28 September 2004
Supreme Court
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HARDEEP SINGH SOHAL Vs STATE OF PUNJAB THR.CBI.

Bench: K.G. BALAKRISHNAN,DR. A.R. LAKSHMANAN
Case number: Crl.A. No.-000531-000531 / 2004
Diary number: 9003 / 2004
Advocates: SANJAY JAIN Vs P. PARMESWARAN


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CASE NO.: Appeal (crl.)  531 of 2004

PETITIONER: Hardeep Singh Sohal, etc.

RESPONDENT: State of Punjab Through C.B.I.

DATE OF JUDGMENT: 28/09/2004

BENCH: K.G. Balakrishnan  & Dr. A.R. Lakshmanan

JUDGMENT: J U D G M E N T

WITH

CRIMINAL APPEAL  NO. 577 OF 2004

K.G. BALAKRISHNAN, J.

       The appellants in these two appeals  were tried by the Designated Court,  Patiala,  for  various offences  such as   punishable   under  Section 120-B, 302,  307, 394 IPC;  Section 25 of the Arms Act; and Sections 3(1), 3(2) & 3(3)   of    the Terrorist & Disruptive Activities (Prevention) Act, 1987 [for short, ’the TADA  Act’].   Along with these two appellants,  one Balwinder Singh @ Fauji @   Pradhan  was shown as the third accused,  but he was absconding and was  declared as a  proclaimed offender,  not available for trial.    The appellants were  found guilty by the Designated Court for the offences punishable under Section  120B read with Section 302 IPC and also under  Section 3(3) of  the TADA Act.    Both of them were sentenced to undergo imprisonment for life and to pay a fine  of Rs. 3,000/- with default sentence for six months, for the offence under Section  120-B read with  Section 302 IPC.  For the offence under Section 3(3) of the  TADA Act, they were sentenced to undergo imprisonment for a period of five  years each and to pay a fine of Rs.2,000/- with  the default sentence of six  months.    The allegation against these appellants was that they entered into a  conspiracy with Balwinder Singh to murder Dr. Megh Raj Goel  on 6.2.1992 at  about 10 P.M..   Balwinder Singh shot at  Dr. Megh Raj Goel and caused him  fatal injuries.   Dr. Megh Raj  Goel died  at 6.25 A.M. on 7.2.1992.

       According to the    prosecution, Dr. Megh Raj Goyal, with his wife Dr.  Suman Rani Goel,  was running a Psychiatric hospital  in Patiala.  Both of them  had completed their  education  in psychiatry  in  England and returned to India in  1989.    They started Goyal Psychiatric Hospital at 34, Punjabi Bagh in Patiala  and later shifted  to 85, Punjabi Bagh in  May, 1991.    Appellant in Criminal  Appeal No. 577, Dr. Surinder Singh Sandhu was already running "Sandhu  Nursing Home" in Psychiatry since 1973 and he had almost established a  monopoly in  the field of treatment of  psychiatric patients.   When  deceased  Dr.  Megh Raj   Goel   and   his wife started their hospital,  it gained      popularity,     and  according   to   the   prosecution,     Dr. Surinder Singh Sandhu was  adversely affected.   The prosecution alleged that the number of patients who  were being treated in Sandhu Nursing Home gradually declined whereas there  was a  steep increase in the number of patients that received treatment in the  hospital of  the deceased, Dr. Megh Raj Goel.   The prosecution  further alleged  that appellant, Dr. Surinder Singh Sandhu met  Dr. Hardeep Singh Sohal, the  appellant in Criminal Appeal No. 531 of 2004,   and together they hatched a  conspiracy and decided to do away with Dr. Megh Raj Goel.   Dr. Hardeep Singh  Sohal secured the presence of  one   Balwinder Singh @ Fauji with the  assistance of  Miss Sawinder  Kaur, a staff nurse working  in the Rajindra

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Hospital, Patiala.   The appellant agreed to pay Rs.2 lacs to Balwinder Singh and  a  sum of Rs.50,000/- was paid as initial payment.   On 6.2.1992, Balwinder  Singh came to Patiala and    saw a Maruti car  bearing  registration  No.  PCH  8008 parked near  hotel Greens.   The owner of the car Surinder Kumar Bajaj  was  sitting  in the car.  Balwinder Singh came near the car and fired a shot from  his revolver at Surinder Kumar Bajaj through the window of the car causing injury  on his right thigh.  Balwinder Singh  then quickly got into the car and occupied  the left front seat of the car  and at revolver point forced Surinder Kumar Bajaj  to  drive the vehicle towards Goyal  Psychiatric Hospital.    They came near that  hospital around 10 P.M. and saw Dr. Megh Raj Goel  and his wife Dr. Suman  Rani Goyal, who had gone for a stroll, coming towards their hospital.    At that  point, Balwinder Singh fired two shots from his revolver at Dr. Megh Raj Goel.    Dr. Goel fell on the ground  and in that  commotion Surinder Kumar Bajaj  managed to run away from that place leaving his car there.  Balwinder Singh   then escaped  in that car and  later  the car was found abandoned near the T.B.  Hospital.    Injured  Megh Raj Goel   was immediately taken by his wife to the  Surgical Centre, Model Town, Patiala and from there to Rajindra Hospital,  Patiala.   Dr. Megh Raj Goel was operated upon by a team of doctors there, but  they could not save his life and he was declared dead at 6.25 A.M. on 7.2.1992.

       Based on the information given by Dr. Suman Rani Goel,  the  police  registered a case under Section 307 read with Section 34 IPC and Section 25 of  the Arms Act.  Subsequently,  offences under Section 382, 302 IPC and  Section  4 and 5 of the TADA Act, 1987 were added.   Balwinder Singh was arrested by  Inspector Gurnam Singh, SHO Police Station Civil Lines, Patiala on 8.4.1992 at  about 7.30 P.M. in  connection with a case registered against him under Section  302 and 382 IPC and Section 25 of the Arms Act.   A point thirty two bore  country-made revolver  with six live cartridges were recovered from him.   On  interrogation, Balwinder Singh made a voluntary confession  and admitted having   committed the murder of Dr. Megh Raj Goel.   Section 4 and section 5 of the  TADA Act were added  to the case  registered earlier   and the District Suptd. of   Police City Patiala, Shri Ajaib Singh recorded the confessional statement of  Balwinder Singh under Section 15 of the TADA Act, 1987.  Balwinder Singh was  remanded to police custody from time to time and according to prosecution on  3.5.1993 Balwinder Singh was  taken  on transit remand to District Sangrur in   connection with another case and  there  he escaped from the  police custody on  5.5.1993 while being taken for effecting recovery of arms and ammunition, for  which a case had been registered against him at Police Station Bhawanigarh in  District Sangrur.   The prosecution would further contend that Balwinder Singh  could not be traced and he was declared a proclaimed offender by  an order   passed by the Judicial Magistrate First Class, Patiala, on 24.10.1994.  Based on  the confessional statement of Balwinder Singh, the present appellants  Dr.  Hardeep Singh Sohal and Dr.  Surinder Singh Sandhu were arrested by police on  19.4.1993 and the investigation continued.    In the meantime,   Dr. Suman Rani  Goyal, wife  of deceased Dr. Meghraj Goyal, filed a writ petition before the High  Court of Punjab & Haryana alleging that police were not vigilant in investigating  the case and she prayed for  investigation being done by the Central Bureau of  Investigation.   In pursuance of the order passed by the High Court of Punjab &  Haryana on 9.7.1996, the investigation of the case was entrusted to  the  C.B.I.  and they conducted the further investigation.   After completion of the  investigation, the C.B.I. submitted the charge sheet.   On the side of the  prosecution PW-1 to PW-47 were examined.   Appellant Surinder Singh Sandhu,  when questioned under Section 313 Cr.P.C., alleged that he had been falsely  implicated.   He  stated that he had secured MBBS Degree from the Punjab  University and   D.P.M.  from Ranchi University and that he had put in 43 years  of experience as a Psychiatrist  and had worked in various hospitals.  He also  stated that his professional income from 1986 to 1992 had been constantly  increasing.  Hardeep Singh Sohal,  the  appellant in Criminal  Appeal No. 531 of  2004, when questioned under Section 313 Cr.P.C.,  deposed that he is an  Orthopaedic  Surgeon  and   he was Head of    Orthopaedics Department, Govt.  Medical College, Rajindra Hospital, Patiala.   He stated that he had had a   brilliant academic career and  served in different medical colleges in Punjab.   He  also deposed that his son Harmandeep Singh was killed by the police while he  was travelling in a car along with  other members of the family.   He stated  that  the police had fired from behind and hit on the head of his son, who died on the

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spot.   He further  stated that  he had  raised a  hue and cry regarding the cold- blooded  murder of his son and the senior police officers assured that action  would be taken against the guilty  persons, but  it is  on account of this  that  the  police had become inimical towards him.   He denied having any connection with  Balwinder Singh and stated that he  did not know Miss  Sawinder Kaur.   He also  stated that he had  no social or professional  dealings with  the other appellant,   Dr. Surinder Singh Sandhu.

       On the side of the defence, DW-1  and DW-2 were examined.   

       The fact that  Dr. Megh  Raj  Goyal  died of  bullet  injuries  at 6.25 A.M.  on 7.2.1992 is not disputed.  The Special Judge found the present appellants  guilty of murder on the basis of the evidence of confession    of Balwinder Singh   @ Fauji  recorded by PW-34 Sham Lal Gakhar.   Apart from this confession,    there is no other reliable evidence either   to prove  conspiracy  by the appellants  or their involvement in the crime.  To prove the conspiracy, the prosecution relied  on the testimony of    PW-32 Sawinder Kaur.   PW-32 is a staff nurse in the  Rajindera   hospital   at Patiala.   Appellant   Dr. Sohal  was  an  Orthopaedics   doctor  in that  hospital.  PW-32 deposed that Dr. Sohal requested her whether  Balwinder Singh could be asked to meet  him within two-three days.   PW-32 and  Balwinder Singh thereafter went to the house of Dr.  Sohal.   She    further    deposed     that Dr. Sohal had some discussion with Balwinder Singh and  at that  time she was with the wife of Dr. Sohal whom  she knew previously.  PW-32 also  deposed that at that time one more person was present in the house along with    Dr. Sohal and she later  identified    him to be  the    other    appellant, Dr.  Sandhu.   She also said that  when Balwinder Singh left the house, he was   holding a small packet  with him.   PW-32 further deposed that Balwinder Singh  met her later and when she asked him as to what work he   had with Dr. Sohal,  he replied that Dr. Sohal wanted to kill a  person  and that Balwinder Singh  had  done  so   and that Dr. Sohal had paid   Rupees fifty thousand  to him and he  wanted to get the balance.  PW-32 also deposed that she was astonished to hear  about this incident and she came to know that Dr. Megh Raj Goyal had been  murdered.  PW-42 is another witness who spoke about the extra judicial  confession of Balwinder Singh.  PW-42 is the wife of deceased Megh Raj Goyal.    She deposed that in April, 1993 she received a telephonic call from one of her  relatives who told her that the police had apprehended a person who  had  confessed   to  have  murdered    Dr. Megh Raj Goyal.    PW-42 went to the  police station where she saw  a person in handcuffs.   PW-42 told the Inspector  Gurnam Singh that  he was the same person who had shot  her husband.   She   asked Balwinder  Singh what was the reason for killing her husband.   To that    Balwinder had replied that  it was a job assigned to him by Dr. Sohal and he also  stated that PW-32  Sawinder Kaur was    working   as a nurse in  the Rajindera  hospital where Dr.   Sohal was  working   and   that he  had  received  the    message   from Dr. Sohal through PW-32 and thereafter met Dr. Sohal,   who  told him that after   the arrival of   Dr.  Megh    Raj Goyal   at Patiala  , the    practice     of Dr.  Sandhu was badly affected  and, therefore,  he wanted to   do  away with Dr. Megh Raj Goyal  and  that   Rupees two lakhs was demanded  by  Balwinder Singh out of which Rupees fifty thousand  was paid   and the balance  was to be paid after the commission of the murder.

       The extra-judicial confession allegedly made by Balwinder Singh can only  be considered under Section 30 of  the  Indian Evidence Act  1872.  The extra- judicial confession cannot  be  admitted  in  evidence as Balwinder Singh was not  tried along with the appellants.   It is interesting to note that   though a  charge- sheet was filed against  Balwinder Singh,  in the  judgment he  is shown as a  proclaimed offender.   According to the prosecution, Balwinder Singh was  arrested on 18.4.1993.   PW-45 Gurnam Singh, who was the  Station House  officer of the police station  civil lines, Patiala,  along with a Sub-Inspector and  three Constables    was on patrol duty near N.I.S.  chowk, Patiala on 18.4.1993.   They came to know that one taxi driver who had committed various crimes had  been roaming in the city in  a vehicle without  registration  number.   In the  meanwhile,  one maruti  car without registration number came and the same was  intercepted and its driver was taken into custody.   He was in possession of  a  point thirty two bore revolver loaded with five live cartridges.   He told them that  his name was Balwinder Singh. According to the prosecution  he escaped  from

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custody and was later declared as a proclaimed offender.        The counsel for the  appellants contended that Balwinder Singh was killed in a fake  encounter by the  police, for which a criminal case also is  filed against some of the police officers.    In any case,   Balwinder was never tried along with the  present appellants.       The extra-judicial confession made by Balwinder Singh could have been taken  into  consideration only when he  was tried  along with the present appellants.

       The other item of evidence relied upon by  the Special Judge is the  confession of Balwinder Singh recorded by PW-34 Sham Lal Gakhar, an IPS  officer,  who was the then Superintendent of  Police, Patiala.   He deposed that  on 18.4.1993 while he was on patrol duty, PW-45 Gurnam Singh  met him and  told  that  they had apprehended one Balwinder Singh with a point thirty two bore  revolver and on his interrogation he  had told  about his involvement   in various  crimes, including the murder of Dr. Megh Raj Goyal.  Balwinder Singh  was  produced before PW-34 and he recorded the confession of Balwinder Singh.    The confession  of Balwinder Singh so recorded was marked as Exh. PAA.     In  the   confession statement, Balwinder has given the details of his involvement in  the crime.   

The counsel for  the appellants strongly urged before us that the  confession allegedly made by  Balwinder Singh under Section 15 of the TADA  Act is inadmissible in evidence.   It was also contended that the same was  recorded in complete defiance of  the provisions of TADA Act and the  Rules  framed thereunder  and  that  mandatory provisions  have not been followed.   Therefore, the confession statement is to be completely eschewed from  consideration.                                              

Before considering the admissibility of the confession, it is relevant to note   the  various provisions of the TADA Act.      Previously, under Section 21  of the  TADA Act,   a presumption could be  drawn as to the commission of offence on  the accused based on the confession made by the co-accused.   Section 21 of  the   TADA Act,   prior to 1993,   was to the following  effect :

"21.  Presumption as to offences under Section 3 ----(1) In a  prosecution for an offence under sub-section (1)  of Section 3, if it is  proved\027

(a)     that the arms or explosives or any other substances specified  in Section 3 were recovered from the possession of the  accused and there is reason to believe that such  arms or  explosives or other substances of a similar nature, were used  in the commission of such offence; or

(b)     that by the evidence of an expert the fingerprints of the  accused were found at the site of the offence or on anything  including arms and vehicles used  in connection with the  commission of such offence; or

(c)     that a  confession has been made by a co-accused  that the  accused had committed the offence; or  

(d)     that the accused had made a confession of the offence to any  person other than a police officer,

the Designated Court shall presume,  unless the contrary is proved,  that the accused had committed such offence."

By Act No. 43 of 1993,   clause (c)  of Section 21 of the TADA Act was  deleted and original Section 15 of the TADA Act  also was amended by the very  same Act, i.e. Act No. 43 of 1993.   Original  sub-section (1) of Section 15  of  the   TADA Act was as follows :

"15.  Certain confessions  made to police officers to be taken  in consideration ---(1)  Notwithstanding anything in the Code or in

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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 either in writing or on any  mechanical device like cassettes, tapes or soundtracks from out of  which sounds or images can be reproduced,  shall be admissible in  the trial of such person for an offence under this Act or rules made   thereunder :

As aforesaid,  by Act No. 43 of 1993, it was amended and the amended  provision is as follows :

"15.  Certain confessions  made to police officers to be taken  in 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 either in writing or on any  mechanical device like cassettes, tapes or soundtracks 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."

A perusal of these provisions would show that by Act No. 43 of 1993,  certain serious changes  have been made in the matter of admissibility of  confession made by a co-accused.   Prior to the   Amendment Act 43 of 1993, if a  confession had been made by a co-accused that he had committed the offence,  the Designated Court  could  draw a presumption that the accused had   committed such offence, unless the contrary was proved.   This provision was  completely taken away and instead of that the confession of a co-accused  recorded under Section 15 of the TADA Act was made admissible subject to  certain conditions.   One  major change that was brought into effect was that  such confession recorded under Section 15 of the TADA Act by a co-accused  could be made use of against that accused provided the co-accused is charged  and tried in the same case  together with the accused.    The scope and ambit of  the confession recorded under Section 15 of the TADA Act was considered   elaborately   by a 3-Judge Bench of this Court in State vs. Nalini (1999) 5 SCC  253.   The majority decision in that case was that the confession recorded under  Section 15  of TADA Act is a substantive evidence,    although   Thomas, J.,  relying on the earlier decision of this Court in   Kalpnath Rai vs. State (Through  CBI),  (1997) 8 SCC 732 held that even if confession of an accused is admissible  under Section 15 of TADA Act, it is not a substantive piece of evidence and  cannot be used against a  co-accused unless corroborated by other evidence.   However, the majority consisting of Wadhwa and Quadri, JJ   held that   Section  15 of the TADA Act  starts with a  non obstante  clause as it  says that neither the   Evidence Act nor the Code or Criminal Procedure will apply and this was  certainly a departure from the ordinary law and when the legislature enacted    that the Evidence Act would not apply,    it would mean all the provisions of the  Evidence Act including Section 30 and, therefore, confession recorded under  Section 15 of the TADA Act is admissible against the co-accused as a  substantive evidence.   However, it was clarified that substantive evidence does  not necessarily mean substantial evidence.  It is the quality of  the  evidence that  matters.

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Section 15 of the TADA Act as  amended by Act 43 of 1993 clearly  stipulates that the confession recorded under Section 15 of the TADA Act is  admissible only if the confessor is charged and tried  in the same case together  with the co-accused.   After the amendment of 1993, the addition of the words  "co-accused, abettor or conspirator" and the insertion of the new ’proviso’  to the  effect  that  "the co-accused, abettor or  conspirator  is charged or tried together  with the  accused"  clearly shows that the confession could be considered by the  court only  when the co-accused  who   makes the confession is charged and  tried along with other accused.    

Unfortunately, Balwinder Singh @ Fauji  is alleged to have  escaped from  custody by  4th or 5th of May, 1993 and the charge itself was framed by the court   later and Balwinder Singh was treated as a proclaimed offender by the Special  Judge.   The Special Judge relied on the decision reported in  Esher Singh vs.  State of  Andhra Pradesh 2004 AIR SCW 1665 and held that merely because  one accused died before charges were framed, that does not affect the  confessional statement.  The learned  judge was also of the view that by   operation of Section 30 of the Indian Evidence Act, the confession of the co- accused  could be made use of.   The stand taken by the Special Judge is  incorrect.   We do not think that  Esher Singh’s case (supra)  lays down the law  that a confession recorded under Section 15  could be made use of as  admissible evidence even if the co-accused, who made the confession was not  charged or tried along with other accused.   On the other hand, the decision  clearly states that after the amendment, the  designated court could use the  confession of one accused against another accused only if  the following  two  conditions are fulfilled :

(1)     The co-accused should have been charged in the same  case along with the confessor.    (2)     He should have been tried together with the confessor in the  same case.

Another  important  contention urged by the appellant’s counsel is that  PW-34, while recording the confession violated the mandatory provisions  regarding the manner in which the confession is to be recorded.   Under Section  28 of the TADA Act,   Terrorist   and   Disruptive Activities (Prevention) Rules,  1987 are made.   Rule 15  regarding recording of confession made to police  officers  reads as under :

"15. 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 confessions 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:

"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

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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."

(4) Where the confession is recorded on any mechanical device,  the memorandum referred to in sub-rule (3) insofar 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."

The constitutional validity of Section 15 of the TADA Act was challenged.   A Constitution Bench of this Court in Kartar Singh vs. State of Punjab  (1994) 3  SCC 569 upheld the constitutional validity of the said provision.   The contention  urged in Kartar Singh’s case (supra) was that the procedure in the TADA Act  is  the antithesis of a just, fair and reasonable procedure and this power could be   abused to extort  confession by unlawful means by using third-degree methods.    This plea was rejected on the ground that sufficient safeguards have been made  in the rules as to the manner in which the confession is to be recorded.  Rule 15  extracted above would show that confession shall be in  writing  and signed by  the person who makes the confession.   The police officer  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  and   the proforma of such certificate  also is  appended  to Rule 15.

Exh. PAA does not contain such a certificate having been given   by PW- 34.  It is true that   PW-34  had put certain questions to the accused as to   whether  he was aware that the statement which he wants to make could be  used against him and  on the basis of the same he will be sentenced.   The  officer also asked  him  whether there is any pressure, fear on  him and he  answered in the negative.     However PW-34   did not give the  certificate at the  end of  the confession.   The certificate should have specifically stated that he  had explained to the person making the confession that he  was not bound to  make the confession and  if he does so, the confession he may make  may be  used against him and that he believed that  this confession was voluntarily made  and it was taken in his presence and  recorded by him and was read over to the  person making it and admitted by him to be correct, and it contained a full and  true account of the statement made by him.

       This Court  has  in a series of decisions deprecated the practice of non- observance of this provision and held that such violation  would be inadmissible.    In    Bharatbhai @ Jimi Premchandbhai vs. State of Gujarat (2002) 8 SCC  447, this Court held   that  Rule 15(3)(b) of  the   TADA Rules was not complied  with  and no memorandum as required was made.   There was also no  contemporaneous record to show the satisfaction of the recording officer after  writing of confession   that  the confession  was voluntarily made or read over  to  the accused.   Thus,   the confessional  statement   was inadmissible and  cannot  be made the basis for upholding the conviction.

       In    S.N. Dube vs.  N.B. Bhoir  (2000) 2 SCC 254, this Court held that  writing the certificate and making  the memorandum   under Rule 15(3)(b) to  prove  that the accused was explained that he was not bound to make a  confession and that if he made it,  it could be used against him as evidence;  that  the confession was voluntary and that  it was taken down by the police officer  fully and correctly   are all matters not left to be proved by oral evidence.

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       In any view of the matter,  Exh. PAA confession made by Balwinder Singh  to PW-34 is inadmissible in law and cannot be used against the appellants.   So  also,  the extra-judicial confessions   allegedly made to PW-32 and PW-42    suffer    from  the same infirmity.

       In our opinion, the Special  Judge seriously erred in admitting the  confession as an item of evidence against the appellants.   Apart from the  evidence of  the  confession,   the prosecution attempted  to prove the motive of  these appellants to do away  with Dr. Megh Raj Goyal.  But motive by itself is not  sufficient to prove the guilt of the accused.   The prosecution could not lay its  hands on any item of evidence that may come under Section 10 of the Evidence  Act, i.e. anything  having been said, done or written by any of the appellants in  reference to their common intention to  kill Dr. Megh   Raj Goyal.  Though  voluminous evidence was adduced by the prosecution, there is none which  would come within the parameters of admissible item of evidence.

               This    is an unfortunate case where a young doctor was killed.  As   Balwinder Singh   could not be jointly tried  with the appellants, the entire  evidence of confession   recorded under Section 15 and the extra-judicial  confessions  have become   inadmissible   and in the absence of any other  reliable evidence the appellants    are   only to be acquitted    of the charges  framed against them.   In     the   result, these   appeals are allowed.   The   appellants are acquitted of all the charges framed  against  them  and directed  to  be released forthwith,   if not  required in any  other case.