REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 2-5 OF 2003

Ahmed Hussein Vali Mohammed  Saiyed & Anr.           .... Appellant(s)

Versus

State of Gujarat           .... Respondent(s)

WITH

CRIMINAL APPEAL NOs.13-14, 216-217 & 8-11 OF 2003

J U D G M E N T  

P. Sathasivam, J.

1) All the above appeals were filed before this Court under  

Section  19  of  the  Terrorist  and  Disruptive  Activities  

(Prevention)  Act,  1987 (hereinafter  referred to as “the TADA  

Act”)  against  the  order  dated  21.10.2002 of  the  Designated  

Court at Ahmedabad in TADA Case Nos. 8/1993, 144/1993,  

2/1996,  4/1996  &  38/1996  whereby  the  learned  Judge  

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convicted the appellants under Section 302 read with Section  

120-B I.P.C.,  Sections 25(1)(c)  and 27 of  the  Arms Act  and  

Section 5 of the TADA Act and sentenced them under different  

counts of punishment including life imprisonment.

2) The brief facts leading to the filing of the present appeals  

are as follows:

According to the prosecution, on 03.8.1992, the accused  

formed an unlawful  assembly  and conspired  together  along  

with  the  absconding  accused  Sharifkhan,  Resulkhan,  

Aminkhan Mojkhan and Imtiyaz and launched an attack on  

the deceased Hansraj Shivgopal Trivedi and other persons who  

were with him.  In pursuance of the same, nine persons were  

killed and three persons were injured by indiscriminate firing  

resorted  to  by  the  appellants/accused  with  revolvers  and  

automatic  guns.   Accused  Nos.  1,2,3,4  and  20  went  to  

Radhika Gymkhana near Gauri Cinema, Odhav on 03.08.1992  

in a Maruti Fronti Car.  Accused No. 1, Liyakathussein and  

absconding  accused  Sharifkhan fired  on Hansraj  and other  

seven persons  resulting  in  their  death.   Both  of  them also  

resorted to indiscriminate firing on the witnesses Vrujlal and  

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Mohan  Meghnath  which  caused  serious  injuries  to  them.  

Accused No. 25 – Abdul Latif Abdul Wahab Shaikh, who was  

the  gang  leader,  was  accompanied  by  Accused  Nos.26  –  

Sabbirhussein Husseinmiya Shaikh, and 27 – Tajammulhasan  

Alihasan  Ansari,  with  a  view  to  get  rid  of  Hansraj.   The  

complaint was given by Laxmansinh Madansinh Bhadoria on  

3.8.1992 in the Odhav Police Station bearing 1-CR No. 254 of  

1992.  On the strength of the complaint, various offences were  

registered against the accused persons.  The accused persons  

were arrested by the police and after submission of charge-

sheet, necessary charges were framed by the Trial Court.  On  

21.12.1992, after conducting the trial in which 62 witnesses  

were examined by the prosecution and 139 documents were  

exhibited  including  the  confessional  statements  of  various  

accused, the Designated Judge convicted the accused under  

various sections of  the  I.P.C.,  Arms Act  and TADA Act.   In  

addition to the sentence, the Designated Judge also directed  

the accused persons to pay fine separately.  All the sentences  

were ordered to run concurrently.  Aggrieved by the conviction  

and sentence imposed by the Designated Judge, Ahmedabad,  

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the appellants filed the above appeals before this Court.

3) Heard  Mr.  Sushil  Kumar,  learned  senior  counsel,  

Ms.  Nitya  Ramakrishnan  and  Ms.  Kamini  Jaiswal  learned  

counsel,  appearing for the appellants/accused, Mr. Yashank  

Adhyaru, learned senior counsel appearing for the State and  

perused  the  relevant  materials  including  oral  and  

documentary evidence adduced before the Designated Court.   

4) Learned  counsel  appearing  for  the  appellants  mainly  

contended  that  the  conviction  based  on  confessional  

statements  of  the  appellants  without  any  corroborative  

evidence is not sustainable.  It was also pointed out that even  

those alleged confessional statements of the accused are not  

admissible  as  not  fulfilling  the  conditions  prescribed  under  

Rule  15(3)(b)  of  TADA  Rules.   They  also  pointed  out  that  

without  a  certificate  by  the  competent  person  in  clear  

categorical  terms  about  his  satisfaction  or  belief  as  to  the  

voluntary nature of the confession recorded by him would be  

fatal  to  the  admissibility  and the  same cannot be cured by  

placing any other material.  It was further submitted that no  

contemporaneous  record  to  support  the  confessions  were  

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produced.  They also pointed out that the alleged confessions  

were not sent to the Magistrate within a reasonable time and  

the  same  is  in  violation  of  Rule  15(5)  of  TADA  Rules.  

According to them, some confessional statements in original  

are missing and some are typed copies without signatures of  

the  accused.   They  also  highlighted  that  even  dying  

declarations cannot be relied as being contradictory and are  

liable to be rejected.  There is no corroboration at all to the  

confessional statement of Accused No.27.   

5) On the other hand, learned senior counsel appearing for  

the  State  while  supporting  the  conviction  and  sentence  

imposed by the Designated Court submitted that, though, in  

some of the confessional statements, the certificate was not  

enclosed  in  clear  terms,  however,  in  view  of  the  fact  that  

recording officer has orally testified about the confessions of  

the accused and the defect, if any, is cured.  He pointed out  

that most of the statements of the accused were accompanied  

by  a  certificate.   Insofar  as  the  confessional  statements  of  

Accused Nos. 27 and 28 are concerned, they were recorded  

post 1993 Amendment, hence, they can be used against the  

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co-accused. He also pointed out that the prosecution has also  

relied on several other acceptable materials in support of their  

charge.

6) In the light of the above contentions and the materials  

placed before the Designed Court and statutory provisions, let  

us  consider  whether  the  prosecution  has  established  its  

charges leveled against the accused and the Designated Court  

is right in convicting the appellants and justified in awarding  

appropriate sentence.       

7) According to the prosecution, the incident took place on  

03.08.1992  at  about  7.45  p.m.  at  the  Radhika  Gymkhana  

situated  in  the  Odhav  Area,  Ahmedabad  which  has  been  

declared as a notified area in terms of Section 2(f) of the TADA  

Act.   To  show  that  the  said  area  has  been  declared  as  a  

notified area in terms of TADA Act, the prosecution has placed  

Exh. 572 and examined their Investigating Officer-PW-59.  All  

the  accused  along  with  absconding  accused  hatched  the  

conspiracy to eliminate the rival gang under the leadership of  

Hansraj Trivedi.  There was long standing enmity between the  

two gangs in the sale of liquor.  Because of this gang rivalry of  

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Hansraj with Abdul Latif  and the members of his gang, the  

enmity developed between two of them and in furtherance of  

conspiracy hatched initially,  in the afternoon of 03.08.1992,  

Abdul Latif’s gang went to the office of Hansraj but Hansraj  

was  not  available  there,  therefore,  the  members  of  Abdul  

Latif’s gang returned to Madh’s Mohalla, Dariapur.  Thereafter,  

again in the evening, Abdul Latif received an information that  

Hansraj  and  other  members  are  playing  game  of  cards  in  

Radhika Gymkhana  at around 8 ‘O’ Clock and on the strength  

of the said information, the plan was chalked out to launch an  

assault  on  Hansraj  Trivedi  and  other  members  and  to  

eliminate Hansraj Trivedi. In pursuance thereof, they reached  

in  two  cars  at  Radhika  Gymkhana  and  they  verified  that  

Hansraj Trivedi and other members are playing game of cards  

and thereafter the members of Abdul Latif’s gang resorted to  

firing in an indiscriminate manner and killed Hansraj Trivedi  

and eight  other  persons.   Two persons of  the  Abdul  Latif’s  

gang waited near the staircase and used weapons with a view  

to  disperse  the  crowd  which  had  gathered  near  the  

Gymkhana.  The said two accused also forced the shopkeepers  

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to down their shutters.  According to the prosecution, the said  

act of the accused terrorized people living in the locality and it  

resulted in the death of nine persons viz. Kantibhai Jethabhai  

Solanki,  Ramkumar  Rajaram  Upadhyay,  Hansraj  Shivgopal  

Trivedi, Gatu Valnath Jogi, Shailesh Amrutlal Panchal, Dinesh  

Dayalji Desai, Hasmukh Gandabhai Patel, Asharafkhan alias  

Badashahkhan Pathan and Jayantibhai  Joitaram Patel.   In  

support of the same, the prosecution examined 62 witnesses.  

Out of 62 witnesses, some turned hostile and not supported  

the prosecution case.  As per the charge-sheet in respect of  

TADA Case No. 8 of 1993 and TADA Case No. 144 of 1993, 24  

persons  were  shown  as  accused.   Out  of  the  aforesaid  

accused, accused Nos. 1, 2, 3, 4 and 20 were charged under  

Section 5 of the TADA Act as well as under Section 25(1)(c)  

and Section 27 of the Arms Act.  They were also charged under  

Section 120-B of  the IPC and all  the accused were charged  

under  Section  120-B  read  with  Section  302/149  IPC.   As  

accused  were  members  of  unlawful  assembly,  the  charge  

under Section 148 of IPC was also framed against them.  In  

TADA Case  Nos.  2  and  4  of  1996,  the  charge  was  framed  

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against  A-25  to  A-28.   Accused  Nos.  25,  26  and  27  were  

charged under Section 5 of  the TADA Act as well  as under  

Section 25(1)(c) and Section 27 of the Arms Act and also under  

Section  120-B of  the  IPC.   They  were  also  charged for  the  

offences  under  Section  120-B  read  with  Section  302  and  

under  Section  149  read  with  Section  302  of  the  IPC while  

accused  No.  28  was  charged  under  Section  302  read  with  

Section 120-B of the IPC and Section 5 of the TADA Act and  

Sections 23(1)(c)  and 27 of the Arms Act.    They were also  

charged with Section 148 of the IPC.  In TADA Case No. 38 of  

1996, the charge was framed against the accused Aminkhan  

Alamkhan  Mojkhan  Pathan  under  Section  120  read  with  

Section 302 and Section 149 read with Section 302 and also  

under Section 120-B read with Section 302 and 149 of the IPC  

and Section 5 of the TADA Act and Sections 25(1)(b) and 27 of  

the Arms Act.

8) After framing the charges as mentioned above, joint trial  

was held and the evidence was recorded in TADA Case No. 8 of  

1993.   

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9) Before  going  into  the  confessional  statements  of  the  

accused, it is relevant to mention Section 15 of the TADA Act  

which reads as under:

“15.  Certain confessions made to police officers  to be  taken into consideration.- (1) Notwithstanding anything in  the Code or in the Indian Evidence Act, 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  either 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.”

The  above  provision  makes  it  clear  that  any  confessional  

statement of a person under the TADA Act can be recorded  

either  by  a  police  officer  not  lower  in  rank  than  of  a  

Superintendent of Police, in exercise of the powers conferred  

under Section 15 or by a Metropolitan Magistrate or Judicial  

Magistrate  or  Executive  Magistrate  or  Special  Executive  

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Magistrate who are empowered to record any confession under  

Section 164(1) of Cr.P.C. in view of sub-section (3) of Section  

20 of the TADA Act.   

10) In exercise of the powers conferred by Section 28 of the  

TADA Act, the Central Government framed Rules namely, the  

Terrorist  and  Disruptive  Activities  (Prevention)  Rules,  1987.  

Rule 15 prescribes method for recording of confession made to  

the police officer which reads as under:

“Recording of confession made to police officers.-   (1) A  confession  made  by  a  person  before  a  police  officer  and  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 also certify under his own  hand that such confession was taken in his presence and  recorded by him and that the record contains a full and true  account  of  the  confession  made  by  the  person  and  such  police officer shall make a memorandum at the end of the  confession to the following effect:-

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“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 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 and full and true account of the statement  made by him.

Sd/- Police Officer.”

(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.”

11) The  provisions  of  the  TADA  Act,  more  particularly,  

Section  15  and Rule  15  were  considered by  a  Constitution  

Bench of  this  Court  in  Kartar  Singh vs.  State  of  Punjab,  

(1994)  3  SCC  569.   After  holding  that  the  TADA  Act  is  

constitutionally  valid,  the  Bench  laid  down  the  following  

guidelines to ensure that the confession obtained in the pre-

indictment interrogation by a police officer not lower in rank  

than a Superintendent of Police is not tainted with any vice  

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but  is  in  strict  conformity  with  the  well-recognized  and  

accepted aesthetic principles and fundamental fairness:

“(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; (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,  authorize  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 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.”   

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The Constitution Bench has made it  clear that though it  is  

entirely for the Court trying the offence to decide the question  

of  admissibility  or  reliability  of  a  confession  in  its  judicial  

wisdom strictly adhering to the law, it must, while so deciding  

the question should satisfy itself that there was no trap, no  

track  and  no  importune  seeking  of  evidence  during  the  

custodial  interrogation  and  all  the  conditions  required  are  

fulfilled.

12) In  the  light  of  the  above  statutory  provisions  and  the  

safeguards as enunciated in the Constitution Bench decision,  

let  us  analyze  the  evidence  relied  on  by  the  prosecution.  

Though several persons were implicated in the commission of  

offence, we are concerned about eight persons who alone filed  

the  above  appeals  challenging  their  conviction.  They  are  as  

follows:

S.No. Crl. A. No. Name of the appellant/Accused 1. No.2-5 of 2003

(Tada  Case  8/93,  144/93, 2/96 and 4/96)

Ahmed  Hussein  Vali  Mohammed  Saiyed (A8) Tajammulhasan  Ali  Hasan  Ansari  (A27)

2. No. 8-11 of 2003 (Tada  Case  8/93,  144/93, 2/96 and 4/96)

Liyakat  Hussein  @  Master  Khudabax  Shaikh (A1) Mohammed Taqlim @ Kalu  Md. Umar  Shaikh [A2] Jawedkhan  @  Jaeed  Azizkhan  

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Pathan [A3] Musarrafkhan  Gorekhan  Pathan  (A14]

3. No.13-14 of 2003 (TaTada Ca  (Tada Case No. 2/96 &  

4/96

Jahangir Mazarban Patel [A28]

4. No.216-217 of 2003 (Tada  Case   8/93  &  144/93

Abdul  Khurdush  Abdulgani  Shaikh  [A20]

Apart from these factual details, it is relevant to mention that  

Mohammed Shafi @ Sabbu Hajiahmed Maniar [A4], Iqbal Khan  

Jabbar  Khan  Pathan  [A7]  and  Abdul  Latif  Abdul  Wahab  

Shaikh [A25] were reported dead during the trial, hence the  

charge against them stood abated.  Asharaf Khan Ajabkhan  

Pathan [A6] and Abdul Hamid @ Babu Battery Gulam Nabi  

[A24]  had  absconded  and  the  Designated  Court  separated  

their case holding that the trial would be held separately on  

apprehending them.  On appreciation of all the materials, the  

Special  Judge  acquitted  A5,6,9,10,11,12,13,15,16,17,18,19,  

21,22,23,24  and 29 for  which they  were  charged.   Though  

several accused made confessional statement implicating other  

accused  persons,  the  prosecution  heavily  relied  on  the  

confessional statement of the following appellants/accused:      

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1. Liyakat Hussein @ Master Khudabax Shaikh (A1)

2. Jawedkhan @ Jaeed Azizkhan Pathan [A3]

3. Tajammulhasan Ali Hasan Ansari (A27)

4. Mohammed Taqlim @ Kalu Md. Umar Shaikh [A2]

5. Abdul Khurdush Abdulgani Shaikh [A20]

6. Jahangir Mazarban Patel [A28]

Here again, before going into the veracity and acceptability of  

the confessional statements, it is to be noted that confessional  

statements  are  to  be  recorded  by  following   procedure  and  

supported by memorandum as required under Rule 15(3) of  

the  Rules.   Learned  counsel  appearing  for  the  

appellants/accused  pointed  out  that  Section  15  as  well  as  

Rule  15  being  mandatory,  failure  to  comply  with  the  same  

result in rejection of those statements.  On the other hand,  

learned senior counsel appearing for the State submitted that  

the entire procedures and safeguards were fully complied with  

while  recording the confessional  statements  of  the  accused.  

He  also  pointed  out  that  though  some  of  the  

statements/memorandum  were  not  enclosed  with  the  

confessions as required under Rule 15(3)(b), some were fully  

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complied  with  and  there  is  no  flaw,  hence  the  Designated  

Court has rightly relied on the same.  He further pointed out  

that even the said defect is cured, if the recording officer orally  

testifies and explains the safeguards and procedures followed  

at the time of recording the statement.  According to him, in  

the case on hand, those safeguards and procedures were fully  

complied  with and the  officer  who recorded their  statement  

testified  before  the  court  explaining  the  same.   He  further  

pointed out that inasmuch as some of  the statements were  

recorded post-1993 amendment  to  the  TADA Act,  the  same  

can be used against the co-accused.        

13) Inasmuch  as  these  appeals  were  filed  against  the  

conviction and sentence of the Designated Court in terms of  

Section 19 of the Act, this Court being an Appellate Court, we  

verified all  the confessional statements and other connected  

materials which are applicable to the appellants before us with  

the assistance of the counsel on either side.  

14) Among  the  confessional  statements  of  the  accused  as  

pointed out, let us consider the statement of Tajammulhasan  

Alihasan  Ansari  [A-27]  recorded  on  18.03.1996  by  the  

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competent officer empowered under the Act.  The perusal of  

his  statement  makes  it  clear  that  before  recording  his  

confessional  statement,  he  was  informed  that  he  was  not  

bound to make the confessional statement and the same could  

be used against him in future.  The recorded statement also  

shows  that  the  officer  has  not  used  any  force  or  coercion  

against him to give the confessional statement and thereafter,  

that  is  on  19.03.1996,  his  confessional  statement  was  

recorded as per his statement.  He explained that in 1991-92,  

when he  was working in  the  factory  of  Taufiqkhan Pathan,  

Hansraj Trivedi used to sell liquor near Ajit Mill and in that  

way he came in contact with him.  After the intervention of  

police, Hansraj Trivedi closed the business there and for the  

purpose  of  Varli  Mataka Gambling  he  used to  go to  Sabbu  

Haji’s  Quarter  situated  at  Gomtipur  and  there  he  came  in  

contact with Sabbu Haji and one Isharaq Pahelvan who was  

known to  Sabbu Haji.   He  used to  sell  empty  plastic  bags  

which remained at the liquor den.  He also explained about  

the gang rivalry between Hansraj Trivedi and Latif.  Being a  

member  of  the  Latif  gang,  he  enquired  the  whereabouts  of  

18

Hansraj Trivedi at his office and ultimately found that he used  

to go to Radhika Gymkhana to play cards.  Sabbu Haji was  

given information about Hansraj Trivedi who in turn gave the  

information to Abdul Latif.  On the date when Hansraj Trivedi  

was murdered, first he went to Hansraj Trivedi’s office at 4 ‘o’  

clock in the afternoon but finding that he was not there he  

went  to  Radhika  Gymkhana  situated  near  Gauri  Cinema.  

When he reached Gymkhana, Hansraj Trivedi, Badashahkhan  

Pathan and other 12-15 persons were playing game of cards.  

On hearing this information,  all  the appellants came in two  

cars and kept the same near Gauri Cinema.  5 to 6 persons  

came  out  from the  car  and  they  were  having  revolver  and  

automatic machine guns.  According to him, Sharifkhan was  

having automatic machine gun.  Two persons stood near the  

staircase  of  Gymkhana  and  Sharifkhan,  Jawedkhan,  

Abdulkhurdush  and  Liyakat  Master  were  shown  Hansraj  

Trivedi who was playing game of cards in the room.  When  

Hansraj Trivedi saw them in the room with weapons, he tried  

to escape.  On seeing his conduct, indiscriminate firing was  

resorted to killing several persons.  On hearing the gun firing,  

19

the  public  gathered  near  Gymkhana,  the  gangmen  of  Latif  

rushed to their cars and returned to their place.   

15) A perusal of his statement (A-27) shows that he disclosed  

the names of Sharifkhan, Jawedkhan, Abdul Khurdush and  

Liyakat Master  and about their  plan going to Gymkhana in  

two maruti  vans  to  eliminate  the  rival  gang leader  Hansraj  

Trivedi  and  others  and  started  indiscriminate  firing  killing  

Hansraj Trivedi and others.  At the end of his statement, he  

also put his thumb impression and Deputy Commissioner of  

Police,  Ahmedabad  city  who  recorded  his  statement  

authenticated  the  document  by  putting  his  signature.   The  

statement also shows that a proper certificate in terms of Rule  

15(3) was appended along with it.  

16) Jahangir Mazarban Patel (A-28) has made a confessional  

statement before the Competent Officer which was recorded on  

06.04.1996.  He was also cautioned about the fact that his  

statement could be used against him in future.  The statement  

also shows that there was no threat or intimidation given to  

him.  He narrated that he used to purchase liquor from Abdul  

Latif since 1992 because his father had a liquor permit.  He  

20

used to visit Abdul Latif two or three times in a week.  Abdul  

Latif  had purchased 38 revolvers, 17 pistols and 5 NP Bore  

rifles without licence from him.  He used to purchase revolvers  

and  pistols  from  one  Keval  Kishore  Sharma,  an  Arms  and  

Ammunition Dealer from New Delhi in the year 1991.  He also  

narrated various instances of firing and killing of persons, use  

of Arms and Ammunitions supplied by him.  His confessional  

statement  was signed  by him and necessary  certificate  has  

been appended by the Competent Officer.   

17) Aminkhan  Alamkhan  Mojkhan  Pathan  (A-29)  has  also  

made a confessional  statement before the competent officer.  

Though  he  was  acquitted  by  the  Designated  Court,  let  us  

consider  his  statement  how he  implicated  these  appellants.  

This was recorded on 29.08.1996 and 30.08.1996.  In his case  

also, at the time of recording his confessional statement, the  

Competent  Officer  has  taken  all  necessary  precautions  and  

due care, to ascertain from him as to whether any threat or  

coercion was used against him at the time of recording his  

confessional statement.  In turn, the accused informed him in  

clear terms that he was aware of the consequences in making  

21

such  statement  including  the  fact  that  the  same  would  be  

used against him.  He narrated the incident which took place  

in Radhika Gymkhana on 03.08.1992.  He also highlighted the  

enmity between Hansraj Trivedi and Latif in respect of sale of  

country liquor.  He also explained that Hansraj Trivedi used to  

receive threat from Latif for not purchasing liquor from him.  

In spite of warning and threat, since Hansraj Trivedi was not  

acceding to the directions of the Latif gang, a plan was chalked  

out to get rid of Hansraj Trivedi and, therefore,  the attempt  

was made to locate the presence of Hansraj.  The attack was  

planned to kill  him and other members of his gang.  In his  

statement, he mentioned in categorical terms that Abdul Latif,  

Sharifkhan,  Jawedkhan,  Liyakat  Master,  Abdul  Khurdush,  

Sabbu Haji and Musharraf went to Radhika Gymkhana and  

resorted to firing.  He also mentioned that some of the accused  

were arrested by the police.  After making such statement, he  

put his signature at the bottom and necessary certificate was  

appended by the Competent Officer  as provided under  Rule  

15(3) of TADA Rules.  As rightly pointed out by the Designated  

Court, his statement naming several persons corroborates the  

22

confessional  statement  given  by  Tajammulhasan  Alihasan  

Ansari (A-27). In our opinion, though A-29 was a member of  

Latif’s  gang,  his direct  involvement in the said incidence as  

well  as  commission  of  the  offence  was  not  proved  by  the  

prosecution case resulting in his acquittal by the Designated  

Court.

18) The first accused, namely,  Liyakathussein Alias Master  

Khudabax  Shaikh  (A1)  –  His  confessional  statement  was  

recorded  on  06.09.1992.   In  his  case  also,  the  Competent  

Officer, who recorded his statement, cautioned him that there  

is  no  need  to  make  any  statement  and  it  would  be  used  

against  him.   His  statement  also  shows that  there  was  no  

coercion or force while recording his statement.  After all these  

formalities,  his  confessional  statement  was  recorded.   He  

narrated that the members of Abdul Latif  gang used to sell  

liquor in Ahmedabad and used to force everyone to purchase  

liquor from the members of Latif  Gang and on refusal, they  

used to give threat and intimidation to them.  Hansraj Trivedi,  

who was having his  liquor  den in  Soni’s  Chawl  situated at  

Odhav area was also selling liquor.  In spite of several threats,  

23

he never used to purchase liquor from the members of Latif  

Gang which resulted in bitter enmity between the members of  

Latif Gang and Hansraj Trivedi.  On 03.08.1992, he went to  

the  office  of  Hansraj  Trivedi  along  with  Sharifkhan,  

Jawedkhan,  Abdul  Khurdush  Rasul  Party,  Musharrafkhan,  

Mohammed Tasalim and Imtiyaz.  After return to the garage of  

Latif  at  about  7  ‘O’  Clock  on  receiving  information  that  

Hansraj  Trivedi  was  playing  game  of  cards  in  Radhika  

Gymkhana,  members  of  Latif  Gang  i.e.  Sharifkhan,  

Javedkhan, he himself, Abdul Khurdush, Sabbu Haji Maniar  

and Mohammed Tasalim went to Gymkhana.  Sabhu Haji also  

came  in  Maruti  Fronti  Car  wherein  Musharraf,  Ahmed  

Hussein,  Abdul  Latif,  Sabbirhussein  and other  two persons  

were  sitting  while  Imtiyaz  came  on  the  scooter  at  Radhika  

Gymkhana.  Sharifkhan was driving the car in which he was  

traveling and another car was driven by Musharrafkhan.  The  

number plates of both the cars were removed.  Thereafter, they  

went to Radhika Gymkhana where Imtiyaz was present.  He  

further  stated  that  Sharifkhan  and  Javedkhan  both  were  

having AK-56 rifle.  He was in possession of revolver.  Abdul  

24

Khurdush  was  having  pistol  and  Sabbu  Haji  Mania  and  

Mohammed Tasalim were having revolver in their possession.  

Thereafter,  he  went  to  the  first  floor  of  Gymkhana  and  he  

himself,  Sharifkhan,  Jawedkhan and Abdul  Khurdush were  

standing  near  the  door  of  the  room,  Imtiyaz  had  shown  

Hansraj  Trivedi  and  thereafter  all  the  four  persons  started  

firing.   Badashahkhan  was  also  fired  upon.   Mohammed  

Tasalim was standing near the stair case of Gymkhana with  

revolver.  After resorting to firing, they immediately went down  

stairs and came to Dariapur with their  weapons.  Latif  and  

other  members  also  came  to  Dariapur  in  another  car.   He  

came to know that when the firing was resorted to in the Club,  

several persons had gathered near the Club and Mohammed  

Tasalim and Sabbu Haji also fired on them.  Their weapons  

were kept in the car of Abdul Latif.  Subsequently, he came to  

know that due to the firing, six to seven persons were killed in  

the Gymkhana.  His statement was recorded by the Deputy  

Police  Commissioner,  South  Zone  and  the  accused  put  his  

signature below his statement.  

25

19) Mohammed  Taslim  alias  Kalu  Mohammed  Ummer  

Shaikh  (A2)  –  His  confessional  statement  was  recorded  on  

08.09.1992 by the Deputy Commissioner  of  Police,  Western  

Division, Ahmedabad  City.   This  statement  shows  that  he  

was very well aware of the fact that the same would be used  

against him.  The officer has also followed the strict procedure  

and the accused voluntarily made the confessional statement.  

He also explained about the  gang rivalry  between Latif  and  

Hansraj Trivedi in respect of sale of liquor.  He mentioned the  

name and other  details  of  26  persons  as  members  of  Latif  

Gang who were involved in the matter of conspiring to murder  

Hansraj  Trivedi.   After narrating what had happened in the  

forenoon of 03.08.1992, he explained that in the evening he  

was sitting along with his other gang members.  After getting a  

message, Latif instructed them to kill Hansraj Trivedi who was  

present in Gymkhana.  Thereafter, they went to Gymkhana in  

two white Maruti Fronti cars.  He explained that in the Fronti  

car  of  Latif,  himself  (A2),  Sharifkhan,  Javedkhan,  Liyakat  

Master, Abdul Khurdush, Sabu Haji and in the second Maruti  

Fronti  Car,  Mussarafkhan,  Ahmed  Hussain  Kaliyo,  Abdul  

26

Latif,  Sabir  Hussain,  Latif’s  known  person  (name  not  

mentioned)  and  Sharifkhan’s  known  person  (name  not  

mentioned).   He  also  mentioned  that  at  the  place  of  

occurrence, Sharifkhan had kept the automatic rifle with him,  

Javedkhan had taken the second automatic rifle, Liyakat had  

taken  the  revolver,  Khurdush  had  pistol  and  Sabu  had  

revolver.  He also had a revolver.  On reaching the spot, he  

himself,  Javedkhan,  Sharifkhan  and  Abdul  Khurdush  had  

entered the Gate and Imtiaz had gone into Radhika Gymkhana  

by the stairs ahead of them and others followed.  He had stood  

down near the stairs.  All the four went inside Gymkhana and  

there were sounds of  firing.   He had also fired towards the  

people.  The four persons who had gone upstairs came down  

speedily and reached the car and returned to their workshop  

of Latif.  He also stated that on the next day, he came to know  

that where they had fired at Radhika Gymkhana, eight to nine  

persons  were  dead  including  Hansraj  Trivedi  and  his  man  

Badshahkhan.   After  committing  the  said  crime,  they  were  

hiding  in  Dariyapur.   After  narrating  all  these  events,  he  

27

signed his name and the officer who had taken down also put  

his signature.  However, no certificate was appended.  

20) Jawedkhan Azizkhan Pathan (A3)  –  His  statement  was  

recorded on 21.09.1992.  His statement also shows about the  

compliance of procedure and the fact that there was no need  

to make such statement.  In his statement, he also explained  

the business of Hansraj Trivedi and the rivalry between him  

and Latif.  He highlighted that he and other gang members of  

Latif  held  meeting  and  chalked  out  the  plan  to  eliminate  

Hansraj Trivedi.  He also explained how he and his gang men  

went to Gymkhana in two Maruti Fronti Cars.  He explained  

that  Sharifkhan  and  he  had  taken  machine  gun  and  rifle.  

Liyakat  Master  was  having  revolver.   Abdul  Khurdush  was  

having  pistol  and  Sabu  Haji  and  Mohammed Tasalim  were  

having revolver in their possession.  All of them went to the  

first floor of the Club and when Sharifkhan opened the door  

and  Hansraj  Trivedi  was  shown,  firing  was  started.   After  

firing, all of them went to Dariapur.  He also stated that the  

car in which Latif was sitting was having 30 rifles and Abdul  

Khurdush and Rasulkhan party used to make arrangements  

28

for the weapons.  He came to know that nine persons had died  

in the firing and three sustained injuries.  During the course  

of  raid,  Sharifkhan and he  were  arrested with revolver  and  

pistol.  His confessional statement was signed by him as well  

as the Competent Officer.   

21) Abdul  Khurdush  Abdul  Gani  Shaikh  (A20)  –  His  

statement  was recorded on 10.03.1993.   All  the  safeguards  

and procedures were followed before recording his statement.  

He also mentioned about the rivalry, going in two Maruti Cars,  

indiscriminate firing in the first floor of the Gymkhana Club,  

killing  of  Hansraj  Trivedi  and  others.   He  also  implicated  

Sharifkhan, Mohammed Tasalim, Musharrafkhan, Javedkhan,  

Rasulkhan Party and Imtiyaz Ahmed.  He also mentioned the  

weapons that were carried by himself and others.  Like others,  

he also stated that after firing and killing of Hansraj Trivedi  

and others,  they returned to their  cars and went to Madh’s  

Mohalla.  

22) We have carefully perused and verified the confessional  

statements  of  Liyakat  Hussein  @  Master  Khudabax  Shaikh  

(A1), Jawedkhan  @  Jaeed  Azizkhan  Pathan  [A3],  Abdul  

29

Khurdush Abdulgani Shaikh [A20] and Aminkhan Alamkhan  

Mojikhan Pathan from the original  records.   The perusal  of  

their statements show that all  of them were informed about  

the fact that there was no need and compulsion to make a  

statement and the same would be used against them in future  

in  the  very  same  case.   It  is  also  clear  that  all  of  them  

understood  the  entire  procedure  and  made  voluntary  

statement to the competent authority that was authorized to  

record their statement.  Apart from narrating the gang rivalry  

between Hansraj Trivedi and Abdul Latif in respect of sale of  

liquor in Ahmedabad city, they also highlighted the number of  

persons involved in the conspiracy in the murder of Hansraj  

Trivedi  and  others.   Most  of  the  accused  mentioned  the  

appellants and others who involved in the conspiracy and the  

ultimate killing of Hansraj Trivedi and others.    

23) The  statements  of  the  appellants/accused  recorded  on  

various  dates  demonstrate  the  conspiracy  to  eliminate  the  

business  rivalry,  and  killing  of  other  gang  leader,  Hansraj  

Trivedi  and  others  and  how  they  executed  the  same  on  

03.08.1992 in the premises of Radhika Gymkhana Club.  

30

24) We have already pointed out that the TADA Act, being a  

special Act, which permits recording of confessional statement  

by a  police  officer  not  below the  rank of  Superintendent  of  

Police and the same is also admissible in evidence.  However,  

it  is  the  duty  of  the  prosecuting  agency  and  the  trial  

court/special court to see that strict compliance are adhered  

to while recording the confessional statement and relying on  

the same.    

25) Mr. Sushil Kumar, learned senior counsel and Ms. Nithya  

Ramakrishnan  and  Ms.  Kamini  Jaiswal,  learned  counsel  

appearing for the appellants, vehemently contended that in the  

light of the safeguards provided in Section 15 of the Act and  

Rule 15 of the Rules, in the absence of specific certificate by  

the officer who recorded confession as provided in Sub-rule (3)  

of Rule 15, they are inadmissible in evidence and cannot be  

relied upon.  They also relied on judgment of this Court in  

Bharatbhai vs. State of Gujarat, (2002) 8 SCC 447.  In view  

of  the fact  that TADA Act has been upheld by Constitution  

Bench  of  this  Court  in  Kartar  Singh’s  case  (supra),  the  

confessional statement recorded under Section 15 by a police  

31

officer authorized therein is admissible in evidence.  It is also  

no more res integra that a confession recorded under Section  

15 is a substantive piece of evidence.  That statement is also  

substantive evidence against his co-accused.  However, in the  

case of co-accused, though taken as substantive evidence as a  

rule  of  prudence,  the  court  would  look  upon  corroborative  

evidence as well.  In the judgment relied on i.e.  Bharatbhai  

(supra), this Court has held that (a) Writing the certificate and  

making the memorandum under Rule 15(3)(b)  is mandatory.  

(b) The language of the certificate and the memorandum is not  

mandatory. (c) In case the certificate and memorandum is not  

prepared but the contemporaneous record shows substantial  

compliance with what is required to be contained therein, the  

discrepancy  can  be  cured  if  there  is  oral  evidence  of  the  

recording officer based on such contemporaneous record.  (d)  

In  the  absence  of  contemporaneous  record,  discrepancy  

cannot be cured by oral evidence based on the memory of the  

recording officer.   It  is true that the said decision makes it  

clear  that  the  certificate  and making  the  memorandum are  

mandatory, subject to certain conditions.

32

26) In  State [through Superintendent of Police, CBI/SIT]  

vs.  Nalini,  (1999)  5  SCC  253,  a  three-Judge  Bench  

considered the evidentiary value of confessional statements of  

the accused as well as Section 15 of the Act and Rule 15 of the  

Rules.  After analyzing those provisions, this Court held that  

the  Court  is  free  to treat  the  confession of  one  accused as  

against a co-accused to be substantive evidence against the  

latter,  and  in  the  absence  of  proof  to  the  contrary,  the  

Designated Court would have full power to base a conviction of  

the co-accused upon the confession made by another accused.  

Rule 15(3) makes it clear that the confession shall be signed  

by the maker and also by the police officer who recorded it.  

Further, it mandates the police officer to 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.  The following  

conclusion in para 424 is relevant:

“424.  In  view  of  the  above  discussions,  we  hold  the  confessions  of  the  accused  in  the  present  case  to  be  voluntarily and validly made and under Section 15 of TADA  confession of an accused is admissible against a co-accused  as a substantive evidence.  Substantive evidence, however,  does not  necessarily  mean substantial  evidence.   It  is  the  

33

quality of evidence that matters.  As to what value is to be  attached  to  a  confession  will  fall  within  the  domain  of  appreciation of evidence.  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  again be within the  sphere of appraisal of evidence.”

The above decision makes it clear that the confession made by  

an accused if  it  is voluntary and true, then it is admissible  

against co-accused as a substantive piece of evidence.  It is  

also clear that while recording confessional statement, if there  

is omission to obtain signature of the accused at the end of the  

confession, the same is admissible and the omission made by  

the  competent  officer  is  curable  in  view  of  the  provision  

contained in Section 463 Cr.P.C.  In the same manner,  the  

Court has held even if there was any omission in respect of the  

certificate which the competent officer is required to append  

under sub-rule (3) at the foot of the confession, it can be cured  

as provided under Section 463 of the Cr.P.C.  Such approach  

is permissible in view of Section 463 of the Cr.P.C. in regard to  

the  omission  in  recording  confession  under  Section  164  

Cr.P.C., the Court has clarified that the same approach can be  

adopted in respect of confession recorded under Section 15 of  

the  TADA Act.   We  have  already  narrated  the  confessional  

34

statements of various accused, among them, the statements of  

A-27 and A-28 satisfied Rule 15(3) in all aspects.  Apart from  

narration  of  the  events,  conspiracy  to  eliminate  other  gang  

leader and its members, indiscriminate firing at Gymkhana,  

supply of Arms and Ammunitions etc.,   both A-27 and A-28  

subscribed their signature at the end of it and the officer who  

recorded their confession apart from putting his signature also  

appended a certificate in clear terms and in accordance with  

Rule  15(3).   It  is  true  that  in  the  case  of  confessional  

statements, though signature of the accused and the officer  

who recorded their statement are available, the certificate in  

terms of Rule 15(3) was not appended.  However, as explained  

in Nalini’s case (supra) and rightly pointed out by the State  

counsel, the officers  - PWs 25, 26, 49 & 51 who recorded their  

statement deposed before the Court, identified and explained  

the course adopted while recording their statement as well as  

contents therein.        

27) In order to show that the confessional  statements of  a  

number of accused persons irrespective of separate certificate  

are  valid,  the  prosecution  has  examined  the  respective  

35

competent officers who were authorized to record confessional  

statements  which  satisfied  sub-rule  (3)  of  Rule  15.  One  

Anupam Shrikrishna Suroliya,  who was working  as  Deputy  

Police Commissioner, Ahmedabad was examined as P.W. 24.  

According  to  him,  on 05.09.1992,  the  accused Liyakat  who  

was  involved  in  the  incident  which  took  place  in  Radhika  

Gymkhana was produced before him as he wanted to make  

the confessional statement.  The other two accused, namely,  

Sharifkhan and Javedkhan were also produced to record their  

confession  as  requested by them in his  evidence.   Suroliya  

explained the consequence of their making statement and he  

also asserted that he fully complied with all  the formalities.  

He  stated  that  all  the  three  accused  made  their  voluntary  

statement and thereafter they put their signature.  However,  

he  admitted  that  the  certificate  was  not  appended  to  their  

statement.  

28) One Natvarlal Veljibhai Patel, who was working as DCP,  

Controller was examined as P.W. 25.  He deposed that during  

his  duty  on  18.03.1996,  one  accused  Tajammulhasan  

Alihasan  Ansari  (A-27)  was  produced  before  him  by  the  

36

Competent Officer to record his statement.  He also verified  

from the accused that no force and threat was used against  

him to give confessional statement.  Thereafter, he recorded  

his statement and he had put his thumb impression below his  

statement.  He also put his signature.  On 19.03.1996, the  

said accused was again called for the purpose of recording his  

confessional  statement.   According to him, once  again after  

following  the  procedure  he  recorded  his  statement  and  the  

same was kept in the sealed cover.  

29) One Jasbhai Chootabhai Patel, Deputy Commissioner of  

Police, Western Zone, was examined as P.W. 26.  According to  

him,  on 07.09.1992,  the  Investigating  Officer  had produced  

accused by name Mohammed Tasalim Alias Kalu Mohammed  

(A-2) for the purpose of recording his confessional statement.  

He  satisfied  that  the  accused  was  not  forced  to  make  any  

statement and no threat or force or coercion was used against  

him to  give  confessional  statement.   Subsequently,  he  was  

given time to consider and on the next date, he was called to  

record the confessional statement.  Again after following the  

procedure,  he  recorded  his  statement  and  thereafter,  his  

37

signature was obtained below the same.  He had also put his  

signature.  The original copy of the confessional statement was  

transmitted to the Magistrate.  On 09.03.1993, when he was  

working as Deputy Commissioner of Police, the Investigating  

Officer had produced Abdul Khurdush Abdul Gani Shaikh for  

the  purpose  of  recording  his  confessional  statement.   He  

recorded his statement as requested by him.  In his case also,  

he followed all  the procedure.  In the cross-examination, he  

had stated that he had recorded nine confessional statements.  

The accused No.5 Maksud Ahmed Fateh Mohammed Shaikh  

had  given  the  confessional  statement  on  20.11.1992.   The  

officer  had  explained  that  he  had  also  followed  the  same  

procedure and recorded his statement as per his statement.  

The confessional statement of Musharrafkhan Gorekhan, Iqbal  

Hussein Alias Lalo Son of Kasambhai Faqirbhai, Mohammed  

Uwesh  Son  of  Gulam  Mohammed,  Amirmiya,  Hafizuddin  

Kadari, Mohammed Amin Alias Chotely was recorded by the  

competent officer and all the formalities which was expected  

from  the  competent  officer  was  performed  by  him  prior  to  

recording  the  confessional  statement  and  thereafter  the  

38

confessional  statement  of  all  the  accused  were  recorded  as  

requested by him. But the Designated Court has considered  

the confessional statement of A-2 only as admissible evidence  

amongst all the nine confessional statements recorded by him.

30) One Jitendra Narayan Rajgor,  Deputy Commissioner of  

Police,  Crime  Branch  was  examined  as  P.W.  49.   In  his  

testimony,  he  deposed  that  on  26.03.1993,  one  accused  

Mohammed Farooq Alias Farooq Bawa Allarakha Shaikh was  

produced by the Police Superintendent Mr. A.M. Desai for the  

purpose  of  recording  confessional  statement.   After  

ascertaining that he  was free and no force or coercion was  

used to give confessional statement and after giving sufficient  

time,  his  statement  was  recorded.   He  further  deposed  on  

04.04.1993  and  20.05.1993  the  accused  Mohammed  Shafi  

Abdul Rehman Shaikh and Abdul Hamid Alias Babu Battery  

Gulam  Nabi  were  produced  before  him  for  the  purpose  of  

recording  their  confessional  statements  by  following  all  the  

procedure  and  affording  sufficient  time.   Their  statements  

were  recorded  and  obtained  their  signature  below  their  

confessional  statements.   He  also  put  his  signature.   He  

39

admitted that necessary certificate was not issued below the  

confessional statement of the accused.  

31) Ashish  Satyapal  Bhatia,  Superintendent  of  Police,  was  

examined as P.W. 51.  In his testimony, he has stated that on  

05.04.1996 one accused Jahangir Mazarban Patel(A-28)  was  

produced  before  him  for  the  purpose  of  recording  the  

confessional  statement.  He also deposed that after  following  

the procedure he recorded his confessional statement and the  

same  was  read  over  to  the  accused  and  thereafter  his  

signature  was  obtained.   He  also  put  his  signature.   He  

asserted  that  necessary  certificate  was  appended  to  the  

confessional  statement  given  by  the  accused.   He  also  

identified the accused during recording of his evidence.  He  

informed  the  court  that  after  recording  the  statement  the  

sealed cover in which confessional statement was placed along  

with the accused was handed over to the Investigating Officer  

for  the  purpose  of  transmitting  the  same  to  the  Court  of  

Metropolitan Magistrate, Ahmedabad.

32) It is also relevant to note that one Khushpalsing Nathulal  

Doshi,  Deputy  Commissioner  of  Police,  Law  and  Order,  

40

Ahmedabad was examined as P.W. 61.  He deposed that on  

29.08.1996  one  accused  Aminkhan  Mojkhan  (A-29)  was  

produced before him from the ATS Office for the purpose of  

recording his confessional  statement.   According to him, he  

explained that his statement could be used against him and  

there  was  no  compulsion  to  make  such  statement.   After  

following the procedure, he recorded his statement and it was  

kept in the sealed cover and sent it to Metropolitan Magistrate.

33) Though,  learned  counsel  appearing  for  the  accused  

heavily commented the recording of confessional statements of  

various  accused  and  their  evidentiary  value  in  the  light  of  

provisions of the TADA Act and Rules, as mentioned above, we  

are  of  the  view  that  there  is  no  valid  reason  to  reject  the  

confessional statements of A-27 and A-28.  It is the assertion  

of the competent officers, who recorded their statements, that  

they explained to them that their statements would be used  

against them, they were given sufficient time to think over and  

after following the procedure those officers have recorded their  

statement.  It is not in dispute that both A-27 and A-28 put  

their  thumb  impression/signature  at  the  end  of  their  

41

statements  and  the  competent  officers  were  also  put  their  

signature.  The certificate as stated in sub-rule (3) of Rule 15  

was also appended in both their  statements.   Though A-28  

was  punished  only  under  Arms  Act,  there  is  no  reason  to  

reject  his  statement  in  the  light  of  compliance  of  the  

requirements.   We  also  adverted  to  other  confessional  

statements,  except  small  variation  most  of  them  have  

implicated the persons involved from the stage of conspiracy  

till  the firing which took place on the first  floor of  Radhika  

Gymkhana.  Equally though all of them either put their thumb  

impression or signed their name, no certificate was appended  

in terms of sub-rule (3) by the competent officers who recorded  

their confessional statements.  We have already referred to the  

decision  of  this  Court  in  Nalini’s  case  (supra) and  the  

evidence of    competent officers explaining all the aspects in  

detail.   It  is  not  only  the  confessional  statements  but  the  

prosecution has relied on certain other materials.

34) In this context it is quite relevant to mention that all the  

confessional  statements which have  been considered by the  

Designated  Court  have  the  same  opening  words  which  is  

42

similar to the subject matter of memorandum to be made at  

the end of each confession by the respective recording officer  

as provided under Rule 15(3)(b)  of  the TADA Rules that the  

accused  making  the  confession  is  not  bound  to  make  the  

confession and it was also cautioned that if he does so that  

very  statement  can  be  used  as  evidence  against  him.  The  

initial words of each of the confessions also include that they  

are  made  voluntarily  before  the  recording  officer.  It  is  also  

necessary  to  mention  that  all  the  confessional  statements  

made in 1992 of A1, A2, A3 and A20 respectively are without  

the memorandum of the recording officer as required under  

Rule  15(3)(b)  of  the  Rules.  Now according  to  the  guidelines  

given by the Constitutional Bench in  Kartar Singh (supra)  

Rule 15 of the TADA Rules has to be strictly complied with to  

make the confessional statement made before a police officer  

admissible  as  evidence.  Now  this  strict  compliance  is  

necessary  for  the  confessional  statement  which  needs  no  

corroboration or contemporaneous record to prove its veracity.  

But  here  these  confessional  statements  are  mainly  

corroborating the confession made by A-27 which has been  

43

made strictly complying with all the required provision of the  

TADA Act and Rules. As a result the defect, if any, present in  

these confessional statements gets cured through reliable and  

trustworthy  deposition  made  by  the  respective  recording  

officers  in  the  trial  before  the  Designated  Court.  The  said  

memorandum  is  required  because  while  recording  a  

confession  the  recording  officer  may  forget  each  different  

factual details regarding reminding the accused of the nature  

of  the  confession  made  by  him  as  well  as  all  the  other  

statutory caution as each case is different and unique on its  

own.  But this defect  can be cured by the  deposition of  the  

officer  with  all  the  factual  details  which are  present  in  the  

present case.  All  the  recording officers have deposed in the  

trial with all the relevant facts and the question of tempering  

with  the  confessional  statements  can  be  done  away  with  

accordingly as has been rightly done by the Designated Court.  

35) Also  here  it  is  important  to  mention  that  all  the  

confessional  statements which have  been considered by the  

Designated Court to arrive at the judgment are having similar  

depiction of facts regarding gang rivalry between Latif’s Gang  

44

and Hansraj Trivedi, plotting of the criminal conspiracy by the  

members of Latif’s gang, the details of the activities made by  

the  Latif’s  gang  members  on  03.08.1992  i.e.  the  day  of  

commission of the crime in Radhika Gymkhana, identification  

of the name of the accused present or participated at the time  

of the commission of the crime, the description of arms and  

cars used in the commission of the crime and how the gang  

members  escaped  to  Dariyapur  after  the  occurrence  of  the  

crime.  There  is  no  striking  difference  or  discrepancy  or  

ambiguity  regarding  the  depiction  of  fact  in  each  of  the  

confessional statements that has been considered by the court  

and they are very much able to corroborate the confessional  

statement made by A-27. It is also to be remembered that all  

the confessions are made almost right after the accused got  

apprehended  so  the  delay  in  recording  the  same  is  quite  

reasonable.  

36) The Amendment made by Act 43 of 1993 to Section 15 of  

the TADA Act included the words “or co-accused, abettor or  

conspirator”  along with the  person making the  confessional  

statement to be admissible in the trial of such person as well  

45

as them provided that co-accused,  abettor  or conspirator  is  

charged and tried in the same case together with the accused.  

The  appellants  submitted  that  this  Court  in  State  of  

Rajasthan v. Ajit singh, (2008) 1 SCC 601 has been noted,  

as  the  words  “or  co-accused,  abettor  or  conspirator”  were  

inserted in the Act only in 1993, they could not be applied  

retrospectively.  They  have  also  submitted  that  herein,  the  

offence was committed on 03.08.1992, before the amendments  

were made to the TADA Act and as such, confession of a co-

accused cannot be used against the appellants herein.  It  is  

also contended before us that the confessional statement of A-

27  has  been  made  on  19.03.1996  which  was  after  the  

amended provision of Section 15(1) of the TADA Act came into  

effect. As far as the admissibility of the confessional statement  

of  A-27 is  concerned  with  regard  to  his  co-accused  in  this  

case, it  is  not vitiated because of  the Amendment and it  is  

rightly used as a major evidence for the trial of his co-accused  

by the Designated Court. As this confessional statement was  

made complying with all the procedural essentials as provided  

by the TADA Act and Rules it can be a valid ground for the  

46

conviction when corroborated with the confessional statement  

of  the  other  four  accused  namely  A1,  A2,  A3  and  A20  

respectively which have been made prior to the amendment of  

the Act.  Apart from the confessional statement there were also  

other  materials  to  support  the  prosecution  case  which  we  

discuss hereunder.

37) On behalf of the appellants, it was also submitted that  

the dying declaration (Exh. 201) of Badshahkhan which was  

recorded  by  PW6,  Sukhdevsing  Sardarsing  Chaudasama,  

mentions only the  name of  Sharifkhan and Liyakat  Master,  

(A-1)  and the names of  other  accused who were said to be  

present upstairs at the time of gun-fire in the Gymkhana in  

the confessional statement are not present. Badshahkhan told  

PW6 that  he  and Hansraj  Trivedi  and other  members were  

playing  game  of  cards  at  Radhika  Gymkhana  at  about  8  

‘o’clock  at  night,  Sharifkhan  who  was  having  gun  in  his  

possession and Liyakat Master who was having pistol in his  

possession started firing at him and Hansraj Trivedi and the  

others were also fired at. According to PW6 after making this  

statement  Badshahkhan  became  unconscious.  Though  this  

47

dying declaration is incomplete, it does not reject completely  

the idea of the presence of other accused as detailed in the  

confessional statements of the accused and thus it does not  

negate  the admissibility  of  the  confessional  statements.  The  

evidence  of  PW-6  shows  that  he  had  recorded  the  dying  

declaration as narrated by the deceased.  If the prosecution  

had been out to implicate all accused falsely in case, the dying  

declaration  would  have  been  so  recorded.   However,  the  

evidence  of  PW-6  shows  that  he  stopped  recording  dying  

declaration as soon as he realized that the maker was loosing  

consciousness.   The  reliable  dying  declaration  though  

incomplete, materially corroborates the confessional statement  

made  by  Accused  No.27  and  is  rightly  relied  on  by  the  

Designated Court.

38) It  is  useful  to  refer  other  materials  relied  on  by  the  

prosecution  and  accepted  by  the  Designated  Court.   The  

complaint,  Exh.  609,  dated  03.08.1992  contains  all  the  

materials.   The  complainant-Laxmansingh  Madansingh  

Bhadoria narrated in his complaint that he knows Hansraj for  

last  eight  years.   He  also  mentioned  about  the  animosity  

48

between  Hansraj  and  famous  bootlegger  Latif.   He  also  

narrated in his complaint that Hansraj used to go to Radhika  

Gymkhana to play game of cards which is situated at National  

Highway No. 8, near Gauri Cinema.  He highlighted how these  

accused  persons  came  in  a  car  and  went  to  the  AC  room  

situated in the first floor of Gymkhana where Hansraj and his  

associates were playing the game of Rami.  The complainant  

had also narrated that on reaching the AC room, he found that  

11 persons had sustained injuries due to firing of bullets and  

they were lying in the pool of blood.  It was he who rushed  

down  to  the  ground  floor  and  informed  Rajendrakumar  

Shivgopal Trivedi, the elder brother of Hansraj.  It was further  

stated that immediately Rajendrabhai came with Fiat NE 118  

car  and  Hansraj  and  Badshahkhan  who  had  sustained  

injuries had taken in that car to the Shardaben Hospital for  

giving  immediate  treatment.   In  the  meantime,  Hansraj  

succumbed  to  the  injuries.   The  complaint  also  describes  

about the conspiracy hatched as per the Abdul Latif to get rid  

of Hansraj and others.  The said complaint was given to the  

Police  Superintendent.   Since  complainant  was  not  alive  

49

during  the  trial,  therefore,  he  was  not  summoned  by  the  

prosecution.   

39) Apart from confessional statement of the accused which  

we  have  discussed  hereinabove,  the  prosecution  had  also  

relied on various other  witnesses and the Designated Court  

has  rightly  accepted  the  same.   PW-2,  Rajendrakumar  

Shivgopal  Trivedi,  brother  of  deceased  Hansraj  Shivgopal  

Trivedi, has  deposed before the Court that he had received  

phone call from Ranjitsinh Ramansinh Rathod at about 8 ‘O’  

clock and he had mentioned about the firing which took place  

in the Gymkhana.  On hearing the information over phone, he  

went in the car to Radhika Gymkhana and when he reached  

on the first floor of the Gymkhana, he saw his brother Hansraj  

Shivgopal Trivedi in a pool of blood having sustained serious  

injuries.  Apart from him, other 8 to 9 persons were also lying  

in the room having sustained serious injuries. He also deposed  

that  his  elder  brother  Rajdev  and  other  persons  from  the  

neighborhood arrived at the scene of incident.  According to  

him, with the persons gathered, Hansraj was brought down  

from  the  first  floor  and  he  was  taken  to  hospital  in  car.  

50

Badashahkhan,  who  had  also  sustained  injuries  was  also  

brought down from the first floor and brought to Shardaben  

Hospital for treatment.  When he was driving the car, Ranjit  

Singh  had  asked  Badshah  Khan  about  the  incident  and  

injuries.   Badshah  Khan replied  that  the  members  of  Latif  

Gang  came to  the  Gymkhana and fired  indiscriminately  on  

Hansraj and others whom sustained serious injuries.  He also  

explained  the  dispute  with  regard  to  purchase  of  liquor  

between his brother Hansraj and Latif.   

40) PW-4, Rajdev Gopal Trivedi, another brother of Hansraj  

Trivedi, who also rushed to the Gymkhana Club narrated what  

his brother PW-2 has stated before the Court.   

41) One,  Shivputra  Chandrapal,  who  was  working  in  the  

office of Hansraj was examined as PW-26 before the Court.  He  

deposed that when he was staying in the office of Hansraj at  

about  7-30  hours  in  the  evening  of  03.08.1992,  he  had  

received the message that firing was resorted to in Radhika  

Gymkhana Club.  On receipt of the said message, he went to  

the Club along with the others and on reaching the first floor  

of the Club, he noticed seven persons were lying in the pool of  

51

blood having sustained serious injuries.  Apart from Hansraj,  

Badshah Khan also sustained injuries during the firing.  He  

also explained the enmity between the Hansraj group and Latif  

over the sale of liquor.   

42) PW-55, Mohanlal Laxmichand Anal, who was having his  

shop  dealing  in  arms  and  ammunition  in  New Delhi.   The  

name of the shop is Anal Armory and according to him at the  

relevant time he was having the licence to keep the arms and  

ammunitions.   He  deposed  that  the  order  for  revolver  was  

given  by  Jahangir  Patel,  A-29.   One,  Jitendrakumar  

Ranchhodlal  Patel  was examined as PW-56.  Panchnama in  

respect of recovery of one pistol and revolver which was lying  

on the table was prepared in his presence.  He identified A-3,  

Jawedkhan.   Maharajsinh  Kunver  Pratapsinh  Rajput  was  

examined as PW-58.  According to him, he had been working  

as a Manager in Keval Kishan Sharma Arms and Ammunitions  

Dealer  Shop  since  1989.   The  office  situated  in  C/6  

Lakshminagar Aruna Park, Delhi.  He further explained that  

on behalf of the B.D. Patel and Sons, one Jahangir Patel, A-29  

used to visit their shop in connection with the sale of weapons.  

52

43) PW-8 to PW-12 – Post Mortem doctors, who examined the  

dead bodies, deposed before the Court about their nature of  

injuries  and  the  cause  of  death.   Their  evidence  clearly  

support the prosecution case that the deceased were gunned  

to  death  due  to  bullet  injuries.   It  is  also  clear  from their  

evidence that the vital injuries sustained were caused due to  

the use of the firearm and all the injuries were inflicted prior  

to the death of the deceased.   

44) PW-13, Kamaleshkumar Babubhai Modi, who was having  

a Pan Galla near Gauri Cinema, deposed that he was sitting in  

his shop on 03.08.1992 and had seen one Maruti car coming  

from  Hotel  Dreamland  at  about  7-30  in  the  evening.  

According to him, 5 to 6 persons alighted from the car and  

they  went  to  Madhuram  Park  and  they  were  armed  with  

weapons.  He also informed the court that one person from the  

car came to his shop and asked him in Hindi to close his shop  

and switch off the light.  According to him, pursuant to the  

threat, he had closed the shop and heard the noise of firing.  

He also deposed that his statement was recorded by the police  

on 04.08.1992.  

53

45) Apart from the above evidence about the dispute between  

the two group’s firing on 03.08.1992, the evidence of doctors  

who conducted post-mortem in respect of the deceased also  

support the case of prosecution.    

46) PWs-20,  21,  22,  23  and  59  all  Executive  Magistrates,  

who conducted the Identification Parade of  the some of  the  

accused viz., A-27, A-20, A-3, A-2 and A-1, explained the same  

in minute details.   They also asserted that procedures were  

fully  followed  before  conducting  Identification  Parade  in  

respect of those accused.  Their statement before the Court  

cannot  be  ignored,  on  the  other  hand,  it  supports  the  

prosecution case about the involvement of accused/Appellants  

in the firing that took place on 03.08.1992 at Gymkhana.   

47) Though,  the  argument  was  raised  that  there  was  no  

compliance of Rule 15(5) that the confessions recorded were  

not  sent  to  the  Chief  Judicial  Magistrate  or  the  Magistrate  

having jurisdiction over the area immediately after recording  

the same, if we scrutinize the evidence of the recording officers  

who  were  all  not  below  the  rank  of  Superintendent  of  

Police/Dy. Commissioner that after recording the confessional  

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statements of the accused, particularly, in respect of A-27 and  

A-28 in accordance with the mandates of Section 15 and Rule  

15, they were handed over to the Investigating Officers and in  

turn,  to the concerned Court.   As a matter  of  fact,  PW-61,  

Khushpal  Sing  Nathulal  Doshi,  in  his  evidence  asserted  in  

categorical  terms  that  the  confessional  statement  of  A-29,  

Aminkhan Mojkhan Pathan that was recorded by him kept in  

a sealed cover and sent to the Metropolitan Magistrate.  He  

identified the confessional statement of the accused during the  

course  of  his  deposition.   If  we  consider  other  relevant  

acceptable materials which we have discussed in the earlier  

part of our judgment coupled with reliable dying declaration  

recorded by PW-6 and recovery of pistol as well as revolver and  

considering  the  factual  aspects  of  this  case,  the  objection  

raised by the appellants with regard to sub-rule (5) of Rule 15  

is to be rejected.  Evidence of  Shiddharajsing Gulabsing Bhati  

-  PW-53,  Anilsing  Kanaksing  Jadeja,  PW-54,   Mohanlal  

Laxmichand Anal, PW-55, Natvarsinh Jagatsinh Champavat,  

PW-57  and  Maharajsinh  Rajput,  PW-58  clearly  prove  the  

purchase of pistol and revolver by Jahangir Marazban Patel, A-

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28 at Ahmedabad who in turn supplied the same to Latif and  

members of his gang,  the recovery of all those weapons were  

duly  identified  by  the  person  concerned.   Further,  A-28  

purchased the revolver which was used in the commission of  

offence from Keval Kishore Sharma of Delhi and the same is  

reflected in his confessional statement.  Thus the purchase of  

the weapons and use thereof by accused concerned were all  

duly proved by the prosecution.  

48) The  complaint  was  made  by  one  Laxmansingh  

Madansingh  Bhadoria,  who  lodged  FIR  about  the  incident.  

Though  the  complainant  was  not  examined,  however,  the  

prosecution adduced materials  in the form of oral evidence,  

confessional  statements  of  the  accused,  documentary  

evidence,  dying  declarations  and  test  identification  parade.  

From the perusal of all the materials, we are satisfied that the  

prosecution has established the involvement of the accused in  

the  commission  of  offence,  gang  rivalry  between  Hansraj  

Trivedi and Latif, their conspiracy to eliminate Hansraj Trivedi,  

medical  evidence  connecting  the  bullet  injuries  as  cause  of  

death and  seizure  of  two cars  used for  the  commission  of  

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offence.  In those circumstances, we are unable to accept the  

contentions raised by learned counsel for the appellants and  

we  are  in  agreement  with  the  conclusion  arrived at  by  the  

Designated Court.   

49) The materials placed by the prosecution clearly show that  

there was a gang rivalry between the Latif’s gang and Hansraj  

Trivedi.  Both the gang leaders with the group members were  

engaged in selling liquor in Ahmedabad city when the same is  

prohibited.  Both the groups were also engaged or involved in  

forcing  people  to  vacate  the  plots  and  kidnapping  etc.  

Prosecution has also proved that the appellants and the other  

accused  persons  actively  participated  in  conspiring  and  

chalking out the plan to eliminate Hansraj Trivedi and other  

members  of   his  gang  by  resorting  to  firing.   By  such  

arrangement, they committed brutal murder of nine persons  

and created a terror in the minds of public in and around the  

area.  All those actions were highlighted before the Designated  

Court  and  by  analyzing  each  and  every  material  and  

considering the totality of all the events, the Court found the  

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appellants herein guilty in respect of the charges and awarded  

appropriate punishment.   

50) Finally,  one  more  argument  was  advanced  about  the  

award  of  sentence  to  Liyakathussein  @  Master  Khudabax  

Shaikh  (A-1).  The  object  of  awarding  appropriate  sentence  

should be to protect the society and to deter the criminal from  

achieving the avowed object  to law by imposing appropriate  

sentence.   It  is  expected that  the  courts  would operate  the  

sentencing  system  so  as  to  impose  such  sentence  which  

reflects  the  conscience  of  the  society  and  the  sentencing  

process  has  to  be  stern  where  it  should  be.   Any  liberal  

attitude  by  imposing  meager  sentences  or  taking  too  

sympathetic view merely on account of lapse of time in respect  

of such offences will be result-wise counter productive in the  

long run and against the interest of society which needs to be  

cared for and strengthened by string of deterrence inbuilt in  

the sentencing system.  Justice demands that courts should  

impose  punishment  befitting  the  crime  so  that  the  courts  

reflect public abhorrence of the crime.  The court must not  

only keep in view the rights of the victim of the crime and the  

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society at large while considering the imposition of appropriate  

punishment.  The court will be failing in its duty if appropriate  

punishment  is  not  awarded  for  a  crime  which  has  been  

committed  not  only  against  the  individual  victim  but  also  

against the society to which both the criminal and the victim  

belong.   With these principles, it is relevant to note that while  

awarding  sentence,  the  learned  Designated  Judge  observed  

that A-1 was the main accused in brutally murdering the nine  

persons who were playing cards in the  Radhika Gymkhana  

and that was the reason to sentence him with extreme penalty  

which would meet  the  ends of  justice.   While  awarding life  

imprisonment, the Designated Judge imposed a condition that  

it shall not be less than 20 years. Since it was he who entered  

the room where Hansraj and others were playing cards and  

fired at them along with the absconding accused Sharifkhan  

killing total nine persons, we feel it is appropriate and find no  

ground to modify the same.   The sentence in respect of others  

is  also  proportionate  to  the  proved  charges  and  cannot  be  

claimed as excessive.     

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51) In  the  light  of  the  above  discussion,  we  confirm  the  

conviction and sentence imposed by the Designated Court.  If  

any of the appellants/accused are on bail, steps shall be taken  

by  the  Court  concerned  to  serve  the  remaining  period  of  

sentence.  All the appeals are, accordingly, dismissed.  

                                                  …….…….……………………CJI                                                    (K.G. BALAKRISHNAN)

    ...…………………………………J.

                               (P. SATHASIVAM)                  

   ...…………………………………J. New Delhi;                                  (J.M. PANCHAL)  May 12, 2009.  

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