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PETITIONER: THE STATE OF GUJARAT

       Vs.

RESPONDENT: ANIRUDHSING & ANR.

DATE OF JUDGMENT:       10/07/1997

BENCH: K. RAMASWAMY, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                  THE 10TH DAY OF JULY, 1997 Present:               Hon’ble Mr. Justice K. Ramaswamy               Hon’ble Mr. Justice D.P. Wadhwa B.V.Desai, Mrs.  H. Wahi  and Ms. S. Hazarika, Advs. for the appellant Sushil Kumar,  Sr. Adv.,  Deepak  H.  Raval,  Shailendra  N. Singh, Ms.  Neelam Kalsi  and Vimal Dave, Advs. with him for the Respondents.                          O R D E R      The following Order of the court was delivered:                             WITH               CRIMINAL APPEAL NO. 1919 OF 1996                          O R D E R      Delay condoned.      Leave granted.      Every criminal  trial is a voyage in quest of truth for public justice  to punish  the  guilty  and  restore  peace, stability and  order in  the Society.  Every citizen who has knowledge of  the commission  of cognizable offence has duty to lay  information before the police and cooperate with the investigating officer  who enjoined  to collect the evidence and if  necessary summon  the witnesses to give evidence. He is further  enjoined to  adopt scientific and all fair means to unearth the real offender, lay the chargesheet before the court competent  to take  cognizance  of  the  offence.  The chargesheet needs  to contain  the  facts  constituting  the offence’s charged. The accused is entitled to as fair trial. Every citizen who assists the investigation is further duty- bound to  appear before  the court  of session  or competent criminal court,  tender his  ocular evidence  as dutiful and truthful citizen  to unfold the prosecution case as given in his statement.  Any betrayal  in that  behalf is  a step  to testability social peace. order and progress.      Popatbhai, a sitting Member of Legislative Assembly was done to  death in  the  public  gaze  when  full  ceremonial Independence  Day   function  was  in  progress.  The  Chief dignitary of  the  event,  the  Deputy  Collector  and  Sub- Divisional Magistrate,  Mr. J.P. Dave who was sitting beside the  deceased,  witnessed  the  occurrence  of  shooting  of

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deceased, witnessed  the occurrence  of shooting of deceased from behind;  however, when  culprit was caught, it would be obvious that  he saw  him, yet  he has turned hostile to the prosecution and  even refused  to identify the respondent in the Court sabotaging the prosecution case. Thus, he betrayed his duty as a reasonable officer and as a worthy citizen and has  denied   himself  to   hold  an  office  of  trust  and responsibility. His  own unworthiness  is writ  large in the present case.  Similar is  the  case  of  many  a  dignitary including the  Mamlatdar, PW-36  , a  leading private doctor and Chief  officer of  the municipality and a host of others numbering 45  in all.  It would  speak volumes  of  unworthy conduct forsaking  their responsibility  as dutiful citizens driving the prosecution to fall back upon the circumstantial evidence.      Mr. Jhala,  the Assistant  Commandant, Special Reserved Police, PW-4  and I.B.  Shekhawat, PW-58  another officer on duty  from   the  same   force,  displayed  high  degree  of responsibility, courage  and sense  of duty in assistance of the prosecution  by swinging  into action  immediately. PW-4 caught the culprit; PW-58 secured the weapon of the offence, lodged the  FIR and  handed over  the accused and the weapon with material  particulars mentioned  in that  behalf in the Fir to  the Station  House Officer.  Everyone needs  to take leaf out  of their books of service. It is seen that in some cases of  recent origin  terror by  the accused  or  at  his behest, has  instilled in  the mind  of the  weightiness the instinct of  self-preservation and  inclined them  to  avoid their extermination  or reprisal.  The state  should  extend protection to  them. this  case is a classic illustration of how the  prosecution case  gets sabotaged  by  the  material witnesses turning  hostile and  creating a  disbelief in the efficacy of  criminal  justice  system  which  needs  urgent attention and appropriate remedial action on the part of the legislature and the executive, in that behalf.      This appeal  under Section  25  of  the  Terrorist  and Disruptive Activities  (Prevention) Act,  1987) (for  short, the "TADA  ACT" )  arises out  of a  charge laid against two accused, namely,  Anirudhsing Mahipat Singh Jadeja, resident of Rabidly  Ta.  Gondal  District,  Rajkot  (for  the  short "Accused  No.   1"  )  and  Nilesh  Kumar  @  Limbabhai  s/o Mansukhlal under  Sections 3  and 5 of the TADA Act, section 114 of  the Indian  Penal Code (IPC) for causing terror; for having in  possession unauthorised fire arms and for causing death of  Popatbhai Lakhabhai  Sorathiya, sitting  M.L.A. of Gondal  Constituency   (for  short,   the  "deceased").  The Designated  Court  acquitted  the  respondents  of  all  the charges in  Sessions case No. 23 of 1989 through the special Judge , Rajkot appointed under TADA Act.      The substratum  of the  prosecution  case  against  the respondents was  that on  August 15,  1988, in Sagramsinghji High School, Gondal, flag hoisting ceremony (State function) was performed  by PW  - 38,  J.P. Dave, the Deputy Collector and sub-Divisional  Magistrate, Gondal; when distribution of the prizes  was about  to conclude,  suddenly at  about 9.30 a.m. a  sound of  cracker was heard from behind the deceased who was  siting next  to J.P.  Dave. People  got panicky and started running helter-skelter. PW-4 who was sitting left to the deceased  got up  on the chair and looked around and saw the Accused  No. 1   attempting  to run away. He jumped over the chair  and caught  him. PW-58,  I.B. Shekhawat  saw that some arm  wrapped in  handkerchief was  thrown over his head from behind.  He ran  into that direction and caught hold of it;  he  found  it  to  be  a  pistol.  he  took  them  into possession, By  the time,  he came  back, Jhala  handed over

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Accused No.1 to Shekhawat and asked him and A.N. Tiwari, PW- 46 PSI  to go  to the  police station, lodge a complaint and hand over  Accused No.1  and the  pistol (Ex.  1-4)  to  the police. since the deceased had fallen by the side with blood profusing from  his head,  he was  taken to  Rajkot Hospital where he  succumbed due to the head injury, later in the day Shekhawat, PW-58  went to  the police  station at about 9.55 a.m. and lodged the FIR, Ex-301/1. Therein, the had narrated thus:      "I was  present with  may SRP Group      along     with      officers     at      Sangramsingji High Saheb, Mamlatdar      Saheb and  other important  persons      were  present.  During  Jhalasaheb,      Dy.  S.P.   etc.  were   Government      officials,   After    the    parade      programme for  school was  going on      when bursting of a fir cracker from      behind  at  where  we  have  seated      which was  believed  to  have  been      done by  boys from  behind. But  on      people  running   helter,  skelter,      during that  I felt some arm thrown      or my  head, i  want towards  and a      handkerchief with  it. That  pistol      was loaded  and trigger  was raised      which  I  immediately  took  in  my      possession and  other officers  who      were there  apprehended one  person      who  were   there  apprehended  one      person who  had thrown  this pistol      and who when asked his name replied      that    he     was     Anirudhsingh      Mahipatsingh Jadeja  of Ribada.  At      this time, Popatbhai Sorathyiya was      bleeding from his head, immediately      he was  laid in  Jeep and  sent  to      hospital. I and other officers have      brought  this  Anirudhsing  to  the      police  Station  at  this  time  an      produce a  loaded pistol with this.      with me  are A.M.  Tiwari  of  SRP,      R.S. Sharma  , and  the  driver  of      Government Jeep  9929,  hence  this      complaint to do as per law."      This first  information  report  was  received  by  the Magistrate at  12.15 p.m.  on the same day. Rawat the senior Inspector had  initiated the  investigation  and  at  around 12.30 p.m.  Bhattacharya, DIG  had arrived  at the scene and took over  the investigation  and recorded the statements of the witnesses, conducted the investigation and then laid the charge sheet  against the  respondents for  the charge sheet against  the   respondents  for   the  charges  referred  to hereinbefore. At the  trial, many witnesses were examined of which 45 witnesses turned hostile including J.P. Dave; Chief Officer of  the  Municipality,  D.P.  Taraiya,  PW-40;  V.P. Sojitra, PW-37, local leading doctor, the Mamlatdar etc. The trial Court  found that  there is no direct evidence adduced inculpating   the    respondents   into   the   crime.   The circumstantial evidence  adduced by  the prosecution  is  as under:      "  The   extra-judicial  confession      made by Accused No. 1 to Jhala, PW-      4; S.R.P.;  apprehending of Accused      NO.1 on  the spot;  recovery of the

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    firearm    (Ex.A-1)     and     the      handkerchief  (Ex-18)   thrown   by      Accused No.  1 the  homicidal death      of the  deceased due  to the firing      of the  of the  fire arm behind his      head."      The  Designated  Court  after  considering  the  entire evidence reach the conclusion that: 1.   the  prosecution  has  totally  failed  to  prove  that      Accused No.  1 was  present at  the place  of incidence      with the pistol: 2.   the prosecution  has failed to prove that Accused No. 1      had thrown  the muddammal  pistol and handkerchief from      the left  back side  of  the  sitting  eminent  persons      immediately after the incidence: 3.   the prosecution  has failed  to prove  as  to  at  what      distance Accused  No.1 was  standing from  the chair of      the deceased; 4.   the  prosecution   has  also   failed  to  produce  any      circumstantial evidence  regarding Accused  No.1 firing      at the decease.      The learned Judge observed thus;      "In my opinion, the prosecution has      failed  to   produce  any   legally      believable circumstantial  evidence      so as  to connect  the accuse No.1.      with the crime."      Thus, he has given the benefit of doubt to the accused. Thus, this appeal.      The question,  therefore, is:  whether the  prosecution has  proved   the  case   against  the   respondents  beyond reasonable  doubt?  As  far  as  the  second  respondent  is concerned we have carefully considered the evidence. We find that  there   is  absolutely  no  worthmentioning  evidence, connecting the  second accused  with the  commission of  the crime. His acquittal, therefore, gets confirmed.      The question  then  is;  whether  the  prosecution  has proved the case as against Accused No.1, Anirudhsing, beyond reasonable doubt?      The entire  prosecution case hinges upon circumstantial evidence. Witnesses  may be prone to speak falsehood but the circumstances will not. The circumstantial evidence consists of the  oral confession said to have been made to Jhala, PW- 4. The immediate question that arises is: whether P.W.4 is a police officer  and whether  such a  confession  is  hit  by Section 25 of the Evidence Act?      In Balkishan A. Devidayal etc. vs. State of Maharashtra etc. [(1981)  1 SCC 107], this Court was to consider whether an officer of the Railway protection Force making an enquiry under the  Railway Property (Unlawful Possession) Act, 1966, is a  police officer within the meaning of section 25 of the Evidence  Act.   After  elaborate   consideration   of   the provisions of the Code of Criminal Procedure (for short, the ’Cr.P.C. the  Railway property (Unlawful possession) Act and Article 20  (3) of  the Constitution,  this  Court  came  to conclude that  R.P.F. Officer is not a police officer within the meaning  of section  25 of  the Act  and ,  therefore, a confession made to that officer is admissible in evidence.      In Romesh  Chandra  Mehta  vs.  State  of  West  Bengal [(1969) 2  SCR 461  the confession made to a Customs officer under the  Sea Customs  Act was  held to  a be  not  hit  by Section 25 of the Evidence Act and it was held that they are not police  officers within  the meaning  of section 25. The entire controversy was considered by a bench of three Judges in K.I. Pavunni vs. Assistant Collector (HQ), Central Excise

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Collectorate, Cochin  [(1997) 3  SCC 721)  at page 738, para 17]. It was held thus:      " It  would thus  be clear that the      object  of   the   Act   empowering      customs  officers   to  record  the      evidence under  Section 108  is  to      collect    information    of    the      contravention of  the provisions of      the  Act   or  concealment  of  the      contraband or avoidance of the duty      of excise  so as  to enable them to      collect the  evidence of  the proof      of contravention  of the provisions      of  the   Act  so  as  to  initiate      proceedings for  further action  of      confiscation of  the  authority  of      law,  the   officer  exercise   the      powers  under   the   Act   is   an      authority  within  the  meaning  of      Section 24  of the  Evidence  Act,"      but they  are not  police  officers      within the meaning of section 25 of      the Act."      Accordingly, the confession made to them was held to be admissible.      In Raj  Kumar Karwal  vs. Union  of India  [1990) 2 SCC 409], the  question  arose:  whether  the  officers  of  the Department  of  Revenue  Intelligence  (DRI)  invested  with powers of  officer-in-charge of police station under Section 53 of  the narcotic  Drugs and  psychotropic substances Act, 1985 are  police officers  within the  meaning of Section 25 and whether  the confession  made to them is inadmissible in evidence? In this behalf, this Court had Court had held that the officers  of  the  Revenue  Department,  who  have  been invested with  the powers  given to  the  in-charge  of  the police station  were not  police officers within the meaning of section  25 of  the  Evidence  Act  and,  therefore,  the confessional Statement  recorded by  such  officers  in  the course of investigation of the persons accused of an offence under the  Act, is  admissible in  evidence as  against him. Officer appointed  under Section  53, other  than  a  police officer is  not entitled to exercise " all the powers" under Chapter XII  of the  Cr. P.C.  including the power to submit charge-sheet under  Section 173,  Cr.  P.C.  This  Court  in paragraph 5 at page 413 has stated thus:      " What  impelled the interaction of      this provision was the overwhelming      evidence the  police under the Code      were often  issued  and  abused  by      police    officers    investigating      crimes for extorting a confessional      statement from  the accused  with a      view  to  earning  credit  for  the      prompt solution of the crime and/or      to    secure     himself    against      allegations     of  supineness   or      neglect  of   duty.  It   was  also      realised that once a police officer      succeeds in  extorting a confession      from  the  person  accused  of  the      commission of the Crime by threats,      inducements, etc. the real offender      becomes more  or less  immune  from      arrest. Therefore,  the purpose  of      the restriction under Section 25 of

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    the  Evidence   Act   is,   broadly      speaking, twofold,  namely, (ii) to      ensure  a   proper  and  scientific      investigation of  the Crime  with a      view to  bringing the  real culprit      to book."      It would,  thus, be  seen that the object of Section 25 is to  ensure that  the person  accused of the offence would not be  induced by  threat, coercion  or  force  to  make  a confessional statement  and the  officers  also  would  make every effort  to collect  the evidence  of the commission of the crime  de hors  the confession  to be extracted from the accused while  they are  in the  custody of  the police. The question, therefore,  1st whether  Jhala, PW-4  is a  police officer.      In this  behalf, it  is relevant to note the provisions of the  Bombay State  Reserve Police  Force Act,  1951  (for short, SRPF  Act). Section  2(a) of  the Act defines "active duty" to  mean a  duty to  prevent or  investigate  offences involving a  breach of  peace or  danger to life or property and to  search for  and apprehend  persons concerned in such offences and  who are  so desperate  and dangerous  so as to render their  being at large hazardous to the community etc. Section 2(b)  defines "Commandant  and Assistant Commandant" to mean  respectively persons  appointed to those offices by the state  Government under  Section 5. Section 2(h) defines reserve police  Force established  under the  Act. Section 5 postulates   appointment   of   Commandant   and   Assistant Commandant and  an Adjutant.  It provides  that  "The  state Government may  appoint for  each group commandant who shall be a  person eligible  to hold  the post of a Superintendent and an  Assistant Commandant  and an  Adjutant who  shall be persons eligible to hod the post of an Assistant or a Deputy Superintendent." Section 10 enumerates general duties of the personnel of the State Reserve police Service. It postulates that "Every  reserve police officer shall for the purpose of this Act  be deemed  to be  always on  duty in  the State of Bombay, and  any reserve  police officer  and any  member or body  of   reserve  police   officers,  may,  if  the  State Government or the Inspector-General of police so directs. be employed on  active duty  for so  long as  and wherever  the services of  the same  may be  required". Under  sub-section (3), "[A]  reserve police  officer employed  on active  duty under sub-section(1),  or when  a number  or body of reserve police officers  are so  employed, the  officer in charge of such number  or body, shall be responsible for the efficient performance of  that duty  and all  police officers who, but for the employment of one or more reserve police officers or body of  reserve police  officers or  body of reserve police officers, would  be responsible  for the performance of that duty,  will,  to  be  best  of  their  ability,  assist  and cooperate with  the said  reserve police officer or officers in charge  of a  number or  body of reserve police officers. Section 19  of the Act empowers every reserve police officer to be the " police officer" as defined in Bombay police Act, 1951; the  details thereof  are not material for the purpose of this  case. Section 11 of the Act postulates that reserve police officer  shall be  deemed to be in charge of a police station. Sub-section  (1) envisages  that " when employed on active duty  at any  place under  sub-section (1) of section 10, the  senior reserve  police officer of highest rank, not being lower  than that of a Naik present, shall be deemed to be an officer in charge of a police station for the purposes of Chapter IX of the Code of Criminal procedure, 1898, Act 5 of 1898  , which  is equivalent to chapter X of the Cr. P.C.

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Chapter X  deals  with  "maintenance  of  public  order  and tranquility".  The  Chapter  relating  to  investigation  is chapter XII   of  the  Cr.P.C.  starting  with  Section  154 dealing with laying of the First Information Report etc.      It would,  thus be  clear that  a senior reserve police officer appointed  under the  SRPF Act,  though is  a police officer under the Bombay police Act and an officer in charge of a police station, he is in charge only for the purpose of maintaining law and order and tranquility in the society and the powers of investigations envisaged in chapter XII of the Cr. P.C. have not been invested with him.      Shri Sushil Kumar, learned senior counsel appearing for the respondents,  has relied upon the judgment of this Court in Kartar  Singh vs.  State of  Punjab [(1994) 3 SCC  569 at 719, placitum  b and  at 720,  placitum C). He contends that the object  of giving  protection to  the accused is that he will not  be put  to lose his liberty by making a confession to a  police officer  and to  keep away the accused from the threat or  inducement  which  may  be  administered  to  the suspect in  the custody  of the  police officer. The accused will not  be in a position to distinguish as to who is or is not  a   police  officer   invested  with   the   power   of investigation. But  will  assume  the  person  seen  in  the uniform  to  be  the  police  officer.  Therefore,  all  the officers performing  the police  duty, may be required to be treated to  be police officers within the meaning of Section 25 of  the Evidence  Act so  that the liberty and protection granted to an accused under Article 19 and Article 20(3)  of the Constitution  would be safe guarded. Though the argument of Shri  Sushil Kumar  is prima  face attractive,  on deeper prove, we find it difficult to give acceptance to the same.      It is  undoubted that  in Kartar  Singh  vs.  State  of Punjab [(1994) 3 SCC 569], one of us (K. Ramaswamy, J.) in a separate but concurrent judgement, had held thus; "moreover, the imbalance between the State an the defendant begins with arrest and  detention, for experiences influence the detenue in   ways   analogous   to   interrogation,   the   negative implications of  silence, the  self-mortification or extreme humiliation at being arrested, the desire to shield the self from potentially.  humiliating questioning and the emotional stress caused  by the symbols of the law’s authority even in persons of  higher  status  would  get  lost.  "  Similar  , observations came  to be  made that the police interrogation can produce  trance like  state of heightened suggestibility so that  truth and  falsehood become  hopelessly confused in the suspect’s  mind at  that it  will be due to hypnosis the suspect lose  initiative  and  in  the  heightened  fantasy, confabulation and  distortion get  mixed up  due to  leading question. As a result , the power of recording confession by the police officer should be excluded.      These statements  of law came to be made in the context of empowering  the police officer to record the confessional statements of  the accused  under TADA Act while in custody. That ratio has no application to the facts in this case.      It is  already seen  that PW-4  ,  Jhala,  was  not  an investigating officer  within the  meaning of Chapter XII of Cr. P.C. and that he did not even conduct any investigation. it is  true ,  as rightly  pointed out by Shri Sushil Kumar, that even  after the incidence, PW-4 remained present at the scene of  occurrence till evening, as admitted by him in the cross-examination .  But his  explanation offered by him was that since  he occurrence  had taken  place, law  and  order situation was  likely to  arise. So he remained on duty till in  the   evening  until  the  DOSP  had  come  and  started investigation and  thereafter he left the place. it would be

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seen that as a dutiful officer on duty, he had performed the duty as  a higher officer of the division in the parade and, therefore,  it   cannot  be   gainsaid  that   he   was   an investigating officer.      The question,  thus, would emerge: whether Anirudhsing, the first respondent had made any confession to Jhala, PW-4? In  this  behalf,  we  have  to  state  that  in  the  First Information Report  lodged by  I.B.  Shekhawat  there  is  a sentence made that the Accused No. 1 made a statement to PW- 4 that  he had  committed the crime. We will examine whether it would  be treated  as substantive  evidence  at  a  later stage; suffice  it to  state here  that except this piece of evidence, there is no categorical statement given by PW-4 in that behalf  for the  obvious reason  that when he was being examined as  a  witness  and  was  going  to  state  it,  an objection  was   raised  as  to  the  admissibility  of  the confession made  by the  Accused No.  1 to  PW-4. The  trial judge allowed  the objections  and ruled  that  he  being  a police officer  under the  Act. the  confession made was not admissible. Against  that order,  special leave petition has been filed.  we have  granted leave  and also held that PW-4 is not  a police  officer, for the provisions of the Chapter XII of the Cr.P.C  and Section 25 of the Evidence Act do not get attracted.  In view of the finding recorded earlier, the appeal is  allowed and  it must  be held that he not being a police officer, he was a witness to the occurrence.      It is  now well  settled  position  of  law  vide  this Court’s decision  in Nizar  Ali vs.  State of U.P. [1957 SCR 657] that  the first information report is not a substantive piece of  evidence and  can only  be used to corroborate the statement of the maker under Section 157 of the Evidence Act or to contradict it under section 145 of that Act. it cannot be used  as evidence  against the  maker at the trial, if he himself becomes an accused; nor to corroborate or contradict other witnesses.  In Dharma  Rama Bhagare  vs. The  State of Maharashtra [(1973)  1 SCC  537],  the  same  principle  was reiterated. it  was held  therein that the first information report is  never treated as a substantive piece of evidence. It can  only be  used for corroborating or contradicting its maker when  he appears in court as a witness. Its value must always depend  on the  facts and  circumstances of  a  given case. The first information report can only discrediting the other witnesses  who obviously  could not have any desire to spare the  real culprit and to falsely implicate an innocent person. Prosecution  case cannot  be thrown  out on the mere ground that  in  the  first information report an altogether different version was given by the informant.      It is  seen that  in the light of the evidence given by I.B. Shekhawat,  PW-58 that Anirudhsing made a confession to someone, it  is  a  hearsay  evidence  and,  therefore,  the statement made  in the FIR  is not a substantive evidence to corroborate the  evidence of PW-4 and, therefore, that piece of evidence stands excluded. As regards the evidence of PW-4 Jhala, as  seen, that  part of the statement has not come on record. Two  courses are  open , namely, either to set aside the judgment of acquittal and remand the case for retrial on that issue or to consider the case for retrial on that issue or to  consider the  case of other evidence, if available on record. We think on the evidence, if available on record. We think on  the facts  and circumstances  of the case, that it would not  be desirable  to set  aside the  judgement of the designated court  and remand  the matter for retrial on that issue. On the other hand, we are of the considered view that the matter  can be  disposed of  on that issue. On the other hand, we  are of  the considered view that the matter can be

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disposed  of  on  the  basis  of  the  evidence  on  record. Accordingly,  we   hold  that  piece  of  evidence  of  oral confession made  by Anirudhsing,  to  Jhala,  PW-4,  is  not available to the prosecution.      The  next   question  is:  whether  the  evidence  that Anirudhsingh  was  apprehended  on  the  scene  of  evidence immediately after  the occurrence is proved? In this behalf, though the  prosecution sought to examine member of witness, unfortunately,  most   of  them   turned  hostile   to   the prosecution. What  is the  weight or  acceptability  of  the evidence of  hostile witnesses  has been  considered by this Court in some decisions. In Khujji vs. State of M.P. [(1991) 3 SCC 627 at 635] this Court said that:      "The evidence  of PW-3  Kishan  Lal      and PW-4 Ramesh came to be rejected      by the  trial  court  because  they      were  declared   hostile   to   the      prosecution by  the learned  public      prosecutor  as   they  refused   to      identify    the    appellant    and      assailants  of  the  deceased.  But      counsel for the State is right when      he submits  that the evidences of a      witness, declared  hostile, is  not      wholly effaced  from the  which  is      otherwise acceptable  can be  acted      upon. It  seems to  be well settled      by the  decisions  of  this  Court-      Bhagwan Singh  v. State  of Haryana      [(1976) 1  SCC 389], Rabindra Kumar      Dev v.  state of  Orissa [(1976)  4      SCC 233],  and Syad  Akbar v. State      of Karnataka  [(1980)  1  SCC  30]-      that the  evidence of a prosecution      witness cannot  be rejected in toto      merely  because   the   prosecution      chose to  treat him  as hostile and      cross examined him. The evidence of      such witnesses cannot be treated as      effaced or  washed off  the  record      altogether  but  the  same  can  be      accepted  to   the   extent   their      version is  found to  be dependable      on a careful scrutiny thereof."      In that  case, the  evidence of  a hostile  witness was scanned by  this Court  and found  to be accepted and relied on. In  State of U.P. vs. Ramesh Prasad Misra [(1996) 10 SCC 360 at 363, para 7], it was held thus:      " It  is  rather  unfortunate  most      unfortunate that  these  witnesses,      one of whom was an advocate, having      given  the   statements  about  the      facts    within    their    special      knowledge, under section 161 record      during investigation, have realised      from correctness of the versions in      the statements. They have not given      any   reason    as   to   why   the      investigating officer  could record      statements contrary  to  what  they      had  disclosed.   It   is   equally      settled law  that the evidence of a      hostile  witness   would   not   be      totally  rejected   if  spoken   in      favour of  the prosecution  or  the

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    accused, but it can be subjected to      close scrutiny  and that portion of      the evidence  which  is  consistent      with the case of the prosecution or      defence may be accepted."      In view  of the  above settled  legal position,  merely because some  of the  witnesses have  turned hostile,  their ocular evidence recorded by the Court cannot be held to have been washed off or unavailable to the prosecution. It is the duty of  the Court  to carefully  analyse the  evidence  and reach  a  conclusion  whether  that  part  of  the  evidence consistent with the prosecution case, is acceptable or not . It is  the salutary  duty  of  every  witness  who  has  the knowledge of the commission of crime, to assist the state in giving the  evidence; unfortunately  for various reasons, in particular deterioration  in law and order situation and the principle of  self-preservation, many a witness turn hostile and in  some  instances  even  direct  witnesses  are  being liquidated before  they are  examined by  the Court. In such circumstances, it is high time that the law Commission looks into the matter. We are informed that the Law Commission has recommended to  the Central  Government  to  make  necessary amendments to  the Cr.P.C.  and this  aspect of  the  matter should also be looked into and proper  principles evolved in this behalf.  Suffice it  to state  that responsible persons like  Sub-Divisional  Magistrate    turned  hostile  to  the prosecution and  most of  the responsible  persons who  were present at  the  time  of  flat  hoisting  ceremony  on  the Independences Day  and in  whose presence a ghastly crime of murdering a  sitting M.L.A.  was committed,  have derelicted their duty  in assisting  the prosecution  and to  speak the truth relating  to the  commission of the Crime. However, we cannot shut  our eyes  to the  realities  like  the  present ghastly crime  and would  endeavour to evaluate the evidence on record.  Therefore, it  is the duty of the trial judge or the appellate  Judge to  scan the  evidence, test  it on the anvil of  human conduct  and reach  a conclusion whether the evidence brought  on record  even  of  the  turning  hostile witnesses would  be sufficient  to bring home the commission of the  crime. Accordingly,  we under  take to  examine  the evidence in this Case.      It is  true that  PW-4,  PW-58  and  PW-46  are  police officers; but  they are  not  investigating  officers.  They happened to  present at  the scene  by virtue of their duty. They being  high ranked  officers in the State were required to be  present on  the Independence  Day parade  as per  our official conduct  and rules.  Merely because they are police officers, their  evidence cannot  and must  not be  rejected outrightly as  unreliable  or  unworthy  of  acceptance.  It requires to  be subjected  to careful  evaluation  like  any other witness of occurrence.      We have  the  evidence  of  PW-4,  Jhala,  pw-58,  I.B. Shekhawat and PW-46, Atma Ram, on duty apart from PW-40, the Chief Officer  of the  Municipality, who  was conducting the proceedings in  the flag hoisting ceremony, though he turned hostile, and  also the  evidence of  PW-36, private  Medical Practitioner at  Gondal and  also EX-  M.L.A., who  had also turned hostile.      At the  outset, we  would notice the contention of Shri Sushil Kumar  that the  entire record of the prosecution has not been  prepared and  a copy  has not  been given  to  the accused and  that therefore,  he was  handicapped  to  place before  the   Court  certain   aspects   relating   tot   he investigation conducting  by Rawat  and Bhattacharya. In the absence of  scene of  offence marked in two sketches and the

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evidence of  witness, Kuber  Singh in  proof of  fire  arms; omission to  examine other medical evidence and the relevant photographs wherein  the first  respondent could be properly identified to  be the person at the scene of offence. We had given direction  to the  designated Judge to send the record duly translated;  he sent  a report  stating that  it  is  a voluminous record  and  would  take  considerable  time  for translation  and   accordingly  he   sought  time.  We  have carefully scanned  the evidence  of the  witnesses which  is already on record with the assistance of the counsel for the state and  the accused  and have  gone through  the relevant portions relied  upon; thereafter we have ourselves minutely examined  the  evidence.  The  other  evidence  are  not  of material consequence  in these  case for  the reasons we are going to  give. Under these circumstances, the objections of Shri Sushil Kumar in our considered view are not of material relevance. He also referred to order XX-E, Rule  1(v) of the Supreme Court  Rules in  this behalf.  Normally, in  a  case where the material evidence is necessary for the prosecution or the  defence, certainly we adjourn the case to enable the respondents to  get the  entire  record  prepared.  However, since in  our view  that evidence  is not  material for  the purpose of this case, we have not adjourned the case.      Though  PW-38,   the  Deputy  Collector  and  executive Magistrate has  spoken of the accident and also that Accused No. 1  was caught, as admitted in cross-examination, we were not relying  upon that evidence for the reason that he acted as an  Executive Magistrate  and issued  remand order to the accused.  In  that  perspective,  we  are  not  placing  any reliance on  the evidence of that witness, PW-36, A  private practitioner, through  he turned hostile, has also given the evidence that at the scene of offence Anirudhsing was caught by the police. Similarly, PW-40, the Chief place immediately after the  prize distribution  was over and while PW-46  was announcing that some more programme was in the offing.      Let us  first  see  whether  the  three  circumstances, namely, the  homicidal death  of the  decease popatbhai, the apprehension  of  the  first  respondent  at  the  scene  of occurrence and  recovery of  pistol and handkerchief said to have been thrown over the head of PW-58, have been proved to the satisfaction  of the  Court before  considering  whether these proved  facts are  sufficient  to  bring  the  offence beyond reasonable doubt against the first respondent.      It is  seen that  PW-58, I.B.  Shekhawat, was the first informant,  who   gave  the  report.  In  this  behalf,  the contention  of   Shri  Sushil   Kumar  is   that  the  first information report  was given  by the doctor at Rajkot as to the death  of the  deceased and  it constitutes  FIR    and, therefore,  the   FIR,  Ex.  203/1,  is  not  the  FIR  and, therefore, it  is not  admissible in  evidence. We  don  not accept the contention of Shri Sushil Kumar as correct. It is seen that under Ex. 203/1, FIR, the offence charged is under Section 307  but not  under Section  302  and  the  FIR  has already reached  the judicial  magistrate at  12.15 p.m. The information conveyed  by the  doctor under  Ex. 201  was the intimation of  the death  of the  deceased. Consequently. in the FIR  the offence under Section 307 was converted into an offence under  Section 302 and the converted FIR was issued, which was  marked as  Ex. 202/3.  Under these circumstances, the FIR  given by  Shekhawat under  Ex. 203/1  was the first information report.  As extracted  earlier, it  does contain wealth of material particulars regarding the apprehension of Anirudhsingh on the spot. The only commission therein was of the apprehension  of the  accused by Jhala, PW-4. As regards the factum  of apprehension  of the  first respondent on the

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spot, his identify and name, being brought by  PW-58 , PW-46 and others  find  place  in  the  first  information  report itself. Therefore, the evidence of PW-58 that he had brought the  Accused  No.1,  Anirudhsingh  from  the  scene  of  the offences and  handed him  over to police Rawat, Inspector to record the FIR gets corroboration from Ex. 203/1.      The first  question at  the outset  is dealt  with this that whether  the prosecution  has proved  that the deceased died due  to homicidal  death. Dr.  Buch who  conducted  the post-mortem examination along with Dr. Trivedi had given his ocular evidence  and he  has sated  as per  the  post-mortem report as under:      "  External   Injury.,   Wound   of      entry:- roughly  rounded 1-1/2 c.m.      in diameter,  Rugged and  irregular      border with  charring around  wound      inverted situated  1  inch  postero      superior to  right mastoid  tip. No      smell or  deposition of gun powder.      No  signeing   of   hair.   Haetoma      underneath; dark  red in colour, No      wound of  exit, Vane  section  both      lower limbs  and venu puncture both      upper limb.  These  were  treatment      wounds. Fracture  of right  mastoid      and temporal bones ."      According to  him the  death was  due to injury by fire arm and it is a homicidal death. The Designated also in that behalf recorded a finding as under;      "I come  to the conclusion that the      prosecution   has   proved   beyond      reasonable  doubt   that   deceased      Popatbhai Lakhabhai Sorathia died a      homicidal  death   and,  therefore,      decide point No.1  in affirmative."      Shri Sushil  Kumar contends that though Dr. Trivedi was available in  this Court.  the prosecution  has not examined him and  the notes  of the  post-mortem report under Ex.P-38 have not  been properly  proved and,  therefore, prosecution has not  proved the  case beyond  reasonable doubt  that the deceased died due to homicidal death. We are unable to agree with the  learned counsel.  A  reading  of  the  post-mortem report which  is a  part of  the  record  and  the  evidence recorded in  the judgment of the Sessions Court, Correctness of which even was not commented upon, does indicate that the post-mortem was  conducted  jointly  by  DR.  Buch  and  Dr. Trivedi and  the major work was does by Dr. Buch. It is also the evidence of Dr. Buch. In view of that positive evidence, as per the post-mortem report which is a part of the record, the injury  to the head have been caused due to the firm arm and, therefore,  there is  no doubt that the homicidal death and was  not due  to any  other cause. That was not even the case of  the accused. The omission to examine Dr. Trivedi is not of  relevance. In  this regard,  it is also contended by Shri Sushil Kumar that the prosecution has failed to Connect the injury caused by the fire arm, EX.1A. There is a dispute whether the pistol produced before the Court is the one that was seized  by PW-58,  I.B. Shekhawat when it was alleged to have been  thrown and  it was  not established  beyond doubt that it  was the same weapon that was used in the commission of the crime. It is also contended that there is no evidence that it  was the  weapon that  was used  by Accused No. 1 in Commission of  the Crime  . It is also contended that if the prosecution case  is accepted  that  Accused  No.1  hit  the deceased from behind his head where the deceased was sitting

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in the  front row,  there would  have been  entry and  exist wounds and  in the absence of that, it would be difficult to believe that  the A-1  had caused  such a  death within  the short range  without any  exist wound. we find that there is no force in the contention. As regards the identification of the weapon, there is evidence of PW-58, I.B.Shekhawat who is also an  officer admittedly  on duty at that time and in his evidence he categorically stated that he saw that a fire arm was thrown  above his head, he immediately swung into action and fan  towards the  direction where it had fallen; he took it in  his hand,  identified it to be pistol wrapped up with hand-kerchief. That  fact finds  express mention in the FIR, Ex. 203/1. That was also spoken to by PW-46. another officer on duty and also spoken to by PW-46, another officer on duty and also  spoken by PW-4, Jhala, As regards the pistol which was seized,  we have  unimpeachable evidence  on  record  of Bharat Virji S/o Kapilari Mistry, Senior Scientific Forensic Officer, PW-55,  wh had  done the analysis after the receipt of the  pistol from  the ballistic  expert, that  it is  the pistol that  was placed  before the  Court. In his evidence, PW-55 in  Ex. 217 has stated in examination-in-chief that he received a pistol wrapped with hand-kerchief and he analysed it; and  when he  was subjected to cross-examination, he has specifically stated  that the  pistol was found wrapped in a cover. He  opened it  in his presence and in the presence of his servant;  opened it  and found iron rusting on the hand- kerchief. Iron  rusting was also analysed. In that behalf, a great deal  of extensive  cross-examination was conducted by the defence  counsel but  nothing came out to suggest it was weapon  other  than  the  one  that  was  sent  to  him  for examination. In this evidence, PW-4 has categorically stated which  has   also  remained   unchallenged  in   the  cross- examination, that  the pistol that was produced in the Court was the  one that  was seixed  at the  place  of  occurrence immediately after  it was thrown. Thus it could be held that the prosecution  has established  that the  weapon which was thrown over  the head  of PW-58, I.B. Shekhawat, was the one that was  seized by  him and  placed before the police under FIR, Ex.  203/1; mention  thereof was made in the custody of the court  immediately at  12.15 p.m. on that date. Thus the prosecution has conclusively proved that the firm-arm Ex. 1- A, was  recovered from  the scene. It is true that the empty cartridge was discharged from the pistol It is also true, as pointed  out   by  Shri  Sushil  Kumar,  that  the  magazine contained an empty one and one loaded cartridge was found in the chamber  but it  depends upon the velocity with which it is used.  It is  in the  evidence of PW-4, Jhala and PW-58 , I.B. Shekhawat,  that they heard the sound like cracker from behind them  and immediately  they saw  the  people  running helter-skelter and  when PW-4 got up on the chair and looked around, he  saw Anirdusingh, Accused No. 1 attempting to run away. As a consequence, he immediately jumped from the chair and caught him. He has stated in his evidence thus:      "I and Shekhawat stood up and I saw      on my  left  a  weapon  wrapped  in      cloth being  thrown  from  my  left      side to  right side. Shri Shekhawat      went to  the right  side where  the      weapon was  thrown  towards  temple      side and I stood up on my chair and      to may  left side behind where many      people were  standing.  one  person      was trying  to run  away, hence.  I      jumped from  the chary  and  caught      hold of  this suspected  person. At

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    that time, I saw popatbhai bleeding      from his  nose and  he lay on right      side with his head below".      In Paragraph 7, he stated thus:      "  I   and  Shekahawat   took   the      apprehended boy  next to  the stage      where P.S.I. Rawat and other police      officials were  standing.  The  boy      whom I  apprehended is  present  in      the court and is accused No. 1 whom      I identify. Muddamal article no.1 A      pistol, and  handkerchief,  article      no.2 are  shown to  me, but if they      are two or there I cannot identify.      Muddamal article  no.1-A  pistol is      shown to  me and  it is the same. I      can identify the handkerchief if it      is shown to me. I am shown Muddamal      article no.2-A  handkerchief, it is      the same and I identify it."      In the  cross-examination, though  he was  subjected to gruelling in  the cross-examination, he withstood the cross- examination, he  withstood the  cross-examination and stated thus:      "It has happened when I stood up at      that time Shekhawat ran towards the      direction  where   the  thing   was      thrown up  which appeared  to  have      been wrapped  in a  cloth .  It  is      true that  i saw  the thing  thrown      wrapped in  a cloth  as pistol when      Shekhawat came to me with it. I saw      Shekhawat running  at a distance of      10  to  15  feet  away.  The  thing      thrown up  passed opposite  me from      the upper  side. This landed in the      front line of chair. I did not feel      that it  was thrown  from the stage      side. I  have  not  seen  Shekhawat      picking  up  that  thing  from  the      earth."      It is true, as contended by Shri Sushil Kumar, that the sketches relating to the scene of offence and various places were notes  and photos  have not  been placed before us. but the absence  of placing the sketches and photos makes little difference if  we accept the evidence of PW-58 and PW-4 that the pistol  and handkerchief  were identified  by them which was the  one thrown over the head of PW-58 immediately after the occurrence.  if it  were a case that there is a time gap between  the   time  of  occurrence  and  of  the  recovery, certainly that  would be  a matter  to be  established  with reference to the identify of the place at which the articles were thrown  and the place from which they were thrown. When PW-58 and  PW-4 were  present at the scene of occurrence, it was their  duty to swing into action as dutiful citizens and officers; to  catch hold  of the  pistol without being blown causing damage  to the others; and PW-58 had taken them into custody. He  found that  the pistol was kept in the position for further  firing. It  would appear  that one Kuber Singh, the Fire  Arm Expert  has stated  that he  was called to the police station  and there  he defused the weapon. It is true that the  evidence of Kuber Singh has not been placed before us but  that omission does not make much difference he being an expert  and his  opinion being  hypothetical opinion,  so long as  the identify  of the  weapon is  the surmise of the

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ballistic exert  that the  pistol was  not the  one that was used in  the commission of the crime. It does not create any inescapable doubt.  In view of the unimpeachable evidence of PW-58 who  seized the  weapon thrown  immediately after  the commission of  the offence  over his  head and  in  view  of further corroboration  in  that  behalf  received  from  the evidence of  PW-4 and  PW-46,   another officer on duty, the omission to  place on  record the sketch of the scene of the offence or  fire arm except, is not of material consequence. As regards  photographs, their  relevance will be considered while examining  the evidence  of Anirudhsingh  having  been caught on the spot.      From the  reading of  the evidence  of Forensic expert, PW-55, the  evidence Of PW-58, PW-4 and PW-46, it can safely be concluded  that the  pistol  with  which  the  murder  of Popatbhai was  committed was recovered immediately after the occurrence  by   PW-58  which  was  thrown  wrapped  in  the handkerchief. It  is true  that there is no exist wound; but pullet was  found inside  the brain  and the evidence of Dr. Buch clearly  indicates that  it was  on account  of the hit from the  pistol with  which the deceased sustained injuries which  resulted  in  the  homicidal  death.  Therefore,  the prosecution has  established that  the weapon, Ex.1A was the one used for committing the murder of the deceased.      The Designated Court is obviously in error in recording the finding  that the  muddamal pistol  was not the one that was used  at the  time of  the commission  of the  crime and something was  planted. In  view of  the unchallengeable and unimpeachable evidence of PW-55, the Forensic Doctor who has spoken of  the pistol and handkerchief in the Court , and in view of the acceptable evidence of PW-58 and of PW-4 and PW- 46, another  officer on  duty, we have no hesitation to hold that the  muddamal pistol, Ex.1A   was the one that was used to hit  the deceased,  popatbhai, It is true that it depends upon the  velocity with  which the trigger was operated that would generate  the speed  for causing  the wound  and it is difficult for  the prosecution to established in that behalf the speed  but   the fact remains that the pellet having ben found in  the head  of the deceased, it is clear that pistol was used  in causing  the death  of  the  deceased  and  the deceased was shot dead from behind.      The next  question is:  whether the death was caused by Anirudhsing? That  is the  crucial area  in which one has to carefully scan  the evidence.  No doubt the Designated Court has pointed  out four  circumstances enumerated  hereinabove which prosecution  has failed  to bring  on record. If those circumstances are  brought on  record , certainly that would constitute direct  evidence connecting  Anirudhsing with the commission of  the evidence.  The need  to  fall  back  upon circumstantial evidence  does not arise. The absence thereof would not  be a  ground t  throw over  board the prosecution case. Learned  Additional Judge  of the Designated Court did not make  any attempt  to analyses  the evidence  in correct perspective. we  have the evidence of PW-4, PW-58  and PW-46 in this  behalf. Undoubtedly, they are police officer. Their presence cannot  be disputed  for the  reason that they were deployed on duty at  the time of flag hoisting ceremony.      Accused No.1 was caught on the spot at the scene of the crime.  Infect,  the  trial  judge  also  has  accepted  his presence at  the scene  of occurrence.  It has  been  proved beyond reasonable  doubt. Shri  Sushil Kumar, learned senior counsel in  fairness has also not seriously disputed in that behalf. From  this perspective,  the omission  to  place  on record  the   photographs  is   not  at  all  relevant.  The photographer normally  concentrates on  high dignitaries and

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it is  not the  case that  the photographer  had clicked any photograph of  the actual  commission of the crime. Perhaps, if the Accused No.1 was taken into police custody long after the incident,  then the  photos become relevant evidence. It is an  admitted position  that in  one  of  the  photographs Accused No.1 was seen at the time of flag hoisting ceremony.      The question  then is:  whether Anirudhsing,  the first respondent alone  has committed  the crime  or  someone  has committed or assisted him? It is true that   PW-4  stated in his cross-examination  that apart  dram Anirudhsing,  others were also taken into custody. Perhaps to investigate whether there was  any conspiracy behind the commission of the crime or the  first respondent  alone has  independently committed the crime,  They are  the officers of special Reserve Police and had  given categorical  statement in the ocular evidence that they  were on duty. The fact of their being on duty has not  been  impeached  in  the  cross-examination.  When  the occurrence had  taken place  and  to  see  that  no  further untoward event  would occur.  In this background, one has to consider the  evidence of PW-4, PW-58 and PW-46 . It is seen that PW-4,  Jhala had  no axe to grind by speaking falsehood against Anirudhsing.  Being the  officer on  duty, he  swung into action  instantly and  apprehended Accused  No.1 on the spot immediately  while he  was trying  to run away. We have already noted  that in  the  First  Information  Report  the identity of  the first respondent was specifically mentioned and he  was produced  within 25  minutes after  the time  of occurrence. The  occurrence had taken place at 9.30 a.m. and he   was produced  before the police at 9.55 a.m. The Report contained the  material  particulars  that  Anirudsingh  was caught; handed  over to  and was  kept in the custody of the police. Fir  was in  the custody  of the court at 12.15 p.m. even  before   Bhattacharya,   D.I.G.   had   started   real investigation  into   the  matter.   Thus   we   hold   that Anirudhsing, some  others were  taken it  no custody. Merely because others  were taken  into custody, it cannot lead one to conclude  that others  committed the  cream and  that the first respondent  has been  falsely implicated in the crime. No other  ground  was  even  suggested  to  make  any  false implication of Anirudhsingh. The fact that immediately after Ex. A-1,  the pistol wrapped in Ex.A-2, the handkerchief was thrown over  the head  of PW-58,  Shekhawat, PW-4  Jhala had looked behind  after getting on the chair and on finding the first respondent  attempting to  run away, he ran and caught him  immediately.  When  the  first  respondent  was  caught immediately,  necessarily   this  mental  faculty  would  be disturbed as  was found  but it  s not  sufficient  base  to conclude that he has not committed the crime. That is also a relevant fact  to be taken into account in PW-4 to reach the conclusion that  he is  the suspect in the commission of the crime. It  can in fairness, be said that PW-4 has not stated in his evidence that Accused No.1, Anirudhsing has committed the crime by throwing it. Therefore, the conduct of PW-4  in instantly swinging  into action  and the  manner in which he acted upon  and gave  the evidence  in the Court, creates an unmistakable impression  in our mind that PW-4 is a truthful witness.  That  evidence  was  also  corroborated  from  the evidence of  PW-58 and PW-46, Special Reserve Police officer on duty.  It  would  thus  be  seen  that  throwing  of  the handkerchief  and   catching  of   Anirudhsing   have   been established beyond doubt.      When the  pistol and  the handkerchief were thrown from being and  when Anirudhsing  was caught  when he  was at the back of  the deceased,  the necessary conclusion to be drawn unmistakably is that it was Anirudhsing who hit the deceased

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and thereafter  he had  thrown the  pistol over  the head of Shekhawat, PW-58  so as to avoid his being identified and he made an  attempt to  run away  from the scene. Therefore, we hold  that   Anirudhsingh,  Accused   No.1  alone  has  done Popatbhai to death.      It is  then contended by Shri Sushil Kumar that Accused No.1 had  no notice  and the prosecution has failed to prove it. We  find no  force in  the contention.  The motive  gets locked upon  into mind  of the makers and it is difficult to fathom it. The evidence of Acharya P.A. to the deceased, who too turned  hostile to  the prosecution  speaks  of  motive. Equally, others  have spoken  but their  evidence is  not on record. If  motive is  proved that  would supply  a chain of links but  absence thereof  is not  a ground  to reject  the prosecution case. So we reject the contention of the learned counsel in that behalf too.      Thus considered  in the  light of the circumstances. we have  no   hesitation  to  hold  that  the  prosecution  has established the  case that  Anirudhsing and  none else,  has committed the murder of the deceased. Papatbhai. The learned designated Court  has not correctly appreciated the evidence in the  proper perspective.  Accordingly, we  hold that  the prosecution has proved its case beyond reasonable doubt that Anirudhsing, the  first respondent  was in  possession of  a fire arm which was not proved to be licensed one. Therefore, it  is   an  unauthorised  weapon.  Accordingly,  the  first respondent, Anirudhsing  has  committed  the  offence  under Section 5  of the  TADA Act  and also  the offence of murder punishable under Section 302, IPC.      Accordingly,  the  judgment  and  order  of  acquittal, passed by the Designated Court stand set aside. Instead, the first respondent  having committed  the offence of murder of Popatbhai, is  convicted  under  Section  302,  IPC  and  is sentenced to  undergo imprisonment for life. Since more than nine years  have elapsed  from the date of the commission of the crime,  we do not think it appropriate to impose capital sentence of hanging, through he has committed an heinous and a  gruesome   crime  of  killing  a  responsible  Member  of Legislative  Assembly   who  was   attending  flat  hoisting ceremony on  the Independence  Day. He is alls convicted for an offence  under section 5 of the TADA Act and is sentenced to undergo  imprisonment for  three years, Both the sentence are directed  to run  concurrently. The  appeal against  the first respondent  is allowed  accordingly Appeal against the second respondent is dismissed.      Bail bond of the first respondent stands cancelled. The Superintendent of  Police, Rajkot  is directed  to take  the first respondent  into custody  immediately to serve out the sentence. He  is also  directed to  report compliance of the said direction  to the Registry of this Court. The bail bond of the second respondent is discharged.      Before parting  with the matter, we place on record our appreciation  for   the  excellent   and  efficient  service rendered by  Mrs. N.  Anapurna, Senior  Stenographer who has always taken  long dictation  of heavy  matters in the Court and  transcribed   accurately  as   was  dictated   to  her. Accordingly, we  place on  record our  commendation for  her excellent work. REPORTABLE-563/97                  SECTION-IIA                    SUPREME COURT OF INDIA                                    No.F. 3/Ed/B.J.145/97                                    New Delhi                                    Dated: 30.7.97                         CORRIGENDUM                      This Court’s Order in

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                    Crl. A. NO. 626 of 1997                      State of Gujarat v.                      Anirudhsing & Anr.                      (Dated : 10.7.1997                     ------------------- PAGE NO.  LINE NO.            FOR            READ 4           13           Section 25       Section 19                       SECTION OFFICER                       EDITORIAL BRANCH