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Presented on : 19.03.1994 Decided on : 08.02.2008 Duration : 13-Y 10M 19D

BEFORE JUDGE, SPECIAL COURT, DESIGNATED UNDER T.A.D.A. ACT, N A G P U R.

(Presided over by Shri B.A.Shaikh)

Spl.Cri.Case No. 7 / 1994. Exh.No.______

State of Maharashtra through P.S.O. Police Station Kasansur,District-Gadchiroli.. ..... COMPLAINANT

.... Versus ...

1) Buddhu Bitlu Gota,age about 32 years, R/o Ghotsur.

2) Sanku Dama Potavi, aged about 30 years,Javeli Distt.

3) Mora Manku Potavi,aged about 24 years,R/o Javeli, Tah:Etapalli,Distt. Gadchiroli.

4) Khedu @ Chandu Ghosu Naroti,aged about 24 years, R/o Karka.

5) Pandu Irapa Hedo,aged about 33 years, R/o Karka.

6) Sadhu Mahadu Hichami,aged about 20 years, R/o Karka.

7) Mahu S/o Moda Halami,aged about 32 years, R/o Bendulwahi.

8) Madi Laltu Lakami,aged about 28 years, R/o Pimplitola.. .

9) Shishu Maharu Naroti,aged 26 years, R/o Piplitola.

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10) Bandu Pandu Gota,aged 45 years, R/o Ghotsur.

Mr.Sathainathan, Public Prosecutor for Complainant.Mr.Anthony, Advocate for the accused Nos.1 to 9,and 21.Mr.Gadling, Advocate for the Accused No.10 Bandu Pandu Gota.

OFFENCES PUNISHABLE UNDER SECTIONS 148, 364 R/W 149, 302 R/W 149 of IPC, SECTION 3 R/W 25 OF ARMS ACT

AND SECTIONS 3 AND 4 OF THE TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT,1987.

J U D G M E N T (Delivered on this 8th February,2008)

The aforesaid ten accused arrayed as accused Nos.1

to 10 have been tried for the offences punishable under sections

148, 364 r/w 149, 302 r/w 149 of Indian Penal Code, Section 3

r/w 25 of Arms Act and Sections 3 and 4 of the Terrorist and

Disruptive Activities (Prevention )Act,1987 (for short TADA Act).

2. The prosecution case in brief is as under:

The aforesaid ten accused persons and the

absconding accused namely Lingu Karya Gota, Rushi Hedo,

Mansai Rati Usandi, Bichanga Soma Naroti, Bapu Yankaji

Taidalwar, PochuYankaji Taidalwar, Zhuru Ganu Kirami, Sanku

Modi Usandi ,Samru Baju Mattani, Tirka Buklu Velda, Chandrika

Jethuram Raut, Ganesh Vijaiya Maha, Jaganna Pedapalli, Dasru

Dalsu @ Jogi Pusa Gawde, Maru @ Ravindra @ Bapu Malaiyya

Konda, Jangu @ Mura Naroti, Lalu @ Sadhu, Meena @ Minakka

@ Sammi @ Madanakka, Suwarna @ Suwarnakka @ Rambai

Durga Portata, Sarita Dalsu Gota, Rainu , Somji Ganu Korami,

Dasru Gota, Somji Ropu Naroti, Bandu Chira Gota, Sainu

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Lekami, Raju Pungati, Sarju Narioti and many other unknown

persons formed terrorist gang called as 'Naxalites'. Their

naxalites gang believed in Marxist- Leninist ideology. The said

accused committed various terrorist activities in Gadchiroli

District of Maharashtra State. One of the absconding accused

namely Rushi Hedo R/o village Ghotsur is the leader of that

terrorist gang. The aim and object of the said terrorist gang is

to establish its own Government by destabilizing present

Government by use of force and violence and to strike terror in

the people. The said gang is active in deep interior areas of

District Gadchiroli of Maharashtra State. The said gang

unlawfully holds various arms and ammunitions so as to strike

terror in the people. That gang also killed the Government

representatives and other officers in order to create terror. The

said gang is also known as 'Dalam' .

3. The deceased Dayal Tarachand Meshram was

working as Asstt. Intelligent Officer in local Crime Branch at

Jarwandi of Gadchiroli District. Tulsiram Bhuraji Durge, a police

constable bearing Buckle No.836 (PW-6) (who was abducted)

was attached to the police station Kasansur in Gadchiroli

District. The another deceased Sainu Sukru Usandi was the

secret informant of police. He was resident of village Kasansur

of District Gadchiroli.

4. The deceased Dayal Meshram received an

information that Rushi Chenga Hedo, the leader of the aforesaid

Naxalites gang along with his sister-in-law Kamal has gone to

village Pakhandur of Madhya Pradesh State and he took with

him Rs.3 lakh. On receiving that information, the deceased Dayal

Meshram, the police constable Tulsiram Durge and police secret

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informant Sainu Usandi went by a motorcycle on 19.7.1992 to

village Irapnar to search out the said gang leader namely Rushi

Chenga Hedo (absconding accused). The said village Irapnar

was situated in Madhya Pradesh State. There was weekly Bazar

day on 19.7.1992 at village Irapnar. The said three persons then

sat in the hotel of confidential witness cited as witness No.22 in

the charge-sheet.

5. At that time one unknown supporter of naxalites

gang came into that hotel and he took with him police informant

Sainu Usandi (deceased). Thereafter within 5 to 10 minutes the

accused No.4 Khedu @ chandu Ghosu Naroti, No.5 Pandu Irpa

Hedo, No.6 Sadhu Madhu Hichami along with the aforesaid

some of the absconding accused came into that hotel. They

started making enquiry with deceased Dayal Meshram and

Tulsiram Durge. They told them that they are called by their

party. Said two persons avoided to go with them and therefore

the said accused persons assaulted both of them and forcibly

took them into the forest area. Thereafter the other accused

also joined the aforesaid accused persons who abducted both

the aforesaid police officials namely Dayal Meshram and

Tulsiram Durge along with police informant Sainu Usandi in that

forest area.

6. The police informant namely Sainu Usandi and the

aforesaid two police officials namely Dayal Meshram and

Tulsiram Durge were taken by all the aforesaid accused and

absconding accused from place to place in the forest area of

villages of Maharashtra State namely Pendulwahi and Karrem.

The accused persons also tied their hands and assaulted them

from time to time and also served them food at different places.

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On 21.7.1992 all the accused persons held a meeting at 9 A.M.

It was decided by them that one of the police official namely

Tulsiram Durge be taken to the secretary of their group called as

Bhupati . Therefore the absconding accused Mansai Rati Usandi

and one of the accused No.6 Sadhu Mahadu Hichami and

another absconding accused handed over Tulsiram Durge to

another absconding accused Somji Roku Naroti. Then Tulsiram

Durge was moved by the accused No.8 Madi Lalsu Lakami, No.9

Sishu Maharu Naroti and three other absconding accused in

forest area from 23.7.1992 to 27.7.1992.

7. As per direction of absconding accused Rushi Potavi

Hedo, the deceased Dayal Meshram and Sainu Usandi were

forcibly taken by accused No.1 Buddhu Bitlu Gota, No.2 Sanku

Dama Potavi, No.3 Mora Manku Usandi, No.4 Khedu Moda

Halami and some of the other absconding accused to other areas

of the forest. Thereupon the accused No.2 Sanku Dama Potavi

caused the deceased Dayal Meshram to fall down. The

absconding accused Zharu Ganu Korami caught hold his legs.

The another absconding accused namely Chandrika Jetu Raut

then slit the neck of deceased Dayal Meshram by means of a

dagger and killed him on the spot. The aforesaid accused then

put the dead body of deceased Dayal Meshram in a pit and

covered it by stones. Like-wise the aforesaid accused killed

deceased Sainu Usandi by cutting his neck by means of dagger.

His dead body was also put in a pit and stones were placed on it.

8. When police received information about abduction of

the aforesaid two police officials and police informant, search

was started by police, Due to the exhaustive search made by

police the aforesaid accused were pressurised. As a result of

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thereof they released one of the abducted police official namely

Tulsiram Durge on 27.7.1992. The accused persons thus

abducted the aforesaid three persons and out of them they killed

two persons in order to strike terror in the minds of Government

functionaries and they also created terror in the minds of the

general people under the threat of guns.

9. On 31.7.1992 police of police station Kasansur

arrested the accused No.1 Buddhu Bitlu Gota and absconding

accused Lingu Karya Gota on suspicion. They made confessional

statements before police and panchas on 31.7.1992 about killing

of the deceased Dayal Meshram and Sainu Usandi in deep forest

area of village Karrem of Maharashtra State and burying them at

that place. The separate memorandum of their said confessional

statements came to be recorded and they led police party and

panchas into deep forest area of village Karrem and discovered

the dead bodies of deceased Dayal Meshram and Sainu Usandi

which were put in a pits covered by stones. The said dead

bodies after seizure, were sent for post mortem examination to

the Medical Officer,Etapalli on 1.8.1992. On post mortem

examination, Medical officer opined about their cause of death

as cardio respiratory due to asphyxia due to trachial injury.

10. FIR was registered on 1.8.1992 at Kasansur police

station of Sub-Division Etapalli,District Gadchiroli (Maharashtra

State) on the report of Y.S.Ambadkar, Police Sub-Inspector

attached to Kasansur police station in respect of the aforesaid

incident. Crime No.11/1992 was given to the said crime which

was registered for the offences punishable under sections 302,

201 and 364 of IPC.

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11. During investigation statement of the sole eye

witness namely Tulsiram Bhuraji Durge (PW-6) was recorded by

police. The clothes of the deceased Dayal Meshram and Sainu

Usandi were seized after their post mortem examination. During

search operation, the forest areas were raided by the police

party and in those raids, in all 20 accused were arrested by

police during that search operation. The accused No.2 Sanku

Dama Potavi and No.3 Mora Manku Usandi were arrested on

7.8.1992. The accused No.4 Khedu @ Chandu Ghosu Naroti was

arrested on 11.8.1992. The accused No.5 Pandu Irpa Hedo was

arrested on 18.9.1992. The accused No.6 Sadhu Mahadu

Hichami was arrested on 19.10.1993. The accused No.7 Mahu

Moda Halami was arrested on 25.11.1993. The accused No.8

Madi Lalsu Lakami and accused No.9 Shishu Maharu were

arrested on 28.2.1994. The accused No.10 Bandu Pandu Gota

was arrested on 20.2.1997. The remaining twelve accused were

also arrested on different dates but they subsequently

absconded after they were released on bail.

12. During course of investigation the plain soil as well

as soil mixed with blood were seized from the place of incident

on 31.7.1992. One gun called as Bharmar was discovered at the

instance of accused Rushi Pati Hedo (absconding), which was

seized on 10.8.1992. Another gun, cartridges and hand made

grenades were also discovered at the instance of absconding

accused Mansai Rati Usandi which were seized on 13.8.1992.

One telephone diary and Rs.70/- were also seized from the

possession of absconding accused Rati Usandi. The absconding

accused Somji Ganu Korami had handed over some clothes used

by naxalites to Barsu Hedo for preserving them. They were

seized by police from Deorao Barsu, the son of Barsu Hedo on

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6.9.1992. Similar other clothes were handed over by accused

No.10 Bandu Gota to Chandu Atram which were seized by police

from Chandu Atram on 6.9.1992. Discovery of 12 bore gun was

made at the instance of absconding accused Tirka Buklu Velda

which was seized on 18.9.1992. Discovery of another gun was

also made at the instance of accused No.5 Pandu Irpa Hedo

which was seized on 18.9.1992.

13. The seized bombs were diffused on 29.9.1993 by

Bomb Detection and Destruction Squad,Nagpur. The substance

removed from those bombs was preserved for examination. The

seized soil and clothes were sent to chemical analyser,Nagpur

for examination and report. Reports about the said examination

were received after their examination. The seized guns and the

cartridges were sent to Ballistic expert,Mumbai for examination.

He issued certificate after examination. The substance removed

from the diffused bombs was sent to chemical analyser for

examination. He issued certificate after that examination.

14. On 4.8.1992 the investigating officer (PW-12)

received permission for application of the provisions of TADA Act

to the present Crime No.11/1992. As per the request of the said

investigating officer, the Taluka Executive Magistrate,Etapalli

(PW-8) held test identification parade for identification of 15

arrested accused persons by the sole eye witness Tulsiram

Durge (PW-6) on 14.10.1992 in presence of panch witnesses.

Each of the said 15 accused were caused to stand up in row of

six dummies and the said witness Tulsiram Durge was called for

identification in presence of panchas. The said witness

identified each of 15 accused persons at the time of each

identification parade as the same persons who along with other

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accused had kidnapped him from Irapnar Bazar and later joined

the party who kidnapped Dayal Meshram. The memorandum

and chart were prepared in respect of each of the said

identification parade by the said Taluka Executive Magistrate.

15. On 8.10.1993 a proposal was sent by the

investigating officer (PW-13) to Director General of

Police,Maharashtra State,Mumbai through superintendent of

Police,Gadchiroli requesting him to grant sanction for filing the

charge-sheet before the Court under the provisions of TADA Act.

The arrested accused No.6 Sadhu Mahadu Hichami expressed

his willingness to give confessional statement and therefore

Mr.S.K.Jaiswal, the Superintendent of Police,Gadchiroli recorded

his confessional statement. The arrested accused No.7 Mahu

Moda Halami was ready to give confessional statement and

therefore his confessional statement was recorded by PW-10

Shantaram Waghmare, Asstt. Superintendent of Police,Aheri.

The another accused No.5 Pandu Irpa Hedo showed his

willingness for giving his confessional statement. Accordingly

his confessional statement was recorded by PW-9 Ravindra

Kedari, the Addl.Superintendent of Police,Aheri. So also the

arrested accused No.1 Buddhu Bitlu Gota showed his

willingness for giving confessional statement. Accordingly his

confessional statement was recorded by PW-9 Ravindra Kedari.

The another absconding accused Karya Gota showed his

willingness for giving confessional statement. Accordingly his

confessional statement was recorded by Mr.R.M.Kedari (PW-9).

So also the confessional statement of absconding accused Ramji

@ Tirka Bablu Velda was recorded by Mr.R.M.Kedari as per the

willingness given by the said accused. The confessional

statement of another co-accused Mansai Rati Usandi

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(absconding) was also recorded by Mr.R.M.Kedari as per the

willingness given by him. The said accused persons in their

respective respective confessional statements admitted their

respective guilt.

16. The sanction order for filing the charge-sheet under

the provisions of TADA Act was received by the investigating

officer (PW-13) Namdeo Chavan. Therefore on completion of

investigation, the said investigating officer forwarded charge-

sheet to this Court against the accused persons for the offences

punishable under sections, 364, 302, 201, 109 r/w 34 of Indian

Penal Code, 3 r/w 25 of Arms Act, 3 and 4 of the Explosive

Substances Act and 3 and 4 of TADA Act.

17. During the pendency of the trial, except the accused

No.1 Buddhu Bitlue Gota and No.5 Pandu Gota, the rests of the

accused were granted bail. However most of the accused who

were granted bail, were absconded and though efforts were

made to secure their presence, they could not be arrested and

produced before the Court. Therefore my learned predecessor

Mr.R.V.Deshmukh passed an order below Ex.126 on 19.4.2005 of

under -trial prisoners and thereby splitted the case of those

absconding accused in order to avoid the protraction of the trial

against the aforesaid under -trial prisoners.

18. My aforesaid learned predecessor Mr.R.V.Deshmukh

framed charge against the accused Mahu Moda Halami and

Bandu Pandu Gota at Ex.129, against the accused Khedu @

Chandu Naroti and Sadhu Mahadu Hichami and Pandu Irapa

Hedo at Ex.132, against accused Madi Lalsu Lakami and

Bichanga Soma Naroti at at Ex.137, Shishu Mahadu Naroti at

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Ex.142 and Sanku Dama Potavi and Samru Baju Matami at

Ex.145. Thereafter when I resumed the charge of this Court, I

framed charge against the accused Buddhu Gota at Ex.188 and

accused Mora Manku Potavi at Ex.341. The aforesaid charges

were framed for the offences punishable under sections 368, 302

4/w 149 of I.P.C, Section 3 r/w 25 of Arms Act and Sections 3

and 4 of TADA Act. They were read over and explained to each

of the accused in vernacular. They pleaded not guilty and

claimed to be tried. After above charge was framed, two

accused namely Samru Baju Mattami and Bichanga Soma Naroti

absconded. Hence their case was separated as per order passed

below Ex.1 on 13.4.2007. The defence of accused persons

appear to be of total denial. They adduced no defence evidence.

19. Following points arise for my determination. My

findings are also recorded against them for the reasons to

follow:

Points Findings

1. Whether the prosecution has proved that on or about 19.7.1992or in between 19.7.1992 and 27.7.1992 in the forest area of village Karrem, the deceased Dayal Tarachand Meshram, an Asstt. Intelligent Officer met with homicidal death?. ... Yes

2. Whether the prosecution has further proved that on or about 19.7.1992 or in between 19.7.1992 and 27.7.1992 in forest area of village Karrem, the deceased police informant namely Sainu Sukru Usandi met with homicidal death? ..... Yes

3. Whether the prosecution has further proved that on or about 19.7.1992 in between 19.7.1992 and 27.7.1992 at about 2 P.M. to 2.30 P.M. the aforesaid accused persons Nos.1

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to 10 viz.Buddhu Bitlu Gota, Sanku Dama Potavi,Mora Manku Potavi, Khedu @ Chandu Naroti,Pandu Irapa Hedo, Sadhu Mahadu Hichami,Mahu Moda Halami, Madi Laltu Lakami, Shishu Maharu Naroti and Bandu Pandu Gota along with the other absconding accused formed an unlawful assembly at the forest areas of villages namely Ghotsur, Karrem and Pendulwahi and did in prosecution of the common object of said assembly viz.abducting Tulsiram Durge, Dayal Meshram and Sainu Usandi and intentionally causing their death and committed offence of rioting and at that time they were armed with deadly weapons namely guns? .. Proved against

the accused Nos. 1,2,4,5,6,8 and 10 only.

4. Whether the prosecution has further proved that on or about 19.7.2007 at 2 p.m.to 2.30 p.m. or in between 19.7.1992 and and 27.7.1992 at village Irapnar the aforesaid accused Nos.1 to 10 along with the other absconding accused were the members of unlawful assembly and in prosecution of the aforesaid common object of committing murder of the aforesaid three persons namely Tulsiram Durge, Dayal Meshram and Sainu Usandi, they abducted them in order that they may be murdered? .... Proved against

accused Nos.1,2,4 5,6,8 and 10 only.

5. Whether the prosecution has further proved that on or about 19.7.1992or in between 19.7.1992 and 27.7.1992 the aforesaid accused Nos.1 to 10 along with the other absconding accused persons were the members of unlawful assembly and in prosecution of the aforesaidcommon object of which one of the member intentionally caused the death of deceased Dayal Tarachand Meshram and Sainu Usandi and committed

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the offence of murder of which the aforesaid accused Nos.1 to 10 knew to be likely to be committed in prosecution of the aforesaid common object of their unlawful assembly? .... Proved against the

accused Nos.1,2,4, 5,6,8 and 10 only.

6. Whether the prosecution has further proved that on or about 19.7.1992 or in between 19.7.1992 and 27.7.1992 in forest areas of villages namely Ghotsur,Karrem and Pendulwahi, the aforesaid accused Nos.1 to 10 were armed with guns and cartridges without license? .... Does not

survive for want of sanction.

7. Whether the prosecution has further proved that on or about 19.7.1992 or in between 19.7.1992 and 27.7.1992 the aforesaid accused Nos.1 to 10 along with the other absconding accused intentionally caused the death of deceased Dayal Meshram, Sainu Usandi and thereby committed the offence of murder with weapons so as to strike terror in the minds of people or with intention to overawe the Government? .... Does not

survive for want for want of valid sanction.

9. Whether the prosecution has further proved that on or about 19.7.1992 or in between 19.7.1992 and 27.7.1992 in the forest areas of villages Ghotsur, Karrem and Pendulwahi the aforesaid accused Nos.1 to 10 along with the absconding accused committed disruptiveactivities by committing murder intentionally causing death of deceased Dayal Meshramand Sainu Usandi with intention to

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disrupt sovereignty and territorial integrity of India? ..... Does not

survive for want of valid sanction.

10. What offence if any is proved against the aforesaid accused Nos.1 to 10?.. Offences

punishable U/ss.148, 302 r/w 149,364 r/w 149 are proved against accused Nos.1,2,4,5,6,8 and 10 only.

11. What order?... As per final order below.

REASONSAs to Point Nos.1 and 2:

20. At the outset, it is worthy to note that the accused

have not challenged the homicidal death of the two deceased

persons namely Dayal Tarachand Meshram and Sainu Sukru

Usandi. The learned defence Counsels admitted the post

mortem examination reports Exs.276 and 278 prepared and

submitted by medical officer after examination of the dead

bodies of the aforesaid two persons. They further admitted the

sketch map Ex.279 of the place of the incident from where the

dead bodies of the aforesaid two deceased persons were

recovered. They further admitted the death certificates Ex.280

and 281 issued by the Secretary of Gram Panchayat,Karrem in

respect of the death of the aforesaid two persons. The aforesaid

defence Counsels admitted the aforesaid documents in

pursuance of the notice Ex.264 served upon them by the learned

Public Prosecutor, Mr.P.K.Sathainathan vide Section 294 of

Cr.P.C.

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21. The medical officer in the aforesaid two post mortem

reports Ex.276 and 278 opined about the probable cause of

death of the aforesaid two persons as cardio respiratory arrest

due to Asphyxia due to trachial injury. He found ante mortem

injury as trachea was cut completely.

The dead bodies of both the aforesaid persons were

found in deep forest area as covered under the stones.

Identification of those dead bodies as of Dayal Meshram and

Sainu Usandi is also not challenged by the defence Counsels.

The dead body of deceased Dayal Meshram was identified by a

police officer namely PW-5 Nitaram Umare under whom the

deceased had worked. The dead body of deceased Sainu Usandi

was identified by a police constable Prakash Tichkule as seen

from inquest panchnama Ex.172 prepared by police about the

dead body of said deceased Sainu Usandi.

22. The recovery of the dead bodies of the aforesaid two

persons from the deep forest area has also been proved by

independent panch witness PW-3 Bandu Pandharu Korami . He

deposed that in his presence those dead bodies were recovered

by police and inquest panchnamas Ex.169 and 172 were

prepared by police and signed by him in respect of those dead

bodies of Dayal Meshram and Sainu Usandi.

23. The PW-5 Nitaram Umare, the Asstt.Commissioner of

Police in his evidence at Ex.193 has also deposed that dead body

of deceased Dayal Meshram was discovered as shown by

accused Buddhu and another dead body was discovered as

shown by absconding accused Lingu Gota in the deep forest

area.

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24. As per evidence of the sole eye witness PW-6

Tulsiram Bhuraji Durge, he and the aforesaid two deceased

persons namely Dayal Meshram and Sainu Usandi were

kidnapped by group of naxalites from the hotel of village Irapnar

and thereafter he was separated by those groups from both the

deceased persons. The defence Counsels have not challenged

the abduction of PW-6 Tulsiram Durge, deceased Dayal Meshram

and Sainu Usandi from the hotel of village Irapnar and later on

release of Tulsiram Durge only and killing of deceased Dayal

Meshram and Sainu Usandi in forest area. The dead bodies of

said two persons were discovered after their abduction. PW-6

Tulsiram Durge has given the names of persons who abducted

him and the deceased persons in his evidence and he identified

some of the accused persons before this Court also as the

persons who abducted him and other two persons. The question

about reliability of his evidence about identification of the said

accused will be considered in later part of this judgment.

However I find that from the aforesaid unchallenged evidence, it

is established by the prosecution that deceased Dayal Meshram

and Sainu Usandi met with homicidal death due to slitting of

their neck by sharp cutting weapons on or in between 19.7.1992

and 27.7.1992 in forest of village Karrem. Therefore the

aforesaid point Nos.1 and 2 are decided in affirmative.

As to rest of the Points:

25. In order to establish the nexus in between the

aforesaid accused Nos.1 to 10 and the homicidal death of

deceased Dayal Meshram and Sainu Usandi, the prosecution

examined following witnesses.

1) PW-1 Sainath Ramchandra Surguniwar (Ex.160)

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(panch witness).

2) PW-2 Raiji Manglu Madavi(Ex.161) (Panch witness).

3) PW-3 Bandu Pandharu Korami (Ex.167) (Panchwitness).

4) PW-4 Sannyasi Kazu Istam (Ex.180) (Panch witness).

5) PW-5 Nitaram Zinarao Umare (Ex.193) (Investigating Officer).

6) PW-6 Tulsiram Bhuraji Durge (Ex. 198 ) (Eye witness).

7) PW-7 Chandu Antu Atram (Ex.200) (Witness about handing over all bundles of clothes of naxalites by accused Pandu Gota to him and later on their discovery).

8) PW-8 Pravin Devidas Badkilwar (Ex.231) (Taluka Executive Magistrate who held identification parade regarding 15 accused persons).

9) PW-9 Ravindra Mahadeorao Kedari (Ex.232-A)(Addl.Superintendent of Police who recorded alleged confessional statements of accused No.5Pandu Irpa Hedo and No.1 Buddhu Bitlu Gota.

10) PW-10 Shantaram Dhondiram Waghmare (Ex.239) (Addl.Superintendent of Police who recorded alleged confessional statement of accused No.7 Mahu Moda Halami.

11) PW-11 Subhodkumar Jaiswal (Ex.250) (Who recorded the alleged confessional statement of accused Sadhu Mahadu Hichami).

12) PW-12 Chandrakant Gangaram Kumbhar (Ex. 255 (Investigating Officer).

13) PW-13 Namdeo Nyano Chavan (Ex.272)(Investigating officer).

14) PW-14 Vikas Navnath Dhakne (Ex.331) (Police officerwho obtained true copy of sanction order Ex.332from the office of Director General of Police,Mumbai)

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26. The learned Public Prosecutor, Mr.P.K.Sathainathan

submitted that the sole testimony of eye witness namely PW-6

Tulsiram Durge is very clear, cogent, natural and probable so as

to establish the nexus in between homicidal death of deceased

Dayal Meshram and Sainu Usandi and the accused persons who

are facing trial before this Court. He further submitted that the

theory of 'last seen' is also applicable in the present case when

as per the evidence of aforesaid eye witness PW-6 Tulsiram

Durge, the accused had lastly taken away deceased Dayal

Meshram and Sainu Usandi after abduction by separating them

from him. Thus Mr.P.K.Sathainathan submitted that after that

separation the dead bodies of the said two deceased persons

were found in the same forest area.

27. Mr.P.K.Sathainathan, the learned Public Prosecutor

further submitted that it is now for the defence to show as to

how the said two deceased persons died after their abduction by

them. He further submitted that PW-6 Tulsiram Durge (eye

witness) during the test identification parade also identified all

the accused persons. He also submitted that the PW-8 Pravin

Badkilwar, the Taluka Executive Magistrate has duly held test

identification parade and proved memorandums with charts

prepared by him during that parade. He also submitted that

before this Court also PW-6 Tulsiram Durge (eye witness)

identified seven accused persons to be the same who abducted

him and other two deceased persons and moved them in deep

forest area from place to place. He thus submitted that the

identification of accused by the said witness therefore cannot be

doubted.

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28. Mr.P.K.Sathainathan, the learned Public Prosecutor

further submitted that the prosecution has proved that the

accused namely No.5 Pandu Irpa Hedo, No.7 Mahu Moda

Halami, No.6 Sadhu Mahadu Hichami and No.1 Buddhu Gota

have made their voluntarily confessional statements before the

respective competent police officers and that those confessions

also support the oral evidence of PW-6 Tulsiram Durge ( eye

witness) regarding the direct incident. He has also relied upon

the observations made by the Hon'ble Supreme Court in the

cases as regards the value of prosecution evidence and aforesaid

confessional statements, which will be discussed in latter course

of this judgment.

29. The learned Public Prosecutor thus submitted that

the prosecution evidence is sufficient, cogent and reliable to

hold that the accused persons initially abducted PW-6 Tulsiram

Durge (eye witness), Dayal Meshram and deceased Sainu

Usandi from the hotel of Irapnar in order to kill them and then

moved them from place to place in deep forest areas and

thereafter intentionally caused the death of deceased Dayal

Meshram and Sainu Usandi and released Tulsiram Durge due to

the pressure of police.

30. On the other hand Mr.Anthony, the learned defence

Counsel appearing for the accused Nos.1 to 9 except accused

No.10 Bandu Pandu Gota submitted that out of arrested 22

accused persons, only ten are facing trial before this Court and

rests are absconding and that almost all the panch witnesses

have not supported the prosecution case and turned hostile. He

further submitted that the evidence of PW-6 Tulsiram Durge (eye

20

witness) is not cogent and reliable about correct identity of the

accused persons as he identified seven accused before this Court

after about 15 years of the incident and that during those 15

years the physical appearance of those accused persons has

been totally changed. He further submitted that test

identification parade was also held after three months of the

arrest of the accused persons. He also submitted that on single

day within a short time no such identification parade for 15

accused is probable as claimed by PW-8 Pravin Badkilwar. He

further submitted that initially Crime No.93/92 was registered in

Madhya Pradesh State, but none of the accused came to be

arrested by police of Madhya Pradesh State. He further

submitted that Ambadkar who lodged the FIR 256 is not

examined by the prosecution. He thus submitted that the owner

of the hotel of Irapnar is not examined in support of evidence of

PW-6 Tulsiram Durge. He also submitted that the panch

witnesses of the alleged test identification parade are also not

examined by the prosecution. He further submitted that the

alleged confessional statements of the accused persons cannot

be relied upon as they are not recorded in the respective mother

tongue of the accused persons and that the provisions of Section

15 of TADA Act are not followed by the investigating officer

regarding those statements. Thus Mr.Anthony , the learned

defence Counsel submitted that the prosecution has failed to

establish the nexus in between the homicidal death of Dayal

Meshram and Sainu Usandi and the accused persons.

31. Another learned Counsel Mr.Gadling appearing for

the accused No.10 Banu Pandu Gota submitted that the alleged

test identification parade was held by PW-8 Pravin Badkilwar in

a very casual manner and without following the rules. He further

21

submitted that common dummies were used for 15 accused

persons at the time of said identification parade which is also

against the rules. He also submitted that there are serious

omissions and contradictions in the evidence of PW-6 Tulsiram

Durge as regards the direct incident and hence his evidence is

not trustworthy. He also submitted that the seized arms were

not produced before the Court for identification. He also

submitted that accused were not produced before the Chief

Judicial Magistrate as provided under rule 15 of TADA Rules

1987. He thus submitted that the confessional statements

cannot be said to be made voluntarily and therefore they cannot

be relied upon. He relied upon the observations made in the

cases by the Hon'ble Supreme Court, which will be discussed in

latter course of this judgment.

32. After carefully going through the prosecution

evidence, it is seen that the prosecution has relied upon the

following evidence.

1) The sole eye witness PW-6 Tulsiram Bhuraji Durge.2) Test identification parade.3) The alleged confessional statements made by the

accused persons namely Buddhu Bitlue Gota(Ex.233-A and 234-A), Pandu Irpa Hedo (235-A and 236-A, Mahu Moda Halami (Ex.241 and 242) andSadhu Mahadu Hichami (Ex.252 and 253).

4) Recovery of the alleged incriminating articlesfrom the respective accused.

33. Beginning with the oral evidence of PW-6 Tulsiram

Durge (Ex.198) (eye witness), it is seen that during his evidence

he fully supported the prosecution story as regards the direct

incident. He has given details of his joining at police station

Kasansur going with deceased persons namely Dayal Meshram

22

and Sainu Usandi to Irapar, abduction of himself and the said

two deceased persons by the group of Naxalites and then moving

of all of them in deep forest area from place to place by those

persons and then his separation from the said two deceased

persons by the said group and as to how they were assaulted by

members of said group and how they were served food and lastly

how he was released. The said details are given by him about all

activities right from the date 19.7.1992 to the date 28.7.1992.

His evidence is very material and hence it is necessary to

reproduce his evidence in his own words. It is as follow:

On 15.12.1988 I was recruited in police department at Gadchiroli. I was posted at Kasansur police station in the

year 1991. The incident took place on 19.7.1992.

At that time Dayal Meshram was working as Intelligent

Officer. On 18.7.1992, I along with Dayal Meshram

went from Kasanpur to Jarabandi. We halted there at

night. On 19.7.1992 I along with Dayal Meshram

and informer Sainu Usandi went from Jarabandi to

Bande. On the same day we all went from Bande to

Irapnar. We had received an information that a

person by name Rushi Hedo had collected money

and that he ran away towards Chattisgarh. Therefore

we wanted to apprehend him. I got down from the

motorcycle when the hotel of Irapnar was ahead

at a distance of 100 ft. Sainu and Dayal Meshram

went ahead by motorcycle. I told them to sit in the

hotel of Irapnar. I took round on foot in the bazar

of Irapnar. Thereafter I went to the hotel of Irapnar

where Dayal Meshram and Sainu were sitting. I saw

there Dayal Meshram as sitting alone. Dayal

Meshram told me that two to three persons wearing

23

plain clothes had come there and they have taken

away Sainu. Dayal Meshram said that he was not

knowing the persons, who were in plain dress. We

sat there waiting the arrival of Sainu Usandi. We

waited there for half an hour to one hour. At that

time about 10 persons came into that hotel in plain

clothes. About 5 to 6 persons were seen outside that

hotel. Those five to six persons called us and asked

us as to what is our names and place of residence. Dayal

Meshram said that he is a contractor and he has

come from Etapalli. Those persons asked me as to

whether I am Durge of Kasansur. I replied in

affirmative. Those persons told Dayal Meshram

that he was telling lie. Dayal Meshram again said

that he is a contractor. Those persons were annoyed.

Those persons told Dayal Meshram that he belonged

to CID and that he was telling lie. Thereafter the

persons who were in the hotel gave push to me and

Dayal Meshram. At that time one of the persons out

of the persons who were in plain dress in the hotel,

dealt a blow with a stick on the head of Dayal

Meshram. Therefore Dayal sustained injury on his

head and the blood was oozing through that injury.

Thereafter two persons held one hand of Dayal

Meshram and other two persons held another hand

of Dayal Meshram. One person caught hold my

one hand and another person caught hold my

another hand. Thereafter 15 to 20 persons took

both of us towards northern side of the hotel in a

forest area upto the distance of 100 ft. to 200 ft.

At that place we saw Sainu as sitting below a tree.

His both hands were seen as tied behind his back.

24

4 to 5 persons were found near by him.

Sainu Usandi after seeing us there, wept

very much. Hands of myself and those of Dayal

Meshram were tied by towel behind our back. At

that time I was wearing Jean pant and shirt. At

that time there were plain clothes of thin lining

on the person of Sainu. Dayal Meshram was wearing

plain shirt and full pant at that time. There was a

river by name Bande at a distance of 2 to 2 ½ Kms.

From that place, half of 15 to 20 persons went

away into the forest area and remaining 7 to

8 persons took me and Dayal Meshram and Sainu

Usandi at the back of Bandi river. They caused

us to sit there for half an hour. Those half of the

persons who had gone into the forest area came

near us after wearing clothes of dark green colour.

Bag and rifles were with them. They were also

holding Muzzle loader (Bharmar) and 12 bore.

We had reached at the river at about 3 to 3.30 p.m.

We halted there for one to one and half hour. Those

persons checked we all. Those persons assaulted

we three persons by means of wooden handle (butt)

of gun. Water was flowing through that river to its

full extent. There was rivulet (nala) by the side of

that river. Those persons took us through that

rivulet ahead.

I can identify today by face the persons who

had caughthold me, Sainu Usandi and Dayal Meshram

and had taken us into the forest area. In all 9 accused

are present today before the Court. They are sitting

25

in one row in the box meant for accused. I can

identify them after going near them. (The witness

after going near all the accused persons, identified

seven accused persons out of nine accused persons.

Those seven accused persons to whom the witness

identified are caused to stand up and they stood up).

I have now identified in all seven accused before the

Court. I can give only the names of three accused

persons out of those accused persons. The names

of those 3 accused persons are Buddhu,

Bandu and Pandu. I can not give the

names of remaining four accused persons

to whom I have identified. The seven accused to

whom I have identified today are the same persons

who had caught hold me, Sainu Usandi and Dayal

Meshram and taken away us. (The remaining four

accused persons to whom the witness identified

but whose names are not given by the witness are

Khedu @ Chandu Ghosu Naroti, Sadhu, Mahadu

Hichami, Madi Lalsu Lakami and Sanku Dama Potavi).

The other persons who were with the said seven

accused persons are not present before the Court.

We three persons were taken away by those

persons beyond the rivulet inside the forest area.

We were kept by them in the forest area for the

whole night. Those persons served food to us. Some

men and women of the village had brought that

food. Those persons after serving food to us took

us upto the distance of 2 km. on foot in the forest

area. They kept us for the whole night at that place

in the forest.

26

On the following morning accused Buddhu,

accused Bichanga, wife of accused Bichanga and

one another woman brought food for we three

persons. I, Dayal Meshram and Sainu Usandi

together ate that food. Thereafter at about 9 a.m.

accused Pandu and accused Tirka Velda came

there. Accused Pandu had left the forest in the

morning and he came back there at 9 a.m.

Thereafter the seven accused persons to whom I

have identified today and other seven to eight

accused persons took me, Sainu Usandi and Dayal

Meshram ahead in forest area upto distance of 5

to 6 Kilometer. At that place there was the area

hillock. Out of the accused persons who had taken

us to that place, some were holding guns called

Bharmar (muzzle loading), some were holding .12

bore guns and some were holding sticks and some

were not holding any arms. Accused Rushi Pati Hedo

was holding .12 bore gun, accused Mansai Rati

Usandi was holding .12 bore gun. I do not know

the names of accused, who were holding guns namely

Bharmar.

After we passed the distance of 5 to 6 Km.,

those persons caused us to remove clothes from

we three persons. They tied hands of we three

persons behind our back. They told us to leave

the employment in police department. They asked

us as to who is the informant. They asked us as to

who caught hold Buddhu Atla and who assaulted

him. They threatened us by saying that we should

27

tell the truth, otherwise they would kill our parents.

After making that enquiry, those persons assaulted

us severely by means of sticks. Those persons

then untied our hands and gave us our clothes for

wearing them. We wore our shirts. Those persons

then took us ahead in the forest area. At that place

there was a big stone and it was an open place. We

three persons and the persons who brought us there,

as such all slept over that stone. We all during that

night had eaten food at the same place.

On the next day i.e. on 21.7.1992 at 9 a.m.

those persons spoke to each other that we three

persons should be taken to Dalam. Those persons

then separated from me, Dayal Meshram and Sainu

Usandi. Those persons asked me as to whether any

person belonging to other Dalam is of my acquaintance.

They then told me that they would take me to

Bhupati, a leader of one Dalam. Thereafter the

accused Mansai Usandi, Pandu Hedo and one boy

said that they would take me to Bhupati and saying

so they took away me. While going away I said that

I have to meet Dayal Meshram and Sainu Usandi.

Those persons did not allow me to meet them.

Thereafter I, Mansai Usandi, Pandu Hedo and one

boy as such four persons went ahead up to 5 to 6

kilormeter distance in the forest area. Dayal Meshram

and Sainu Usandi stayed at the same place along

with 10 to 15 persons. The two accused persons namely

Rushi Pati Hedo and Tirka Buklu Velda were

amongst those 10 to 15 persons who were with Sainu

Usandi and Dayal Meshram.

28

I was taken by three persons namely Mansai

Usandi, Pandu Hedo and one boy ahead into the

forest area. There was hut into that forest. There

somebody brought food for us. We ate there food.

Then those three persons took me to a field which

was adjoining to the forest area. There was one

hut in that field. I and those three persons slept

in that hut.

On 22.7.1992, Mansai, Pandu and one

unidentified person as such three persons took me

on foot ahead in forest area. There was one field

adjoining to that forest. There was one hut in that

field. I and those three persons slept in that hut.

On 23.7.1992 those three persons were taking me

through the forest area. We took meal in the forest

at noon time. Thereafter 3 to 4 persons met us in

the forest. We learnt from those 3 to 4 persons that

police have apprehended some persons of two

villages namely Karka and Shewari. The persons who

were with me, shifted me to the members of other

party. The persons who were with me told me to

write down two letters to my officer to the effect that

the persons who have been apprehended be set free.

Accordingly I wrote such two letters. I handed over

those letters to the persons of the village who had

come there.

The members of another party made me to

move in the forest till 27.7.1992. Those persons

brought me near the river bank at 4 to 5 p.m. Mansai

29

Usandi and his some associates met me there. Mansai

Usandi told me that ''my superior officer had come to

village Shewari and had said that I would be set free

and that those 8 persons who were apprehended

would be also set free'' and that for that purpose

Supdt. Of Police and I.G. called meeting in the

village. Thereafter Mansai Usandi and his associates

detained me in the forest. We took halt during

night in the hut of the forest.

On 28.7.1992 Mansai Usandi in the morning

went into the village. Thereafter one or two hours

Mansai Usandi brought 4 to 5 respectable persons of

the village. Those persons of village made enquiry

with me. Those persons told me that the persons

who apprehended me at Irapnar had put blame on

the people of village in that respect. Those persons

told me that the name of the persons who apprehended

me at Irapnar was Bichanga Naroti. Those persons

told me to give writing to the effect that I was not

assaulted and that the persons of the village who

were apprehended were to be set free and that

thereupon they would release me. As per their say,

I wrote such a letter. On the same day in the evening,

I was set free.

I was abducted so as to kill because I was

supplying information about naxalites and I was

causing to apprehend those Naxalites. I was called

at Etapalli when identification parade was held in

presence of Talula Magistrate. At that time I had

identified 7 to 8 persons who had apprehended me

30

and caused me to move in the forest. The accused

Khedu @ Chandu Naroti and Pandu

Irpa Hedo are the two accused out of

those persons. Separate identification parade was

taken for each of the accused.

35. The aforesaid eye witness PW-6 Tulsiram Durge in

his cross-examination deposed that after he was released, he

took treatment in hospital for 5 days and during those five days

his senior police officers were paying visit to him. In his cross-

examination he denied the suggestion of learned defence

Counsels that the accused persons who were in police custody in

other crimes were shown as accused by Kumbhar(I.O.) in his

statement and therefore on that basis he has given names of

those accused in his evidence. He denied the suggestion of the

learned defence Counsels that no identification parade was held

in his presence. He also deposed that he was admitted in

hospital on 30.7.1992 and he was discharged from hospital on

7.8.1992. He also deposed that as he was taking treatment in

hospital police did not record his statement so that he should not

feel any difficulty. He deposed that his statement was recorded

on 7.8.1992 after he was discharged from hospital. He also

deposed that his further statement was recorded on 14.10.1992.

PW-6 Tulsiram Durge in his further cross-examination by learned

defence Counsels deposed that he does not remember as to

whether accused Sadhu, Madi, Khedu, Mahu and Shishu were

present or not at the time of place of identification parade. In

his further cross-examination he also deposed that in his

statement dated 7.8.1992 and 14.10.1992 before police he did

not state the names of accused Buddhu, Bandu, Khedu. Sadhu,

Madi and Sanku as at that time he did not know those accused

31

by their names and that he learnt the name of the accused

Sadhu at the time of identification parade. He also deposed that

he learnt the name of accused Bandu after 10 to 12 days of

identification parade. In his further cross-examination he denied

the suggestion of the learned defence counsels that when he had

come to the Court earlier, police told him the names of those

accused persons.

36. The prosecution has examined PW-9 Pravin

Badkilwar, Taluka Executive Magistrate who conducted test

identification parade for identification of 15 accused persons by

the aforesaid witness PW-6 Tulsiram Durge. He was working as

Tahsildar at Etapalli in the year 1992. He deposed that he was

also vested with the powers of an Executive Magistrate. He also

deposed that the Judicial Magistrate Ist Class, Sironcha had

given him direction to hold identification parade and therefore

he conducted that identification parade on 13.10.1992 and

14.10.1992. According to his evidence, he conducted in all 15

test identification parade for each of the accused separately out

of 15 accused persons for identification by witness Tulsiram

Bhuraji Durge. He deposed that he conducted test identification

parade in Tahsil office at Etapalli and all accused were caused to

sit in one room and all witnesses were caused to sit in another

room. His further evidence is material and therefore reproduced

below.

''Two panchas were present at the place of

identification parade. Nobody belonging to police was

present at the place of identification parade. I held

identification parade in meeting hall of Tahsil office.

32

Initially I and both the panchas were present in that

hall. I sent one panch and called in that meeting hall

one of the accused. Thereafter as per my instruction

one of the employee of my office called six persons

who were of the age group and height of the accused

No.1, in the meeting hall. I caused those six persons

to stand in one row. I asked accused no.1 to stand

up amongst those six persons. Thereafter said accused

stood in between the said persons. Then I called

through one panch, a witness namely Tulsiram Bhuraji

Durge. The said witness identified the accused

after touching him by hand. The said accused

gave his own name as Buddhu Gota. The said witness

said that the said was present at the place of

separation in Pendulwahi forest on 21.7.1992. I

prepared a memorandum about identification of

accused by the witness. I also prepared a chart

along with it. I am now shown one memorandum.

It bears my signature. It also bears signatures of

both panchas. Its contents are correct. It is at

Ex.209. The chart which is attached to that

memorandum also bears my signature.''

''As per the above procedure, I called each of

the accused one after another through the panch

33

witnesses and I also called each time six persons

of age group and height of said accused and thereafter

I asked the witness to identify the accused each time.

The witness identified each of accused. As per said

procedure the aforesaid witness identified all those 15

accused persons. I prepared memorandum and

chart each time about identification of each of the

accused by the aforesaid witness each time. All the

15 accused were identified by only one witness. I

prepared in all 15 memorandums along with chart.

The 15 memorandums along with chart which are

are now shown to me are the same. All those

memorandums and chart bear my signature. The

contents of all them are correct. Those memorandums

which are annexed with chart are at Ex.209 to 223.''

37. In his cross-examination the said witness PW-9)

deposed that he had no idea about appearance of the accused till

the date of identification parade and that he does not know at

whose instance the witness had come to the place of

identification parade. He further deposed that he completed the

proceeding of test identification parade relating to each and

every accused within five minutes. He also deposed that

employee of his office at one time had called all the persons

having appearance like that of the accused and caused them to

sit in Tahsil office. He in his cross-examination deposed that

34

there were in all 4 to 5 rooms in the building of that Tahsil office

and there was one room out of them, which was used as his

chamber and that there was one meeting hall and other three

other rooms for the staff in that building. He further deposed

that staff members were sitting in the meeting hall. The meeting

hall was of the size of 40 ft. x 30 ft. He denied the suggestion of

the learned defence counsels that he did not conduct the test

identification parade in Tahsil office and that false documents

were prepared by him.

38. It is seen from the aforesaid memorandums prepared

by PW-8 Pravin Badkilwar which at Exs.209 to 223 about test

identification parade that the aforesaid witness Tulsiram

Bhuraji Durge (PW-6) has identified in all 15 accused persons

and out of them the accused who are present and facing the trial

are accused No.1 Buddhu Bitlu Gota, No.2 Sanku Dama Potavi,

No.3 Mora Manku Potavi, No.4 Khedu @ Chandu Ghosu Naroti

and No.5 Pandu Irapa Hedo. However before this Court during

evidence PW-6 Tulsiram Bhuraji Durge has identified the

accused No.1 Buddhu Bitlu Gota, No.2 Sanku Dama Potavi, No.4

Khedu @ Chandu Ghosu Naroti, No.5 Pandu Irapa Hedo, No.6

Sadhu Mahadu Hichami, No.8 Madi Laltu Lakami and No.10

Bandu Pandu Gota, out of ten accused persons who are present

and facing trial before this Court. Thus the said PW-6 Tulsiram

Durge has not identified the accused No.7 Mahu Moda Halami

and No.3 Mora Manku Potavi and No.9 Shushu Maharu Naroti

before this Court. No test identification parade was held in

respect of the identification of the accused No.9 Shishu Maharu

Naroti. Therefore for want of identification accused No.9 Shishu

Maharu Naroti is entitled to get the benefit of doubt and like-

35

wise accused No.3 Mora Manku Potavi and accused No.7 Mahu

Moda Halami are also entitled to get the benefit of doubt.

Though the accused No.3 Mora Potavi was identified during test

identification parade, he was not identified before the court by

PW-6 Tulsiram Durge.

39. Mr.Gadling, the learned defence counsel has relied

upon the observations made in the case of Rakesh Harilal

Kahar..Vs.. State of Maharashtra (2006 ALL MR (Cri)3062

by the Hon'ble Bombay Court. The following observations are

made in it.

''It is obligatory for Special Executive Executive Officer to ask the witness as to whether he had opportunity to see the suspect or his photograph prior to the parade. That is the requirement stipulated in the High Court Criminal Manual and it is mandatory to be observed. On this reasoning,the test identification parade conducted in the present case will have to be discarded.''

In the instant case the evidence of Taluka Executive

Magistrate PW-8 Pravin Badkilwar is silent as to whether he had

asked the sole witness PW-6 Tulsiram Durge that he had

opportunity to see the suspect or their photographs prior to the

parade. The memorandums Ex.209 to 223 prepared about the

said identification parade are also silent as regards the aforesaid

query. Therefore it cannot be presumed that such query is made

by the said Taluka Executive Magistrate to the witness Tulsiram

Durge. Therefore applying the aforesaid case law to the present

case, the test identification parade will have to be discarded.

36

40. The test identification parade about each of the

accused was conducted within 5 to 10 minutes, however on that

sole ground the said test identification parade cannot be

discarded. Moreover dummies who were called to stand with

the accused at the time of identification parade were unknown

persons. They were called by the employee of Tahsil office

where PW-8 Pravin Badkilwar was working. It is not known from

where those dummies were called. On this ground also the test

identification parade is liable to be discarded.

41. In the instant case also admittedly the deceased

Dayal Meshram and Sainu Usandi along with PW-6 Tulsiram

Durge were abducted by the group of 22 or more persons from

the hotel of Irapnar and that subsequently the dead bodies of

deceased Dayal Meshram and Sainu Usandi were recovered and

as observed above met with homicidal death. The PW-6

Tulsiram Durge in his aforesaid evidence has deposed as noted

above that out of nine accused persons present before the court

in all seven accused were those who had caught hold him, Sainu

usandi and Dayal Meshram and then taken away them. He had

given the names of three accused Buddhu, Bandu and Pandu out

of seven accused persons and he did not know the names of

remaining four accused persons whose names are found as

Khedu @Chandu Ghosu Naroti, Sadhu Mahadu Hichami, Madi

Lalsu Lakami and Sanku Dama Potavi. The aforesaid seven

accused are arrayed in the present judgment as accused

Nos.1,2,4,5,6,8 and 10. I have found that the test identification

parade is to be discarded for the reasons given above. Now the

question as to whether the sole testimony of PW-6 Tulsiram

Durge as regards identification of the seven accused before this

Court is sufficient and reliable. In this context useful reference

37

may be made to the observations made by the Hon'ble Supreme

Court in the case of State of Haryana ..Vs.. Dayalsingh and

others (AIR 2001 Supreme Court 1188).

'' In that case there was delay in holding test identification parade. Their evidence and cross-examination showed that they gained enduring impress of identity of accused during incident. There was delay in trial. The said two injured eye witnesses had identified the accused before the Court after seven or eight years. The Hon'ble Supreme Court held that it would not affect the evidence of said witness.The Hon'ble Supreme Court further held that no interference is called for any conviction of accused on the basis of their testimony and that the fact Tehsildar who conducted parade and Police Officer who recorded confessional statement of accused failed to identify the accused in the Court would not be material.

The following observations are also made in the said

case by the Hon'ble Supreme Court.

''The purpose of test identification is to have corroboration to the evidence of the eye-witnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. Further, where reasons for gaining an enduring impress of the identity on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion –what is present day social environment infested by terrorism is really unimportant. In such cases, not holding of identification parade is not fatal to the prosecution.''

It has also been observed by the Hon'ble Supreme

38

Court in the said case that --

''The delay in trial by Designated Judge for one reason or the other and thereafter identification of the accused in the Court after seven or eight years would not affect the evidence of these two witnesses and that the incident took place in a house of M.L.A.situated in the city, at evening time between 8.00 to 8.30 p.m. (in the month of April) and not dead at night, where there may be difficulty of seeing the faces of the accused.''

The following observations are also made in the said case.

''In the instant case it is true that the two injured eye-witnesses have lost their son,daughter-in-law and son of brother in-law and that it was extraordinary experience for them to be assaulted by terrorists. But, it would be difficult to hold that at that time,they had lost their power or perception.Theoretically in some cases the emotional balance of the victim or eye-witness is so disturbed by his extraordinary experience that his powers of perception become distorted and his identification is untrustworthyit may be true that for that purpose, the evidence of the witness is required to be appreciated with extra care and caution. But,where evidence is cogent, consistent and without any motive, it is no use to imagine and magnify theoretical possibilities with regard to the state of mind of the witnesses and with regard to their power of memorizing the identity of the assailants. Power of perception and memorising differs from man to man and also depends upon situation. It also depends upon capacity to recapitulate what has been seen earlier. But that would depend upon the strength or trustworthiness of the witnesses who have identified the accused in the CourtFurther the identification of the accused in the Court was out of 14 persons. That itself would lend credence to identification by the

39

said witnesses.''

In my view the aforesaid case law is applicable to the

present case. The PW-6 Tulsiram Durge witnessed the incident

as noted above directly from the date 19.7.1992 to the date

27.7.1992 during the day time. The aforesaid seven accused

identified by him before this Court were observed by him for

such a long period of 9 days. The said accused were in the

company of said witness PW-6 Tulsiram Durge for a considerable

period. They had held talk with the said witness from time to

time during that period. The said witness had taken food with

some of them from time to time. It does not appear that the said

witness had lost his emotional balance during the said lengthy

period of 9 days when he was in the company of the aforesaid

persons at different places in the forest area. He is a Police

Constable and he was working from the year 1988 in Police

Department. He had completed service of about 4 years in that

department on the date of the incident. His capacity to

recapitulate what has happened at the time of the incident

cannot be doubted under these facts and circumstances.

Moreover his identification of aforesaid seven accused before

this Court during his evidence after 15 years of the incident

cannot doubted when said accused were quite grown up at the

time of said incident and said witness (PW-6) observed their

faces during several days during period of his abduction.

42. The PW-6 Tulsiram Durge as noted above was cross-

examined by the learned defence Counsels appearing for all the

accused at length, but to my mind his testimony reproduced

above in detail is not shaken. He has given the reasons about

killing to the effect that he was supplying information about

40

naxalites and so also causing to apprehend those naxalites. He

has also given explanation about his late recording of statement

by police to the effect that he was admitted in hospital and

taking treatment and police did not record his statement so as to

avoid complications about his mental health.

It is seen from the evidence of PW-6 Tulsiram that he

was forcibly moved for a period of 9 days by accused persons

from place to place after abduction from forest area of Madhya

Pradesh State. It is further seen that said witness and aforesaid

two deceased persons were taken in forest areas of Maharashtra

State and they said two deceased persons were killed in forest of

Maharashtra State. Thus the main offence of murder took place

within the jurisdiction of Kasansur police station of Maharashtra

State. Initially F.I.R. f Crime No.93/92 Ex.276 was promptly

registered on 20.7.1992 at police station Pakhanjur of Madhya

Pradesh State and on its transfer to Kasansur police station

separate crime No.11/92 vide Ex.256 came to be registered at

Kasanpur police station on 1.8.1992.

43. The prosecution has also relied upon the evidence

regarding discovery made by these respective accused relating

to the incriminating articles. However the panch witnesses PW-

1 Sainath Ramchandra Surganiwar (Ex.160), PW-2 Raijee

Manglu Madavi (Ex.161), PW-3 Bandu Pandharu Korami

(Ex.167) and PW-4 Sannyasi Kazu Istam (Ex.180) have not

supported the prosecution case as regards discovery made by

the accused persons regarding incriminating articles. The PW-1

Sainath denied that in his presence police seized one gun, 10

cartridges 2 crude bombs as discovered by accused Mansai

Usandi.. He also denied that in his presence police seized one 12

bore gun as discovered by accused Ramji. He also denied that

41

accused Pandu discovered one muzzle loading gun from his field

and it was seized by police in his presence. He also denied that

in his presence police seized clothes of two deceased persons.

44. The PW-2 Raijee in his evidence denied that the

accused Mansai discovered one bag containing 10 cartridges,

one hand-grenade, one crude bomb and identity card of one

police constable Tulsiram and that police seized those articles.

45. PW-3 Bandu in his evidence denied that accused

Buddhu discovered the dead body of deceased Dayal Meshram

which was buried under stones in forest area. He admitted his

signature appearing on the panchnama Ex.168 about seizure of

that dead body. He simply admitted that the said dead body was

found in the forest and its inquest panchnama Ex.169 was

prepared and that said dead body was of Dayal Meshram. He

(PW-3) admitted in his evidence that dead body of a boy was

discovered as shown by absconding accused Lingu Karya Gota

and it was seized as per panchnama Ex.170. He proved the

inquest panchnama at Ex.172 which was prepared relating to

the dead bodey of that boy namely Sainu Usandi. He therefore

deposed nothing against the aforesaid accused persons who are

facing trial before this Court.

46. The PW-4 Sannyasi in his evidence denied that at the

instance of absconding accused Rushi Chenka Hedo police

discovered a gun which was seized in his presence.

47. The aforesaid four witnesses were declared hostile

by the learned Public Prosecutor and after permission was

granted for cross-examination, they were also cross-examined by

42

the learned Public Prosecutor. However in their evidence

nothing has come on record against the aforesaid ten accused

persons who are facing trial. Therefore their evidence as against

the accused persons are of no consequence.

48. The PW-7 Chandu Antu Atram has also not supported

the prosecution case and he was declared hostile by the learned

Public Prosecutor and was also cross-examined by the learned

Public Prosecutor after permission was granted by this Court.

He denied that the accused No.10 Banu Pandu Gota had handed

over one bundle for preserving in the house and keeping it

buried under the earth and that therefore he dug a pit and kept

that bundle in that pit and put soil on it. He deposed in his

further evidence that his father produced a bundle when Head

constable came there. He also deposed that his father has died.

Therefore the evidence of PW-7 Chandu Atram is of no

consequence.

Therefore the evidence of the aforesaid five

witnesses (PW-1 to PW-4 and PW-7) is of no assistance to the

prosecution to establish the nexus in between the accused

persons and the homicidal death of deceased Dayal Meshram

and Sainu Usandi.

49. It is further seen that the prosecution has examined

three superior police officers namely PW-9 Ravindra

Mahadeorao Kedari (Ex.232), PW-10 Shantaram Dhondiram

Waghmare (Ex.239) and PW-11 Subodhkumar Shivshankar

Jaiswal (Ex.250) to prove the confessional statements made by

four accused persons. However the learned defence Counsels

have challenged those confessional statements on the ground

that they are not made voluntarily and proper sanction was not

43

obtained for applying the provisions of TADA Act and filing

charge-sheet before the Court under TADA Act against the

accused persons. They thus submitted that those confessions

cannot be taken into consideration so as to convict the accused

persons. They have relied upon the observations made in the

following cases.

1) State of Rajasthan ..Vs.. Mahendra Singh and others

(1995 Cri.L.J. 3640).

It has been observed in it by the Hon'ble Supreme Court that when the finding was given by the Designated Court that confessions were pre-recorded without complying with mandatory provisions of Section 15 of TADA Act are not reliable and not corroborated by independent evidence and there was no evidence showing that accused committed terrorist act and then acquittal of the accused is liable to be confirmed.

2) Shararat Hussain Abdul Rahaman ..Vs.. State of Gujarat and Another (1996) II Supreme Court Cases 62.

In that case the police officer recording confession under section 15 (2) of TADA Act r/w Rule 15(3)(b) of Rules did not give any certificate of his satisfaction or belief about the voluntariness of confessions after the same were recorded and he did not certify about his such satisfaction or belief while being examined as a witness, his confession cannot be used against the accused persons.

3) Bharatbhai @ Jimi Premchandbhai ..Vs.. State of State of Gujarat (2002) (10) SRJ 35).

In that case there was no memorandum as required under Rule 15 and there was no contemporaneous record to show the satisfaction of recording officer after writing of confession and that the confession was made voluntarily. Therefore the Hon'ble Supreme Court held that

44

confession statements are inadmissible and cannot made basis of upholding the conviction--Once confessional statements are excluded the conviction cannot be sustained under TADA Act.

4) State of Maharashtra ..Vs.. Siraj Ahmed Nisar Ahmed & others (2007) Vol.5 Supreme Court Cases 161).

In that case the compliance of Rule 15(3)(b) of TADA Rules was done in a mechanical manner and accused was not produced before the Chief Judicial Magistrate as required under Rule 15(5) and hence the Hon'ble Supreme Court held that trial Court did not commit any error in rejecting the confessional statement of the accused.

5) Hitendra Vishnu Thakur and others ..Vs.. State of Maharashtra (1994 Supreme Court Cases (Cri) 1087)

It has been held in it by the Hon'ble Supreme Court that the essential conditions for invoking Section 3(1) of TADA Act are (1) the criminal activity must be committed with the requisite intention or motive contemplated by Section 3(1), (ii) weapons mentioned in Section 3(1) must have been used and (iii) which has caused or is likely to result in the offences mentioned in Section 3(1) of TADA Act.

6) Babubhai Parmar ..Vs.. State of Gujarat (AIR 2007Supreme Court 420).

In that case two confessions were recorded one after another in quick succession. First succession was recorded in just 15 minutes. No legal aid provided to accused. The confessional statement was inconsistent with the prosecution case. There was no material to establish the guilt and therefore the Hon'ble Supreme Court observed that conviction cannotbe based on confession.

7) Sahib Singh .. Vs.. State of Haryana (1997(3) Crimes 114 (SC).

45

It has been observed in it that a confession has to be made voluntarily and truthful. In that case confession of appellant showed that a dead person came to appellant demanding money for job of killing deceased. The Hon'ble Supreme Court held that such a confessional statement was not truthful and was part of Hallucination and could not be acted upon.

The learned defence Counsels have relied upon the

observations made in the following case laws in support of their

submission that the offences described under TADA Act cannot

be established against the accused persons as the required

sanction for prosecution under that Act is not proved by the

prosecution.

1) Jagannath Maruti Tekade ..Vs.. State of Maharashtra(1991 Mh.L.J. 976, Bombay High Court.).

It has been held in it that sanction order must pass the requisite test of legality and that if there is no application of mind, the sanction order is vitiated. It has been further observed in it that Court will have to take the judicial notice of that fact that in the Government set-up, the orders are often times drafted out by a department and put up to an authority for signature and, therefore it would be extremely dangerous to conclude even if the sanction order is correctly or perfectly drafted, that the authority who signed it must have applied his mind in the absence of his deposing before the Court that he had in fact done so.

2) Yashwant Pingle ..Vs.. State of Maharashtra (C.B.I.)(1999 Cri.L.J. 1270, Bombay High Court).

In that case the evidence showed that investigating agency had not forwarded evidence collected to Sanctioning Authority and therefore the Hon'ble Bombay High Court held that sanction is not valid.

46

3) Koshy Jphn Mathew ..Vs.. State of Maharashtra(2008 ALL MR (Cri.) 219, Bombay Nagpur Bench).

It has been held in it that if it can be shown that sanctioning authority was unable to apply its independent mind for whatever reason order will be bad because authority was compelled to act mechanically to grant sanction. In that case the accused was 70 years old and therefore the Hon'ble High Court held that the remand of the matter for fresh sanction would not be proper.

4) Rambhai Gadhvi and Others ..Vs.. State of Gujarat(1997 (3) Crimes 154 (SC).

In that case the DGP who granted sanction had before him the copy of FIR and an application containing some skeleton facts. The sanction order showed total non-application of mind.Therefore the Hon'ble Supreme Court held that it being not result of a serious consideration,sanction could not be treated as one under Section 20A(2) of TADA Act. The Hon'ble Supreme Court held that conviction is unsustainable for want of valid sanction for prosecution under section 20A (2) of TADA Act.

The learned defence Counsels in support of their

submission submitted that permission for application of TADA

Act cannot be granted by means of wireless message as granted

in the present case. He relied upon the following case law, in

support of his said submission.

1) Judah..Vs..Shrojbashini Bose and Another, AIR Vol.32 1945 Privy Council 174.

It has been held in it that the contents of telegram are not evidence of the facts stated in it.

50. It is clear from the aforesaid case laws that when a

47

confession is made under section 15 of TADA Act and it is found

that the said confession has been made voluntarily and truthfully

then it can be exclusively relied on for conviction of the offences

under TADA Act and no corroboration is necessary in such a

case. It is also clear that confessional statement recorded under

Section 15 of TADA Act is also a substantive evidence against

the makers co-accused.

51. In the instant case the prosecution has examined the

following three police officers who recorded alleged confessional

statements. The PW-9 Ravindra Kedari, who was

Addl.Superintendent of Police,Aheri deposed that he recorded

confessional statement of accused Buddhu Bitlu Gota and

accused Pandu Irapa Hedo. He proved the confessional

statement of Buddhu at Ex.234-A and confessional statement of

Pandu at Ex.235-A. PW-10 Shantaram Dhondiram Waghmare

was working as Addl.Superintendent of Police,Aheri. He

recorded the confessional statement of accused Mahu Moda

Halami. He proved those statements at Ex.240,241 and 242. The

PW-11 Subodhkumar Jaiswal deposed that when he was working

as Superintendent of Police,Gadchiroli, he recorded confessional

statement of Sadhu Mahadu Hichami. He proved those

statements at Ex.252 and 253.

52. I have carefully gone through the aforesaid

confessional statements of the aforesaid four accused persons.

It is seen that in those confessional statements except the

accused No.7 Mahu Moda Halami, the rest of the aforesaid

threeaccused namely Buddhu Bitlu Gota, Pandu Irapa Hedo and

Sadhu Mahadu Hichami have clearly admitted about their

involvement in commission of the crime of the present case and

48

also admitted about involvement of the other co-accused in the

said crime.

The aforesaid three witnesses PW-9 Ravindra Kedari,

PW-10 Shantaram Waghmare and PW-11 Subodhkumar Jaiswal

in their respective evidence have given all the details as to how

they put several questions to the aforesaid accused persons in

order to ascertain as to whether those accused are ready to

make confession voluntarily. When they were satisfied that the

said accused desired to make confession statement to them, they

had given time of 24 hours for reflection and after 24 hours they

were again produced before them on the given dates. They also

deposed that again several questions were put to the said

accused for knowing as to whether the said accused wanted to

make voluntary confession. On their said satisfaction, they

recorded their confessions. All those questions put to the

respective accused and answers given by them to those

questions have been recorded in their respective statements.

The confession of accused Buddhu Bitlu Gota, Pandu Irapa Hedo

and Sadhu Mahadu Hichami were recorded in Hindi language.

The confession of accused Mahu Moda Halami was recorded in

Marathi language. The learned defence counsels submitted that

said accused did not know either Hindi or Marathi and they

knew only Madiya and Gondi language and therefore the

aforesaid confessions were not recorded in their own language,

they cannot be said to be voluntary. The accused have retracted

all those confessions during the trial and during their respective

statements under section 313(1)(b) of Cr.P.C. when those

confessions were put to them. They said that they are false.

53. The aforesaid confessional statements show the

49

required certificate appended to them as given by the aforesaid

three police officers who were competent to record those

confessions under section 15 of TADA Act and Rules 15 of TADA

Rules. Moreover the evidence of aforesaid three police officers

(PW-9,PW-10 and PW-11) is cogent and reliable to hold that they

observed all the mandatory provisions as provided under Section

15 of TADA Act and Rule 15 of TADA Rules while recording

those confessions

54. Moreover the contention of the learned defence

Counsels that confessions were not recorded in the language of

accused cannot be accepted because accused have not brought

any material on record to show that those confessions were

recorded in the languages which were not known to them or not

in the language which is known to them. The accused in their

respective statements under section 313(1)(b) of Cr.P.C. have

also not stated that those confessional statements were not

recorded in their own language. Therefore I find that the

contention raised by the learned defence Counsels that those

confessions are not given voluntarily cannot be accepted.

55. However it is seen that Section 21A of TADA Act has

made provisions as to when this Court can take cognizance of

the offences described under TADA Act. It reads as follows:

''Section 21A – (1) Notwithstanding anything contained in the Code, no information about commission of an offence under this Act shall be recorded by the police without prior approval of the District Superintendent of Police.

(2) No Court shall take cognizance of any offence under this Act without the previous sanction of the Inspector-General of Police,or as the case may be, the Commissioner of

50

Police.

In the instant case the prosecution has simply relied

upon the wireless messages produced at Exs.261 and 262 to

show that the permission has been granted vide Section 21A(1)

of the TADA Act. As per the said documents Ex.261 and 262, a

wireless message was issued from Superintendent of Police of

Gadchiroli for application of the provisions of TADA Act to the

Crime No.11/1992 which is registered for the offences

punishable under sections 302 and 364 of I.P.C. The said

wireless message was given to the Sub-Divisional Officer of

Etapalli. However it is seen that the Superintendent of Police

who issued that wireless message is not examined before this

Court to prove that after perusing the material collected during

investigation the said permission has been granted. The said

documents Ex.261 and 262 are proved by the investigating

officer PW-12 Chandrakant Gangaram Kumbhar during his

evidence who received the same during investigation. No

explanation is given by the prosecution as to why the original

document under which the said permission has been granted

vide Section 21A(1) of TADA Act is not produced before this

Court and the Superintendent of Police,Gadchiroli who granted

that permission is not examined. Therefore under the eyes of

law the wireless message received vide Exs.261 and 262 by

which the permission granted was conveyed cannot be said to be

legal and valid documents.

56. The another material aspect of the present case is

that the original sanction order granted under section 21A(2) of

TADA Act is not produced by the prosecution. Only its xerox

copy is produced on record at Ex.332 as obtained by Police Sub-

51

Inspector,PW-14 Vikas Dhakne (Ex.331). The said witness in his

evidence (Ex.331) deposed that as per direction given to him by

Superintendent of Police,Gadchiroli, he had gone to the office of

Director General of Police,Mumbai on 22.10.2007 and obtained

true copy of that sanction order and handed over to the Public

Prosecutor. He proved that ture copy of the sanction order at

Ex.332. The prosecution has not examined the authority who

issued sanction order. As per true copy of sanction order

(Ex.332), the said sanction order was issued by Mr.S.V.Barokar,

Director General and Inspector General of Police, Maharashtra

State,Mumbai on 18.2.1994. The prosecution has not examined

the said S.V.Barokar for the reasons best known to it. Therefore

it can be said that the said sanction order Ex.332 is not duly

proved by the prosecution.

57. There is no material to show that there was

application of mind when the aforesaid sanction order Ex.332

was issued by the aforesaid authority. The Hon'ble Bombay

High Court in the aforesaid case of Jagannath Tekade ..Vs..

State of Maharashtra (1991 Mh.L.J. 976) has observed that

when prosecution is unable to establish that the sanctioning

authority had applied its mind, the sanction order is vitiated

rendering the prosecution void ab initio. It is further observed

that Court will have to take judicial notice of the fact that in the

Government set-up, the orders are often times drafted out by a

department and put up to an authority for signature and,

therefore, it would be extremely dangerous to conclude even if

the sanction order is correctly or perfectly drafted, that the

authority who signed it must have applied its mind in the

absence of his deposing before the Court that he had in fact

done so.

52

Applying the aforesaid case law to the present case, I

hold that as the prosecution has not examined the sanctioning

authority namely S.V.Barokar, the Director General and

Inspector General of Police,Mumbai for the reasons best known

to it, the said sanction order Ex.332 cannot be relied upon and

hence the prosecution of the accused under the provisions of

TADA Act can be said to be void ab initio. Thus after considering

the material placed before me and applying the case law to the

present case, I hold that for want of proper sanction under

section Section 21A (1) and (2) of TADA Act, the accused cannot

be convicted for the offences punishable under sections 3 and 4

of TADA Act.

58. In this context useful reference may be made to the

observations made by the Hon'ble Supreme Court in the case

Gurprit Singh @ Bittu ..Vs.. State of Punjab (2004

Supreme Court Cases (Cri.) 466. The following observations

are made in it.

''The confessional statement recorded during the investigation in a TADA case cannot be used for convicting the accused for offences punishable under the Penal Code, when offences against such accused under TADA have failed.''

Thus in the instant case also the offences against the

accused persons under TADA Act cannot be established and

therefore the aforesaid confessions of the four accused persons

which are proved on record by PW-9 Ravindra Kedari, PW-10

Shantaram Waghmare and PW-11 Subodhkumar Jaiswal cannot

be used for conviction of the accused for the offences under

Indian Penal Code. Therefore I hold that the said confessional

statements of the accused persons namely Buddhu Bitlu Gota,

53

Pandu Irapa Hedo , Sadhu Mahadu Hichami and Mahu Moda

Halami is of no assistance to the prosecution in the present case.

The said accused are arrayed in this judgment as accused

Nos.1,5,6 and 7 respectively.

59. The prosecution has also relied upon the oral

evidence of investigating officer PW-5 Nitaram Umare and PW-

12 Chandrakant Kumbhar to show the discovery of the

incriminating articles made by the respective accused persons.

As per the evidence of PW-5 Nitaram Umare, after the

information was received by police that Dayal Meshram, Sainu

Usandi and one police informant were abducted, their search

was launched and that accused Buddhu Gota (accused No.1 and

Lingu Gota(absconding) made confessional statements at

Kasanpur police station that they have committed murder of

Dayal Meshram and the informant and their bodies are lying in

the forest of Karrem. He also deposed that therefore he along

with Dy.S.P. Kumbhar and said accused Buddhu and Lingu and

other police staff went to the forest of Karrem where accused

Buddhu showed the place where dead body was covered under

the stones and that said dead body was taken out and he

identified it from its clothes and shoes as of Dayal Meshram, the

Intelligent Officer of Etapalli Taluka. He also deposed that

another dead body was found at some distance of that place

which was shown by absconding accused Lingu Gota.

60. The aforesaid witness PW-5 Nitaram Umare has not

prepared any panchnama but he had simply accompanied the

police party and the accused. His going with the police party

cannot be doubted when he was attached to the office of

Gadchiroli as an Asstt.Commissioner of Police, C.I.D. Intelligent

54

at the time of making of that discovery. However as he has not

signed the document about the said discovery his evidence about

said discovery at the instance of accused Buddhu Gota and

absconding accused Lingu Gota is very risky to be relied upon.

The PW-12 Chandrakant Kumbhar, investigating officer was

attached to Etapalli Sub-Division as a Sub-Divisional Police

officer. He deposed that after the crime was registered vide FIR

Ex.256 at Karrem police station, he arrested in all 15 accused

persons. He also deposed that he seized from four accused

persons,four 12 bore guns, two hand-grenades, 10 live

cartridges and identity card of abducted person namely

Tulsiram, a police constable . He also seized uniforms and cash

of Rs.40,000/-. He also deposed that 18.9.1992 accused Pandu

Irapa Hedo (accused no.5) made confessional statement before

him and two panchas as per memorandum Ex.258 and

discovered a gun from the field which was seized by him vide

seizure panchnama Ex.259.

61. The aforesaid guns, hand-grenades, cartridges and

identity card were not produced before the Court for

identification by said PW-12 Chandrakant Kumbhar at the time

of his evidence. Moreover except the accused Pandu Irapa Hedo,

the rest of the four accused are absconding from whom it is

alleged that the aforesaid arms and ammunitions were seized.

Therefore the aforesaid oral evidence of PW-12 Chandrakant

Kumbhar about the recovery of said arms and ammunitions is of

no consequence.

62. The evidence of PW-12 Chandrakant Kumbhar about

recovery of guns on information given by accused Pandu Irapa

Hedo is also not supported by production of said guns before this

55

Court. Moreover his said evidence is also not supported by

panch witnesses. Hence his said evidence is not sufficient to

hold that accused Pandu Irapa Hedo discovered any such gun.

63. P.W.12 Chandrakant Kumbhar also deposed that he

seized the clothes of the deceased Dayal Meshram and Sainu

Usandi as per panchnama Ex.260 at Kasansur police station .

The said seizure is not disputed by the accused persons.

64. The PW-12 Chandrakant Kumbhar also took steps for

holding identification parade of 15 accused persons and for that

he had obtained permission from the Court of Judicial

Magistrate Ist Class, Sironcha on 9.10.1992 as per order Ex.263.

I have found above that the said identification parade is to be

discarded for the reasons given above.

65. The learned Public Prosecutor has relied upon the

observations made in the following case.

1) Ramesh Vithalrao Thakre and another ...Vs.. State

of Maharashtra (AIR 1995 Supreme Court 1453).

In that case the Hon'ble Supreme Court observed that mere fact that Pws.3,6,8 and 10who are the panch witnesses and witnesses to the alleged disclosure statements, turned hostile, would not in any way affect the credibility of PW-1 and PW-2 or detract from their reliability.

In the instant case the evidence of PW-12

Chandrakant Kumbhar is not supported by the production of the

seized articles and therefore his evidence is not found

acceptable in that respect. Therefore the aforesaid case law is

not applicable to the present case.

56

66. The learned Public prosecutor has also relied upon

the following observations made by the Hon'ble Supreme Court

in the case Aher Raja Khima..Vs.. State of Sdaurashtra(AIR

1956 S.C. 217).

In that case it has been held that confession cannot be used against the accused personunless the court is satisfied that it was voluntary and while the Court is considering this question, the question whether it is trueor false does not arise.

The aforesaid case law is not applicable to the

present case as I have found that the prosecution has not proved

the issuance of valid sanction for application of TADA Act and

filing of charge-sheet under TADA Act before this Court.

The learned Public Prosecutor has also relied upon

the observations in the case Ramji Duda Makwana ..Vs.. The

State of Maharashtra (1994 Cri.L.J. 1987, Bombay High

Court).

In that case it was found that panch witnesses gave false evidence. Therefore the Hon'ble Bombay High Court held that trial Courts should take appropriate action including prosecution for perjury and action should also be taken against accused and other persons who have indulged in or abetted such corrupt practice.

In the instant case it is seen that the seized property

was not produced before the court about recovery in presence of

panchas and hence the recovery of said property in presence of

panchas is not believed and hence the said case law is not

applicable to the present case.

67. The learned defence Counsels have also relied upon

57

the observations made in the following cases.

1) Jasbir Singh ..Vs.. State of Punjab (AIR 1988 Supreme Court 1660).

In that case the property after seizure was not sealed and the identity of the weapons and cartridges seized was not established by the prosecution before the Court and therefore conviction was set aside.

2) Sahib Singh ..Vs.. State of Punjab (1996) II Supreme Court Cases 685.

In that case there was failure of the prosecution to join independent witnesses of locality who were available about recovery of revolver and six live cartridges. It has been held in it that absence of evidence to indicate with whom the revolver was after its seizure till it was sent to the Arms Expert, accused is entitled to the benefit of doubt.

3) Khudeswar Dutta ..Vs.. State of Assam (1998) 4 Supreme Court Cases 492).

It has been observed by the Hon'ble Supreme Court that mere knowledge of the accused that incriminating articles were kept at certain place does not amount to conscious possession.

In the instant case also the recovery of guns and

other arms and ammunitions has not been proved by the

prosecution as noted above by adducing cogent evidence.

The Hon'ble Supreme Court in the case of Sucha

Singh ..Vs.. State of Punjab (2001 (2) Crimes 69 (SC) has

made the following observations.

''We have seriously bestowed our consideration to the arguments addressed by the learned senior counsel. We only reiterate the legal principle adumbrated in State of West

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Bengal ..V.. Mir Mohammad Omar, 2000(8)SCC 382 that when more persons than one have abducted the victim, who was latter murdered, it is within the legal province of the court to justifiably draw a presumption depending on the factual situation, that all the abductors are responsible for the murder.Section 34 of the IPC could be invoked for theaid to that end, unless any particular abductor satisfies the Court with his explanation as to what else he did with the victim subsequently,i.e. whether he left his associates en-route or whether he dissuaded others from doing the extreme act etc. etc.''

68. In my view the aforesaid case law is fully applicable

to the present case. In the instant case I have found that the

oral evidence of Tulsiram Durge an eye witness is sufficient,

natural, cogent and probable to hold that the accused persons

namely Buddhu Bitlue Gota (No.1), accused Sanku Dama Potavi

(accusedNo.2), Khedu @ Chandu Ghosu Naroti (accused No.4),

accused Pandu Irapa Hedo (No.5), accused Sadhu Mahadu

Hichami (No.6), accused Madi Laltu Lakami (No.8) and accused

Bandu Pandu Gota (No.10) had abducted the said witness

Gulsiram Durge, the deceased Dayal Meshram and Sainu Usandi

on 19.7.1992 and taken them into deep forest area from place to

place and that other accused had also assisted them who are

now absconding after said abduction. Moreover theory of ''last

seen'' is also applicable to the present case as said seven

accused were lastly seen in company of said deceased two

persons.

69. The dead bodies of the aforesaid two persons namely

Dasyal Meshram and Sainu Usandi have been recovered after

the said witness Tulsiram Durge was released from the forest

area by the aforesaid accused persons. I have found that both

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the said persons have met with homicidal death as discussed

above. Therefore from the above discussed facts and

circumstances a presumption can be drawn justifiably that all

the aforesaid abductors (accused) are responsible for the murder

of those two persons namely Dayal Meshram and Sainu Usandi.

The accused persons have not explained before this Court as to

whether they had left the association of other accused persons

en-route or they had dissuaded others from doing the extreme

act i.e. committing murder of those two persons namely Dayal

Meshram and Sasinu Usandi. Therefore I hold that the said

accused persons are to be convicted for the offences punishable

under sections 302 r/w 149 of Indian Penal Code. The aforesaid

accused Nos.1,2,4,5,6,8 and 10 namely Buddhu Bitlu Gota,

Sasnku Dama Potavi, Khedu @Chandu Ghosu Naroti, Pandu

Irapa Hedo, Sadhu Mahadu Hichami, Madi Laltu Lakami and

Bandu Pandu Gota are also required to be convicted for the

offences punishable under sections 364 r/w 149 of I.P.C. as the

prosecution has proved from the aforesaid evidence that the

said accused persons had abducted the witness Tulsiram Durge

with intent to commit his murder.

70. The accused are also charged for the offences

punishable under section 3 r/w 25 of Arms Act. However the

prosecution has not obtained previous sanction of the District

Magistrate as provided under section 39 of Arms Act. It provides

that no prosecution shall be instituted against any person in

respect of the offence under section 3 of the said Act without

previous sanction of the District Magistrate. Thus I hold that as

in the instant case when no such previous sanction is obtained

the accused cannot be convicted for the offence punishable

under section 3 r/w 25 of Arms Act.

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71. Moreover it is also proved from the aforesaid

prosecution evidence that the aforesaid seven accused were

armed with deadly weapons namely guns and that at that time

they had formed unlawful assembly with the object of

committing abduction of the eye witness Tulsiram Durge,

deceased Dayal Meshram and Sainu Usandi and to commit their

murder and that in furtherance of their said common object they

with the help of other absconding accused abducted the said

persons and at that time they were armed with deadly weapons

namely guns and that they subsequently in prosecution of the

aforesaid common object intentionally caused the death of said

two deceased persons namely Dayal Meshram and Sasinu

Usandi by cutting their necks. Therefore I hold that the

prosecution has proved beyond reasonable doubt the offences

punishable under sections 148, 364 r/w 149 and 302 r/w 149 of

IPC against the accused No.1 Buddhu Bitlu Gota, accused No.2

Sanku Dama Potavi, accused No.4 Khedu @ Chandu Ghosu

Naroti, accused No.5 Pandu Irapa Hedo, accused No.6 Sadhu

Mahadu Hichami, accused No.8 Madi Laltu Lakami and accused

No.10 Bandu Pandu Gota. In the result, the aforesaid point

Nos.3 to 9 are decided accordingly. I also hold that the

prosecution has failed to prove beyond reasonable doubt any of

the offence against the accused No.3 Mora Manku Potavi,

accused No.7 mahu Moda Halami and accused No.9 Shishu

Maharu Naroti and therefore they are entitled to the benefit of

doubt and they deserve to be acquitted. I also hold that all the

accused deserve to be acquitted for the offences punishable

under sections 3 and 4 of TADA Act and Section 3 r/w 25 of Arms

Act for the reasons given above.

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72. In the result of the aforesaid findings, I proceed to

hear the aforesaid seven accused persons who are found guilty

for the aforesaid offences. I have now heard the accused No.1

Buddhu Bitlu Gota on the point of sentence in person. He

submitted that he has got 3 minor sons and a wife who are

depending on his income and hence lenient view may be taken. I

have heard the accused No.2 Sanku Dama Potavi in person. He

submitted that he has got 2 daughters, 2 sons and a wife and all

of them are depending on him and hence lenient may be taken.

I have heard the accused No.4 Khedu @ Chandu Ghosu Naroti.

He submitted that he has got 2 sons, 1 daughter and a wife. All

of them are depending on him and hence lenient view may be

taken. I have heard accused No.5 Pandu Irapa Hedo. He has

submitted that he has got 3 daughters, 1 son and a wife and all

of them are depending on him and hence lenient view may be

taken. I have heard the accused No.6 Sadhu Mahadu Hichami.

He submitted that he has got 2 sons, 2 daughters and a wife and

all of them are depending on him and hence lenient may be

taken. I have heard the accused No.8 Madi Laltu Lakami in

person. He submitted that he has got one daughter and a wife

and hence lenient view may be taken. I have heard the accused

No.10 Bandu Pandu Gota in person. He submitted that he has

got one son, one daughter and a wife and all of them are

depending on him and hence lenient view may be taken.

73. I have also heard Mr.Anthony, the learned Advocate

appearing for accused Buddhu Gota, Sanku Potavi, Khedu

Ghosu Naroti, Pandu Hedo, Sadhu Hichami and Madi Lakami on

the point of sentence. Mr.Anthony submitted that more than 17

years have been passed since the date of incident and all the

said accused are poor villagers and Adivasis and there are no

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prior conviction recorded against them till this date. He further

submitted that the accused persons have already undergone in

jail for sufficient long time in this case and also another

connected cases and from last 17 years they are attending

Courts. He thus submitted that lenient view may be taken.

74. I have heard Mr.Gadling, the learned Advocate

appearing for accused No.10 Bandu Pandu Gota on the point of

sentence. He submitted that lenient view may be taken in view

of the aforesaid submission made by Mr.Anthony Advocate

which is applicable to the case of his accused.

75. I have heard Mr.P.K.Sathainathan, the learned Public

Prosecutor. He submitted that this is the most brutal form of

murder with pre-meditation and of a police officer on duty and a

police informant. He thus submitted that the intention was to

create terror in the society and the capital sentence should be

awarded in this case. He further submitted that this is the rarest

of the rare case for awarding capital sentence as the murder has

been committed to settle issues with the established

Government.

76. I have thus heard the aforesaid seven accused in

person, their respective Advocates and the learned Public

Prosecutor. All the accused are poor and they are coming from

remote villages and the incident took place in the year 1992.

The accused are attending the courts from long time. I have

considered all the facts and circumstances under which the

aforesaid offences are committed by the accused persons. In my

considered view this is not the rarest and rare case for awarding

capital sentence. Therefore I am not inclined to award capital

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sentence for the offences punishable under sections 302 r/w 149.

In my view minimum sentence which is provided under section

302 of IPC is to be awarded i.e. life imprisonment and fine of

Rs.1000/-. I also hold that for the offence punishable under

section 364 r/w 149 of IPC, rigorous imprisonment for a period

of 7 years and fine of Rs.1000/- each is to be imposed. I also

hold that for the offence punishable under section 148 of IPC,

rigorous imprisonment for one year and fine of Rs.1000/- is to be

awarded. Hence I proceed to pass the following order.

ORDER

1. The accused No.1 Buddhu Bitlu Gota, accused No.2

Sanku Dama Potavi, accused No.4 Khedu @ Chandu Ghosu

Naroti, accused No.5 Pandu Irapa Hedo, accused No.6 Sadhu

Mahadu Hichami, accused No.8 Madi Laltu Lakami and accused

No.10 Bandu Pandu Gota are hereby convicted for the offences

punishable under sections 302 r/w 149, Section 364 r/w 149,

Section 148 of Indian Penal Code. They are sentenced to suffer

rigorous imprisonment for life and to pay fine of Rs.1000/- each

and in default of payment of fine to suffer rigorous imprisonment

for 6 months for the offence punishable under section 302 r/w

149 of Indian Penal Code. They are further sentenced to suffer

rigorous imprisonment for period of 7 years and to pay a fine of

Rs.1000/- each and in default of payment of fine to suffer

rigorous imprisonment for 6 months for the offence punishable

under section 364 r/w149 of Indian Penal Code. They are

further sentenced to suffer rigorous imprisonment for one year

and to pay a fine of Rs.1000/- each and in default of payment of

fine to suffer rigorous imprisonment for 6 months for the

offence punishable under section 148 of Indian Penal Code.

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2. The substantive sentences awarded in this case shall

run concurrently. The accused No.1 Buddhu Bitlu Gota was in

jail from 31.7.1992 to 28.6.1994 and 30.11.2006 to till this date

i.e. 8.2.2008. The accused No.2 Sanku Dama Potavi was in jail

from 7.8.1992 to 8.3.1994 and from 15.12.2007 to till this date

i.e. 8.2.2008. The accused No.4 Khedu @ Chandu Ghosu Naroti

was in jail from 11.8.1992 to 22.9.1994 and from 15.12.2007 to

till this date i.e. 8.2.2008. The accused No.5 Pandu Irapa Hedo

was in jail from 18.9.1992 to 27.9.1995 and from 15.12.2007 to

till this date i.e. 8.2.2008. The accused No.6 Sadhu Mahadu

Hichami was in jail from 19.10.1993 to 10,4,1997. The accused

No.8 Madi Laltu Lakami was in jail from 28.2.1994 to 27.3.1997.

The accused No.10 Bandu Pandu Gota is in jail from 20.2.1997

to till this date i.e. 8.2.2008. The aforesaid period of detention

undergone by the aforesaid accused in jail during the pendency

of this case shall be set off from the substantive sentences

awarded against them. in this case.

3. The prosecution is at liberty to file separate charge-

sheet against the absconding accused whenever they are found

and arrested in the present crime. The seized property will be

required if the separate case is filed against the absconding

accused and therefore the seized property shall be returned to

the concerned police station Kasansur after the appeal period is

over and if the appeal is preferred against the judgment of

conviction and sentence then the disposal of the seized property

shall abide decision in the said appeal.

4. The aforesaid accused Nos.1 to 10 are hereby

acquitted of the offences punishable under sections 3 and 4 of

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the Terrorist and Disruptive Activities (Prevention)Act,1987 and

under Section 3 r/w 25 of Arms Act. The accused No.3 Mora

Manku Potavi, accused No.7 Mahu Moda Halami and accused

No.9 Shishu Maharu Naroti are hereby acquitted of the offences

punishable under sections 302 r/w 149, Section 364 r/w 149 and

Section 148 of Indian Penal Code. Their bail bonds are

cancelled.

5. Accused No.6 Sadhu Mahadu Hichami and accused

No.8 Madi Laltu Lakami who are presently on bail shall

surrender to their bail bonds.

Dt. 8.2.2008 (B.A.Shaikh) Judge,Spl.Court,designated under TADA Act, Nagpur.