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TMI Blog2000 (1) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sai 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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-investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaint 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 for Naiasopara. He c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Dinesh Kashyap (P.W.44) had a pan-bidi stal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 989 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 possib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 factually 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 terro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 mee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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