.
ace dismissed.
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