Supreme Court of India
S.N. DUBE ETC.versusN.B. BHOIR
- Citation
- 2000 INSC 17
- Decided
- 12 January 2000
- Disposal
- Dismissed
- Bench
- G T NANAVATI
Holding
Confessions recorded under Section 15 of the TADA Act, when voluntarily made and complying with the essential statutory warning and voluntariness test, are admissible as substantive evidence and may be used against co‑accused, and procedural imperfections in certificates, memoranda, or non‑observance of High Court guidelines do not render them inadmissible.
Summary
The Supreme Court examined the murder of Suresh Dube and the subsequent terrorist‑related conspiracy involving gangs of Bhai Thakur and Manik Patil. The trial court had excluded confessions recorded under Section 15 of the Terrorist and Disruptive Activities (Prevention) Act (TADA) on the ground of procedural irregularities and alleged lack of voluntariness, and had acquitted all accused. The Court held that the confessions were voluntarily made, complied with the essential statutory warnings, and were admissible as substantive evidence even against co‑accused; the exact wording of certificates and memoranda or the non‑application of High Court guidelines for Section 164 recordings did not invalidate them. It also found no malice in the re‑investigation and that the earlier investigation, though flawed, did not render the later investigation oblique. Consequently, A‑1 to A‑6 were convicted under the IPC and TADA, while A‑14 to A‑17 were acquitted for lack of independent evidence.
Issues considered
- The voluntariness and admissibility of confessions recorded under Section 15 of TADA by a police officer supervising the investigation
- Whether the statutory warning and ascertainment of voluntariness must be given separately for each part when a confession is recorded in two parts
- The necessity of exact wording in the certificate and memorandum required by Rule 15(3)(b) of the TADA Rules
- Whether High Court guidelines for recording confessions under Section 164 CrPC apply to confessions under Section 15 of TADA
- The evidentiary value of confessions as substantive evidence and their use against co‑accused
- The impact of the absence of a test identification parade on the reliability of eyewitness identification
- Whether the re‑investigation was conducted with an oblique motive and whether the sanction under TADA was vitiated
- The sufficiency of evidence to convict police officers (A‑14 to A‑17) alleged to have abetted the conspiracy
Legislation cited
- Arms Acts. 25(1)(a)
- Code of Criminal Procedure, 1974s. 164, s. 173(8), s. 313
- Indian Evidence Act, 1872s. 27
- Indian Penal Code, 1860s. 120B, s. 149, s. 201, s. 217, s. 218, s. 25(1)(a), s. 302, s. 307
- TADA Ruless. Rule 15(2), s. Rule 15(3)(b)
- Terrorist and Disruptive Activities (Prevention) Act, 1987s. 15, s. 3(3), s. 3(4)
Subjects
TADAconfession admissibilityvoluntary confessionterrorist actsre‑investigationpolice misconductidentification paradeco‑accused liabilitystatutory warning
Judgment
S.N. DUBE ETC.
...
A
v.
N.B. BHOIR
JANUARY 12, 2000
B
[G.T. NANAVATI AND S.P. KURDCKAR, JJ.j
Terrorist and Disrnptive Activities (Prevention) Act 1987, s. 15. Tmorist
and Disrnptive Activities (Prevention) Rules, Rule 15(2) and (3) and Code
of Criminal Procedure 1974, s. 164-Confessions of accused recorded by same
C police officer who was supervising investigations and without infarming ac-
cused that the statements were being recorded under TADA-Whether
malafide--Held, on facts, no; moreover, accused made no such grievance in
their statement under s. 313 Cr.P.C.
D Mandatory requirement that police officer must explain and give
statutory warning to accused so that confession is voluntary-Whether while
confession is recorded in two parts warnings given while recording first part
will hold good for recording the second part which is the real confes-
sion--Held, yes; the second part being in continuation of the first part both
parts have to be treated as one confe.1sional statement-Further held, the
E requirement of law was that police officer should ascertain voluntariness and
explain to accused that confession could be used against him in evidence--On
facts, there was no breach of rnle 15(2) of TADA Rules.
Police officer mixing up the certificate and memorandum required to
F be made under the mies-Statement regarding voluntariness appearing in the
body of the confession and not at the end of it-Whether the certificates and
memorandum should be in the exact words of Rule 15(3)(bj--Held, no
mandatory-Though giving of statutory warning ascertaining voluntariness
alld preparation of contemporaneous r.:cord is mandatory, the words of the
G certificate and memorandum are not-There was no violation of rnle
15(3/(b).
Whether guidelines issued by High Court for recording confessions u/s.
164 Cr.P.C. apply to those recorded u/s. 15 TADA-Held, no-Merely because
some guidelines were not followed Rule does not deprive con/essions of their
H evidentiary value.
200
S.N. DUB!:<. v. N.B. BHOIR 201
... Admissibility of confession by accused under s. 15 TADA-Held, is a A
substantive piece of evidence and can be used against a co-accused also
otherwise held to be voluntary and believable-Further held, on facts, the
con/essions of the accused 1 to 6 were voluntary and reliable and could farm
a safe basis for convicting them.
Test Identification Parade-Witnesses identifying accused for first time B
in court during trial three years after a"est of accused-Held, not holding
T.l.P. does diminish the evidentiary value of the identification of the accused
in court but is co"oborated by other evidence-Evidence Act 1872, s. 9.
Code of Criminal Procedure 1974, s. 173(8)- -Criminal investiga-
tion-Case initially investigated dishonestly-Despite five empty cartridges c
being recovered from spot indicating that weapon was pistol, a revolver was
seized as the weapon of offence-Two persons sent up for trial and after
obtaining bail they absconded-Trial not proceeded with-Later another
police officer re-investigating and finding that acts were of te"orist nature
attracting TADA-Trial court holding that re- investigation was done with
D
oblique motive-Held, on facts, trial court e"ed in coming to such con-
clusio~There wert doubts about the honesty of the first investigation and
the subsequent investigation was not done with any oblique motive.
Te"orist and Dtsmptive Activities (Prevention) Act 1987, s.3(3)-Ter-
rorist acts-<;ang warfare O"er grabbing of lmui-Confessions of A I to A ·6 E
revealing commission r;J ccrrmist acts by ga11gs lo which Chey belonged-Held,
although there was no specific evidence regarding le"orist acts, con/essions of
A-1 toA-6 co"oborated by witnesses would prove A-I to A-6 had committed
tmorist acts attracting s. 3(3) TADA.
The gang of MP had accepted supremacy of the gang of BT and both F
the gangs were cooperating with each other in committing terrorist acts
and in carrying on the illegal activities of land grabbing. In September,
1989, it was decided between the two gangs that BT would liquidate the
-.. person whom the gang of MP wanted to eliminate and MP gang would do
away with SD.
G
On October 9, 1989 one of the members of the MP gang saw SD going
towards the Nalasopara railway station and after locating his position
immediately rushed to the nearby hotel belonging to MP and informed
other members of the gang including A-1. So A-1 and some other members
of the gang who were present there rushed to the platform. A-1 was armed H
202 SUPREME COURT REPORTS (2000] 1 S.C.R.
A with a pistol. Other members of the gang were also variously armed. A-I ...
found SD standing near the newspaper stall and fired three shots from a
close range. SD got injured and fell down on the platform. A-1 went near
him and fired one more shot. After thus killing SD all the assailants ran
away from that place.
B Within a very short time Police Inspector (Pl) K, who was in-charge
of Vasai Police Station, went to the house of the Dube brothers (relatives
of deceased SD), and tried to persuade them not to involve BT and then
threatened by stating that if they did, then the consequences would be
serious. The Dube brothers therefore did not lodge any complaint. lnves-
C tigation was not made lionestly. Some of the empties found from the
platform were substituted or tampered with. At the instance of K and N
A-4 and A-11 were arrested as the persons responsible for the murder of
SD. A revolver was recovered at the instance of A-4 as the weapon with
which SD was killed. Those two accused were then charge- sheeted and put
D up for trial. Hearing of the said case could not proceed further as both the
accused were shown absconding aller they were released on bail. No effort
was made by the police for getting warrants issued for securing their
presence before the court.
On February 19, 1992 the police si:t-up at the Vasai police station
E and Palghar railway police station, within whose jurisdiction the gangs
were operating, had changed. DIG S of the Railways, during hb visit to·
Palghar railway police station, had an occasion to look into the investiga-
tion papers relating to the murder of SD. He became suspicious about
honesty of the investigation and identity of the real assailants. He, there-
F fore, re-opened the case on a written complaint given by Dube brothers on
May 18, 1995. S forwarded it to DSP D for further enquiry. The enquiries
made by him and PI Shinde revealed that the gangs of BT and MP were
committing terrorist acts in Nalasopara and surrounding areas, they had
created a reign of terror and that SD was killed by a person belonging to
the gang of MP at the instance of BT. D, therefore, submitted a report
G under s. 173(8) of the Code of Criminal Procedure to the Sessions Court
at Thane and sought permission for re-investigation of the case. Permis-
sion was granted.
At the conclusion of the investigations, charge sheets were laid
H against the accused A-1 to A-13 for offences under ss. 120B, 201, 217, 218,
S.K DUBE v. N.B. SHOW. 203
302 read with ss. 149, 307 read with s. 149 of Indian Penal Code (IPC), ss. A
3, 3(3) and 3(4) of TADA Act ands. 25(1)(a) of the Arms Act. A-14 to A-17
were charged under ss. 201, 217, 218 read with s.120B IPC. Theywere also
charged under ss. 3(3) and 3(4) of the TADA Act read with s. 120B IPC.
The prosecution mainly relied on the confessions made u/s. 15 TADA
by A-1 to A-6 and recorded by Pl Shinde as well as the evidence of eye B
witnesses PWs 48 and 49. The trial Court found many faults with the
confessions and held them inadmissible in evidence. It also held that they
were not voluntarily made. It disbelieved the witnesses examined to prove
the terrorist acts 011 the ground that their evidence was too general and
vague and they were not independent and responsible members of the C
locality. The evidence of the two eye witnesses was disbelieved on the ground
that these were material improvements and contradictions in their
evidence. Identification of the accused in the court by these two eye wit-
nesses was after a long time and no previous test identification parade was
held. For all these reasons the trial court held that the prosecution case
againstA-1 to A-13 was not proved. As regards A-14 to A-17 the trial Court D
held that the sanction given for their prosecution under s. 3(1) of TADA
was vitiated on account of non-application of mind. It also held that the
reinvestigation was done with an oblique motive. Thus the case against A-14
to A-17 was also held not proved.
The complainm•t and the State "ppealetl to this Com t. E
Partly allowing the appeals, this Court
HELD: 1.1. A-1 was guilty under s. 302 I.P.C. and A-2 to A-6 under
Section 302 read with Sections 120-B and 149 l.P.C. A-1 to A-6 were also
guilty under s. 3(3) TADA Act. (245-E-F] F
1.2. The confession recorded under s. 15 TADA Act was a substantive
piece of evidence and could be used against a co- accused also otherwise
held to be admissible, voluntary and believable. In the instant case, the
confessions of A-1 to A-6 were voluntarily made, true and reliable and G
received independent corroborration on material points from evidence of
two eye witnesses as well as that of PWs 1 to 5. The confession could form
Ii safe basis for convicting A-1 to A-6. [232-G; 240-G-H]
Kartar Singh v. State of Punjab, [1994] 2 SCC 568; State v. Nalini and
Kalpnath Rai v. State, (1997] 8 SCC 732, referred to. H
204 SUPREME COGRT REPORTS (20GO) l S.C.R.
A 1.3. There was no illegality or impropriety in Pl Shinde recording
the confessions even though he was supervising the investigation. Shinde
had clearly stated in his evidence that ~e 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
B option but to record them. 233-E-F]
1.4. Shinde had committed no breach of Rule 15(2) while recording
the confessions of the accused. The requirement of law was that before
recording the confession the police officer should ascertain by putting
questions to the maker of it that he was making the confession voluntarily
C 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 sued against him as evidence.
(236-C; 235-G-H]
1.5. Neither s. 15 TADA nor Rule 15 contemplated recording the
confession in two parts. The second part being in continuation of the first
D part, both parts had to be treated as one confessional statement (235-D; I<']
1.6. 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 and
then ascertain if the person concerned b making it voluntarily, could not
E be accepted. (235-G]
1.7. The trial court was wrong in holding that there was a breach of
Rule 15 (3)(b) and therefore, the confessions were inadmissible and bad.
Though giving of the statutory warning ascertaining voluntariness of the
confession and preparation of a contemporaneous record in presence of
F the person making the confession were mandatory requirements of that
rule, the form and the words of the certificate and memorandum were not
mandatory. What were the mandatory requirements of a provision could
not be decided by overlooking the object of the provision. [238-E; 237-B-C]
G 1.8. The sanctity of the confession did not get adversely affected
merely because the certificate and memorandum were not separately writ-
ten but were mixed up or because different words conveying the same thing·
was used by the recording officer. (237-EJ
1.9. The rules or the guidelines framed by the Bombay High Court for
H recording a confession by a Magistrate under Section 164 Cr.P.C. did not by
S.N. DUBE v. N.R BHOIR 205
themselves apply to recording 1Jf a confession under s. 15 of the TADA Act. A
Merely because some of those guidelines were not followed while recording
the confession or on the ground that it is not in conformity with s. 15(2) of
the TADA Act and Rule 15 of the TADA Rules did not deprive them of their
evidentiary value. The police officer recording a confession under s. 15 was
really not bound to follow any other procedure. [239-G-H]
B
2. The infirmity of not holding· the test identification parade did
diminish the evidentiary value of the identification of the accused by the
witness. But it stood corroborated by the evidence of another eye witness
and also by the confessions of A-1 to A-4. [226-F]
State of Maharashtra v. Sukhdev Singh, AIR (1992) SC 210 and State
c
v. V.C. Shukla, AIR (1980) SC 1382, referred to.
3.1. A-1 to A-6 are guilty under Section 3 (3) of the TADA Act as well.
Although the evidence of the witnesses, except that of P.W. 19 was not
specific and by itself could not be regarded as sufficient to prove terrorist D
acts but they provided sufficient corroboration to the admissions made by
A-1 to A-6 in their confessional statements that the gangs of BT and MP
had created terror in the areas of their operation. Relying upon those
confessions and the evidence of these witnesses a finding that A-1 to A-6
were engaged in committing terrorist acts, could be recorded. [244-E-H] E
3.2. Apart from the confession statements of the co-accused there
was no other independent evidence to show the involvement of A-14 to A-17
as alleged. Although the confessions did create a strong suspicion that
A-14 to A-17 were maintaining good relations with BT and A-8 and that
they had possibly helped BT and MP in screening the real offenders, it F
would not be safe to convict them only on the basis of the confessions of
the co- accused. [245-B-D]
4.1. The circumstances do create a doubt regarding honesty of the
first investigation. The subsequent investigation made by the police after G
September 1992 was not done with any oblique motive. [221-C]
4.2. The trial Judge was wrong in holding that there was no material
for entertaining any doubt and re-opening the investigation and that it had
been done so with some oblique motive. The complaint does indicate that
the investigation made till then was not honest. Dube brothers, in the H
206 SUPREME COURT REPORTS (200011 S.C.R.
A position in which they were placed at that time, could not have specifically
alleged that the previous investigation was dishonest. From the fact that
in the application made to the Court for permission to re-investigate it was
not stated that the previous investigation was not honest, no inference of
oblique motive could have been legitimately inferred. [215-C-E]
B 4.3. Tbe trial Court grievously erred in holding that TADA was wrong-
ly invoked. The complaint made by Dube brothers and inquiries made by D
and his ofticers disclosed some of the illegal activities committed by the
gangs of BT and MP and the terror created by them in Nalasopara and
surrounding areas. It was on the basis of the examination of several wit-
C nesses and gathering material that he was satisfied that the accused had
committed offences punishable under the TADA Act. [216-B-C; E]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
678 of l 997 Etc.
D From the Judgment and Order dak.d 16.5.97 of the Designated
Court, Pune in Terrorist Sessions Case No. 32 of 1993 with T.S.C. No. 1 of
1996.
Sushi! Kumar, LU. Shah, Raiendra Singh, S.R Chitnis, Bhim Rao
E Naik, \-JS Ganc:sh, B.S. Kntwal, .A .S. Nambiar. R.K Jain, R.D. O.dkar,
" B.M. Naik, V."i. G"npuk, LS. Arun"chat•m, Sanjay Jill.;";, Atul "iharnoa,
U.U. Lalit, S.S. Shindt:, D.M. Nargoikar, T.A. Khan, P. Parmcshwaran,
Manoj God, Shrikant Shivade, G.B. Sathe, Brij Bhushan, Ms. Hemantika
Wahi, Ms. Sumita Hazarika, P.N. Gupta, Rajeev Sharma, Kishan Datta,
T.C. Sharma, Ajay Sharma, Ms. Neclam Sharma, Rupesh Kumar, P.N.
F Parekh, Rahul Roy, D.K. Garg, A.K. Gupta, Ms. Rekha Palli, '.'lischal
Niraj, Manoj Mohite, Ms. Lata Krishnamurthy, P.N. Gupta, S.M. Garg,
Kishan Dutta, R.P. Wadhwani and S.M. Jadhay for the appearing parties.
The Judgment of the Court was delivered by
G G.T. NANAVATI, 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 involv.:d none except two persons, one accompany-
ing the deceased and the other who was at that time polishing shoes of that
H person, have come forward to give evidence against the murderers. One
S.N. DLBE v. N.B. BHOIR(O.T. NANAVATI,J.] 207
Mukesh Ratilal Shah (P.W.13), who was injured by one of the bullets fired A
at that time; has thought it fit not to name 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
B
the Court of the Judge, Designated Court, Pune in Terrorist Sessions Case
No. 32 of 1993 and Terrorist Sessions Case No. l of 1996 (amalgamated
with original TSC No. 32/1993), for the murder of Suresh and for commis·
/ sion 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, C
therefore, acquitted them of all 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 :
D
(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 be-
came a lucratiw business. That abo led to illegal activity of land gnibbing, E
compulsory sales and forcibly taking of posse&sion of lands. Those illegal
activities were carried on by the gangs of Pendhari, Suresh Dube and Bhai
Thakur since 1980. In 1984 Manik Patil'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 bt:tween F
Churchgate (Mumbai) and Virar. Often there were conflicts and fights
between these gangs and because of that one Ram Naresh Chourasiya was
murdered in 1984 and Bharat Pendhari was murdered in 1989. Dubt1
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, G
Dr. Om Prakash Dube (P.W.l) 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 arrd Suresh Dube
continued to look after land development and building activity. All the H
208 SUPREME COURT REPORTS [2000] l S.C.R.
A brothi::rs were residing on the second floor of 'Dube Estates'.
(b) Dube brothers had agreed to purchasi:: one land bearing Survey
No. 110 of Village Achok and some othn lands of nearby placi::s. Bhai
Thakur wanted thos<.: lands and had forcibly taken possession of them. Bhai
Thakur wanted Dube brother~ to transfor Survey No. 110 of Achole to him
B and for that reason had called Suresh Dube at his office in Virar a few
days prior to 9.l0.1'189. As the relations bi::tween Bhai Thakur's gang and
Dube brothers wen.: inimical Surcsh Dube was not allowed to go alone to
Bhai Thakur's offiCl". Dr. Om Prakash had accompanied him. In his offici::
Bhai Thakur, his brother Hitendra Thakur and other associates were \
C present. They had told Suresh Dube to part with that land and also to pay
'haftas' to Bhai Thakur if be and his 'irothcrs wanted to ri::main in
Nalasopara and carry on the land development and building construction
activity. Suresh Dubi:: was even threatened and warned that if he did not
comply with that demand and took any other action, then the members of
D 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 Suri::sh Dube Bhai Thakur and his
associates decided to finish him. On 8.10.1989 a warning was given to him
on telephone that ii hi:: did not transfer that land to Bhai Thakur be would
be finished. On that day at night one Srikand Pandey, who was working
E with Bhai Thakur anJ had soml." contact wirh Surcsh, wc11t to the house of
S urcsh and tricJ to cunvincc him lhat if he·. wankd to ri:;mam alive it was
advisable for him to give up the land and go away to his native place. On
account of this serious threat Suresh and '.!is brothers had decided that
Surcsh should leaVt: Nalasopara and stay at his native place till there was
F danger of 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
G 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
H towards Churchgate (Mumb<ti) side was running late Suresh purchased a
S.N.Dl:BE v. N.B. BHUIR [G.T.NANAVATI,J.j 209
newspaper from a stall on the platform and started reading it. Amarnath A
Tripathi went to a shoe polish wala, who was sitting near that stall, for
gt:tting his shoes polished.
(d) The gang of Xlanik Patil had accepted supermacy of the gang of
Bhai Thakur and both the gangs wer.e cooperating with each otht:r in
committing terrorist acts and in carrying on the illegal activities of land B
grabbing and forcibly purchasing of lands. In September 1989, it was
decided between the two gangs that Bhai Thakur would liquidatt: the
\ person whom the gang of Manik Patil wanted to elirninatt: and that Manik
I
\
Patil's gang would do away with Suresh Dube. Bhai Thakur's gang had
c
already dont: their job hut Manik Patil's gang was not able to finish Suresh.
(
' Bhai Thakur was, then:fore, very angry with Manik Patil's gang and b.ad
sent messages that the work should be finished as early as possible. The
members of Manik Patil's gang were, therefore, keeping a watch over the
house of Suresh Dube. On 9.10.1989 one of the members of the gang saw
Suresh going towards the railway station and after locating his position D
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 wen: 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 E
and then fired three shots from a close range. Suresh got injured and foll
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 all those assailants ran away from that place.
F
(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 also 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 back his brother to their house with tht: help of others. Dr. Om G
Prakash, Dr. Ajmera and Dr. Bindwani, who were present in the Nursing
Home found Sure~h dead.
(f) Within a very short time Pl Kukdolkar, who was in-charge of
Vasai Police Station, went to the house of Dube brothers, and first talked H
210 SUPREME COURT REPORTS (2000] I S.C.R.
A to Dr. Dube (P.W.1) and tried to persuade him not to involve Bhai Thakur
and then threati::ned him by stating that if he involved Bhai Thakur, then
the consequence~ would be serious for him. Thereafter, PSI Padekar,
attached to Palghar Railway Police Station had gone to the house of Dube
brothers and made enquiries about the inddt:nt. Because of the threat
B given by Pl Kukdolkar 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 prepared by PSI Padtkar in present
of PI Kukdolkar on the basis of what was stated by Shyam Sunder (P .W .2) ~
I
and his signature was taken thereon. Police Inspectors Kukdolkar and
Nimbalkar often used to visit the house of Dube brothers and threaten
C them not to disclose the name of Bhai Thakur as he was a strong man and
whoever complained against him was kilkd by him. Investigation W"dS not )
made honestly. Some of the empties found from the platform were sub- \.__
stituted or tampered with. At the instance of Police Inspectors Kurdolkar
and Nimbalkar and Bhai Thakur, Patric {A-4) and Anant Shankar Patil
D (A-11) were arrested as the persons responsible for the murder of Suresh.
A revolver was recovered at the instance of A-4 as the weapon with which
Suresh was killed. Those two accused were then charge-sheeted and put
up for trial before the Sessions Court, Thane in Sessions Case No. 88/91.
Hearing of the said case could not proceed further as both the accused
were shown absconding after they were released on bail and no effort was
E made by the police for getting warrants issued for securing their presence
before the court.
(g) On Ft:bruary 19, 1992 the police set up at the Vasai police station
and Palghar railway police station, within whose jurisdiction those gangs
p 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 Shyam Sunder Dube to know the truth. In
G 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 Pl 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
H brothers on 18.5.1992. Suradkar forwarded it to DSP Deshmukh for further
S.N. DUBE v. N.B. BHOIR [GT NANAVATJ,J.J 211
enquiry. The enquiries made by him and PI Shinde reve.aled that the gangs A
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 bdonging to tho:: gang of Manik Patil at
the instance of Bhai Thakur. Deshmukh, therefore, submitted a n:port
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.
B
Permission was granted. Further investigation made by Mr Deshmukh and
his officers revealed existence of the gangs of Bhai Thakur, Bharat
Pendhari, Surcsh Dube and Manik Patil. It also revealed that Bhai Thakur's
brothers Hitendra Thakur (A-9) and Deepak Thakur, Prashant Rajaram
Tandd (A-8), Istiyak Mukhtyar Khan (A-13) and some others were mem- c
bers of the Bhai Thakur's gang. It also revealed that terrorist acts were
committed by the gangs of Bhai Thakur i;md Manik Patil and that those
two gangs were responsible for the murder of Suresh Dub.:. 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 D
terrorist acts committed by the two gangs, the motive for committing
murder of Suresh Dube, the mannet in which it was committed and how
accused "los. 14 to 17 had helped Bhai Thakur in concealing real offenders.
3. PI Desai (PW 90), who took over the investigation afkr superan-
nuation of Deshmukh on 30.6.1993, submitted a chargcshcet to the Desig- E
nated Court on 27.8.1993 against A-1 to A-11 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-1 to A-13 only as no sanction to prosecute A-14
to A-17 was obtained under the TADA Act. Their case was, therefore,
F
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-1 to Al3 was that between January 1984 G
and December 1989, they had entered into continued criminal conspiracy
to commit terrorist acts by use and/or show of criminal force, fin: arms and
other lethal weapons to extort money, to illegally grab lands bdonging to
others and to create terror amongst the people to achieve the objects of
thdr conspiracy. It was also alleged that in pursuance of the said objects H
212 SUPREME COURT REPORTS [2000] 1 S.C.R.
A they had committt:d various illegal and terrorist acts, the last of which was
the murder of Surcsh Dube and causing hurt to Mukesh Shah. A-1 was
specifically charged for the murder of Suresh Dube and causing injuries to
Mukcsh Shah. Accused Nos. 1- 5, 11, 12, 13, deceased accused Narayan
and absconding accused Sanjay were also charged for having committed
B the murder of Sun:sh in prosecution of the object of their unlawful assemb-
ly. 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 offenders from legal punishment. A-1 to A-13 were also charged for
commission of offences punishable under Sections 120B, 201, 217, 218, 302
C read with Sections 149, 307 read withs. 149 of Indian Penal Code, Sections
3, 3(3) and 3(4) of TADA Act and Section 25(1)(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 l20B of the Indian Penal Code.
D 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.l0. l989. A-15 had also raised the
defence that he was at the Vasai police station till 11.00 A.M. on the date
E of the incident and had reached the place of offence after about 11.30 A.M.
He had merely taken steps for keeping 'bandobast' and was not involved
with the investigation of the case.
6. The prosecution, in order to prove its case regarding existence of
F the two gangs of Bhai Thakur and Manik Patil and th.: terrorist acts
committed by them and the help rendered to them by the police, had
examined Om Prakash (P.WJ), Shyam Sundar (P.W. 2), Naresh (P.W.3),
Pushpa Pondhari (P.W. 19), Sitaram Yadan (P.W. 25), Balararn (P.W.34),
Kanhiya Lal Mishra (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),
G Rubab (P.W.68), Madhukar (P.W.69), Ramkishan (P.W.70), Vasant
(P.W.90), Naaz Asif Patel (P.W.97) and the police officers connected with
the subsequent investigation as witnesses. Tht: prosecution had also heavily
relied upon the confossions stated to have bi:en made by A-1 to A- 8 and
A-11. In order to prove the murder of Surcsh Dube the prosecution had \
\~
H mainly relied upon thi: evidi:nce of the two eye witnesses Amarnath
S.N. DlBE v. N.B. BHOIR '.G.T. NAN'AVATI,J.J 213
Tripathi (P.W. 48) and Om Prakash Brahamania (P.W. 49). Evidence was A
also lt:d to prove that the investigation made by the police prior to Sep-
tembt:r 1992 was not honest. Evidenct: rt:garding discovery of pistol by A-1
and the evidt:ncc of a Ballistic Expert and medical officers and other
formal witnes>t:s was also lt:d.
7. The Trial Court found many faults with the confessions and also B
held tht.:m inadmissible in evidence. It also held that they were not volun-
tarily made. The trial Court disbelievt:d the witnesses examined to prove
the terrorist acts on the ground that their evidence was too general and
vagut: and they were not independent and responsible members of the
locality. The evid1.:nce of two eye witnesses was dis-bdieved on the ground c
that there were material improvements and contradictions in their evidence
and 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 to A-17 the Trial Court held that the
D
sanction given for their prosecution undt:r Section 3(1) of the TADA Act
was vitiated on account of non-application of mind. It also held that the
reinwstigation 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 E
areas was not associated with it. Thus the case against A-14 to A-17 was
also held not proved.
8. Whether tht: earlier investigation was dishonest or the subsequent
re-investigation by Deshmukh and his officers was done with some oblique F
motiw will have to be considt:red first as acceptability of the evidence of
tht witnesses and the confessions would depend upon the answer to that
question. If the tarfo::r investigation was honest as held by the learned trial
Judgc, tht:n the contradictions and improvements found in the evidence of
tht two eyt: witnesscs will assume importance. But if the earlitr investiga-
tion is found to be not honest, then the major ground on which the evidence G
of tht eye witntsses has bt:en disbt:lieved will disappt:ar. If we confirm the
finding of the learned trial Judge that the rt-investigation was madt: with
some obliqut motiw then that would certainly affect evidentiary value of
tht: confessions. Tht: Trial Court hdd tht: investigation by Mr. Deshmukh
and his otlicers motivakd for the following reasons : ( 1) in the application H
214 SL:PREME COURT REPORTS (20COJ l.S.C.R.
A (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 basis of which he could have stakd that the earlier invt:stigation was
faulty and for that reason no good ground was mentiom:d in the application
B for re-investigation. (3) there was no reason for Debhmukh to take posses-
sion of the Mudemmal articles on the wry day on which application for
re-investigation was made as there was no material before him to show that
an unconnected weapon was seized by the earlier investigating officer. (4)
After obtaining the sealed packet of Muddamal empties and bullets from
the court for getting them examined by a ballistic expert he first opened it
C and then again r~sealed it for no reaMJD except for tampering with the
Mudammal articles, particularly the thrt;i;; bullets recovered from the body
of Suresh Dube. (5) even though there was no material before Deshmukh
on the basis of which he could have lawfully invoked the provisions of
TADA on 28.9.1992 very probably he did so with a view to defoat the
D 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 murdt:r of his brother, the entirt; theory got
changed during the subst:quent re-inwstigation.
9. Suradakar (P.W.75) who took ever as DIG, Railways, Bombay in
E August 1991 had been to Palghar Railway Police Station in February 1992.
While examining case papers rdating to the murder of Suresh Dube he felt
some doubt about the investigation. Therefore, he had dirc::cted his subor-
dinate 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
F 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 t'.1at he would look into the matter
and take appropriate action they again 'Ile! him after ..bout 15 days and
gave further details regarding the murdt:r of Suresh. He had, therefore,
advist:d them to give a complaint in writing and pursuant thereto a com-
G plaint (Ext. 237) dakd 185. 1992 was given to him This part of his evidence
has ahnost rt:mained unchallenged .in cross-examination. Only suggestion
made to the witntcss was that afkr Dub1:• had met him he got the inves-
tigation of the ca;e re-opened in order to help Dube brothers. No material
has been brought on n;cord tu inler that Suradakar was in any manner
H interested in Dubes or had any other n::asun to help Dubes by falsely
SX Dt:BE v. N.B. BHOIR [G.T. NANAVATI, J.j 215
i.nvolving Bhai Thakur or Manik Patil or their men. The doubt felt by him A
regarding honesty of the inwstigation was justified because even though
five empties wen; recovered from the place of offoncc a revolver was seized
as the weapon of offence. A police officer ewn with littie 1;;xperience would
have rt:alised that the murder was committt:d not by using a rt:volvi.:r but
with a pistol. The !t:arned trial Judge was, therefore, wrong in holding that
there was no material bdore Suradakar for entertaining any doubt and
8
re-opening the investigation and that he had done so with some oblique
motive.
lO. The Trial Court was also not right in holding that Suradakar got
re-investigation done with some oblique motive because in the complaint C
(Ext. 237) it was not specifically statt:d that the investigation made by the
police officers ti!! 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 nut have specifically alleged that the previous investiga· D
tion was dis-honest. So also from the fact that in the application made to
, the Court for permission to re-investigate it was not stated that the previous
investigation was not honest, no inference of oblique motive could have
been !egitimately inferred. The application did refer to the complaint made
by Dube brothers. Without further investigation no charge of dis-honesty
could have been levelled against the police officers associated with earlier E
inwstigation 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.
11. The adverse inference drawn by the learned Trial Judge from the p
circumstance that Deshmukh had taken back Mudemmal articles from the
Court on the sami.: day on which permission to reinvestigate was granted
and that hi.: had opened the sealed packet containing bullets and empties
and again si.:alcd them, is wholly unjustified. For ascertaining from which
type of weapon · pistol or n:vulver - the bullets which were found from the
body of Sun:sh Dube were fired, it was really necessary for Deshmukh to G
obtain pm,session of those bullt:ts and also the empties and get an opinion
of a ballistk expert, particularly when no clear opinion on that point was
given by him in his t:arlier report. As tht: said Mudemmal articles were
lying in the: Court in a sealt:d packet ht: had to obtain them from the Court
and without opening the packet he could nut have givi.:n a receipt as to H
216 SUPRFMF. C:OVRT REPORTS (2000) l S.C.R.
A which article, were taken possession of by him. It was m:cessary for him
to open that packd and verify tht: contents. All those steps wern regular
and necessary and it is difficult to appreciate how the learnt:d trial Judge
could infor from them that all that was done by Dt:shmukh with a view to
tamper with those Muddamal articles and particularly the three bullets
B found from the body of Suresh.
12. The trial Court also grievously em:d in holding that the TADA
Act was v.rnngly 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
C 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 interrogatt:d 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 regard-
D ing involvement of accused other than A4 and Al 1. On 22.9 .1992 he had
interrogated accused Dnyaneshwar Patil (A-3). It was thereafh:r that ht:
had submittt:d a report to the St:ssions Court, Thane under Section 173(8)
of the Code of c;;riminal Procedure tor further investigation. After obtain-
ing that permission he was able to obtain custody of Dilip Waghchoure
(A-7) and inti.:rrogate .:1im. On 25.9 l 992 ht: had rt:corded statements of
E Mira Dube, 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. Dbclosing all this material he had made
a report to the Superintendent of Police, Railways on 28.9.1992 for invoking
the provisions of the TADA Act. It is, therefore, not correct to say that
F without any justifiable reason provisions of TADA were invoked by Desh-
mukh and that he had done so for frustrating the bail applications which
were to come up for ht;aring on 13.9. :992.
13. Tht: last reason given by the Trial Court is also not sound. It
wrongly assumed that the fust complaint was correct and the FIR was
G recorded at the time stated therein. If the eVIdence of Shridhar Thakur
(P.W.80), Rajendra Panjwam (P.W 7Y) and Gosaikar (P.W. 66) had been
analysed morL carefully it would have become apparent that the FIR could
not haw been recorded at Palghar railway station at 12.30 p.m. as men-
tioned in the FIR. Tht: learned triai Judge also failed to apprt:ciate that
H some days pnor to 9.10.1989 Sun:sh was called by Bhat Thakur and was
S '.'i. lJlJllF ·.-. N.B. HHOlR [lf. L NA."IAVAl'LJ.] 217
threatened that if he did not part with the lands wanted by Bai Thakur, A
then his family members shall havi.: to ptrform Aarti of his photograph and
on 8. to.1989 one Srikant Pandt:y, who wa> a man of Bhai Thakur, had met
Suresh and advu.t:d him to leave ~alawpara if he wanted to n:main alive.
Becau;c Df this threat a decision was taken hy Dube brothers that Suri;;sh
-;hould go to his nativl: plact: and n;main th.:rt: till the danger tu his life
B
continues. Pursuant tu that dt:cision Sun:sh had left his huusl: v.1th Amar-
nath Tripathi on 9.lC.1989 for going to \1umbai for punhasing a railway
tickt:t for Oorakhpur. This conduct of Suresh corroborated the evidence
of the prnsecution v.ltnesses on that puinL It is, thcr dare, difficult to
appreciate how in view nf this evidence the !earned Judge could persuade
himself to hold that the first complaint was correct and during the re c
investigation the whok version was changtd deliberately. The statement in
the complaint that the complainant did not suspt:ct anyom; as the murdt:rer
of Sun:sh should have made the learned Trial Judge more careful while
appreciating the relevant evidence.
D
14. As regards the earlier investigation hy PSI Padckar and Pl Berge,
it was contended by the learned counsel for the appellants that it was not
honest. It was submitted that Pl Kukdofkar, PI Nimbalkar and the police
officers attached to the Vasai and Virar police station~ and t.:ven higher
officers wcr~ supporting and prntc,cting: Bhc1i ThakIT, ~Lmik Pafl and their
ffi~ll hyh~ip1ng thLffi in tatnp(."fiflg_ \\lih ~b._: v:.0.1.".~·rH.,<.. Uf l-•\' Hut tak:.fJ~. .iL'~iOli
against them. There "' !>utfa:ient c:viut:ncc un rccnrJ to b.o!d that the. gang>
of Bhai Thakur and l\fanik Patil Wl:Ore opGrating in Vasai and "''tla,opara
areas since 1980 and 1984 respectively. Then: is also evidence to show that
in order to achieve their objects of extorting money and grabbing land they
used to indulge in violence and other criminal activities. Whether those two F
gangs were committing terrorist act> or not is a separate point and we shall
deal v.lth it later. For the present we are examining the t:vidtmce tu 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 them not to
mention the name of Bhai Thakur or his men as the murderers of Suresh G
and had even threatened them that if they did so they would have to suffer
serious consequences. P. W.1, Dr. Om Prakash ha~ deposed that v.lthin
about 10- L5 minutes after Suresh wa~ brought home and <:xamined by the
doctors, PI Kukdolkar had come to their house and told that as he had not
personally seen who had committed the murder he should not name Bhai H
218 SUPREME COL RT REPORTS {2L'COJ l S.C.R.
A Thakur as a suspect. Pl Kukdolkar had further told 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 would have to die. Pl Kukdolkar had
thereafter gone away and had returned with PSI Padekar and had
remained with him when the complaint was writtt:n down hy PSI Padekar
B and Constable Sridhar Thakur (P.W.80). Dr. Om Prakash has also deposed
that PI Kukdolkar used to come to their house even thereafter and on some
occasions he had come with PI Nimbalkar and that huth of them had tried
to impress upon him and his family members that Bhai Thakur bt:ing a
strong man and whocvt:r filed a complaint against him was killed and that
it was enough that one of the Duhe brothers was kilkd. P.W. 2, Shyam
C Sunder has also stated that within about lO minutes after Surcsh was
declared dead Pl Kukdolkar had come: tu their house and had a talk with
his brother Dr. Om Prakash. He has furtht:r stated that aftt:r talking with
his brother PI Kukdolkar had told him and other members of the family
that they should not name Bhai Thakur as the murdt:rer of Suresh. Pl
D Kukdolkar had specifically told him that he was the eldt:st member of the
family and should understand t.he conseqm:nces otherwise all the brothers
would meet the same fate as that of Suresh. He has further stated that Pl
Kukdolar had also told them that whatever property Bhai Thakur was
demanding should be handed over tu him and that they should leave
Nalasopara and go away to their natiw place. He has also stated that Pl
E Kukdolkar had agains come back with PSI Padehr and tnld them that they
should coupe rat.; with him ;md that thl ~ should de! accurding tu \\.hat he
had told them. P.W. 3 Naresh Dube, PW. 4 Jaiprakash, P.W. 5 Bhagwati
and P.W. 6 Mccra Dube have also supported the evidence of Dr. Om
Prakash and Shyam Sunder. All this ev\dence has been disbdieved by the
p Trial Court on the ground the Dubes had nut complained about the
conduct of PI Kukdulkar and Pl Nimbalkar tu Mr. Z.arekar, who was then
working as SDPO Yasai nor to any other higher ofiicer. It is not quite
correct to say that these witnesses had nut complained about the conduct
of Pl Kukdolkar and PI Nimbalkar to anyone. He had complained to PI
Rathod who used to go to them for investigation. All these witnesses have
G further stated that it was because of this attitude of the police officers
connected with the investigation or inttrrogation that they had not com-
plained to higher police officers or tak~n any other action. The learned ·
counsel for the appellants ~ubmitted that the karned Trial Court was not
right in brushing aside this evidence and it should have appreciated that
H
S.N. Dl:Bf<. v. N.H. HHOIR [U.T. NANAVATI, J.] 219
tht:n: was no particular reason for tht: m..:mbas of Dubt: family to make A
falst allt:gations against the four police uffictrs (A-14 to A-17) and P~I
Padekar. It was submitti.:d that the !tarm:d Trial Judg..: fai!t:d tu appreciak
that for somt: years Sun:;h Dube wa; abo involved in similar ilkgal
activities and was, thcn:fun:, :ikdy to know about the relations of police
with the gangs of Bhai Thakur and Manik Patil.
B
15. The karned counsd for the appt:Uants also submittt:d that the
time of recording the FIR was not com:ct!y mentioned and that is a
circumstance indicating di;honcsty llf the previous investigat;on. Un-
disputtdly murder of Surcsh took place on the N alasopara railway platform
at about 10.30 A.M. P.W. 80, Sridhar Thakur who was working as a wr;_ta c
constable under Pl Berge at the Palghar railway police station, has stated
PI Berge was absent on 9.10.1989 and PSl Padekar was in-charge of the
police station. On receiving information regarding murder of Suresh he had
accompanied PSI Padekar to platform "< o.2 of N alasupara railway station
and thereafter to the residence of Dube brothers. PSI Padekar had ques- D
tioned Shyam Sunder and the n:ply 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 registra-
tion. In his cross-examination however he denied this wrsion and stated
that on 9.10.1489 he was calk<l by PSI P>dt:kar at '<afo,npdn bv ~,·•ulint'
a wire.tc~s mt.ssagc. lt ::, pn.rvcd that in hi~ µc0 ~ic:· stat'" nh.:·nt dated l '.'i,5. l'-191 E
he had stated that ~ftcr rt:cciving lhc .vin:kss mi.;ssag<.: ht had gone to
Nalasopara and that he had reached tht:n: at 2.00 P.M. The murder had
taken place at Nalasopara railway platform at about 10.30 A.M. Palghar
railway police station is at a considerable distance and as disclosed by the
evidence of police constable Rajendra Panjwani (P.W. 79), who was abo F
attached to Palghar railway police station, that the first train available at
Palghar for going towards Mumbai side 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 Nalasopara at 10.40 A.M. Police con-
stable Rajendra Panjwani has also stated that the message regarding mur-
der of Suresh was received at Palghar railway police station sometime G
- bctwcen 11.GO and 11.15 AM. and that he was also directed to leave for
Nalasopara. He caught the next available train at 1230 P.M., got down at
Virar and then caught the suburban train for Nalasopara which took him
there at about 3.IJO 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 H
220 SUPREME COLRl REPORTS [2000J 1 S.C.R.
A was on duty at gate No. 38 ~ituated on the western side the railway platform
he saw some passengers running across the railway line. On enquiry he W<!.S
told that firing had taken place on the railway platform and so he rushed
to that place and found om:: person lying in an injured condition. He then
went to the station master's room tu send a telt:phone call to Vasai railway
B station master fur sending more police force. That was betwco:n 10.45 and
11.GO A.M. Then.:after he went to the house uf Dube brothers and after
about 20 minutes PI Kukdulkar had come then:. From this evidence also
it becomes quite dear that the complaint could nut haw been recorded by
Sridhar Thakur at l0.40 A.M. nor could it have reached Palghar railway
police station by 12.30 P.M. as depust;d hy P.W. 72, Hanumant Jadhav. In
C all probability the first information was recorded at Palghar railway police
station much later and afttr PSI Padckar had gone back tu Palghar. No
time was mentioned in the register. Copy of the FIR was not sent to the
Magistrate either on that day ur on the next day. It had reached the
Magistrate on 12. l0.1989. This delay docs create a suspicion regarding
D influence of the two gangs over 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 sctm: of offence. If shots had been
E fired from a revolver then the emptks would have remained inside the
chamber of the r1:;volver and would not have falle'l out on tht platform.
Presence of five empties on the platform dearly indicated that the wi.;apon
used for firing shots was a pistol. Yet a n:volver (Article 47) was seized
and shown as the weapon of offence. Obviously that was done with the
F object of helping the murderers as no Court could have convicted them on
the basis of such t.:videncc. 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 Cdse diary.
G
16. Another circumstance which creates a doubt regarding honesty
of the previous investigation is the making of a false statement in the
application for takir.g A-4 on remand. Th.: 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 tht: Court at about 12.30 P .M. on that day it was
H stated that the weapon of offence was yet to be recovered" One more
S.N DL!:!Ev. N.B.BHO!Rl(J.'!.NANAVATl,J: 221
circumstance having a bt:aring on the conm:ctiun uf the previous investigat- A
ing officers with accuM:;d A· 1 to A-13 is abst:nce of any serious attempt by
the police till 1992 to st:cure presence of the accused before the Court and
sec that the trial procct:ded against them. Even though A-4 and A-11 were
rdeast:d un bail and w.cre not attending the court and summons were not
served upon them, yd no atkmpt was made by the police tu get any
warrant fur their arrL·st iswed by the court. The proceedings of the Court B
disdost:s that th<: case was required to be adjourm:d from time to time on
the ground that the summons could not bc served upon thi;m.
l 7. In our opinion tht:se circumstances do create a doubt regarding
honesty of the first investigation. We an: also of the opinion that the c
subsequent inwstigation made by the; police under the direction of
Suradakar aftt:r September l 992 was nut done with any oblique motive.
18. The prosecution had led evidence of P.W.1 (Dr. Om Prakash),
P.W.2 (Shyam Sunder), P.W. 3 (Naresh Dube), P.W. 4 (Jaiprakash), P.W. D
5 (Bhagwati) and P.W. 6 (Met:ra Dube) to prove the motive for the murder
of Suresh. The evidence of P.Ws. 1 and 2 discloses that Dube brothers had
purchased certain lands of villages Achole, Nilcmore, Manikpur, Tuiinej
and other villages touching Nalasupara. Bhai Thakur and his associates had
takrn illegal posse"ion then:of. Surcsh was trying to takc back those land».
E
Bha1 Thakui wanted those lands to bt: transferred to him and wankd
Surcsh to pay ·haftas' fur carrying on land dt:vduping and hous<: building
activities in that an:a. In this connection, Sun:sh was called by Bhai Thakur
at his office at Virar a few days before 8.10.1989. We have already referred
tu the discussion and the threats given by Bhai Thakur and his associatt:s
to Suresh. Wc havc also referred to the warning given to Suresh on F
tdt:phone on 8. l0.1989. P.W.6 had also stated in her evidence that Suresh
Wa5 much wunied after he had received the threat. The evidence uf
P .W s. 1, 4 and 6 further discloses that it was decided by all the family
m1:mben that Sure&h should leave Nalasopara and go to his native place
till the danger to his life continued. In the cross-1:xamination of tho&e G
witnt:sst:s it has been brought out that except in respect of Survey No.
110 of Achole thew was no document to establish that Suresh and his
brother were ever in possession of those lands pursuant to agreements
uf sale. The t:vidcnce of these witnesses is found trustworthy and the
motive can be held proved. H
222 st:PREMECOURTREPORTS (2000[ 1 S.C.R.
A 19. The t:vidence of P.Ws. l and 2 and that of P.W. 28, Amarnath
Tripathi proves and that is not in dispute that Suresh had left his houst: at
about !0.15 A.M , reached platform No. 2 within about 2 minutes timt! and
was shot between HJ.30 and 1035 A.fv:. At that time Amarnath Tripathi
was with him. Two other persons had also accompanied as Suresh wanted
B to have a talk with them in connection wcth his bm,im:ss. One of them wa;
Mukcsh Shah (PW. 53). As to what happened thereafkr on platform No.
2 of the Nalasopara railway station has been deposed by Amarnafa Tripathi
(P.W. 48) and Om Prakash (P.W. 49). Others who had m:n the incident
and were examined as eye witnesses hut did nut support the prosecution
C were Ranjit Thakkar (P.W.10), Alex Marthin (PW. 31), Sanjay Dube
(F.W.39), Dinesh Kashyap (P.W. 39) and Mukesh Shah (P.W.53). Ranjit
and Sanjay were the passengers waiting on that platform for the train to
come. Both of them have deposed about tiring of shots and seeing Suresh
lying on the platform in an injured condition, but they did not identify any
D of the accused as the assailants of Sun:sj1, Sanjay stated that A- l and A4
were not the persons who Wt:re seen by him running away on the railway
track. Akx Martin (PW. 31) was the person near whose book-stall the
incident had happened. He has stated faat he had seen the person who
had tin:d shots at Suresh and had also ;.:;en other per~ons running away
E after the incident, but h..: did 'lllt idc:ntify :he assailants 'taiin;s tha1 he had
seen them from the hoc!.. , . de. He spcc;tically dented th<tt A 1 was the
p..:rsun who had fired the sh0ts. Dincsh Ka,hyap (P.W. 44) had a pan-bidi
stall on the platform. He also stated in th.: Court that he was not able to
identify the assailants. All these witnesses were, therefore, dcclan:d hostile.
F Mukesh Shah (P.W.53), who m:w Suresh and A-1 and who was also injured,
did not say in the court that A-1 and 'ome of the accused were the
assailants of Sure~h. The learned Trial Judge doubted involvement of A-1
on the ground that Mukesh Shah being dos,; to Surnsh would have dis-
closed the identity of the real assailants if he had really seen them. This
G witness must have been very close to Suresh as he had gone on the platform
to have a talk with Suresh. The fact that he was injured by one of the shots
tired at Suresh also indicates that he must have been closed to Suresh. This
witness at first denied that he knew A-1, but admitted in cross-examination
by the public prosecution that he knew A- i since before the incident. It
H was, therefore, mor~ probable that he did not want to identify them out of
J
S.N. Dl'BE v. N.B. BHOIR (U.T. NANAVATI,J.] 223
foar and not becaust.: in fact he had not idt:ntified them. His evidence, A
however, n::mains unhelpful to the; prosi::cution.
20. Amarnath Tripathi (P.W. 48) had come from his native place to
Nalasopara on 4. m 1989 or 5.10.1989 and was staying with his sister and
brother-in-law Shyam Sunda (P.W.2). He had come to see his sister and B
abo to find a match for the daughter of his younger brother. Between
5.l0.1989 and 9.10.1989 he had seen two boys. On 9.10.1989 he wanted to
go to Ville Parle to see one boy. As further stated by him Suresh wanted
to purchase a railway ticket for going to his native plact Oorakhpur and,
therdore, hoth o! them had left together at 10.15 A.M. They wt0nt to C
platform no.2 and were waiting for tht0 train to arrive. As the train by which
tht:y wen: to leave for Mumbai was running late he went to a shoe-polish-
wala to g~t his shoes polished. Suresh Dube purchased a newspaper from
a nearby book-stall and started reading the same. While his shoes wi:re
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 D
Suresh. He has also stated that 4 to 5 persons had encircled Suresh.
Because of firing persons standing on the platform started running helter
s:{elter. The shoe polishwala also got up and ran away. He then got a push
from one of those persons who had encircled Suresh and, therefore, fell
down from the platform. He immediatdy got up and looked at Suresh. He E
saw the same person who had earlier fired shob tiring 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 declart:d dead by the doctors. According to him he
F
become giddy, foll down and on hearing that Suresh was dead he b.::came
unconscious and remained unconscious for three days. After he regained
consciousness he was told by the n::Iatives of Suresh that murder was
committed by Bhai Thakur's men and he should not say anything to the
police about the incident as that could prove to be dangerous to their lives
because the police was well connected with Bhai Thakur. Therefore, he G
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 Surcsh. 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 statement5 dated 12.10.1989 and 20.10.1989 purported to have been H
recorded by Pl Berge. What the defence wanted to establish was that on
224 SUPREME COCRT REPORTS [2000) 1 S.C.R.
A 12.10.1989 he had given a different version as regards the manner in whieh
the incident had happened. His version m 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 ls Ki Ma Ki'. came out of Suresh's mouth. At that time people on the
B platform started shuuting ,.Run Run". lmmc:diatdy 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 book-stall. He looked at
Suresh. He had bent down keeping his hand on his stomach. It was also
brought out in the cross-examination that this witness had nut givi:n any
description of the assailants In his statement dated 18.8.1992 and that ht:
c had further stated that the person who had fired shots was having in his
hand a weapon !ike 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 his both hands on his forehead and I had fallen down
on the railway track because of the push. In the meantime local train from
D Virar side and Churchgate side arrived. During that time people who fired
on Suresh Dube ran away towards Nalasopara West. This witness 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
E learned counsel app.;aring for the respondents-accused that these omis-
sioP-' and contradict-ans ckarly disclose an attempt on li1c pan nf this
\llitness to maiu; impruwmcnt> upon his earlier version :.o as tu make hi~
evidence against A-1 tu A-4 ccrtain and acc..:ptabk. It was also urged that
this witness in his statement dated 18.8.J 992 had stated that 'I had given
my statement before the police during my stay of 20-25 days with Dubes'
F family after the incid.;nt of murder". It was urged that this witness has
falsely stated while giving evidt:nce that hc had not given any statt:ment
to the police either on 12.10.1989 or 20.10.1989. It was further urged that
this witness had denied to Jt;ve made any statement on 12.10.1989 and
20.10.1989 as he knew that it contained a different and an uncertain version
G not only as regards the manner in which the incident had happened but
also with regard to his seeing the assailants. The Trial Court was also much
impressed by these omissions and contradictions and taking into considera-
tion the circumstance that the incident had happened suddenly and large
number of persons whu were standing on the platform had started running
H helter skelter after hearing the sound of firing of a shot, held that this
S.N. DUBE v. N.B. BHOIR [G.T. NANAVATI,J.] 225
witness could not have sufficiently seen the assailants so as to correctly A .
identify them in the court after many y.::ars. In arriving at this conclusion
the Trial Court also relied upon the statement in his cross-examination that
he did not know from which direction the sound of the first shot had come
and from what distance it was fired. We have earlier hdd that the previous
investigation was not honest and, therefore, no importance could have been
B
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 12.10.1989 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 c
number of shots fired by the assailants and also on the point of his seeing
the assailant firing one mon: shot after he had received a push and fallen
down on the 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 D
before the court in order to falsely say something that he had not seen.
What appears from the statement is that this witness had stated in his
statement dated 18.8.1992 that he had seen the last shot fired on Suresh
after he had fallen down from the platform. What he had not stated was
that he had seen the assailant firing the last shot after he had got up from E
the railway track. The fact that this witness had gone to Nalasopara· to meet
his sister and had some work has remained unchallenged. The 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 F
disputed. What was urged before the Trial Court and what has been
believed by it is that as the incident had happened suddenly and the peoplt:
standing on the platform had started running helter skelter immediately
after the first iliot was fired this witness could not have seen the assailants
clearly for a sufficiently long time so as to correctly recognise them after a G
lapse of few years. It was also urged that as this witness was not able to
make out from which direction the sound of firing a shot had come and
was not ablt: to state the distance from which it was fired would also
support the finding that this witness really did not know the manna and
circumstanct:s in which the assault on Surt:sh had taken place. This witness H
226 SUPREME COl:RT Rf.PORTS (200CJ 1 S.C.R.
A has said that he was at a distance of about 3 ft. from Sun:sh when the
incident had happened. That appears to be more probab!t: and natural
also. Both of them had lt:ft the house togcthtr and were to go together in
the train. Except the circumstance that pcoplt: on the platform had started
running helter skelter after hearing tht: sound of firing of shots, there was
B nothing before the court on the basis of which it could have hdd that
Amarnath could not have seen the assailants fuing shots at Surt:sh and
surrounding him. Though the incident had happened suddenly, fuing of
five shots from a pistol must have taki,:n some time. The witm:ss in our
opinion had sufficient time to see and register in his mind what was then
happening to Suresh, his brother-in-law. In our opinion the :earned trial
C Judge was not right in holding that this witness very probably did not havt
sufficient opportunity to see the manner in which the whole incident had
happened and who were the assailants.
21. The next point to be considered is whether identification of the
D accused by this witm;ss in the Court can be believed when no attempt was
made earlier by holding a test identification parade for identification of the
real culprits. The trial Court h.as found it unsafe and it was contended by
the learned counsel for the accused that such identification has no value:
as held by this Court in State of Maharashtra v. Sukhdev Singh, AIR (1992)
E SC 210 and State v. V. C. Shukla, AIR (1980) SC 1382. A-1 to A-4 who were
identified by this witness were arrested bt:tween September 1992 and
February 1993. Thret years had passed by then. Perhaps that was the
reason why test identification parade was not held. Anyway this infirmity
of not holding a test identification parade does diminish the evidentiary
value of identification of these accused by this witness. in the Court. lf this
F was the only evidence regarding identification of those accused we would
have held that it was not sufficient for convicting any of thost four accused.
But it stands corroborated by the evidence of i1IlOther eyt:-witness and also.
by the confessions of A· 1 to A-4, if they are held admissible and voluntary.
G 22. It was contended by the learm:d counsel for the respondents-
accused that the version of this witness that he had become unconscious
on hearing that Suresh had ciit:d and had remained unconscious for three
days was not believable and the Trial Court was right in rejecting the
evidence of this witm:ss on that ground. It is difficult to appreciate what
H this witness would hav..: gained by falsely saying so. He had seen his
SXDCBEv. N.B.BHOIR[G.T.NANAVATI,J.j 227
brother-in-law bt:ing shot dead. Therefore it was not unlikdy that he got a A
' shock and became unconscious. If what he has stated was not correct then
the police would have recorded his statement before 12.10.1989. The fact
that his statement could nut be recorded bdore 12.10.1989 lends support
to his evidt:nce that ht had remained unconscious, though nut continuously,
for thret: days. B
23. Om Prakash Brahmania (P.W.49), another eye-witness, was earn-
ing his livelihood in Bombay by working as a boot-polisher on the platforms
of Nalasopara railway station. He had bei:n doing so since about 10 years
before the date of the incident. He used to sit on the platform from 6.30 C
in the morning till 6.CO 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 thri:;atened
by them on some occasions as a part of their activity of terrorising people
of the locality. He has deposed that on the date of incident he had seen D
Suresh Dube and one person accompanying him on the railway platform
at about 10.30 A.M. The person who had accompanied Suresh came to him
for getting his shoes polished. While he was polishing his shoes Suresh was
reading a newspaper near the book-stall at a distance of about 2 ft. from
him. He then saw Narendra (A-1) nephew of Manik Patil, coming there
and firing shots at Suresh. He also saw that 3 or 4 persons were with A-1. E
Narain was one of them and he had a chopper with him. As a result of that
firing people started running. He also gut frightened and ran away and took
shelter behind a nearby building. After waiting there for some time he went
home. He identified !'ifarendra (A-1), Dayaneshwar Patil (A-3) and Patric
(A- 4) in the Court. He identified Narendra (A-1) as the person who had p
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
depos.:d 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 G
know that the police was searching for him. Therefore, he met the police
and his statement was recorded on 5.10J992. In his cross-examination ht:
stated that it was aftt:r 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 n:maincd in Bombay. The learm:d trial Judge has hdd this
part of the evidence of this witness unbelievable. Tht: Trial Court hdd that H
228 SVPREME COURT REPORTS [2000] 1 S.C.R.
A there was no reason for this witnes~ to remain away from Mumbai for a
period of 3 years, particularly when his father had stayed back. tb.e lt:arned
trial Judge also held that this witness had shifted to Bombay as he did not
have enough work in Haryana and, tht:n:fon:, it was not likely that he would
have remained in Haryana for 3 years before returning to Bombay. The
B learned Judge also relied upon the circumstance that in Ins 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
c part of the evid1:nce of this witness art not at all sound. The fact 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 Wds in Haryana. It was also suggested by the defonce in his
cross-examination that the police had arrested him from Haryana and
D 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 Harydna and returned in 1992
has remained almost unchallenged. It is true that according to the previous
investigation made by PI Padekar and PSI Berge statements of this witness
E were recorded on ll.10.1989, 13.10.1989 and 20.10.1989. This witness had
denied to have given those statements and we are inclined to believe this
witness on this point in view of the fmding recorded by us earlkr 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
F have any source of livelihood in Haryana. It was, then:fore, not likely that
without any compelling reason he would have left Bombay and gone to
Haryana. Therefore, his evidence that he had ldt Bombay and gone back
to Haryana because of fear of Manik Patil's gang deserved to be accepted. ...--
,
He was an eye-witness to the incidenL The investigation had disclost:d that i
he was an eye- witness and that was the reason why a stakment alleged to L
G have been made by him was recorded by the police on 11.10.1989. The
conduct of this witness was quite natural and then: was hardly any justifica-
tion for discarding his evidence on the ground that his version was not
believable. This witness knew Suresh and also the accust:d. He stated so in
his examination··in-chief. We find hardly anything in the cross-examination
H of this witness which would create any duubt regarding his knowing Sun:sh
S.N. DUBE v. N.H. BHOIR [G.T. NANAVATI, J.j 229
- 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 has given the
reason why he km:w Suresh and some of the accused. It was, therefore,
A
more probable that he knew Suresh and also some of the accused including
A-1. 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
B
which they had created he would not have dared to falsely depose against
them. His presence on tht: 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 i~ 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-1, A-3 and A-4. c
24. The Trial Court also has recorded a finding that possibly he knew
the accused belonging to the gang of Manik Patil. His evidence by the Trial
Court has been disbelievt:d mainly on the ground that the description of
the assailants given by him in the earlier statements did not tally with A-1 D
and that on 20.10.1989 he had identified A-4 and A-11 as the assailants of
Suresh, while in the Court he had identified A-1, A-3, A-4 and Narain
(A-10) as the real assailants of Suresh. We have already pointed out that
the earlier investigation was not honest. This witness has denied to have
made any statement on 11.10.1989 or 13.10.1989. We will later on point out
that naming of A-4 and A-11 as the murderers of Suresh was a manipula- E
tion done by the gangs of Bhai Thakur and Manik Patil with the help of
A-14 to A-17. It is also not factually correct to say that the witness had on
20.10.1989 identified A-4 and A-11 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 p
attacked Suresh. Therefore, the learned Trial Judge was not right in
r~ecting his 'evidence on these two grounds. The Trial Court also dis-
believed his evidence on the ground that if ht: 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 had a talk. He had neither disclosed tht: G
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 had stated in his evidence is that he knew A-1 by
name and others by their faces. According to this witness he did not havt:
any talk with anyone with respect to the incident except with his father. It
H
230 SL'PREME COl RT REPORTS [2000] 1 S.C.R.
A may be that he was afraid of naming dny person belonging to the gang of
Manik Patil a\ the murderer and therefore had not disclosed the name of
A-1 as the murderer of Suresh. A-1, A-3 and A-4 were all known to him
-
and, therefore. there was no point in holding a test identification parade
after this witness had rtturned from Haryana. Thercfort:, the learned Trial
B Judge was not right in rejecting his t:Vldence on the ground that he had not
disclosed namts of the ;iccused to anyone and that no test identification
parade was hdd to test the identity of the real culprits. Wc are of the
opinion that the Trial Court was nut justifit:d 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.
c
25. The prosecution has also relied upon the circumstance of dis-
covery of a pistol by A-1 as an independent circumstance corroborating
the evidence of eye··witncsses. The Panch witm.:ss did not wpport the
prosecution and it is also difficult to hold that it was really a case of
D discovery of pistol by A- l as contemplated by Section 27 of the Indian
Evidence Act. The learned Trial JudgL has nut relied upon the evidence
relating to this circumstance and we are also of the opinion that the
evidence relating to discovery of pistol s nut worthy of acceptance.
26. The next important piece of evidence relied upon by the prosecu-
E tion is the confessions made by some of the accused. It was urged by the
learned counsel appearing for the appellants that the learned Trial Judge
has committed a grave error in holding them inadmissible and nut volun-
tary. During the course of reinvestigation confessions of A-1 to A-8 and
A-11 were recorded by Shinde (P.W. 76), who was then working as
F Superintendent of Police (Railway), Mumbai. The said confessions were
recorded between 29.9.1992 and 1.3.1993. A-9 and A-10 had also shown
their willingness to make confessions to PI Deshmukh (P.W. 71), but after
they were taken to Shinde they dt:clined tu make any confession. The
confessions were recorded by Shindc under Section 15 of the TADA Act.
All those accused were forwarded by Pl Deshmukh with hi5 rt:ports tu
G Shinde as they had expresst:d willingness to make confessions before him.
All those forwarding reports have been brought on record and have bcen
proved by these two witnesst:s. The fact that these witnesses were taken to
Shinde for recording their confessions was not disputed. What Wds stated
by these accused while retracting thcir confessions was that they were
H obtained by giving threats or under undue influence. It was generally
S.N. DUBE v. N.B. BHOIR [G.T. NANAVATI, J.) 231
suggested to Shinde in his cross-examination that he had obtained signa- A
tures 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 >uggested in the cross-examination of Shinde that particular type of
physical or mental torture or coercion was caused to the accused or in
which manner they were defrauded or what undm:: influence was exercised
upon thtm. Only suggestion that was made to the witnesses was that while
B
recording that confessions he told them that he was Superintendent of
Police and he had stated so in order to impn:ss the accused. In our opinion
Shinde had done 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 c
cross- examination. He admitted that he had felt that it was unfair on his
part to record the confossions as he was supervising the investigation. He
also admitted that he was not aware of the statutory requin:ments 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 inadvt:rtently D
committed a breach of the TADA Rules 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 E
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. lt
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 admis-
sible, not voluntary and not reliable.
F
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 thereunder.
This Court considering its constitutionality in Kartar Singh v. State of
Punjab, [1994] 3 sec 569, observed that "'having regard to the legal G
competence of the legislature to make the law prescribing a differc:nt mode
of proof, the meaningful purpose and object of the legislation, the gravity
of terrorism unleashed 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 H
232 SUPREME COURT REPORTS [2000] 1 S.C.R.
A coming forward, at the risk of their life, to give evidence" - held that the
impugned section cannot be said to be suffering from any vice of uncon-
stitutionality. Section l5 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 o~ truncate it. Interpreting the said
B provision this Court in State through Superintendent of Police, CBI/SIT Etc.
v. Nalini and Ors., (popularly known as Rajiv Cfandhi \'1urder case), this
Court has held that a confession recorded under Section 15 of tht: TADA
Act is to be considi;;red as a substantive pit:ce of evidence not only against
the maker of it but also against its co-accused. There was differcnct: of
opinion amongst the three learned Judg~s who decided that case regarding
C the evidentiary value of such a confession against the co-accused is tried
in the same case. Wadhwa, J. observed that what weight should 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-accust:d. Quadri, J. held that the rule
D of prudence would require that the Court should examine the same with
great care and should not be rdied upon unkss 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 its maker it cannot be used as substantive
evidence against another person even if tht latter is a co-accused, but it
E can be used as a piece of corroborative material to support other substan-
tive evidence." Relying upon the decision of this Court in Kalpnath Rai v.
State, (1997] 8 SCC 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
---
p 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 judgment. 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 Nalini's case the said observation can now be regarded as
correct position of law. The correct legal position is that the confession
G recorded under Section 15 of the TADA Act is a substantive piece of
evidence and can be used against a co- accusc:d also otherwise held to be
admissible, voluntary and believable.
28. The confessions have been hdd inadmissible mainly on two
H grounds. The first ground giv.:n by the learned trial Judge is that the
S.N. DUBEv. N.B. BHOIR [Cif.NANAVATI,J.] 233
powers under Section 15 of the TADA Act was exercised either malafide A
or without proper application of mind. The second ground on which they
are ht:ld inadmissibfo is that they were n:corded 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.
B
According to the Trial Court there was material on the basis of which
TADA Act could have been invoked of that stage and that most probably
the said Act was invoked in order to defeat the bail application filed by
two accused in the High Court. ln our opinion the Trail Court was wrong
in taking this view. We have already pointed out earlier that Deshmukh c
had collected enough material on the basis of 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 Desh-
mukh that Section 5 was also applicable in this case and that without
proper verification sanction was granted to proceed under that section also. D
The applicability of section 5 depended upon existence of a requisite
notification by the State Government. It was wrongly reported by Pl
Deshmukh in hi, 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 ,aid that Shinde has exercised the power under
Section 15 of the TADA Act ma/a fide. The learned trial Judge has al.so E
hdd that it was not fair on the part of Shinde to record the confessions 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 to record them. We see
F
no illegality or impropriety in Sbinde 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 ma/a fide is that the accused making the confessions wen: not told
that they have bet::n recorded under the TADA Act. No such grievdnce was
made by tht:: accused in their statement under Section 313. On the other hand, G
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) H
234 SUPREME COURT REPORTS [2000] 1 S.C.R.
A 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
B record any such confession unless upon questioning the person
making it, he has reason to beliew that it is being made voluntarily."
"R.15(3). The confession shall, if it is in writing, be -
(a) signed by the person who makes the confession; and
c
(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
D the following 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
E confession was voluntarily made. It was taken in my presence and
hearing and recorded by me and was read over to the person
making !t and admitted by him to be correct, and it contains a full
and trut: account of the statement made by him.
Sd/- Police Officer."
F
Relying on sub-rule 2 of Rule 1.5 it was contended on behalf of the
respondents that the polici.: officer is n:quired 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 against him as evidence. The said provision also requires
that he should question the: person making it in order to assure him that
G he is making it voluntarily. It was submitkd by Mr. Kotwal, learned counsel
appearing for some of thi.: 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
H him for ascertaining his voluntary willingness to make a confession even
S.N. DUBh v. N.B. BHOIR [G.T. NANAVATI, J.] 235
after being told that th.: confession may be used against his as evidence A
and the second part which contains the actual confessional statement - it
is the ~econd 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 whili: 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
B
explain and give the statutory warning before recording the actual confes-
sional 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 volun-
tarily. He submitted that the confessional statements were recorded in this
case in two parts and while recording the second part no questions were c
asked from the accused to ascertain whether he was making the confession
voluntarily. He also submitkd that while recording the second part no
warning was given to the accused that he was not bound to make the
conkssion and that if he made it, then it can be used against him.
D
30. Neither Section 15 nor Rule 15 contemplates recording of con-
fessional statement in two parts or giving time to the person making a
confossion to think over and reconsider whether he still wants to make it
in spite of being told that he is 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 confossion willing and voluntarily the recording officer gives him E
some turn: to think over and for t4at 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 part~ have to be treated as one confessional statement. If the
recording police officer feels assured after giving the statutory warning that F
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 confes-
sion is recorded in two parts, only the second part can be n:garded as the
confession and while recording the second part the police officer should
give the statutory warning and then ascertain if the person concerned is G
making it voluntarily, cannot be accepkd. 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 H
236 SUPREME C'OURT REPORTS [2000] 1 S.C.R.
A 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
B
him again he had again ascertained if he was still ready and willing to give
a statement. He had also asked him if he was making it under any pressure
or coercion or threat. Only after the accused had replied in 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
c 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 Shindc
D did 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 Ruic 15 is held
mandatory the Trial Court was right in holding them inadmissible for
non-compli:mce with that mandatory requirement. Therefore, the question
E to be considered is whether the certificate and memorandum arc 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 pn:sence and recorded by him and that
the record contains a full and true account of the confession made by the
F person". According to that rule the memorandum should be to the follow-
ing 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
G 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 stah:ment made by him."
H Writing the certificate and making the memorandum are thus made man-
datory to prove that the accused was explained that he was not bound to
S.N. DUBE v. N.B. BHOIR [G.T. NANAVATI, J.j 237
make a confession and that if he made it, it can be used against him as A
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 alone. The requirement of rule is preparation of
contemporaneous record regarding the manner of recording the confossion
in presence of the person making it. Though giving of the statutory warning
ascertaining voluntariness of the confession and preparation of a contem-
B
poraneous 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
mandatory. What arc the mandatory requirements of a provision cannot be
decided by overlooking the object of that provision. they m:ed not go C
beyond the purpose sought to be achieved. The purpose of the provision
is to see that all formalities arc performed by the recording officer himself
and by others to ensure "full compliance of the procedure and seriousness
of recording a confession. We fail to appreciate how any departure from
the form or the words can adversdy affect the object of the provision or D
the person making the confession so long as the court is able to conclude
that the requirements have been substantially complied with. No. public
purpose is likely to be achieved by holding that the certificate and
memorandum should bt: in thi:: same form and also in the samt: terms as
are to be found in Ruk 15(3)(b). We fail to appreciate how sanctity of the
confes&ion would get adversely affected merely because the certificate and E
memorandum are not st:paratdy written but are mixed up or because
different words conveying tht: 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 certificate and memorandums are not in the
samt: form and words they must be regarded as inadmissible. Having gone p
through the certificates and the memorandums made by Shindt: at the end
of the confession& what we find is that he had mixed up what is required
to be stated in the certificate and what is required to be stakd in the
memorandum. he has stated in each of the certificates and the memoran-
dums that he had ascertained that the accused was making the confes~ion
willingly and voluntarily and that he was under no pressure or enticement. G
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 n:corded 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 H
238 SUPREME COURT REPORTS [200011 S.C.R.
A was recorded as per his say and that the confession was taken in his
presence and recorded by him. It is true tliat 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
B 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 it 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 certificate and the
C 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 ;;xplained to the accused that he
was not bound to make a confession and that if he did so the confession
might be used as tvidt:nce against him. Such a statement instead of appt:ar-
D ing at the end of the confession in tht: memorandum appears in the earlier
part of the confrssion in the question and answer form. Each of the
accused making the confession was explaim:d 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)
E only for that reason? We find no good reason to hold like that We hold
that the Trial Court was wrong in holding that there was a brtach of Rule
15(3) and, therefore, the confessions were inadmissiblt: and bad.
32. It was next submitted that though Section 164 Cr. P C. does not
strictly apply to confessions recorded under St:ction 15 of TADA Act, the
F provisions contained in Sections 15(2) of TADA Act and 162(2) and 164(4)
of Cr. P.C. are similar and that would imply that the rnquirements of law
regarding the proct:dure for recording a confession are the same. Both the
provisions rt:quirt: that before recording confessions the accust:d must be
told that he is not bound to make a confession and that if he makes it then
G it can be used as evidence against him. Both these provisions n:quire that
before recording the confession the recording officer has to question the
accused in order to satisfy himself that he is making the confession volun-
tarily and after recording it to issut: a certificate and memorandum to the
effect that the accused was t:xplained about his right ta be informt:d that '·
H he was not bound to make the confession and that it could be used against
S.N. DUBE v. N.B. BHOIR j G.T. NAJ,IAVAn J.j 239
him, that he believed that the confession was made voluntarily, that it A
was taken down in his presence and was read over to him, that it was
admitted as corrected by him and that it contains a full and true account
of the statement made by him. It was, therdore, submitted that the
guidelines issm.:d by the High Court for recording a confession under
Section 164 Cr.P .C. are also required to be followed by the police
B
officer ncording a confes&ion under TADA Act. Otherwise a situation
may arise where in the same trial there may be a confession of an
accused recorded by a Magistrate without following the guidelines con-
tained in the High Court Manual and a confession made by another
accused and recorded by a police offici::r under the TADA Act who has
not followed those guidelines while the one recorded by the Magistrate c
may not be recorded as evidence the other one will b~ treated as
evidence and can be ustd against him. In the alternative, it was sub-
mitted that even if it is held that the guidelines issued under Section 164
Cr.P.C. by the High Court are not required to be followed while record-
ing a confossion under Section 15 of TADA Act at least the well recog- D
nised 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 inti::rrogation by a
police officer not lower in rank than a Superintendent of Police is not E
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 admis-
sibility or rdiability of a confession by using its judicial wisdom. From what
has been observed in the said decision it does not follow that if the
F
suggested guidelines are not followed then the confession must be dis-
carded as inadmissible or bad on that score or on the ground that it is not
in conformity with Section 15(2) of the TADA Act and Rule 15 of the
TADA Ruks. The police officer recording a confession under Section 15
is really not bound to follow any other procedure. The ruks or the
guidelines framed by the Bombay High Court for recording a confession G
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. Then::fore,
merely because some of those guidelines were not followed while recording
the confessions it cannot for that reason be held that the said co!rlessions
have lost their evidtntiary value. lf while recording the confessions Shindc H
240 SUPREMF COURT REPORTS (2000] 1 S.C.R.
A had followed all those guidelines also then that would have been a cir-
cumstance helpful in inferring 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 n:corded in free atmosphere. No other person
was allowed to remain present at that time and all the accused were given
B
time to reconsider their willingness. After they were produced again Shinde
had ascertained whether they were still willing to make confossions. All the
accused were previously told that they were not bound to make a confes-
sion. Each ont; of them was warned '.hat if he made a confession then it
could be used against him.
c
33. Shinde had tried to ascertain if any threat or inducement was given
to them or whether they were ill treated or pressurized. All 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
D that the accused w.:re making confossional statements voluntarily. In his
evidence also h.: 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 hdd the confessions not voluntary as
he was of the view that A-1 to A-8 and A-11 were hardened criminals and
E it was not belicvable that they would have one after the other iliown their
willingness to make confessions. It was not even the case of the accus.:d that
they wen: not tak.:n 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
F torture. We have aln:ady pointed out earlier that in absence of any specific
act suggested by the defence it is not possible to accept the belated allega-
tion made by those accused that their confessions were obtained in that
manner. On careful consideration of the evidence of PJ Deshmukh and DSP
Shinde, we find that all those accused had made their confessions voluntari-
G ly. 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. 1 to 5. We have, therefore, no hesitation in holding that
they are true and reliable and can form a safe 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.
H
S.N. DUBf, v. N.B. BHUIR(G.T. NANAVATI,J.J 241
34. A-1 in his confession (Exts. 571 and 571-A) has admitted that he A
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 Surcsh and because they had not dune 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 B
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 wen:: many persons near the book-stall at that
point of time he went ahead on the platform and again returned near that c
book-stall. He then took out the pistol from his pocket and fued seven
shuts 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 statt:d that Manik St:th had given D
instructions to Narendra (A-1) to finish Suresh and they were told to
accompany Narendra whenever Narendra called them for help. They have
admitted that on being told by A-1 that "Suresh Dube has come at
Nalasupara railway station. Let us all go'', they went to the railway platform
along with A-1. They have all stated that Narendra fired shots and aftt:r E
Surcsh 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
along with A-1 to hdp 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 F
leader of the gang and that as decided by Bhai Thakur, Don (Pendari) was
to be finished by the men of Bhai Thakur and they were to finish Dube.
Therefore, A-1 and his boys were keeping a watch upon movements of
Sun::sh and ht: had instructed of A-1 and his boys to fmish Suresh as soon
as possible. So far as participation of A-1 to A-4 in the murder of Suresh
is concerned the confessions stand corroborated by the evidence of the two G
eye-witnesses. The confessions of A-5 and A-6 being substantive evidence
are sufficient for considering them and they also n:ceive corroboration
from the confessions of A-1 to A-4 and also receive general corroboration
as regards the other illegal activities committed by them from the evidence
of P.Ws. 1 to 5 and those witnesses examined by the prosecution to prove H
242 SUPREMF. COCRT RF.PORTS [2000] 1 S.C.R.
A that they were the victims of some of the terrorist acts committed by the
gangs of Bhai Thakur and Manik Patil. Therefore, relying upon the com-
mission of A-1 to A-6 and the evidence of the two eye-witnesses Amarnath
and Om Prakash, we hold that Sun:sh was killed by A-1 by firing shots
from his pistol and that was done in prosecution of the object of the larger
B conspiracy hatched by Bhai Thakur, Manik .Patil and some members of
their gangs and the unlawful assembly consisting of A-1 to A-6 and some
others. We, therefore, hold A-1 guilty under Section 3021.P.C. and A-2 to
A-6 under Section 302 read with Sections 120 B and 149 LP.C. We may
state that the finding recorded by the Trial Court that thc death of Suresh
was homicidal and that he died of the injuries caused to him by the bullets
C with which he Was hit has not been questioned before us.
35. To prove the terrorist acts committed by the gangs Bhai Thakur
and Manik Patil, the prost:cution had examined some police officers and
some others who were the victims of thL terrorist acts. The police officers
D examined by the prosecution were PI Tadavi (PW. 68), ASI Paradkar (P.W.
69), PSI Ram Krishna (P.W. 70), SDPO Deshmukh (P.W. 71), DIG
Suradakar (P.W. 75), DGP Baraokar (P.W. 77) and ACP Vasant Pagare
(P.W. 90). Pl Tadavi (P.W. 68) was attached to the Virar police station
between 9.4.1985 and 24.1.1986. He has deposed that during that period
E he had found the three gangs operating in the area under the police station.
They were the gangs of Bhai Thakur, Nizam and Kery. Bhai Thakur's gang
was a strong one and had established supremacy over others. He has
further stated that modus operandi of Bhai Thakur's gang was to create
pre-planned alibi while committing offence. In his cross-examination he
admitted that he had not made any report to any of his superior officers
F regarding the activities of these three gangs. He, however, stated that he
had gathered all that information through the enquiries made by him. ASI
Paradkar (P.W. 69) was attached to Virar police station as police Havaldar
between 8.8.1988 and 31.7.1989. PI Kukdolkar (A- 15) was Police Inspector
of the police station at that time. He has deposed that Gajanan Patil and
G Manik Patil were residing in Nilemore village and had created fear in that
locality by beating people .md the people used to be afraid of them. He
has further stated that from the police record he had come to know that
three gangs of Bhai Thakur, Karu and Nizam were operating in that area
and that those three gangs used to fight with one another for establishing
H supremacy. Manik Patil (A-6) and Gajanan Patil were members of the gang
SX DU:!!-<. v. N.R BHOIR IU.T. NANAVATI, J.j 243
of Bhai Thakur. He has also deposed that he had seen Bhai Thakur/ A
Hitendra Thakur (!VLP.) and Prashant Tandel (A-8) coming to the police
station to meet PI Kukdolkar. He has further deposed that PI Nimbalkar,
who was attached to L.CB. Thane then, often used to come to Virar and
stay with Pl Kukdolkar and both of them used to call Prashant Tandel
(A-8) to see them. He admitted that he had not taken any action against
B
any ol these gangs nor he had suspected anything wrong or improper
because of those met:tings. 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
offonces against Bhai Thakur. In 1984 he was attached to CID Crime. Out c
of those three cases two cases were transferred to CID branch and in the
third case the accused were acquitted. He stated that the said two cases
were compounded out of fear. But he admitted in his cross-examination
that he had not made any report to any higher officer in that behalf.
Deshmukh (P.W. 71) was the SDPO of the Western Railway between D
1.3.1992 and 30.6.1993. He had no personal 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 received any
E
complaint against those two gangs for forcibly taking away any land or
collection of 'haftas' or beating any member of the public. DIG Suradakar
(P.W. 75) has deposed that though he had come to know about the
existence of the gangs of Bhai Thakur and Manik Patil and acts of violence
committed by them and creation of an atmosphere of terror in that area,
he had no personal knowledge about the same. PI Pagare (P.W. 90) was F
examined to prove the involvement of Bhai Thakur's gang in CR No. 43/84
under Sections 302, 147, 148 and 149 of IPC and 25(c) of the Arms Act at
Virar police station. He had investigated that offence and submitted hi.
report (Ext. 618). In his cross-examination he admitted that he did not
know if A-9, Hitendra Thakur was discharged in that case. He also stated G
that the said case was still pending in the Thane court. As rightly held by
the learned trial Judge, the evidence of the police officers as regards the
tt:rrorist acts stated to have been committed by the gangs of Bhai Thakur
and Manik Patil is of general nature and vogue they have referred to some
cases filed agamst Bhai Thakur and members of his gang. Even if the
244 SUPREME COURT RHORTS [2000) 1 S.C.R.
A allegations made in those cases are believed as correct they fall short of
establishing terrorist acts' as contemplated by the TADA Act.
36. The prosecution abo examined Pushpa Pendhari (P.W. 19),
Bairam (P.W. 34), Kanhaya (P.W. 35), Jaffar (P.W. 40), Waman (P.W. 41),
B Sakharam (P.W. 42), Jajannath (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 45 have not referred to any specific terrorist act committed by those
two gangs. P.W. 97 has deposed about an incident which is beyond the
charge period and, therefore, her evidence was rightly not considered by
C the Trial Court. P.W. l9 has deposed about some acts of the gangs of Bhai
Thakur and Manik Patil, the nvalry 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 demandt::d and threats were given to him by Bhai Thakur and
D 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 l966. He has d..:posed that he was assaulted
by the men of Bhai Thakur in 1984 and, thert:fore, 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
E evidence of these witnesses even if it is believed it proves commission of
illegal acts involving violence but falls short of constituting 'terrorist acts'
as contemplated 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
F 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 involve-
G ment 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 ilkgal activities committtd by those two gangs. We,
H therefore, hold A-1 to A-6 guilty under Section 3(3) of the TADA Act also.
S.N. Dt:BF v. N.B. BHOlR '.G.T. NANAVATI,J.] 245
37. The charge against the police officers A-14 to A-17 was that as A
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
dishorn:st investigation have tried to screen the real offenders from legal
punishment and tht:reby they have committed offences punishable under
Sections 201, 217 and 218 read with 120-B LP.C. They are also charged for
the offences punishable under Sections 3(3) and 3(4) of the TADA Act
B
read with 120-B l.P.C. Except the confessional statements of the co-ac-
cused there is no other indt:pendent 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 re!ations with Bhai
Thakur and A-8 (Prashant) and that tht;y had possibly helped Bhai Thakur C
and Manik Patil in screening the real offend1;;rs. Thi! role which they played
crea.tes a strong suspicion regarding tht:ir connection with the gangs of Bhai
Thakur and Manik Patil. Howt:wr, we do not think it safe to convict them
only on the basis of the confessions of the co-accm.ed.
38. In the result, these appeals are partly allowed. The judgment and D
the order of acquittal passed by the learned Judge, Designated Court, Pune
in Terrorist Sessions Case No. 32 of 1993 in favour of respondent Nos. 1
to 6 (A- I to A-6) arc sct aside. Respondent Nu. I Narcndera Bhoir is
convicted under Section 302 l.P.C. and sentcnced to suffer imprisonment
for life. He is also convicted under Section 25(1)(a) of the Arms Act and E
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 l.P.C. and sentenced to suffer imprisonment for lifo. Respon-
dent Nos. 1 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 ac-
quitted of other charges. Acquittal of the rest of the respondents is F
confirmed and appeals against them are dismissed.
- S.M. Appeals dismissed.
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