No Acts & Articles mentioned in this case
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CASE NO.:
Appeal (crl.) 975 of 2000
Appeal (crl.) 956 of 2000
Appeal (crl.) 966 of 2000
Appeal (crl.) 1101 of 2000
PETITIONER:
JAYAWANT DATTATRAY SURYARAO
Vs.
RESPONDENT:
SHAMKISHORE SHAMSHARRMA GARIKAPATTI
DATE OF JUDGMENT: 05/11/2001
BENCH:
M.B. Shah & R.P. Sethi
JUDGMENT:
AND
DEATH REFERENCE CASE NO.1 OF 2000.
State of Maharashtra
Vs.
Subhashsingh Shobhnathsingh Thakur
J U D G M E N T
Shah, J.
These 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 under: -
1. A-6 Subhashsingh Shobhnathsingh Thakur
(a) under 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;
(b) under Section 120-B IPC and is sentenced to
death;
(c) under 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;
(d) under Section 3(3) of the TADA (P) Act and is
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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;
(e) under 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;
(f) under 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;
(g) 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;
(h) 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;
(i) 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;
(j) under 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;
(k) under Section 27 of the Arms Act and is sentenced
to death;
2. A-2 Jayawant Dattatray Suryarao
(a) under 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;
(b) under 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;
3. A-7 Shamkishor Shamsharma Garikapatti
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(a) 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;
(b) under 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.
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 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.
Against the said judgment and order
(a) A-2, Jayawant Dattatray Suryarao has preferred Criminal
Appeal No.975 of 2000;
(b) 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 2000.
(c) A-7 Shamkishor Shamsharma Garikapatti has preferred
Criminal Appeal No.956 of 2000.
(d) 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.
It is 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 (1) Prisoner Shailesh Shankar
Haldankar, who was undergoing treatment in Ward No.18 in the said
hospital; (2) Police Head Constable Chaintaman Gajanan Javsen; and
(3) Police Constable Kawalsingh Baddu Bhanawat. The 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
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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.
It is 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.
Deceased Shailesh Haldankar was suspected to have pointed him out.
It is 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.
A guard comprising of one head constable and two constables was
posted on duty to prevent the escape of the prisoners.
It is 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.
It is 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.
They 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.
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However, 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.
PW6 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.
His 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
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narrated. After completion of the investigation, accused were tried for
various offences and convicted as stated above.
Relevant Part of Evidence:
To 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.
CONFESSIONAL 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.
He 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.
Thereafter, 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.
A-7 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
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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.
From 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.
It is 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
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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.
On 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.
On 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 16.10.1992.
It is 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 21.9.1992.
Confessional Statement of A-6:
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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.
Sunil 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.
Pradhan 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.
Thereafter, 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 place.
Finally 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
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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.
After 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.
Finally, 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.
Confessional 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.
While 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.
Dr. 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.
Next 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.
Thereafter, 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
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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.
Thereafter 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.
Thereafter, 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 1000 car.
Subsequently, 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.
Independent Corroboration to the Aforesaid Statements:
Before 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.
Similarly, 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.
Further, 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.
He was 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.
At 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
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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.
Thereafter, 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.
When 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
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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.
Similarly, 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.
It is 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
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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 accused.
Next 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.
PSI 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.
Other 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 her.
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Confessional 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.
PW54 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.
PW6 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.
They 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.
PW10, 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.
Brief halt of A2 and others at Bombay Suburban Electricity
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Supply Company (BSES) Guest House:
PW63 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.
PW18 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.
This also corroborates the say of A-2 with regard to their going at
BSES Guest House and Hotel Holiday Inn.
Injuries 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.
It 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
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also two hand grenades were taken by 10 assailants in the J.J.
Hospital.
Further, 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.
After 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.
This 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.
From 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.
Further, 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
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by PW17 Tambe in Contessa Car on 10.9.92. He has produced slip
Ex. 102.
PW17 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.
He stayed in Bangalore for 2 days and then went to Mysore.
It is 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 September,
1992. 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.
Then, 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 Panchnama.
PW20 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 witness.
He has 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.
Hostile 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 (PW34).
Shamkishore 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
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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.
Further, 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.
PW34 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.
From the aforesaid evidence led by the prosecution following
facts emerge:
1. If the confessional statements of A2, A6 and A7 are taken into
consideration as they are, then the Designated Court has rightly
convicted them
2. The aforesaid statements are corroborated
(a) By the confessional statements of other accused as
discussed by the Designated Judge.
(b) By the evidence of PW 12 Laxman Vishe and PW 26
Ramesh Patil.
(c) By 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.
(d) 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.
(e) 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.
(f) The statements of A2 and A6 that they stayed at BSES
Guest House are corroborated by the evidence of PW63,
PW30 and PW37.
(g) 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
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two pages therefrom also reveals guilty consciousness of
A-2.
(h) 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.
Submissions:
On the 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
(a) Provisions of TADA are not applicable.
(b) Confessional statements are not admissible in evidence
and in any case are not true, voluntary and reliable.
(c) Identification of A-6 is doubtful.
(d) Sanction to prosecute under TADA is without application
of mind.
Whether 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].
In the 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:
A mere 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.
In the 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.
Learned 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
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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.
In Hitendra Vishnu Thakur (Supra) dealing with similar
contention, this Court held (para 7, p. 618) thus:
.A terrorist activity does not merely arise by
causing disturbance of law and order or of public order.
The 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..
Similarly, 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:
It is 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.
In our 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.
There 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.
The 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
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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.
They 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.
Further, 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.
Necessary 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 are terrorised.
Hence, 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.
Admissibility of Confessional Statements:
The 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.
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In our 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:
Custodial 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 followed.
In our 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.
Further, 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
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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.
In 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].
Learned 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.
Evidentiary 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.
Therefore, 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.
Learned 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
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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.
It is 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.
Identification 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 14th.
Apart 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.
No 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
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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.
The 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.
Validity 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 of TADA.
From the aforesaid discussion, we arrive at the conclusion that:
1. 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
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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.
It 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.
It is to be inferred from the manner and mode adopted while
committing the act and its after effect including fear psychosis.
From 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.
2. 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.
The police officer before recording the confession has to
observe the requirement of sub-section (2) of Section 15.
Irregularities 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:
confessional 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.
3. Sanction to prosecute under TADA granted by the competent
authority cannot be said to be in any way illegal or erroneous.
4. Confessional statements of A2, A6 and A7 are corroborated:-
(a) By the confessional statements of other accused as
discussed by the Designated Judge.
(b) By the evidence of PW12 Laxman Vishe and PW26
Ramesh Patil.
(c) There is no reason to disbelieve the evidence of PW9
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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.
(d) 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.
Hence, in our view, the Designated Court was fully justified in
convicting the A2, A6 and A7 and we uphold the same.
SENTENCE
REGARDING A-2:
Learned 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.
To 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.
REGARDING A-7:
Learned 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.
REGARDING A-6:
Death Reference Case No. 1 of 2000:
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Learned 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.
During 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.
Subsequently, 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.
In our 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.
In 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:
4. As 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:
Under 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.
If so, 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 Prisons Act.
* * * * *
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
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convicted persons natural life.
The Court further observed thus:
But 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.
The 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.
Similarly, 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
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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.
Similar 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].
In 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
remissions.
In the 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.
Criminal 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
dismissed.
.J.
(M.B. SHAH)
.....J.
November 5, 2001. (R.P. SETHI)
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