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PETITIONER: SURESH BUDHARMAL KALANI @ {A[[I LA;AMO

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       15/09/1998

BENCH: M.K.MUKHERJEE, SYED SHAH MOHAMMED QUADRI

ACT:

HEADNOTE:

JUDGMENT:  JUDGMENT M.K.Mumherjee. J. Leave granted in both the petitions. 2.Suresh Budharmal Kalani @ Puppu Kalani and Dr.  Aken Kumar  Gajendra  Rai  Desai,  the  appellants  in  these two appeals, figure as accused (besides others) in TADA  Special Case  No.  31  of 1993, pending before the Designated Court, Brihan  Mumbai  constituted   under   The   Terrorists   and Disruptive  Activities  (P)  Act, 1987 (TADA for short). The case arises out of an incident of rioting, murder and  other cognate  offences  that  took place on September 12, 1992 at J.J. Hospital, Bombay. According to the prosecution case, on that day at or about 3.45 P.M. a group of persons armed with automatic fire arms, such as pistols, AK 47 assault  rifles, stormed into  Ward  No.   18 of the hospital and opened fire upon Shailesh Haldankar, who was an  accused  in  Crime  No. 542/92  of V.P.Road Police Station and admitted there due to injuries earlier sustained. The indiscriminate firing by the miscreants resulted  in  the  death  of  Haldankar  and  two policemen  on  guard  duty and injuries to five others. Shri K.G.Thakur, Sub-Inspector of  police  attached  to  V.P.Road Police  Station,  who  was  then  on  duty  at  the hospital returned the fire causing injuries to some of the miscreants including  one  Shrikant  Rai  @  Pradhan.  The  miscreants, however,  managed  to  escape carrying with them the injured associates in a car. It is the further prosecution case that the incident was the outcome  of  a  conspiracy  hatched  by Dawood  Ibrahim, a notorious gangster, and his men to avenge the murder of his brother-in-law, Ibrahim Ismail Parkar, who was eliminated by the members of his rival gang led by  Arun Gowli of which Haldankar was a member.  3.Over the incident, a case was registered on a report lodged  by  Shri  Thakur and on completion of investigation, charge sheet was submitted by  the  police  after  obtaining requisite sanction under Section 20A(2) of TADA to prosecute the  appellants  and others. On that charge sheet cognizance was taken by the Designated Court; and on  consideration  of the documents referred to under Section 173 (2) Cr.P.C. and, after  hearing  the  parties,  it  passed orders for framing charges under Section 3 (3) of TADA and 120B I>P>C>  against

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Kalani  and  under  Section  3  (4)  of  TADA and 212 I.P.C. against  Dr.  Desai.  Assailing  the   above   orders,   the appellants have filed these appeals. 4.The gravamen of the charges  to  be  framed  against Kalani  is  that  he hatched a criminal conspiracy to murder Haldankar and thereby abetted the commission of his  murder. The  above  accusation  is  based on the following facts and circumstances :- i)a meeting was held on September 2, 1992 in a holiday resort belonging  to  Kalani  where  the  decision  to  kill Haldankar was taken; ii)soon  after the murder, Kalani had a telephonic talk with one of the accused persons regarding the arrangement to be made to remove injured Shrikant Rai in his car; and iii)on September 13, 1992,  Kalani  threatened  Jayawant Suryarao, (one of the accused) that in case he disclosed the removal  of  Shrikant  Rai  in his (Kalani’s) car he and his family members would be liquidated. To prove the  above  facts  and  circumstances,  the prosecution seeks to rely upon:- i)the evidence of Smt. Priti, wife of accused Jayawant Suryarao, and Shri Himmat Rawal; ii)confessional statement of Dr. Bansal; and iii)confessional statement of Jayawant Suryarao; respectively. 5.On perusal of the statements of the above  mentioned two witnesses recorded  under Section 161 Cr.  P.C.  we find that they did not speak of any conspiracy, much  less  of  a conspiracy to   commit   the  murder  in  question.    Their statements only disclose that on September  2,  1992  Kalani had  a meeting with accused Jayawant Suryarao, the President of Bhiwandi Nizampura Municipal Council, and others  in  his holiday  resort  over  a no confidence motion that was to be brought against the latter.  It is pertinent to mention here that it is not the  prosecution  case  that  the  murder  of Haldankar  was  even  remotely  connected  with the above no confidence motion.  On the contrary, as noticed earlier,  it is  its  positive  case that the murder was the outcome of a gang rivalry.  From the impugned  order  we  find  that  the Designated  Court,  after having held that the discussion in the meeting was only over the no confidence motion  observed ’that  there  is  every possibility that they also must have discussed  the  planning  above  the  killing  of   Shailesh Haldankar’.   The  above  observation  is  to say the least, wholly unjustified.  A presumption can be  drawn  only  from facts  -  and  not from other presumptions - by a process of probable and logical reasoning.  The Designated Court  could not  have,  there ore, drawn the presumption of a conspiracy to kill Haldankar as the statements of the two witnesses  do not  afford,  by  any stretch of imagination, any foundation for the same.  6.Thus  said,  we  may  turn  our  attention  to   the confession  made  by Dr. Bansal and Jayawant Suryarao. Under Section 30 of the Evidence Act a confession of an accused is relevant and admissible against a  co-accused  if  both  are jointly facing trial for the same offence. Since, admittedly Dr.  Bansal  has been discharged from the case and would not be facing trial with Kalani his confession  cannot  be  used against Kalani. The impugned order shows that the Designated Court  was  fully  aware  of  the  above legal position but, surprisingly enough, it  still  decided  to  rely  upon  the confession  on  the specious ground that the prosecution was not in any way precluded from  examining  Dr.  Bansal  as  a witness in the trial for establishing the facts disclosed in his  confession.  This again, was a perverse approach of the

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Designated Court while dealing with the question of  farming charges.  At that stage the court is required to confine its attention  to  only   those   materials   collected   during investigation  which can be legally translated into evidence and not upon further evidence (dehors those materials)  that the  prosecution  may,  adduce  in  the  trial,  which would commence only after the charges are framed and  the  accused denies  the charges. The Designated Court was, therefore not at  all  justified  in   taking   into   consideration   the confessional  statement  of  Dr.  Bansal for framing charges against Kalani. 7.So far as the confession  of  Jayawant  Suryarao  is concerned,  the same (if voluntary and true) can undoubtedly be brought on record under Section 30 of the Evidence Act to use it also against Kalani but then  the  question  is  what would  be  its  evidentiary  value  against  the latter. The question was succinctly answered by this Court  in  Kashmira Singh  V.  State  of  Madhya Pradesh (1952 SCR 526) with the following words :            "The proper way to approach a case of this kind is            first, to marshal the evidence against the accused            excluding   the   confession    altogether    from            consideration  and see whether, if it is believed,            a conviction could safely be based on it. If it is            capable of belief independently of the confession,            then of course it is not  necessary  to  call  the            confession  in  aid. But cases may arise where the            judge is not prepared to act on the other evidence            as it sands even though if believed, it  would  be            sufficient  to  sustain  a  conviction. In aid the            confession and use it to  lend  assurance  to  the            other   evidence   and  thus  fortify  himself  in            believing what without the aid of  the  confession            he would not be prepared to accept." The  view so expressed has been consistently followed by this Court. Judged  in  the  light  of  the  above  principle  the confession  of Suryarao cannot called in aid to frame charges against Kalani in absence of any other evidence to do so. 8.That brings  us  to the case of Dr.  Desai, the other appellant.  According to the  prosecution  case  the  injured accused Shrikant  Rai was taken to the house of Dr.  Desai by Shanti Lal Patil, Jagdish Chand and Hasmukh  Bhai,  three  of the accused persons,  for  treatment.    They told Dr.  Desai that he (Shrikant) had sustained bullet injury in the stomach due to accidental firing from the licensed revolver of Shanti Lal.  Dr.  Desai told them that  the  injured  could  not  be admitted  in  a  Government hospital as it was a medico-legal case.  They however, insisted that Shrikant should be treated in a private hospital and all expenses thereof would be  paid by them.  Dr.    Desai  then  contacted  one Dr.  Kamble over phone  and  requested  him  to  operate  upon  the   patient. Accordingly,  Shrikant  was  taken by the above three accused persons to Dr.    Kamble  who  operated  upon   him.      The prosecution  alleges  that  knowing  full  well that it was a medicolegal case Dr.  Desai entertained Shrikant and arranged for his operation by Dr.  Kamble at his private hospital  and thereby helped Shrikant to abscond after he recuperated.  9.To  prove  the above accusation and, for that matter, to substantiate the charges under Sections 3(4) of  TADA  and 212  I.P.C.  to  be framed against Dr. Desai, the prosecution intends to rely lupon the alleged confessional  statement  of Dr.  Desai  himself  and  three of the co-accused, namely Dr. Kamble, Jagdish Chand and Hasmukh Bhai. The relevant  portion of the statement of Dr. Desai reads as under :            "On 12.9.1992  at about II p.m.  Jagdish along with

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          one person, whom he introduced  to  me  as  Hasmukh            Patel,  Sarpanch  of Dumas, called at my residence.            Jagdish informed me that  Hasmukh’s  elder  brother            owns  a  from  at Silvasa and he is also a building            contractor.  Jagdish further informed  me  that  on            the  same  evening  they  had  a  party on the farm            house, when accidently a shot was  fired  from  the            weapon  and  one  of  them  was  injured and he may            require an operation.  He further told me that they            tried to contract a surgeon at Silvasa, but he  was            not  available and they are bringing the injured to            Surat for treatment and requested me to help  them.            I  suggested to them to get the injured admitted in            Govt.  Hospital, Surat, when Jagdish told  me  that            those  people wanted the injured to be treated in a            private  hospital  and  were  willing  to  pay  any            charges for  the  treatment.   Jagdish also told me            that they were prepared for the worst.  I also came            to know through Jagdish that  the  injured  had  an            jinury over  the  abdomen.  At about 12 midnight on            12.9.92, I contacted Dr.  Kamble that the party was            ready to pay any charges, as he  thought  fit,  for            the operation.   I  also  told Dr.  Kamble that the            patient was not before me and enquired  whether  he            was ready  to operate such a case.  For a while Dr.            Kamble thought about it and asked me  to  send  the            patient to his  hospital  at Gopipura.  Dr.  Kamble            then informed me that he would intimate  his  staff            at  the  hospital  about the arrival of the injured            and ask them to be ready.  I then informed  Jagdish            to take  the  injured  to  Dr.   Kamble’s hospital.            Thereafter, Jagdish and Hasmukh went away." 10A  bare  perusal  of  the  above  statement  makes  it abundantly  clear  that  it  is  self  exculpatory  and  hence inadmissible in evidence as ’ confession’.  Once  it  is  left out  of  consideration  -  as  it should be - the confessional statements of the other  three  accused,  for  what  they  are worth,  cannot  be  made - in absence of any other material to connect Dr.  Desai with the accusation levelled against him  a basis  for  impugned  charges  in view of the law laid down in Kashmira singh (supra). 11.On the conclusion as above, we allow these appeals and quash  the charges framed against the two appellants. They are discharged from their respective bail bonds.