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PETITIONER:

S.N. DUBE

Vs.

RESPONDENT:

N.B. BHOIR & ORS.

DATE OF JUDGMENT: 12/01/2000

BENCH:

G.T.Nanavati, S.P.Kurdukar

JUDGMENT:

Q.T. NANAVATT. J.

1. One Suresh Dube was shot dead on a platform of

Nalasopara (a suburb of Bombay) Railway Station in broad day

light. Many persons saw it and many knew who were the

murderers. Because of the terror of the gangs Involved none

except two persons, one accompanying the deceased and the

other who was at that time polishing shoes of that person,

have come forward to give evidence against the murderers.

One Mukesh Ratilal Shah (P.W.13), who was injured by one of

the bullets fired at that time, has thought it fit not to

,r)arr)e the person who had fired the shot. initial

dishonest investigation by the police, on account of close

nexus between those gangs and some of the police officers of

the area where the said gangs were operating, not only

delayed the prosecution of the real culprits but also

weakened it considerably. On these allegations 17 ^ persons

(thirteen belonging to the two gangs and four police

officers) were tried in the Court of the Judge, Designated

Court, Pune in Terrorist Sessions Case No. 32 of 1993 and

Terrorist ri Sessions Case No. I of 1996 (amalgemated with

original TSC No. 32/1993), for the murder of Suresh and for

commission of terrorist acts and other offences .The trial

Court did not consider it safe to convict them on the basis

of the prosecution evidence and, therefore, acquitted them

of aH the charges. Shyam Sunder Dube, brother of Suresh

Dube, feeling aggrieved by the acquittal has filed Criminal

Appeal No. 678 of 1997. The State of Maharashtra has also

filed Criminal Appeal Nos. 709-710 of 1997.

2. The prosecution case is as follows:

(a) Nalasopara is a suburb of the City of Bombay.

Formerly it was a small and a quite place but with the

expansion of the city of Bombay It also started growing.

Development of lands and construction of buildings became a

lucrative business. That also led to illegal activity of

land grabbing, compulsory s^les and forcible taking of

possession of lands. Those Illegal activities were carried

on by the gangs of Pendhad, Suresh Dube and Bhal Thakur

since 1980. In 1984 ManikPatil's gang also started

operating in Nalasopara area. Bhai Thakur's gang was

operating from Virar, a nearby suburb and the last station

for the suburban trains running between Churchgate (Mumbai)

and Virar. Often there were conflicts and fights between

these gangs and because of that one Ram Naresh

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Chourasiya-was murdered in 1984 and Bharat Pendhari was

murdered in 1989. Dube brothers having made money stopped

that illegal activity one or two years prior to the date of

the incident, but continued to carry on the business of land

development and construction of buildings. One of the Dube

brothers. Dr. 0m Prakash Dube (P.W.I) had opened a Nursing

Home on the first floor of their building called 'Dube

Estates'. Naresh (P.W.3) was doing business of building

materials. Another brother Jai Prakash (P.W.4) was looking

after their Pandava Hotel. Shyam Sunder Dube and Suresh

Dube continued to look after land development and building

activity. All the brothers were residing on the second

floor of 'Dube Estates'.

(b) Dube brothers had agreed to purchase one land

bearing Survey No. 110 ofViHage Achole and some other lands

of nearby places. Bhai Thakur wanted those lands and had

forcibly taken possession of them. Bhai Thakur wanted Dube

brothers to transfer Survey No. 110 ofAchole to him and for

that reason had called Suresh Dube at his office In Virar a

few days prior to 9.10.1989. As the relations between Bhai

Thakur's gang and Dube brothers were Inimical Suresh Dube

was not allowed to go alone to Bhai Thakur's office. Dr.

0m Prakash had accompanied him. In his office Bhai Thakur,

his brother Hitendra Thakur and other associates were

present. They had told Suresh Dube to part with that land

and also to pay 'haftas" to Bhai Thakur If he and his

brothers wanted to remain in Nalasopara and carry on the

land development and building construction activity. Suresh

Dube was even threatened and warned that if he did not

comply with that demand and took any other action, then the

members of his family shall have to perform 'aarti' of his

photo within a short time. Because of this threat Suresh

Dube was not moving out of his house since then. As there

was no response from Suresh Dube Bhai Thakur and his

associates decided to finish him. On 8.10.1989 a warning

was given to him on telephone that If he did not transfer

that land to Bhal Thakur he would be finished. On that day

at night one Srikant Pandey, who was working with Bhai

Thakur and had some contact with Suresh, went to the house

of Suresh and tried to convince him that If he wanted to

remain alive It was advisable for him to give up the land

and go away to his native place. On account of this serious

threat Surash and his brothers had decided that Suresh

should leave Nalasopara and stay at his native place till

there was danger to his life.

(c) Since a few days prior to 9.10.1989 Amarnath

Tripathi (P.W.48), brother-in-law of Suresh, had come to

Nalasopara and was staying with them. He had to go to Vilay

Parle (another suburb of Bombay) to^see a boy in connection

with marriage of his brother's daughter. Suresh also wanted

to go in that direction for purchasing a ticket for going to

his native place Gorakhpur, in Uttar Pradesh. Both of them,

therefore, left their house for going to Nalasopara Railway

Station at about 10.15 A.M. They reached the station within

about two minutes time. There were many passengers on the

platform. As the train by which they wanted to go towards

Churchgate (Mumbal) side was running late Suresh purchased a

newspaper from a stall on the platform and started reading

It. Amarnath Tripathi went to a shoe polish wala, who was

siting near that stall, for getting his shoes poHshed. OB

(d) The gang of Mamk Patll had accepted supermacy of the

gang of Bhai Thakur and both the gangs were cooperating with

each other i'n committing terrorist acts and In carrying on

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the illegal activities of land grabbing and forcible

purchasing of lands. In September 1989, it was decided

between the two gangs that Bhai Thakur would liquidate the

person whom the gang of Manik Patil wanted to eliminate and

that Manik Patil's gang would do away with Suresh Dube.

Bhai Thakur's gang had already done their job but Manik

Patii's gang was not able to finish Suresh. Bhai Thakur

was, therefore, very angry with Manik Patil's gang and had

sent messages that the work should be finished as early as

possible. The members of Manik PatiTs gang were, therefore,

keeping a watch over the house of Suresh Oube. On 9.10.1989

one of the members of the gang saw Suresh going towards the

railway station and after locating his position immediately

rushed to the nearby hotel belonging to Manik Patil and

Informed other members of the gang including Narendra Bhoir

(A-1) about the presence of Suresh on platform No. 2. So

Narendra Bhoir and some other members of the gang who were

present there rushed to the. platform. Narendra was armed

with a pistol. Other members of the gang were also

variously armed. Narendra found Suresh standing near the

newspaper stall and then fired three shots from a close

range. Suresh got injured and fell down on the platform.

Narendra went near him and fired one more shot. One of the

shots fired by Narendra also caused an injury to Mukesh

(P.W.13). After thus killing Suresh ail those assailants

ran away from that place.

(e) Someone known to Dube brothers immediately ran to

their house and informed Shyam Sunder that Suresh was shot

dead on the railway platform. One of the two persons who

had als(9 accompanied Amarnath to the railway station went

back and informed Naresh (P.W.3) about the incident. Shyam

Sunder along with his brothers rushed to the platform and

brought bacic his brother to their house with the help of

others. Dr. OfTiv Prakash, Dr. Ajmera and Dr.Bindwani,

who were present in the Nursing Home found Suresh dead.

(f) Within a very short time PI Kukdol^ar, who was

in-charge of Vasai Police Station, went to the house of Dube

brothers, and first talked to Dr. Dube (P.W.I) and tried to

persuade him not to Involve Bhai Thakur and then threatened

him by stating that if he involved Bhai Thakur, then the

consequences would be serious for him. Thereafter, PSI

Padekar, attached to Pa'ghar Railway Police Station had gone

to the house of Dube brothers and made enquiries about the

incident. Because of the threat given by PI Kukdoikar and

also because they knew that the police was protecting and

helping the gang of Bhai Thakur they did not lodge any

complaint. A complaint (Ext. 615) was prOBared by PSI

Padekar in present of PI Kukdoikar on the basis of what was

stated by Shyam Sunder (P.W.2) and his signature was taken

thereon. Police Inspectors Kukdoikar and Nimbalkar often

used to visit the house of Dube brothers and threaten them

not to disclose the name of Bhai Thakur as he was a strong

man and whoever complained against him was killed by him.

Investigation was not made honestly. Some of the em'pties

found from thel platform were substituted or tampered with.

^ At the instance 6f Police Inspectors Kurdolkar and

Nfrnbalkar and Bhai Thakur, Patric (A-4) and Anant Shankar

Patil (A-11) were arrested as the persons responsible for

the murder of Suresh. A revolver was recovered at the

instance of A- 4 as the weapon with which Suresh was killed.

Those two accused were then charge-sheeted and put up for

trial before the Sessions Court, Thane in Sessions Case No.

88/91. Hearing of the said case could not proceed further

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as both the accused were shownlabsconc^ng after they were

released on ball and no effort was made by the police for

getting warrants issued for securing their presence before

the court.

(g) On February 19, 1992 the police set up at the

Vasai police station and Palghar railway police station,

within whose jurisdiction those gangs were operating, had

changed. DIG Suradkar (P.W.75) of the Railways, during his

visit to Palghar railway police station, had an occasion to

look into the investigation papers relating to the murder of

Suresh. He became suspicious about honesty of the

investigation and identity of the real assailants. He,

therefore, sent for Shyam Sunder Dube to know the truth. In

view of the attitude of the police till then Shyam Sunder

did not personally go. but sent his mother Bhagwati (P.W.5)

and Dr. Ritu, wife of Dr.Om Prakash Dube. They complained

to him about the dishonest investigation made by PSI Padekar

and PI Berge and the role played by Pis Kukdolkar and

Nimbalkar. On being assured by Suradkar that proper

investigation will be made, a written complaint (Ext. 237)

was then given by Dube brothers on 18.5.1992. Suradkar

forwarded it to DSP Deshmukh for further enquiry. The

enquiries made by him and PI Shinde revealed that the gangs

of Bhai Thakur and Manik Patil were committing terrorist

acts in Nalasopara and surrounding areas, they had created a

reign of terror and that Suresh was Killed by a person

belonging to the gang of Manik Patil at the instance of Bhai

Thakur. Deshmukh, therefore, submitted a report under

Section 173(8) of the Code of Criminal Procedure to the

Sessions Court at Thane and sought permission for

re-investigation of the case. Permission was granted.

Further investigation made by Mr. Deshkukh and his officers

revealed existence of the gangs of Bhai Thakur, Bharat

Pendhari, Suresh Dube and Manik Patil. It also revealed

that Bhai Thakur's brothers Hitendra Thakur (A-9) and Deepak

Thakur, Prashant Rajaram Tandel (A-8), Istiyak Mukhtyar Khan

(A-13) and some others were members of the Bhai Thakur's

gang. It also revealed that terrorist acts were committed

by the gangs of Bhai Thakur and Manik Patil and that those

two gangs were responsible for the murder of Suresh Dube.

During the Investigation by Deshmukh A-1 discovered a pistol

from which he had fired shots at Suresh. A-1 to A-8 and

A-11 also made confessions about the terrorist acts

committed by the two gangs, the motive for committing murder

of Suresh Dube, the manner In which it was committed and how

accused Nos. 14 to 17 had helped Bhai Thakur In concealing

rea' offenders.

3. Pi Dssai (PW 90), who took over the investigation

after superannuation of Deshmukh on 30.6.1993, submitted a

charge-sheet to the Designated Court on 27.8.1993 against

A-l to A-ll and deceased accused Narayan Gauda. Thereafter,

supplementary charge-sheets were filed against A-12 to A-17

on different dates. The Designated Court, however, took

cognizance against A-l to A13 only as no sanction to

prosecute A-14 to A-17 was obtained under the TADA Act.

Their case was, therefore, forwarded to the Sessions Court

at Thane. Later on sanction was obtained to prosecute those

police officers also under the TADA Act and their case was

amalgamated with the original T.S.C. No. 32/1993 and the

charge was suitably amended.

4. The charge against A-l to A-13 was that between

January 1984 and December 1989, they had entered into

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continued crimirval conspiracy to commit terrorist acts by

use and/or show of criminal force, fire arms and other

lethal weapons to extort mone-y, to illegally grab lands

belonging to others and to create terror amongst the people

to achieve the objects of their conspiracy. It was also

alleged that in pursuance of the said objects they had

committed various illegal and terrorist acts, the last or

which was the murder of Suresh Dube and causing hurt to

Mukesh Shah. A-l was speaflcaHy charged for the murder of

Suresh Dube and causing injuries to Mukesh Shah. Accused

Nos. 1-5, II, 12, 13, deceased accused Narayan and

absconding accused Sanjay were also charged for having

committed the murder of Suresh in prosecution of the object

of their unlawful assembly. It was alleged against A-14 to

A-17 that as a part of the criminal conspiracy they had

caused evidence of commission of those offences to disappear

and by that dishonest investigation they had tried to screen

the real offender^ from legal punishment. A-l to A-13 were

slso charged for commission of offences punishable under

Sections 120B, 201, 217, 218, 302 read with 149, 307 read

with 149 of Indian Penal Code, Sections 3, 3(3) and 3(4) of

TADA Act an<i Section 25(l)(a) of the Arms Act. A-14 to

A-17 were charged under Sections 201, 217, 218 read with

Section 120B of the Indian Penal Code. They were also

charged under Sections 3(3) and 3(4) of the TADA Act read

with Section 120B of the Indian Penal Code.

5. All the accused pleaded not guilty to the charge

and their defence was of total denial. A-14 had raised the

defence that on the day of the incident he had gone to

Bareilley in connection with investigation of a theft case

and had returned to Palghar on 12.10.1989. A-15 had also

raised the defence that he was at the Vasai police station

till 11.00 A.M. on the date of the incident and had reached

the place of offence after about 11.30 A.M. He had merely

taken steps for keeping 'bandobasf and was not involved with

the investigation of the case.

6. The prosecution, in order to prove its case

regarding existence of the two gangs of Bhai Thakur and

Manik Patil and the- terrorist acts committed by them and

the help rendered to them by the police/had oxarnined

OrnPrakash (P.W.I), Shyam Sunder (P.W.2), Naresh (P.W.3),

Pushpa Pondhari (P.W.19), Sitaram Yadan (P.W.25), Balaram

(P.W.34),Kanhiya Lal Misra (P.W.35), Jafar (P.W.40), Waman

(P.W.41), Sakharam (P.W.42), Jagganath (P.W.45), Mohammad

(P.W.52), Subhash (P.W.67), Rubab (P.W.68), Madhukar

(P.W.69), Rarnkishan (P.W.70), Vasant (P.W.90), Naaz Asif

Patel (P.W.97) and the police officers connected with the

subsequent investigation as witnesses. The prosecution had

also heavily relied upon the confessions state^ to have been

made by A-1 to A-8 and A-11. In order to prove the murder

of Suresh Dube the prosecution had mainly relied^ uponOOhe

evidence of the two eye witnesses Amsmath Tripathi (P.W.48)

and 0m Prakash Brahamania (P.W.49). Evidence was also led

to prove that the investigation made by the police prior to

September 1992 was not honest. Evidence regarding discovery

of pistol by A-1 and the evidence of a Ballistic Expert and

medical officers and other formal witnesses was also led.

7. The trial Court found many faults with the

confessions and also held them inadmissible in evidence. It

also held that they were not voluqtarily made. The trial

Court disbelieved the witnesses examined to prove the

terrorist acts on the ground that their evidence was too

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general and vague and they were not independent anc<HR>responsible members of the

locality. The evidence of two

eye witnesses was dis-belleved on the ground that there were

material improvements and contradictions in their evidence

^nd their version was also not believable. Identification

of the accused in the court by these two eye witnesses was

not believed because it was after a long time and no

previous test identification parade was held. For all these

reasons it further held that the prosecution case against A-

1 to A-13 was not proved. As regards A-14 toA-17 the trial

Court held that the sanction given for their prosecution

under Section 3(1) o* the TADA Act was vitiated on account

of non- application of mind. It also held that the

reinvestigation was done with an oblique motive as most of

the terrorist activities fell outside the jurisdiction of

the railway police and yet they were investigated by them

and the regular police having jurisdiction over the areas

was not associated with it. Thus the case against A-14 to

A-17 was also held not proved.

8. Whether the eartiar investigation was dishonest or

the subsequent re-investigation by Deshmukh and his officers

was done with some oblique motive wilt have to be considered

first as acceptability of the evidence of the witnesses and

the confessions would depend upon the answer to that

question. If the earlier Investigation was honest as held

by the learned trial Judge, then the contradictions and

Improvements found in the evidence of the two eye witnesses

will assume importance. But if the earlier investigation is

found to be not honest, then the major ground on which the

evidence of the eye witnesses has been disbelieved will

disappear. If we confirm the finding of the learned trial

Judge that the re-investigation was made with some oblique

motive then that would certainly affect evidentiary value of

the confessions. The trial Court held the investigation by

Mr. Deshmukh and his officers motivated for the following

reasons: (1) in the application (Ext. 237) made for

re-investigation it was not stated that the earlier

investigation was faulty and that A-4 and A-11 were wrongly

shown as murderers of Suresh Dube.

(2) there was no material before Deshmukh on the baste

of which he could have stated that the earlier investigation

was faulty and for that reason no good ground was mentioned

in the application for re-investigation. (3) there was no

reason for Deshmukh to take possession of the Mudemmal

articles on the very day on which application for

re-investigation was made as there was no material before

him to show that an unconnocted weapon was seized by the

earUer investigating officer. (4) after obtaining the

sealed packet of Muddamal empties and bullets from the court

for getting them examined by a ballistic expert the Court,

he first opened it and then again resealed it for no .reason

except for tampering with the Mudammal articles,

particularly the three bullets recovered from the body of

Suresh Dube. (5) even though there was no material before

Dehmukh on the basis of which he could have lawfully invoked

the provisions ofTADA on 28.9.1992 very probably he did so

with a view to defeat the anticipatory bail application

filed by some of the accused. (6) even though in the first

FIR Shyam Sunder Dube (P.W.2) had stated that he was

suspecting none for the murder of his brother, the entire

theory got changed during the subsequent re-investigation.

9. Suradakar (P.W.75) who took over as DIG, Railways,

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Bombay in August 1991 had been to Palghar Railway Police

Station in February 1992. While examining case papers

relating to the murder of Suresh Dube he felt some doubt

about the investigation. Therefore, he had directed his

subordinate officers to send a message to Shyam Sunder Dube

to meet him. Pursuant thereto Bhagwati (P.W.5) and Dr.

Rijuta Dube (P.W.37) had met him within about 8 to 10 days.

Suradkar has deposed that they had orally complained to him

about the honesty of the police officers who had

investigated the case. On his assurance that he would look

Into the matter and take appropriate action they again met

him after about 15 days and gave further details regarding

the murder of Suresh. He had, therefore, advised -them to

give a complaint in writing and pursuant thereto a complaint

(^xt. 237) dated 18.5.1992 was given to him. This part of

his evidence has almost remained unchallenged in cross-

examination. Only suggestion made to the witness was that

after Dubes had met him-he got the investigation of the case

re- opened in ordar to help Dube brothers. No material has

been brought on record to infer that Suradakar was m any

manner interested in Dubes or had any other reason to help

Dubes by falsely involving Bhai ThakLir or Manik Pat'l or

their men. The doubt feit by him regarding honesty of the

inve-stfgation was justified because even though five

empties were recovered from the place of offence a revolver

was seized as the weapon of offence A poUce officer even

With little experience would have realised that the murder

was committed not by using a revolver but with a pistol.

The learned trial Judge was, therefore, wrong in holding

that there was no material before Suradakar for entertaining

any doubt and re-opening the investigation and that he had

done so with some oblique motive.

10. .Thetricri Court was also not right in holding

that Suradakar, got re-investigation done with some oblique

motive because in the complaint (Ext.237) it was not

specifically stated that the investigation made by the

police officers till then was not honest. The complaint

does indicate that the Investigation made till then was not

honest. It should have been appreciated that Dube brothers,

in the position in which they were placed at that time,

could not have specifically alleged that the previous

investigation was dis-honest. So also from the fact that in

the application made to the Court for permission to

re-investigate it was not statp^ that the previous

investigation was not honest, no inference of oblique motive

could have been legitimately inferred. The application din

refer to the complaint made by Dube brothers. Without

^"::h<ar investigation no charqe of dis- honesty could have

been levelled against the police officers associated with

earlier investigation at that stage. Therefore, Deshmukh

could not have mentioned In the application that permission

to re-investigate was sought as the previous investigation

was not honest.

II. The adverse Inference drawn by the learned trial

Judge from the circumstance that Deshmukhhad takon back

Mudemmal articles from the Court on the same day on which

permission to reinvestigate was granted and that he had

opened the sedsd packet containing bullets and empties and

agalrv sealed them, is wholly unjustified. For ascertaining

from which type of weapon - pistol or revolver - the bullets

which were found from the body of Suresh Dube were fired, It

was really necessary for Deshmukh to obtain possession of

those bu^ets and also the empties and get an opinion of a

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ballistfc expert, particularly when no clear opinion on that

point was given by him in his earner report. As the said

Mudemmal artides were lying in the Court in a pealed packet

he had to obtain them from the Court and without opening the

packet he could not have given a receipt as to which

articles were taken possession of by him. It was necessary

for him to open that packet and verify the contents. Al?

those steps were regular and necessary and it is difficult

to appreciate how the learned trial Judge could infer from

them that ail that was done by Deshmukh with a view to

tamper with those Muddemal articles and particularly the

three. bullets ^ound from the body ofSuresh.

12 The trial Court also grievously erred in holding

that the TADA Act was wrongly invoked. The complaint made

by Dube brothers and inquiries made by Deshmukh and his

officers disclosed some of the illegal activities committed

by the gangs of Bhai Thakur and Manik Patil and the terror

created by them in Nalasopara and surrounding areas.

Deshmukh was handed over the complaint of Dube brothers for

further enquiry on 18.5.1992. On 31.7.1992 he had

interrogated Mukesh Shah and on 18.8.1992 he had

interrogated Amarnath Tripathi. He had also made some

discreet enquiries through his subordinates and gathered

some information regarding involvement of accused other than

A4 and All. .On 22.9.1992 he had interrogated accused

Dnyaneshwar Pati) (A-3). It was thereafter that he had

submitted a report to the Sessions Court, Thane under

Section 173(8) of the Code of Criminal Procedure for further

investigation. Afterobtaining that permission he was able

to obtain custody of OiHp Waghchoure (A-7) and interrogate

him. On 25.9.1992 he, had recorded statements of MiraDube,

Bhagwati Dube and Jayprakash Dube. It was on .the basis of

this material that he was satisfied that the accused had

committed offences punishable under the TADA Act. Disposing

aii this material he had made a report to the Superintendent

of Pouce,- Railways on 28.9.1992 for invoking the provisions

of the TADA Act. It Is, therefore, not correct to say that

without any justifiable reason provisions of TADA were

invoked by Deshmukh and that he had done so ^ for

frustrating the bail applications which were to come up for

hearing on 13.9.1992.

13. The last reason given by the trial Court is also

not sound. It wrongly assume.d that the first complaint was

correct and tha FIR was recorded at the time stated therein.

If the evidence of Shridhar Thakur (P.W.30), Rajendra

Panjwani (P.W.79) and Gosa'Mar (p.w.66} had been analysed

more carefully it would have become apparent that the FIR

could not have been recorded at Paighar railway station at

12.30 p.m. as mentioned Iff the FIR. The teamed trial

Judge also faiied So appreciate that some days prior to

9.10.1989 Suresh was called by Bhai Thakur and was

threatened that If he did not part with the lands wanted by

Bhai Thakur, then his family members shail have to perform

Aarti of his photograp'h-and on 8.10.1989 one Srikant

Pandey, who was a man of Bhai Thakur, had met Suresh and

advised him to leave Nrdasopara if he wanted to remain

alive. Because of this threat a decision was taken by Dube

brothers that Suresh should goto his native place and remain

there till the danger to his life continues. Pursuant to

that decis'on Suresh had left his house wIthAmarnath

Tripathi on 9.10.1989 for going to Mumbai for purchasing a

railway ticket for Gorakhpur. This conduct of Suresh

corroborated the evidence of the prosecution witnesses on

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that point. It Is, therefore, difficult to appreciate how

in view of this evidence the (earned Judge could pe"suade

himself to hold that the first complaint was correct and

during the re-investigation the whole version was charged

deliberately, 'he r.tatement in the complaint that ths

complainant did not suspect anyone as the more careful whUe

appreciating the relevant evidence.

14. As regards the earHar investigation by PSI

Padekar and PI Berge, It was contended by the learned

counset for the appellants that it was not honest, it was

submitted that PI Kukdotkar, PI Nimbalkar ^n^ the police^

officers attached to the Vasai and Virar police stations and

even higher officers were supporting and protecting Bhai

Thakur, Manik Patil and their men by helping them in

tampering with the evidence or by "ot taking action against

them. There is sufficient evidence on record to hold that

the gangs of Bhai Thakur and Manik PatU were operating in

Vasai and Nalaropara areas since 1980 and 1984 respectively.

There is also evidence to show that in order to achieve

their objects or extorting money and grabbing land they used

to indulge in violence and other criminal activities.

Whether those two gangs were committing terrorist acts or

not is a separate point and we shall deal with it later.

For the present we are examining the evidence to find out

whether investigation in respect of murder of. Suresh Dube

was honestly done. The evidence of the family members of

Suresh Dube is consistent on the point that PI Kukdolar and

PI Nimbalkar had pressurised thern not to mention the name

of Bhai Thakur or his men as the murderers of Suresh and had

even threatened therr. that if they did so they -would have

to suffer serious consequences. P.W.I, Dr. 0m PraKssh has

deposed that within about 10-15 minutes after Suresh was

brouight home and examined by the doctors, PI Kukdoikar had

come to thss'r house and toid that as he had not personaUy

seen who had committed ' the murder he should not name Bhai

Thakur as a suspect. PI Kukdoikar had further toid them

that even if Bhai Thakur was named as the murderer nothing

would happen to him and on the contrary he and all his

brothers wouid have to d'e. PI KLikdoiksr had theroafter

gone awayand had returned wit.hPSI Padekar and had remained

wfth him when the complaint was written down by PSI

Padekarand Ccn.stable Sridhar Thakur (P.W.80). Dr. 0m

prakash has 3^0 deposed, that .PI Kukdolkar used to come.

to their house even thereafter and on. some occasions he

had come with PI Nimbalkar and that both of them had tried

to impress upon him and his family-members that Bhai Thakur

being a strong mar) end whoever filed a complaint against

him was killed and that it was enough .that .one of the Dube

brothers was 'kiiied. P.W.2, Shyam Sunder has also stated

that within about 10 minutes after Suresh was declared dead

PI Kukdolkar had come to thefr house and had a tafk with his

brother Dr. 0m Prakash. He has further stated that after

talking with his brother PI Kukefolkar had told him and

other members of the family that they should not name Bhai

Thakur as the murderer of Suresh. PI Kukdolkar had

specifically told him that he was the eldest member of the

family ahd should understand the consequences otherwise all

the brothers would meet the same fate as that of Suresh. He

has further stated that PI Kukdolar had also told them that

whatever property BhaiThakur was demanding should be handed

over to him and that they should leave Nalasopara and go

away to their native place. Us has aiso stated that PI

Kukdolkar had again come back with P51 Padekarand told them

that they should cooperate with him and that they should act

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according to what he had told them. P.W.3 Naresh Dube,

P.W.4 Jalprakash, P.W.5 Bhagwati and P.W.6 Meera Dube have

also supported the evidence of Dr. 0m Prakash and Shyam

Sunder. All this evidence has been disbelived by the trial

Court on the ground the Dubes had not complained about the

conduct of PI Kukdolkar and PI Nimbaikar to Mr. Zarekar,

who was then working as SDPO Vasai nor to any other higher

officer. It is not qu'te cor"ect to say that these

witnesses had not complained obcL-t the conduct of PI

Kukdofkar and P! N.'mbalkar to anyone. He had complained

to Pi Rathod who used to go to them for investigation. All

these witnesses have further stated that it was because of

this attitude of the police officers connected with the

investigation or interrogation that they had not complamed

to higher police officers or taken any other action.

The-learned counsel for the appellants submitted that the

learned trial Court was not right in brushing aside this

evidence and it shcuid have appreciated that there was no

particular reason for the members of Dube family to make

false allegations against the four police officers (A-14 to

A-17) and PSI Padekar. It was submitted that the learned

trial judge failed to appreciate that for some years Suresh

Dube was also involved in similar illegal activities and

was, therefore, likely to know about the relations of police

with the gangs of BhaiThakurand^anikPatil. .

15. . The learned counset for the appellants also

submitted that the time of recording the FIR was not

correctly mentionee and that is a circumstance Indicating

dishonesty of the previous investigation. Undisputedly

murder of Suresh took place on the Nalasopiars railway

platform at about 10.30 A.M. P.W.80, Sridhar Thakur who was

working as a writer constable under PI Berge at the Peighar

railway police station,

27

has stated PI Berge was absent on 9.10.1989 ard PSi

Padekar was in-charge of the poUce station. On receive

information regarding murder of Suresh he had accompanied

'PSI Padekar to platform No. 2 of Naiasopara railway

station and thereafter to the residence of Dube brothers.

PSI Padekar had questioned Shyam Sunder and the reply given

by him was written down by him and that writing was taken as

the complaint of Shyam Sunder.'-' The said complaint was

then sent to the Palghar railway police station for

registration. 'In his cross-examination however he denied

this version and stated that on 9.10.1989 he was cailed by

PSI- Padekar at Natasopara bysending a wireless message. It

is proved that in his police 'statement dated 15.5.1993 he

had stated that after receiving the wireless message he had

gon<3 to Naiasopara and that he had reached there at 2.00

P.M. The murder had taken place at Naiasopara railway

platform at abut 10.30 A.M. PaSghar raltway police station

is 6t a considerable distance and as disclosed by the

evidence of police constable 'RaJendra Panjawant (P.W.79),

who was'also attached toPalghar raiiway-poHCe'statlon, that

the first train available ek Palghar for going towards

Mumbal si^e after 10.15 A.M. was at 12.30 P.M. It is,

therefore, quite clear that writer constable Sridhar Thakur

could not have taken down the complaint at Naiasopara at

10.40 A.M. Poiice.constabte Rajendra Panjwani has also

stated that the message regarding murder of Suresh was

received at Paighar railway police station sometirna between

11.00 and 11.15 A.M. and that he wasaiso directed to leave

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for Naiasopara. He caught the next available tram at 12.30

P.M., got down at Virar and then caught the suburban train

for Naiasopara which took him there at about 3.00 P.M.

P.W.66, Gosalkar was a police constable on duty at Palghar

railway police.station on 9/10.1989. He has stated that

while he was on duty at gate No. 38 situated on the western

side oftha railway platform he saw s^me passengers running

across the railway ime. On enquiry he.wastold thatfirmghad

taken place on the railway-platform and so. he rushed to

that place and found one person iytng. ;m an: injured-

condition.-He then went to the station master's room to.

send a telephon call to Vasai railway station master for

sending more police force. That was between 10.45 and 11.00

A.M. -Thereafter heyvent to the house ofDube .. brothers

and after about 20 minutes PI Kukdolkar had come there.

From this evidence also it becomes quite clear that the

complaint could; not have been recorded by Sridhar Thakur

at 10.40 A.M, nor..could it have reached Palg^ar railway

police -station by 12.30 P.M. as deposed by P.W.72,

Hanumant Jadhav. In all probability the first information

was recorded atPalghar railway police station much later and

after PSI Padtekarhad gone back to Palghar. No time was

rrtentlohed In the register. Copy of the FIR was not sent

to the Magistrate either on that day or on the next day. It

had reached the Magistrate on 12.10.1989. This delay does

create a suspicion regarding influence of the two gangs oyer

the police. Another circumstance and a stronger one

indicating that the first Investigation was not honest Is

the attempt made by the previous investigating officers to

connect revolver article (No. 47) with the crime. It is

not in dispute and also stands proved by the spot panchnama

and the entry made in the, case diary (Ext. 754) that five

empties were recovered from the scene of offence. If shots

had been fired from a revolver then the empties would have

remained inside the chamber of the revolver and would not

have fallen out on the platform. Presence of five empties

on the platform clearly indicated that the weapon used for

firing shots was a pistol. Yet a revolver (Article 47) was

seized and shown as the weapon of offence. Obviously that

was done with the object of helping the murderers as no

Court could have convicted them on the basis of such

evidence. Very probably two of the five empties seized from

the railway platform were substituted. That becomes

apparent on comparison of the description given in the

Panchnama with the description mentioned in the case?

di'ary.

16. Another circumstance which creates a ^cubt

regarding honesty of the previous investigation is the

making of a false statement in the application for taking

A-4 on remand. The police had already recovered the

revolver on 20.10.1989 sometime between 5.30 and 6.30 A.M.

and yet in the application made to the Court at: about

12.30 P.M. on that day it was stated that the weapon of

offence was yet to be recovered. One more circumstance

having a bearing on the connaction of the previous

investigating officers with accused A-1 to A-13 is absence

of any serious attempt by the police till 1992 to secure

presence of the accused before the Court and see that the

trial proceeded against them. Even though A-4 and A-11 were

released on bail and were not attending the court and

summons were not served upon them, yet no attempt was made

by the police to get any warra-nt for their arrest issued by

the court. The proceedings of the Court discloses that the

case was required to be adjourned from time to time on the

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ground that the summons could not be served^pon them.

17. in our opinion these circumstances do create a

doubt regarding honesty of the first investigation. We are

also of the opinion that the subsequent Investigation made

by the police under the direction of Suradakar after

September 1992 was not done with any oblique motive.

18. The prosecution had led evidence of P.W.I (Dr.

0m Pra^ash), P.W.2 (Shyam Sunder), P.W.3 (Naresh Dube),

P.W.4 (Jaiprakash), P.W.5 (Bhagwati) and P.W.6( Meera Dube)

to prove the motive for the murder of Suresh. The evidence

of P.Ws. I and 2 discloses that Dube brothers had purchased

certain lands of villages Achole, Mi'lemore, Manikpur,

Tuiinej and other villages touching Nalasopara. Bhai Thakur

and his associates had taken illegal possession thereof.

Suresh was trying to take back those lands. Bhai Thakur

wanted those lands to be trar^erred to him and wanted Suresh

to pay 'haftas' for carrying on iand developing and house

building activities in that area. In this connection,

Suresh was called by Bhai Thakur at his office at Virar a

few days before 8.10.1989. We have already referred to the

discussion and the threats given by Bhai Thakur and his

associates to Suresh. We have also referred to the warning

given to Suresh on telephone on 6.10.1989. P.W.6 had also

stated in her evidence that Suresh was much worried after he

had received the threat. The evidence of P.Ws. 1, 4 and 6

further discloses that it was decided by al? the fami'y

mernbfers that Suresh should leave Nalasoparaandgo to his

native piacQ till the danger to his life continued. In the

cross-examination of those witnesses it has been brought out

that except in respect of Survey No. 110 of Achole there

was no document to establish that Suresh and his brother

were ever in possession of those lands pursuant to

agreements of sale. The evidence of these witnesses is

found trustworthy and the motive can be held proved.

19. The evidence of P.Ws. I and 2 and that of

P.W.28, Amarnath Tripathi proves and that is not indispute

that Suresh had left his house at about 10.15 A.M., reached

platform No. 2 within about 2 minutes lime and was shot

between 10.30 and 10.35 A.M. At that time Amarnath Tripathi

was with him. Two other persons had also accompanied as

Suresh wanted to have a talk with them in connection with

his business. One of them was Mukesh Shah (P.W.53). As to

what happened thereafter on platform No. 2 of the

Nalasopara railway station has been deposed by Amarnath

Tripathi (P.W.48) and 0m Prakash (P.W.49). Others who had

seen the indctent and were examined as eye witnesses but did

not support the prosecution were Ranjit Thakkar (P.W.iO),

Alex Marthin (P.W.Ji), Sanjay Dube (P.W.39), Dinesh Kashyap

(P.W.39) and Mukesh Shah (P.W.53). Ranjit and Sanjay were

the passengers wait'no on that platform for the train to

come. Both of them have deposed about firing of shots and

seeing Suresh lying on the platform in an Injured condition,

but they did not identify any of the accused as' the

assailants of Suresh. Sanjay stated that A-l and A4 were

not the persons who were seen by him running away on the

railway track. Alex Martin (P.W.31) was the person near

whose book-stall the incident had happened. He has stated

that he had seen the person who had fired shots at Suresh

and had also seen other persons running away after the

incident, but he did not identify the assailants stating

that he had seen them from the back side. He specifically

denied that A-l was the person who had fired the shots.

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Dinesh Kashyap (P.W.44) had a pan-bidi stall on the

platform. He also stated in the Court that he was not able

to identify the assailants. All these witnesses were,

therefore, declared hostile.' 'Mukesh Shah (P.W.53), who new

Suresh and A-l and who was also injured, did not say in the

court that A-l and some of the accused were the assailants

of Suresh. The learned Mat Judge doubted involvement of A-1

on the ground that Mukesh Shah being dose to Suresh would

have disclosed the Identity of the real assailants If he had

really seen them. This witness must have been very dose to

Suresh as ha had gone on the platform to have a talk with

Surssh. The fact that he was injured by one of the shots

fired at Suresh also indicates that he must have been close

to Suresh. This witness at first denied that he know A-1,

but admitted in cross- examination by the public prosecutor

that he knew A.-.1 since before the incident. It was,

therefore, more probable that he did not want to identify

them out of fear and not because in fact he had not

identified them. His evidence, however, remains unhelpful

to the prosecution.

20. , . ...Amsmath Tripsthi (P.W.4S) hsd come from

his native place to Nalasopara on 4.10.1989 or 5.20.1909 and

was sta/i'ng with ms sister and brother-in-law Shyam Sunder

(P.W.2). tie.^ad come to see his sister and also to find a

match for the daughter of his younger brother. Between

5.10.1989 and 9.10.1989 he had seen two boys. On 9.10.1989

he wanted to goto Vills Parle to see one boy. As further

stated by him Suresh wanted to purchase a railway ticket for

going to his native place Gorakhpur and, therefore, both of

them had left together at 10.15 A.M. They went to platform

no. 2 and were waiting for the train to arrive. As the

train by which they were to leava for Mumbal was running

late he went to a shoe-polishwaia to get his shoes polished.

Suresh Dube purchased a newspaper from a nearby book-stall

and started reading the same. While his shoes were being

polished he heard the sound of a firearm shot and when he

looked in that direction he saw one person with a pistol

firing further shots at Suresh. Ha has also stated that 4

to 5 persons, had encircled Suresh. Because of firing

persons standtn^ on the platform started running helter

skelter. The shoepolishwala also got up and ran away.. He

then got a push from one of those persons who had encircled

C-uresh and, therefore, foil down from the platform. He

immediately got up and looked at Suresh. He saw the same

person who had earlier fired shots firing one more shot at

Suresh who was by then lying on the platform. He,

therefore, raised shouts "Save Save". By that time one

train arrived and taking advantage thereof all the

assailants ran away. He has also deposed about how Suresh

was taken home and declared dead by the doctors. According

to him he become giddy, fell down and on hearing that Suresh

was dead he became unconscious and remained unconscious for

three days. After he regained consciousness he was toid by

the relatives ofSuresh that murder was committed by Bhai

Thai'ur's men and he should not say anything to the pol'ce

about the incident as that could prove to be dangerous to

their lives because the police was well connected with Bhai

Thakur. Therefore, he refused to give a statement to the

police on 12.10.1989 when they had come to record it. In

the court he identified A-1 to A-4 as the persons who had

encircled Suresh. He also identified A-1 as the person who

had fired shots at Suresh. This witness was confronted in

his cross-examination by the police statements dated

12.10.1989 and 20.10.1989 purported t6 have been recorded by

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PI Berge. What the defence wanted to establish was that on

12.10.1989 he had given a different version as regards the

manner in which the incident h-ad happened. His version in

the said statement was that Suresh was standing on his left

side while he was getting his shoes polished and when the

bootwala was polishing his shoes with cloth, suddenly words

"Are Is Ki Ma Ki" came out of Suresh's mouth. At that time

people on the platform started shouting "Run Run".

Immediately a big sound like bursting of a cracker was

heard. He received a push from somebody, lost his balance

and remained standing by leaning against the'Soo''-.^a.;.

He looked at Suresh. He had bent down keeping his hand on

''5 stomach. It was also brought out in

thecross-exsi-nmation that this witness had not given any

description of the assailants m his statement dated

18.8.1992 and that he had further stated that the person who

had fired shots' was having In his hand a weapon like pistoL

He was also contradicted by his police statement dated

18.8.1992 wherein he had stated that "immediately thereafter

Suresh Dube sat down with hisb'oth hands on his forehead I

had fallen down on the railway track because of the push.

In the meantime local train 'from Virar side and Churchgate

side arrived. Dunng 'that 'time people who fired on Suresh

Dube ran away towards Nalasopara West. This witriess had

not stated in his said statement that "after I stood up on

the railway track I saw Suresh Dube lying on the platform

and the person who was firing bent down and fired on the

head of Suresh Dube". It was submitted by the learned

counsel appearing for the respondents-accused that these

omissions and contradictions clearly disdose an attempt on

the part of this witness to make improvements upon his

earlier version so as to mak-2 his evidence agornst A-1 to

A-4 certain and acceptable. It w&s also urged' that this

witness in his statement dated 18.8.1992 had stated that "I

had given,my statement before the police during my stay of

20-25 days with^Dubes'JamHy. ^er the incident of murder".

It was urged that this witness has falsely stated white

giving evidence that he had not given any statement to the

police either on 12.1G.19SS or 20.10.1939. It was further

urged that this witness had denied to have made any

statement on 12.10.1989 and 20.10.1989 as he knew that it

contained a different and an uncertain version not only as

regards the manner in which the incident had happened but

also with regard to his seeing this assailants. The trial

Court was also much impressed by these omissions and

contradictions, and taking into consideration the

circumstance that the incident had happened suddenly and

large number of persons who were standing on the platform

had started running helter skelter after hearing the sound

of firing of a shot, held that this witness could not have

sufficiently seen the assailants so as to correctly identify

them in the court after.many years. In arriving at this

conclusion ths trial Court also rdisd upon the statement in

h's cross-examination that he did not know from which

direction the .sound of the first shot hed come and from

what distance it was fired. ^We have earlier held that the

previous Investigation was not. honest and; therefore, no

importance could have been given to these omissions and

contradictions proved from the statement dated 12.10.1989.

Even if we proceed on the assumption that a statement of

this witness was recorded by the police on 12.10.1999 it is

not possible to agree with the submissions made on behalf of

the respondents that the earlier version of this witness was

totally different from his version in the Court. The

discrepancies were with respect to number of assailants and

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number of shots fired by the assailants and also on the

point of his seeing the assailant firing one^mpreshot after

he had neceirVcd a push and fallen down onthe.railway track.

Even the omissions and contradictions with respect to the

statement dated 18.8.1992 are also not such as would,lead,to

an inference that this witness was deliberately making

improvements before the court in order to faiseiy say

something that he had not seen. What appears from the

statement is that this witness had stated in his statement

dated 15.8.1992 that he h^d seen the last shot fired on

Suresh after he ha^ faUen dovw from-the platform. Whathehad

notstatei3.wasthathe.hadseen the.assailant firing

thelastshot after he ^adgot up from the railway track,. The

fact that this witness had gone to Nalasoparatome^t

^5.sister and had some work has remained unchallenged., Th^

fact that on 9.10.1989 he had left the house of Dubes with

Suresh at 10.15 A.M. has also remained unchallenged. The

presence of this witness on the platform at the time of

incident has not been questioned. His version that he was

getting his shoes polished at the time of the incident has

also not been disputed. Whatwa's urged before the trial

Court and what has been bdisved by 'tis that as the incident

had happened suddenly and the people standing on the

platform had started running better skelter immediately

after fhe first shot was fi^ed^th^ witness coritd not have

seen the assailants clearly foral suftideh^y ong Wneso as

to correctly recognise them after a lapse of few years. It

was also urged that as this witness was not abia to make out

from which direction the sound of firing a shot had come and

was not able to state the distance from which it was fired

would also support the finding that this witness really did

not know the mannet and circumstances in which the assault

on'Sure^h had taken place.' '^hi5 witness has said that he

was at a distance of about 3 ft. from Suresh when the

incident had happened. That appears to be more probable and

natural also. Both of them had left the house together and

were to go together in the train. Except the circumstance

that people on the platform had started running helter

shelter a*te" hearing the sound of firing of shots, there

was nothing before the court on the basis of which it could

have-^dthat Amarnath cou.'d not have seen the assailants

firing shots at Suresh. and surrounding him. Though the

inddent had happenecTsuddeniy, firing of five shots from a

pistol must have taken some time. Thte witness in our

opinion had sufficient time to^e and registsr hh^s mind what

was then happening to Suresh, his- brother-in-law. In our

opinion the learned trial Judge was not right in hoid«ng

that this witness very probably did not have sufFident

opportunity to see the manner In which the whole incident

had happened and who were the assailants.

21, The next point to be considerad is Whether

identification of the accused by this witness in the Court

can be believed when no attempt was made earlier by holding

a te$t trial Court has found it unsafe and it was contended

by the learned counsel for the accused that such

identification has ^ LWhla f(AIR 1980 SC 1382]. A-1 to A-4

who were identified by February 1993. Three years had

passed by then. Perhaps th^ was the reason why test

identincatjon' parade was not held. Anyway this infirmity

of not hoping a test identification parade does diminish the

evidentiary value of identification of these accused by this

witness in the Court. If this was the only evidence

regarding identification of those accused we would have held

that it was not su^dent for convicting any of those four

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accused. But it stands corroborated by the evidence of

another eye-witness and also by ti'e confessions of A-1 to

A-4, if they are held admissible and voluntary.

22. It was contended by the learned counsel for the

respondents-accused that the version of this witness that

he.had become unconscious on hearing .that Suresh had died

and had remained unconscious for three days was not

believable and th^ trial Court was right in rejecting the

evidence of.this witness oh that ground. It is difficult to

appreciate what this witness wo^id have gained by falsely

saying so. He had seen his brother^n- r law being shot

dead. Therefore it was not unlikely that h.e got a shock

and became unconscious. If what he has stated was no^

correct then the police would have recorded his statement

befo/e 12.10.1989. The fact .that his statement co^.'d not

be record before 12.10.1989 lends support to his evidence

that he had remained unconscious, though not continuously,

for three days.

23. 0m Prakash Brahmania (P.W.49), another eye-

witness, was earning his livelihood in Bombay by working as

a boot-polisher on the platforms of Nalasopara railway

station. He had been doing so since about 10 years before

the date of the Incident. He usad to sit on the platform

from 6.30 in the morning till 6.00 o'clock in the evening.

He knew Suresh and some accused as they often used to come

to the railway platform to get their shoes polished. He

also knew some of the accused as he was threatened by them

on some occacions as a '.'. part of their activity of

terrorising people of the locality. He has' deposed that on

the date of incident he had seen Suresh Dub^ and one person

accompanying him on the railway platform ^t about 10.30 A.M.

The person who had accompanied Sur^h came to him for getting

his shoes polished. While he ^as polishing his shoes Suresh

was reading a newspaper near'ihe book-stall at a distance of

about 2 ft. from him. He then s^/v Narendra (A-1) nephew

of Ma-nik Pstil, coming there and firf^g shots G*~

Suresh. He also s^w that 3 cr < yers""".? were w'th A-;.

Narain was one of them and he had a chopper with him. As s

result of that firing people started running. He also got

frightened and ran away and took shelter behind a nearby

building. After waiting there for some time he went home.

He identified Narendra (A-1), Dayaneshwar Patil (A-3) and

Patric (A-4) in the Court. He identified Narendra (A-I) as

the person who had fired shots at Suresh and Dayaneshwar

(A-3) as the person who was standing with a chopper by the

side of Suresh Dube. He has further deposed that because of

this incident and fear of Manik Patil's gang he left Bombay

within about 2 to 3 days and went to his native place in

Haryana. He stayed there for three years. When he returned

to Bombay he came to know that the police was searching for

him. Therefore, he met the police and his statement was

recorded on 5.10.1992. In his cross-examination he stated

that it was after about 8 to 10 days from his return from

Haryana that his statement was recorded by the police. He

also stated that his father had all the time remained in

Bombay. The learned trial Judas has held this par of the

evidence of this witness unbelievable. The trial Court held

that there was no reason for this witness to remain away

from Mumbai for a period of 3 years, particularly when his

father had stayed back. The learned trial Judge also held

that this witness had shifted to Bombay as he did not have

enough work in Haryana and, therefore, it was not likely

that he would have remained in Haryana for 3 years before

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returning to Bombay. The learned Judge also relied upon the

circumstance that in his statement before the police he had

given his Bombay address and stated that he was staying at

that place since about 10 years. The reasoning of the trial

Court was that if he was absent for 3 years from Bombay then

he would not have stated to the police that he was staying

at that address since about 10 years. In our opinion, the

reasons given by the trial Court for disbelieving this part

of the evidence of this witness are not at all sound. The

fad: that this witness belongs to a small town in Sonepat

District of Haryana State is not disputed. It is also

proved that summons were served upon this witness while he

was in Haryana. It was also suggested by the defence in his

cross-examination that the police had arrested him from

Haryana and brought him back to Bombay. The version of this

witness was that he had come to Bombay on his own and he was

not arrested or brought by the police. But the fact that he

had gone back to Haryana and returned in 1992 has remained

almost unchallenged. It is true that according to the

previous investigation made by PI Padekar and PSIl Berge

statements' this witness were recorded on 11.10.1989,

13.10.1989 and 20.10.1989. This witness had denled- to

have^ .given those statements and we are..inclmed to behieve

this witness on this point in view of the finding recorded

by us earlier that the Previous Investigation was not

honest. This witness had been staying in Bombay and earning

his livelihood. He had come to Bombay as he did not have

any source of livelihood in Haryana. It was, therefore, not

likely that without any compelling reason he would have left

Bombay and gone to Haryana. Therefore, his evidence that

he-had left Bombay and gone back to Haryanp because of fear

of Manik Patil's gang deserved to be accepted. He was an

eye-witness to the incident. The investigation had

disclosed that he was an eye-witness and that was the reason

why a statement alleged to have been made by him was

recorded by the police on 11.10.1989. The conduct of this

witness was quite natural and there was hardly any

justification for discarding his evidence on the ground that

his version was not believable. This witness knew Suresh

and also the accused. He stated so in his

examination-in-chief. we find hardly anything in the

cross-examination of this witness which would create any

doubt regarding his knowing Suresh and some of the accused

since before the date of the incident He had been working at

Nalasopara railway station for about 10 years. He This

witness has denied to have made any statement on 11.10.1939

or 13.10.1939. Wa will later on point out that naming of

A-4 and A-11 as the murderers of Suresh was a manipulation

done by the gangs of Bhai Thakur and Manik Pstil with the

help of A- 14 to A-17. It is also not factuallyy correct to

say that the witness had on 20.10.1989 identified A-4 and

A-ll as the assailants of Suresh. According to the police

statement this witness had only confirmed that the persons

A-4 and A-ll who were in the police custody were the persons

who had attacked Sunash. Therefore, the learned trial Judge

was not right In rejecting his evidence on these two

grounds. The trial Court also disbelieved his evidence on

the ground that if he really knew the names of the accused

then he should have disclosed the same not only to the

poiice but to other person? with whom he had a talk. He

had nelther disclosed the names to the police nor to his

father with vvhom he had a talk about the incident. The

evidence on this point is also not correctly read by the

trial Court. What this witness has stated in his evidence

is that he knew A-l by name and others by their faces

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According to this witness he did not have any talk with

anyone with respect to the incident except with his father.

It may be that he was afraid of naming any person belonging

to the gang This witness has denied to havs made any

statement on II.10.1989 or 13.10.1989. Wa will later on

point out that naming of A-4 aid A-li as th« murderers

Suresh was a manipulation done by the gangs of Bhai Thakur

and Manik Pstil with the help of A- 14 to A-17. It is also

not factudll correct to say that the witness had on

20.10.19S9 identified A-4 and A-li as the assailants of

Suresh. According to the police statement this witness had

only confirmed that the persons A-4 and A-11 who were in the

police custody were the persons who had attacked Suresh.

Therefore, the learned trial Judge was not right in

rejecting his evidence on these two grounds. The trial

Court also disbelieved his evidence on the ground that if he

really knew the names of the accused then he should have

disclosed the same not only to the police but to other

persons with whom he hed a talk. He had nether disclosed

the names to the police nor to his father with whom he had a

talk about the incident. The evidence on this point is also

not correctly read by the trial Court. What this witness

has stated in his evidence is that he knew A-l byname and

others by their faces According to this witness he did not

have any talk with anyone with respect to the incident

except with his father. It may be that hs was afraid of

naming any person belonging to tha Jang has Q'ven the reason

why he knew Suresh and some of the accused. It was,

therefore, more probable that he knew Suresh and also some

of tha accused including A-l. This witness had no reason to

falsely involve any of the accused. Moreover, being aware

of the existence of Manik Patil's gang and the terror which

they had crested he would not have dared to falsely depose

against them. His presenca on the railway platform on the

date and time of the incident cannot be seriously disputed

as that was the usual thing for him to do. There is nothing

on record to show that he was close to Dube or was under any

influence of the police and for that reason would depose

falsely against A-l, A-3 and A-4.

24. The trial Court also has recorded a finding that

possibly he knew the accused belonging to the gang of Manllc

Patil. His evidence by the trial Court has been disbeliever

mainly on the ground that the description of the assailants

giver) by him in the earlier statements did not tally with

A-l and that on 20.10.1989 he had identified A-4 and A-ll as

the assailants of Suresh, while in the Court he had

identified A-l, A-3, A-4 and Narain (A-10) as the real

assailants of Suresh. We have already pointed out that the

earlier investigaticn was not honest. of Manik Petll as the

murderer and therefore had not disclosed' the name of A-1 as

the murdersr of Su'resh. A-l, A-3 and A-4 were sll Known to

aim and, therefore there was no point in holding a test

identification parade after this witnes had returned from

Haryanac. Therefore, the learned this judge was not right

in rejecting his evidence en :ne groundi that he had not

disclosed names of the accused to anyone and that no test

identification parade was held to test the identity of the

real culprits. We are of the opinion that the trial Court

was not justified in discarding the evidence of this witness

on the ground that it was not believable. His evidence

deserved to be accepted without any independent

corroboration.

25. The prosecution has also relied upon the

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circumstance of discovery of a pistol by A-1 as an

independent circumstance corroborating the evidence of

eye-witnesses. The Panch Withnesstn^s did) not support the

prosecution and it is also difficult to hold that it was

really a case of discovery of pistol by A-l as contemplated

by Section 27 of the Indian Evidence Act. The learned trial

Judge has not relied upon the evidence relating to this

circumstance and we are also of the opinion that the stated

by these actused while retracting their eonfessions was:

that they were obtained by giving threats.Of under undue

influence. It was generally suggested to Shinde in crosses

examination that he had obtained signatures of the accused

on those confessions under undue Influence, coercion,

fraud and mental and physical torture. It was not stated by

the accused nor even suggested in the cross-examination of

Shinde that particular type of physical or-mental torture or

coercion was caused to the accused or in which rnanner-thay

were defrauded or what undue 'influence was exersed upon

.them. Only suggestion that was made to the witneeses was

that whiie recording the confessions he told them that he

was Superintendent of Police and he had-stated so in order

to impress the accused. In our opinion Shinde ha,ddone

nothing wrong In disclosing his identity as he was really

required to do so before recording the confessions. At this

stage we will refer to some of the admissions and statements

made by Shinde in his cross-examination. He admitted that

he had felt that it was unfair on his part to record the

confessions as he was supervising the investigation. He

also admitted that he was not aware of the statutory

requirements of Section 15 of the TADA Act and Rule 15 of

the TADA Rules till he recorded the first confession. He

also admitted that he had inadvertently committed a breach

of the TADA Ruies while recording those confessions. He

also admitted that .while recording the confessions he was

not aware of the.procedure prescribed under Section 164 of

the Criminal Procedure Code for recording confessions and

also the provisions made by the Bombay High Court in its

Criminal Manual. He also admitted that he had put. some

more questions to the accused before recording their

confessions in order to find out that they were willingly

making those confessions but all those questions have not

been recorded by him-in-the confessions. It was really on

the basis of these admissions and some other reasons to be

dealt with hereinafter that the trial Court held the

confessions not admissible, not voluntary and not reliable.

. ' 27. Section 15 of the TADA Act makes certain

confessions made to police officers admissible in the trial

of such person or co-accused, abettor or conspirator for.

an offence under the Act or rules made there under. This.

Court considering its constitutionaiity in Kartar Sinah v.

State of Punjab [(1994) 3 SCO 569] observed that "having,

regard to the legal competence of the legislature to make

the law prescribing a different mode of proof, the

meaningful purpose and object of the legislation, the

gravity of terrorism unieashsd by the terrorists and

disruptionists endangering not only the sovereignty and

integrity of the country but also the normal life of the

citizens, and the reluctance of even the victims as well as

the public in coming forward, at the risk of their to give

evidence" - held that the impugned section cannot be said to

be suffering from any vice of unconstitutionality. Section

15 is thus an important departure from the ordinary law and

must. receive that interpretation which would achieve the

object of that provision and not frustrate or truncate it.

Interpreting the said provision this Court in Statethrough

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Superintendent of police,CBI/SIT etc.. V. Nalini & Ors.

(popularly known as Rajiv Gandhi Murder case), this Court

has held that a confession recorded under Section IF of the

TADA Act is to be considered as a substantive piece of

evidence not only against the maker of, it but also against

its co-accused. There was difference of opinion amongst the

three learned Judges who decided that case regarding the

evidentiary value of such a confession against the

co-accused is tried in the same case. Wadhwa,J. observed

that what weight snould be attached to such a confession is

a matter of discretion of the Court and as a matter of

prudence the Court may look for some corroboration before

relying upon such confession against the co-accused.

Quadri,J. held that the rule of prudence would require that

the Court should examine the same with great care and should

not be relied upon unless it is corroborated generally by

other evidence on record. Thomas, J. held that "Thus the

established position which gained ground for a very long

time is that while a confession is substantive evidence

against ita maker it cannot be used as substantive evidence

against another person even if the latter is a co- accused,

but it can beused as a piece of corroborative material to

support other substantive evidence." Relying upon the

decision of this Court in Kaipnath Rai v. State [(1997)

8SCC 732], it was submitted by the learned counsel for the

respondents that even a confession made admissible under

Section 15 of the TADA Act can be used as against the co-

accused only in the same manner and subject to the same

conditions as stipulated .under Section 30 of the Evidence

Act. An observation to the same effect is to be found in

paragraph 75 of the judgement. In fact no such point fell

for decision in that case and it appears to be a passing

observation only. In view of the decision of this Court in

NaUni's case the said observation can now be regarded as

correct position of law. The correct legal position Is that

the confession recorded under Saction 15 of the TADA Act is

a substantive piece of evidence and can be. used aoainst a

co -accused also otherwise held to be admissilbie voluntary

and believable.

28. The confessions have been held inadmissible

mainly on two grounds. The first ground given by the

learned trial Judge is that the power under Section 15 of

the TADA Act was exercised either malafide or without proper

application of mind. The second ground on which they are

held inadmissible is that they were recorded in breach of

Rules 15(2) and 15(3) of the TADA Rules and also in breach

of the requirements' of Section 164 and the High Court

Criminal .Manual. The learned trial Judge held that the

TADA Act was applied in -this case without any

justification. The permission was granted in. that behalf

without any application of mind. According to the trial

Court there was material on the basis of which TADA Act

could have been invoked at that stage and that most probably

the said Act Was invoked in order to defeat the ball

application filed by two accused in the High Court. In our

opinion the trial Court.was wrong in taking this view. We

have already pointed out earlier that Deshnukh) had

collected enough materil on the basis or which reasonable

satisfaction could have been arrived at that the acts

committed by the two gangs were terrorist acts. It is no

doubt true that it was wrongly reported by Deshm.mukh that

Section 5 was also applicable in this case and that without

proper verification sanction was granted to proceed under

that section also. The applicability of Section 5 depended

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upon existence of a requirsite notification by the State

Government. It was wrongly reported by PI Deshmukh in his

report that such a notification was issued and relying upon

his statement the higher officer had given the sanction.

Merely on this ground it cannot be said that Shinde has

exercised the power under Se-':t'ion 15 of the TADA Act mala

fide. The learned trial Judge has also held that it was not

fair on the part of Shinde to record the concessions as he

was also supervising the investigation. Shinde has clearly

stated in his evidence that he had made attempts to find out

if any other Superintendent of Police was available for

recording the confessions and as others had declined to

oblige him he 'had no other option but t'o record them. We

see no illegality or impropriety in Shinde recording the

confessions even though he was supervising the

investigation. One more flimsy reason given by the trial

Court for holding that the power under Section 15 was

exercised male fide is that the accused making the

confessions were not told that they have been recorded under

tne TADA Act. No such grievance was made by the accused in

their statement under Section 313. On the other hand, it

appears from the confessions themselves that the accused

were made aware of the fact that those confessions were

recorded under the TADA Act.

29. The learned trial Judge has held the confessions

Inadmissible on the ground that they have been recorded in

breach of Rules 15(2) and 15(3) of the TADA Rules. The

rules read as under:

S.15(2). The police officer shall before recording

any confession under sub- section. (1), explain to the

person making it that he is not bound to make a confession

and that, if he does so, It may be used as evidence against

him and such police officer shall not record any such

confession unless upon questioning the person making it, he

has reason to believe that it is being made voluntarily."

"R.15(3). Tne confession shall, if it is in writing,

be - (a) signed by tha person who makes the confession; and

(b) by the police officer who shall also certify under

his own hand that such confession was taken in his presence

and recorded by him and that the record contains a full and

true account of the confession made by the person and .such

police officer shall make a memorandum at the end of the

confession to the follHowing effect.'-

"I have explained to (name) that he is not bound to

make a confession and that, if he does so, any confession he

may make may be used as evidence against him and, I believe

that this confession was voluntarily made.. lt was taken in

my presence and hearing and recorded by me and was read over

to the person making it and admitted by mm to be correct,

and it contains a full and true account of the statement

made by him.

Sd/- Police Officer."

Relying on sub-rule 2 of Rule 15 it was contended on

behalf of the respondents that: the notice officer Is

required to explain to the person making confession that he

is not bound to make it and that if he makes it it can be

used agsinst him as evidence. The said provision also

requires that he should question the person making it in

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order to assure him that he is making it voluntarily. It

was submitted by Mr. Kotwal, learned counsel appearing for

some of the respondents that both these things are required

to be done 'before recording' any confession. When a

confession is recorded in two parts - the preliminary part

containing record of how and for what the person was

forwarded and the questions and answers put to him for

ascertaining his voluntary willingness to make a confession

even after being told that the confession may be used

against his as evidence and the second part which contains

the actual confessional statement it is the second part

which has to be regarded the confessional statement and not

the preliminary part. Therefore, the obligation to explain

and ascertain is to be performed .vhile recording the real

confessional part and doing so earlier when the preliminary

part Is recorded cannot be regarded proper compliance of the

requirement of Rule 15 (2). The police officer must explain

and give the statutory warning before recording the actual

confessional part and it is at that point of time that he

has to ascertain by questioning the person making it that he

is making the confession voluntarily. He submitted that the

confessional statements were recorded in this case in two

parts and while recording the second part no questions were

asked to the accused to ascertain whether he was making the

confession voluntarily. He also submitted that while

recording the second part no Warning was given to the

accused that he was not bound to make the confession and

that if he made it, then it can be used against him.

30. Neither Section 15 nor Rule 15 contemption

recording of confessional statement in two parte or giving

time. to the person making a confession to think over and

reconsider whether he still wants to make it in spite of

being told that ha his not bound to make it and that it can

be used against him. If in order to be assured that the

person concerned makes the confession willingly and

voluntarily the recording officer gives him some time to

think over and for that reason records the confessional

statement in two parts, then they cannot be regarded as two

independent and separate statements. The second part being

in continuation of the first part both the parts. have to

be treated as one confessional statement. If the recording

police officer feels assured after giving the statutory

warning that the person who wants' to make a confession is

doing so voluntarily he may not give any time for

reconsideration and in that case there would be only one

continuous statement Therefore, the contention that when the

confession is recorded in two parts, only the second

part-can be regarded as. the confession and while recording

the second part the police officer should give the statutory

warning ana and ascertain if the person concerned is making

it voluntarily, cannot be accepted. The requirement of law

is that before recording the confession the police officer

should ascertain by putting questions to the maker of it

that he is making the confession voluntarily and he *,

should also explain to him that he is not bound to make the

confession and that if he makes it that can be used against

him as evidence. In this case DSP Shinde had put questions

to each of the accused who was brought before him to

ascertain if he was willing to make a confession voluntarily

and had also given the statutory warning to him on that day.

Even after the accused had shown his willingness to make a

confession Shinde had given him time not exceeding 48 hours

to think over his readiness to make the confession. When

the accused was brought to him again he had again

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ascertained if he was still ready and willing to give a

statement. He had also asked him if he was making it under

any pressure or coercion or threat. Only after the accued

had replied sn negative he had told the accused to say

whatever he wanted to state about Suresh Dube's murder. In

view of these facts and circumstances it is not possible to

uphold the finding recorded by the trial Court and to accept

the contention raised on behalf of the respondents that

while recording the confessions of the accused Shinde had

committed a breach of Rule 15(2).

31. As regards the breach of Rule 15(3) it has been

held that Shinde tdid not write the certificates and the

memorandums "'' in the same form and terms as are prescribed

by that rule. It was submitted by the learned counsel for

the respondents that the certificates and memorandums have

not been recorded by Shinde in identical terms and as Rule

15 is held mandatory the trial Court was right in holding

them inadmissible for non- compliance with that mandatory

requirement. Therefore, the question to be considered is

whether the certificate and ' memorandum are required to be

written by that rule in the same form and terms. What Rule

15(3)(b) requires is that the police " officer-should

certify under his own hand that "such confession'"' was

taken in.his presence end recorded by him and that the

record contains a full and true account of the confession

made by the' person". According to that rule the memorandum

should be to the following effect:

"I have explained to (name) that he is not bound to

make a confession and that; it he does so, any confession

he may make may be used as evidence against him and I

belleve that this confession was voluntarily made. It was

taken in my presence and hearing and recorded by me and was

read over to the person making it and admitted by him to be

correct, and it contains a full and true account of the

statement made by him."

Writing the certificate and making the memorandum are

thus made mandatory to prove that the accused was explained

that he was not bound to make a confession and that if he

made it it can ba used against him as evidence, that the

confession was voluntary and that it was taken down by the

police officer fully and correctly. These matters are not

left to be proved by oral. evidence atone. The requirement

of rule is preparation of contemporaneous record regarding

the manner of recording the conf ssion in presence of the

person making tt. Though giving cf the statutory warning

ascertaining voluntariness of the contession and preparation

of a contemporaneous record in presence of the person making

the confession are mandatory requirements of that rule, we

see no good reason why the form and the words of the

certificate and memorandum should also be held mendatorry.

What are the mandatory requirements of a provision cannot be

decided by overlooking the object of that provision. They

need not go beyond the purpose sought to be achieved. The

purpose of the provision is to see that all frmalities are

performed by the recording off:-:c-' ^nself and by- others

to ensure full compliance of the procedure and seriousness

of recording a confession. We fall to appreciate how any

departure from the form or the words can adversely affect

the object of the provision or the person making the

confession so long as the court is able to conclude that the

requirements have been substantially complied with. No

public . purpose is likely to be achieved by holding that

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the certificate and memorandum should be in the same form

and also in the "same terms are to be found in Rule

l5(3)(b). We fail to appreciate how sanctity of the

confession would get adversely affected merely because the

certificate and memorandum are not separately written but

are mixed up or because different words conveying the

samething as is required are used by the -recording officer.

We hold that the trial Court committed an error of law in

holding that because the certificates and mernorandums are

not in the same form and words they must be regarded as

inadmissible. Having gone through the certificates and the

memorandums made by Shinde at the end of the confessions

what we find Is that he had mixed up what is retired .to be

stated in the certificate and what is required to be stated

in the memorandum. He has stated in each of the

certificates and the memorandums that he had ascertained

that the accused was making the confession willingly and

voluntarily and that he was under no pressure or enticement.

It is further stated therein that he had recorded the

confession in his own hand-writing (except in case of A-7

whose confession was recorded with the help of a writer).

He has also stated that it was recorded as per the say of

the accused, that it was read over to the accused

completely, that the accused had personally read it, that he

had ascertained thereafter that it was recorded as per his

say and that the confession was taken in his presence and

recorded by him. It is true that he has not specifically

stated therein that the record contains 'a full and true

account of the confession made'. The very fact that he had

recorded the confession in his own hand-writing would imply

that it was recorded in his presence and was recorded by

him. So also when he stated in the certificates and

memorandums that the confession was recorded as per the say

of the accused, that it was read over to him fully, that the

accused himself personally read it and that he had

ascertained that 't was recorded as per his say that would

mean that it contains 'a full and true account of the

confession' and that the contents were admitted by the

accused. Thus, while writing the certificats and the

memorandum what Shinde has done is to mix up the two and use

his own words to state what he had done. Only thing that we

find missing therein is a statement to the effect that he

had explained to the accused that he was not bound to make a

confession and that if he did so the confession might be

used as evidence against him. Such a statement instead of

appearing at the end of the confession in the memorandum

appears in the earlier part of the confession in the

question and answer form. Each of the accused making the

confession was explained about his right not to make the

confession and the danger of its being used against him as

evidence. That statement appears In the body of the

confession but not at the end of it. Can the confession be

regarded as not in-conformity with Rule 15(3)(b) only for

that reason? We find no good reason to hoid like that. We

hold that the triat Court was wrong in holding that there

was a breach of Rule 15(3) and, therefore, the confessions

were inadmissible and bad. ,-. - /..

32. It was next submiittsd that though Section 164

Cr.P.C. does not strictly apply to confessions recorded

under Section 15 of 7.^^ A"t, the provisions contained in

Section 15(2) of TADA Act and 162 (2) and 164(4} of Cr.P.C.

are similar and that would imply that the requirements of

law regarding the procedure for recording a confession are

the same. Both the provisions require that before recording

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confessions the accused must be told that he is not bound to

make a confession and that if he makes it then it can be

used as .., evidence against him. Both these provisions

require that before ,- recording the confession the

recording officer has to question .. the accused in order

to satisfy himself that he is making the confession

voluntarily and after recording it to issue a certificate

and memorandum to the effect that the accused was explained

about his right to be informed that he was not bound to make

-;:' -;K. --q..-.-, -- - P^^ the confession and that it

could be used against him, that he believed that the

confession was made voluntarily, that it was , taken down

in his presence and was read over to him, that it was

admitted as correct by him and that it contains a full and

true account of the statement made him. It was, therefore,

submitted that the guidelines issued by the High Court for

recording a confession under Section 164 Cr.P.C. are also

required to be followed by the police officer recording a

confession under the TADA Act. Otherwise a situation may

arise where in the same trial there may be a confession of

an accused recorder by a Magistrate without following the

guidellnes contained in the High' Court Manual and a

confession made by another accused and recorded by a police

officer under the TADA Act who has not followed these

guidelines while the one recorded by the Magistrate may not

bs recorded as evidence the 'other one will be treated as

evidence and can be used against him. in the aliternative,

it was submitted that even if it is held that the guidelines

issued under Section 164 Cr.P.C. by the High Court are not

'required to ba followed while recording a confession

undersection 15 of TADA Act at least the well recognised

principles pointed out by this Court in Kartar Singh's case

(supra) are required to be followed. The said guidelines

have been suggested by this Court as well recognised

principles of fairness to be followed to ensure that the

confession obtained in the pre-indictment interrogation by a

police 'officer not lower in rank than a Superintendent of

Police is not' tainted with any vice. What is missed by the

learned counsel is that while recommending those guidelines

it was made clear by this Court that it is really for the

Court trying the offence to decide the question of

admissibllity or reliability of a confession by Using its

judicial wisdom, from what has been observed in the said'

decision it does not follow that if the suggested guidelines

are not followed then the confession must be discarded as

inadmissible or bad on that score or on the ground that it

Is not in confirmity with Section 15(2) of the TADA Act and

Rule 15 of the TADA Rules. The police officer recording a

confession under Secion 15 is really pot bound to follow any

other procedure. The rules or the guidelines framed by the

Bombay High Court for recording a confession by a Magistrate

under Section 164 Cr.P.C. do not by themselves apply to

recording of a confession under Section 15 of the TADA Act.

Therefore merely because some of those guidelines were not

followed while recording the confessions it cannot for that

reason be held that the said confessions have lost their

evidentiary value. If while recording the confessions

Shinde had followed all those guidelines also then that

would have been a circumstance helpful in infering that the

confessions were made after full understanding and

voluntarily. In this case there is nothing on record to

show, except that the confessions were recorded by Shinde in

police station, that they were not recorded in free

atmosphere. No other person was allowed to remain present

at that time and ail the accussed were given time to

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reconsider their willingness. After they were produced

again Shinde had ascertained whether they were still willing

to make confessions. All- the accused were previously toid

that they were not bound to make a confession. Each one of

them was warned that if he made a confession then it could

be used against him.

33. ' Shinde had tried to ascertain if any threat or

inducement was given to them or whether they were ill

treated or pressurized. Alt the accused had categorically

stated that no such thing had happened. From the answers

given by the accused it can be said that Shinde had good

reason to believe that the accused were , making

confessional statements voluntarily. In his evidence also

he has stated so and nothing has been brought out in his

cross examination from which It can be said that he was not

so satisfied or that he did not really believe that the

confessions were made by the accused voluntarily. The..

learned trial Judge held the confessions not voluntary as he

was of the view that A-l to A-8 and A-ll were hardened

criminals and it was not believabla that they would have one

after the other shown their willingness, to make

confessions. It was not even the case of the accused that

they * , were nottaken to Shinde for recording their

confessions. The only suggestion that was made in his

cross-examination was that he had obtained those confessions

after exerting influence, coercion and physical and mental

torture. We have already pointed out earlier that in

absence of any specific act suggested by the defence it Is

not possible to accept the belated allegation made by those

accused that their confessions were obtained In that manner.

On careful consideration of the evidence of PI Deshmukh and

DSP Shinde, we find that all those accused had made their

confessions voluntarily. The confessions also receive

independent corroboration on material points from the

evidence of the two eye-witnesses and also from the evidence

of P.Ws. I to 5. We have, therefore, no hesitation in

holding that they are true and reliable and can form a iafe

basis for conviction of those respondents/accused who have

admitted to have taken part in the murder of Suresh and in

commission of terrorist acts.

34. A-1 in his confession (Exts. 571 and 571-A) has

admitted that he was a member of the gang of Manik Patil.

He has further admitted therein that Manik Patil and his men

were entrusted by Bhai Thakur the job of finishing Suresh

and because they had not done their work quickly, Bhai

Thakur was angry with them. So they were keeping a watch on

Suresh Dube and on the day of the incident he was informed

by one Kalidas Patil that Suresh was on platform No. 2. He

immediately loaded his pistol and along with A-2 to A-5 and

Narain Gouda went to the railway station. Suresh was seen

reading a newspaper and another person with Him was

'standing nearby and getting his shoes polished. He crossed

him and went ahead and also did Namaskar. As there were

many persons near the book-stall at that point of time he

went ahead on the platform and again returned near that

book-stall. He then took out the pistol from his pocket and

fired seven shots at Suresh. He has also stated in his

confession how he and others thereafter ran away and what he

and others did thereafter. A-2, A-3 and A-4 in their

confessional statements (Exts. 578 and 578-A, 563 and 563-A

and 584 and 584-A respectively) have also stated that Manik

Seth had given Instructions to Narendra (A-l) to finish

Suresh and they were told to accompany Narendra whenever

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Narendra called them for help. They have admitted that on

being told by A-l that "Suresh Dube has come at Nalasopara

railway station. Let us all go", they went to the railway

platform along with A-l. They have all stated that Narendra

fired shots and after Suresh had collapsed on the platform

they had run away. A-5 has also admitted in his confession

that he had gone to the railway platform running aiong with

A-l to help him as decided earlier All of them have clearly

admitted that the murder of Suresh was committed on

instructions of Manik Patil (A-6) and Bhai Thakur. A-6 also

confessed that he was the leader of the gang and that as

decided by Bhaii Thakur, Don (Pendari) was to finished by

the men of Bhai Thakur and they were to finish Dube.

Therefore, A-l and his boys were keeping a watch upon

movements of Suresh and he had instructed A-l and his boys

to finish Suresh as soon as possible. So far as

participation of A-l to A-4 in the murder of Suresh is

concerned the confessions stand corroborated by the evidence

of the two eye-witnesses. The confessions of A-5 and A-6

being substantive evidence are sufficient for considering

them and they also receive corroboration from the

confessions of A-l to A-4 and also receive genera'

corroboration as regards the other illegai activities

committed by them from the evidence of P.Ws. I to 5 and

those withness examined by the prosecution to prove that

they were the victims of some of the terrorist acts

committed by Thakur and Manik Patil. Therefore, relying

upon the .<-..^'on of A-l to A-6 and the evidence of the

two any witnesses Amanath and 0m Prakash, we hold that

Suresh was k'illed by A-1.~-flring shots from his pi'stol

and- that was done in prosecution of the object of the

larger conspiracy hatched by Bhai Thakur, Manik Patii and

some members of their gangs and the unlawful assembly

consisting of A-l to A-6 and some others. We, therefore,

hold A-l gulity under Section 302 I.P.C. and A-2 to A-6

under Section 302 read with Sections 120 B and 149 I.P.C.

We may state that the finding recorded by tha trial Court

that the death of Suresh was homicidal and that he died of

the injuries caused to him by the bullets with which he was

hit has not been questioned before us.

35. To prove the terrorist acts committed by the

gangs of Bhai Tnakui and Manik Patil, the prosecution had

examined some police officers and some others who were the

victims of the to rorist acts. The police officers examined

by the prosecution were PI Tadavi (P.W.68), ASI Paradkar (P.

W. 6Q), PSI Ram Krishna (P.W.70), SDPO Deshmukh (P.W.71),

DIG Suradaka'- (P.W.75}. DGP Baraokar (P.W.77) and ACP

Vasant Pagare (P.W.90). PI Tadavi (P.W.68) was attached «-o

the Virar police station between 9.4.1985 and 24.1.1986. He

has deposed that during that period he had found the three

gangs operating in the area under the police station. They

were the gangs "of Bhal Thakur. Nizam and Karu. Bhai

Thakur's gang was and stay with PI Kukdolkar and both of

them used to car Prashant Tandel (A-8) to see them. He

admitted that he had not taken any, action against-any of

these gangs nor he had suspected anything wrong or improper

because of those meetings. He denied that he was deposing

falsely against the accused at the instance of Deshmukh.

Ram Krishna Rengunthawar (P.W.70) was a senior PSI of Virar

police station from, 17.5.1981 to 15.8.1982. He has deposed

that during that period he had registered three offences

against Bhai Thakur. ' In 1984 he was attached to CID

Crime. Out of those three cases two cases were transferred

to CID branch and in the third case the accused were

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acquitted. He stated that the said two cases were

compounded out of fear. But he admitted in his cross-

examination that he had not made any report to any higher

officer in that behalf. Deshmukh (P.W.71) was the SDPO of

the Western Railway between 1.3.1992 and 30.6.1993. He had

no persona' knowledge with respect to the illegal activities

of the two gangs of Bhai Thakur and Manik Patil. But during

the investigation made between 18.5.1992 and 23.9.1992 and

also thereafter he had come to know about their illegal

activities and the terror created by them in the area. He

admitted that he had not recived any complaint against thoso

two gangs for forcibly

36. The prosecution also examined Pushpa Pendhari

(P.W.19), Balram (P.W.34), Kanhaya (P.W.35), Jaffar

(P.VV.40),' Waman (P.W.41), Sakharam (P.W.42), Jsjannath

(P.W. 45), Subhash (P.W.67) and Naaz (P.W .97) to prove

that the gangs of Bhai Thakur and Manik Patil were engaged

in committing terrorist acts. Out of these witnesses P.Ws.

34, 41, 42 and 4^ have not referred to any specific

terrorist act committed by those two gangs. P.W.97 has

deposad about an incident which is beyond the charge period

and, therefore, her evidence was rightly not considered by

the trial Court. P.W.19 has deposed about some acts of the

gangs of Bhai Thakur and Kanik Patil, the rivalry between

Bharat Pendhari and those two gangs and the murder of Bharat

Pendhari on 14.9.1989 but they at the most suggest that

there were gang wars. P.W.25 has deposed that his property

was demanded and threats were given to him by Bhai Thakur

and therefore he had to leave Virar. P.W.26 has also stated

that he was required to sell his land because of threats and

terror of Bhai Thakur. P.W.35 was staying in Virar since

1966. He has deposed that he was assaulted by the men of

Bhai Thakur >n 1984 and, therefore, he shifted to Vasai in

January 1985 and for some time had gone to his native place

in U.P. What was submitted by the learned counsel for the

respondents was that the evidence of these witnesses even if

it is believed it proves commission of illegsl acts

involving Violence but fails short of constituting

'terrorist acts' as contempiated by Section 3 of the TADA

Act. It is no doubt true that the evidence of these

witnesses, except that of P.W.19, is not specific and by

itself may not be regarded as sufficient to prove terrorist

acts but they provide sufficient corroboration to the

admissions made by A-1 to A-6 in their confessional

statements that the gangs of Bhai Thakur and Manik Patil

had created terror in the areas of their operation. We,

therefore, see no reason why relying upon those confessions

and the evidence of these witnesses a finding that A-1 to

A-6 were engaged in committing terrorist acts, cannot be

recorded. A-7 has not confessed in clear terms his

involvement in commission of terrorist acts or in the murder

of Suresh. A-8 and A-11 have also not admitted to have

played any role in the murder of Suresh or in commission of

terrorist acts by Bhai Thakur and Manik Patil, though both

these accused have generally stated in their confessional

statements about the illegal activities committed by those

two gangs. We, therefore, hold A-1 to A-6 guilty under

Section 3 (3) of the TADA Act also.

37. The charge against the police officers A-14 to

A-17 was that as a part of the criminal conspiracy with Bhai

Thakur and his men, they had caused evidence of commission

of the offence to disappear and by that dishonest

investigation have tried to screen the real offenders from

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legal punishment and thereby they have committed offences

punishable under Sections 201, 217 and 218 read with 120-B

I.P.C. They are also charged for the offences punishable

under Sections 3(3) and 3(4) of the TADA Act read with 120-B

I.P.C. Except the confessional statements of the co-accused

there is no other independent evidence to show the

involvement of A-14 to A-17 as alleged. The confessions no

doubt create a strong suspicion that A-14 to A-17 were

maintaining good relations with Bhai Thakur and A-8

(Prashant) and that they had possibly helped Bhai Thakur and

Manik Patil in screening the real offenders. The role which

they played creates a strong suspicion regarding their

connection with the gangs of Bhai Thakur and Manik Patil.

However, we do not think it safe to convict them only on the

basis oft theConfessions of the co-accused. '

38. In the result, these appeals are partly allowed.

The Judgment and the order of acquittal passed by the

learned Judge, Dasignsted Court, Pune in Terrorist Sessions

Case No. 32 of 1993 in favour of respondent Nos. I to 6

(A-1 to A-6) are set aside, Respondent NO. I Narendm Bhoir

is convicted under Section -02 I.P.C. and santencad to

suffer imprisonment for life. He is also cenvicted under

Section 25(l)(a) of the Arms Act. and sentenced to suffer

rigorous imprisonment for six months. Respondent Nos. 2 to

6 are convicted under Section 302 read with Section 120-B

and Section 149 I.P.C. and sentenced to suffer imprisonment

for life. Respondent Nos. I to 6 are also convicted under

Section 3(3) of the TADA Act and sentenced to suffer

imprisonment for 10 years. All of them are acquitted of

other charges. Acquittal of the rest of the respondents 1s-

confirmed andappeals against them. ace dismissed.