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PETITIONER: S.N.  DUBE

       Vs.

RESPONDENT: N.B.  BHOIR & ORS.

DATE OF JUDGMENT:       12/01/2000

BENCH: G.T.Nanavati, S.P.Kurdukar

JUDGMENT:

     Q.T.  NANAVATT.  J.

     1.   One  Suresh Dube was shot dead on a  platform  of Nalasopara (a suburb of Bombay) Railway Station in broad day light.   Many  persons  saw it and many knew  who  were  the murderers.  Because of the terror of the gangs Involved none except  two  persons, one accompanying the deceased and  the other  who was at that time polishing shoes of that  person, have  come  forward to give evidence against the  murderers. One  Mukesh Ratilal Shah (P.W.13), who was injured by one of the  bullets  fired at that time, has thought it fit not  to ,r)arr)e  the  person  who  had  fired  the  shot.   initial dishonest  investigation by the police, on account of  close nexus between those gangs and some of the police officers of the  area  where  the said gangs were  operating,  not  only delayed  the  prosecution  of  the real  culprits  but  also weakened it considerably.  On these allegations 17 ^ persons (thirteen  belonging  to  the  two  gangs  and  four  police officers)  were tried in the Court of the Judge,  Designated Court,  Pune in Terrorist Sessions Case No.  32 of 1993  and Terrorist  ri Sessions Case No.  I of 1996 (amalgemated with original TSC No.  32/1993), for the murder of Suresh and for commission  of terrorist acts and other offences .The  trial Court  did not consider it safe to convict them on the basis of  the prosecution evidence and, therefore, acquitted  them of  aH  the charges.  Shyam Sunder Dube, brother  of  Suresh Dube,  feeling aggrieved by the acquittal has filed Criminal Appeal  No.  678 of 1997.  The State of Maharashtra has also filed Criminal Appeal Nos.  709-710 of 1997.

     2.  The prosecution case is as follows:

     (a)  Nalasopara  is  a suburb of the City  of  Bombay. Formerly  it  was  a small and a quite place  but  with  the expansion  of  the city of Bombay It also  started  growing. Development  of lands and construction of buildings became a lucrative  business.   That also led to illegal activity  of land  grabbing,  compulsory  s^les and  forcible  taking  of possession  of lands.  Those Illegal activities were carried on  by  the  gangs of Pendhad, Suresh Dube and  Bhal  Thakur since   1980.   In  1984   ManikPatil’s  gang  also  started operating  in  Nalasopara  area.   Bhai  Thakur’s  gang  was operating  from Virar, a nearby suburb and the last  station for  the suburban trains running between Churchgate (Mumbai) and  Virar.   Often there were conflicts and fights  between these   gangs   and  because  of   that   one   Ram   Naresh

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Chourasiya-was  murdered  in  1984 and Bharat  Pendhari  was murdered  in 1989.  Dube brothers having made money  stopped that  illegal activity one or two years prior to the date of the incident, but continued to carry on the business of land development  and construction of buildings.  One of the Dube brothers.  Dr.  0m Prakash Dube (P.W.I) had opened a Nursing Home  on  the  first floor of their  building  called  ’Dube Estates’.   Naresh  (P.W.3) was doing business  of  building materials.   Another brother Jai Prakash (P.W.4) was looking after  their  Pandava Hotel.  Shyam Sunder Dube  and  Suresh Dube  continued to look after land development and  building activity.   All  the  brothers were residing on  the  second floor of ’Dube Estates’.

     (b)  Dube  brothers  had agreed to purchase  one  land bearing Survey No.  110 ofViHage Achole and some other lands of  nearby  places.  Bhai Thakur wanted those lands and  had forcibly  taken possession of them.  Bhai Thakur wanted Dube brothers to transfer Survey No.  110 ofAchole to him and for that  reason had called Suresh Dube at his office In Virar a few  days prior to 9.10.1989.  As the relations between Bhai Thakur’s  gang  and Dube brothers were Inimical Suresh  Dube was  not  allowed to go alone to Bhai Thakur’s office.   Dr. 0m  Prakash had accompanied him.  In his office Bhai Thakur, his  brother  Hitendra  Thakur  and  other  associates  were present.   They had told Suresh Dube to part with that  land and  also  to  pay  ’haftas" to Bhai Thakur If  he  and  his brothers  wanted  to remain in Nalasopara and carry  on  the land development and building construction activity.  Suresh Dube  was  even  threatened and warned that if  he  did  not comply  with that demand and took any other action, then the members  of his family shall have to perform ’aarti’ of  his photo  within  a short time.  Because of this threat  Suresh Dube  was not moving out of his house since then.  As  there was  no  response  from  Suresh Dube  Bhai  Thakur  and  his associates  decided  to finish him.  On 8.10.1989 a  warning was  given  to him on telephone that If he did not  transfer that  land to Bhal Thakur he would be finished.  On that day at  night  one  Srikant Pandey, who was  working  with  Bhai Thakur  and had some contact with Suresh, went to the  house of  Suresh  and tried to convince him that If he  wanted  to remain  alive  It was advisable for him to give up the  land and go away to his native place.  On account of this serious threat  Surash  and  his brothers had  decided  that  Suresh should  leave  Nalasopara and stay at his native place  till there was danger to his life.

     (c)  Since  a  few days prior  to  9.10.1989  Amarnath Tripathi  (P.W.48),  brother-in-law of Suresh, had  come  to Nalasopara and was staying with them.  He had to go to Vilay Parle  (another suburb of Bombay) to^see a boy in connection with marriage of his brother’s daughter.  Suresh also wanted to go in that direction for purchasing a ticket for going to his native place Gorakhpur, in Uttar Pradesh.  Both of them, therefore,  left their house for going to Nalasopara Railway Station at about 10.15 A.M.  They reached the station within about  two minutes time.  There were many passengers on  the platform.   As the train by which they wanted to go  towards Churchgate (Mumbal) side was running late Suresh purchased a newspaper  from a stall on the platform and started  reading It.   Amarnath Tripathi went to a shoe polish wala, who  was siting  near that stall, for getting his shoes poHshed.   OB (d)  The  gang of Mamk Patll had accepted supermacy  of  the gang of Bhai Thakur and both the gangs were cooperating with each  other i’n committing terrorist acts and In carrying on

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the  illegal  activities  of   land  grabbing  and  forcible purchasing  of  lands.   In September 1989, it  was  decided between  the two gangs that Bhai Thakur would liquidate  the person  whom the gang of Manik Patil wanted to eliminate and that  Manik  Patil’s  gang would do away with  Suresh  Dube. Bhai  Thakur’s  gang  had already done their job  but  Manik Patii’s  gang  was not able to finish Suresh.   Bhai  Thakur was,  therefore, very angry with Manik Patil’s gang and  had sent  messages that the work should be finished as early  as possible.  The members of Manik PatiTs gang were, therefore, keeping a watch over the house of Suresh Oube.  On 9.10.1989 one  of the members of the gang saw Suresh going towards the railway  station and after locating his position immediately rushed  to  the  nearby hotel belonging to Manik  Patil  and Informed  other members of the gang including Narendra Bhoir (A-1)  about the presence of Suresh on platform No.  2.   So Narendra  Bhoir and some other members of the gang who  were present  there rushed to the.  platform.  Narendra was armed with  a  pistol.   Other  members  of  the  gang  were  also variously  armed.   Narendra found Suresh standing near  the newspaper  stall  and  then fired three shots from  a  close range.   Suresh  got injured and fell down on the  platform. Narendra  went near him and fired one more shot.  One of the shots  fired  by  Narendra also caused an injury  to  Mukesh (P.W.13).   After  thus killing Suresh ail those  assailants ran away from that place.

     (e)  Someone known to Dube brothers immediately ran to their  house and informed Shyam Sunder that Suresh was  shot dead  on  the railway platform.  One of the two persons  who had  als(9 accompanied Amarnath to the railway station  went back  and informed Naresh (P.W.3) about the incident.  Shyam Sunder  along  with his brothers rushed to the platform  and brought  bacic  his brother to their house with the help  of others.   Dr.   OfTiv Prakash, Dr.  Ajmera and  Dr.Bindwani, who were present in the Nursing Home found Suresh dead.

     (f)  Within  a very short time PI Kukdol^ar,  who  was in-charge of Vasai Police Station, went to the house of Dube brothers, and first talked to Dr.  Dube (P.W.I) and tried to persuade  him not to Involve Bhai Thakur and then threatened him  by  stating that if he involved Bhai Thakur,  then  the consequences  would  be  serious for him.   Thereafter,  PSI Padekar, attached to Pa’ghar Railway Police Station had gone to  the house of Dube brothers and made enquiries about  the incident.   Because of the threat given by PI Kukdoikar  and also  because  they knew that the police was protecting  and helping  the  gang  of Bhai Thakur they did  not  lodge  any complaint.   A  complaint  (Ext.  615) was prOBared  by  PSI Padekar  in present of PI Kukdoikar on the basis of what was stated  by Shyam Sunder (P.W.2) and his signature was  taken thereon.   Police  Inspectors Kukdoikar and Nimbalkar  often used  to visit the house of Dube brothers and threaten  them not  to disclose the name of Bhai Thakur as he was a  strong man  and  whoever complained against him was killed by  him. Investigation  was not made honestly.  Some of the  em’pties found  from thel platform were substituted or tampered with. ^  At  the  instance  6f  Police  Inspectors  Kurdolkar  and Nfrnbalkar  and Bhai Thakur, Patric (A-4) and Anant  Shankar Patil  (A-11)  were arrested as the persons responsible  for the  murder  of  Suresh.  A revolver was  recovered  at  the instance of A- 4 as the weapon with which Suresh was killed. Those  two  accused were then charge-sheeted and put up  for trial  before the Sessions Court, Thane in Sessions Case No. 88/91.   Hearing of the said case could not proceed  further

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as  both  the accused were shownlabsconc^ng after they  were released  on  ball and no effort was made by the police  for getting  warrants issued for securing their presence  before the court.

     (g)  On  February  19, 1992 the police set up  at  the Vasai  police  station and Palghar railway  police  station, within  whose  jurisdiction those gangs were operating,  had changed.   DIG Suradkar (P.W.75) of the Railways, during his visit  to Palghar railway police station, had an occasion to look into the investigation papers relating to the murder of Suresh.    He  became  suspicious   about  honesty  of   the investigation  and  identity  of the real  assailants.   He, therefore, sent for Shyam Sunder Dube to know the truth.  In view  of  the attitude of the police till then Shyam  Sunder did not personally go.  but sent his mother Bhagwati (P.W.5) and  Dr.  Ritu, wife of Dr.Om Prakash Dube.  They complained to him about the dishonest investigation made by PSI Padekar and  PI  Berge  and  the role played by  Pis  Kukdolkar  and Nimbalkar.   On  being  assured  by  Suradkar  that   proper investigation  will be made, a written complaint (Ext.  237) was  then  given  by Dube brothers on  18.5.1992.   Suradkar forwarded  it  to  DSP Deshmukh for  further  enquiry.   The enquiries  made by him and PI Shinde revealed that the gangs of  Bhai  Thakur and Manik Patil were  committing  terrorist acts in Nalasopara and surrounding areas, they had created a reign  of  terror  and that Suresh was Killed  by  a  person belonging to the gang of Manik Patil at the instance of Bhai Thakur.   Deshmukh,  therefore,  submitted  a  report  under Section  173(8)  of  the Code of Criminal Procedure  to  the Sessions   Court   at  Thane   and  sought  permission   for re-investigation  of  the  case.   Permission  was  granted. Further investigation made by Mr.  Deshkukh and his officers revealed  existence  of  the gangs of  Bhai  Thakur,  Bharat Pendhari,  Suresh  Dube and Manik Patil.  It  also  revealed that Bhai Thakur’s brothers Hitendra Thakur (A-9) and Deepak Thakur, Prashant Rajaram Tandel (A-8), Istiyak Mukhtyar Khan (A-13)  and  some others were members of the  Bhai  Thakur’s gang.   It also revealed that terrorist acts were  committed by  the gangs of Bhai Thakur and Manik Patil and that  those two  gangs  were responsible for the murder of Suresh  Dube. During the Investigation by Deshmukh A-1 discovered a pistol from  which  he had fired shots at Suresh.  A-1 to  A-8  and A-11   also  made  confessions   about  the  terrorist  acts committed by the two gangs, the motive for committing murder of Suresh Dube, the manner In which it was committed and how accused  Nos.  14 to 17 had helped Bhai Thakur In concealing rea’ offenders.

     3.   Pi Dssai (PW 90), who took over the investigation after  superannuation of Deshmukh on 30.6.1993, submitted  a charge-sheet  to  the Designated Court on 27.8.1993  against A-l to A-ll and deceased accused Narayan Gauda.  Thereafter, supplementary  charge-sheets were filed against A-12 to A-17 on  different  dates.  The Designated Court,  however,  took cognizance  against  A-l  to  A13 only  as  no  sanction  to prosecute  A-14  to  A-17 was obtained under the  TADA  Act. Their  case was, therefore, forwarded to the Sessions  Court at Thane.  Later on sanction was obtained to prosecute those police  officers also under the TADA Act and their case  was amalgamated  with the original T.S.C.  No.  32/1993 and  the charge was suitably amended.

     4.   The  charge against A-l to A-13 was that  between January  1984  and  December  1989, they  had  entered  into

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continued  crimirval conspiracy to commit terrorist acts  by use  and/or  show  of criminal force, fire  arms  and  other lethal  weapons  to extort mone-y, to illegally  grab  lands belonging  to others and to create terror amongst the people to  achieve  the objects of their conspiracy.  It  was  also alleged  that  in  pursuance of the said  objects  they  had committed  various  illegal and terrorist acts, the last  or which  was  the  murder of Suresh Dube and causing  hurt  to Mukesh  Shah.  A-l was speaflcaHy charged for the murder  of Suresh  Dube  and causing injuries to Mukesh Shah.   Accused Nos.   1-5,  II,  12,  13,   deceased  accused  Narayan  and absconding  accused  Sanjay  were also  charged  for  having committed  the murder of Suresh in prosecution of the object of  their unlawful assembly.  It was alleged against A-14 to A-17  that  as  a part of the criminal conspiracy  they  had caused evidence of commission of those offences to disappear and by that dishonest investigation they had tried to screen the  real offender^ from legal punishment.  A-l to A-13 were slso  charged  for commission of offences  punishable  under Sections  120B,  201, 217, 218, 302 read with 149, 307  read with  149 of Indian Penal Code, Sections 3, 3(3) and 3(4) of TADA  Act  an<i Section 25(l)(a) of the Arms Act.   A-14  to A-17  were  charged under Sections 201, 217, 218  read  with Section  120B  of  the Indian Penal Code.   They  were  also charged  under  Sections 3(3) and 3(4) of the TADA Act  read with Section 120B of the Indian Penal Code.

     5.   All the accused pleaded not guilty to the  charge and  their defence was of total denial.  A-14 had raised the defence  that  on  the day of the incident he  had  gone  to Bareilley  in connection with investigation of a theft  case and  had  returned to Palghar on 12.10.1989.  A-15 had  also raised  the defence that he was at the Vasai police  station till 11.00 A.M.  on the date of the incident and had reached the  place of offence after about 11.30 A.M.  He had  merely taken steps for keeping ’bandobasf and was not involved with the investigation of the case.

     6.   The  prosecution,  in  order to  prove  its  case regarding  existence  of  the two gangs of Bhai  Thakur  and Manik  Patil  and the- terrorist acts committed by them  and the  help  rendered  to  them by  the  police/had  oxarnined OrnPrakash  (P.W.I),  Shyam Sunder (P.W.2), Naresh  (P.W.3), Pushpa  Pondhari  (P.W.19), Sitaram Yadan (P.W.25),  Balaram (P.W.34),Kanhiya  Lal Misra (P.W.35), Jafar (P.W.40),  Waman (P.W.41),  Sakharam  (P.W.42), Jagganath (P.W.45),  Mohammad (P.W.52),   Subhash  (P.W.67),   Rubab  (P.W.68),   Madhukar (P.W.69),  Rarnkishan  (P.W.70), Vasant (P.W.90), Naaz  Asif Patel  (P.W.97)  and the police officers connected with  the subsequent  investigation as witnesses.  The prosecution had also heavily relied upon the confessions state^ to have been made  by A-1 to A-8 and A-11.  In order to prove the  murder of  Suresh Dube the prosecution had mainly relied^  uponOOhe evidence  of the two eye witnesses Amsmath Tripathi (P.W.48) and  0m Prakash Brahamania (P.W.49).  Evidence was also  led to  prove that the investigation made by the police prior to September 1992 was not honest.  Evidence regarding discovery of  pistol by A-1 and the evidence of a Ballistic Expert and medical officers and other formal witnesses was also led.

     7.   The  trial  Court  found  many  faults  with  the confessions and also held them inadmissible in evidence.  It also  held  that they were not voluqtarily made.  The  trial Court  disbelieved  the  witnesses  examined  to  prove  the terrorist  acts  on the ground that their evidence  was  too

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general  and  vague  and  they  were  not  independent  anc<HR>responsible  members  of the  locality.  The evidence of      two eye witnesses was dis-belleved on the ground that there were material  improvements and contradictions in their  evidence ^nd  their version was also not believable.   Identification of  the accused in the court by these two eye witnesses  was not  believed  because  it  was after a  long  time  and  no previous test identification parade was held.  For all these reasons it further held that the prosecution case against A- 1  to A-13 was not proved.  As regards A-14 toA-17 the trial Court  held  that the sanction given for  their  prosecution under  Section 3(1) o* the TADA Act was vitiated on  account of  non-  application  of  mind.   It  also  held  that  the reinvestigation  was done with an oblique motive as most  of the  terrorist  activities fell outside the jurisdiction  of the  railway  police and yet they were investigated by  them and  the  regular police having jurisdiction over the  areas was  not associated with it.  Thus the case against A-14  to A-17 was also held not proved.

     8.  Whether the eartiar investigation was dishonest or the subsequent re-investigation by Deshmukh and his officers was done with some oblique motive wilt have to be considered first  as acceptability of the evidence of the witnesses and the  confessions  would  depend  upon  the  answer  to  that question.   If the earlier Investigation was honest as  held by  the  learned  trial Judge, then the  contradictions  and Improvements  found in the evidence of the two eye witnesses will assume importance.  But if the earlier investigation is found  to be not honest, then the major ground on which  the evidence  of  the  eye witnesses has been  disbelieved  will disappear.   If we confirm the finding of the learned  trial Judge  that the re-investigation was made with some  oblique motive then that would certainly affect evidentiary value of the  confessions.  The trial Court held the investigation by Mr.   Deshmukh and his officers motivated for the  following reasons:   (1)  in  the  application (Ext.   237)  made  for re-investigation   it  was  not   stated  that  the  earlier investigation  was faulty and that A-4 and A-11 were wrongly shown as murderers of Suresh Dube.

     (2) there was no material before Deshmukh on the baste of which he could have stated that the earlier investigation was  faulty and for that reason no good ground was mentioned in  the application for re-investigation.  (3) there was  no reason  for  Deshmukh  to take possession  of  the  Mudemmal articles   on  the  very  day   on  which  application   for re-investigation  was  made as there was no material  before him  to  show that an unconnocted weapon was seized  by  the earUer  investigating  officer.   (4)  after  obtaining  the sealed packet of Muddamal empties and bullets from the court for  getting them examined by a ballistic expert the  Court, he first opened it and then again resealed it for no .reason except   for   tampering  with    the   Mudammal   articles, particularly  the  three bullets recovered from the body  of Suresh  Dube.  (5) even though there was no material  before Dehmukh on the basis of which he could have lawfully invoked the  provisions ofTADA on 28.9.1992 very probably he did  so with  a  view  to defeat the anticipatory  bail  application filed  by some of the accused.  (6) even though in the first FIR  Shyam  Sunder  Dube  (P.W.2) had  stated  that  he  was suspecting  none  for the murder of his brother, the  entire theory got changed during the subsequent re-investigation.

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

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Bombay  in  August 1991 had been to Palghar  Railway  Police Station  in  February  1992.  While  examining  case  papers relating  to  the murder of Suresh Dube he felt  some  doubt about  the  investigation.  Therefore, he had  directed  his subordinate  officers to send a message to Shyam Sunder Dube to  meet  him.   Pursuant thereto Bhagwati (P.W.5)  and  Dr. Rijuta  Dube (P.W.37) had met him within about 8 to 10 days. Suradkar  has deposed that they had orally complained to him about   the  honesty  of  the   police  officers   who   had investigated  the case.  On his assurance that he would look Into  the matter and take appropriate action they again  met him  after about 15 days and gave further details  regarding the  murder of Suresh.  He had, therefore, advised -them  to give a complaint in writing and pursuant thereto a complaint (^xt.   237) dated 18.5.1992 was given to him.  This part of his  evidence  has  almost remained unchallenged  in  cross- examination.   Only suggestion made to the witness was  that after Dubes had met him-he got the investigation of the case re-  opened in ordar to help Dube brothers.  No material has been  brought  on record to infer that Suradakar was  m  any manner  interested in Dubes or had any other reason to  help Dubes  by  falsely involving Bhai ThakLir or Manik Pat’l  or their  men.  The doubt feit by him regarding honesty of  the inve-stfgation  was  justified  because   even  though  five empties  were recovered from the place of offence a revolver was  seized  as the weapon of offence A poUce  officer  even With  little experience would have realised that the  murder was  committed  not by using a revolver but with  a  pistol. The  learned  trial Judge was, therefore, wrong  in  holding that there was no material before Suradakar for entertaining any  doubt and re-opening the investigation and that he  had done so with some oblique motive.

     10.   .Thetricri  Court was also not right in  holding that  Suradakar, got re-investigation done with some oblique motive  because  in  the  complaint  (Ext.237)  it  was  not specifically  stated  that  the investigation  made  by  the police  officers  till then was not honest.   The  complaint does  indicate that the Investigation made till then was not honest.  It should have been appreciated that Dube brothers, in  the  position  in which they were placed at  that  time, could  not  have  specifically  alleged  that  the  previous investigation was dis-honest.  So also from the fact that in the  application  made  to  the   Court  for  permission  to re-investigate   it  was  not   statp^  that  the   previous investigation was not honest, no inference of oblique motive could  have been legitimately inferred.  The application din refer  to  the  complaint made by  Dube  brothers.   Without ^"::h<ar  investigation no charqe of dis- honesty could have been  levelled  against the police officers associated  with earlier  investigation  at that stage.  Therefore,  Deshmukh could  not have mentioned In the application that permission to  re-investigate was sought as the previous  investigation was not honest.

     II.   The adverse Inference drawn by the learned trial Judge  from  the  circumstance that Deshmukhhad  takon  back Mudemmal  articles  from the Court on the same day on  which permission  to  reinvestigate  was granted and that  he  had opened  the sedsd packet containing bullets and empties  and agalrv sealed them, is wholly unjustified.  For ascertaining from which type of weapon - pistol or revolver - the bullets which were found from the body of Suresh Dube were fired, It was  really  necessary for Deshmukh to obtain possession  of those  bu^ets  and also the empties and get an opinion of  a

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ballistfc expert, particularly when no clear opinion on that point  was  given by him in his earner report.  As the  said Mudemmal  artides were lying in the Court in a pealed packet he had to obtain them from the Court and without opening the packet  he  could  not  have given a  receipt  as  to  which articles  were taken possession of by him.  It was necessary for  him  to open that packet and verify the contents.   Al? those  steps were regular and necessary and it is  difficult to  appreciate how the learned trial Judge could infer  from them  that  ail  that was done by Deshmukh with  a  view  to tamper  with  those Muddemal articles and  particularly  the three.  bullets ^ound from the body ofSuresh.

     12  The  trial Court also grievously erred in  holding that  the TADA Act was wrongly invoked.  The complaint  made by  Dube  brothers  and inquiries made by Deshmukh  and  his officers  disclosed some of the illegal activities committed by  the gangs of Bhai Thakur and Manik Patil and the  terror created  by  them  in   Nalasopara  and  surrounding  areas. Deshmukh  was handed over the complaint of Dube brothers for further   enquiry  on  18.5.1992.   On  31.7.1992   he   had interrogated   Mukesh   Shah  and  on   18.8.1992   he   had interrogated  Amarnath  Tripathi.   He had  also  made  some discreet  enquiries  through his subordinates  and  gathered some information regarding involvement of accused other than A4  and  All.   .On 22.9.1992 he  had  interrogated  accused Dnyaneshwar  Pati)  (A-3).   It was thereafter that  he  had submitted  a  report  to  the Sessions  Court,  Thane  under Section 173(8) of the Code of Criminal Procedure for further investigation.   Afterobtaining that permission he was  able to  obtain custody of OiHp Waghchoure (A-7) and  interrogate him.   On 25.9.1992 he, had recorded statements of MiraDube, Bhagwati  Dube and Jayprakash Dube.  It was on .the basis of this  material  that he was satisfied that the  accused  had committed offences punishable under the TADA Act.  Disposing aii this material he had made a report to the Superintendent of Pouce,- Railways on 28.9.1992 for invoking the provisions of  the TADA Act.  It Is, therefore, not correct to say that without  any  justifiable  reason provisions  of  TADA  were invoked  by  Deshmukh  and  that  he   had  done  so  ^  for frustrating  the bail applications which were to come up for hearing on 13.9.1992.

     13.   The last reason given by the trial Court is also not sound.  It wrongly assume.d that the first complaint was correct and tha FIR was recorded at the time stated therein. If  the  evidence  of  Shridhar  Thakur  (P.W.30),  Rajendra Panjwani  (P.W.79)  and Gosa’Mar (p.w.66} had been  analysed more  carefully  it would have become apparent that the  FIR could  not have been recorded at Paighar railway station  at 12.30  p.m.   as  mentioned Iff the FIR.  The  teamed  trial Judge  also  faiied  So appreciate that some days  prior  to 9.10.1989  Suresh  was  called  by   Bhai  Thakur  and   was threatened  that If he did not part with the lands wanted by Bhai  Thakur, then his family members shail have to  perform Aarti  of  his  photograp’h-and  on  8.10.1989  one  Srikant Pandey,  who  was a man of Bhai Thakur, had met  Suresh  and advised  him  to  leave Nrdasopara if he  wanted  to  remain alive.   Because of this threat a decision was taken by Dube brothers that Suresh should goto his native place and remain there  till  the danger to his life continues.  Pursuant  to that  decis’on  Suresh  had   left  his  house  wIthAmarnath Tripathi  on 9.10.1989 for going to Mumbai for purchasing  a railway  ticket  for  Gorakhpur.   This  conduct  of  Suresh corroborated  the  evidence of the prosecution witnesses  on

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that  point.  It Is, therefore, difficult to appreciate  how in  view  of this evidence the (earned Judge could  pe"suade himself  to  hold that the first complaint was  correct  and during  the  re-investigation the whole version was  charged deliberately,  ’he  r.tatement  in the  complaint  that  ths complainant  did not suspect anyone as the more careful whUe appreciating the relevant evidence.

     14.   As  regards  the  earHar  investigation  by  PSI Padekar  and  PI  Berge,  It was contended  by  the  learned counset  for  the appellants that it was not honest, it  was submitted  that  PI Kukdotkar, PI Nimbalkar ^n^ the  police^ officers attached to the Vasai and Virar police stations and even  higher  officers were supporting and  protecting  Bhai Thakur,  Manik  Patil  and  their men  by  helping  them  in tampering  with the evidence or by "ot taking action against them.   There is sufficient evidence on record to hold  that the  gangs  of Bhai Thakur and Manik PatU were operating  in Vasai and Nalaropara areas since 1980 and 1984 respectively. There  is  also  evidence to show that in order  to  achieve their objects or extorting money and grabbing land they used to  indulge  in  violence  and  other  criminal  activities. Whether  those  two gangs were committing terrorist acts  or not  is  a separate point and we shall deal with  it  later. For  the  present we are examining the evidence to find  out whether  investigation in respect of murder of.  Suresh Dube was  honestly  done.  The evidence of the family members  of Suresh  Dube is consistent on the point that PI Kukdolar and PI  Nimbalkar had pressurised thern not to mention the  name of Bhai Thakur or his men as the murderers of Suresh and had even threatened therr.  that if they did so they -would have to  suffer serious consequences.  P.W.I, Dr.  0m PraKssh has deposed  that  within about 10-15 minutes after  Suresh  was brouight  home and examined by the doctors, PI Kukdoikar had come  to thss’r house and toid that as he had not  personaUy seen  who had committed ’ the murder he should not name Bhai Thakur  as  a suspect.  PI Kukdoikar had further  toid  them that  even if Bhai Thakur was named as the murderer  nothing would  happen  to  him and on the contrary he  and  all  his brothers  wouid  have to d’e.  PI KLikdoiksr had  theroafter gone awayand had returned wit.hPSI Padekar and had remained wfth  him  when  the  complaint  was  written  down  by  PSI Padekarand  Ccn.stable  Sridhar  Thakur (P.W.80).   Dr.   0m prakash  has  3^0 deposed, that .PI Kukdolkar used to  come. to  their  house even thereafter and on.  some occasions  he had  come with PI Nimbalkar and that both of them had  tried to  impress upon him and his family-members that Bhai Thakur being  a  strong mar) end whoever filed a complaint  against him was killed and that it was enough .that .one of the Dube brothers  was ’kiiied.  P.W.2, Shyam Sunder has also  stated that  within about 10 minutes after Suresh was declared dead PI Kukdolkar had come to thefr house and had a tafk with his brother  Dr.  0m Prakash.  He has further stated that  after talking  with  his  brother PI Kukefolkar had told  him  and other  members of the family that they should not name  Bhai Thakur  as  the  murderer  of   Suresh.   PI  Kukdolkar  had specifically  told him that he was the eldest member of  the family  ahd should understand the consequences otherwise all the brothers would meet the same fate as that of Suresh.  He has  further stated that PI Kukdolar had also told them that whatever  property BhaiThakur was demanding should be handed over  to  him and that they should leave Nalasopara  and  go away  to  their  native place.  Us has aiso stated  that  PI Kukdolkar  had again come back with P51 Padekarand told them that they should cooperate with him and that they should act

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according  to  what  he had told them.  P.W.3  Naresh  Dube, P.W.4  Jalprakash, P.W.5 Bhagwati and P.W.6 Meera Dube  have also  supported  the evidence of Dr.  0m Prakash  and  Shyam Sunder.   All this evidence has been disbelived by the trial Court  on the ground the Dubes had not complained about  the conduct  of  PI Kukdolkar and PI Nimbaikar to Mr.   Zarekar, who  was then working as SDPO Vasai nor to any other  higher officer.   It  is  not  qu’te  cor"ect  to  say  that  these witnesses  had  not  complained  obcL-t the  conduct  of  PI Kukdofkar  and P!  N.’mbalkar to anyone.  He had  complained to  Pi Rathod who used to go to them for investigation.  All these  witnesses have further stated that it was because  of this  attitude  of  the police officers connected  with  the investigation  or interrogation that they had not  complamed to  higher  police  officers  or  taken  any  other  action. The-learned  counsel  for the appellants submitted that  the learned  trial  Court was not right in brushing  aside  this evidence  and  it shcuid have appreciated that there was  no particular  reason  for the members of Dube family  to  make false  allegations against the four police officers (A-14 to A-17)  and  PSI Padekar.  It was submitted that the  learned trial  judge failed to appreciate that for some years Suresh Dube  was  also involved in similar illegal  activities  and was, therefore, likely to know about the relations of police with the gangs of BhaiThakurand^anikPatil.  .

     15.   .   The learned counset for the appellants  also submitted  that  the  time  of recording  the  FIR  was  not correctly  mentionee  and that is a circumstance  Indicating dishonesty  of  the  previous  investigation.   Undisputedly murder  of  Suresh  took place on  the  Nalasopiars  railway platform at about 10.30 A.M.  P.W.80, Sridhar Thakur who was working  as a writer constable under PI Berge at the Peighar railway police station,

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     has  stated  PI Berge was absent on 9.10.1989 ard  PSi Padekar  was  in-charge  of the poUce station.   On  receive information  regarding  murder of Suresh he had  accompanied ’PSI  Padekar  to  platform  No.  2  of  Naiasopara  railway station  and  thereafter to the residence of Dube  brothers. PSI  Padekar had questioned Shyam Sunder and the reply given by him was written down by him and that writing was taken as the  complaint  of Shyam Sunder.’-’ The said  complaint  was then  sent  to  the  Palghar   railway  police  station  for registration.   ’In his cross-examination however he  denied this  version and stated that on 9.10.1989 he was cailed  by PSI- Padekar at Natasopara bysending a wireless message.  It is  proved that in his police ’statement dated 15.5.1993  he had  stated that after receiving the wireless message he had gon<3  to  Naiasopara and that he had reached there at  2.00 P.M.   The  murder  had taken place  at  Naiasopara  railway platform  at abut 10.30 A.M.  PaSghar raltway police station is  6t  a  considerable  distance and as  disclosed  by  the evidence  of police constable ’RaJendra Panjawant  (P.W.79), who  was’also attached toPalghar raiiway-poHCe’statlon, that the  first  train  available ek Palghar  for  going  towards Mumbal  si^e  after  10.15 A.M.  was at 12.30 P.M.   It  is, therefore,  quite clear that writer constable Sridhar Thakur could  not  have taken down the complaint at  Naiasopara  at 10.40  A.M.   Poiice.constabte  Rajendra Panjwani  has  also stated  that  the  message regarding murder  of  Suresh  was received at Paighar railway police station sometirna between 11.00  and 11.15 A.M.  and that he wasaiso directed to leave

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for  Naiasopara.  He caught the next available tram at 12.30 P.M.,  got down at Virar and then caught the suburban  train for  Naiasopara  which  took him there at  about  3.00  P.M. P.W.66,  Gosalkar was a police constable on duty at  Palghar railway  police.station  on 9/10.1989.  He has  stated  that while he was on duty at gate No.  38 situated on the western side  oftha railway platform he saw s^me passengers  running across  the railway ime.  On enquiry he.wastold thatfirmghad taken  place  on the railway-platform and so.  he rushed  to that  place  and found one person iytng.  ;m  an:   injured- condition.-He  then  went to the station master’s  room  to. send  a  telephon call to Vasai  railway station master  for sending more police force.  That was between 10.45 and 11.00 A.M.   -Thereafter heyvent to the house ofDube ..   brothers and  after  about  20 minutes PI Kukdolkar had  come  there. From  this  evidence  also it becomes quite clear  that  the complaint  could;  not have been recorded by Sridhar  Thakur at  10.40  A.M, nor..could it have reached  Palg^ar  railway police  -station  by  12.30  P.M.   as  deposed  by  P.W.72, Hanumant  Jadhav.  In all probability the first  information was recorded atPalghar railway police station much later and after  PSI  Padtekarhad gone back to Palghar.  No  time  was rrtentlohed  In the register.  Copy of the FIR was not  sent to the Magistrate either on that day or on the next day.  It had  reached the Magistrate on 12.10.1989.  This delay  does create a suspicion regarding influence of the two gangs oyer the  police.   Another  circumstance   and  a  stronger  one indicating  that  the first Investigation was not honest  Is the  attempt made by the previous investigating officers  to connect  revolver  article (No.  47) with the crime.  It  is not  in dispute and also stands proved by the spot panchnama and  the entry made in the, case diary (Ext.  754) that five empties  were recovered from the scene of offence.  If shots had  been fired from a revolver then the empties would  have remained  inside  the chamber of the revolver and would  not have  fallen out on the platform.  Presence of five  empties on  the platform clearly indicated that the weapon used  for firing  shots was a pistol.  Yet a revolver (Article 47) was seized  and shown as the weapon of offence.  Obviously  that was  done  with  the object of helping the murderers  as  no Court  could  have  convicted  them on  the  basis  of  such evidence.  Very probably two of the five empties seized from the  railway  platform  were   substituted.   That   becomes apparent  on  comparison  of the description  given  in  the Panchnama  with  the  description  mentioned  in  the  case? di’ary.

     16.   Another  circumstance  which   creates  a  ^cubt regarding  honesty  of  the previous  investigation  is  the making  of  a false statement in the application for  taking A-4  on  remand.   The  police  had  already  recovered  the revolver  on 20.10.1989 sometime between 5.30 and 6.30  A.M. and  yet  in  the application made to the Court  at:   about 12.30  P.M.   on that day it was stated that the  weapon  of offence  was  yet  to be recovered.  One  more  circumstance having  a  bearing  on  the   connaction  of  the   previous investigating  officers with accused A-1 to A-13 is  absence of  any  serious attempt by the police till 1992  to  secure presence  of  the accused before the Court and see that  the trial proceeded against them.  Even though A-4 and A-11 were released  on  bail  and  were not attending  the  court  and summons  were not served upon them, yet no attempt was  made by the police to get any warra-nt for their arrest issued by the  court.  The proceedings of the Court discloses that the case  was required to be adjourned from time to time on  the

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

     17.   in  our opinion these circumstances do create  a doubt  regarding honesty of the first investigation.  We are also  of the opinion that the subsequent Investigation  made by  the  police  under  the  direction  of  Suradakar  after September 1992 was not done with any oblique motive.

     18.   The  prosecution had led evidence of P.W.I  (Dr. 0m  Pra^ash),  P.W.2  (Shyam Sunder), P.W.3  (Naresh  Dube), P.W.4  (Jaiprakash), P.W.5 (Bhagwati) and P.W.6( Meera Dube) to  prove the motive for the murder of Suresh.  The evidence of P.Ws.  I and 2 discloses that Dube brothers had purchased certain  lands  of  villages  Achole,  Mi’lemore,  Manikpur, Tuiinej and other villages touching Nalasopara.  Bhai Thakur and  his  associates had taken illegal  possession  thereof. Suresh  was  trying to take back those lands.   Bhai  Thakur wanted those lands to be trar^erred to him and wanted Suresh to  pay  ’haftas’ for carrying on iand developing and  house building  activities  in  that area.   In  this  connection, Suresh  was  called by Bhai Thakur at his office at Virar  a few  days before 8.10.1989.  We have already referred to the discussion  and  the  threats given by Bhai Thakur  and  his associates  to Suresh.  We have also referred to the warning given  to Suresh on telephone on 6.10.1989.  P.W.6 had  also stated in her evidence that Suresh was much worried after he had  received the threat.  The evidence of P.Ws.  1, 4 and 6 further  discloses  that it was decided by al?   the  fami’y mernbfers  that  Suresh should leave Nalasoparaandgo to  his native  piacQ till the danger to his life continued.  In the cross-examination of those witnesses it has been brought out that  except  in respect of Survey No.  110 of Achole  there was  no  document to establish that Suresh and  his  brother were  ever  in  possession  of   those  lands  pursuant   to agreements  of  sale.   The evidence of these  witnesses  is found trustworthy and the motive can be held proved.

     19.   The  evidence  of  P.Ws.  I and 2  and  that  of P.W.28,  Amarnath Tripathi proves and that is not  indispute that  Suresh had left his house at about 10.15 A.M., reached platform  No.   2 within about 2 minutes lime and  was  shot between 10.30 and 10.35 A.M.  At that time Amarnath Tripathi was  with  him.  Two other persons had also  accompanied  as Suresh  wanted  to have a talk with them in connection  with his  business.  One of them was Mukesh Shah (P.W.53).  As to what  happened  thereafter  on  platform   No.   2  of   the Nalasopara  railway  station  has been deposed  by  Amarnath Tripathi  (P.W.48) and 0m Prakash (P.W.49).  Others who  had seen the indctent and were examined as eye witnesses but did not  support  the prosecution were Ranjit Thakkar  (P.W.iO), Alex  Marthin (P.W.Ji), Sanjay Dube (P.W.39), Dinesh Kashyap (P.W.39)  and Mukesh Shah (P.W.53).  Ranjit and Sanjay  were the  passengers  wait’no on that platform for the  train  to come.   Both of them have deposed about firing of shots  and seeing Suresh lying on the platform in an Injured condition, but  they  did  not  identify any of  the  accused  as’  the assailants  of  Suresh.  Sanjay stated that A-l and A4  were not  the  persons who were seen by him running away  on  the railway  track.   Alex Martin (P.W.31) was the  person  near whose  book-stall the incident had happened.  He has  stated that  he  had seen the person who had fired shots at  Suresh and  had  also  seen other persons running  away  after  the incident,  but  he did not identify the  assailants  stating that  he had seen them from the back side.  He  specifically denied  that  A-l  was the person who had fired  the  shots.

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Dinesh   Kashyap  (P.W.44)  had  a  pan-bidi  stall  on  the platform.   He also stated in the Court that he was not able to  identify  the  assailants.  All  these  witnesses  were, therefore, declared hostile.’ ’Mukesh Shah (P.W.53), who new Suresh  and A-l and who was also injured, did not say in the court  that A-l and some of the accused were the  assailants of Suresh.  The learned Mat Judge doubted involvement of A-1 on  the  ground that Mukesh Shah being dose to Suresh  would have disclosed the Identity of the real assailants If he had really  seen them.  This witness must have been very dose to Suresh  as  ha had gone on the platform to have a talk  with Surssh.   The  fact that he was injured by one of the  shots fired  at Suresh also indicates that he must have been close to  Suresh.  This witness at first denied that he know  A-1, but  admitted in cross- examination by the public prosecutor that  he  knew  A.-.1 since before the  incident.   It  was, therefore,  more  probable that he did not want to  identify them  out  of  fear  and  not because in  fact  he  had  not identified  them.  His evidence, however, remains  unhelpful to the prosecution.

     20.   , .  ...Amsmath Tripsthi (P.W.4S) hsd come  from his native place to Nalasopara on 4.10.1989 or 5.20.1909 and was  sta/i’ng with ms sister and brother-in-law Shyam Sunder (P.W.2).   tie.^ad come to see his sister and also to find a match  for  the  daughter of his younger  brother.   Between 5.10.1989  and 9.10.1989 he had seen two boys.  On 9.10.1989 he  wanted  to goto Vills Parle to see one boy.  As  further stated by him Suresh wanted to purchase a railway ticket for going  to his native place Gorakhpur and, therefore, both of them  had left together at 10.15 A.M.  They went to platform no.   2  and were waiting for the train to arrive.   As  the train  by  which they were to leava for Mumbal  was  running late he went to a shoe-polishwaia to get his shoes polished. Suresh  Dube purchased a newspaper from a nearby  book-stall and  started  reading the same.  While his shoes were  being polished  he  heard the sound of a firearm shot and when  he looked  in  that direction he saw one person with  a  pistol firing  further shots at Suresh.  Ha has also stated that  4 to  5  persons,  had encircled Suresh.   Because  of  firing persons  standtn^  on  the platform started  running  helter skelter.   The shoepolishwala also got up and ran away..  He then  got a push from one of those persons who had encircled C-uresh  and,  therefore, foil down from the  platform.   He immediately  got  up and looked at Suresh.  He saw the  same person  who had earlier fired shots firing one more shot  at Suresh  who  was  by  then   lying  on  the  platform.   He, therefore,  raised  shouts  "Save Save".  By that  time  one train   arrived  and  taking   advantage  thereof  all   the assailants  ran away.  He has also deposed about how  Suresh was  taken home and declared dead by the doctors.  According to him he become giddy, fell down and on hearing that Suresh was  dead he became unconscious and remained unconscious for three  days.  After he regained consciousness he was toid by the  relatives  ofSuresh that murder was committed  by  Bhai Thai’ur’s  men and he should not say anything to the  pol’ce about  the  incident as that could prove to be dangerous  to their  lives because the police was well connected with Bhai Thakur.   Therefore,  he refused to give a statement to  the police  on  12.10.1989 when they had come to record it.   In the  court  he identified A-1 to A-4 as the persons who  had encircled  Suresh.  He also identified A-1 as the person who had  fired shots at Suresh.  This witness was confronted  in his  cross-examination  by  the   police  statements   dated 12.10.1989 and 20.10.1989 purported t6 have been recorded by

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PI  Berge.  What the defence wanted to establish was that on 12.10.1989  he had given a different version as regards  the manner  in which the incident h-ad happened.  His version in the  said statement was that Suresh was standing on his left side  while  he was getting his shoes polished and when  the bootwala  was polishing his shoes with cloth, suddenly words "Are  Is Ki Ma Ki" came out of Suresh’s mouth.  At that time people   on  the  platform   started  shouting  "Run   Run". Immediately  a  big  sound like bursting of  a  cracker  was heard.   He received a push from somebody, lost his  balance and  remained  standing by leaning against  the’Soo’’-.^a.;. He  looked at Suresh.  He had bent down keeping his hand  on ’’5    stomach.    It   was     also   brought   out    in thecross-exsi-nmation  that  this witness had not given  any description   of  the  assailants  m  his  statement   dated 18.8.1992 and that he had further stated that the person who had fired shots’ was having In his hand a weapon like pistoL He  was  also  contradicted by his  police  statement  dated 18.8.1992 wherein he had stated that "immediately thereafter Suresh  Dube sat down with hisb’oth hands on his forehead  I had  fallen  down on the railway track because of the  push. In  the meantime local train ’from Virar side and Churchgate side  arrived.  Dunng ’that ’time people who fired on Suresh Dube  ran  away towards Nalasopara West.  This witriess  had not  stated in his said statement that "after I stood up  on the  railway  track I saw Suresh Dube lying on the  platform and  the  person who was firing bent down and fired  on  the head  of  Suresh  Dube".  It was submitted  by  the  learned counsel  appearing  for the respondents-accused  that  these omissions  and contradictions clearly disdose an attempt  on the  part  of  this witness to make  improvements  upon  his earlier  version so as to mak-2 his evidence agornst A-1  to A-4  certain  and acceptable.  It w&s also urged’ that  this witness  in his statement dated 18.8.1992 had stated that "I had  given,my statement before the police during my stay  of 20-25  days with^Dubes’JamHy.  ^er the incident of  murder". It  was  urged  that this witness has falsely  stated  white giving  evidence that he had not given any statement to  the police  either on 12.1G.19SS or 20.10.1939.  It was  further urged  that  this  witness  had  denied  to  have  made  any statement  on  12.10.1989 and 20.10.1989 as he knew that  it contained  a different and an uncertain version not only  as regards  the  manner in which the incident had happened  but also  with regard to his seeing this assailants.  The  trial Court  was  also  much  impressed  by  these  omissions  and contradictions,   and   taking    into   consideration   the circumstance  that  the incident had happened  suddenly  and large  number  of persons who were standing on the  platform had  started running helter skelter after hearing the  sound of  firing of a shot, held that this witness could not  have sufficiently seen the assailants so as to correctly identify them  in  the court after.many years.  In arriving  at  this conclusion  ths trial Court also rdisd upon the statement in h’s  cross-examination  that  he  did not  know  from  which direction  the  .sound of the first shot hed come  and  from what  distance it was fired.  ^We have earlier held that the previous  Investigation was not.  honest and;  therefore, no importance  could  have  been given to these  omissions  and contradictions  proved from the statement dated  12.10.1989. Even  if  we proceed on the assumption that a  statement  of this  witness was recorded by the police on 12.10.1999 it is not possible to agree with the submissions made on behalf of the respondents that the earlier version of this witness was totally  different  from  his  version in  the  Court.   The discrepancies  were with respect to number of assailants and

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number  of  shots  fired by the assailants and also  on  the point  of his seeing the assailant firing one^mpreshot after he had neceirVcd a push and fallen down onthe.railway track. Even  the  omissions and contradictions with respect to  the statement dated 18.8.1992 are also not such as would,lead,to an  inference  that  this witness  was  deliberately  making improvements  before  the  court  in order  to  faiseiy  say something  that  he  had not seen.  What  appears  from  the statement  is that this witness had stated in his  statement dated  15.8.1992  that  he h^d seen the last shot  fired  on Suresh after he ha^ faUen dovw from-the platform.  Whathehad notstatei3.wasthathe.hadseen      the.assailant       firing thelastshot after he ^adgot up from the railway track,.  The fact   that  this  witness   had  gone  to  Nalasoparatome^t ^5.sister  and had some work has remained unchallenged., Th^ fact  that on 9.10.1989 he had left the house of Dubes  with Suresh  at 10.15 A.M.  has also remained unchallenged.   The presence  of  this  witness on the platform at the  time  of incident  has not been questioned.  His version that he  was getting  his shoes polished at the time of the incident  has also  not  been disputed.  Whatwa’s urged before  the  trial Court and what has been bdisved by ’tis that as the incident had  happened  suddenly  and  the  people  standing  on  the platform  had  started  running better  skelter  immediately after  fhe first shot was fi^ed^th^ witness coritd not  have seen  the assailants clearly foral  suftideh^y ong Wneso  as to  correctly recognise them after a lapse of few years.  It was also urged that as this witness was not abia to make out from which direction the sound of firing a shot had come and was  not able to state the distance from which it was  fired would  also support the finding that this witness really did not  know the mannet and circumstances in which the  assault on’Sure^h  had taken place.’ ’^hi5 witness has said that  he was  at  a  distance of about 3 ft.  from  Suresh  when  the incident had happened.  That appears to be more probable and natural  also.  Both of them had left the house together and were  to go together in the train.  Except the  circumstance that  people  on  the platform had  started  running  helter shelter  a*te"  hearing the sound of firing of shots,  there was  nothing before the court on the basis of which it could have-^dthat  Amarnath  cou.’d not have seen  the  assailants firing  shots  at Suresh.  and surrounding him.  Though  the inddent  had happenecTsuddeniy, firing of five shots from  a pistol  must  have  taken some time.  Thte  witness  in  our opinion had sufficient time to^e and registsr hh^s mind what was  then happening to Suresh, his- brother-in-law.  In  our opinion  the  learned trial Judge was not right  in  hoid«ng that  this  witness  very probably did  not  have  sufFident opportunity  to  see the manner In which the whole  incident had happened and who were the assailants.

     21,  The  next  point  to  be  considerad  is  Whether identification  of the accused by this witness in the  Court can  be believed when no attempt was made earlier by holding a  te$t trial Court has found it unsafe and it was contended by   the  learned  counsel  for   the  accused   that   such identification  has ^ LWhla f(AIR 1980 SC 1382].  A-1 to A-4 who  were  identified  by February 1993.   Three  years  had passed  by  then.   Perhaps  th^ was  the  reason  why  test identincatjon’  parade was not held.  Anyway this  infirmity of not hoping a test identification parade does diminish the evidentiary value of identification of these accused by this witness  in  the  Court.   If this  was  the  only  evidence regarding identification of those accused we would have held that  it  was not su^dent for convicting any of  those  four

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accused.   But  it  stands corroborated by the  evidence  of another  eye-witness and also by ti’e confessions of A-1  to A-4, if they are held admissible and voluntary.

     22.   It was contended by the learned counsel for  the respondents-accused  that  the version of this witness  that he.had  become unconscious on hearing .that Suresh had  died and  had  remained  unconscious  for   three  days  was  not believable  and  th^ trial Court was right in rejecting  the evidence of.this witness oh that ground.  It is difficult to appreciate  what  this witness wo^id have gained by  falsely saying  so.   He  had seen his brother^n- r law  being  shot dead.   Therefore  it was not unlikely that h.e got a  shock and  became  unconscious.   If what he has  stated  was  no^ correct  then  the police would have recorded his  statement befo/e  12.10.1989.  The fact .that his statement co^.’d not be  record  before 12.10.1989 lends support to his  evidence that  he had remained unconscious, though not  continuously, for three days.

     23.   0m  Prakash  Brahmania  (P.W.49),  another  eye- witness,  was earning his livelihood in Bombay by working as a  boot-polisher  on  the platforms  of  Nalasopara  railway station.   He had been doing so since about 10 years  before the  date  of the Incident.  He usad to sit on the  platform from  6.30 in the morning till 6.00 o’clock in the  evening. He  knew Suresh and some accused as they often used to  come to  the  railway platform to get their shoes  polished.   He also  knew some of the accused as he was threatened by  them on  some  occacions  as a ’.’.  part of  their  activity  of terrorising people of the locality.  He has’ deposed that on the  date of incident he had seen Suresh Dub^ and one person accompanying him on the railway platform ^t about 10.30 A.M. The person who had accompanied Sur^h came to him for getting his shoes polished.  While he ^as polishing his shoes Suresh was reading a newspaper near’ihe book-stall at a distance of about  2 ft.  from him.  He then s^/v Narendra (A-1)  nephew of Ma-nik Pstil, coming there and firf^g shots G*˜ Suresh.   He also s^w that 3 cr < yers""".?  were w’th  A-;. Narain  was one of them and he had a chopper with him.  As s result  of that firing people started running.  He also  got frightened  and  ran away and took shelter behind  a  nearby building.   After waiting there for some time he went  home. He  identified  Narendra (A-1), Dayaneshwar Patil (A-3)  and Patric  (A-4) in the Court.  He identified Narendra (A-I) as the  person  who had fired shots at Suresh  and  Dayaneshwar (A-3)  as the person who was standing with a chopper by  the side of Suresh Dube.  He has further deposed that because of this  incident and fear of Manik Patil’s gang he left Bombay within  about  2 to 3 days and went to his native  place  in Haryana.  He stayed there for three years.  When he returned to  Bombay he came to know that the police was searching for him.   Therefore,  he met the police and his  statement  was recorded  on 5.10.1992.  In his cross-examination he  stated that  it  was after about 8 to 10 days from his return  from Haryana  that his statement was recorded by the police.   He also  stated  that his father had all the time  remained  in Bombay.   The  learned trial Judas has held this par of  the evidence of this witness unbelievable.  The trial Court held that  there  was no reason for this witness to  remain  away from  Mumbai for a period of 3 years, particularly when  his father  had stayed back.  The learned trial Judge also  held that  this witness had shifted to Bombay as he did not  have enough  work  in Haryana and, therefore, it was  not  likely that  he  would have remained in Haryana for 3 years  before

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returning to Bombay.  The learned Judge also relied upon the circumstance  that in his statement before the police he had given  his Bombay address and stated that he was staying  at that place since about 10 years.  The reasoning of the trial Court was that if he was absent for 3 years from Bombay then he  would not have stated to the police that he was  staying at  that address since about 10 years.  In our opinion,  the reasons  given by the trial Court for disbelieving this part of  the evidence of this witness are not at all sound.   The fad:   that this witness belongs to a small town in  Sonepat District  of  Haryana  State is not disputed.   It  is  also proved  that summons were served upon this witness while  he was in Haryana.  It was also suggested by the defence in his cross-examination  that  the  police had arrested  him  from Haryana and brought him back to Bombay.  The version of this witness was that he had come to Bombay on his own and he was not arrested or brought by the police.  But the fact that he had  gone back to Haryana and returned in 1992 has  remained almost  unchallenged.   It  is true that  according  to  the previous  investigation  made by PI Padekar and  PSIl  Berge statements’  this  witness  were   recorded  on  11.10.1989, 13.10.1989  and  20.10.1989.   This witness had  denled-  to have^ .given those statements and we are..inclmed to behieve this  witness on this point in view of the finding  recorded by  us  earlier  that  the Previous  Investigation  was  not honest.  This witness had been staying in Bombay and earning his  livelihood.   He had come to Bombay as he did not  have any source of livelihood in Haryana.  It was, therefore, not likely that without any compelling reason he would have left Bombay  and  gone to Haryana.  Therefore, his evidence  that he-had  left Bombay and gone back to Haryanp because of fear of  Manik  Patil’s gang deserved to be accepted.  He was  an eye-witness   to  the  incident.    The  investigation   had disclosed that he was an eye-witness and that was the reason why  a  statement  alleged  to have been  made  by  him  was recorded  by the police on 11.10.1989.  The conduct of  this witness  was  quite  natural  and   there  was  hardly   any justification for discarding his evidence on the ground that his  version  was not believable.  This witness knew  Suresh and   also   the   accused.    He    stated   so   in    his examination-in-chief.   we  find  hardly   anything  in  the cross-examination  of  this witness which would  create  any doubt  regarding his knowing Suresh and some of the  accused since before the date of the incident He had been working at Nalasopara  railway  station  for about 10 years.   He  This witness  has denied to have made any statement on 11.10.1939 or  13.10.1939.   Wa will later on point out that naming  of A-4  and A-11 as the murderers of Suresh was a  manipulation done  by  the gangs of Bhai Thakur and Manik Pstil with  the help of A- 14 to A-17.  It is also not factuallyy correct to say  that  the witness had on 20.10.1989 identified A-4  and A-ll  as the assailants of Suresh.  According to the  police statement  this witness had only confirmed that the  persons A-4 and A-ll who were in the police custody were the persons who had attacked Sunash.  Therefore, the learned trial Judge was  not  right  In  rejecting his  evidence  on  these  two grounds.   The trial Court also disbelieved his evidence  on the  ground that if he really knew the names of the  accused then  he  should  have disclosed the same not  only  to  the poiice  but  to other person?  with whom he had a talk.   He had  nelther  disclosed the names to the police nor  to  his father  with  vvhom he had a talk about the  incident.   The evidence  on  this point is also not correctly read  by  the trial  Court.  What this witness has stated in his  evidence is  that  he  knew  A-l by name and others  by  their  faces

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According  to  this  witness he did not have any  talk  with anyone  with respect to the incident except with his father. It  may be that he was afraid of naming any person belonging to  the  gang  This  witness has denied  to  havs  made  any statement  on  II.10.1989 or 13.10.1989.  Wa will  later  on point  out  that  naming of A-4 aid A-li  as  th«  murderers Suresh  was a manipulation done by the gangs of Bhai  Thakur and  Manik Pstil with the help of A- 14 to A-17.  It is also not  factudll  correct  to  say  that  the  witness  had  on 20.10.19S9  identified  A-4  and A-li as the  assailants  of Suresh.   According to the police statement this witness had only confirmed that the persons A-4 and A-11 who were in the police  custody  were the persons who had  attacked  Suresh. Therefore,  the  learned  trial  Judge   was  not  right  in rejecting  his  evidence  on these two grounds.   The  trial Court also disbelieved his evidence on the ground that if he really  knew  the names of the accused then he  should  have disclosed  the  same  not only to the police  but  to  other persons  with  whom he hed a talk.  He had nether  disclosed the names to the police nor to his father with whom he had a talk about the incident.  The evidence on this point is also not  correctly  read by the trial Court.  What this  witness has  stated  in his evidence is that he knew A-l byname  and others  by their faces According to this witness he did  not have  any  talk  with anyone with respect  to  the  incident except  with  his father.  It may be that hs was  afraid  of naming any person belonging to tha Jang has Q’ven the reason why  he  knew  Suresh  and some of  the  accused.   It  was, therefore,  more probable that he knew Suresh and also  some of tha accused including A-l.  This witness had no reason to falsely  involve any of the accused.  Moreover, being  aware of  the existence of Manik Patil’s gang and the terror which they  had crested he would not have dared to falsely  depose against  them.  His presenca on the railway platform on  the date  and time of the incident cannot be seriously  disputed as that was the usual thing for him to do.  There is nothing on record to show that he was close to Dube or was under any influence  of  the police and for that reason  would  depose falsely against A-l, A-3 and A-4.

     24.   The trial Court also has recorded a finding that possibly he knew the accused belonging to the gang of Manllc Patil.  His evidence by the trial Court has been disbeliever mainly  on the ground that the description of the assailants giver)  by him in the earlier statements did not tally  with A-l and that on 20.10.1989 he had identified A-4 and A-ll as the  assailants  of  Suresh,  while  in  the  Court  he  had identified  A-l,  A-3,  A-4 and Narain (A-10)  as  the  real assailants  of Suresh.  We have already pointed out that the earlier investigaticn was not honest.  of Manik Petll as the murderer and therefore had not disclosed’ the name of A-1 as the murdersr of Su’resh.  A-l, A-3 and A-4 were sll Known to aim  and,  therefore  there was no point in holding  a  test identification  parade  after this witnes had returned  from Haryanac.   Therefore, the learned this judge was not  right in  rejecting  his evidence en :ne groundi that he  had  not disclosed  names  of the accused to anyone and that no  test identification  parade was held to test the identity of  the real  culprits.  We are of the opinion that the trial  Court was not justified in discarding the evidence of this witness on  the  ground  that it was not believable.   His  evidence deserved   to   be   accepted    without   any   independent corroboration.

     25.    The  prosecution  has   also  relied  upon  the

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circumstance  of  discovery  of  a   pistol  by  A-1  as  an independent  circumstance  corroborating   the  evidence  of eye-witnesses.   The Panch Withnesstn^s did) not support the prosecution  and  it is also difficult to hold that  it  was really  a case of discovery of pistol by A-l as contemplated by Section 27 of the Indian Evidence Act.  The learned trial Judge  has  not  relied upon the evidence relating  to  this circumstance  and we are also of the opinion that the stated by  these  actused while retracting their  eonfessions  was: that  they  were obtained by giving threats.Of  under  undue influence.   It was generally suggested to Shinde in crosses examination  that he had obtained signatures of the  accused on    those  confessions under undue  Influence,  coercion, fraud and mental and physical torture.  It was not stated by the  accused nor even suggested in the cross-examination  of Shinde that particular type of physical or-mental torture or coercion  was caused to the accused or in which rnanner-thay were  defrauded  or what undue ’influence was  exersed  upon .them.   Only suggestion that was made to the witneeses  was that  whiie  recording the confessions he told them that  he was  Superintendent of Police and he had-stated so in  order to  impress  the  accused.  In our opinion  Shinde  ha,ddone nothing  wrong  In disclosing his identity as he was  really required to do so before recording the confessions.  At this stage we will refer to some of the admissions and statements made  by Shinde in his cross-examination.  He admitted  that he  had  felt that it was unfair on his part to  record  the confessions  as  he was supervising the  investigation.   He also  admitted  that  he  was not  aware  of  the  statutory requirements  of  Section 15 of the TADA Act and Rule 15  of the  TADA  Rules till he recorded the first confession.   He also  admitted that he had inadvertently committed a  breach of  the  TADA Ruies while recording those  confessions.   He also  admitted that .while recording the confessions he  was not  aware of the.procedure prescribed under Section 164  of the  Criminal  Procedure Code for recording confessions  and also  the  provisions made by the Bombay High Court  in  its Criminal  Manual.   He also admitted that he had put.   some more  questions  to  the   accused  before  recording  their confessions  in  order to find out that they were  willingly making  those  confessions but all those questions have  not been  recorded by him-in-the confessions.  It was really  on the  basis of these admissions and some other reasons to  be dealt  with  hereinafter  that  the  trial  Court  held  the confessions  not admissible, not voluntary and not reliable. .   ’  27.   Section  15  of  the  TADA  Act  makes  certain confessions  made to police officers admissible in the trial of  such  person or co-accused, abettor or conspirator  for. an  offence under the Act or rules made there under.   This. Court  considering its constitutionaiity in Kartar Sinah  v. State  of  Punjab [(1994) 3 SCO 569] observed that  "having, regard  to  the legal competence of the legislature to  make the  law  prescribing  a  different   mode  of  proof,   the meaningful  purpose  and  object  of  the  legislation,  the gravity  of  terrorism  unieashsd  by  the  terrorists   and disruptionists  endangering  not  only the  sovereignty  and integrity  of  the country but also the normal life  of  the citizens,  and the reluctance of even the victims as well as the  public in coming forward, at the risk of their to  give evidence" - held that the impugned section cannot be said to be  suffering from any vice of unconstitutionality.  Section 15  is thus an important departure from the ordinary law and must.   receive that interpretation which would achieve  the object  of that provision and not frustrate or truncate  it. Interpreting  the said provision this Court in  Statethrough

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Superintendent  of  police,CBI/SIT etc..  V.  Nalini &  Ors. (popularly  known  as Rajiv Gandhi Murder case), this  Court has  held that a confession recorded under Section IF of the TADA  Act  is  to be considered as a  substantive  piece  of evidence  not only against the maker of, it but also against its co-accused.  There was difference of opinion amongst the three  learned  Judges who decided that case  regarding  the evidentiary   value  of  such  a  confession   against   the co-accused  is tried in the same case.  Wadhwa,J.   observed that  what weight snould be attached to such a confession is a  matter  of  discretion of the Court and as  a  matter  of prudence  the  Court may look for some corroboration  before relying  upon  such  confession   against  the   co-accused. Quadri,J.  held that the rule of prudence would require that the Court should examine the same with great care and should not  be  relied upon unless it is corroborated generally  by other  evidence on record.  Thomas, J.  held that "Thus  the established  position  which gained ground for a  very  long time  is  that  while a confession is  substantive  evidence against  ita maker it cannot be used as substantive evidence against  another person even if the latter is a co- accused, but  it  can beused as a piece of corroborative material  to support  other  substantive  evidence."   Relying  upon  the decision  of  this Court in Kaipnath Rai v.   State  [(1997) 8SCC  732], it was submitted by the learned counsel for  the respondents  that  even a confession made  admissible  under Section  15  of the TADA Act can be used as against the  co- accused  only  in  the same manner and subject to  the  same conditions  as stipulated .under Section 30 of the  Evidence Act.   An  observation to the same effect is to be found  in paragraph  75 of the judgement.  In fact no such point  fell for  decision  in that case and it appears to be  a  passing observation  only.  In view of the decision of this Court in NaUni’s  case  the said observation can now be  regarded  as correct position of law.  The correct legal position Is that the  confession recorded under Saction 15 of the TADA Act is a  substantive piece of evidence and can be.  used aoainst a co  -accused also otherwise held to be admissilbie voluntary and believable.

     28.   The  confessions  have  been  held  inadmissible mainly  on  two  grounds.   The first ground  given  by  the learned  trial  Judge is that the power under Section 15  of the TADA Act was exercised either malafide or without proper application  of  mind.  The second ground on which they  are held  inadmissible  is that they were recorded in breach  of Rules  15(2) and 15(3) of the TADA Rules and also in  breach of  the  requirements’  of Section 164 and  the  High  Court Criminal  .Manual.   The learned trial Judge held  that  the TADA   Act   was  applied  in   -this   case   without   any justification.   The permission was granted in.  that behalf without  any  application of mind.  According to  the  trial Court  there  was  material on the basis of which  TADA  Act could have been invoked at that stage and that most probably the  said  Act  Was  invoked in order  to  defeat  the  ball application  filed by two accused in the High Court.  In our opinion  the trial Court.was wrong in taking this view.   We have   already  pointed  out   earlier  that  Deshnukh)  had collected  enough  materil on the basis or which  reasonable satisfaction  could  have  been  arrived at  that  the  acts committed  by  the two gangs were terrorist acts.  It is  no doubt  true that it was wrongly reported by Deshm.mukh  that Section  5 was also applicable in this case and that without proper  verification  sanction was granted to proceed  under that  section also.  The applicability of Section 5 depended

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upon  existence  of a requirsite notification by  the  State Government.   It was wrongly reported by PI Deshmukh in  his report  that such a notification was issued and relying upon his  statement  the higher officer had given  the  sanction. Merely  on  this  ground it cannot be said that  Shinde  has exercised the power under Se-’:t’ion 15 of the TADA Act mala fide.  The learned trial Judge has also held that it was not fair  on the part of Shinde to record the concessions as  he was  also supervising the investigation.  Shinde has clearly stated in his evidence that he had made attempts to find out if  any  other  Superintendent of Police was  available  for recording  the  confessions  and as others had  declined  to oblige  him he ’had no other option but t’o record them.  We see  no  illegality or impropriety in Shinde  recording  the confessions   even   though   he    was   supervising    the investigation.   One  more flimsy reason given by the  trial Court  for  holding  that  the power under  Section  15  was exercised  male  fide  is  that   the  accused  making   the confessions were not told that they have been recorded under tne  TADA Act.  No such grievance was made by the accused in their  statement  under Section 313.  On the other hand,  it appears  from  the confessions themselves that  the  accused were  made  aware  of the fact that those  confessions  were recorded under the TADA Act.

     29.   The learned trial Judge has held the confessions Inadmissible  on the ground that they have been recorded  in breach  of  Rules  15(2) and 15(3) of the TADA  Rules.   The rules read as under:

     S.15(2).   The  police officer shall before  recording any  confession  under  sub- section.  (1), explain  to  the person  making it that he is not bound to make a  confession and  that, if he does so, It may be used as evidence against him  and  such  police  officer shall not  record  any  such confession  unless upon questioning the person making it, he has reason to believe that it is being made voluntarily."

     "R.15(3).   Tne confession shall, if it is in writing, be - (a) signed by tha person who makes the confession;  and

     (b) by the police officer who shall also certify under his  own hand that such confession was taken in his presence and  recorded by him and that the record contains a full and true  account of the confession made by the person and .such police  officer  shall make a memorandum at the end  of  the confession to the follHowing effect.’-

     "I  have  explained to (name) that he is not bound  to make a confession and that, if he does so, any confession he may  make may be used as evidence against him and, I believe that this confession was voluntarily made..  lt was taken in my presence and hearing and recorded by me and was read over to  the  person making it and admitted by mm to be  correct, and  it  contains a full and true account of  the  statement made by him.

     Sd/- Police Officer."

     Relying  on sub-rule 2 of Rule 15 it was contended  on behalf  of  the  respondents that:  the  notice  officer  Is required  to explain to the person making confession that he is  not  bound to make it and that if he makes it it can  be used  agsinst  him  as evidence.  The  said  provision  also requires  that  he should question the person making  it  in

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order  to  assure him that he is making it voluntarily.   It was  submitted by Mr.  Kotwal, learned counsel appearing for some  of the respondents that both these things are required to  be  done  ’before  recording’ any  confession.   When  a confession  is recorded in two parts - the preliminary  part containing  record  of  how  and for  what  the  person  was forwarded  and  the  questions and answers put  to  him  for ascertaining  his voluntary willingness to make a confession even  after  being  told  that the confession  may  be  used against  his as evidence and the second part which  contains the  actual  confessional statement  it is the second  part which  has to be regarded the confessional statement and not the  preliminary part.  Therefore, the obligation to explain and  ascertain is to be performed .vhile recording the  real confessional  part and doing so earlier when the preliminary part Is recorded cannot be regarded proper compliance of the requirement of Rule 15 (2).  The police officer must explain and  give the statutory warning before recording the  actual confessional  part  and it is at that point of time that  he has to ascertain by questioning the person making it that he is making the confession voluntarily.  He submitted that the confessional  statements  were recorded in this case in  two parts  and while recording the second part no questions were asked  to the accused to ascertain whether he was making the confession  voluntarily.   He  also   submitted  that  while recording  the  second  part  no Warning was  given  to  the accused  that  he was not bound to make the  confession  and that if he made it, then it can be used against him.

     30.   Neither  Section  15  nor  Rule  15  contemption recording  of confessional statement in two parte or  giving time.   to the person making a confession to think over  and reconsider  whether  he still wants to make it in  spite  of being  told that ha his not bound to make it and that it can be  used  against him.  If in order to be assured  that  the person   concerned  makes  the   confession  willingly   and voluntarily  the  recording officer gives him some  time  to think  over  and  for that reason records  the  confessional statement  in two parts, then they cannot be regarded as two independent  and separate statements.  The second part being in  continuation of the first part both the parts.  have  to be  treated as one confessional statement.  If the recording police  officer  feels  assured after giving  the  statutory warning  that the person who wants’ to make a confession  is doing   so  voluntarily  he  may   not  give  any  time  for reconsideration  and  in that case there would be  only  one continuous statement Therefore, the contention that when the confession  is  recorded  in  two  parts,  only  the  second part-can be regarded as.  the confession and while recording the second part the police officer should give the statutory warning  ana and ascertain if the person concerned is making it  voluntarily, cannot be accepted.  The requirement of law is  that before recording the confession the police  officer should  ascertain  by putting questions to the maker  of  it that  he  is  making the confession voluntarily  and  he  *, should  also explain to him that he is not bound to make the confession  and that if he makes it that can be used against him  as evidence.  In this case DSP Shinde had put questions to  each  of  the  accused who was  brought  before  him  to ascertain if he was willing to make a confession voluntarily and had also given the statutory warning to him on that day. Even  after the accused had shown his willingness to make  a confession  Shinde had given him time not exceeding 48 hours to  think  over his readiness to make the confession.   When the   accused  was  brought  to   him  again  he  had  again

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ascertained  if  he  was still ready and willing to  give  a statement.   He had also asked him if he was making it under any  pressure or coercion or threat.  Only after the  accued had  replied  sn  negative he had told the  accused  to  say whatever  he wanted to state about Suresh Dube’s murder.  In view  of these facts and circumstances it is not possible to uphold the finding recorded by the trial Court and to accept the  contention  raised  on behalf of the  respondents  that while  recording  the confessions of the accused Shinde  had committed a breach of Rule 15(2).

     31.   As regards the breach of Rule 15(3) it has  been held  that  Shinde tdid not write the certificates  and  the memorandums "’’ in the same form and terms as are prescribed by  that rule.  It was submitted by the learned counsel  for the  respondents that the certificates and memorandums  have not  been recorded by Shinde in identical terms and as  Rule 15  is  held mandatory the trial Court was right in  holding them  inadmissible  for non- compliance with that  mandatory requirement.   Therefore,  the question to be considered  is whether  the certificate and ’ memorandum are required to be written  by that rule in the same form and terms.  What Rule 15(3)(b)  requires  is  that  the  police  "  officer-should certify  under  his  own hand that "such  confession’"’  was taken  in.his  presence  end recorded by him  and  that  the record  contains  a full and true account of the  confession made by the’ person".  According to that rule the memorandum should be to the following effect:

     "I  have  explained to (name) that he is not bound  to make  a confession and that;  it he does so, any  confession he  may  make  may  be used as evidence against  him  and  I belleve  that this confession was voluntarily made.  It  was taken  in my presence and hearing and recorded by me and was read  over to the person making it and admitted by him to be correct,  and  it  contains a full and true account  of  the statement made by him."

     Writing  the certificate and making the memorandum are thus  made mandatory to prove that the accused was explained that  he  was not bound to make a confession and that if  he made  it  it can ba used against him as evidence,  that  the confession  was voluntary and that it was taken down by  the police  officer fully and correctly.  These matters are  not left to be proved by oral.  evidence atone.  The requirement of  rule is preparation of contemporaneous record  regarding the  manner  of recording the conf ssion in presence of  the person  making  tt.  Though giving cf the statutory  warning ascertaining voluntariness of the contession and preparation of a contemporaneous record in presence of the person making the  confession are mandatory requirements of that rule,  we see  no  good  reason  why the form and  the  words  of  the certificate  and memorandum should also be held  mendatorry. What are the mandatory requirements of a provision cannot be decided  by overlooking the object of that provision.   They need  not go beyond the purpose sought to be achieved.   The purpose  of the provision is to see that all frmalities  are performed  by the recording off:-:c-’ ^nself and by-  others to  ensure full compliance of the procedure and  seriousness of  recording  a confession.  We fall to appreciate how  any departure  from  the form or the words can adversely  affect the  object  of  the  provision or  the  person  making  the confession so long as the court is able to conclude that the requirements  have  been  substantially complied  with.   No public  .  purpose is likely to be achieved by holding  that

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the  certificate  and memorandum should be in the same  form and  also  in  the  "same  terms are to  be  found  in  Rule l5(3)(b).   We  fail  to  appreciate  how  sanctity  of  the confession  would get adversely affected merely because  the certificate  and  memorandum are not separately written  but are  mixed  up  or  because different  words  conveying  the samething as is required are used by the -recording officer. We  hold  that the trial Court committed an error of law  in holding  that because the certificates and mernorandums  are not  in  the  same form and words they must be  regarded  as inadmissible.   Having gone through the certificates and the memorandums  made  by Shinde at the end of  the  confessions what  we find Is that he had mixed up what is retired .to be stated  in the certificate and what is required to be stated in   the  memorandum.   He  has   stated  in  each  of   the certificates  and  the memorandums that he  had  ascertained that  the  accused was making the confession  willingly  and voluntarily and that he was under no pressure or enticement. It  is  further  stated  therein that he  had  recorded  the confession  in  his own hand-writing (except in case of  A-7 whose  confession  was recorded with the help of a  writer). He  has  also stated that it was recorded as per the say  of the   accused,  that  it  was   read  over  to  the  accused completely, that the accused had personally read it, that he had  ascertained thereafter that it was recorded as per  his say  and  that the confession was taken in his presence  and recorded  by  him.  It is true that he has not  specifically stated  therein  that the record contains ’a full  and  true account  of the confession made’.  The very fact that he had recorded  the confession in his own hand-writing would imply that  it  was recorded in his presence and was  recorded  by him.   So  also  when  he stated  in  the  certificates  and memorandums  that the confession was recorded as per the say of the accused, that it was read over to him fully, that the accused  himself  personally  read  it   and  that  he   had ascertained  that ’t was recorded as per his say that  would mean  that  it  contains  ’a full and true  account  of  the confession’  and  that  the contents were  admitted  by  the accused.   Thus,  while  writing  the  certificats  and  the memorandum what Shinde has done is to mix up the two and use his own words to state what he had done.  Only thing that we find  missing  therein is a statement to the effect that  he had explained to the accused that he was not bound to make a confession  and  that if he did so the confession  might  be used  as evidence against him.  Such a statement instead  of appearing  at  the end of the confession in  the  memorandum appears  in  the  earlier  part of  the  confession  in  the question  and  answer form.  Each of the accused making  the confession  was  explained about his right not to  make  the confession  and the danger of its being used against him  as evidence.   That  statement  appears  In  the  body  of  the confession  but not at the end of it.  Can the confession be regarded  as  not in-conformity with Rule 15(3)(b) only  for that  reason?  We find no good reason to hoid like that.  We hold  that  the triat Court was wrong in holding that  there was  a breach of Rule 15(3) and, therefore, the  confessions were inadmissible and bad.  ,-.  - /..

     32.   It  was next submiittsd that though Section  164 Cr.P.C.   does  not strictly apply to  confessions  recorded under  Section  15 of 7.^^ A"t, the provisions contained  in Section  15(2) of TADA Act and 162 (2) and 164(4} of Cr.P.C. are  similar  and that would imply that the requirements  of law  regarding the procedure for recording a confession  are the same.  Both the provisions require that before recording

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confessions the accused must be told that he is not bound to make  a  confession and that if he makes it then it  can  be used  as  .., evidence against him.  Both  these  provisions require   that  before  ,-   recording  the  confession  the recording  officer has to question ..  the accused in  order to  satisfy  himself  that  he   is  making  the  confession voluntarily  and  after recording it to issue a  certificate and  memorandum to the effect that the accused was explained about his right to be informed that he was not bound to make -;:’  -;K.  --q..-.-, --  - P^^ the confession and that it could  be  used  against  him, that  he  believed  that  the confession  was made voluntarily, that it was , taken  down in  his  presence  and  was read over to him,  that  it  was admitted  as correct by him and that it contains a full  and true  account of the statement made him.  It was, therefore, submitted  that the guidelines issued by the High Court  for recording  a confession under Section 164 Cr.P.C.  are  also required  to  be followed by the police officer recording  a confession  under  the TADA Act.  Otherwise a situation  may arise  where in the same trial there may be a confession  of an  accused  recorder by a Magistrate without following  the guidellnes  contained  in  the  High’  Court  Manual  and  a confession  made by another accused and recorded by a police officer  under  the  TADA  Act who has  not  followed  these guidelines  while the one recorded by the Magistrate may not bs  recorded  as evidence the ’other one will be treated  as evidence  and can be used against him.  in the aliternative, it was submitted that even if it is held that the guidelines issued  under Section 164 Cr.P.C.  by the High Court are not ’required  to  ba  followed  while  recording  a  confession undersection  15  of TADA Act at least the  well  recognised principles  pointed out by this Court in Kartar Singh’s case (supra)  are  required to be followed.  The said  guidelines have  been  suggested  by  this  Court  as  well  recognised principles  of  fairness to be followed to ensure  that  the confession obtained in the pre-indictment interrogation by a police  ’officer not lower in rank than a Superintendent  of Police is not’ tainted with any vice.  What is missed by the learned  counsel is that while recommending those guidelines it  was  made clear by this Court that it is really for  the Court  trying  the  offence  to   decide  the  question   of admissibllity  or  reliability of a confession by Using  its judicial  wisdom,  from what has been observed in the  said’ decision it does not follow that if the suggested guidelines are  not  followed then the confession must be discarded  as inadmissible  or bad on that score or on the ground that  it Is  not in confirmity with Section 15(2) of the TADA Act and Rule  15 of the TADA Rules.  The police officer recording  a confession under Secion 15 is really pot bound to follow any other  procedure.  The rules or the guidelines framed by the Bombay High Court for recording a confession by a Magistrate under  Section  164 Cr.P.C.  do not by themselves  apply  to recording  of a confession under Section 15 of the TADA Act. Therefore  merely because some of those guidelines were  not followed  while recording the confessions it cannot for that reason  be  held that the said confessions have  lost  their evidentiary  value.   If  while  recording  the  confessions Shinde  had  followed  all those guidelines also  then  that would  have been a circumstance helpful in infering that the confessions   were  made  after   full   understanding   and voluntarily.   In  this case there is nothing on  record  to show, except that the confessions were recorded by Shinde in police  station,  that  they  were   not  recorded  in  free atmosphere.   No other person was allowed to remain  present at  that  time  and  ail the accussed  were  given  time  to

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reconsider  their  willingness.   After they  were  produced again Shinde had ascertained whether they were still willing to  make confessions.  All- the accused were previously toid that  they were not bound to make a confession.  Each one of them  was warned that if he made a confession then it  could be used against him.

     33.   ’ Shinde had tried to ascertain if any threat or inducement  was  given  to  them or whether  they  were  ill treated  or pressurized.  Alt the accused had  categorically stated  that  no such thing had happened.  From the  answers given  by  the accused it can be said that Shinde  had  good reason   to  believe  that  the   accused  were   ,   making confessional  statements voluntarily.  In his evidence  also he  has  stated so and nothing has been brought out  in  his cross  examination from which It can be said that he was not so  satisfied  or  that he did not really believe  that  the confessions  were  made by the accused  voluntarily.   The.. learned trial Judge held the confessions not voluntary as he was  of  the  view that A-l to A-8 and  A-ll  were  hardened criminals and it was not believabla that they would have one after   the   other  shown   their  willingness,   to   make confessions.   It was not even the case of the accused  that they  *   ,  were nottaken to Shinde for  recording  their confessions.   The  only  suggestion that was  made  in  his cross-examination was that he had obtained those confessions after  exerting influence, coercion and physical and  mental torture.   We  have  already  pointed out  earlier  that  in absence  of any specific act suggested by the defence it  Is not  possible to accept the belated allegation made by those accused that their confessions were obtained In that manner. On  careful consideration of the evidence of PI Deshmukh and DSP  Shinde,  we find that all those accused had made  their confessions  voluntarily.   The   confessions  also  receive independent  corroboration  on  material   points  from  the evidence of the two eye-witnesses and also from the evidence of  P.Ws.   I  to 5.  We have, therefore, no  hesitation  in holding  that they are true and reliable and can form a iafe basis  for conviction of those respondents/accused who  have admitted  to have taken part in the murder of Suresh and  in commission of terrorist acts.

     34.   A-1 in his confession (Exts.  571 and 571-A) has admitted  that  he was a member of the gang of Manik  Patil. He has further admitted therein that Manik Patil and his men were  entrusted  by Bhai Thakur the job of finishing  Suresh and  because  they  had not done their  work  quickly,  Bhai Thakur was angry with them.  So they were keeping a watch on Suresh  Dube and on the day of the incident he was  informed by one Kalidas Patil that Suresh was on platform No.  2.  He immediately  loaded his pistol and along with A-2 to A-5 and Narain  Gouda went to the railway station.  Suresh was  seen reading  a  newspaper  and  another   person  with  Him  was ’standing nearby and getting his shoes polished.  He crossed him  and  went ahead and also did Namaskar.  As  there  were many  persons  near the book-stall at that point of time  he went  ahead  on  the platform and again returned  near  that book-stall.  He then took out the pistol from his pocket and fired  seven  shots  at Suresh.  He has also stated  in  his confession how he and others thereafter ran away and what he and  others  did  thereafter.   A-2, A-3 and  A-4  in  their confessional statements (Exts.  578 and 578-A, 563 and 563-A and  584 and 584-A respectively) have also stated that Manik Seth  had  given  Instructions to Narendra (A-l)  to  finish Suresh  and  they were told to accompany  Narendra  whenever

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Narendra  called them for help.  They have admitted that  on being  told by A-l that "Suresh Dube has come at  Nalasopara railway  station.  Let us all go", they went to the  railway platform along with A-l.  They have all stated that Narendra fired  shots and after Suresh had collapsed on the  platform they  had run away.  A-5 has also admitted in his confession that  he had gone to the railway platform running aiong with A-l  to help him as decided earlier All of them have clearly admitted  that  the  murder  of   Suresh  was  committed  on instructions of Manik Patil (A-6) and Bhai Thakur.  A-6 also confessed  that  he was the leader of the gang and  that  as decided  by  Bhaii Thakur, Don (Pendari) was to finished  by the  men  of  Bhai  Thakur and they  were  to  finish  Dube. Therefore,  A-l  and  his  boys were keeping  a  watch  upon movements  of Suresh and he had instructed A-l and his  boys to   finish  Suresh  as  soon  as  possible.   So   far   as participation  of  A-l  to A-4 in the murder  of  Suresh  is concerned the confessions stand corroborated by the evidence of  the  two eye-witnesses.  The confessions of A-5 and  A-6 being  substantive  evidence are sufficient for  considering them   and   they  also   receive  corroboration  from   the confessions  of  A-l  to  A-4   and  also  receive   genera’ corroboration  as  regards  the   other  illegai  activities committed  by  them from the evidence of P.Ws.  I to  5  and those  withness  examined by the prosecution to  prove  that they  were  the  victims  of  some  of  the  terrorist  acts committed  by  Thakur and Manik Patil.   Therefore,  relying upon  the .<-..^’on of A-l to A-6 and the evidence of  the two  any  witnesses  Amanath and 0m Prakash,  we  hold  that Suresh  was  k’illed by A-1.˜-flring shots from his  pi’stol and-  that  was  done in prosecution of the  object  of  the larger  conspiracy  hatched by Bhai Thakur, Manik Patii  and some  members  of  their  gangs and  the  unlawful  assembly consisting  of  A-l to A-6 and some others.  We,  therefore, hold  A-l  gulity under Section 302 I.P.C.  and A-2  to  A-6 under  Section  302 read with Sections 120 B and 149  I.P.C. We  may  state that the finding recorded by tha trial  Court that  the death of Suresh was homicidal and that he died  of the  injuries caused to him by the bullets with which he was hit has not been questioned before us.

     35.   To  prove  the terrorist acts committed  by  the gangs  of  Bhai Tnakui and Manik Patil, the prosecution  had examined  some police officers and some others who were  the victims of the to rorist acts.  The police officers examined by the prosecution were PI Tadavi (P.W.68), ASI Paradkar (P. W.   6Q), PSI Ram Krishna (P.W.70), SDPO Deshmukh  (P.W.71), DIG  Suradaka’-  (P.W.75}.   DGP Baraokar (P.W.77)  and  ACP Vasant Pagare (P.W.90).  PI Tadavi (P.W.68) was attached «-o the Virar police station between 9.4.1985 and 24.1.1986.  He has  deposed that during that period he had found the  three gangs  operating in the area under the police station.  They were  the  gangs  "of Bhal Thakur.  Nizam  and  Karu.   Bhai Thakur’s  gang  was and stay with PI Kukdolkar and  both  of them  used  to  car Prashant Tandel (A-8) to see  them.   He admitted  that  he had not taken any, action against-any  of these  gangs nor he had suspected anything wrong or improper because  of those meetings.  He denied that he was  deposing falsely  against  the accused at the instance  of  Deshmukh. Ram  Krishna Rengunthawar (P.W.70) was a senior PSI of Virar police station from, 17.5.1981 to 15.8.1982.  He has deposed that  during  that period he had registered  three  offences against  Bhai  Thakur.   ’ In 1984 he was  attached  to  CID Crime.   Out of those three cases two cases were transferred to  CID  branch  and  in the third  case  the  accused  were

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acquitted.   He  stated  that  the   said  two  cases   were compounded  out  of  fear.  But he admitted  in  his  cross- examination  that  he had not made any report to any  higher officer  in that behalf.  Deshmukh (P.W.71) was the SDPO  of the  Western Railway between 1.3.1992 and 30.6.1993.  He had no persona’ knowledge with respect to the illegal activities of the two gangs of Bhai Thakur and Manik Patil.  But during the  investigation made between 18.5.1992 and 23.9.1992  and also  thereafter  he  had come to know about  their  illegal activities  and the terror created by them in the area.   He admitted that he had not recived any complaint against thoso two gangs for forcibly

     36.   The  prosecution also examined  Pushpa  Pendhari (P.W.19),   Balram   (P.W.34),   Kanhaya  (P.W.35),   Jaffar (P.VV.40),’  Waman  (P.W.41), Sakharam  (P.W.42),  Jsjannath (P.W.   45),  Subhash (P.W.67) and Naaz (P.W .97)  to  prove that  the gangs of Bhai Thakur and Manik Patil were  engaged in  committing terrorist acts.  Out of these witnesses P.Ws. 34,  41,  42  and  4^  have not  referred  to  any  specific terrorist  act  committed  by those two gangs.   P.W.97  has deposad  about an incident which is beyond the charge period and,  therefore, her evidence was rightly not considered  by the  trial Court.  P.W.19 has deposed about some acts of the gangs  of  Bhai Thakur and Kanik Patil, the rivalry  between Bharat Pendhari and those two gangs and the murder of Bharat Pendhari  on  14.9.1989  but they at the most  suggest  that there  were gang wars.  P.W.25 has deposed that his property was  demanded  and threats were given to him by Bhai  Thakur and therefore he had to leave Virar.  P.W.26 has also stated that he was required to sell his land because of threats and terror  of  Bhai Thakur.  P.W.35 was staying in Virar  since 1966.   He  has deposed that he was assaulted by the men  of Bhai  Thakur >n 1984 and, therefore, he shifted to Vasai  in January  1985 and for some time had gone to his native place in  U.P.  What was submitted by the learned counsel for  the respondents was that the evidence of these witnesses even if it  is  believed  it  proves   commission  of  illegsl  acts involving   Violence  but  fails   short   of   constituting ’terrorist  acts’  as contempiated by Section 3 of the  TADA Act.   It  is  no  doubt true that  the  evidence  of  these witnesses,  except  that of P.W.19, is not specific  and  by itself  may not be regarded as sufficient to prove terrorist acts  but  they  provide  sufficient  corroboration  to  the admissions  made  by  A-1  to   A-6  in  their  confessional statements  that  the gangs of Bhai Thakur and  Manik  Patil had  created  terror in the areas of their  operation.   We, therefore,  see no reason why relying upon those confessions and  the  evidence of these witnesses a finding that A-1  to A-6  were  engaged in committing terrorist acts,  cannot  be recorded.   A-7  has  not  confessed   in  clear  terms  his involvement in commission of terrorist acts or in the murder of  Suresh.   A-8  and A-11 have also not admitted  to  have played  any role in the murder of Suresh or in commission of terrorist  acts by Bhai Thakur and Manik Patil, though  both these  accused  have generally stated in their  confessional statements  about the illegal activities committed by  those two  gangs.   We,  therefore, hold A-1 to A-6  guilty  under Section 3 (3) of the TADA Act also.

     37.   The  charge against the police officers A-14  to A-17 was that as a part of the criminal conspiracy with Bhai Thakur  and his men, they had caused evidence of  commission of   the  offence  to  disappear   and  by  that   dishonest investigation  have tried to screen the real offenders  from

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legal  punishment  and thereby they have committed  offences punishable  under Sections 201, 217 and 218 read with  120-B I.P.C.   They  are also charged for the offences  punishable under Sections 3(3) and 3(4) of the TADA Act read with 120-B I.P.C.  Except the confessional statements of the co-accused there  is  no  other  independent   evidence  to  show   the involvement  of A-14 to A-17 as alleged.  The confessions no doubt  create  a  strong suspicion that A-14  to  A-17  were maintaining   good  relations  with   Bhai  Thakur  and  A-8 (Prashant) and that they had possibly helped Bhai Thakur and Manik Patil in screening the real offenders.  The role which they  played  creates  a strong  suspicion  regarding  their connection  with  the gangs of Bhai Thakur and Manik  Patil. However, we do not think it safe to convict them only on the basis oft theConfessions of the co-accused.  ’

     38.   In the result, these appeals are partly allowed. The  Judgment  and  the  order of acquittal  passed  by  the learned  Judge, Dasignsted Court, Pune in Terrorist Sessions Case  No.   32 of 1993 in favour of respondent Nos.  I to  6 (A-1  to A-6) are set aside, Respondent NO.  I Narendm Bhoir is  convicted  under  Section -02 I.P.C.  and  santencad  to suffer  imprisonment  for life.  He is also cenvicted  under Section  25(l)(a) of the Arms Act.  and sentenced to  suffer rigorous imprisonment for six months.  Respondent Nos.  2 to 6  are  convicted under Section 302 read with Section  120-B and Section 149 I.P.C.  and sentenced to suffer imprisonment for  life.  Respondent Nos.  I to 6 are also convicted under Section  3(3)  of  the  TADA Act  and  sentenced  to  suffer imprisonment  for  10 years.  All of them are  acquitted  of other charges.  Acquittal of the rest of the respondents 1s- confirmed andappeals against them.  ace dismissed.