IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.473 OF 2007

Mohmed Amin @ Amin Choteli … Appellants Rahim Miyan Shaikh & Anr.

Versus

C.B.I. through its Director … Respondent  

With

Criminal Appeal Nos.484, 582 and 705 of 2007

J U D G M E N T

G.S. Singhvi, J.

These appeals by Mohmed Faruk @ Frauk Baba Alla Rakha Shaikh,

Mohmed  Umar  Majid  Ahmed  Pathan  @  Mohmed  Fighter  @  Mohmed

Pahelwan  @  Mohmedkhan,  Sajidali  @  Denny  Mohmed  Ali  Saiyed,

Mohmed Amin @ Amin Choteli  Rahim Miyan Shaikh,  Iqbal  Hussain @

Laliyo  Dhobi  Kasambhai  Shaikh,  Salimkhan  Sikandarkhan  Pathan  @

Azamkhan  Pathan  and  Gulam  Mohmed  @  Gulal  Kadarbhai  Shaikh

(hereinafter described as appellant Nos. A-4, A-5, A-6, A-7, A-8, A-10 and

A-11  respectively)  are  directed  against  judgment  dated  6.2.2007  of  the

Designated  Judge  (TADA),  Ahmedabad  (hereinafter  referred  to  as  ‘trial

Court’) whereby they were acquitted of charges under Section 3 and 5 of

The Terrorist  and Disruptive Activities  (Prevention) Act,  1987 (for  short

‘the Act’) but were held guilty of different offences under the Indian Penal

Code  (for  short  ‘IPC’)  and  sentenced  to  life  imprisonment.  Appellant

Nos.A-5 and A-8 were also convicted under Section 27 of the Arms Act,

1959  and  sentenced  to  three  years  rigorous  imprisonment  and  a  fine  of

Rs.3,000/-  and in  default  to undergo rigorous  imprisonment for  a further

period of six months.  They were also convicted under Section 135 of the

Bombay Police Act.  

2. Background facts

(i) On 3.8.1992, Hansraj Trivedi, an alleged supplier of illicit liquor and

eight  others  were  gunned  down  at  Radhika  Gymkhana  Club,

Ahmedabad. Although the Police registered Criminal Case No.254 of

1992 in  connection  with  that  incident  but  effective  steps  were  not

taken  to  arrest  Abdul  Latif  and  his  gang  members,  who  were

perceived as the culprits.  There was public outcry against the police

inaction.   This  compelled  the  concerned  officers  to  intensify their

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efforts to arrest the accused.  In the wake of this development, Abdul

Latif  and  members  of  his  gang  planned  surreptitious  surrender  of

some unimportant members of their party so that real culprits could

go scot-free. For this purpose, he sought help of a local politician Shri

Hassankhan Shamsherkhan Pathan @ Hassanlala. The latter appears

to  have  made  efforts  to  facilitate  surrender  of  some  members  of

Abdul Latif gang but he could not succeed apparently because Abdul

Rauf  Mohmed  Bhai  @  Rauf  Valiullah  (former  member  of  Rajya

Sabha  and  General  Secretary  of  Gujarat  Pradesh  Congress  (I)

Committee) who came to know of this plan stoutly opposed the same

and  is  said  to  have  prepared  a  memorandum,  which  was  to  be

submitted  to  the  Central  Government  to  expose  criminal-political

nexus in the State. In order to prevent him from doing so, Abdul Latif

and gang  decided  to  eliminate  Rauf  Valiullah  and  to  create  terror

among the people so that no one could come forward to oppose the

plan of surreptitious surrender. The task of finishing Rauf Valiullah

was entrusted to Rasoolkhan Yakubkhan Pathan @ Rasool Party and

his gang.  Some members of Rasool Party followed Rauf Valiullah

from  6.10.1992  to  8.10.1992  but  they  could  not  target  him.  On

9.10.1992,  appellant  Nos.A-5,  A-7,  A-8 and A-11 were deputed to

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finish Rauf Valiullah.   They accomplished the  task  at  around 2.30

p.m. when  A-5  fired  three  shots  with  38-bore  revolver  from close

range at the deceased while he was entering Maruti car parked outside

Madhuban Building.   

(ii) Pradeep  Bhai  @  Bakkabhai  Nautamlal  Dave  (PW-28),  who  had

accompanied the deceased to Madhuban building and was present at

the  site,  lodged  F.I.R.  (Exh.179)  at  Ellisbridge  Police  Station.

Thereupon, a case was registered under Section 302 read with Section

120B IPC, Section 25(1) (a) and (b) of the Arms Act and Sections 3

and 5 of the Act.

(iii) The investigation of the case was initially conducted by a police team

headed  by  Assistant  Commissioner  of  Police,  ‘D’  Division,

Ahmedabad,  Mr.  Makbulahmed  Mohd.  Hanif  Anarwala,  but  in

furtherance of  Notification dated 12.2.1993 and corrigendum dated

17.2.1993 issued by the Government of India under Section 5 of the

Delhi Special Police Establishment Act, 1946, with the consent of the

Government of Gujarat, the case was entrusted to the Central Bureau

of Investigation (CBI).   After completing investigation and obtaining

sanction  from Commissioner  of  Police,  Ahmedabad,  the  CBI  filed

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charge-sheet  under  Section  3(1),  3(3)  and  (5)  of  the  Act,  Section

120B read with Section 302 IPC, Section 302 read with Sections 34

IPC, Section 302 read with Section 114 IPC, Section 302 IPC and

Section 27 of the Arms Act.  The case was committed to Designated

Court  and  was  numbered  as  TADA  Case  No.176  of  1993.

Subsequently, two more charge-sheets were submitted and the same

were numbered as TADA Cases No. 25 of 1996 and 32 of 1996.  All

the cases were consolidated and were tried together.   

(iv) The  charges  were  framed on 2.7.1998  against  11  accused.   All  of

them pleaded not guilty.  The prosecution examined 124 witnesses

and produced 147 documents, which were duly exhibited.  Thereafter,

statements of the accused were recorded under Section 313 of Code

of  Criminal  Procedure (Cr.P.C.).   They alleged that  the  police  has

foisted false cases against them to avoid embarrassment for having

failed to solve the mystery surrounding the murder of Rauf Valiullah

and that confessions were extracted from them by using coercion and

threats.   

3. After  analyzing  the  evidence  produced  by  the  prosecution  and

considering the confessions made by the appellants except appellant No.A-

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11, under Section 15 of the Act as also the statements made by them under

Section 313 Cr.P.C., the trial Court concluded that the prosecution has been

able to establish the charges of conspiracy and murder and held Javedkhan

@  Jaid  Azizkhan  Pathan,  Mohd.  Taslim  Mohd  Umar  Shaikh,  appellant

Nos.A-6, A-7, A-8 and A-10 guilty under Section 120B and Section 302

read with Section 120B IPC.  Appellant Nos.A-4 and A-11 were held guilty

of offence punishable under Section 114 read with Section 120B IPC and

Section 302 read with Section 114 IPC.  Appellant Nos.A-5 and A-8 were

held  guilty  under  Section  27  of  the  Arms  Act  and  Section  135  of  the

Bombay Police Act. Abdul Khurdush was acquitted of all the charges but

was found guilty under Section 176 IPC.  However, all the accused were

acquitted of the charge under Sections 3 and 5 of the Act.  Abdul Khurdush

was sentenced to one months imprisonment with a fine of Rs.500/- and in

default  to undergo further simple imprisonment of one month.  Appellant

Nos.A-4,  A-5,  A-6,  A-7,  A-8,  A-10  and  A-11  were  sentenced  to  life

imprisonment.  Each of them was also directed to pay fine of Rs.5000/- and

in  default  to  undergo  rigorous  imprisonment  for  one  year.   Appellant

Nos.A-5 and A-8 were sentenced to 3 years imprisonment for offence under

Section  27  of  Arms  Act  and  in  default  to  undergo  6  months  simple

imprisonment.   For offence under Section 135(1) of Bombay Police Act,

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appellant Nos.A-5 and A-8 were awarded sentence of one month with fine

of Rs.500/- and in default to undergo simple imprisonment for a period of

one month.

Arguments

4. Learned  counsel  for  the  appellants  argued  that  the  impugned

judgment is liable to be set aside because the findings recorded by the trial

Court  on  the  charges  of  conspiracy and murder  are not  based  on legally

admissible evidence.  They emphasized that the prosecution did not produce

any evidence to prove the ingredients  of  conspiracy i.e.  an agreement or

meeting of mind to commit the murder of Rauf Valiullah and argued that in

the absence of such evidence the appellants could not have been convicted

under Section 302 read with Section 120-B IPC.  Learned counsel submitted

that the language of confessions made by all the appellants is identical and

this  should  have put  the  trial  Judge on guard and a deeper  scrutiny was

required to be made on the issue of voluntary character of the confessions,

which  the  learned  Presiding  Officer  failed  to  do  and  argued  that  the

appellants could not have been convicted by relying on confessions ignoring

that the same were not voluntary.  Learned counsel extensively referred to

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the statements made by the appellants under Section 313 Cr.P.C. to show

that  they were subjected to physical  torture for the purpose of extracting

confession and submitted that the same should have been rejected by the

trial Court because,     

(i) All the appellants were brought from Ahmedabad to Delhi within

24  hours  of  their  arrest  and  they  were  compelled  to  make

confessions without giving them adequate time to ponder over the

consequences.

(ii) The appellants were throughout kept in the custody of Shri O.P.

Chatwal,  Deputy  Superintendent  of  Police  and  Investigating

Officer (for short `the Investigating Officer’) and were deprived of

the legal assistance.

(iii) The appellants  were produced before Shri  A.K. Majumdar, PW-

104  and  Shri  Harbhajan  Ram, PW-103  (both  Superintendent  of

Police, CBI) for the purpose of recording their confessions despite

the fact that they were directly supervising the investigation and

were in a position to dominate the will of the appellants.

(iv) After  preliminary  questioning,  the  concerned  Superintendent  of

Police handed over the appellants to the Investigating Officer, who

again  produced  them for  the  purpose  of  making  statement  and

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confessions of the appellants were recorded under the dictates of

the officers.

(v) Shri A.K. Majumdar and Shri Harbhajan Ram did not follow the

guidelines laid down by this Court in  Kartar Singh vs. State of

Punjab [1994 (3) SCC 569], except in the case of appellant No.A-

10,  inasmuch  as  they  were  not  produced  before  Chief  Judicial

Magistrate, Delhi.

(vi) Copies  of  the  confessional  statements  were  supplied  to  the

Investigating Officer even before the same were dispatched to the

concerned Court.

(viii) The appellants had retracted their confessions on the first available

opportunity.

5. Ms. Kamini Jaiswal, learned counsel for appellant Nos.A-7, A-8 and

A-11  placed  reliance  on  the  judgment  of  this  Court  in  State  through

Superintendent of Police, CBI/SIT vs. Nalini and Others [1999 (5) SCC

253] and argued that the trial Court committed serious error by convicting

the appellants without requiring the prosecution to produce some evidence

to  corroborate  the  confessions.   She  laid  considerable  emphasis  on  the

alleged failure of prosecution to explain as to why the appellants were taken

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from Ahmedabad to Delhi in the guise of conducting Polygraphic test when

the facility for that test is available at Ahmedabad and CBI officers of the

rank  of  Superintendent  of  Police  are  also  stationed  at  Ahmedabad  and

argued that the confessions made by the appellants (except appellant No.A-

11) ought to have been discarded only on this ground notwithstanding the

fact that the prosecution had made an endeavour to  show compliance of

Section 15 of the Act and Rule 15 of  the TADA Rules, 1987 (for short ‘the

Rules). She invited the Court’s attention to the averments contained in Crl.

Misc.  No.2160 of  1994 filed  before  the  High Court  on  behalf  of  Abdul

Khurdush, Abdul Ghani Khan Sheikh and appellant Nos.A-1, A-4, A-7 and

A-8, which was dismissed on 6.2.1995 and SLP (Crl.) No.1582 of 1995 to

show that  her  clients  had  retracted  the  confessions  at  the  first  available

opportunity, reiterated the same in the statements made under Section 313

Cr.P.C. and argued that such type of confessions could not be made basis

for convicting them on the charge of murder.     

6. Shri Vimal Chandra S. Dave, counsel appearing for appellant Nos.A-

4 and A-10 argued that the confessions of the appellants are liable to be

rejected  because  both  Shri  A.K.  Majumdar  and  Shri  Harbhajan  Ram,

Superintendents  of  Police,  CBI,  who  were  actively  supervising  the

investigation,  had  successfully  tutored  the  minds  of  the  appellants  and

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induced them to make confessions.  Shri Dave submitted that all the accused

were kept in the custody of the Investigating Officer for 10 days before their

confessions  were  recorded  but  this  aspect  has  been  ignored  by  the  trial

Court  while deciding the issue of voluntary character  of the confessions.

Shri  Dave pointed out that appellant  No.A-10 retracted his confession on

25.7.1996 itself  when he was  produced before  Chief  Judicial  Magistrate,

Delhi and argued that the trial Court committed serious illegality by relying

upon the retracted  confession.   Dr.  Sushil  Gupta  argued that  there  is  no

evidence to link accused with the conspiracy allegedly hatched by Rasool

Party and  the  learned Trial  Judge  committed  serious  error  by convicting

them.   In  support  of  their  arguments  learned  counsel  relied  upon  the

judgments of this Court in Raja Khima vs. State of Saurashtra [AIR 1956

SC 217], Sarwan Singh Rattan Singh vs. State of Punjab [AIR 1957 SC

637], Shankaria vs. State of Rajasthan [1978 (3) SCC 435], Aloke Nath

Dutta  vs.  State  of  West  Bengal [2006  (13)  Scale  467]  and  State  of

Rajasthan vs. Ajit Singh [2007 (12) Scale 451].   

7. Shri Amarjit Sharan, learned Additional Solicitor General relied upon

Section 15(1) of the Act (as amended in 1993) and the judgments of this

Court in Gurdeep Singh vs. State (Delhi Admn.) [2000 (1) SCC 498], Lal

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Singh  vs.  State  of  Gujarat  [2001  (3)  SCC  221],  Jayawant  Dattatray

Suryarao vs. State of Maharashtra  [2001 (10) SCC 109],  Devender Pal

Singh vs. State of NCT of Delhi [2002 (5) SCC 234], Jameel Ahmad vs.

State of Rajasthan [2003 (9) SCC 673] and  Abdulvahab Abdul Majid

Shaikh  vs.  State  of  Gujarat  [2007  (9)  SCC  293]  and  argued  that  the

confessions made under the Act is a substantive piece of evidence and can

be used not only against the maker but also against co-accused, abettor or

conspirator.  He submitted that the trial Court did not commit any illegality

by relying upon the confessions of the appellants because the same were

recorded strictly in accordance with the procedure laid down in Rule 15 of

the  Rules.  On  the  issue  of  voluntary  character  of  confessions  of  the

appellants,  the learned Additional Solicitor General argued that recording

thereof  at  Delhi  under  the  supervision  of  Shri  A.K.  Majumdar  and  Shri

Harbhajan  Ram  cannot  lead  to  an  inference  that  the  same  were  not

voluntary.  Shri Sharan laid considerable emphasis on the fact that by virtue

of order passed under Section 268 Cr.P.C., the Court had given custody of

the appellants to the Investigating Officer and argued that he alone could

have produced them before the concerned Superintendent of Police for the

purpose of recording confession.  Shri Sharan submitted that handing over

of the accused to  the Investigating Officer  after  recording of preliminary

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statement under Rule 15(1), cannot be dubbed as illegal because in terms of

the order  passed by the competent  Court,  Investigating  Officer  was duty

bound to  keep the custody of the accused.   Learned Additional  Solicitor

General  then  submitted  that  the  statements  contained  in  discharge

application filed before the trial Court and the SLP filed before this Court

are per se contradictory and same cannot be relied upon for declaring the

confessions to be non-voluntary.  Shri Sharan then referred to the judgment

of the Constitution Bench in  Prakash Kumar vs. State of Gujarat [2005

(2) SCC 409] and argued that the conviction of the appellants under Section

302 read with Section 120B IPC cannot be faulted on the ground that they

were acquitted of the charge under the Act.  In the end, he argued that para 2

of the guidelines laid down by this Court in  Kartar Singh’s case which

requires that the person who makes confession under Section 15(1) of the

Act should be produced before the Chief Metropolitan Magistrate or Chief

Judicial  Magistrate  to  whom the  confession  is  required  to  be sent  under

Rule 15(5) of the Rules along with original statement of confession, is not

attracted in the present case because confessions of the appellants except

appellant no.A-10 were recorded prior to 11.3.1994 i.e. the date of judgment

and insofar as appellant no.A-10 is concerned, he was produced before the

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Chief Judicial Magistrate, Delhi on the date his confession was recorded i.e.

25.7.1996.   

8. We have given serious thought to the entire matter.  Section 15 of the

Act, as amended by Act No.43 of 1993 and Rule 15 of the Rules which have

bearing on these cases read as under:-

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Section 15 of the Act

“Certain  confessions  made to  Police  Officers  to  be  taken

into consideration– (1)Notwithstanding anything in the Code

or in the Indian Evidence Act, 1872 (1 of 1872), but subject to

the provisions of this section, a confession made by a person

before a police officer not lower in rank than a Superintendent

of Police and recorded by such police officer in writing or on

any  mechanical  device  like  cassettes,  tapes  or  sound  tracks

from out of which sounds or images can be reproduced, shall

be admissible in the trial of such person or co-accused, abettor

or  conspirator  for  an  offence  under  this  Act  or  rules  made

thereunder:

Provided that co-accused, abettor or conspirator is charged and

tried in the same case together with the accused.

(2)  The police  officer  shall,  before  recording any confession

under sub-section (1), explain to the person making it that he is

not bound to make a confession and that, if he does so, it may

be used as evidence against him and such police officer shall

not  record  any such  confession  unless  upon  questioning  the

person making it, he has reason to believe that it is being made

voluntarily.

Rule 15 of the Rules

Recording  of  confession  made  to  police  officers.–  A

confession  made  by  a  persons  before  a  police  officer  and

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recorded by such police officer  under  Section 15 of  the  Act

shall  invariably  be  recorded  in  the  language  in  which  such

confession  is  made  and  if  that  is  not  practicable,  in  the

language used by such police officer for official purposes or in

the language of the Designated Court and it shall form part of

the record.

(2) The  confession  so  recorded  shall  be  shown,  read  or

played  back  to  the  person  concerned  and  if  he  does  not

understand  the  language  in  which  it  is  recorded,  it  shall  be

interpreted to him in a language which he understands and he

shall be at liberty to explain or add to his confession.

(3) The confession shall, if it is in writing, be–

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

(b) by the police officer who shall certify under his own

hand that such confession was taken in his presence and

recorded by him and that the record contains a full and

true account of the confession made by the person and

such police officer shall make a memorandum at the end

of the confession to the 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 confession was voluntarily made.  It was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by  him  to  be  correct,  and  it  contains  a  full  and  true account of the statement made by him.

Sd/- Police Officer”

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(4) Where  the  confession  is  recorded  on  any  mechanical

device, the memorandum referred to in sub-rule (3) in so far as

it is applicable and a declaration made by the person making

the  confession  that  the  said  confession  recorded  on  the

mechanical device has been correctly recorded in his presence

shall also be recorded in the mechanical device at the end of

the confession.

(5) Every  confession  recorded  under  the  said  Section  15

shall be sent forthwith to the Chief Metropolitan Magistrate or

the Chief Judicial Magistrate having jurisdiction over the area

in  which  such  confession  has  been  recorded  and  such

Magistrate shall forward the recorded confession so received to

the  Designated  Court  which  may  take  cognizance  of  the

offence.”

9. The  challenge  to  constitutional  validity  of  the  Act  was  rejected  in

Kartar  Singh’s  case. While  doing  so,  the  Court  took  note  of  the

apprehension expressed by some of the learned counsel that the provisions

of  the  Act  are  likely  to  be  misused  for  coercing  the  accused  to  make

confession and laid down the following guidelines:-

“(1) The confession should be recorded in a free atmosphere in

the  same  language  in  which  the  person  is  examined  and  as

narrated by him;

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(2)  The  person  from whom a  confession  has  been  recorded

under Section 15(1) of the Act, should be produced before the

Chief Metropolitan Magistrate or the Chief Judicial Magistrate

to whom the confession is required to be sent under Rule 15(5)

along  with  the  original  statement  of  confession,  written  or

recorded on mechanical device without unreasonable delay;

(3)  The  Chief  Metropolitan  Magistrate  or  the  Chief  Judicial

Magistrate  should  scrupulously  record  the  statement,  if  any,

made by the accused so produced and get his signature and in

case of any complaint of torture, the person should be directed

to  be  produced  for  medical  examination  before  a  Medical

Officer not lower in rank than of an Assistant Civil Surgeon;

(4)  Notwithstanding  anything  contained  in  the  Code  of

Criminal Procedure, 1973, no police officer below the rank of

an Assistant Commissioner of Police in the Metropolitan cities

and elsewhere of a Deputy Superintendent of Police or a police

officer  of  equivalent  rank,  should  investigate  any  offence

punishable under this Act of 1987.

This is necessary in view of the drastic provisions of this Act.

More so when the Prevention of Corruption Act, 1988 under

Section 17 and the Immoral Traffic Prevention Act, 1956 under

Section 13, authorise only a police officer of a specified rank to

investigate the offences under those specified Acts.

(5) The police officer if he is seeking the custody of any person

for  pre-indictment  or  pre-trial  interrogation  from the  judicial

custody,  must  file  an  affidavit  sworn  by  him explaining  the

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reason not only for such custody but also for the delay, if any,

in seeking the police custody;

(6) In case, the person, taken for interrogation, on receipt of the

statutory warning that he is not bound to make a confession and

that if he does so, the said statement may be used against him

as evidence, asserts his right to silence, the police officer must

respect his right of assertion without making any compulsion to

give a statement of disclosure.”

10. Although  the  Constitution  Bench  observed  that  the  Central

Government  may  take  note  of  the  guidelines  and  incorporate  them  by

appropriate amendments in the Act and the Rules, necessary amendments

have not been carried out so far.

11. The question whether a confession recorded under Section 15 of the

Act  can  be  used  for  convicting  an  accused  for  an  offence  under  other

enactments  like IPC despite his  acquittal  of  the charge framed under the

Act,  was considered and answered in negative by a two-Judges Bench in

Bilal Ahmad Kaloo vs. State of A.P. [1997 (7) SCC 431].  The same view

was reiterated in Rambhai Nathabhai Gadhvi vs. State of Gujarat [1997

(7) SCC 744] and Gurprit Singh vs. State of Punjab [2002 (10) SCC 201].

However, in  Nalini’s case, a three-Judges Bench held that  if a person is

19

tried simultaneously for offences under the Act along with other enactments

his   acquittal  in  respect  of  an  offence  under  the  Act  is  not  sufficient  to

discard the confession recorded under Section 15 of the Act and the same

can be used for conviction under other enactments.  The three-Judges Bench

referred to the earlier judgments in Bilal Ahmad’s case (supra),  Rambhai

Nathabhai  Gadhvi’s  case (supra),  Gurprit  Singh’s  case (supra)  and

observed:

“Section 12 of TADA enables the Designated Court to jointly

try, at the same trial, any offence under TADA together with

any other offence “with which the accused may be charged” as

per  the  Code  of  Criminal  Procedure.  Sub-section  (2)  thereof

empowers the Designated Court to convict the accused, in such

a trial, of any offence “under any other law” if it is found by

such Designated Court in such trial that the accused is found

guilty  of  such  offence.  If  the  accused  is  acquitted  of  the

offences  under  TADA  in  such  a  trial,  but  convicted  of  the

offence under any other law, it  does not mean that there was

only a trial for such other offence under any other law. Section 15 of TADA enables the confessional statement of an

accused made to a police officer specified therein to become

admissible “in the trial of such a person”. It means, if there was

a  trial  of  any  offence  under  TADA together  with  any  other

offence  under  any  other  law,  the  admissibility  of  the

confessional statement would continue to hold good even if the

accused is acquitted under TADA offences.”

20

12. The  correctness  of  the  above  extracted  portion  of  the  Nalini’s

judgment was doubted by a two-Judges Bench in Prakash Kumar’s case

(supra). When the matter was placed before a three-Judges Bench, the same

was referred to five-Judges Bench.  The larger Bench rejected the argument

of the appellant’s counsel  that the words “for an offence under this Act”

employed in Section 15 makes the confession admissible only for an offence

under the Act and not for other offences and approved the ratio of Nalini’s

case on  the  issue  of  use  of  confession  recorded  under  Section  15  for

convicting  an  accused  under  other  enactments.   For  the  sake  of  clarity,

paragraphs 33, 35 and 36 of the judgment of the larger Bench are extracted

below:-  

“33. A conjoint reading of the two sections as a whole leaves

no manner of doubt that one provision is to be construed with

reference to the other provision and vice versa so as to make

the provision consistent with the object sought to be achieved.

The scheme and object of the Act being the admissibility of the

confession recorded under Section 15 of the Act in the trial of a

person or co-accused, abettor or conspirator charged and tried

in the same case together with the accused, as provided under

Section 12 of the Act.

35. Section 12(1) as quoted above authorises the Designated

Court to try offences under TADA along with another offence

21

with  which  the  accused  may be  charged  under  CrPC at  the

same trial. The only embargo imposed on the exercise of the

power is that the offence under TADA is connected with any

other  offence  being  tried  together.  Further,  Section  12(2)

provides  that  the Designated  Court  may convict  the  accused

person of offence under that Act or any rule made thereunder or

under any other  law and pass any sentence authorised under

that Act or the Rules or under any other law, as the case may be

for the punishment thereof, if in the course of any trial under

TADA the accused persons are found to have committed any

offence either  under that  Act  or any rule  or under any other

law.

36. The  legislative  intendment  underlying  Sections  12(1)

and (2) is clearly discernible, to empower the Designated Court

to  try and convict  the accused for  offences committed under

any other law along with offences committed under the Act, if

the offence is connected with such other offence. The language

“if the offence is connected with such other offence” employed

in  Section  12(1)  of  the  Act  has  great  significance.  The

necessary corollary is that once the other offence is connected

with the  offence under  TADA and if  the accused is  charged

under  the  Code  and  tried  together  in  the  same  trial,  the

Designated Court is empowered to convict the accused for the

offence under any other law, notwithstanding the fact that no

offence  under  TADA  is  made  out.  This  could  be  the  only

intendment of the legislature. To hold otherwise, would amount

22

to rewrite or recast legislation and read something into it which

is not there.”

13. In view of the last mentioned judgment of the larger Bench, it must be

treated as settled law that even if a person is acquitted of the charge under

the Act, a confession recorded under Section 15 can be used for convicting

him for an offence under other enactments including IPC.

14. At this stage, we may notice some judgments in which law relating to

confessions has been generally discussed.   

15. In  Pakala Narayana Swami vs. Emperor [AIR 1939 PC 47] Lord

Atkin elucidated the meaning and purport of the expression “confession” in

the following words:

“confession must either admit in terms the offence, or at any

rate substantially all the facts which constitute the offence.  An

admission of a gravely incriminating fact, even a conclusively

incriminating fact is not of itself a confession…..”

16. In Bhuboni Sahu vs. The King [AIR (36) 1949 PC 257], the Privy

Council interpreted Section 30 of the Indian Evidence Act, 1872 (for short,

‘the 1872 Act’) and held:

23

“9. This  section  was  introduced  for  the  first  time  in  the

Evidence  Act  of  1872,  and  marks  a  departure  from  the

Common Law of England.  It will be noticed that the section

applies  to  confessions,  and  not  to  statements  which  do  not

admit the guilt of the confessing party. In the present case the

Courts in India appreciated this, and ruled out statements made

by  certain  of  the  accused  which  were  self-exculpatory  in

character. The statement of Trinath was, however, a confession.

Section 30 seems to be based on the view that an admission by

an  accused  person  of  his  own  guilt  affords  some  sort  of

sanction in support of the truth of his confession against others

as  well  as  himself.  But  a  confession  of  a  co-accused  is

obviously evidence of a very weak type.  It  does not  indeed

come  within  the  definition  of  “evidence”  contained  in  S.3

Evidence Act. It is not required to be given on oath, nor in the

presence  of  the  accused,  and  it  cannot  be  tested  by  cross-

examination.   It is  a much weaker type of evidence than the

evidence of an approver which is not subject to any of those

infirmities. Section 30, however, provides that the Court may

take the confession into consideration and thereby, no doubt,

makes it evidence on which the Court may act; but the section

does not say that the confession is to amount to proof.  Clearly

there  must  be  other  evidence.  The  confession  is  only  one

element in the consideration of all the facts proved in the case;

it  can  be  put  into  the  scale  and  weighed  with  the  other

evidence.   Their  Lordships  think  that  the  view  which  has

prevailed in most of the High Courts in India, namely that the

24

confession of a co-accused can be used only in support of other

evidence and cannot be made the foundation of a conviction, is

correct.” (Emphasis supplied]

17. The same view was reiterated in Raja Khima’s case, and it was held

that confession made by a person accused of an offence can be relied upon

for convicting him only if  the Court  is  satisfied that  the same was made

voluntarily. Applying this principle in  Bharat vs. State of U.P. [1971 (3)

SCC 950], the Court observed that “the voluntary nature of the confession

depends upon whether there was any threat, inducement or promise and its

truth is  judged in the  context  of the entire prosecution case and that  the

confession must fit into the proved facts and not run counter to them.”  The

Court held that “when the voluntary character of the confession and its truth

are accepted it is safe to rely on it. Indeed a confession, if it is voluntary and

true and not made under any inducement or threat or promise, is the most

patent piece of evidence against the maker. The Court also dealt with the

issue of retracted confession and held that “a court may take into account

the retracted confession, but it must look for the reasons for the making of

the  confession  as  well  as  for  its  retraction,  and  must  weigh  the  two  to

determine  whether  the  retraction  affects  the  voluntary  nature  of  the

confession or not. If the court is satisfied that it was retracted because of an

25

after thought or advice, the retraction may not weigh with the court if the

general facts proved in the case and the tenor of the confession as made and

the  circumstances  of  its  making  and  withdrawal  warrant  its  user.  …….

Therefore, it can be stated that a true confession made voluntarily may be

acted upon with slight evidence to corroborate it, but a retracted confession

requires the general assurance that the retraction was an after thought and

that the earlier statement was true.”

18. The legal position on retracted confession was clarified in Pyare Lal

Bhargava vs. State of Rajasthan [AIR 1963 SC 1094] in the following

words:

“A  retracted  confession  may  form  the  legal  basis  of  a

conviction  if  the  court  is  satisfied  that  it  was  true  and  was

voluntarily made.  But it  has been held that  a court  shall  not

base a conviction on such a confession without corroboration.

It is not a rule of law, but is only rule of prudence. It cannot

even be laid down as an inflexible rule of practice or prudence

that  under  no  circumstances  can  such  a  conviction  be  made

without corroboration, for a court may, in a particular case, be

convinced of the absolute truth of a confession and prepared to

act upon it without corroboration; but it may be laid down as a

general  rule  of  practice  that  it  is  unsafe  to  rely  upon  a

confession,  much  less  on  a  retracted  confession,  unless  the

26

court  is  satisfied  that  the  retracted  confession  is  true  and

voluntarily  made  and  has  been  corroborated  in  material

particulars.”

27

CASES UNDER TADA

19. While enacting the Act, the legislature designedly made a departure

from  the  provisions  of  the  Cr.P.C.  and  1872  Act  and  declared  that

confession  made  by  a  person  before  a  police  officer  of  the  rank  of

Superintendent of Police or above, shall be admissible in the trial of such

person as also the co-accused, abettor or conspirator for an offence under

the Act or rules made thereunder.  In order to ensure that this provision is

not misused for extracting confession from a person accused of committing

an offence under the Act, the legislature also specified certain safeguards in

sub-section  (2)  of  Section  15  of  the  Act  and  Rule  15  of  the  Rules.   In

Gurdeep Singh’s case, this Court interpreted the provisions of Section 15

of the Act in contra-distinction to Section 25 of the 1872 Act and held:

“15. The  legislature  has  conferred  a  different  standard  of

admissibility of a confessional statement made by an accused

under  the  TADA  Act,  from  those  made  in  other  criminal

proceedings.  While  under  Section  15  of  the  TADA  Act  a

confessional statement by an accused is admissible even when

made to a police officer not below the rank of Superintendent

of  Police,  in  other  criminal  proceedings  it  is  not  admissible

unless made to a Magistrate. Section 25 of the Indian Evidence

Act  debars  from evidence  a  confession  of  an  accused  to  a

police officer, except what is permitted under Section 27.

28

20. So the crux of making a statement voluntarily is, what is

intentional, intended, unimpelled by other influences, acting on

one’s own will, through his own conscience. Such confessional

statements  are made mostly out of a thirst  to speak the truth

which  at  a  given  time  predominates  in  the  heart  of  the

confessor  which  impels  him to  speak  out  the  truth.  Internal

compulsion of the conscience to speak out the truth normally

emerges when one is in despondency or in a perilous situation

when  he  wants  to  shed  his  cloak  of  guilt  and  nothing  but

disclosing the truth would dawn on him. It sometimes becomes

so  powerful  that  he  is  ready  to  face  all  consequences  for

clearing his heart.

23. Whenever  an  accused  challenges  that  his  confessional

statement  is  not  voluntary,  the  initial  burden  is  on  the

prosecution  for  it  has  to  prove  that  all  requirements  under

Section 15 and Rule 15 under the TADA Act and Rules have

been  complied  with.  Once  this  is  done  the  prosecution

discharges its initial burden and then the burden shifts on the

accused person. Then it is for him to prove through facts that

the confessional  statement was not  made voluntarily. If such

fact was pleaded and brought on record during trial the court

must test its veracity, whether such fact constitutes to be such

as to make his confessional statement not voluntarily made.”

[Emphasis supplied]

29

20. In  Nalini’s  case the  majority  of  three-Judges  Bench  held  that  by

virtue of non-obstante clause employed in Section 15, the provisions of the

1872 Act and Cr.P.C. stand excluded.  Wadhwa, J. with whom Quadri, J.

concurred noticed the background in which the Act was enacted and held

that,  “Confession of the accused is  admissible with  the same force in its

application to the co-accused who is tried in the same case. It is primary

evidence  and  not  corroborative.  When  the  legislature  enacts  that  the

Evidence  Act  would  not  apply,  it  would  mean all  the  provisions  of  the

Evidence  Act  including  Section  30.  By judicial  interpretation  or  judicial

rigmarole,  as  we may put  it,  the  court  cannot  again bring into  operation

Section 30 of the Evidence Act and any such attempt would not appear to be

quite warranted. Reference was made to a few decisions on the question of

interpretation of Sections 3 and 30 of the Evidence Act, foremost being that

of  the  Privy  Council  in  Bhuboni  Sahu v.  R. and  though  we  note  this

decision,  it  would not  be applicable because of the view which we have

taken on the exclusion of Section 30 of the Evidence Act.”

In  his  concurring  judgment  Quadri,  J.  highlighted  the  distinction

between Section 30 of the 1872 Act on the one hand and Section 15 of the

Act on the other hand and observed that while under the former, the Court is

30

given discretion to take into consideration the confession against the maker

as well as against those who are being tried jointly for the same offence, the

latter provision mandates that confession of an accused recorded thereunder

shall  be  admissible  in  the  trial  of  the  maker  or  co-accused,  abettor  or

conspirator provided that each of them is charged and tried with the accused

in  the  same  case.   His  Lordship  then  held  that  in  view  of  the  express

exclusion  of  the  application  of  Sections  24  to  30  of  the  1872  Act  to  a

confession  recorded under  Section  15(1)  of  the  Act,  the  requirements  of

Section 30 of 1972 Act cannot be read into Section 15 of the Act.  Some of

the observations made by Quadri, J. are extracted below:-

“On the language of sub-section (1) of Section 15, a confession

of an accused is made admissible evidence as against all those

tried jointly with  him, so it  is  implicit  that  the  same can be

considered against all those tried together. In this view of the

matter  also,  Section  30  of  the  Evidence  Act  need  not  be

invoked for consideration of confession of an accused against a

co-accused,  abettor  or  conspirator  charged  and  tried  in  the

same case along with the accused.

The amendments effected in Section 15(1) and Section 21(1) of

the TADA Act by Act 43 of 1993 may be noticed here. The

words “co-accused, abettor or conspirator” and the proviso are

added in sub-section (1) of Section 15; clauses (c) and (d) of

sub-section  (1)  of  Section  21  are  deleted.  Before  the

31

amendment  of  Sections  15  and  21,  the  sweep  of  the  legal

presumption contained therein was that in a prosecution for any

offence under sub-section (1) of Section 3 of the TADA Act on

proof of the facts mentioned in clauses (a), (b), (c) and (d) of

sub-section  (1)  of  Section  21,  it  was  mandated  that  the

Designated Court shall presume, unless the contrary is proved,

that the accused had committed such offence. Clauses (c) and

(d), which are deleted from sub-section (1) of Section 21 by

Act 43 of 1993, related to a confession made by a co-accused

that  the  accused  had  committed  the  offence  and  to  the

confession made by the accused of the offence to any person

other than a police officer. The effect of the said clauses was

that  in  the  event  of  the  co-accused  making  confession

inculpating the accused or in the event of the accused himself

making an extra-judicial confession to any person other than a

police  officer,  the  legal  presumption  that  the  accused  had

committed such offence would arise.

I have already pointed out the difference in the phraseology of

Section 15 of the TADA Act. Parliament used the expression

“shall be admissible in the trial of such person or co-accused,

abettor  or conspirator” in Section 15 which is  different  from

the  language  employed  in  Section  30  of  the  Evidence  Act

which  says  that  the  court  may  take  into  consideration  such

confession as against such other person as well as against the

person who makes such confession. It has to be presumed that

Parliament was aware of the interpretation placed by the courts

including the Privy Council and the Supreme Court on Section

32

30  of  the  Evidence  Act  but  chose  to  frame  Section  15

differently obviously intending to avoid the meaning given to

the  phrase  “the  court  may  take  into  consideration  such

confession as against such other person ...” used in Section 30

of the Evidence Act.  On the language of  Section 15(1),  it  is

clear that the intention of Parliament is to make the confession

of an accused substantive evidence both against the accused as

well as the co-accused.”

21. In  S.N. Dube vs. N.B. Bhoir and Others [2000 (2) SCC 254], the

Court referred to the judgment of the Constitution Bench in Kartar Singh’s

case and  observed  that  Section  15  is  an  important  departure  from  the

ordinary law and must receive that interpretation which would achieve the

object of that provision rather than frustrate it.

22. In  Lal Singh’s  case,  the Court  referred to the earlier judgments in

Kartar Singh’s case, Nalini’s case, S.N. Dubey’s case and held:

“23………Custodial interrogation in such cases is permissible

under the law to meet grave situation arising out of terrorism

unleashed by terrorist activities by persons residing within or

outside the country. The learned counsel further submitted that

in the present  case the guidelines suggested by this Court  in

Kartar Singh  (1994 (3) SCC 569) were not followed. In our

view,  this  submission  is  without  any  basis  because  in  the

33

present case confessional statements were recorded prior to the

date of decision in the said case i.e. before 11-3-1994. Further,

despite  the  suggestion  made  by  this  Court  in  Kartar  Singh

case, the said guidelines are neither incorporated in the Act nor

in the Rules by Parliament. Therefore, it would be difficult to

accept the contention raised by learned counsel for the accused

that  as  the  said  guidelines  are  not  followed,  confessional

statements even if admissible in evidence, should not be relied

upon for  convicting  the accused.  Further,  this  Court  has  not

held in  Kartar Singh case that if suggested guidelines are not

followed then confessional statement would be inadmissible in

evidence.  Similar  contention  was  negatived  by this  Court  in

S.N. Dube v. N.B. Bhoir (2000 (2) SCC 254) by holding that a

police  officer  recording  the  confession  under  Section  15  is

really not bound to follow any other procedure and the rules or

the guidelines framed by the Bombay High Court for recording

the confession  by a Magistrate  under Section 164 CrPC; the

said guidelines do not by themselves apply to recording of a

confession under Section 15 of the TADA Act and it is for the

court  to  appreciate  the  confessional  statement  as  the

substantive  piece  of  evidence  and  find  out  whether  it  is

voluntary and truthful. Further, by a majority decision in State

v.  Nalini  (1999  (5)  SCC  253) the  Court  negatived  the

contentions  that  confessional  statement  is  not  a  substantive

piece of evidence and cannot be used against  the co-accused

unless  it  is  corroborated  in  material  particulars  by  other

evidence and the confession of one accused cannot corroborate

34

the confession  of  another,  by holding  that  to  that  extent  the

provisions of the Evidence Act including Section 30 would not

be applicable.”  

23. In  Jayawant Dattatraya Suryarao’s case,  the Court reiterated the

rule that if conditions embodied in Section 15 of the Act and Rule 15 of the

Rules for recording confession of a person by a police officer are complied

with,  then  such  statement  is  admissible  in  evidence  not  only against  the

maker but also against co-accused, abettor or conspirator.   The Court then

observed  that  “irregularities  here  and  there  would  not  make  such

confessional  statement  inadmissible  in  evidence.  If  the  legislature  in  its

wisdom has provided after considering the situation prevailing in the society

that such confessional statement can be used in evidence, it would not be

just reasonable and prudent  to water down the scheme of the Act on the

assumption that the said statement was recorded under duress or was not

recorded truly by the officer concerned in whom faith is reposed.”  

24. In Devender Pal Singh’s case majority of three-Judges Bench made

a reference to Gurdeep Singh’s case, Nalini’s case and held that whenever

an accused challenges  the voluntary character  of  his  confession recorded

under Section 15(1) of the Act, the initial burden is on the prosecution to

35

prove that all the conditions specified in that Section read with Rule 15 of

the  Rules  have  been  complied  with  and  once  that  is  done,  it  is  for  the

accused to show and satisfy the Court  that  the confession was not  made

voluntarily.  The Court further held that the confession of an accused can be

relied upon for the purpose of conviction and no further corroboration is

necessary  if  it  relates  to  the  accused  himself.   However,  as  a  matter  of

prudence the Court may look for some corroboration if confession is to be

used against  a co-accused though that  will  be again within the sphere of

appraisal of evidence.   

25. In  Jameel  Ahmad’s  case,  two-Judges  Bench  after  discussing,

considering  and  analyzing  several  precedents  on  the  subject,  including

Devender Pal Singh’s case, culled out the following propositions:

“(i)  If  the  confessional  statement  is  properly  recorded,

satisfying the mandatory provision of Section 15 of the

TADA Act  and the  Rules  made thereunder,  and if  the

same  is  found  by  the  court  as  having  been  made

voluntarily  and  truthfully  then  the  said  confession  is

sufficient  to  base  a  conviction  on  the  maker  of  the

confession.

(ii) Whether such confession requires corroboration or not,

is a matter for the court considering such confession on

facts of each case.

36

(iii) In regard to the use of such confession as against a co-

accused, it has to be held that as a matter of caution, a

general corroboration should be sought for  but in cases

where the court  is  satisfied that  the probative value of

such  confession  is  such  that  it  does  not  require

corroboration then it may base a conviction on the basis

of  such  confession  of  the  co-accused without

corroboration. But this is an exception to the general rule

of requiring corroboration when such confession is to be

used against a co-accused.

(iv) The nature  of  corroboration  required both in  regard to

the use of confession against the maker as also in regard

to  the  use  of  the  same  against  a  co-accused  is  of  a

general nature, unless the court comes to the conclusion

that such corroboration should be on material facts also

because of the facts of a particular case. The degree of

corroboration so required is that which is necessary for a

prudent  man  to  believe  in  the  existence  of  facts

mentioned in the confessional statement.

(v) The requirement of sub-rule (5) of Rule 15 of the TADA

Rules  which  contemplates  a  confessional  statement

being sent  to the Chief Metropolitan Magistrate or the

Chief Judicial Magistrate who, in turn, will have to send

the same to the Designated Court is not mandatory and is

only directory. However, the court considering the case

of  direct  transmission  of  the  confessional  statement  to

the  Designated  Court  should  satisfy  itself  on  facts  of

37

each  case  whether  such  direct  transmission  of  the

confessional statement in the facts of the case creates any

doubt  as  to  the  genuineness  of  the  said  confessional

statement.”   

[Emphasis supplied]

26. In Abdulvahab Abdul Majid Shaikh’s case, this Court rejected the

argument raised on behalf of the appellant that the confession made by him

cannot  be  treated  as  voluntary because  the  same had  been  retracted  and

observed:-

“…The  police  officer  was  empowered  to  record  the

confessional and in law such a confession is made admissible

under the provisions of the TADA Act.  The mere fact that A-9

Musakhan @ Babakhan retracted subsequently is  not  a valid

ground  to  reject  the  confession.   The  crucial  question  is

whether at the time when the accused was giving the statement

he was subjected to coercion, threat or any undue influence or

was offered any inducement to give any confession.  There is

nothing in the evidence to show that there was any coercion,

threat  or  any  undue  influence  to  the  accused  to  make  the

confession.”

27. The ratio of the above noted judgments is that if a person accused of

an offence under  the Act  makes  a confession before a police  officer  not

below the rank of Superintendent of Police and the same is recorded by the

38

concerned officer  in  writing  or  on  any mechanical  device  like  cassettes,

tapes  or  sound  tracks  from  out  of  which  sounds  or  images  can  be

reproduced, then such confession is admissible in the trial of the maker as

also the co-accused, abettor or conspirator not only for an offence under the

Act but also for offence(s)  under other  enactments,  provided that  the co-

accused, abettor or conspirator is charged and tried in the same case along

with the accused and the Court is satisfied that requirements of the Act and

Rules  have  been  complied  with.  Whether  such  confession  requires

corroboration  depends  on  the  facts  of  the  given  case.   If  the  Court  is

convinced that the probative value of the confession is such that it does not

require corroboration then the same can be used for convicting the maker

and/or  co-accused  under  the  Act  and/or  other  enactments  without

independent corroboration.  If a person accused of committing an offence

under the Act challenges his confession on the ground that it was not made

voluntarily, then the initial  burden is on the prosecution to prove that all

requirements under Section 15 of the Act and Rule 15 of the Rules have

been complied with.  Once this is done, the burden shifts on the accused

person  and  it  is  for  him  to  prove  that  the  confession  was  not  made

voluntarily or that the same is not truthful and if he adduces evidence during

the trial to substantiate his allegation that the confession was not voluntary

39

then  the  Court  has  to  carefully  scrutinize  the  entire  evidence  and

surrounding circumstances and determine whether or not the confession was

voluntary.   The confession  made under  Section  15 of  the Act  cannot  be

discarded only on the ground of violation of the guidelines laid down in

Kartar Singh’s case  because the same have not been incorporated in the

Act and/or the Rules.

28. The  judgments  in  Raja  Khima’s  case,  Sarwan  Singh’s  case,

Shankaria’s  case,  Aloke  Nath’s  case and  Ajit  Singh’s  case  on  which

reliance has been placed by the learned counsel for the appellants do not

have  any  direct  bearing  on  these  appeals.   In  Raja  Khima’s  case,  the

offence is  said to have been committed during the night  of 18/19th May,

1952.  The appellant was arrested on 20th May.  On the next day he was sent

for  recording  confession  but  the  Magistrate  recorded  the  confession  on

3rd June.  The Magistrate, who recorded the confession and was examined as

PW 21, stated that he gave 10 days time to the appellant for reflection.  By

making a statement in writing before the committing court,  he stated that

while in jail,  the police had coerced him to make confessional statement.

He was frightened that if he would not confess the crime, the police will

beat him and, therefore, he made false confession as per the dictates of the

police.   

40

A similar  statement  was  made  by him under  Section  342  Cr.P.C.  1898,

which  is  equivalent  to  Section  313  Cr.P.C.  This  Court  discarded  the

confession by making the following observations:-

“The appellant was sent to a Magistrate at 8 p.m. on the 21st

for  the recording of  a confession but  the Magistrate  did not

record it till the 3rd of June. He was examined as PW 21 and

explained that he gave the appellant ten days for reflection. The

length of time is unusual but no objection about its fairness to

the accused could reasonably have been raised had it not been

for the fact  that  the judicial  lock-up is in charge of a police

guard which is under the direct control, orders and supervision

of the very Sub-Inspector who had conducted the investigation

and  had  earlier  suspected  and,  according  to  the  accused,

actually arrested three other persons; and two of them are now

called as prosecution witnesses to depose against the appellant

about a matter on which the prosecution lay great importance,

namely, the sharpening of an axe. The danger that they might

exaggerate their stories or give false evidence in their anxiety

to avert further suspicion from themselves is one that cannot be

overlooked.”

In  para  11  of  the  judgment,  the  Court  laid  down  the  following

proposition:-

“Now the law is clear that a confession cannot be used against

an  accused  person  unless  the  Court  is  satisfied  that  it  was

41

voluntary and at that stage the question whether it  is  true or

false does not arise. It is abhorrent to our notions of justice and

fair play, and is also dangerous, to allow a man to be convicted

on the strength of a confession unless it is made voluntarily and

unless he realises  that  anything he says may be used against

him; and any attempt by a person in authority to bully a person

into making a confession or any threat  or  coercion would at

once invalidate it if the fear was still operating on his mind at

the time he makes the confession and if it “would appear to him

reasonable for supposing that by making it he would gain any

advantage or avoid any evil of a temporal nature in reference to

the  proceedings  against  him”:  Section  24  of  the  Indian

Evidence Act.  That  is  why the recording of  a  confession  is  hedged around

with  so  many safeguards  and  is  the  reason  why Magistrates

ordinarily  allow a period  for  reflection  and  why an  accused

person is remanded to jail custody and is put out of the reach of

the  investigating  police  before  he  is  asked  to  make  his

confession.”  

29. The  facts  of  Sarwan  Singh’s  case were  that  the  appellant  was

arrested  on  25th November,  1955.   His  cloths  were  found  blood  stained.

He  is  alleged  to  have  made  statement  which  led  to  discovery  of

incriminating  articles.   On 30th November,  he  was  sent  to  Magistrate  to

record his confessional statement. According to Magistrate, Mr. Grover, the

42

accused was produced before him at about 2.30 pm.  He gave him half an

hour time to think.   Thereafter,  the confessional  statement was recorded.

This Court noted that the appellant was taken before the Magistrate by the

Sub-Inspector  who  remained  standing  in  the  verandah  outside  the

Magistrate’s office, soon after the statement the Sub-Inspector went to the

Magistrate’s  room and  also  that  even  though  there  were  injuries  on  the

person of the appellant, the Magistrate did not inquire about the same and

held:-  

“There  can  be  no  doubt  that,  when  an  accused  person  is

produced before the Magistrate by the investigating officer, it

is  of utmost  importance that  the mind of the accused person

should be completely freed from any possible influence of the

police  and the  effective  way of  securing  such  freedom from

fear to the accused person is to send him to jail  custody and

give him adequate time to consider whether he should make a

confession at all. It would naturally be difficult to lay down any

hard and fast rule as to the time which should be allowed to an

accused person in any given case.  However, speaking generally, it would, we think, be reasonable

to  insist  upon giving  an  accused person at  least  24 hours  to

decide  whether  or  not  he  should  make a  confession.  Where

there  may  be  reason  to  suspect  that  the  accused  has  been

persuaded or coerced to make a confession, even longer period

may have to be given to him before his statement is recorded.

In our opinion, in the circumstances of this case it is impossible

43

to accept the view that enough time was given to the accused to

think over the matter.”   

30. In  Shankaria’s case this Court referred to the questions put to the

accused  during  his  preliminary  examination,  took  cognizance  of  the

argument of the learned amicus curiae that no explanation had been given

by  the  prosecution  for  bringing  the  accused  from  Ganganagar  to

Raisinghnagar  for  getting  confession  recorded,  keeping  the  accused  in

judicial lock-up which was contiguous to the police station, giving him less

than 20 minutes for reflection before recording his confession and handing

over him back to the Superintendent of Police immediately after recording

the confession, noted the ratio of Sarwan Singh’s case and held as under:

“It will  be seen that how much time for reflection should be

allowed to an accused person before recording his confession,

is a question which depends on the circumstances of each case.

The object of giving such time for reflection to the accused, is

to ensure that  he is completely free from police influence.  If

immediately  before  the  recording  of  the  confession,  the

accused  was  in  judicial  custody  beyond  the  reach  of  the

investigating police for some days, then such custody from its

very nature, may itself be a factor dispelling fear or influence

of the police from the mind of the accused. In such a case, it

may not be necessary to send back the accused person for any

prolonged period to Jail or Judicial lock-up. In the instant case,

44

the accused was got admitted to the Judicial lock-up on June 12

for getting his  confession recorded under Section 164 CrPC,

and  such  admission  was  made  under  the  orders  of  the

Magistrate who ultimately recorded his confession on June 14.

The accused was about two days in judicial custody beyond the

reach of the police. On June 13, 1974, a written request was

made  to  the  Magistrate  by  the  police,  for  recording  the

confession of the accused. Even then, the Magistrate postponed

the recording of the confession till the following day, obviously

because  he  wanted  to  give  the  appellant  one  day  more  in

judicial  custody  to  ponder  over  the  matter  free  from Police

influence.  On  June  14,  notwithstanding  the  fact  that  the

accused Shankaria was in judicial custody from the evening of

June  12  after  the  preliminary  questioning,  the  Magistrate

allowed  15  minutes  more  to  him  for  reflection.  Thus

considered, Shankaria had, as a matter of fact, about 38 or 40

hours in judicial custody, immediately preceding the confession

and this  was  rightly  considered  sufficient  to  secure  freedom

from fear or influence of the police to him (Shankaria).”

31. Aloke Nath Dutta’s case was not arising out of prosecution under

the Act.  The argument of the counsel for the appellant which found favour

with this Court was that the confession had not been recorded in accordance

with law and in any case, in the absence of any corroborative evidence, the

confession of a co-accused could not be made basis for conviction.   

45

32. In Ajit Singh’s case, the Court referred to the judgments in  Kartar

Singh’s case, Jameel Ahmed’s case and held that the confession of the co-

accused cannot  be relied  upon  for  reversing  acquittal  of  the respondents

because  none  had  admitted  that  they  were  aware  of  the  involvement  of

respondent No.1 in the terrorist activities.

33. In the light of the above, we shall now deal with the arguments of the

learned counsel  for  the appellants  that  confessions  made by their  clients

were not voluntary and the learned trial Judge committed grave error relying

upon the same for  convicting  them under Section 302 read with  Section

120-B IPC.  It is an undisputed position that appellant Nos.A-4, A-5, A-6,

A-7 and A-8 were produced by the Investigating Officer before Shri A.K.

Majumdar  and  appellant  No.  A-10  was  produced  before  Shri  Harbhajan

Ram.  After preliminary questioning, custody of each of the appellants was

given to the Investigating Officer who again produced them on the dates

fixed by Shri  A.K. Majumdar and Shri Harbhajan Ram.  After recording

their statements in accordance with the manner prescribed under Section 15

of the Act and Rule 15 of the Rules, the concerned officer immediately sent

the  same  to  the  Chief  Metropolitan  Magistrate,  Delhi  for  onward

transmission to the designated Court at Ahmedabad.

46

34. In reply to the questions put to him, appellant No.A-4 unequivocally

stated  that  he  was  aware  that  it  was  not  necessary  for  him  to  make

confession and that the same can be used against him and further that he

was making confession voluntarily without any fear, coercion or allurement.

The questions put to appellant No.A-4 and his answers are extracted below:-

“Q1. Kindly tell your name, father’s name and address?

A. My  name  is  Mohd.  Farukh  alias  Farukh  Baba.   My

father’s name is Alla Rakha Sheikh and my address is

House  No.1384,  Maulki  Pole,  Dariyapur,  Ahmedabad,

Gujarat.

Q2. Do you know who I am and where are you sitting?

A. I know that you are S.P./CBI and at this time I am sitting

in your Office at New Delhi.

Q3. In which offence you have been arrested?

A. I have been arrested by the CBI in the murder case of

Raufwaliullah.  My  remand  was  obtained  from

Ahmedabad Court on 21st May.

Q.4 Do you wish to make a confession in this case? If yes,

then why?

A. Yes.  I wish to make confession in this case so that I am

able to tell you everything which I know about this case?

47

Q.5 Are you making this  confession  voluntarily or  making

this confession under any fear, coercion and allurement?

A. I am making this confession on my own and voluntarily

without any fear, coercion or allurement.

Q.6 It is not necessary for you to make a confession.  If you

make a confession, then it can be used against you?

A. I am very well aware that it is not necessary for me to

make a confession and that this confession can be used

against  me.   But  inspite  of  this  I  wish  to  make  this

confession voluntarily.”

Thereafter, Shri A.K. Majumdar recorded the following note:-

“From the above questions and answers, I am satisfied that the

accused  Mohd.  Farukh  Allah  Rakha  Sheikh  is  making  his

confession  voluntarily.   However,  I  give  him more  time  till

30.5.1993 again to think over whether he wants  to make the

confession.”

35. On  30.5.1993,  appellant  No.A-4  was  again  produced  before  Shri

Majumdar, who repeated the question whether he was desirous of making

confession.  In  turn  appellant  No.A-4  reiterated  that  he  was  making

confession voluntarily.  Shri Majumdar then recorded his satisfaction that

the accused was ready to make confession voluntarily.  The question and

48

answer as well as the note recorded by Shri Majumdar on 30th May, 1993

read as under:

“Q1. What have you thought about giving confession, do you

still want to make confession?

A. I  have  considered  thoroughly  about  giving  my

confession.  I wish to give my confession voluntarily.

Read over and admitted to be correct.”

Note: I am satisfied that accused Mohd. Farukh Allah Rakha

Sheikh  is  ready  to  make  his  confession  voluntarily

without  any  fear,  coercion  and  allurement.   Hence,  I

proceed  to  record  his  confession  under  Section  15  of

TADA(P) Act, 1987.”

36. Thereafter, Shri A.K. Majumdar recorded the statement (Ex. 480) of

appellant  No.A-4, who gave out  that after  losing money in gambling,  he

joined the illegal business of liquor of Latif in 1988; that Latif gang was

known as `the company’; that the company purchased a new Scooter No.

GJ-1C-2797  for  him  in  1989  from Pappu  Bhai  of   Dilli  Darwaja;  that

initially the colour of the scooter was blue but, later on, it was changed to

brown;  that  the  scooter  was  used  by  other  members  of  the  company

including Amin Choteli and Iqbal Dhobi; that at the time of the seizure by

the police, the colour of the scooter was brownish and stickers were pasted

49

on the front and rear plates; that it was rumoured that members of Latif gang

were  involved  in  Radhika  Gymkhana  murder  case;  that  he  wanted  5

persons, who were not connected with the murders, to be arrested and he

was discussing this matter with the Government of Gujarat and senior police

officers; that after some days of Gymkhana murder case, a meeting was held

in the house of Latif which was attended by many including Rasool Khan @

Rasool Party; that he also joined the meeting in which the hurdle created by

Rauf Valliullah was discussed and it was decided to kill him; that this task

was assigned to Rasool Khan @ Rasool Party; that on 9.10.1992, he came to

know from evening newspaper  of  Gujarati  language that  Rauf  Valliullah

was  murdered;  that  after  one  or  two  days,  the  news  of  involvement  of

Rasool Khan and Musharaf Khan came in; that after some days, the name of

Iqbal  Dhobi  was  also  published  in  the  newspaper;  that  the names of  all

members  of  the  company  was  roped  in  by  the  police  in  the  Radhika

Gymkhana case and he remained in hiding and left Ahmedabad along with

Iqbal Dhobi and Amin Choteli and Ejaj Pahlwan and continued to roam in

Baroda, Bombay, Poona, Gulbarga and Hyderabad before being arrested.

37. Appellant  Nos.A-7,  Mohd.  Amin  and  A-8  Iqbal  Hussain  were

produced  before  Shri  A.K.  Majumdar  on  28.5.1993.   In  response  to  the

preliminary questions  being put  to  them, both  the appellants  replied that

50

they were aware that they were not bound to make confessions and that the

same could be used against them.  The appellants also declared that they

were  making  confessions  voluntarily  without  any  fear,  coercion  or

allurement.   Both  were  again  produced  before  Shri  A.K.  Majumdar  on

30.5.1993.  After asking them whether they had given thought about making

confessions  and  getting  reply  that  they  wish  to  make  confessions

voluntarily, the concerned officer recorded their statements.

38. In his detailed statement, appellant No. A-7 disclosed the background

in  which he  joined the  business  of  spurious  country liquor  and  came in

contact  with  Latif  and  Gang,  Rasool  Khan  @  Rasool  Party  and  his

associates including Sajid Ali (appellant  No.A-6), Gulal (appellant No.A-

11) and Mohd. Pehalwan alias Mohd. Umar Majid Pathan (appellant No.A-

5) and the hideout of Rasool Khan alias Party at Baluchawad.  He further

disclosed that he knew Rauf Valiullah, a Congress leader belonging to the

Muslim community and that he was called by Rasool Party through Gulal

(appellant No.A-11) five-six days before the murder of Rauf Valiullah and

asked to remain with Azamkhan (appellant No.A-10) and Sajidali (appellant

No.A-6),  who  had  been  instructed  to  attack  him  (Rauf  Valiullah)  with

knives;  that  he  along  with  appellant  Nos.A-10  and  A-6  pursued  Rauf

Valiullah at various places but he could not attack him at Kalupur because

51

of presence of his family members and at Lal Darwaja due to procession of

Hindus;  that  on  9.10.1992  he  was  instructed  by  Rasool  Party  to  go  on

scooter  with  Iqbal  Hussain  @  Laliyo  Dhobi  (appellant  No.A-8)  to

Madhuban  building  where  Mohmed  Pahelwan  (appellant  No.A-5)  and

Sajidali (appellant No.A-6) had been sent to kill Rauf Valiullah; and Iqbal

Hussain (appellant No.A-8) was instructed to shoot Rauf Valiullah in case

appellant No.5 was unsuccessful.  The relevant portions of his statement are

extracted below:-

…… Rasool told me that Rauf Valiullah has gone to his house

in Kalupur and as soon as he comes out of his house, Azam and

Sajid will attack him with knives.  Rasool asked me to remain

standing near the Auta of the Mosque from where Sajid  and

Azam were visible in the lane and Rasool stood on a side little

away.  Rasool also told me that when Sajid and Azam attack

Rauf  Valiullah  then  I  would  signal  Rasool  and  thereafter

Rasool will come and shoot Rauf Valiullah.  We stood on our

respective positions as told by Rasool.  We remained standing

upto  6.30  p.m.   Thereafter  I  saw  that  Sajid  and  Azam are

quickly running out of lane and upon this I saw towards Rasool

and he signaled me to come near him.  I immediately reached

near Rasool and all four of us went inside the Majahid Ki Pole.

After  reaching  there,  Sajid  and  Azam told  Rasool  that  Rauf

Valiullah’s  family  members  had  come outside  to  drop  Rauf

52

Valiullah  upto car.   Therefore  it  was  very difficult  to  attack

him……

……. Rasool then told me that  I should drive the  scooter  of

Taslim and Sajid and Azam will sit behind me and all of us will

chase the car of Rauf Valiullah and as soon as Rauf Valiullah

comes out of his car after reaching his Navrangpur house, then

Azam and Sajid will kill him with knives.  I told Rasool that I

do not know the route of Rauf Valiullah’s house.  Upon this

Rasool said Azam and Sajid knows the route.  Thereafter when

we came out of the Mujahid Ki Pole, we saw that the car of

Rauf Valiullah had left from there.  Thereafter all three of us

left  from there  on  the  scooter  and  reached  Lal  Darwaja  via

Relief  Road.   I was driving the scooter  and Sajid  and Azam

were sitting behind me.  One procession of Hindus was passing

from Lal Darwaja and therefore I could not  go towards Ellis

Bridge  and  thereafter  I  took  Nehru  Bridge  route  as  told  by

Sajid and reached near the Government flats at Navrangpura.

As soon as I turned my scooter on right side road, I saw that car

of Rauf Valiullah was standing inside the compound of the flat.

Upon this Sajid asked me not to stop the scooter and told me to

keep moving the scooter.  From there we went to Nehru Bridge

and from there reached Baluchawad. ……..   

……. It was a Friday on 9.10.1992.  As soon as I reached my

house at 1.30 p.m., after reading Namaj of Jumma, Gulal came

to my house and told me that Rasool is calling me.  At that time

I  was  having  Scooter  No.  2797  belonging  to  Farukh  Baba.

Both of us went to Rasool in Baluchawad on the said scooter.

53

Rasool  told me to go with Iqbal  alias Lala Dhobi.   I cam to

Iqbal and thereafter took him to Rasool in Baluchawad.  We

met him in the Press of Rasool and so far I remember Gulal too

was  there.   Rasool  told  me that  Rauf  Valiullah  has  gone  to

Madhuban Building situated near  Ellis  Bridge,  Under Bridge

and told us to go there.  He also told that he has already sent

Mohd.  Pahalwan  and  Sajid  on  a  scooter  for  killing  Rauf

Valiullah.  He also told us that Mohd. Pahalwan will fire that

shot.  Rasool gave one revolver to Iqbal Dhobi also instructed

him that if Mohd. Pahalwan does not succeed in killing Rauf

Valiullah, then Iqbal Dhobi will shoot and kill Rau valiullah.

…...

……  Both of us left Baluchawad on the scooter which I was

driving.  We went to Gujarat College, Ellis Bridge Road, via

Nehru Bridge-Navrangpur and Gujarat College. …..  We saw

Sajid and Mohd. Pahalwan sitting on gray coloured scooter of

Sajid.  Sajid was sitting on the driver seat of the scooter and

Mohd. Pahalwan was sitting behind him.  Mohd. was wearing a

blue  colour  check  shirt  and  blue  jeans.  …..   After  alighting

from scooter, I went towards Sajid and Mohd. Pahalwan.  Sajid

told me that Rauf Valiullah had come there in his Maruti car

and that he has gone inside the Madhuban Building. He also

showed me the  Maruti  car  which  was standing with  its  face

towards wall…….

…… I decided that it will not be proper to apply grease on the

scooter  because  Madhuban  Building  was  in  front  of  us.   I

decided that number should be covered with sticker or grease

54

after purchasing it from some other place.  Thereafter myself

and Iqbal crossed Under bridge and reached B.S. Hospital on

the scooter.  I purchased one small roll of bandage from a shop

for Rs.5/-  and took a cold lemon water  glass  from a vendor

nearby and thereafter tried to paste the bandage on the number

plate  behind  a  tree.   But  I  could  not  cut  the  bandage  and

therefore I took a poker used for breaking ice from the lemon

water vendor and also asked him to prepare one glass lemon

water for me.  I tore the bandage into two pieces with the help

of poker and thereafter covered the numbers of scooter on both

sides…….

……. As soon as I reached near Under Bridge, I saw a huge

crowd  of  public  there  and  also  saw  police  jeeps  and  other

vehicles standing there.  People were shouting mar diya – mar

diya.   I could not find Iqbal there.  I became sure that  Rauf

Valiullah  has  been  shot  dead.   Since  number  plate  of  my

scooter  was  covered,  therefore,  I  immediately  turned  my

scooter and parked my scooter in a deserted lonely place and

removed the bandages pasted on the number plates of scooter

and thereafter went to Rasool in Baluchawad in my scooter…

….   

…..  After  reaching  the  den  of  Rasool  I  found  that  Rasool,

Mohd.  Pahalwan  and  Sajid  were  already  there.   Scooter  of

Sajid  was  parked  at  some distance.   All  of  them were  very

happy.   Rasool  said  work  has  been  executed and  thereafter

shook hands with me.  Thereafter I came back from there and

55

after some distance I met Iqbal Dhobi and he asked me about

Rasool and I told him that he is in his den…….

……  Suddenly Azam came there  on  scooter  No.  515  which

belonged to Rasool.  Azam hurriedly said  Rauf Valiullah has

been killed.  He also said S.P. Anarwala has perhaps seen him

and his scooter at the spot.  Upon this Rasool asked Gulal to

immediately  remove  scooter  from there.   Gulal  asked  me to

take away the scooter.  But I refused him.  Thereafter both of

them left from there on Scooter No. 2797 and I dropped Iqbal

near  his  house.   After  some time Gulal  came to  me on  the

Scooter of Rasool and asked me to keep the scooter.  I refused

to  do  so  and  thereafter  Gulal  went  away  from there  on  the

scooter.  Later on, I came to know that this scooter was given

to Yunus Ijjat Khan Pathan Foreman for changing the colour.

Iqbal had told me that Mohd. Pahalwan had fired the shot upon

Rauf Valiullah and after firing the shot he left from there on an

auto rickshaw…….

….. My name too had come in the Police records along with

names of other persons of the company in the murder case of

Audhav.  Therefore, all of us feared our arrest by police and

decided that the members of the gang should leave Ahmedabad

for some days.  I along with Farukh Baba, Iqbal and Mohd. Ejaj

took a Taxi from Ahmedabad and came to Baroda.  My in-laws

are  living  in  Baroda.   We  went  there  and  took  our  meals.

56

Mehmoob  Bhai  of  the  family  of  my  In-laws  arranged  our

tickets for Bombay on a luxury bus and in the night we left for

Bombay.  We reached Bombay on the next day.  We stayed in

Hotel Akshar in Bhindi Bazar where we disclosed our fictitious

names  as  Ghani  Khan,  Sultan,  Mehmood  and  Ahmad,

Residents of Baroda.  After 3-4 days we left Bombay and went

to Gulbarga.  From there we made a phone call at Ahmedabad

and came to know that 5 members of the gang have already

been  caught  by  the  police.   Thereafter  we  caught  bus  from

Gulbarga and went to Pune and stayed there in a Hotel  near

Railway Station.  Myself and Ejaj came back to Bombay from

Pune in a taxi and again stayed in Hotel Akshar in the names of

Mehmood  and  Sultan.   We  stayed  there  for  one  day  and

thereafter  went  back  to  Ahmedabad  in  a  bus.   Thereafter  I

remained in Ahmedabad and continued to shift places…...

……  On 24th February, 1993,  Khurdus  came to  me and said

that I should surrender before the police and also said that he

will  make the  necessary arrangements  for  this  or  else  police

will itself catch me and if that happens, then the Company will

not help me.  Considering the circumstances prevalent at that

time,  I  decided  that  I  should  surrender  before  the  police  as

advised by Khurdus.  Khurdus told me that I should reach his

house on the night of 27.2.1993 at 9 p.m. and police will come

there and will take him from there…...

….. On 27.2.1993, myself and one other member of the gang

namely Hafiz went to the house of Khurdus.  At about 10 p.m.

57

in the night one police gypsy with a red beacon came there and

took away both of us.”

39. In  his  confessional  statement,  Iqbal  Hussain  @  Laliyo  Dhobi

Kasambhai Shaikh (appellant No.A-8) narrated how he was acquainted with

Rasool Khan @ Rasool Party and Rauf Valiullah.  He then stated that on

9.10.1992,  he was called by Rasool Party through Mohmed Amin @ Amin

Choteli  Rahim  Miyan  Shaikh  (appellant  No.A-7)  who  came  on  scooter

No.GJ-1C-2797  belonging to  Mohmed Faruk @ Faruk Baba Alla  Rakha

Shaikh (appellant No.A-4) and how he was given revolver loaded with six

bullets  by  Rasool  Khan  with  instructions  to  murder  Rauf  Valiullah.

Appellant No.A-8 also gave out that Rasool Khan had also sent Sajidali and

Mohmed Pahelwan for murdering Rauf Valiullah and that he was to shoot

only if the Mohmed Pahelwan failed in his attempt.  The relevant portions

of his statement read as under:-

“9.10.1992 was a Friday.  At about 1.30 p.m. after I had read

my Namaj, Mohd. Amin alias Choteli who is an employee of

the Company came to me on Scooter No. 2797 of Farukh Baba

and told me that Rasool Khan alias Party is calling me.  I went

to Rasool Khan in the Press in Baluchawad along with Choteli

on the scooter.  So far I remember Gulal was also present there

along with Rasool Khan.  Rasool Khan gave a revolver to me

which was loaded with 6 bullets.  He told me that I have to

58

murder Rauf Valiullah.  He also told me that Rauf Valiullah

has  gone  inside  Madhuban  Building  situated  near  Under

Bridge, Ellis  Bridge.  He further told me that  he has already

sent Sajid and Mohd. Pahalwan for murdering Rauf Valiullah.

Rasool told me that myself and Choteli should go to that place

on  the  scooter  and  if  Mohd.  Pahalwan  fails  in  killing  Rauf

Valiullah, then I should shoot and kill Rauf Valiullah.  Choteli

was to drive the scooter.  Rasool told us to cover the number

plate of the scooter by applying grease on it after going out of

the Mohalla……..

I saw that Sajid was sitting on his gray colour scooter on the

side of Madhuban Building.  Scooter was parked in a stand and

Sajid was sitting on the driver’s seat.  Behind him one young

boy was sitting, who I had not seen earlier. ……..

After  parking  scooter,  Choteli  went  towards  Sajid  and came

back after talking to him.  He told me that Rauf Valiullah is

still inside the buiding and he has not come out so far.  He also

told me that  Sajid  and Mohd.  Pahalwan are also  waiting  for

him to come out of the building……..  

After 5-10 minutes I saw that Rauf Valiullah who was wearing

a  white  Kurta  Pyjama,  came  out  of  the  building  and  after

getting  down  from  the  sloppy  phootwari started  moving

towards the place where 4-5 cars were parked.  There were 2-3

persons with him.  I saw, but I cannot tell,  whether all these

persons were with Rauf Valiullah or not.  One of the person

opened  the gate  of  driver  side  of  Maruti  car  and  sat  inside.

59

Thereafter Rauf Valiullah moved towards left of the car.  The

face of car was towards the wall  of Madhuban Building and

back side of the car was towards toad.   Suddenly I saw that

Sajid  drove  his  scooter  and  came  just  behind  the  car  and

thereafter  I  saw  Mohd.  Pahalwan  coming  towards  Rauf

Valiullah from the middle of road.  When Mohd. Pahalwan was

at a distance of about 1 Ft. from Rauf Valiullah, he fired upon

him.  I think the shots were filed in head.  I heard sounds of 2-3

shots.   After  seeing  all  this,  I  started  walking  towards  the

sloppy road.  Since I was having revolver with me and Choteli

had  not  come  there  by  that  time,  therefore,  I  feared  being

caught.  This road after coming out of the Under Bridge goes

towards right side.  I traveled a long distance.  But I did not see

Mohd. Pahalwan and Sajid going from that road…….

After some time Amin Choteli met me on the scooter No. 2797

and asked me whether I have met Rasool there.  Choteli told

me that Rasool is in his den.  Thereafter I went to the den of

Rasool along with Choteli on the scooter.  Rasool was present

in his den (Press).  Sajid, Mohd. Pahalwan and Gulal were also

there.  I returned back the revolver of Rasool.  Rasool told us

that the work has been executed and asked us to leave.  Rasool

asked Mohd. Pahalwan to change his shirt.  Thereafter I came

out of the Press.  Suddenly I saw that Azam Khan who is an

accomplice  of  Rasool  came  there  on  a  white  colour  Bajaj

Scooter No. 515 and said  Rauf Valiullah has been eliminated.

He  further  told  that  Police  has  seen  him  and  his  scooter.

Although  Rasool  told  Gulal  to  give  the  Scooter  No.  515  to

60

Choteli,  but  Choteli  refused  to  take  it.   Thereafter  both  left

from  there  on  brownish  colour  scooter  No.  2797.   Choteli

dropped me near my house.  Thereafter I remained inside my

house.  I did not see Rasool party thereafter…….

Since  my  name  had  appeared  in  this  murder,  therefore,  I

stopped sleeping in my house and started sleeping on the roofs

of other persons.  After some days, I came to Bangalore on a

train along with Mohd. Yunus Usman Bhai who is residing in

Lakhota Pole, Dariapur.  Both of us stayed in Hindustan Guest

House which is near Railway Station, Bangalore.  We stayed

there for some days.  From there we went to Mysore and Ooty

also.  From Bangalore we came back to Bombay and lived in

the house of Yunus’s brother Anis in Boriwili for 7-8 days and

tthereafter we came back to Ahmedabad…….

In the evening of 17th February, 1993, Musharaf asked me to

come to the house of brother-in-law of Khurdas namely Ghani

Bhai  and  told  me  that  he  had  a  talk  with  Latif  Seth  on

telephone  and  Seth  has  ordered  that  Musharaf  and  myself

should  surrender  before  the  police  in  connection  with  the

murder  case  of  Rauf  Valiullah  and  also  said  that  we should

confess  our  crime.   Since  it  was  an  order  from Latif  Seth,

therefore, we readily agreed to surrender……”

40. Appellant  Nos.A-5  and  A-6  were  produced  before  Shri  A.K.

Majumdar on 8.9.1993.   From the replies given by them, Shri Majumdar

61

felt  satisfied  that  both  were  willing  to  make  confessions  voluntarily.

Accordingly, he recorded note similar to the one recorded in the cases of all

other appellants.  Both were again produced before Shri A.K. Majumdar on

9.9.1993, on which date their statements were recorded.  Appellant No.A-5

Mohmed  Umar  Majid  Ahmed  Pathan  @  Mohmed  Fighter  @  Mohmed

Pahelwan @ Mohmedkhan disclosed how after leaving studies he started

work in  1978-79 and  how he joined  Amba Bhai  Purani  Gym, Kankaria,

Ahmedabad, where he met Hamid Khan Party (brother of Rasool Khan @

Rasool Party).  He then stated that he felt obliged to Rasool Party because

the latter helped him in his dispute with Shyam Sindhi and Bashir Madrasi

and agreed to  work for  him; that  Rasool  contacted him on telephone on

9.10.1992 and told that Gulal (appellant No.A-11) will give something and

after  taking  the same he should  go  to  under-bridge and give it  to  Azam

Khan  and  another  boy,  who  will  be  on  a  scooter;  that  Gulal  gave  him

revolver  and  then  he  realized  that  the  work  assigned  by Rasool  was  to

murder  someone;  that  after  taking  revolver  he  reached  under-bridge  on

bullet  motorcycle bearing No.GAC-6005, where Azam contacted him and

took motorcycle; that thereafter he sat on the scooter with the boy who, later

on, pointed out that the person with beard who had come out of Madhuban

building is to be killed; that after shooting the man having beard he fled on

62

the  scooter  along  with  the  boy and  came to  Kakoriwala  Ki  Pole,  where

Rasool Party and his gang members were sitting.  The relevant portions of

his statement read as under:-

“It was Friday the 9th October, 1992 when Rauf Valiullah was

murdered.   After  talking my bath etc.,  I was standing on the

corner of the lane below my house at about 10.30 a.m. in the

morning.  One boy working in the opposite shop came to me

and told me that there is a phone call for me. ……  When I

attended the phone, I came to know that it was the phone call of

Rasool.  Rasool after wishing me good day, asked me what I

am doing.  I told him that I have just taken my bath.  He asked

me whether I have any vehicle with me.  I replied that I have

my own motor cycle.  Rasool told me to go to Rosy Cinema

hall  in  Sarangpur  and meet  Gulal  there.  ……..Gulal  met  me

outside Rosy Cinema.  When I reached near him, he asked me

to park my motor cycle nearby on one side and therafter took

me to the office of a transport company nearby……..

………..After  about  5-10 minutes,  Rasool  called  on the said

telephone.  Firstly Gulal attended the said phone and thereafter

Gulal gave the receiver to me.  Rasool Khan asked me whether

I  have seen  the  under bridge  behind Mangaldas  Town,  Ellis

Brdige.   I  told  him that  I have seen this  bridge.   Thereupon

Rasool told me that Gulal will give me something and I should

take that something and go to under bridge and give it to Azam

Khan and one other boy who are on a scooter and will meet me

at Teen Rasta near Gujarat College ahead of the under bridge.

63

I  knew Azam from before  because  he  used  to  come to  Lal

Darwaja for swimming.  Rasool also told me that I should hand

over that  something to the boy accompanying Azam and also

hand over my motor cycle to Azam.  Rasool told me that the

said boy will execute the work and I should drive the scooter

and after the work is over, I should leave the place with the said

boy on the scooter.  However, Rasool did not tell as to what

work is to be executed.  Rasool asked me whether I will be able

to  do  all  this.   I  said  Yes  because  I  was  indebted  to  him.

Thereafter  Rasool  talked  with  Gulal  on  telephone.   After

completing the talks, Gulal gave me a revolver and told me that

it is loaded.  When Gulal gave me the revolver, I realized that

work means murdering someone.  I asked Gulal as to who is to

be murdered.  Upon which he said I will myself come to know

about  it  later  on.   Thereafter  I  reached  under  bridge  on  my

Bulet Motor Cycle No. GAC-6005 via Sarangpur-Raipur-Ellis

Bridge.  After crossing the under-bridge, I saw Azam sitting on

a Bajaj Super Scooter with one boy on the left  side of road.

There was no number plate on that scooter.  Immediately on

seeing  me,  Azam stood  up  and  came near  me and  took  my

motor  cycle.   I  took  Sun  glasses  of  Azam  from  him  and

thereafter  Azam went  towards  Gujarat  College  on my motor

cycle.  I sat with the boy on his scooter…..

………  He also told me that they are two persons and out of

them one  is  having  beard  and  other  is  wearing  white  Kurta

Pyjama and that both of them will sit in their Maruti car after

coming out of the big building.  He also told me that the person

64

wearing Kurta Pyjama is to be murdered.  I do not remember

the colour and number of said Maruti car at present.  The said

boy asked me whether I have brought that something with me.

Upon which I told him that I have brought that something with

me which is a revolver.  On this he asked me to hand over the

revolver to him and told me that he will execute the work.  I

asked him there is nothing so and kept the revolver with me.

Actually at that time two things were striking in my mind i.e.

firstly  that  perhaps  we  will  return  back  without  executing

anything and secondly that whether I drive the scooter or shoot

the person, my involvement is sure.  In fact, I wanted to repay

obligations  done  by Rasool  upon me.  We remaining sitting

there for 1 and ½ hours.  The said boy, whose name I came to

know later on was Sajid, was wearing a plan Zero number eye

glass……

When more than 1 and ½ hours passed and we kept waiting,

then at about 2.30 p.m. Sajid suddenly told me that they are

coming.  I saw that two persons, one having beard and other

wearing a white Kurta Pyjama were going towards Maruti Car

parked  there  in  front  and  suddenly  I  crossed  the  road  and

walked towards Maruti car.  Person with beard opened the door

of  driver  side  and  sat  inside  and  the  person  wearing  white

kurta-pyjama walked behind the car and reached the left side

door of the car and put something in his mouth.  By that time, I

had  reached  very  near  to  him and  immediately  on  reaching

there I took out the revolver which I had tucked in the belt of

my pant below my shirt and fired three rounds continuously on

65

the head of the person wearing white kurta pyjama.  In fact, I

was  so  nervous  at  that  time that  I  could  not  even count  the

shots which I fired.  Suddenly Sajid brought the scooter from

front and I immediately sat on the back seat of the said scooter

and both of ran away from there on the scooter towards Ellis

Bridge.……..

After  running  away from there,  we passed  via  Ashram, ITO

Crossing,  Wise  Crossing,  Subhash  Bridge,  Under  Bridge,

Girdhar  Nagar  Bridge,  Dariapur  and  reached  Kakoriwala  Ki

Pole to meet Rasool Khan.  Rasool Khan and Gulal were sitting

in the Press at that time.  After reaching there, Sajid parked his

scooter outside the Press and thereafter went inside the Press

and told Rasool that the work has been executed. …..”

The relevant portions of the statement of appellant No.A-6, Sajidali,

are extracted below:-

“I  was  coming  to  Baluchawad  frequently.   I  was  going  to

Carom Club there.   Ejaj  Ahmad,  Abdul  Rehman etc.   I  saw

Abdul Latif many times when I came to Baluchawad.  He was

doing illegal business of illicit liquor.  He is living in Mohalla

Mand.  This gang is called Company.  I know several members

of this company who are also resident of this locality, namely,

Sharif  Khan,  Rasool  Khan  Party,  his  brother  Hamid,  Abdul

Khurdus Baba, Musharaf Gorey Khan Pathan, Farrukh Baba,

Iqbal, Laliya Dhobi, Amin Chauteli etc…..

66

…….  While I was living in  Baluchawad, I  came in contact

with Rasool Khan.  Rasool Khan is an accomplice of Latif and

Sharif Khan and he is engaged in illegal businesses.  He has a

house in Kankori Wala Ki Pole and Gulal is also living in this

Pole and he is the key man of Rasool Khan.  Another key man

is Azam Khan who is living in Mujahid Ki Pole, which is at a

small distance from my house. ………

Rauf Valiullah was murdered on Friday the 9th October, 1992

and about 7-8 days prior to this murder, when I was sitting in

my house for taking meals, then Gulal came to my house in the

afternoon and said that Rasool Khan has called me.  He had

come on his Scooter No. 515. ……  I met Rasool in Kankora

Wala Ki Pole.  Azam Khan was there from before.  Rasool said

to me that one bogus person has to be killed and Azam knows

that man.  I should go with Azam on my scooter and keep a

watch on that man and as soon as I get a chance, I should kill

him by stabbing with knife.  He also told me that if I could not

execute the work, I should come back, because he has already

explained Azam to execute the work.  He also told me that he

will bear all  the expenses of scooter and goods.  Both of us

were told to keep a watch on that man from next day. ……..

On the next day at about 9.30-10.00 a.m., I took my scooter and

went to the house of Azam in Mujahid Ki Pole.   Mujahid is

living on the upper  floor  of  house.   After  some time,  Azam

came prepared and gave me a steel knives made of Japan.  This

knife was covered.  He kept on knife with him.  Both of us

concealed our knives in the pants below our shirts.  Thereafter

67

we came out of Mujahid Ki Pole and went to Peer Mohammad

Shah Dargah Trust on Relief Road.  I was driving the scooter.

Azam tld me that he has been keeping a watch on this person

since many days and the said person was coming trust.  Azam

went inside to search for that man and after some time came out

of  the  Trust.   He told  me that  the  person  for  whom we are

searching, is not there.  ……..

On the  next  day,  I  along  with  Azam again  went  out  on  my

scooter for keeping a watch.  Azam again gave the knife to me.

First of all we went to the Trust where Azam went inside and

thereafter  we went to  Congress Bhawan and when we found

that the car is not there also, we went behind Gujarat College

and saw that Fiat car was standing inside the Compound of the

house. ……  We kept watch upto 4.00 p.m. and thereafter came

back  and  again  Azam Khan  gave  a  report  of  our  watch  to

Rasool Khan.  Similarly on third day also I and Azam first went

to Trust and thereafter Congress Bhawan and thereafter behind

Gujarat College and again took tea there.  We again saw that

the car was standing there upto afternoon.  Thereafter both of

us came back for eating our meals.  I dropped Azam at the Pole

of Mujahid and thereafter went to my huse for taking my meals.

………….. After  some time Azam came there  hurriedly and

told me that the said person has come to the Karora Ki Pole.

After saying so, he went inside the Kankori Wala Ki Pole near

Rasool Khan.  After some time, Rasool Khan signaled me and

called me inside.  By that time Gulal had also brought Amin

Chauteli  there.   Rasool  asked  me,  Azam  and  Chotel  to

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immediately  go  to  the  Karora  Ki  Pole  and also  said  that  he

himself is also reaching there.  He had told us that as soon as

the said person comes out of the house, he should be stabbed

with knives.  Thereafter all three of us went to Karora Ki Pole

on the scooter and after parking the Scooter outside Karora Ki

Pole,  we went  inside  the  Pole  and distanced  ourselves  from

each other.  Rasool Khan too had reached the Pole and went to

the Mujahid Pole from there.  We had reached there at about 4

p.m. and after keeping a watch for long time, we saw that three

persons, one of whom had a beard, two ladies and 1-2 children

came out of the house.  Azam asked me to move and thereafter

all three of us went to Rasool in Mujahid Ki Pole and told him

that  the  work cannot  be executed here  because  entire  family

had come out of the house. ……. When we were talking with

each other,  I saw the fiat  car going towards Kalupur  Tower.

One driver was driving the car and the said person was sitting

on the back seat.  On that day I came to know that we have to

murder of Rauf Valiullah. ……..  We continued to chase the

car  and reached Lal  Darwaja via  Relief  Road.   There was  a

huge  traffic  jam  there  because  of  a  procession  of  Hindus.

Therefore, we could not cross Ellis bridge and therefore took

Nehru Bridge route and reached the house of Rauf Valiullah.

At that time the car of Rauf Valiullah was entering inside the

compound and therefore we could not do anything.  …….

On the next day i.e. on 9.10.1992 it was Friday.  Like before,

after  10  a.m.  we  again  went  out  on  Scooter  No.  9655  for

keeping a watch.  First of all we went to Trust and Azam went

69

inside the Trust.  One can easily the office of Trust if he enters

the Trust.  After some time Azam came back and asked me to

move  to  Congress  Bhawan.   When  we  reached  Congress

Bhawan, we did not find the car of Rauf Valiullah there and

then we went to tea vendor outside house of Rauf Valiullah and

took  tea  and  read  newspaper  there.  ………  When  we  were

passing in front of his house, we saw one blue colour Maruti

car  standing  outside  the  house.   Azam said  –  perhaps  Rauf

Valiullah has come out of the house. ……..  After some time

i.e. at about 11-11.30 we saw the same blue colour maruti car

coming out of the house of Rauf Valiullah.  A bearded person

was driving the car and Rauf Valiullah was sitting on the side

of the driver in the front seat.  Azam asked me to chase the car.

I immediately started my scooter and chased the car.  The car

after taking under bridge route, stopped in the parking on the

road outside one 7-8 storey building.  I took my scooter on one

side and parked it  there.  We saw that the bearded man was

wearing shirt pant whereas Rauf Valiullah was wearing a white

kurta-pyjama and he was holding a packet in his hand. …..

After about 30-45 minutes one Mohd. Fighter came to us on a

motor  cycle  ………  Azam  had  told  me  his  name.   Mohd.

Fighter had come on a black colour Bullet motor cycle. …….

After Mohd. Fighter reached there, Azam took his motor cycle

and  left  Fighter  there  and  went  towards  Gujarat  College.

Fighter was wearing pant shirt and white colour sports shoes on

that day. ……… Fighter sat with me on the scooter after Azam

left us.  I had told him that the person who is to be eliminated

70

has gone inside the building and he is wearing a white kurta-

pyjama and one bearded person is also with him and both of

them had come here in blue colour Maruti car.  ……..

While  we  were  sitting  on  our  scooter,  then  we  saw  Rauf

Valiullah and the bearded man coming out of the building at

about  2-2.30  p.m.  I  do  not  remember  now  whether  Rauf

Valiullah  was  holding  any  packet  in  his  hands  or  not.

Immediately after Rauf Valiullah came out,  I  showed him to

Mohd. Fighter.  The bearded man opened the gate of the car

and sat inside whereas Rauf Valiullah Sahib was going towards

the side gate of the car from the right side and when he had just

reached the gate of the car, Mohd. Fighter too crossed the road

and reached very near to him and immediately I also started my

scooter and took my scooter behind the car and kept my scooter

in  starting  position.   Suddenly  I  saw Rauf  Valiullah  putting

something in his mouth.  Immediately thereafter Mohd. Fighter

fired three shots in the head of Rauf Valiullah from a very close

range.   These  shots  were  fired  quickly  one  after  the  other.

Thereafter Fighter immediately sat on my scooter and we ran

towards Ellis Bridge.  I did not see bearded man coming out of

the car.  I was driving scooter very fast and therefore I could

not hear the noises behind me……..

I parked my scooter outside the Press of Gulal Bhai.  Gulal and

Rasool Party were inside the press at that time.  Mohd. Fighter

and myself went inside the Press and informed Rasool that the

work has been done.  Rasool became very happy and he shook

his hands with me and fighter.  Rasool took back the revolver

71

from fighter and also took my scooter and said that now he will

keep the same with him because scooter should not be driven

now.   After  some time Amin Chauteli  and Lalia  Dhobi  also

reached there.  Amin Chotel told Rasool Khan that murder was

committed  within  the  time  when  he  had  gone  to  cover  the

number plan and came back after covering the number plate.

After  some time Azam too  came there  on  Scooter  No.  515.

Azam  immediately  on  coming  said  that  Rauf  Valiullah  has

been eliminated i.e.  killed.   Police  has already reached there

and also said that the police has seen his scooter.  Upon this

Rasool  asked Gulal  to immediately remove away the scooter

from there………”

41. Appellant  No.A-10  was  produced  before  Shri  Harbhajan  Ram on

24.7.1996.  In reply to the first question put to him, appellant No.A-10 gave

out that he was arrested by ATS from Dani Limra, Ahmedabad on 13.6.1996

and on that very day he was taken into custody by CBI.   In reply to another

question, appellant No.A-10 stated that he was aware of the fact that he was

not bound to give statement and that he was voluntarily making confession

after  having  thought  about  it.   Thereafter,  Shri  Harbhajan  Ram recorded

satisfaction  about  the  voluntary  character  of  the  statement  made  by

appellant  No.A-10 expressing his desire to confess  his  role in the crime.

Appellant  No.A-10  was  again  produced  before  Shri  Harbhajan  Ram on

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25.7.1996.    He reiterated his wish to voluntarily make the statement.  At

that stage, Shri Harbhajan Ram recorded note as per the requirement of Rule

15 of the Rules.  Thereafter, Appellant No.A-10 made statement disclosing

his  acquaintance with Abdul Latif  and his gang,  Rasool  Khan @ Rasool

Party,  Mohammad  Farukh  (appellant  No.A-4),  Mohmed  Umar  @

Mohammad Pahelwan @ Mohammad Fighter (appellant No.A-5), Sajidali

@ Danny (appellant No.A-6), Mohmed Amin @ Amin Choteli  (appellant

No.A-7),  Iqbal  Hussain  @  Lalia  Dhobi  (appellant  No.A-8)  and  Gulam

Mohmed @ Gulal (appellant No.A-11), who were members of Rasool Party

gang and were accomplices of Abdul Latif in the business of illicit liquor.

He further stated that about 7-8 days prior to the killing of Rauf Valiullah,

Rasool  Party  called  him  and  told  about  the  decision  to  eliminate  Rauf

Valiullah because he was creating hurdles in the affairs  of the company.

According to  appellant  No.A-10,  Rasool  Party asked him and Sajidali  to

keep strict watch on Rauf Valiullah and kill him with knives.  Rasool Party

also gave scooter belonging to Sajidali for the purpose of keeping watch on

Rauf  Valiullah.  Appellant  No.A-10 also gave  details  of  how he,  Sajidali

(appellant  No.A-6)  and  Amin  Choteli  (appellant  No.A-7)  tracked  the

movements of Rauf Valiullah but failed to kill him due to the intervening

73

factors.   As regards  the incident  of  9.10.1992 and his  subsequent  arrest,

appellant No.A-10 made the following statement:

“……. On 9.10.1992, i.e the day on which Raufwaliullah was

murdered,  myself  and  Sajid  Ali  were  keeping  a  watch  on

Raufwaliullah  from the  morning itself  on our  scooter  no.GJ-

IM-9655.  We saw a blue coloured Maruti car standing outside

the  house  of  Raufwaliullah  behind  Gujarat  College.   When

Raufwaliullah  came  out  of  his  house  along  with  his  driver

Pradip Dave and left in said blue colour Maruti car No.GCB-

4591, we chased him on our scooter and reached in front of

Madhuban  Building.   When  Raufwaliullah  and  Pradip  Dave

went inside Madhuban Building, I immediately went to a PCO

situated at a distance from Madhuban Building and informed

Rasool  Khan alias  Rasool  Party on telephone.   Rasool  Party

told  me  that  he  is  sending  his  man  for  murdering

Raufwaliullah.   I  can  accompany and  identify  the  said  PCO

from where I had telephoned Rasool Party.

When myself and Sajid Ali alias Danny were watching outside

Madhuban  Building,  then  Mohd.  Umar  alias  Mohd.  Fighter

came there on a black colour bullet motor cycle No.GAC-6005

and gave me his motor cycle and asked me to take the motor

cycle to Rasool party.  I took the Motor Cycle and went to the

den of Rasool Party at Baluchawad and handed over the said

Motor  Cycle  to  Rasool  Party.   Rasool  Party  gave  me  his

Scooter No.515 and asked me to go back again to Madhuban

Building.   I  took  the  scooter.   But  instead  of  going  to

Madhuban  Building,  I  went  to  my house.   After  taking  my

74

meal, when I left my house, I found that there was rampant fear

and panic amongst general public and everyone was discussing

murder  of  Raufwaliullah.   I  immediately  went  to  the  den of

Rasool Party on the aforesaid scooter.  Sajid Ali alias Danny,

Mohd.  Umar  alias  Mohd.  Fighter,  Amin  Choteli,  Gulal  and

Lalio Dhobi were also present there.  I told Rasool Party that

Raufwaliullah has been eliminated i.e. killed and handed over

the scooter to Rasool Party.  Rasool Party asked me to go home

and instructed me not to discuss/talk with anyone about murder

of Raufwaliullah.  ……..

In June,  1993,  after  arrest  of Mohd. Fighter  by the  Police,  I

went  to  Bombay  for  some  days  to  avoid  my arrest  and  in

Bombay I stayed in Gujarat Momin Guest House near Central

Arbi Hotel.  After the pressure of Police and CBI subsided, I

came back to Ahmedabad and mostly lived in the Masjid of my

locality and Imambara of Babaji.

On 13.7.1996, when I was in Dani Limra, Ahmedabad, ATS of

Gujarat Police came there and arrested me……...”

42. From what  has  been  noticed  above,  it  is  crystal  clear  that  before

recording  confessions  of  appellant  Nos.A-4  to  A-8  and  A-10,  the  two

officers viz. Shri A.K. Majumdar and Shri Harbhajan Ram explained to each

of them separately that he is not bound to make confession and that if he

does so,  the same may be used as evidence against  him.  The concerned

75

officers  also  recorded  their  satisfaction  that  the  appellants  were  making

confessions voluntarily and that no threat or allurement was given to any of

them and nobody had coerced them to make confession.  Each of the six

appellants was given time to think on the issue of making confession and

having  felt  convinced  that  they  were  doing  so  out  of  their  volition,  the

officers recorded their statements.  The confessions of six appellants were

typed by the stenographer on Hindi typewriter.  The same were read over to

the accused who admitted that the recording contains full and true account

of  his  statement  and  then  signed  it.  The  officers  also  recorded  their

observations about voluntary character of the confessions and then singed

the same.  The statements  of the six appellants were immediately sent to

Chief  Metropolitan  Magistrate,  Delhi  for  onward  transmission  to  the

Designated  Court  at  Ahmedabad.  All  this  shows  that  there  was  total

compliance of Section 15 of the Act and Rule 15 of the Rules.

43. The argument of the learned counsel for the appellants that the trial

Court committed grave error in relying upon the confessions of appellant

Nos.A-4 to A-8 and A-10 for the purpose of their conviction under Section

302 and 120B IPC read with Section 120B IPC ignoring that at the relevant

time they were in the custody of the Investigating Officer and did not have

access to legal assistance and also because the confessions were recorded by

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the  officers  who were  actively  supervising  investigation  of  the  case  and

were in a position to influence the appellants, lacks merit and deserves to be

rejected.   The prosecution  evidence  shows that  the  confessing  appellants

were brought to Delhi pursuant to transit warrant granted by the competent

court at Ahmedabad.  Therefore, the Investigating Officers were bound to

keep their custody till the end of the period specified in the transit warrant

and they could not have transferred the custody of the accused to any other

person.   It  was during the period of  their  custody with  the Investigating

Officers that appellant Nos.A-4 to A-8 and A-10 and some other accused,

with whose cases we are not concerned, expressed desire to confess their

role in the commission of crime.  Accordingly, they were produced before

two Superintendents of Police, CBI and their confessions were recorded in

accordance with the provisions of Section 15 of the Act and Rule 15 of the

Rules.   At the cost  of  repetition,  it  deserves to be mentioned that  before

recording  confession,  each  of  the  appellants  was  told  by  the  concerned

officers that he is not bound to make confession and that if he does so, it

may be used as evidence against him.  The concerned officers also recorded

their  satisfaction  in  writing  that  the  accused  was  making  confession

voluntarily. The statements of the confessing appellants were recorded in a

room where no one except  the concerned Superintendents of Police, CBI

77

and stenographers were present.  After completion of recording, statement

made by the individual accused was read over to him and he appended the

signatures  after  finding  that  the  recording  was  correct.   Thereafter,  the

concerned  officers  again  noted  that  the  confessions  have  been  made

voluntarily, appended their signatures and sent confessional  statements to

the  Chief  Metropolitan  Magistrate,  Delhi  for  being  forwarded  to  the

Designated  Court  at  Ahmedabad.   Appellant  Nos.A-4  to  A-8  were  not

produced before Chief  Metropolitan Magistrate because their  confessions

were recorded before the judgment of  Kartar Singh’s case but appellant

No.A-10 was so produced on 25.7.1996 as per the guidelines laid down in

Kartar Singh’s case.  It is thus evident that there was total compliance of

the mandate of law in recording the confessions of six appellants.    

44. The question whether confession made by a person under Section 15

of the Act should be rejected only on the ground that at the relevant time he

was in police custody, was considered an answer in negative in  Gurdeep

Singh’s case, Lal Singh’s case and S.N. Dube’s case.  In Gurdeep Singh’s

case, it was argued that the confession of the accused should be discarded

because  he  was  handcuffed  and  while  recording  the  confession,  another

policeman was present in the room at some distance holding the chain of the

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handcuff  and that  armed guards were outside the room where confession

was recorded.  While rejecting this plea, the Court held:-

“Keeping an accused under police custody in what manner with

what  precautions  is  a  matter  for  the  police  administration  to

decide. It is for them to decide what essential measures are to

be  taken  in  a  given  case  for  the  purpose  of  security.  What

security, in which manner are all in the realm of administrative

exigencies  and  would  depend  on  the  class  of  accused,  his

antecedents  and  other  information  etc.  The  security  is  also

necessary for the police personnel keeping him in custody or

other  personnel  of  the  police  administration  including  the

public at large. Thus what measure has to be taken is for the

police administration to decide and if they feel greater security

is required in a case of trial under the TADA Act, it is for them

to decide accordingly. The Preamble of the TADA Act itself

reveals  that  this  Act  makes  special  provisions  for  the

prevention  of  and  for  coping  with  terrorists  and  disruptive

activities. In fact the earlier TADA Act of 1985 was repealed to

bring in the present Act to strengthen the prosecution to bring

to book those involved under it without their filtering out, by

bringing  in  more  stringent  measures  under  it.  In  this

background, we do not find the handcuffing of the appellant or

another policeman being present in the room with the chain of

his handcuffs or armed guards present outside the room to be

such  as  to  constitute  (sic conclude)  that  the  appellant’s

confessional statement was not made voluntarily.”

79

In Lal Singh’s case the Court held:

“In view of the settled legal position, it is not possible to accept

the  contention  of  learned  Senior  Counsel  Mr.  Sushil  Kumar

that  as  the  accused  were  in  police  custody,  the  confessional

statements  are  either  inadmissible  in  evidence  or  are  not

reliable.   Custodial  interrogation in such cases is  permissible

under the law to meet grave situation arisen out of terrorism

unleased  by terrorist  activities  by persons  residing  within  or

outside the country.”  

In S.N. Dube’s case, the Court observed:  

“In this case there is nothing on record to show, except that the

confessions were recorded by Shinde in the police station, that

they were not recorded in a free atmosphere. No other person

was allowed to remain present at that time and all the accused

were given time to reconsider their willingness. After they were

produced again Shinde had ascertained whether they were still

willing to make confessions. All the accused were previously

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

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

be used against him……..Shinde had tried to ascertain if any

threat or inducement was given to them or whether they were

ill-treated  or  pressurised.  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

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to  believe  that  the  accused  were  making  confessional

statements  voluntarily……..It  was  not  even  the  case  of  the

accused that they were not taken to Shinde for recording their

confessions. The only suggestion that was made in his cross-

examination was that he had obtained those confessions after

exerting influence,  coercion and physical  and mental  torture.

We have already pointed out earlier that in the absence of any

specific act suggested by the defence it is not possible to accept

the  belated  allegation  made  by  those  accused  that  their

confessions were obtained in that manner……..”

45. In view of the above stated legal position, no fault can be found in the

recording of confessions of appellant Nos.A-4 to A-8 and A-10 while they

were in the custody of the Investigating Officer.   

46. The question whether  confessions of  the appellant  Nos.A-4 to A-8

and A-10 should be treated as non-voluntary and held inadmissible on the

ground that the same were made before the officers who were supervising

the investigation deserves to be considered in the backdrop of the following

facts:-

(i) Each of the confessing appellants had volunteered to confess his role

in the crime.

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(ii) Their  confessions  were  recorded  strictly  in  accordance  with  the

manner and procedure prescribed in Section 15 of the Act and Rule 15 of

the Rules.     

(iii) In  reply  to  the  questions  put  by  Shri  A.K.  Majumdar  and  Shri

Harbhajan Ram, each of the confessing appellants replied that he was aware

of the fact that he was under no compulsion to make confession and that the

same can be used against  him and that  there  was  no threat,  coercion  or

allurement for making confession.   

(iv) When  appellant  No.A-10  was  produced  before  Chief  Metropolitan

Magistrate,  Delhi  on  25.7.1996,  he  did  state  that  he  has  not  made  any

confessional statement but did not utter a word about any threat, coercion,

inducement  or  allurement  by  Shri  Harbhajan  Ram (PW-103)  for  making

confession.   

(v) At the end of period specified in transit warrants, all the confessing

appellants were produced before the concerned Magistrate at  Ahmedabad

with an application for their remand to judicial custody. None of them made

any grievance of ill  treatment, torture (physical or mental), inducement or

allurement by the Investigating Officers or supervising officers or claimed

that  he had made confession under any other  type of compulsion.   Even

when they were in judicial custody, none of the appellants made a grievance

82

that he was tortured, threatened or coerced by the Investigating Officers or

supervising  officers  or  that  any  allurement  was  given  to  him  to  make

confession.

(vi) All  the confessing  appellants  were  facing  trial  in  number  of  other

cases [this is evident from the statement of PW-100, Mr. Satyakant, the then

Deputy Inspector General of Police, CID, Crime (Exh.430)] in which they

were duly represented by advocates but till the recording of the statements

under  Section  313  Cr.P.C.,  neither  they  nor  their  advocates  made  a

grievance regarding denial of legal assistance or alleged that any threat was

given to either of them or they were subjected to physical or mental torture

or that undue influence was exercised by the Investigating Officers or the

supervising officers or any allurement was given for the purpose of making

confession.    

47. Both the Investigating  Officers,  namely, Shri  R.K. Saini  (PW-122)

and  Shri  O.P.  Chatwal  (PW-123)  were  subjected  to  lengthy  cross-

examination.  Shri R.K. Saini denied the suggestion that appellant No.A-10,

Salimkhan was  never  willing to  give  any confessional  statement  and his

statement was not recorded.  He also denied the suggestion that appellant

No.A-10 had complained to the Chief Metropolitan Magistrate that he was

ill-treated by the officers while in custody.  In his cross-examination, Shri

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O.P. Chatwal (PW-123) categorically denied the suggestion that Shri A.K.

Majumdar had instructed him to ill-treat the accused.  He further stated that

none of the accused was ill-treated mentally or physically by the CBI.  Shri

Chatwal also denied the suggestion that the confessional statements of the

accused were prepared by him and their  signatures were obtained on the

same.  In reply to another question, he denied that the accused had sought

for the presence of advocate but the same was declined.   

48. In their statements, PW-103, Shri Harbhajan Ram and PW-104, Shri

A.K.  Majumdar  explained  the  details  of  the  mode and  manner  in  which

confessions of the accused were recorded.  Both of them categorically stated

that before recording confession each of the accused was told that he is not

bound to make confession and that the same can be used against him and

whether there was any threat, coercion or allurement for making confession.

According to the two witnesses, each of the accused expressed unequivocal

willingness to confess his role in the crime by stating that he knew that the

confession can be used against him, that there was no threat, coercion or

allurement and that he was making confession voluntarily.  According to

PWs 103  and  104,  the  statements  of  the  accused  were  recorded  by the

stenographers at verbatim and each one of them appended signatures after

satisfying that the same was correctly recorded.  In reply to the suggestion

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made to him in cross-examination that the accused had been subjected to

torture, PW-104 categorically stated that none of the accused was ill-treated

by him or any other officer/official.  The defense had made suggestion about

the nature and extent of supervision exercised by PW 104 but it was not put

to  them  that  either  instructed  the  Investigating  Officers  to  torture  the

accused and forced them to confess their guilt.  In this view of the matter,

the  confessions  of  appellant  Nos.A-4  to  A-8  and  A-10  cannot  be  held

inadmissible on the premise that before recording of confessions they were

in  police  custody  and  the  statements  were  recorded  by  the  officers

supervising the investigation.

49. Likewise, there is no substance in the argument of the learned counsel

that the confessions of the appellant Nos.A-4 to A-8 and A-10 should be

discarded  because  the  same  had  been  retracted  on  the  first  available

opportunity.   As mentioned above,  the only statement  made by appellant

No.A-10 before Chief Metropolitan Magistrate, Delhi on 25.7.1996 was that

he had not made any confession.  However, he did not contest his signatures

on the confessional statement made before PW-103, Shri Harbhajan Ram.

When  the  appellants  were  produced  before  the  concerned  Magistrate  at

Ahmedabad,  none  of  them gave  out  that  he  had  not  made  confessional

statement or that his signatures had been obtained on the blank paper or that

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he was made to sign on the prepared statement or that he had been subjected

to torture, or any threat or allurement was given to him to make confession.

While  they  were  in  jail,  none  of  the  confessing  appellants  made  any

application to the Court that he wants to retract the confession.   

50. In the bail application dated 21.10.1994 (in paragraph ‘L’), filed on

behalf of appellant Nos.A-4, A-7, A-8 and Abdul Khurdus Abdul Ganikhan

Shaikh, under Sections 437 and 439 Cr.P.C. read with Section 20(8) of the

Act, it was averred that the only evidence against them is in the nature of

confessional  statements  which  are  not  admissible  because  the  procedure

prescribed  for  recording  of  the  confessional  statement  has  not  been

followed.  For the first time an indication of so called torture was made in

the application dated 23.11.1994 (paragraph 11) filed under Section 18 of

the  Act  on  behalf  of  appellant  No.A-5.   Therein,  it  was  stated  that  the

confession was recorded falsely and forcefully to involve the accused in the

case with the malafide intention. A somewhat similar statement was made in

paragraph (vi) of the Special Leave Petition (Crl.) No.1582 of 1995 filed on

behalf  of  appellant  Nos.A-4,  A-7  and  A-8  for  grant  of  bail.   In  that

paragraph it was averred that the petitioners were subjected to third degree

measures and made to sign statements which were written at the dictates of

the police officers.  In the discharge application dated 23.8.1996, filed on

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behalf of appellant No.A-5, it was averred that his confession was recorded

at Delhi under threats and great mental and physical torture and the same is

not  voluntary  in  nature  and  that  the  confession  recorded  under  the

provisions of the Act cannot be used against him.  In the statements made by

them  under  Section  313  Cr.P.C.,  the  appellants  made  contradictory

statements. Some of them made mention of the alleged physical and mental

torture as also of threats held out by different officers compelling them to

make confession.  In reply to question no.169 put to him under Section 313

Cr.P.C., appellant No.A-7 stated that he was subjected to torture and was

compelled  to  sign  on  blank  papers.   A  similar  statement  was  made  by

appellant No.A-8 in reply to question no.170.  This is clearly contradicted

by statement contained in para (vi) of SLP (Crl.) No.1582 of 1995, wherein

it  was  stated  that  the  appellants  were  made  to  sign  on  the  statements

recorded under the dictates of the police officer.   

51. If the confessions of the appellants are scrutinized in the light of the

above enumerated  factors,  it  becomes clear  that  the  allegations  made by

them regarding coercion,  threat,  torture,  etc.  after  more than one year of

recording of confessions are after thought and products of ingenuity of their

advocates.  The statements made by them under Section 313 Cr.P.C. were

also  the  result  of  after  thought  because  no  tangible  reason has  been  put

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forward  by the  defense  as  to  why the appellant  Nos.A-4 to  A-8 did  not

retract  from  their  confessions  when  they  were  produced  before  the

Magistrate at Ahmedabad and thereafter despite the fact that they had access

to legal assistance in more than one way.  Therefore, we hold that the trial

Court did not commit any error by relying upon the confessions of appellant

Nos.A-4 to A-8 and A-10 and we do not find any valid ground to discard the

confessions of appellant Nos.A-4 to A-8 and A-10.

52. The  stage  is  now  set  for  considering  whether  the  prosecution

succeeded in establishing the charge under Section 302 read with Section

120B  IPC.  However,  before  adverting  to  the  evidence  adduced  by  the

prosecution,  we  consider  it  proper  to  notice  the  definition  of  criminal

conspiracy and its interpretation by the Court.   Section 120A IPC, which

defines criminal conspiracy, reads as under:-

“When two or more persons agree to do, or cause to be done,

(1) an illegal act, or (2) an act which is not illegal by illegal

means, such an agreement is designated a criminal conspiracy

provided that no agreement except an agreement to commit an

offence shall amount to a criminal conspiracy unless some act

besides the agreement is done by one or more parties to such

agreement in pursuance thereof.  It is immaterial whether the

illegal act is the ultimate object of such agreement or is merely

incidental to that object.”

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53. In  Yash Pal Mittal  vs. State of Punjab [1977 (4) SCC 540], this

Court interpreted the term conspiracy and held:-  

“The very agreement, concert or league is the ingredient of the

offence. It is not necessary that all the conspirators must know

each and every detail of the conspiracy as long as they are co-

participators in the main object of the conspiracy. There may be

so  many  devices  and  techniques  adopted  to  achieve  the

common goal of the conspiracy and there may be division of

performances in the chain of actions with one object to achieve

the real end of which every collaborator must be aware and in

which each one of them must be interested. There must be unity

of  object  or  purpose  but  there  may  be  plurality  of  means

sometimes  even  unknown  to  one  another,  amongst  the

conspirators.  In  achieving  the  goal  several  offences  may  be

committed by some of the conspirators even unknown to the

others. The only relevant factor is that all means adopted and

illegal acts done must be and purported to be in furtherance of

the  object  of  the  conspiracy  even  though  there  may  be

sometimes  mis-fire  or  over-shooting  by  some  of  the

conspirators. Even if some steps are resorted to by one or two

of the conspirators without the knowledge of the others it will

not  affect  the  culpability  of  those  others  when  they  are

associated with the object of the conspiracy.”

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54. In Nalini’s case the Court analyzed various decisions on the subject

and held:-

“In  reaching  the  stage  of  meeting  of  minds,  two  or  more

persons share information about doing an illegal act or a legal

act by illegal means.  This is the first stage where each is said

to have knowledge of a plan for committing an illegal act or a

legal  act  by  illegal  means.   Among  those  sharing  the

information some or all may form an intention to do an illegal

act  or  a  legal  act  by illegal  means.  Those  who do form the

requisite intention would be parties to the agreement and would

be conspirators but those who drop out, cannot be roped in as

collaborators  on  the  basis  of  mere  knowledge  unless  they

commit  acts  or  omissions  from  which  a  guilty  common

intention  can  be  inferred.   It  is  not  necessary  that  all  the

conspirators should participate from the inception to the end of

the conspiracy;  some may join  the  conspiracy after  the  time

when such intention was first entertained by any one of them

and some others  may quit  from the conspiracy.  All  of them

cannot but be treated as conspirators.  Where in pursuance of

the agreement the conspirators commit offences individually or

adopt illegal means to do a legal act which has a nexus to the

object of conspiracy, all of them will be liable for such offences

even  if  some  of  them have  not  actively  participated  in  the

commission of those offence……… Sections 120-A and 120-B

make  conspiracy  a  substantive  offence  and  render  the  mere

agreement to commit an offence punishable.  Even if an overt

act does not take place pursuant to the illegal agreement, the

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offence of conspiracy would still attracted.  The parties to such

an agreement will be guilty of criminal conspiracy, though the

illegal act agreed to be done has not been done.  The unlawful

agreement  and  not  its  accomplishment  is  the  essence  of  the

crime of conspiracy.  The gist of the offence of conspiracy then

lies, not in doing the act, or effecting the purpose for which the

conspiracy is formed, not in attempting to do it, nor in inciting

before  others  to  do  it,  but  in  the  forming  of  the  scheme or

agreement between the parties……...”

55. The principles which can be deduced from the above noted judgments

are that for proving a charge of conspiracy, it is not necessary that all the

conspirators know each and every details of the conspiracy so long as they

are co-participators in the main object of conspiracy.  It is also not necessary

that all the conspirators should participate from the inception of conspiracy

to its end.  If there is unity of object or purpose, all participating at different

stages of the crime will be guilty of conspiracy.

56. In the  present  case  the  prosecution  led  evidence  to  show that  the

public was outraged against the police because it failed to arrest Abdul Latif

and  his  gang  members,  who  were  perceived  as  culprits  responsible  for

committing murder of nine persons in Radhika Gymkhana on 3.8.1992 and

in  this  backdrop,  Abdul  Latif  planned  surrender  of  some  unimportant

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members of his gang and for this purpose he took help of the local political

leader, Hassankhan Shamsherkhan Pathan @ Hassanlala.  Their move was

opposed by Rauf Valiullah, a former member of Rajya Sabha and General

Secretary of  Gujarat  Pradesh Congress (I)  Committee.   Therefore,  Abdul

Latif and gang decided to eliminate him and create terror in the mind of the

public.  A meeting for this purpose was organized by Abdul Latif and the

task of killing Rauf Valiullah was assigned to Rasool Khan @ Rasool Party.

In their  confessions,  Abdul  Khurdush  Abdul  Ganikhan Shaikh,  appellant

Nos.A-4, A-7 and A-8 have given details of the activities of Abdul Latif and

gang, Rasool Party and his associates,  their  nexus in the supply of illicit

liquor,  the  meeting  organized  by  Abdul  Latif  which  was  attended  by

members  of  the  company,  Rasool  Party  and  associates  and  the  decision

taken in that meeting to eliminate Rauf Valiullah, who was considered as an

impediment in the surrender of unimportant members of Abdul Latif gang in

connection with Radhika Gymkhana murder case. In his statement, PW-28,

Pradeep @ Nautamal Dave has spoken about the papers prepared by Rauf

Valiullah  regarding  political  situation  of  the  State  of  Gujarat  and  his

decision to go to Delhi to submit the same to the high command.  In his

confession,  appellant  No.A-4 disclosed  how he joined illegal  business  of

liquor of Abdul Latif, whose gang was known as company.  He then stated

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that Abdul Latif and gang purchased a new scooter bearing No.GJ-1C-2797

for  him in  1989,  colour  of  which  was,  later  on,  changed.   He has  also

spoken about the meeting held at the residence of Abdul Latif, the decision

taken to eliminate Rauf Valiullah and assigning of the task to Rasool Party.

In his statement before PW 104, appellant No.A-7 narrated the background

in  which  he  joined the business  of  spurious  liquor  and how he  came in

contact with Abdul Latif gang and Rasool Party and his associates which

included appellant Nos.A-5, A-6 and A-11 and also about the hide-out of

Rasool party at Baluchawad.  He then stated that Rasool party called him

through  appellant  No.A-11  and  instructed  him to  remain  with  appellant

Nos.A-6 and A-10 who were instructed to follow Rauf Valiullah and kill

him with knives.  Appellant No.A-7 disclosed how he along with appellant

Nos.A-6  and  A-10  followed  Rauf  Valiullah  at  various  places  including

Kalupur and Lal Darwaza and why the latter failed to attack Rauf Valiullah

at the two places.  He then disclosed that on 9.10.1992, Rasool Party asked

him to go on scooter with appellant No.A-8 to Madhuban building with an

indication  that  appellant  Nos.A-5  and  A-6  have  been  sent  to  kill  Rauf

Valiullah  and  also  that  appellant  No.A-8  was  given  revolver  with

instructions  to  shoot  Rauf  Valiullah,  in  case  appellant  No.A-5  was

unsuccessful.  In their confessions, appellant Nos.A-6 and A-10 have given

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an account of instructions given by Rasool Party to keep a watch over the

movements of Rauf Valiullah, efforts made by them to kill Rauf Valiullah

and  annoyance  of  Rasool  Party  due  to  their  failure  to  achieve  the  task.

Appellant Nos.A-6 and A-10 have also given details of how they followed

Rauf Valiullah and PW 28, Pradeep Bhai upto Madhuban building and how

appellant  No.A-10  intimated  Rasool  Party  that  Rauf  Valiullah  is  in

Madhuban  building.  Appellant  No.A-8  confessed  his  acquaintance  with

Rasool Party.  He stated that on 9.10.1992, Rasool Party called him through

appellant  No.A-7,  who  came  on  scooter  No.GJ-1C-2797  belonging  to

appellant No.A-4.  He also spoke about handing over of loaded revolver by

Rasool Party with instructions to kill  Rauf Valiullah in case of failure of

appellant  No.A-5.  Appellant  No.A-5 gave an account  of  the  incidents  in

which Rasool Party obliged him and why he agreed to work for the latter.

He then stated that at the asking of Rasool Party, appellant No.A-11, Gulam

Mohmed @ Gulal Kadarbhai Shaikh gave him revolver from which he has

learned  that  he  has  to  kill  someone.   He  further  stated  that  as  per  the

instructions, he went Madhuban building on his own motorcycle which was

handed over to appellant No.A-10 and then he sat on the scooter which was

with appellant No.A-6. He has also given minute details of Rauf Valiullah

coming out of Madhuban building along with PW 28, his firing three shots

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at Rauf Valiullah in succession and then escaping with appellant No.A-6 on

his scooter.  Appellant Nos.A-4 to A-8 and A-10 have also given complete

account of their going out of Ahmedabad, staying at different places before

return to Ahmedabad and  arrest by the police.  It is thus clear that in their

confessions,  appellant  Nos.A-4 to A-8 and A-10 have not  only disclosed

their acquaintance with Abdul Latif and gang and/or Rasool Party and his

associates, but given the details of conspiracy hatched by Abdul Latif and

gang to eliminate Rauf Valiullah, assignment of this task to Rasool Party,

specific  instructions  given  by Rasool  Party  to  them and  their  individual

roles in keeping track on the movement of Rauf Valiullah, pursuing him at

different places with a view to kill him, as also the actual murder of Rauf

Valiullah  on  9.10.1992.   Each  of  the  confessing  appellant  has  candidly

acknowledged that he acted as per the instructions and directions given by

the Rasool Party for achieving the object of killing Rauf Valiullah and how

they get in collaboration with each other for accomplishment of the task.

Although, appellant No.A-11 has not made confessional statement, his role

as a collaborator of Rasool Party and his participation in the conspiracy to

kill Rauf Valiullah and as also his role in the actual incident of killing Rauf

Valiullah are proved from the confessions of appellant Nos.A-5, A-6, A-7

and  A-8  which,  as  mentioned  above  are  candid  and  unambiguous.

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Therefore,  keeping  in  view  the  provisions  of  Section  15  of  the  Act  as

interpreted  by  this  Court  in  Gurprit  Singh’s  case,  Nalini’s  case,  S.N.

Dube’s  case,  Lal  Singh’s  case,  Devender  Paul’s  case and  Jameel

Ahmad’s  case,  we  hold  that  the  appellants  are  guilty  of  offence  under

Section 302 read with Section 120B IPC and no independent corroboration

is required for sustaining their conviction.   

57. De-hors  the  above  conclusion,  we  find  that  the  prosecution  has

produced  sufficient  corroborative  evidence  and  the  trial  Court  did  not

commit any error in relying upon the same to support its conclusion that the

appellants are guilty of offence under Section 302 read with Section 120B

IPC and other offences. PW 58, Bhagwan Das Lalwani (proprietor of K.P.

Auto Consultant), PW 50, Prakash Bhagwan Das Lalwani, PW 53, Naresh

Chauhan (RTO Agent),  PW 59,  Raju  Morandani  (employee  of  the  RTO

agent,  Naresh  Chauhan),  PW  44,  Vijay  Kumar  More  (Motor  Vehicle

Inspector in RTO Office, Ahmedabad) have given detailed account of the

purchase  of  Bajaj  Scooter  bearing  No.GJ-1C-2797 by Abdul  Latif  under

fictitious  name of  Maksood  Ahmed,  its  registration,  which  was  used  by

appellant No.A-7 and A-8 as back up party on the date of incident.  PW 72,

Jayanti Hira Lal Panchal, Police Sub-Inspector had seized scooter No.GJ-

1C-2797  on  14.10.1992  of  which  possession  was  taken  by  the  CBI  on

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23.3.1993. PW 111, Mohd. Khan Pathan, who is related to appellant No.A-

7, Amin Choteli, has given evidence regarding purchase of four tickets from

S.K. Travels for Amin Choteli and his companions for going from Baroda to

Bombay.   PW  112,  Sirajuddin  Ajimuddin  Sheikh  is  the  owner  of  S.K.

Travels from whom PW 111 had purchased four tickets on 10.11.1992.  PW

100, S.K. Sakia, the then Deputy Inspector General of Police, CID, Gujarat

State furnished details of 14 other cases registered against appellant No.A-4,

3 cases against appellant No.A-5, 1 case against appellant No.A-6, 18 cases

against appellant No.A-7, 3 cases against appellant No.A-8, 1 case against

appellant No.A-10 and 3 cases against appellant No.A-11.  PW 35, Rajni

Kant Ganpat Patel, who was employed as peon in Dairy Den India Private

Ltd. having office at Madhuban building has stated that on 9.10.1992 he had

seen  appellant  No.A-5 who fled  after  shooting  Rauf  Valiullah  while  the

latter was about to sit  in the car of PW 28.  He has stated that appellant

No.A-5, Mohd. Fighter fled away from the spot on the scooter driven by

appellant No.A-6.  He also identified appellant Nos.A-5 and A-6 in the Test

Identification Parade.  PW 28, Pradeep Nautamal Dave @ Baka Bhai is the

complainant and the eye witness.  He gave detailed account of his coming

with Rauf Valiullah to the office of Dairy Den India Private Ltd. situated in

Madhuban  building,  handing  over  of  memorandum  for  the  purpose  of

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typing and shooting of Rauf Valiullah while he was sitting on the car.  In

the  Test  Identification  Parade  held  on  19.8.1993,  he  identified  appellant

No.A-6.   PW  29,  Raju  Bhai  Nayak,  who  was  working  as  a  labour  at

construction site of Western Hotel  opposite to Madhuban building stated

that  he  saw firing  of  bullets  by a  person  who was earlier  sitting  on  the

pillion of the scooter and then fleeing away of two persons on the scooter.

He also saw that the person with bullet injuries fell down on the ground and

was taken to the hospital.   PW 11, Parijat N. Damania is the typist to whom

Rauf Valiullah had given papers for typing in the office of Dairy Den India

Private Ltd.  PW-49, Govind Bhai Babu Bhai is the person who sold Bullet

Motorcycle  No.GAC-6005  to  appellant  No.A-5  in  1991.   He  identified

appellant No.A-5 in the Court.  PW 55, Rajender Singh Prem Singh Chawla,

PW 88,  Rajesh  Rajender  Nath  Mehta,  PW 116,  Susharta  Dutta,  General

Secretary  of  Union  Power  Lifting  Federation  have  given  evidence  that

appellant No.A-5 was not a member of the power lifting team which visited

Durgapur and yet he came to the venue of championship on 14.10.1992.

Learned counsel for the appellants could not point out any serious infirmity

in the appreciation of the evidence of the afore-mentioned witnesses by the

trial Court.   

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58. In the result, we hold that the trial Court did not commit any error in

recording  a  finding  that  charges  of  conspiracy  and  murder  are  proved

against the appellants.  Consequently, the appeals fail and are dismissed.

……………………. J. (B.N. Agrawal)

…………………….J. (G.S. Singhvi)

New Delhi November 18, 2008.

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