Dattatray Suryarao Vs. Shamkishore Shamsharrma Garikapatti  Insc 594 (5 November 2001)
Shah & R.P. Sethi Shah, J.
Appeal (crl.) 956 of 2000 Appeal (crl.) 966 of 2000 Appeal
(crl.) 1101 of 2000 AND State of Maharashtra Subhashsingh Shobhnathsingh Thakur
appeals have been filed against the judgment and order dated 7.8.2000 passed in
TADA Special Case No.31 of 1993 passed by the Designated Court for Greater Bombay at Bombay. By the impugned judgment and order, out of 24 accused, the Designated
Court convicted A-6 Subhashsingh Shobhnathsingh Thakur, A-2 Jaywant Dattatraya
Suryarao and A-7 Shamkishor Shamsharma Garikapatti for the various offences as
Subhashsingh Shobhnathsingh Thakur
Section 3(2)(i) of TADA (P) Act and is sentenced to death and to pay a fine of
Rs.500/-, in default of payment of fine to undergo rigorous imprisonment for
one month more;
Section 120-B IPC and is sentenced to death;
Section 3(2)(ii) of the TADA (P) Act and is sentenced to suffer imprisonment
for life and to pay a fine of Rs.500/-, in default of payment of fine to
undergo rigorous imprisonment for one month more;
Section 3(3) of the TADA (P) Act and is sentenced to suffer imprisonment for
life and to pay a fine of Rs.500/-, in default of payment of fine to undergo
rigorous imprisonment for one month more;
Section 5 of the TADA (P) Act and is sentenced to suffer imprisonment for a
term of 10 years and to pay a fine of Rs.100/-, in default of payment of fine
to undergo rigorous imprisonment for one month more;
Section 6 of the TADA (P) Act and is sentenced to suffer imprisonment for 10
years and to pay a fine of Rs.100/-, in default of payment of fine to undergo
rigorous imprisonment for one month more;
under Section 302 of Indian Penal Code for causing the death of Shailesh
Shankar Haldankar and is sentenced to death and to pay a fine of Rs.500/- only,
in default of payment of fine to undergo rigorous imprisonment for one month more;
under Section 302 of Indian Penal Code for causing the death of Police Head
Constable C.G. Javsen, B.No.18005 and is sentenced to death and to pay a fine
of Rs.500/- only, in default of payment of fine to undergo rigorous
imprisonment for one month more;
under Section 302 of Indian Penal Code for causing the death of Police
Constable K.B. Bhanawat, Buckle No.22579 and is sentenced to death and to pay a
fine of Rs.500/- only, in default of payment of fine to undergo rigorous
imprisonment for one month more;
Section 307 read with 34 of Indian Penal Code for attempting to commit the
murder of PW9 Police Constable Vijay Krishna Nagare, PW42 PSI K.G. Thakur, PW11
Shankar Ganpat Sawant, PW54 Shankar Ramchandra Jadhav and is sentenced to suffer
imprisonment for life;
Section 27 of the Arms Act and is sentenced to death;
Jayawant Dattatray Suryarao
Section 3(4) of the TADA (P) Act and is sentenced to suffer rigorous
imprisonment for seven years and to pay a fine of Rs.500/-, in default of
payment of fine to undergo rigorous imprisonment for one month;
Section 212 of IPC and is sentenced to suffer rigorous imprisonment for two
years and to pay a fine of Rs.500/-, in default of payment of fine to undergo
rigorous imprisonment for one month;
Shamkishor Shamsharma Garikapatti
under section 3(4) of the TADA (P) Act and is sentenced to suffer rigorous
imprisonment for ten years and to pay a fine of Rs.500/- only, in default of
payment of fine to undergo rigorous imprisonment for one month;
Section 212 of Indian Penal Code and is sentenced to suffer rigorous
imprisonment for two years and to pay a fine of Rs.500/-, in default of payment
of fine to undergo rigorous imprisonment for one month.
Ismile Faki, A-3 Mehaboobi Aziz Khan, A-4 Anil Amarnath Sharma, A-8 Ahmed
Mohmed Yasin Mansoori, A-9 Jaiprakashsingh Shivcharansingh @ Bacchisingh and
A-10 Prasad Ramakant Khade were acquitted for the offences for which they were
charged. For A-11 to 24, it has been stated that some were shot dead during the
trial and some were absconding. Therefore, the trial of the accused, present in
the court, was separated.
the said judgment and order
A-2, Jayawant Dattatray Suryarao has preferred Criminal Appeal No.975 of 2000;
A-6 Subhashsingh Shobhnathsingh Thakur has preferred Criminal Appeal No.966 of
2000; and as he was sentenced to death, there is Death Reference Case No.1 of
A-7 Shamkishor Shamsharma Garikapatti has preferred Criminal Appeal No.956 of
The State has preferred Criminal Appeal No.1101 of 2000 against the acquittal
of A-1 Jahur Ismile Faki, A-3 Mehaboobi Aziz Khan, A-4 Anil Amarnath Sharma,
A-8 Ahmed Mohmed Yasin Mansoori, A-9 Jaiprakashsingh Shivcharansingh @
Bacchisingh and A-10 Prasad Ramakant Khade.
the prosecution version that on 12.9.1992 at about 03:20 hours the incident of
shoot out took place in J.J. Hospital Campus at Mumbai, which is a Government
Hospital having occupancy of 1500 beds. It is alleged that having made
preparation, such as procuring sophisticated weapons like AK-47 rifles,
pistols, revolvers, dynamites and hand-grenades and by firing the shots through
the said weapons, accused have committed murder of
Prisoner Shailesh Shankar Haldankar, who was undergoing treatment in Ward No.18
in the said hospital;
Police Head Constable Chaintaman Gajanan Javsen; and
Police Constable Kawalsingh Baddu Bhanawat.
two policemen were on guard duty of prisoner Shailesh Shankar Haldankar. It is
also alleged that they attempted to commit murder of six other persons
including PW11 Shankar Ganapat Sawant -- a patient undergoing treatment in ward
no.18, Yunus Mohamed Dadarkar a relative of a patient, PW54 Shankar Ramchandra
Jadhav watchman on duty, PW9 Constable on guard duty, Vijay Krishna Nagare,
PW42 PSI Thakur, the Police Officer on duty to exercise the supervision over
the guard and a staff nurse Smt. Chandrakala Vithal Vinde, who was on duty.
Thus, it is alleged that all the accused have committed the offence punishable
under Sections 120-B of IPC read with 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of
Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter
referred to as the TADA) and Section 302 read with section 34, in the
alternative section 302 read with section 114, in the alternative read with
Sections 149, 307 read with section 34, in the alternative section 307 read
with section 114, in the alternative section 307 read with section 149 of the
Indian Penal Code and Section 27 read with section 5 of the Arms Act.
the prosecution case that in Mumbai City, criminal gangs operate and they commit organized
crime and recover large sum from industrialists, businessmen, professionals,
hoteliers etc. as khandani (protection money). It is also stated that sister of
Dawood Ibrahim (a gangster) had married one Ibrahim Parkar who was man of
confidence of Dawood Ibrahim. Ibrahim Parkar was shot dead at his residence on
26.7.1992 in Nagpada locality and an offence, under Crime No.589/93, under
Section 302 IPC was registered in that connection.
Shailesh Haldankar was suspected to have pointed him out.
also alleged that the said Shailesh Haldankar was a person belonging to the
gang of Arun Gawali, the arch rival of Dawood Ibrahim. On the night between
30.8.1992 and 31.8.1992 Shailesh Haldankar, Bipin Shere, Raju Batata and
Santosh Patil had fired shots at one Masukh Rawat in the Kumbharwada locality
and therefore the offence (at Crime No.460/92) under Section 307 IPC was
registered against them and as such Shailesh Haldankar, Bipin Shere and Raju
Batata were wanted accused in that crime. On 2.9.1992 at about 8.00 a.m. or so,
Shailesh Haldankar and Bipin Shere and their associate Raju Batata (now
deceased) were noticed by some one in Kumbharawada locality and the police was
informed. On information, police party chased them and noticing police party,
they tried to scare away the police by brandishing the weapons i.e. the swords
and choppers. Somehow or the other, the police succeeded in overpowering
Shailesh Haldankar and Bipin Shere. Third person Raju Batata managed to escape
in the melee. At the same time, number of persons who had gathered there, on
seeing the commotion man-handled Shailesh Haldankar and Bipin Shere. The police
successfully persuaded the members of the public to maintain peace and
thereafter Shailesh Haldankar and Bipin Shere were removed to J.J. Hospital for
treatment of injuries sustained by them. They were transferred to J.J. Hospital and
kept in Ward No.18 on the third floor.
guard comprising of one head constable and two constables was posted on duty to
prevent the escape of the prisoners.
the prosecution version that on 12.9.1992 at about 2.00 a.m. PW42 PSI Thakur had gone for guard duty check at the
J.J.Hospital. After checking guard of Bipin Shere, he went to ward no.18 to
check the guard of the prisoner Shailesh Haldankar. In the said ward, Shailesh
Haldankar and other patient (PW10) Siddiq Ahmed Amin were sleeping on cots.
Police Constable Nagare (PW9) was sitting on the stool between the cots. Head
constable Javsen and PC Bhanawat were sitting on the very same cot on which
Shailesh Haldankar was lying. Shailesh Haldankar was handcuffed. PSI Thakur
went inside the cabin and sat on the said cot.
alleged that all the accused came from the room of absconding accused Nazir
Jariwala by two fiat cars. Accused no.8 Ahmed Mansoori and deceased Sunil
Sawant went ahead on scooter.
were followed by cars. The blue car was in front and was occupied by accused
no.6 Subhashsingh and others. Other car was occupied by other accused. Both the
cars entered through the western side gate of J.J. Hospital. Some accused took their position
near the staircase and accused no.6 and others went upstairs. It is alleged
that accused no.6 made a show by catching the collar of absconding accused Ravi
Sorte and played a hoax that he was the police man who had caught the criminal
by uttering the words saale tumhare baki satthi dikhao. PW54 Shankar Ramchandra
Jadhav, a watchman on duty, who was standing near the staircase in the main
building in front of the lift at the ground, after noticing the weapons in the
hands of accused, suspected that probably they might be the policemen.
when he attempted to go ahead to make an enquiry, A-10 Khade caught him and
threatened him that he should not move and at the same time accused no.9
Bacchisingh hit him by the revolver butt on his face. It is stated that PW54
Shankar Jadhav fell down in semi- conscious state and re-gained consciousness
later on when he was taken to casualty ward.
Police Constable Anant More, an unarmed constable attached to Police Head
Quarter, Thane, on 12.9.1992, was on guard duty in Ward No.18 of J.J. Hospital
because one of the accused, who was lodged in Kalyan Prison was admitted in
that ward for treatment.
duty hours were from 3.00
a.m. to 6.00 a.m., he noticed three persons duly armed entering the
said ward at about 3.40
a.m. Two of them were
having AK-47 rifles. He rushed to the southern side wall of the ward. There was
a door in that wall and the shots were being fired at that door itself and,
therefore, he could not fire from his weapon in retaliation. The prisoner whom
they were guarding had taken shelter underneath the cot. He went in left side
room, wherein another prisoner was admitted, who was being guarded by a guard
from Mumbai and noticed that the accused and two policemen were lying in the
pool of blood on the ground in the said room. His statement was recorded by
Byculla Police Station Staff. It is also stated that the staff nurse Ms.
Chandrakala Vithal Vinde was on duty in ward no.18. After the accused entered
the said ward, all of a sudden PW42 PSI Thakur heard the words hands up, do not
move, else we will kill you. At that time, PW9 PC Nagare attempted to close the
door but it was not fully closed. Further, PSI Thakur heard four rounds having
been fired on the door which was sought to be closed and noticed that a person
was standing outside the door at a distance of 1-1/2 or 2 feets. It is stated
that PSI Thakur fired from the revolver and also saw one person having weapon
like AK-47. He went out from the southern side of the cabin. At that time,
deceased Shailesh was uttering release me, they have come to kill me. PW9 PC
Nagare and the other constables became alert. PSI Thakur went out through the
southern door of cabin and rushed towards the another door which connected the
main ward to the eastern gallery of the ward No. 18. Then he noticed that the
person who was standing outside the western door was in the same position and
one or two persons were there at a distance of about 7/8 feet behind that
person. He also noticed 3-4 other persons in the ward. He fired one shot in the
direction of the said person. He fired one more shot and then receded through
the very same door back to the veranda. He receded in the southern veranda and
when he was rushing towards the bath room through the verandah, he heard
somebody saying udharse bhaga maro saleko meaning (the person) had run away by
that side, kill the bastard. Before rushing towards the bath room he had closed
the said southern door of the ward and no sooner the aforesaid utterances were
heard, he noticed that a number of shots were fired on that door. He went
inside the bathroom. PW9 PC Nagare who had become alert and who had taken the
position with the rifle in his hand noticed very same person whom he had seen
inside the ward earlier coming towards the southern door of the cabin,
therefore, he fired one shot through his rifle in his direction. It is his say
that before he could fire second round, the bullet which the said person had
fired hit him on his right thigh. Therefore, he receded a little and fell down
by the side of the cot. Thereafter, that person entered inside the room and
fired shots indiscriminately towards Shailesh Haldankar. HC Javsen and PC
Bhanawat were also hit by those bullets. At that time, he heard hue and cry in
the ward. Because of the injury sustained on his thigh, he felt giddy. PW9 PC
Nagare has identified the person who was seen by him in the ward, who had
uttered the word hands-up, hilo mat nahi
to maar dalenge, and who had entered the cabin and fired the shots at Shailesh
Haldankar, HC Javsen and PC Bhanawat to be the accused No.6 Subhashsingh Thakur.
Other facts stated by the prosecution witnesses are not relevant and,
therefore, they are not narrated. After completion of the investigation,
accused were tried for various offences and convicted as stated above.
Part of Evidence:
prove the story, the prosecution has relied upon confessional statements,
evidence of injured witnesses and other corroborative evidence. We would first
refer to the relevant part of the confessional statements of A-2, A-6 and A-7
and thereafter other evidence led by the prosecution to connect the accused
with the crime.
STATEMENT OF A-2 Suryarao (A-2) has disclosed that A-7 Shamkishore was known to
him since year 1988 and was frequently visiting his residence in Shanti Niketan
Society on LBS Road, Ghatkopar. He had sold his motor
Car No.MP-09-D09634 to one Sanjay Shetty through A-7 in July, 1992. It is
further disclosed that his election to the post of President was not liked by
his political rivals and the said rivals lost no time in mobilising a campaign
against him for no confidence motion. In the month of July, 1992 the news had
appeared in the Navashakti Marathi Daily that he had sent Shamkishor
Garikapatti (A-7) to the residence of R.C. Patil (PW61 President of Thane
District Congress Party) to tell him to stop the campaign against him and that
Dawood Ibrahim had telephoned to R.C. Patil asking him to stop the campaign
against him. Thereafter, he had issued a press-note denying these allegations.
On 2.9.1992 at the behest of A-7, A-2 accompanied with his wife Priti and PW34
Himmat Raval had gone to Seema Holiday Resort in car belonging to Shri Palsule,
driven by Driver Halim (PW62). He requested Pappu Kalani to ask R.C. Patil
(PW61) to stop the campaign against him. Pappu Kalani promised him to do the
needful through his contacts and further told him that A-7 was the man of his
confidence and he should help him. Next day, he contacted A-7 on phone and
enquired with him as to whether he had received any message from Pappu Kalani.
Then A-7 replied in negative and told him that he was doubtful whether Pappu
Kalani had gone to Delhi.
further disclosed that on 12.9.1992 at 6.30 a.m., he got a telephone call from A-7 asking him to see him before 9.30 a.m. with an air-conditioned car. At 8.45 a.m. again A-7 telephoned him.
he accompanied by bodyguard PC Laxman Vishe (PW12) left for Bombay in the Contessa Car No.MH-04-A-1445
driven by PW17 Shripad Tambe. When he reached at the residence of A-7 at
Ghatkopar, A-7 told him that early in the morning Arun Gavlis men had fired at
his friend and he is to be taken for medical treatment to the hospital and he
should make arrangements for his transportation.
asked him to use his official vehicle as it would be safer and he accepted the
said suggestion. Thereafter, A-7 asked him to go to Sagar Hotel at Nagpada
where a person would meet him and take him to the injured and after meeting the
said injured he should take the injured to Goregaon in his official car. A-7
also informed him that he has booked suite in a Hotel in Juhu where he could
relax. Then, the car was driven to Sagar Hotel and from there with the
assistance of a young Muslim boy it was brought towards Bombay Central Area in
front of a chawl. The said boy took him to the building where he saw one person
with a bandage around his abdomen, having height of 56, slim built and a
shallow complexion. He met another person there who gave his name as Dr.
Bansal. Subhashsingh Thakur (A-6) was also present there. He was knowing A-6
because he met him twice before at the instance of A-7 at Seema Holiday Resort
owned by Pappu Kalani situated at Varap village on Kalyan Murbad Road. He then enquired about the
condition of the patient with Dr. Bansal. The injured was brought to the
Contessa Car by Dr. Bansal with the help of two other persons. Dr. Bansal as
well as the injured sat in the car along with him and then the car was driven
to Hotel Centaur at Juhu.
there the car was taken to Hotel Holiday Inn at Juhu because there was none to
receive them at Hotel Centaur. He got down from the car alongwith his body
guard P.C. Vishe (PW12) and asked driver Tambe (PW17) to take the injured to
the hospital as per the directions of Dr. Bansal. One person namely, Vijay, met
him there in the Hotel Holiday Inn and told him that he was sent by A-7. He led
him and the police constable PW12 Vishe to suite No.315. Thereafter, Vijay made
telephone call and left the said room. Sometime thereafter, A-7 telephoned him
and requested him to go back to Bombay Central where he had gone before. At
about 1.00 p.m. driver Tambe returned from the
hospital when he asked him as to whether he had left Dr. Bansal and the injured
and he told him that he dropped them at Goregaon. Thereafter, he and PW12 PC
Vishe sat in the car and at his behest driver Tambe drove the car to Hotel
Sagar where the very same Muslim young boy who had helped him in the previous
visit to lead to place, was waiting for them. A-6 came down and sat by his side
and then asked the driver to proceed towards the Petrol Pump situated opposite
to J.J. Hospital. A-6 asked the driver to stop the car there telling that
Savtya was coming. After a few minutes Savtya came there and then A-6 asked him
as to where he was going and he told him that he was going towards hotel Holiday
Inn. When the car reached near Lido Cinema in Santacruz locality at about 2.30 p.m., A- 6 asked the driver to stop the car in front of a
petrol pump and then A- 6 and Sunil Sawant got down and walked away. When they
were tavelling in the car, A-6 opened the zip of the airbag and showed him a
stengun and four revolvers. Then they went to Hotel Holiday Inn and he
collected the keys of room no.315 from the receptionist. It is his further say
that near the Reception counter, he heard someone talking about the shoot out
incident in J.J. Hospital and he realised that he had helped the gangsters of Dawood
Ibrahim in fleeing. He became restless and returned to Bhiwandi at 6.00 p.m. On 13.9.1992 at 10.00 a.m., he received a telephone call from A-7 and then he complained to him
that he had unnecessarily put him in trouble but A- 7 got annoyed and
threatened him and asked to keep quite on the issue and forget about it.
further stated that on 13.9.1992 at the instance of A-7, he met Pappu Kalani
and A-7 at Seema Holiday Resort and then Pappu Kalani told him that he should
not tell anybody about the removing of the injured persons and others in his
official car failing which he would finish him and his family. On 14.9.1992 at
about 9.00 a.m., when he was about to leave his residence, Baba Gabriel and one
unknown person met him and informed him that A-7 had asked him to come at his
residence with his official car. At that time, A-7 also telephoned him and
asked him in a threatening tone to bring the car otherwise his family would be
butchered. He got frightened and asked driver Badruddin Chimkar to get Maruti
1000 car bearing No.MH-04-A-5353. The bodyguard police constable was also with
him. A-7 then asked him to bring Himmat Raval, who was known to A-7 and he was also
taken from his residence. The car was then brought to the residence of A-7 at
Ghatkopar and then A-7 boarded the said car and it was brought to Vile Parle.
In a flat on the ground floor, he met a male person aged about 30/35 years.
Himmat Raval got down from the car and stayed behind and the said male person
then boarded the said car and asked the driver to proceed towards Pali Hill
side. On reaching there, Vijay who had met them earlier at Hotel Holiday Inn
came there. He had come there in a white coloured Maruti Car alongwith 2/3
persons. They were carrying their suit cases with them. At about 2.00 p.m. at the behest of A-7, driver Badruddin Chimkar drove
the car towards Santacruz and when the car reached one locality, probably
Daulatnagar in Santacruz area, A-7 asked him to stop the car and went in a
multi-storey building. He saw A-6 there with one more person. A-6 sat in the
car and A-7 asked to proceed towards Manor. At about 4.30 p.m., they stopped at Sagar Petrol Pump on Western Express Highway as asked by A-7. In the meanwhile,
two blue coloured Maruti cars arrived there. One of the cars bearing No.MP 09
D-9634 was identified by him and he saw Satish Rao, Ms. Meena Rao and his
friend Himmat Raval getting down from the car. He also noticed other 5 to 6
persons getting down from another car. He took A-7 aside and requested him to
relieve him because he did not want to go ahead with them. A-7 agreed to
relieve him on the condition that he should give him Maruti 1000 Car bearing
No.MH-04-A-5353 belonging to Bhiwandi-Nizampura Municipal Council with the
policeman on duty. He agreed to spare the said car without a policeman. A-7
agreed and also gave him Maruti car No.MP-09-D-9634 for their return. He, his
bodyguard and Himmat Rawal sat in the said car and came back to Bhiwandi. Mr.
and Mrs. Rao, A-6 Subhashsingh, and others went ahead in the Maruti 1000 motor
car and the other vehicle. On the same day, at 7.30 p.m., he returned to Bhiwandi and left the motor car
MP-09-D-9634 at the residence of Himmat Raval. Thereafter, he took another car
of his friend Mohan Amre and visited Kalava to see Rajaram Salvi, Agripada
Leader. He also met Shri Anand Dighe, Thane district Shivsena Chief.
15.9.1992 at about 1.30 hrs., he saw Maruti Car No.MH-04- A-5353 near Pious High School. He intercepted it and found it to be occupied by Mr.
Satish Rao and his wife Mrs. Meena Rao, A-7 and Driver Badruddin Chimkar. He
asked driver Badruddin Chimkar to come next day morning at 9.00 a.m. On the same day at 9.00 a.m. A7 telephoned him and asked him for his car with the
policeman to be sent at his residence but he refused to oblige him.
16.9.1992 at 9.00 a.m., A-7 telephoned him and informed
him that he has done the job without his help (Probably the reference was for
not providing the car with a policeman). A-7 was rude on phone saying that he
could do anything and nobody can stop him. At that time, he got frightened and
tore two pages from the logbook of Contessa Car bearing no. MH-04-A-1445
regarding the entries of his movements on 12.9.1992. Thereafter, as instructed
by him driver Tambe (PW-17) re-wrote the logbook. The said two pages were kept
by him at his residence and were recovered by the police at his instance on
his further say that on 19.9.1992, when he learnt that Mumbai police had come
to Bhiwandi and were making inquiries of the motor car bearing No.MH-04-A-1445
and its driver, he got frightened and contacted A-7 on telephone and informed
him accordingly. A-7 advised him to send driver Tambe out of Bombay for 3/4 days and in the meantime he
would try to subside the matter through the sources of Pappu Kalani. He also
advised him to make efforts to subside the matter through his sources.
Thereafter, he paid an amount of Rs.1000/- to driver Tambe and sent him to A-7
at Ghatkopar with his nephew Bhimsen in his private white coloured Ambassador car
no.MAS-300. He also called Smt. Tambe (wife of PW17 Tambe) and paid her an
amount of Rs.500/- for domestic expenses and told her that her husband had gone
out of Bhiwandi and would return after 3-4 days. Finally, he was arrested on
Statement of A-6:
Subhashsingh Thakur was arrested by Delhi Police in the last week of July, 1993
and that his statement was recorded on 6.11.1993. In his confessional
statement, he has narrated history of his anti social activities in detail. For
our purpose, it is necessary to refer to relevant part of shoot out incident at
the J.J. Hospital. He stated that he murdered one Paul Patric Newman,
belonging to Arun Gavlis gang. After the murder he started staying with Sunil
Sawant at Kathmandu, Nepal. During that period, he used to often come to Delhi, Gonda and Bombay. When he was in Kathmandu, one Kim Bahadur Thapa, a
Corporator (who was his mentor) was killed by members of Chhota Rajan gang. To
avenge the killing of Kim Bahadur Thapa, he killed Sanjay Raggad, Diwakar Churi
and one Amar Juker, all belonging to Chhota Rajan gang with the help of his
associate Brijeshsingh (absconding accused) and others. It is his say that
after previous involvement in murder cases, he was living at Delhi with one Brijeshsingh. Deceased
Sunil Sawant suggested him that since number of days, they have not
participated in any game and they should go to Bombay. Thereafter, they came to Bombay and started living in flat in Queens View Apartment near
Lido Cinema at Juhu owned by deceased Manish Gangaram Lala. On 11.9.1992 he was
informed by Sunil that in J.J. Hospital the killer of brother-in-law of
Dawood Ibrahim was admitted and he was required to be murdered.
was taking instructions from Dawood Ibrahim by contacting him on telephone. It
is his say that Sunil informed him that everything was set and when they would
reach at the hospital, at the point of AK-47 rifle policemen should be asked to
raise their hands and thereafter remove the bullets from their rifles and then
go in the ward, finish the killers and return. At about 1.00 or 1.30 a.m., Sunil informed Brijeshsingh to go along with some
persons of Nazir at J.J.Hospital to find out the situation. After one hour, he
was informed that one police constable was on duty and it would be easy to
carry out the work. At about 3.30 a.m. on
12.9.1992, he alongwith other persons went to J.J. Hospital. He was having 9mm pistol with
magazines. Others were also having loaded pistol or revolver.
and Brijesh were also having AK-47 rifles with extra magazines. They went in
two fiat cars. When they entered the gate, they saw one watchman was standing
near the staircase. Najir and his man caught the colour of Ravi Sorte to make a
show as if a policeman was taking an accused. On seeing them, the policeman who
was on guard duty closed the door for entry to the ward. Then Brijeshsingh
knocked the door but none opened. At that time, he felt that there was no
setting and, therefore, he asked Brijeshsingh that they all should go back.
During that time, Brijeshsingh fired three to four times from his AK-47 rifle
on the closed door. Again he asked Brijeshsingh to return. Meantime, someone
else fired at them from the opposite door.
they all moved towards the side from where they were fired. During that time,
policemen continued to fire towards them from one door or other and they also
retaliated. Thereafter, Brijeshsingh came towards him quickly and told that he
has killed all the persons inside the ward and asked them to move from that
they reached at the house of Najir Jariwala. There they found that Pradhan was
having bullet injury in his abdomen and Ravi
was injured on his hand. They contacted Chhota Shakeel at Dubai who gave them assurance for
arranging a doctor and that he would be giving information to Dawood. After
half an hour, Dawood made call and informed that one doctor would be reaching
shortly. One doctor thereafter came and gave injections to Pradhan and Ravi. Doctor informed him that treatment to Pradhan is
not possible. Doctor also informed on telephone to Chhota Shakeel that Pradhan
is required to be operated. Chhota Shakeel thereafter informed that he will
send some other doctor. Another doctor came and told that operation of Pradhan
is required to be done urgently and he was not having operation accessory.
Thereafter, he contacted Kishore - A-7 for making some arrangement and informed
him that Pradhan has sustained bullet injury. Thereafter, A-7 informed that
Suryarao has left Bhiwandi and would be reaching there within a short time.
When Suryarao came alongwith Najirs boy, he introduced himself to Suryarao and
told him that due to internal conflict one of his persons has sustained a
bullet injury and was required to be taken to hospital immediately. Suryarao
enquired where he was to be taken. Then he told Suryarao to take him in Hotel
Holiday Inn where a boy named Vijay would meet him to make further arrangement.
At about 12.00 noon he received telephone call from
Sunil that Pradhan has reached hospital of Dr. Mohan Gedam and Vijay was present there and
that in a short while the car would be going back to Hotel Holiday Inn. He
telephoned Suryarao (A-2) in Hotel Holiday Inn and asked him to bring back the
car to the residence of Najir Jariwala. Suryarao agreed.
sometime, Suryarao came there alongwith Brijeshsingh. He asked Brijeshsingh to
leave alongwith one boy of Najir and thereafter he sat in the car alongwith
Suryarao. Najirs boy took them near a petrol pump. Suryarao thereafter left the
place and they left for the flat of Manishlala. On 14.9.1992, he informed
Kishore that he wanted to leave Bombay and whether he could arrange car of Suryarao.
Kishore was asked to come in the car of Suryarao at BSES guest house by 4.00 p.m. In the car of Suryarao, they reached at Sagar Petrol
Pump, Vasai. It is his say that finally he reached to Delhi and thereafter went to other
places. For the purpose of this appeal, other part of the statement is not
required to be narrated.
Statement of A-7 A-7 has also revealed the detailed facts about the incident
and that he was arrested on 18.7.1993 by Delhi Police. It is his say that he is
a resident of Shanti Niketan, Ghatkopar (W), Bombay. He is B.Sc. and that after graduation he started business
of transportation of liquid chemicals. In January, 1985 he was playing a
cricket match at Shell colony ground in the morning. At about 10.30 a.m. or so, he noticed one person running across the
ground and he was profusely bleeding.
running, he collapsed on the ground. He was identified as Subhashsingh Thakur
(Accused no.6) by Mangesh More and Mahboob Kunji. They took him to Dr. Lads
hospital, Dhar, Bombay.
Lad examined him and removed bullet from his body and informed him that it was
a police case. He asked him to inform the police or remove the injured to
government hospital, otherwise he would inform it to police. He got frightened
and left the hospital.
day, he came to know that accused no.6 had fired at police and in retaliation
police had fired at him and he had sustained bullet injuries. In the year 1987,
Subhashsingh Thakur asked him to help in the said case. Subhashsingh was
acquitted from the said case.
he has narrated other incidents wherein A-6 Subhashsingh was involved. It is
his say that while he was having meeting with Subhashsingh, Himmat Raval, the
then Vice President of Bhiwandi Nagar Parishad, introduced him with Suryarao
(A-2). Thereafter, Suryrarao sought his help as his political rival Shri R.C.
Patil was to bring no-confidence motion against him and that he promised to
help through Pappu Kalani. A-2 and Himmat Raval met Pappu Kalani at Seema
Holiday Resort twice in the month of August, 1992. At that time, Pappu Kalani
told Suryarao that he should help him (A-7 Kishore). On 12.9.1992, at about 6.00 a.m., he got a telephone call from Subhashsingh Thakur
who told him that there was firing at J.J. Hospital and one of his friends was
badly injured in the incident and he wanted to remove him immediately and
safely out of Bombay and asked him to call official vehicle of Suryarao (A-2)
and to send the same to Sagar Hotel at Nagpada. He contacted Suryarao and asked
him to go at Sagar Hotel, Nagpada with his official car. Subhashsingh Thakur
once again telephoned him at his residence and informed that on 12th September,
1992, in the early morning at about 4.00 a.m., he alongwith Sunil Sawant,
Brijeshsingh, Pradhan, Nirmalsingh, Prasad Khade, Bacchisingh, Pappu, Babloo
and two three muslim boys of Nazir stormed into ward no.18, J.J. Hospital and
fired at Shailesh Haldankar in which Shailesh Haldankar and two policemen were
injured and died subsequently. He also informed him that Suryarao had come with
his car and removed the injured. At about 2.00 p.m., he received telephone call from Suryarao, who informed him that he
dropped the injured at Andheri and that he was leaving for Bhiwandi.
on 14.9.1992, Subhashsingh rang him and informed that he wanted to leave Bombay and asked him for the same vehicle
which removed the injured. He again contacted Suryarao and asked him to come at
his residence with his official vehicle. At 10.00 a.m., Suryarao came to his residence with white colour Maruti
1000 Car No.MH-04-A-5353. He was accompanied by Himmat Raval, his driver and a
police constable in uniform. Thereafter, they went at Anil Sharmas house. Anil
Sharma took them at the Guest House, where he met Manishlala, who informed him
that Subhashsingh was intending to leave Bombay for Gujarat.
he has narrated in detail how they reached upto Sagar Petrol Pump. It his say
that as Suryarao was having some work, he returned to Bhiwandi in another
vehicle of Satish Rao (PW22) with Himmat Raval and his driver. He kept Maruti
from Vapi they returned to Bhiwandi and left the car at Suryaraos house.
Thereafter, he has narrated that finally he left Bombay and went to other places including Delhi and Vaishnodevi.
Corroboration to the Aforesaid Statements:
referring to the other evidence, we would refer to the evidence of some hostile
witnesses who corroborate the above confessional statements. PW45 Mohd. Hasan
Mansoori whose son is Yasin Mansoori (A-8) has stated that he was staying in
Mukhtiyar Manzil in room nos.11 and 22. In cross-examination, he stated that
Mukhtiyar Manzil is at a distance of 2 minutes walk from the J.J. Junction and
J.J. hospital is at a distance of about 4 minutes walk from J.J. Junction and
that in the Mastan Talao locality, there are number of lanes. The J.J. Junction
and the Nagpada Junction are at a distance of about ½- ¾ km. from Nagpada and
that Mastan Talao is at the distance of 5 to 10 minutes walk from Nagpada
junction. He has also stated that there are number of mutton shops in mini
bazar, near Mastan Talao and that he was not knowing whereabouts of his son.
PW66 Sayyed Rais Ahmed Jariwala has stated that he and absconding accused Nazir
were staying in room nos.11 and 12 in Shankar Building, Mastan Tank Lane, Nagpada. This evidence alongwith confessional statements
would indicate that accused before carrying out the target selected a place
which was nearby J.J. Hospital.
whatever has been confessed by A-2, A-6 and A-7 with regard to their movements
on 12th and 14th gets full corroboration from the evidence of PW12 and PW26.
PW12 Laxman Vishe, who was armed police constable attached to Thane Police Head
Quarter, was assigned the duty of regular Guard to A-2, who was the President
of Bhiwandi Nizampur Municipal Council at the relevant time. It is his say that
A-2 Suryarao was having two houses and two wives, one at Najrana Compound in Bhiwandi Town and other in Gokul Nagar.
having two cars, one white colour Ambassador car and other Contessa Car having
No.MHO-4-1445. It is his further say that on 12.9.1992 at about 8.00 a.m., he accompanied A-2 in Contessa Car.
that time he was in police uniform. A-2 directed the driver Tambe to take the
car to highway via Bhiwandi Vegetable Market. One person, who was standing in
the Bhiwandi vegetable market, was taken inside by A-2 and that person got down
at Thane highway. After passing one bridge on Old Agra Road, car was taken to a building in Ghatkopar area. A-2 got
down from the car and asked him to wait in the car. After 15/20 minutes A2
returned to the car and directed to drive the car to Sagar Hotel at Nagpada
Junction. There, he and A-2 got down from the car. A-2 was looking around
nearby and a young boy of 20/22 years of age having fair complexion and curly
hair approached A-2. Both the persons after having a talk with each other sat
on the rear seat in the Contessa car. After about 5 minutes of driving, the
said boy asked the driver Tambe to stop the car near mutton lane. A-2 and the
said boy got down from the car and A-2 asked him to wait near the car. The two
then went through a by lane and disappeared. After 10/15 minutes, A-2 came back
followed by 3 persons. One of the three persons was given support by taking his
arms on their shoulders by the other two persons. One more person followed them
with a suitcase in his hand. Of the two persons, one person was the very same
person who had met them near Sagar hotel and who had led them to the mutton
lane. The person who was ill and the person who was having briefcase occupied
the car along with Suryarao and other two persons went away. Thereafter, they
went to hotel Holiday-Inn in Juhu locality. On enquiry, A-2 told him that the
patient was son of his friend and that he was suffering from kidney trouble and
required to be taken to the hospital. After half-an hour drive, they reached
Hotel Holiday Inn and he alongwith A-2 got down there. One young person of
25/30 years age led them to room no.315 and thereafter he went down stairs
saying that he will be going to the hospital alongwith the patient. A-2
received a number of telephone calls in the room and also made number of phone
calls. After half an hour, A-2 enquired with the Reception Counter about
arrival of Car.
they came down and A-2 enquired from the driver as to whether the patient
reached safely to the hospital and the driver Tambe replied affirmatively. A-2
then asked the driver to take the car to Sagar Hotel in Nagpada locality. The
very same person who had met them in the morning in the Sagar Hotel and who
guided driver to take the car to mutton lane met them. He occupied the seat in
the rear by the side of A-2 and helped the driver to take the car again to the
very same place i.e. the mutton lane. A person having 59 height and strong
built of about 28/30 years of age came there in a short while and sat on the
rear seat by the side of A-2 Suryarao. That person was subsequently identified
by him as accused no.6. That person asked the driver to take the car to the
Petrol Pump near J.J. Hospital. The person who had helped the driver to take
the car to mutton lane from Sagar Hotel got down from the car after they
reached mutton lane.
the car reached near the Petrol Pump, one person came there and told the said
tall person that the person for whom he was waiting will be reaching there
within a short time. Saying so, the said person went away. 5/10 minutes
thereafter, a person of about 30/32 years of age came there wearing a Kurta
Pyjama and a Bohara Muslim cap and having a tin of Paan Parag in his hand. The
tall person introduced the said person to A-2 as Savtya (deceased). Thereafter,
all of them left for hotel Holiday-Inn. The car was stopped on way in Santacruz
locality near a petrol pump at the behest of Savtya. On the way, Savtya got
down from the car and went away in a lane and disappeared. The car was then
brought to hotel Holiday-Inn and there they went to room no.315. They stayed
there for half an hour. He then questioned A-2 as to why they had come to that
place. A-2 replied that all the Municipal Members of Bhiwandi-Nizampura Council
were expected to come there for a meeting to be attended by the son of Shiv
Sena Leader Bal Thackery. The Municipal Members as well as the son of Bal
Thackeray did not come there. Thereafter, A-2 asked the driver Tambe to take
the car to Thane. A-2 went inside the bungalow of Shiv Sena leader Anand Dighe.
Within half an hour, he returned to the car and then they went to Bhiwandi at
the residence of A-2 near Najrana Compound. On 26.9.1992, he was called at the
DCB CID Office for an identification parade held by the Special Executive
Magistrate and in that parade he identified the person who met them near Sagar
Hotel and led them to mutton lane as accused no.1 Jahur Ismail Faki. On
22.10.1993, after the arrest of A-6, identification parade was held and he
identified A-6 by saying that he was the very same person who sat in their car
when they visited mutton lane second time. He was the person who asked the
driver Tambe to bring the car to the petrol pump near J.J. Hospital and on way
to the hotel Holiday Inn, he got down in Santacruz locality. In his detail
cross-examination, nothing material was found so as to disbelieve his evidence
and identification made by him before the Executive Magistrate and in the Dock.
He also denied the suggestion that prior to the test identification parade,
accused no.6 was shown to him by the police.
PW26 Ramesh Shankar Patil, who was armed police constable and Guard to accused
no.2, corroborates the prosecution version with regard to travelling of A-2,
A-6 and A-7 by Maruti car.
his say that on 14.9.1992, at 8.30 a.m., he accompanied A-2 Suryarao in a white
coloured Maruti bearing No.MH-04-A-5353, being driven by Badruddin Chimkar
driver. There was a metallic nameplate of President Bhiwandi, Nizampura
Municipal Council affixed on the front side of the car. A-2 directed the driver
Badruddin to take the car to Dhamankar Naka at Bhiwandi. When they approached
Dhamankar Naka, a person was standing there and A-2 asked him to sit inside. On
making enquiry, he came to know that he was Himmatbhai Raval (PW34). A-2 told
driver to drive the car towards Bombay via Pipeline. After about 30/35 minutes,
after crossing the Mulund Check Naka along the highway, A-2 asked the driver to
take a right turn. He realised that they were in Ghatkopar locality. When the
car entered in the compound, A-2 asked the driver to stop the car. A-2 asked
him to wait. A-2 alongwith Himmatbhai went away and after 15 minutes came back
alongwith one another person. At that time, one NE 118 car was there. A-7
occupied the rear seat of Maruti 1000 car and asked the driver to follow the
said NE 118 Car. After some time, both the cars reached a colony, namely Post and
Telegraph Employees Colony. After getting down from the car, Himmatbhai and A-2
went in a building nearby and returned after about 15/20 minutes. Thereafter,
after driving the car for about 20 minutes, the driver stopped the car and
Himmatbhai got down from the car and one person (accused no.4) boarded that
car. Then under the guidance of A-4, the car was taken to a place where there
was a big garden. There was a gate to the compound. The watchman on duty was
wearing uniform having nameplate reading Bombay Suburban Electricity Supply
Company (BSES). The car was taken inside the compound, where A-2, A-4 and A-7
got down from the car and he continued to wait near the car. All the three went
on the first floor of the building. After half an hour, he alongwith A-7 and
driver went to have lunch and thereafter returned to the same place. 10/15
minutes thereafter, A-2 came there accompanied with one more person, who was
having a suitcase and a leather bag, which were kept inside the dicky of the
car of A-2. Then the said person occupied the rear seat with A-7 and directed
the driver to drive the car on the High Way. After 20/25 minutes they reached
near the garage on the high way. The car was driven nearby a multi storey
building. The car was taken inside the compound. Then a tall person (A-6)
wearing a salvar-kamij came there. Thereafter, A-6 accompanied them and led the
car to Sagar Petrol Pump at Vasai. There, one blue colour Maruti 800 car was
standing at the petrol pump. In that car one woman, one another person and
Himmatbhai Raval were there. Occupants of both the cars got down. A person came
there from the petrol pump and led all of them to a first floor room at the
petrol pump. He and driver stayed near the car. The remaining person returned
to the car after 30/35 minutes. They all boarded their respective cars for
going to Shirsat Fata. On the way, they all got down from the cars. Persons got
down from the blue Maruti 800 Car and took the seat in the Car MH-04-A-5353.
A-6 and A-7 also sat in the same car. He alongwith A-2 and Himmatbhai sat in
the blue Maruti 800 car. A-2 drove the blue maruti car and asked his driver to
leave all the occupants of the Car MH-04-A-5353 to Vapi and come back. They
came back to Gokul Nagar in Bhiwandi. On 6.9.1993, he was called by the police
for test identification parade in the DCB CID Office near Crowford Market at
Mumbai. He was shown 10/11 persons in a row. He identified A-4 Anil Amarnath
Sharma as the person who had boarded the car near the railway crossing and who
had guided the driver to take the car to BSES guest-house. Likewise, on
21.10.1993 he identified A-7 and A-6. In cross-examination, there is nothing
which would affect the version given by the witness or which may support the
important witness is PW9 Vijay Nagare, who at the relevant time was posted on
the guard duty in the J.J. Hospital in which Shailesh Haldankar was lodged. It is his say that
Shailesh Haldankar was sleeping in a cot having handcuffed with the upper side
rod of the cot. Other two police constables Javsen and Bhanavat were also
sitting on the said cot. PSI Thakur came there in mufti to check the guard on
duty. He also sat there on the cot where Shailesh Haldankar was sleeping. At
about 3.40 a.m. or there about, he saw one person
inside the ward and in front of the room. He was having firearm like a rifle in
his hand. He shouted loudly hands up, do not move else we will kill you.
Immediately, shots were fired like crackers. He tried to close the door but the
door was not fully closed.
Thakur thereafter fired one shot in the direction of the said person through
his revolver. Thereafter, door was closed. He took his rifle in position to
defend himself. Shailesh Haldankar attempted to get up by force to rescue
himself by freeing his hands from the handcuff. At that time, constables Javsen
and Bhanavat caught hold of him so that he does not run away. To that, Shailesh
Haldankar pleaded that assailants have come to kill him and they should allow
him to go away. He also heard that shots were being fired on the door which was
closed. Thereafter, PSI Thakur receded from another door towards the verandah.
He noticed that very same person whom he had seen inside the ward earlier had
come near the southern door of the cabin and, thereafter, he fired one shot
from the rifle in his direction and before he could fire the second round, the
bullet which the said person had fired hit his right thigh. He receded a little
and fell down by the side of the cot. Very person who was firing from outside
entered the room and fired shots indiscriminately at Shailesh Haldankar as well
as other two police constables. It is his say that at that time there was hue
and cry in the ward and because of injury he felt giddiness. He identified A-6
- Subhashsingh Thakur in the test identification parade by stating that he was
the person whom he had seen firing the shots indiscriminately and who uttered
the words hands up, hilo mat nahi to maar dalenge. Minor
contradictions emphasised by the defence have rightly been dealt with and are
not given any importance by the learned Special Judge. Hence, we are not
discussing the same in detail.
Corroborative Evidence PW27 Manohar Padarinath Gabdule, a police Naik who was
on duty of maintaining EPR register at JJ hospital has stated that at about 1.40 a.m./1.45 a.m., a
woman and a man went to the cabin of clerk Borge, PW21 and enquired about a
patient who had met with an accident, namely, Aziz Khan. As there was no one of
that name admitted in that hospital, they went away. It is his further say that
at about 2.30 a.m. both of them again came and asked the clerk Borge who
supplied the information that generally the patients in accident cases are
admitted in the ward Nos. 17, 18 and 19 and both of them had gone upstairs. The
witness wrote down the name of the woman and her address whom he has identified
as A-3. He has also identified absconding accused Mohd. Hussain who accompanied
statement of A6 that inquiries were made at the hospital, gets corroboration
from the say of PW 27 who was on duty at JJ hospital that one man and woman
went to the cabin of clerk Borge for making inquiries.
Shankar Ramchandra Jadhav was watchman of the J.J.Hospital and his duty time at
the relevant time, i.e. on 12.9.1992, was between 10 p.m. to 6 a.m. He was posted at the main gate near the statue of Parsibaba
in the new building and his duty was to check the persons entering the
hospital. On that night, at about 3.55 a.m., nine persons having weapons like
revolvers in their hands, entered through the main gate and came in the
direction of the staircase when one of the persons had caught the collar of
another person and they were making enquiry about his other associates. He
guessed that they might be the policemen having come for some enquiry. When he
asked them whether they had entry pass with them, they told him that they are
police inspectors and how dare he could ask them for entry pass. Some of those
persons went upstairs and some stayed at the ground. A-10 Khade caught him and dragged
to one corner and threatened him that he should not move and at the same time
accused no.9 Bacchisingh hit him by the revolver butt on his face and
resultantly, he fell down and became unconscious. He regained consciousness
later on when he was taken to casualty ward. In the test identification parade,
he identified accused no.6, Subhashsingh Thakur to be the person who was
holding the collar of the person and asking him to show his other associates,
and accused no.9 and accused no.10, but refused to identify them in the dock.
Thereafter he was declared hostile. This also corroborates the say of A-6 in
his confessional statement.
Constable Anant More has stated that at about 3.30 a.m. to 3.45 a.m., he noticed three persons entering Ward No.18 through
the main door. He also noticed that two of them were having AK 47 rifles in
their hands. The third person was also armed with a weapon.
had entered the hall by firing shots. He stated that it was not possible for
him to fire at them in the open place and shots were fired in his direction,
therefore, it was not possible to fire in the opposite direction. He rushed to
the southern side of the ward, entered the door, shots were fired at that door,
but he could not fire from his weapon in retaliation by the side of the door.
He heard the sound of firing. He saw that the patients were frightened, some of
them were taking shelter underneath the cot or in the corners. Some had pulled
chadder on their bodies and kept quiet. The prisoner, whom he was guarding, had
taken shelter underneath the cot. After the firing stopped, he went to the
gallery, where other constables were guarding Shailesh Haldankar. He saw
Shailesh Haldankar and two policemen lying in the pool of blood on the ground
in the said room. He noticed some 30-35 cartridges lying there. Then the police
came there. They took the injured for treatment. In all 6 persons were injured
including PWs 9, 10, 11, 42, 54 and one nurse and one Yunus Dadarkar.
Siddiq Ahmed Amin (hostile witness) who was in the same room where deceased
Shailesh Haldankar was kept, stated that he heard some loud shouts of people
and therefore, he woke up. One police inspector was there having a revolver in
his hand and talking with some one outside the room. He heard shots being
fired. The firing stopped after 2/3 minutes. As he got frightened, took shelter
under the cot, and after the firing stopped, he went to the hall, continued to
sit there till policemen came there. He had sneaked in the hall by crawling. He
did not identify any one in the Court and denied having identified accused No.
6, Subhashsingh Thakur in the TI parade and denied giving the description of
other two persons who had followed Subhashsingh Thakur.
halt of A2 and others at Bombay Suburban Electricity Supply Company (BSES)
Arvind Pinge was in charge of a BSES guest house, Marol, Andheri. According to
him on 12.9.92, one Felix Alex Dsouza, PW29 (a hostile witness), came to him
and told him that the nephew of Union Minister of Energy, Mr. Kalpanath Rai was
staying in BSES guest house and he would like to introduce him. He has stated
that he had brought him at his residence. PW30 Harry Parasaram was the Deputy
General Manager of BSES Guest House in the year 1992. He has stated that they
had received a telephone message from Delhi from one S.P. Rai, P.A. of Kalpanath Rai, the then Minister of Energy
for booking the accommodation. Later, he came to know that nine guests were
staying in two rooms and he had asked who these guests were. Later on, he came
to know that the guests were involved in shoot out in the JJ Hospital. PW31
Arvindan Kunjivan (a hostile witness) was working as a cook in the BSES Guest
House. He had shown two rooms to the guests and they stayed in those rooms. He
did not identify anyone. This part of the evidence of BSES Guest House is also
stated in the confessional statement of Anil Nirbhay Narayan Sharma A-5.
Prabhakar Durve, the Chief Security Manager Holiday- Inn establishes that room
no.315 was occupied by VIP who arrived there on 12.9.1992 at 11.10 a.m., which was in the name of Suryarao and was signed as
S. Rao. Departure was shown on the same date.
also corroborates the say of A-2 with regard to their going at BSES Guest House
and Hotel Holiday Inn.
to PW9 and C.A. Reports Evidence of PW9 gets further corroboration from Ex.128,
which is an entry in the MLC register at Sr. No.7154 dated 12.9.1992.
shows that a part of the bullet, which was retrieved from the thigh of Vijay
Krishna Nagare was put in a bottle and it was handed over to the police. The
same was taken to the Forensic Laboratory by PW40, head constable Suryakant
Kupwadekar. Ex.129 is the injury certificate of PW9, Nagare and Ex.117 is the
Chemical Analysers Report. The result of the analysis also gives the reading
that 7.62 mm shot rifle cartridge cases, which were found on the scene of
offence are generally fired from either AK47 rifle of Russain make or chinese
version of the same. The two pieces of bullets which were retrieved from the
body of the deceased police constable K.G. Bhanawat were sent to the Forensic
Laboratory by the Police Surgeon under a covering letter Ex.97. Ex. 145 is the
post mortem notes of the dead body of Shailesh Haldankar. In the Chemical
Analysts report, Ex.147, the bullet retrived from the right thigh and the left
thigh of deceased Shailesh Haldankar have been opined by the chemical analyser
to be the fragment of 7.62 mm bullets. The CA Ex.1 is one .303 rifle which was
carried by Nagare and Ex.3K is the one .303 inch rifle empty and Ex.7 is four
intact .303 rifle cartridges. These facts show that PW9 Nagare had fired one
bullet from .303 rifle and the other four bullets were intact in the rifle and
the result of Analysis shows that Ex.3K has been fired from Ex.1 i.e. .303
rifle. These circumstances go to show that PW9 Nagare did fire one round aiming
at Subhashsingh Thakur (A-6) and the circumstances that Shaliesh Haldankar was
shot dead from AK47 rifle is also made out from the CA reports. The Cehmical
Analysers report on the X-ray plates is Ex.122. Ex.Nos.2A to 2D (CAs exhibit) are
consistent with the fire of 7.62 mm rifle bullets. From the CA report, it is
evident that the assailants have used 9 mm pistols and AK47 rifles in the
incident. As per the confessional statements of Subhashsingh Thakur,
Bachhisingh A-9, Ex.239 and Prasad Khade A-10, Ex.237 in all 12 fire arms like
AK-47 assault rifles, 9 mm pistols, .32 revolvers, .38 revolvers and also two
hand grenades were taken by 10 assailants in the J.J. Hospital.
PW42 PSI Krishnavatar Thakur (complainant and hostile witness) has supported
the prosecution entirely on the incident, but refused to identify accused No.6,
Subhashsingh Thakur and admitted identifying one person in the TI parade. He
proved Ex.140, the FIR. He admitted that he saw a person near the door of the
cabin, with a weapon like AK 47 rifle and claimed that he had fired one shot at
him and closed the door by latching it from inside and claimed that 4/5 persons
were present in the Ward No.18 and that he was hiding in the bathroom as he had
exhausted all the six rounds from his revolver.
some time, he went to the cabin, saw constable Bhanawat fallen down by the side
of the cot of Shailesh Haldankar and head constable Javsen lying in the cabin.
He also claimed that constable Nagare PW9, was lying underneath the cot of
Shailesh Haldankar. He patted him and gave the call Nagare, Nagare and Nagare
opened his eyes for a moment and again closed the eyes. He noticed the blood
and all the bodies were bleeding having fire arm wounds. Thereafter, he went
downstairs, noticed the blood stains all along the staircase. He said that
doctors examined 4 injured in the casualty ward. Javsen and Bhanawat were
declared dead. Constable Nagare, PW9 had injury on his leg. Nagare was taken to
the operation theatre. He himself had a brushing injury on the left leg and he
had noticed the trail of blood upto the big tree outside the building. He had
handed over his service revolver and empty cartridges. In his cross
examination, he admitted that he had submitted his resignation because a cash
reward of Rs.1 lakh was reduced to Rs.25,000/- which he did not accept as he
was not happy about it. He also stated that he had suffered mental depression,
was spending sleepless nights and was taking tablets for the same.
incident was a part and parcel of his worries and was feeling tense about the
safety of his family. In the FIR, Ex. 140, he had described two persons, one
person who had fired at the constable and killed them by firing from an
automatic rifle and also who had fired at him at the southern side of the
verandah. He gave the description of the person as aged about 25/26 years,
height about 58, strong built, fair complexion, wearing a metal framed
spectacle, round face, wearing white full shirt and pant, shirt tucked in side
the coloured pant. Description of the other person who was holding an automatic
weapon was given by him as aged about 22/25 years, medium built, height about
56, wearing snuff coloured shirt, dark colour pant. The description of the
first person tallies with accused No. 6, Subhashsingh Thakur.
the evidence of hostile witness PW25 Girish Kumar Shrinath Singh, who is owner
of petrol pump namely Sagar Auto Dealers at Sativali near Vasai, it is apparent
that on 14.9.92, at about 3.30 p.m., one lady and two three other persons
including one constable came in a car, having red light on the top, at his
petrol pump and while sitting in his cabin they had called tea and drinking
water from the nearby hotel. He had paid the bill. On that day, he had seen
only two cars having come there one after another with the gap of 5/10 minutes.
One of those persons tried to connect some number on telephone but as the phone
was not connected, they went away. In his cross-examination, he stated that his
brother Ajay told him that a lady guest has come in a car having the red light
on the top and she wanted to go for the toilet. As the lady guest had arrived
in the car having the red light on the top, he thought that she might be some
VIP and, therefore, he led her to the self-contained room. He also stated that
those persons came at his petrol pump on 14.10.1992 and not on 14.9.1992 and
failed to identify accused no.2 and accused no.6.
there is testimony of PW33, Bhagchand Soni, who was serving with Milan Auto
Service, a fuel pump at Agra road, Bhiwandi, which was supplying
fuel to the Bhiwandi Municipal Council. His statement corroborates to the
extent that 55 litres of petrol was taken by PW17 Tambe in Contessa Car on
10.9.92. He has produced slip Ex. 102.
Shripad Tambe (hostile) was the driver of Contessa Car belonging to Bhiwandi
Nizampur Municipal Council. He has stated that he was shown 2 sheets of papers.
On the right corner of both the papers the vehicle number 1445 was entered.
Those were the entries of 1.9.92, 10.9.92, 11.9.92 and 13.9.92. He admits that
the two pages match the alignment in the said log book so far as they relate to
the entries from 1.9.92 to 13.9.92. According to his say the 2 pages appeared
to have been torn from the said register and the entry in the register made
subsequently. To facilitate the reading the entries on those two sheets are now
pasted together to form one sheet showing column number 1 to 13 mentioning the
entries of 11.9.92, 12.9.92 and 13.9.92. He has further admitted that the entry
also indicates that on 1.9.92, 45 litres of petrol was filled up in the tank.
The said entry is identical with the entry in the log bok dated 1.9.92 to
7.9.92. He has denied that Suryarao A-2 asked him to adjust the entries of
12.9.92 and 13.9.92 in the register. He has further denied the suggestion that
he managed to procure a false certificate of illness from Dr. Sontakke (PW37).
He has admitted that on 20.9.92, he boarded a luxury bus for going to Bangalore along with his 3 friends, Ramesh,
Anil and Suresh.
stayed in Bangalore for 2 days and then went to Mysore.
in the confessional statement of A-2 that he (A-2) got frightened on 16.9.92
and torn two pages from the logbook of Contessa car regarding the entries of
movement on 12th
Driver Tambe re-wrote the logbook at his instance. He advised his driver Tambe
to go out of Bombay because he had learnt that Bombay police was making enquiries with
regard to Contessa car on 19th September, 1992. This is corroborated by aforesaid evidence and that of PW37 Dr.
Kantilal Vishnu Sontakke, who gave certificate of illness to Tambe on 19.9.92
when he visited Indira Gandhi Memorial hospital.
there is evidence of PW19, Matatil Damodar Itty who was working as Engineer in
Bhiwandi Nizampur Council and was required to look after the maintainance and
repairs of the Municipal vehicles. He stated that each vehicle had got a
logbook and a petrol slip book. He has admitted that the Art. Nos.61 and 60
were the same logbooks, which he had produced before the police under
Subhash Kadam is a Panch witness. He has stated that the police called one
officer from the Municipality and took 2 logbooks in their possession from that
officer. Those books consisted of one log book of Contessa Car and one slip
book. He had signed the panchnama Ex.72-A. PW23 Ashok Bagul is another panch
stated that he had gone to Crowford market and a policeman came there to call
him to be a panch witness. Accused No. 2 Suryarao was present in the DCB CID
office. In his presence, he made a statement that he had torn the pages from
the log book and had kept those pages at Bhiwandi and he would produce the said
pages from Bhiwandi. Accordingly, the panchnama was drawn. He has further
stated that the police along with Suryarao took them to the house of Suryarao
in a jeep. Accused No.2 Suryarao produced some pages from a book. The police
took charge of those papers and put the same in the packet. A detailed
panchnama Ex.76A was drawn. He along with co-panch signed the panchnama.
witness PW22 Satish Bhujang Rao, an Interior Decorator, resident of Ghatkopar
(W), Bombay has stated that he knew accused no.7 Shamkishore and Himmat Raval
used to treat his wife as his elder sister. In the year 1989-90, when
Shamkishore was arrested by the police in a case of attempt to murder, he stood
surety for Shamkishore. Himmatbhai Raval had entrusted him the job of fixing
PVC tiles at the residence of Suryarao at Gokul Nagar at Bhiwandi and he did
the job. He had no occasion to meet Suryarao. Himmatbhai Raval had paid the
amount for the above work. He saw Suryarao only in the DCB CID Office.
he had no occasion to see accused no.6 Subhashsingh Thakur and that he has seen
him for the first time in the dock. Whenever Shamkishore came to attend the
dates in the court in connection with that case, he used to stay at his house.
Himmat Rupchand Raval, businessman, resident of Bhiwandi, Distt. Thane was also
a hostile witness. He has stated that from 1988 he is in the business of
Powerloom Shed construction. In the period between 1988 to 1993, Ratnadeep son
of Jayawant Dattatray Suryarao and one Narayan Bhoir were his partners in the
said business. He remained as President and Vice President of Bhiwandi Nizampur
Municipal Council. He stated that he knew accused no.2 Suryarao since 1984, who
was sitting in the dock before the court. They were having cordial
relationships. He also knew accused no.7 Shamkishor since 1986, who was sitting
in the dock before the court. Thereafter, he has not supported prosecution
version as narrated in his statement under Section 164 Cr.P.C.
the aforesaid evidence led by the prosecution following facts emerge:
the confessional statements of A2, A6 and A7 are taken into consideration as
they are, then the Designated
Court has rightly
aforesaid statements are corroborated
the confessional statements of other accused as discussed by the Designated
the evidence of PW 12 Laxman Vishe and PW 26 Ramesh Patil.
evidence of PW9 who was an injured witness at the time of incident. There are
no reasons to disbelieve the evidence of PW9 who was police constable on duty
in ward no.18. He received bullet injury in the incident.
For the movement of A2, A6 and A7 on 12th and 14th after the incident, there is
no reason to disbelieve the evidence of two independent witnesses who were
bodyguards of A-2, who was President of Bhiwandi Municipal Corporation.
The confessional statement of A-6 gets corroboration from PW27, who has
specifically stated that at about 1.40/1.45 p.m., A-3 and absconding accused
Mohd. Hussain went to the clerk Borge and made enquiry about patients. It also
gets corroboration from PW54 Shankar Ramchandra Jadhav.
The statements of A2 and A6 that they stayed at BSES Guest House are
corroborated by the evidence of PW63, PW30 and PW37.
Evidence of PW25 Girish Singh, PW17 Tambe and that of PW37 Dr. Sontakke
corroborates the statement of A-2 with regard to movement of car on 12th and
14th as well as asking driver Tambe to go out of city as directed by A-7 as
police was making enquiry about movement of car. The evidence with regard to
logbook and tearing of two pages therefrom also reveals guilty consciousness of
Hostile witnesses PW22 Satish Rao and PW34 Himmat Rawal admited that they were
having relations with A-2 Suryarao and A-7 Kishore since years.
basis of the aforesaid evidence, learned counsel for the accused submitted that
judgment and order passed by the Designated Court is illegal and erroneous as
Provisions of TADA are not applicable.
Confessional statements are not admissible in evidence and in any case are not
true, voluntary and reliable.
Identification of A-6 is doubtful.
Sanction to prosecute under TADA is without application of mind.
provisions of TADA are applicable ? Learned senior counsel Mr. Rajinder Singh
appearing on behalf of accused no.6, Mr. Sushil Kumar appearing for accused
no.7 and Mr. Niteen Pradhan, Advocate appearing for accused no.2 submitted that
the present case is one of gang rivalry and the provisions of TADA would not be
applicable; there is nothing on record that accused intended to create any
terror and at the most intention to commit the murder of Shailesh Haldankar
could be inferred. For this purpose, it is pointed out that only minor injuries
are caused to other persons except the intended men and the injuries caused to
other police constables who were on duty and who are dead were unintentional.
It is also submitted that incident took place at 3:45 a.m. i.e. early in the morning and, therefore, also there was no
question of creating any terror in the mind of public at large. For this
purpose, learned counsel referred to Niranjan Singh Karam Singh Punjabi,
Advocate vs. Jitendra Bhimraj Bijjaya and others [(1990) 4 SCC 76].
aforesaid case, this Court held that the Designated Court was right in coming to the conclusion that the intention of
the accused was to eliminate Raju and Keshav for gaining supremacy in the
underworld and observed thus:
statement to the effect that the show of such violence would create terror or
fear in the minds of the people and none would dare to oppose them cannot
constitute an offence under Section 3(1) of the Act. That may indeed be the
fall out of the violent act but that cannot be said to be the intention of the
perpetrators of the crime.
aforesaid case, the Court has clarified that intention of the accused was only
to eliminate Raju and Keshav and, therefore, they killed the former and caused
injury to later and it was not possible to hold that their intention was to
strike terror in the people or a section of the people. The Court thereafter
pertinently observed that it would have been a different matter if to strike
terror some innocent persons were killed and in such case the intention could
be to strike terror and the killings would be to achieve that objective.
counsel further referred to the decision in State vs. Nalini and others [(1999)
5 SCC 253]. This judgment also does not in any way support their contentions. A
three-Judge Bench of this Court quoted the dictum laid down in Hitendra Vishnu
Thakur vs. State of Maharashtra and others [(1994) 4 SCC 602] with approval and
concluded thus (Para 51 p.298): - The legal position remains unaltered that the
crucial postulate for judging whether the offence is a terrorist act falling
under TADA or not is whether it was done with the intent to overawe the
Government as by law established or to strike terror in the people etc.
Hitendra Vishnu Thakur (Supra) dealing with similar contention, this Court held
(para 7, p. 618) thus:
terrorist activity does not merely arise by causing disturbance of law and
order or of public order.
fall out of the intended activity must be such that it travels beyond the
capacity of the ordinary law enforcement agencies to tackle it under the
ordinary penal law. Experience has shown us that terrorism is generally an
attempt to acquire or maintain power or control by intimidation and causing
fear and helplessness in the minds of the people at large or any section
thereof and is a totally abnormal phenomenon. What distinguishes terrorism from
other forms of violence, therefore, appears to be the deliberate and systematic
use of coercive intimidation. More often than not, a hardened criminal today
takes advantage of the situation and by wearing the cloak of terrorism, aims to
achieve for himself acceptability and respectability in the society because
unfortunately in the States affected by militancy, a terrorist is projected as
a hero by his group and often even by the misguided youth..
in Girdhari Parmanand Vadhava vs. State Of Maharashtra [(1996) 11 SCC 179] this
Court observed that if an innocent boy is killed only because the demand for
ransom amount was not met by the family members, such killing cannot but send a
shockwave and bring about terror in the minds of the people of the locality.
The Court further held thus:
the impact of the crime and its fallout on the society and the potentiality of
such crime in producing fear in the minds of the people or a section of the
people which makes a crime, a terrorist activity under Section 3(1) of TADA.
view, it is not possible to define terrorism by precise words. Whether the act
was committed with intent to strike terror in the people or a section of the
people would depend upon facts of each case. Further, for finding out intention
of the accused, there would hardly be a few cases where there could be direct
evidence. Mainly it is to be inferred from the circumstances of each case. In
appropriate cases, from the nature of violent act, inference can be culled out.
can also be no doubt that fall out of violent act vary from person to person
and society to society but is well understood by a prudent person and by those
who are affected.
prosecution version as revealed from the confessional statements and other
evidence is that there are two gangs operating in Mumbai, i.e. one of Dawood
Ibrahim and other of Arun Gavli. Their activities are of eliminating or causing
harm or injury to those who do not obey their dictates and of extortion from
builders, hoteliers, industrialists, professionals and others persons. They
also indulge in smuggling and drug trafficking and for undertaking all these
activities in organised manner, they employ number of persons. Their code word
for such activities is game. May be that they are getting some support from the
authorities or politicians and a vice versa. Not only this, it would be totally
unjust to ignore the ground reality that these terrorist gangs operate and
extort large amount of money. Through terrorism, they acquire or maintain power
or control by intimidation and causing fear and helplessness in the minds of
the people at large.
are hardened criminals and take advantage of the situation and in many cases,
police authorities fail to protect victims. As confessed by A-2 Suryarao,
President of Bhiwandi Municipal Corporation, he sought assistance from A-7 and
others and thereafter it is his say that he was required to comply with the
illegal demand of A-7 of rendering assistance to A-6 and A-7 after commission
of the offence.
the intention of the accused could be gathered from their act of shooting the
police guards who were on duty and causing injury to others whosoever came in
their way. In such a situation, it could be inferred that the dastardly act was
to administer a terror or a shock wave in the people at large and convey that
the fate of all those who did not obey their dictates or oppose them would be
the same as that of Shailesh Haldankar. It further conveys that police guard on
duty can not save the victim, but they also may meet the same fate. Not only
this, the crime was perpetuated in a protected place i.e. J.J. Hospital by
master-minding the operation of achieving the target.
information was collected and after equipping themselves with sophisticated
weapons they went to the hospital where patients and staff on duty went
helter-skelter, witnesses turned hostile, PW42 PSI Thakur who was police
officer on duty could not do anything to protect anyone and after giving detailed
FIR failed to support the same before the Court. How the witnesses are
terrorised can be seen from the evidence of PW42, who had lodged the FIR. He
resigned from the post and was suffering mental depression and spending
sleepless nights and was much more worried because of the incident about the
safety of his family. At the time of giving evidence, he was feeling tense even
after lapse of seven years of the incident. Similar was the position of PW54
Shankar Ramchandra Jadhav. Further, PW28 Shrirang Gangaram Uttekar, (hostile
witness) a watchman at the gate of J.J. Hospital was so scared that in the
cross-examination, when he was asked about accused no.10, Court noted the
witness appears to be scared and started looking to the Court and turning his
eyes in various directions. The Special Judge also observed that, from the
appearance, the witness appears to be scared and attempt was made to make him
easy but attempt failed and finally witness started weeping in the witness box.
Further, confession by A-2 reveals how the persons in clutches of these gangs
there is no substance in the contention of the learned counsel for the accused
that there was no intention on the part of the accused to strike terror and
that the crime would not be covered by the terrorist activity as provided under
Section 3(1) of TADA. We would again reiterate that whether the crime committed
creates terror or not, depends upon the facts and circumstances of each case
and cannot be defined by precise words.
of Confessional Statements:
next submission raised by the learned counsel for the accused is with regard to
the admissibility and evidentiary value of the confessional statements. It has
been contended that confessional statements of the accused were recorded by the
police officers when accused were in police custody; after recording of
confessional statements, they were not produced before the Judicial Magistrate
and the confessional statements were sent to the concerned Chief Judicial
Magistrate after lapse of time thereby committing breach of Rule 15 of TADA
Rules and, therefore, the confessional statements are not admissible in
evidence and, in any case, they are not voluntary, reliable and truthful.
view, for appreciating this contention we have to bear in mind the provisions
of Section 15 which begin with non-obstante clause that notwithstanding
anything contained in the Code or in the Indian Evidence Act, such statements
shall be admissible in trial of such persons or co-accused, abettor or
conspirator for an offence under the Act or Rules made thereunder. If we keep
in mind that the provisions of the Evidence Act to the aforesaid extent are to
be ignored then there would not be much force in the contention raised by the
learned counsel for the appellants. Under the Act and the Rules, conditions for
recording the confessional statements are required to be satisfied. If those
conditions are complied with then the statements are admissible in evidence for
connecting the accused or co-accused with the crime. However, this aspect does
not require much discussion as it has been dealt with and considered in various
decisions of this Court. In Lal Singh vs. State of Gujarat and another [(2001)
3 SCC 221], this Court has held that in view of Section 15 of the TADA, which
lifted the bar provided under the Evidence Act, confessional statement recorded
by the police officers is admissible in evidence, is substantive evidence and
during the trial it could be relied upon against the co-accused also. The Court
held (in para 23) thus:
interrogation in such cases is permissible under the law to meet grave
situation arising out of terrorism unleashed by terrorist activities by persons
residing within or outside the country. The learned counsel further submitted
that in the present case the guidelines suggested by this Court in Kartar Singh
v.State of Punjab [(1994) 3 SCC 569] were not
view, this submission is without any basis because in the present case
confessional statements were recorded prior to the date of decision in the said
case i.e. before 11.3.1994. Further, despite the suggestion made by this Court
in Kartar Singh case, the said guidelines are neither incorporated in the Act
nor in the Rules by the Parliament. Therefore, it would be difficult to accept
the contention raised by learned counsel for the accused that as the said
guidelines are not followed, confessional statements even if admissible in
evidence, should not be relied upon for convicting the accused. Further, this
Court has not held in Kartar Singh case that if suggested guidelines are not
followed then confessional statement would be inadmissible in evidence. Similar
contention was negatived by this Court in S.N. Dube v. N.B. Bhoir [(2000) 2 SCC
254] by holding that a police officer recording the confession under Section 15
is really not bound to follow any other procedure and the rules or the
guidelines framed by the Bombay High Court for recording the confession by a
Magistrate under Section 164 Cr.P.C.; the said guidelines do not by themselves
apply to recording of a confession under Section 15 of the TADA Act and it is
for the Court to appreciate the confessional statement as the substantive piece
of evidence and find out whether it is voluntary and truthful.
by a majority decision in State v. Nalini and others [(1999) 5 SCC 253] the
Court negatived the contentions that confessional statement is not a
substantive piece of evidence and cannot be used against the co-accused unless
it is corroborated in material particulars by other evidence and the confession
of one accused cannot corroborate the confession of another, by holding that to
that extent the provisions of Evidence Act including Section 30 would not be
applicable. The decision in Nalini case was considered in S.N. Dube case. The
Court observed that Section 15 is 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 and that the correct legal position
is that a confession recorded under Section 15 of the TADA Act is a substantive
piece of evidence and can be used against a co-accused also.
this view of settled legal position, confessional statement is admissible in
evidence and is substantive evidence. It also could be relied upon for
connecting the co-accused with the crime. Minor irregularity would not vitiate
its evidentiary value. Further, the contention of the learned counsel for the
accused that, because, there was delay in sending the confessional statement to
the Chief Judicial Magistrate and it was not sent forthwith as required under
Rule 15 of the TADA Rules, it becomes doubtful and inadmissible in evidence,
also requires to be rejected. As per Rule 15 what is mandatory is that the
confessional statement should be forwarded to the Designated Court, which may take cognizance of the
offence. Such violation of the Rule cannot be held to be incurable illegality. [Re:
Wariyam Singh and Others vs. State Of UP
(1995) 6 SCC 458].
senior counsel further submitted that confessional statements of other
acquitted accused cannot be relied upon for connecting the accused with the
crime. In case of Nalini (Supra), this Court while dealing with the contention
that if the accused are acquitted for the offence punishable under TADA then
their confessional statements cannot be relied upon for convicting the accused
for other offences, negatived the same and observed (in para 82), the correct
position is that confessional statement duly recorded under Section 15 of TADA
would continue to remain admissible as far the other offences under any other
law which too were tried along with TADA offences, no matter that the accused
was acquitted of offences under TADA in that trial. The Court observed that it
was undisputed that a duly recorded confessional statement is a substantive
evidence in the trial of offences under TADA.
Value of such Confessional Statements It is true that if the confessional
statements are taken as they are, accused can be convicted for the offences for
which they are charged as the said statements are admissible in evidence and
are substantive piece of evidence. However, considering the facts of the case,
particularly that the confessional statements were recorded by the police
officer during investigation; said statements were not sent to the Judicial
Magistrate forthwith; and that after recording the statements, accused were not
sent to judicial custody, in our opinion, unless there is sufficient
corroboration to the said statements, it is not safe to convict the accused
solely on the basis of the confessions.
we have considered confessional statements with the other evidence connecting
the accused with the crime. Learned senior counsel Mr. Sushil Kumar submitted
that if we remove the evidence of PW26 from the scene then it is difficult to
maintain the conviction of A-7. It is his contention that A-2 and A-6 were
knowing each other as per their admission in confessional statements. He
emphasized minor contradictions and submitted that evidence against A-7 is not
sufficient to connect him with the crime. In our view other evidence as stated
above fully corroborates the confessional statements and there is no reason to
discard the evidence of PW26.
counsel for A-2 Suryarao submitted that considering the facts, he cannot be
held guilty for the offence punishable under section 3(3) of TADA as he had no
knowledge that A-6 and others were involved in the shoot out at J.J. Hospital. He
further submitted that in any set of circumstances, he was compelled and
threatened by A-7 Shamkishore to send the car, otherwise he and his family
would meet the same fate as that of Shailesh.
true that there is no direct evidence that A-2 was knowing that A-7 had called
the car for the purpose of moving out other accused who were involved in the
shoot out. However, from his confessional statement, it is apparent that he was
not ignorant of the fact that A-7 was involved in criminal activities. He
sought assistance with regard to the no confidence motion which was sought to
be moved against him and in return as per his say, Pappu Kalani had asked him
to help A-7 when such help was sought for. Further, as per his own say, A-6 was
introduced to him on 12th. All throughout in a suspicious manner, the official
car, with police guard was taken from one place to another. Even after coming
to know about the incident on 12th, he on 14th along with his car moved the
accused from place to place and aided them in moving out of Bombay. In these circumstances, it would
be difficult to hold that A-2 was not having any knowledge with regard to the
fact that A-6 and others were involved in shoot out at the J.J. hospital or
that he was not assisting the said culprits. It is unfortunate that the
President of the Bhiwandi Municipal Corporation who normally would be a
respected political leader would be party to such heinous acts.
of A-6 Next question iswhether identification of A-6 by PW9 in test
identification parade and in the dock could be relied upon for convicting him.
For appreciating this contention it is to be stated that witness has
specifically mentioned that A-6 was around 58 in height and having fair
complexion and was well built. Same is the version of PW12 Laxman Vishe and
PW26 Ramesh Patil who had seen A-6 while sitting in the car of A-2 on 12th and
from the contradictions here and there, learned counsel appearing for A-6
vehemently submitted that no reliance can be placed upon the identification of A-6
by this witness because the incident of firing must have happened within few
minutes and in that set of circumstances it is difficult for a witness to
identify the person who fired shots. It is also contended that test
identification parade held on 22.10.1993 i.e. after more than one year, cannot
be relied upon as corroborative evidence.
doubt, it is true that incident of firing must have happened within few
minutes, at the same time, it is the say of PW9 that he saw A-6 thrice once,
when he tried to come in the room from northern gate, again when he came from
southern gate and finally when he entered the room and fired shots
indiscriminately. Further, considering the nature of duty of a police
constable, there is no reason to doubt his statement. We would also reiterate
that substantive evidence of a witness is his evidence in Court. Identification
parade is not primarily meant for the court but is meant for investigation
purposes. It serves two purposes, namely, to enable the witness to satisfy that
prisoner whom he suspects is really the one who was seen by him in connection
with the commission of the crime and for satisfying the investigating authority
that suspect is the real person whom the witness had seen in connection with
the said occurrence. In case when the evidence is cogent, consistent and
without any motive, it is no use to theoretically imagine that as the witness
has seen the accused for few minutes it would be difficult for him to identify.
It always depends upon ones capacity to recapitulate what he has seen earlier.
Power of perception and memorising differs from man to man and also depends
upon situation. Finally, appreciation of such evidence would depend upon the
strength and trustworthiness of witnesses. [Re: Rameshwar Singh vs. State of J & K, [AIR 1972 SC 102], Suraj Pal vs. State of Haryana [(1995) 2 SCC 64], Daya Singh vs.
State of Haryana [(2001) 3 SCC 468]. In the present
case, as stated, PW9 was the police constable who was present in the room, he
was injured, he saw accused no.6 coming in the room thrice and firing
indiscriminately and hence, there is no reason to doubt identification by him.
learned counsel for accused no.6 contended that considering the evidence
against him, it is doubtful whether he fired at Shailesh Haldankar and other
two police constables because he was accompanied by other injured accused
Pradhan, who was also having similar weapon and had fired. It is also submitted
that Pradhan was having bullet injury as per the prosecution version and,
therefore, it would be difficult to arrive at the definite conclusion that
identification of A6 by PW9 is reliable. To meet this contention, it has been
pointed out that complexion of absconding accused Pradhan was different from
that of A6. For this purpose, reliance is placed upon the evidence of PW48 Dr.
Mukund Karia and PW49 Dr. Rajendra Thakare. PW47 Madhukar Yadavrao Shirsat of
Athavaline Police Station, Surat recorded
the statement of injured Pradhan at Surat and he also described Pradhan as having 56 height, medium built and of
shallow complexion. PW48 Dr. Karia who had examined Pradhan at about 2.30 to
2.45 a.m. on 14.9.1992 at the residence of Dr. Kamble at Surat has also described the patient as
28/30 years of age having 56 height, shallow complexion, thin built. Same is
the version of PW49 Dr. Rajendra Thakare, who retrieved 2 cm long bullet from
the body of Pradhan. As against this, it has come on record that height of A-6
was around 58. He was of fair complexion and well built and that is what has
been stated by PW9, PW12 and PW26. Therefore, it would be difficult to hold
that PW9 has committed any error or mistake in identifying A-6.
of Sanction Mr. Sushil Kumar, learned senior counsel for accused no.7 submitted
that sanction granted by the Commissioner of Police is without application of
mind and thereby illegal. For proving sanction, the prosecution has relied upon
the evidence of PW72 Satish Sahni, who at the relevant time was Commissioner of
Police, Mumbai. He has specifically stated that after necessary scrutiny of the
papers, sanction to prosecute as per Ex.266 was granted. In detail cross-
examination, he has clarified that he arrived at a definite conclusion for
according sanction after perusing the papers and report of the Chief P.P. covering
the legal aspects and the report of the Additional Commissioner of Police. He
has also clarified that incident was certainly designed to spread a wave of
terror in the minds of the people by indiscriminate firing with lethal weapons
in a place like hospital. Sanction order Ex.266 also recites that relevant
material was perused by him and thereafter he accorded sanction under Section
20- A(2) of the TADA for the offences committed by the accused under Section
3(2), 3(3), 3(4), 3(5), 3(6), 5 and 6 of TADA. Similar is the sanction order
Ex.286 dated 5.8.1993. Both these orders are exhaustive and relevant material
is referred to. Hence, it cannot be said that there is any illegality or
irregularity in granting sanction to prosecute the accused under the provisions
the aforesaid discussion, we arrive at the conclusion that:
Learned Designated Judge has rightly tried and convicted the accused for the
offences punishable under the TADA. There is no substance in the contentions
raised by the learned counsel for the accused that the shoot out at the J.J.
hospital was mere an act of gang rivalry. Shoot out at the J.J. Hospital, which
is a Government Hospital of 1500 beds in Mumbai, at midnight causing death of
three persons and injuries to six others was, in the facts of the present case,
is nothing but an act of terrorism.
cannot be termed as simple act of gang rivalry. It is true that it is difficult
to define terrorism in precise terms. Whether the criminal violent act was
committed with intent to strike terror in people or section or people would
always depend upon facts of each case. For finding out the intention of the
accused, there would hardly be any case where there could be direct evidence.
to be inferred from the manner and mode adopted while committing the act and its
after effect including fear psychosis.
the circumstances in the present case, irresistible inference can be drawn that
crime was committed to create terror and also to take revenge. Such act creates
terror in the minds of the people or section of the people so that the targeted
persons would succumb to the dictates or extortion because of fear for
survival. In the present case, PSI who was on duty resigned from his job,
suffered mental depression, spent sleepless nights and worried about the safety
of his family after lapse of seven years of incident. A retired army officer
deposing before the court appeared to be scared and started weeping in the
witness box. Effect of fear psychosis also can be seen from the statement of
President of Bhiwandi Municipal Corporation (accused) that he was compelled to
use his official vehicle along with police constable for the movement of the
accused. In such cases, we should accept the ground reality that it would
hardly be possible to get evidence of eye-witnesses.
Confessional statement before the police officer under Section 15 of the TADA
is substantive evidence and it can be relied upon in the trial of such person
or co-accused, abettor or conspirator for an offence punishable under the Act
or the rules.
police officer before recording the confession has to observe the requirement
of sub-section (2) of Section 15.
here and there would not make such confessional statement inadmissible in
evidence. If the Legislature in its wisdom has provided after considering the
situation prevailing in the society that such confessional statement can be
used as evidence, it would not be just, reasonable and prudent to water down
the scheme of the Act on the assumption that the said statement was recorded
under duress or was not recorded truly by the concerned officer in whom faith
is reposed. It is true that there may be some cases where the power is misused
by the concerned authority. But such contention can be raised in almost all
cases and it would be for the Court to decide to what extent the said statement
is to be used. Ideal goal may be:
statement is made by the accused as repentance for his crime, but for achieving
such ideal goal, there must be altogether different atmosphere in the society.
Hence, unless a fool-proof method is evolved by the society or such atmosphere
is created, there is no alternative, but to implement the law as it is.
Sanction to prosecute under TADA granted by the competent authority cannot be
said to be in any way illegal or erroneous.
Confessional statements of A2, A6 and A7 are corroborated:-
the confessional statements of other accused as discussed by the Designated
the evidence of PW12 Laxman Vishe and PW26 Ramesh Patil.
There is no reason to disbelieve the evidence of PW9 who himself is an injured
witness and who was police constable on duty in ward no.18 for the deceased
Shailesh Haldankar. He got bullet injury at the relevant time. There is no
reason to disbelieve the identification of A-6 by him. Description given by him
gets full corroboration from evidence of PW12, PW26 and PW42 PSI Thakur.
Evidence of PW25 Girish Singh, PW17 Tambe and that of PW37 Dr. Sontakke
corroborates the version of A-2 with regard to movement of car on 12th and 14th
as well as asking driver Tambe to go out of city as directed by A- 7 because
police was making enquiry about movement of car. The evidence with regard to
logbook and tearing of two pages also reveals guilty consciousness of A-2.
in our view, the Designated Court was fully justified in convicting the A2, A6
and A7 and we uphold the same.
counsel for A-2 submitted that accused has undergone more than six years of
imprisonment and considering the fact that he was required to send the cars
under threat, sentence may be reduced to the sentence already undergone. In our
view, this submission also does not merit any consideration. May be that A-2 is
a political leader or that there may be some threat or compulsion in using his
official vehicle for moving the accused from one place to another, but that
would hardly be a ground for reducing the sentence. As a responsible citizen,
he ought to have informed the concerned police authorities.
this, learned counsel for A-2 submitted that when the police failed to give
protection to the person who was in custody, it would be difficult to imagine
that police would have given such protection to him or could have saved him
from the wrath of the gangsters. In our view, it is difficult to hold that
police would not have given necessary assistance to A-2 who was President of
Bhiwandi Municipal Corporation. The citizens are not supposed to help the
criminals on the assumption that in case of need police would not come to their
rescue and should succumb to illegal demands of the gangsters.
senior counsel Mr. Sushil Kumar submitted that there was no reason to impose
sentence of 10-years RI to A-7 while the Designated Court has imposed sentence of 7-years RI to A-2. In our view,
considering the activities carried out by A-7 as confessed by him, it cannot be
said that sentence imposed by the learned Judge is in any way excessive or
discriminatory. From the role played by A-7, it is clear that he was vitally
involved. At his instance, on 12th and 14th, A-2 was compelled to bring the
cars of Bhiwandi Nagarpalika that too with the police guard, for giving
treatment to injured accused and for facilitating further to move from one
place to another. Considering the overwhelming evidence against A-7,
particularly the evidence of PW26 and confessional statements, it cannot be
said that learned Judge has committed any error in convicting A-7 and
sentencing him to suffer RI for 10 years.
Reference Case No. 1 of 2000:
counsel for A-6 submitted that if we take confessional statement as it is, then
it is apparent that he has not taken part in shoot out. It is his say that
after going to the hospital as Brijeshsingh knocked the door and none opened,
and at that time, he felt that there was no setting and he asked Brijeshsingh
that all should go back.
that time, Brijeshsingh fired 3-4 times from his AK-47 rifle on the closed
door. Again he asked Brijeshsingh to go back from that place. Meantime, someone
else fired at them from the opposite door.
Brijeshsingh came towards him quickly and informed that he has killed all the
persons inside the ward and asked them to move from that place. It is the
contention of the learned counsel that on the basis of this statement which is
substantive evidence brought on record by the prosecution, this would not be a
fit case of sentencing the accused to death.
view, there is force in the aforesaid submission. Accused no.6, who has
confessed his involvement in the crime including the crimes committed by him
previously, has specifically stated that he asked Brijeshsingh to go back from
the hospital without firing. He has not confessed that he has fired any shot
during the incident. In this set of circumstances, even though we hold that it
was an act of terrorism committed by the accused, this would not be a fit case
for imposing death sentence. However, considering the confessional statement as
a whole coupled with the other evidence and the terror created by the accused,
we confirm the conviction but modify the sentence from death penalty to
imprisonment for life till rest of life.
Subhash Chander vs. Krishan Lal and others [(2001) 4 SCC 458] the Court referred
to the decision in State of M.P. vs. Ratan
Singh [(1976) 3 SCC 470] and held that a sentence of imprisonment for life does
not automatically expire at the end of 20 years, including the remissions. The
Court in Ratan Singhs case has observed that:
regards the first point, namely, that the prisoner could be released
automatically on the expiry of 20 years under the Punjab Jail Manual or the
Rules framed under the Prisons Act, the matter is no longer res integra and
stands concluded by a decision of this Court in Gopal Vinayak Godse v. State of
Maharashtra [(1961) 3 SCR 440], where the Court, following a decision of the
Privy Council in Pandit Kishori Lal v. King Emperor [(LR 72 IA 1 : AIR 1945 PC
64] observed as follows:
that section, a person transported for life or any other term before the
enactment of the said section would be treated as a person sentenced to
rigorous imprisonment for life or for the said term.
the next question is whether there is any provision of law whereunder a
sentence for life imprisonment, without any formal remission by appropriate
Government can be automatically treated as one for a definite period. No such
provision is found in the Indian Penal Code, Code of Criminal Procedure or the
* * *
* * A sentence of transportation for life or imprisonment for life must prima
facie be treated as transportation or imprisonment for the whole of the
remaining period of the convicted persons natural life.
Court further observed thus:
the Prisons Act does not confer on any authority a power to commute or remit
sentences; it provides only for the regulation of prisons and for the treatment
of prisoners confined therein. Section 59 of the Prisons Act confers a power on
the State Government to make rules, inter alia, for rewards for good conduct.
Therefore, the rules made under the Act should be construed within the scope of
the ambit of the Act. . . . Under the said rules the orders of an appropriate
Government under Section 401, Criminal Procedure Code, are a pre- requisite for
a release. No other rule has been brought to our notice which confers an
indefeasible right on a prisoner sentenced to transportation for life to an
unconditional release on the expiry of a particular term including remissions.
The rules under the Prisons Act do not substitute a lesser sentence for a
sentence of transportation for life.
question of remission is exclusively within the province of the appropriate
Government; and in this case it is admitted that, though the appropriate
Government made certain remissions under Section 401 of the Code of Criminal
Procedure, it did not remit the entire sentence. We, therefore, hold that the
petitioner has not yet acquired any right to release.
in Shri Bhagwan vs. State of Rajasthan [(2001) 6 SCC 296] the Court relied upon
the decision in Ratan Singhs case (supra) and observed as under:- A question
may arisewhether in view of the provision of Section 433(b) read with Section
433-A Cr.P.C. an accused should be released on completion of 14 years of
imprisonment. For this purpose, we would make it clear that under Section 433
(b) enables the appropriate Government to commute the sentence of imprisonment
for life, for imprisonment of a term not exceeding 14 years or for fine. Under
Section 433-A, there is an embargo on that power by providing that where a
sentence of imprisonment for life is imposed on conviction of a person for an
offence for which death is one of the punishments provided under the law, such
person is not to be released from prison unless he had served at least fourteen
years of imprisonment. This question is considered by various decisions
rendered by this Court and by the Privy Council and it has been reiterated that
a sentence of imprisonment for life imposed prima facie be treated as
imprisonment for the whole of the remaining period of the convicted persons
natural life. It is also established law that rules framed under the Prisons
Act do not substitute a lesser sentence for a sentence of transportation for life.
are the observations of this Court in Sohan Lal vs. Asha Ram and others [(1981)
1 SCC 106], Bhagirath vs. Delhi Admnistration. [(1985) 2 SCC 580] and in Zahid
Hussein and others vs. State of W.B.
and another [(2001) 3 SCC 750].
this case also, considering the heinous act of terrorism and brutal murder of
two police constables who were on duty to guard Shailesh Haldankar, even though
we hold this would not be a fit case for imposing death sentence, we direct
that accused will not be entitled to any commutation or pre-mature release
under Section 433- A of Criminal Procedure Code, Prisoners Act, Jail Manual or
any other statute and the rules made for the purpose of commutation and
result, Criminal Appeal No.975 of 2000 filed by accused no.2 Jayawant Dattatray
Suryarao, Criminal Appeal No.956 of 2000 filed by accused no.7 Shamkishore
Shamsharma Garikapatti are dismissed and Criminal Appeal No.966 of 2001 filed
by accused no.6 Subhashsingh Shobhanathsingh Thakur is partly allowed as stated
above. Death Reference Case No.1 of 2001 stands disposed of accordingly.
Appeal No. 1101 of 2000 Considering the evidence brought on record, the
Designated Court rightly acquitted A-1 Jahur Ismail Faki, A-3 Smt. Mehboobi
Azizkhan, A-4 Anil Amarnath Sharma, A-8, Ahmed Mohmed Yasin Mansoori and A-9
Jayprakash Shivcharansing @ Bacchisingh (since dead) A-10 Prasad Ramkant Khade.
The Court has rightly held that confessional statements without there being
sufficient corroborative evidence would not be sufficient for convicting the
accused for the offences for which they are charged. In this view of the
matter, it cannot be said that the said part of judgment and order passed by
the Designated Court calls for any interference. Hence, this appeal is also