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Exhibit - 575
IN THE DESIGNATED COURT UNDER THE TADA(P) ACT FOR GREATER BOMBAY, AT BOMBAY
T.A.D.A. SPECIAL CASE NO. 01 OF 2006
The State of Maharashtra ]
(At the instance of D. N. Nagar Police ]
Station vide C. R. No. 144 of 1995) ]...Prosecution
Versus
1) Abu Salem Abdul Kayyum Ansari ]
Age : 45 years, Indian Inhabitant, ]
Occupation : Nil, residing at Mohalla ]
Pathanpura, Kasba Saraimir, District - ]
Azamgarh, Saraimir Police Station, ]
Uttar Pradesh. ] ( Presently in judicial custody)
2) Riyaz Ahmad Iqbal Ahmad Siddiqui ] Case Separated
Age : 63 years, Indian Inhabitant, ]
Occupation : Nil, R/o. At Shivrampur, ]
Post Bindra Bazar, Tal.- Gambhirpur, ]
District Azamgarh, Uttar Pradesh. ]
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3) Mohammed Naeem Abdul Rahim Khan ] ( APPROVER)
Age : 58 years, Indian Inhabitant, ]
Occupation : Car dealing, Residing at ]
Spring Field, Sunder Lane, Orlem, Malad ]
(West), Mumbai – 400 064. ]
4) Mohammed Hasan Mehendi Hasan Shaikh]
Age: 51 years, Indian Inhabitant, ]
Occupation : Nil, Residing at Gupta Chawl, ]
Room No.13, Anwar Compound, Sainik ]
Nagar, Kausa, Mumbra, District Thane. ]( Presently in judicial custody)
5] Virendrakumar Biharilal Jhamb ](on bail)
Age : 86 years, Indian Inhabitant, ]
Occupation : Building Construction ]
Residing at Yogi-Samrudhi Bungalow, ]
10th J.V.P.D. Scheme Road, Juhu, ]
Mumbai-49. ]...Accused Nos.1, 4 and 5
(Accused No.2 - case separated and Accused No. 3 Approver)
Mr. Ujjwal Nikam, Special Public Prosecutor for the State.
Mr. Sudeep Pasbola, Advocate for the Accused Nos.1 and 4.
Mr. Srikant Shivade, Advocate for the Accused No.5.
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CORAM : HIS HONOUR JUDGE SHRI G.A. SANAP (Designated Court for TADA) (C.R. No.54)
DATED : 25th February, 2015.
:: J U D G M E NT ::
1] In the case of State of Maharashtra v. Bharat
Raghani and others reported in 2003 Supreme Court Cases (Cri) 377
(arising out of the same Crime Number i.e. C.R.No. 144 of 1995),
Their Lordships in the 'Introductory Part' of the said decision depicted
the prevailing scenario in the following words.
“Under the heaps of voluminous record in the
form of various paper-books spreads over thousands of
pages, lies the hidden story relating to the new ''merchants
of death and destruction''. Upon dissection, when peeped
into, it reflects the woeful situation prevalent in the society
where writs of the organised criminal gangs runs which
affect the peaceful and innocent citizens of the country.
This world of gangsters, popularly known as the
''underworld'', comprises various gangs headed by notorious
dons for whom the only valuable thing in life is ''wealth''
and the useless thing, the ''life'' of others. Deaths are sold
by these dons at their asking price and purchased by those
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who resort to have immediate results for their enrichment
with the deflation of their otherwise inflated money bags.
To this underworld, the unemployed, thoughtless and
dejected youths are attracted and the bosses of the
gangsters leave no stone unturned to utilize the services of
such frustrated and misled youth for the commission of
crimes, to further their evil designs. Contract killings by
employing mercenary killers, after receipt of aconsideration known as supari are the order of the day,
particularly in commercial cities of the country where the
race for getting enriched overnight is going on at jet speed.
Mumbai ( with its erstwhile name Bombay), known as the
commercial capital of the country, is at the top where such
crimes are committed every now and then. Piling of the
cases in the courts of law without their disposal
particularly with respect to disputes relating to property is
reported to have created satellite centres of unusual trade
where private courts are held by the gangsters and disputes
are solved according to the will of those who can pay as per
demand of the criminal dons. It is said that the
unaccounted accumulation of black money in the hands ofa few has encouraged the gangsters to widen the scope of
their activities. Because of the money and muscle power,
they are in a position of procuring highly sophisticated
weapons. Such gangs collect money from various
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businessmen, land developers, persons carrying on illegal
activities in gambling dens, drug traffickers etc., Such
collected money is termed as ''protection money '' which in
Marathi is referred to as khandani (khandani is a Marathi
word which relates to the long past history where the rulers
used to collect Khandani from their subjects). A feeling is
prevalent in the city that it is not the State alone which can
protect the life and property of the rich and influential, butit is the criminals who render protection to such people for
the consideration of the''protection money'' received by
them.
Such ongoing activities of the underworld are problems
faced not only in Mumbai and this country but all over the
globe. Generally known abroad as ''organised crime'', it
has been found to be a subject of fascination in popular
culture and a major criminal justice concern in the western
world. Such organised crimes pose various problems to the
world community concerned to combat and fight it
out.”
2] The accused, who are facing the charges before me,
were absconding, when the earlier trial i.e. TADA Spl. Case No. 22 of
1995 was conducted. With this apt 'Introduction' of the scenario, it is
necessary to advert to the facts of this case.
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3] Accused No.1 Abu Salem Abdul Kayyum Ansari
stands charged for the offences punishable u/sec. 120-B of Indian
Penal Code (herein after referred to as 'the I.P.C.), sec. 302 and
sec. 307 r/w sec. 120-B of the Indian Penal Code and u/secs.3(2)(i),
3(2)(ii), 3(3), 3(5) of the Terrorist And Disruptive Activities
(Prevention) Act, 1987 (herein after referred to as 'the TADA(P)
Act) r/w. sec. 120-B of the Indian Penal Code.
4] Accused No.4 Mohd. Hasan Mehendi Hasan
Shaikh stands charged for the offences punishable u/sec. 120-B of
the Indian Penal Code, secs. 302, 307, 386, 387, 449, 450, 452 r/w.
sec. 120-B of the Indian Penal Code and u/secs. 3(2)(i), 3(2)(ii),
3(3), 3(5) and Sec. 5 of the Terrorist And Disruptive Activities
(Prevention) Act, 1987 r/w. sec. 120-B of the Indian Penal Code.
5] Accused No.5 Virendrakumar Biharilal Jhamb
stands charged for the offences punishable u/sec. Secs. 386 and 387
r/w 120-B of the Indian Penal Code.
:: FACTS IN BRIEF ::
6] In the year 1938, a piece of land bearing Survey No. 40,
situated at Kol Dongri, Sahar Road, Andheri (East), Mumbai, was initially
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purchased by one Meta Badal Yadav. He had four sons by name Ballu,
Kallu, Jainandan and Garib. The four sons had 13 children. Being the
members of Hindu Joint Family, all the children inherited the property.
Somewhere in 1979, 1980, 1981, the partners of “M/s. Kamla Construction
Company” having their office-cum-residence at Brij Kamal House,
Gulmohar Cross Road, Juhu, Andheri (West), Mumbai, purchased the
above property from all the 13 members of the Yadav family by executing
necessary documents. “M/s. Kamla Construction Company” had developed
the plot and constructed two buildings on the plot in 1984. “M/s. Kamla
Construction Company” was constrained to file a Civil Suit against some of
the owners (members of Yadav family), who had refused to vacate the
remaining portion of the land.
7] One Subhedarsingh Ramdassingh Yadav (tried in TADA Spl.
Case No. 22 of 1995) and an Estate Agent staying in the same area had
prepared some forged documents and on the basis of the forged
documents, was claiming the rights over the said property. Accused Rajan
Fernandes (tried in TADA Spl. Case No.22 of 1995), who happened to be
an Estate Agent, brought a proposal from “M/s. Labh Construction
Company”, Ahmedabad. On the basis of the documents produced by
accused Subhedarsingh Ramdasingh Yadav, his Solicitor accused Bharat
Raghani (tried in TADA Spl. Case No. 22 of 1995) prepared agreement for
sale in the name of three owners i.e. Ramrup Ballu Yadav, Ramkeval Ballu
Yadav, son of Ramdhar Ballu Yadav and remaining other cousin brothers
were treated as a tenants of the plot of a land. Payment of Rs. 25 lakhs
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was made to Ramrup Ballu Yadav and his family members, whereas
accused Subhedarsingh Yadav received Rs.11 lakhs as alleged owner of a
part of an open plot of land, part of Survey No.40.
8] “M/s. Labh Construction Company” found the proposal
very lucrative. However, it was of the firm opinion that unless the claim of
“Ms. Kamla Construction Company” is settled and they are removed from
the property, they would not go ahead with the deal and transaction. This
decision of “M/s. Labh Construction Company” was conveyed to accused
Bharat Raghani and Shaukatali Jamar Mistry @ Chauhan (tried in TADA
Spl. Case No.22 of 1995) then they tried to negotiate to strike the deal.
Jain brothers, partners of “M/s. Kamla Construction Company” thus
became a thorn in their flesh. Without passing the hurdle of the Jain
brothers, it was not possible to give finality to the deal which was proposed
with “M/s. Labh Construction Company”. In order to strike the deal and to
complete it in all respect, all these people had started looking around for a
solution and ultimately it was decided to seek the intervention of Ibrahim
Kaskar and Abu Salem, the notorious gangsters, to make the Jain brothers
to mend their ways.
9] Accused Abu Salem was a wanted accused in 1993
Bomb Blast Case. He was absconding and had established his base in
Dubai. Riyaz Ahmed Siddiqui was doing the work for notorious gangster
Dawood Ibrahim and Anees Ibrahim and doing gold smuggling for them.
Riyaz Siddiqui had also started staying in Dubai since February, 1993.
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Riyaz Ahmed Siddiqui had acquaintance with the accused Abu Salem.
Riyaz Ahmed Siddiqui informed the accused Abu Salem and Anees Ibrahim
Kaskar about the dispute in respect the Kol Dongri property and the
prospects of the profit, if the matter was resolved by their intervention. At
the instance of accused Abu Salem, Riyaz Siddiqui had called Shaukatali
Mistry to Dubai. They had a meeting in the office of Anees Ibrahim and
Abu Salem in Dubai. The said meeting was attended by accused Abu
Salem, Shaukatali Mistry, Riyaz Ahmed Siddiqui, Salim Rashid Shaikh @
Salim Haddi and Mehendi Hasan. In the said meeting, Shakuatali Mistry
apprised them about the Kol Dongri property. Shaukatali Mistry informed
them that the owners of the “M/s. Kamla Construction” Ashok Jain and his
brothers paid less amount to the stable owners and got prepared the
documents by obtaining their signatures. Shaukatali Mistry informed them
that they would talk to the stable occupiers and obtain the possession of
the vacant land from the Jain brothers. Shaukatali Mistry suggested to all
the present that, if this deal is finalised, then they would earn crores of
rupees by settling the deal with “M/s. Labh constructions”. It was decided
in the meeting that they would force the Jain brothers to vacate the said
piece of land and if they do not pay heed, they would kill one of the five
brothers. In the said meeting, the role of each one present there was
chalked out. In the said meeting, it was decided that the accused Abu
Salem and accused Anees Ibrahim Kaskar would make phone calls to Jain
brothers and threaten them. Riyaz Ahmed Siddiqui would make phone
calls to Jain brothers and would inform them about Abu Salem and Anees
Ibrahim Kaskar and create a terror in their mind and would tell them to act
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according to the suggestions of Abu Salem and Anees Ibrahim Kaskar. It
was further decided that in Mumbai, Shaukatali Mistry alongwith accused
Naeem Khan would hold the meetings with the Jain brothers and inform
them the details of those meetings and the progress of the meetings on
phone. It was also decided that if need arises then, Mohammed Hasan and
Salim Haddi alongwith their associates would attack one of the brothers of
Ashok Jain. The finality to the conspiracy was given in this meeting. As
per the plan, accused Abu Salem made a phone call to accused Naeem
Khan and informed him about their plan, the role assigned to him and
further course of action.
10] In pursuance of the aforesaid criminal conspiracy,
accused Shaukatali approached partners of “M/s. Kamla Construction
Company” and informed them that a prominent builder from Ahmedabad,
who had good contacts in underworld in Dubai, was interested in
purchasing the property in question i.e. open plot in Survey No.40 at Kol
Dongri, Andheri (East), Mumbai, and further suggested that “M/s. Kamla
Construction Company” should surrender their legal rights to the said
builder. The partners of “M/s. Kamla construction” turned down this
proposal. In September, 1994 and December, 1994, the accused managed
to hold several meetings with the partners of “M/s. Kamla Construction
Company” at the instance of accused Abu Salem in the office of Solicitor
Bharat Raghani. The Jain brothers were threatened and intimidated in
those meetings, when they showed resistance to give up their rights over
the property. The partners of “M/s. Kamla Construction Company”
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produced their Title Deeds and satisfied the accused that they were the
legal owners of the property. However, the accused attending the meetings
asserted in almost all the meetings that the claim of “M/s. Kamla
Construction Company” was false and they should surrender their rights by
executing the settlement agreement and accept the amount fixed by them.
The partners of “M/s. Kamla Construction Company” rejected the proposal
and as a result thereof, Pradeep Jain was made to face the serious
consequences.
11] Accused Ibrahim Kaskar and accused Abu Salem had ill-
fame and name and as such a clout in the underworld gangs. They were
not used to digest such resistance. In view of the circumstances prevailing
at the relevant time, when all the accused, who attended the meetings,
realised that partners of “M/s. Kamla Construction Company” were not
paying any heed to their illegal proposals, they informed the same to
accused Abu Salem. The accused Abu Salem, who was known to test the
blood of extortion money and illegal booty, contacted deceased Pradeep
Jain on telephone and finally warned and threatened him to accept his
proposal and to sign the documents prepared by his Solicitor, otherwise
face the consequences. In the first week of January, 1995, accused Naeem
Khan (Approver) went to the office of Pradeep Jain and offered Rs.2 crores
to Jain brothers for removing themselves from the property on behalf of
accused Abu Salem and if they were ready to pay the said amount, accused
Abu Salem would not harass the Jain brothers. The Jain brothers
discussed the said issue and it was decided that Sunil Jain should talk with
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Don of the Underworld in Mumbai. This culminated into the unfortunate
incident of murder of Pradeep Jain.
12] Pradeep Jain was murdered on 07/03/1995. On
07/03/1995, Sunil Jain, Anil Jain and Pradeep Jain received a phone call
at 8.00 p.m. in their office from Shaukat Ali. Shaukat Ali made enquiry
with them about presence of Jain brothers in the office. He was very
polite. After making enquiry, he disconnected the phone. At about 8.15
p.m., two persons brought Jain Brothers' watchman by putting arms
around his neck. After entering the office, they made enquiry about
Pradeep Jain. After ascertaining the identity of Pradeep Jain, they started
shooting bullets at Pradeep Jain. Sunil Jain also sustained bullet injury to
his right arm. 17 bullets were pumped into the body of Pradeep Jain.
After shooting, the assailants namely Rajesh Igave, Sunil Nair, Subhash
Bind and Shekhar Kadam ran away. After the shooting, there was a chaos
in their office. Ashok Jain, Sunil Jain and and watchman Vishnu picked up
Pradeep Jain in their car and took him to the Cooper Hospital. In the
Hospital, doctor declared Pradeep Jain dead before admission. In the
Hospital, due to injury sustained by him Sunil Jain also fainted and
became unconscious.
13] It is the case of the prosecution that PW-24 DCP Shri
Rajnish Seth got the information of the crime on wireless. He went to the
Cooper Hospital. PW-25 Shri Ravindra Ganpatrao Shinde and PW-17
Jagdevrao Gundaji Jadhav, after visit to the spot, went to Cooper Hospital.
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On enquiry with the injured Pradeep Jain, Police Officer PW-25 Shri
Ravindra Shinde was satisfied that it was a crime committed under the
TADA(P) Act, 1987 and, therefore, he accorded oral approval to record the
information of the crime under the provisions of the TADA (P) Act. On the
report of Ashok Jain, a crime bearing No. 144 of 1995 was registered at D.
N. Nagar Police Station u/secs. 302, 307, 452, 506(ii) read with Section
120-B of the Indian Penal Code read with Sections 5, 27 of the Arms Act
1959 read with Section 3(2)(i), 3(2)(ii), 3(3), 3(5) and 5 of the TADA (P)
Act, 1987.
14] The facts placed on record reveals that accused Abu
Salem was not satisfied by committing the murder of Pradeep Jain on
07/03/1995. He was greedy enough to threaten Jain brothers even after
murder of Pradeep Jain to satisfy his ransom demand. It is stated that on
13th day of Pradeep Jain's death accused Abu Salem made a phone call at
the residence of Jain family. The call was attended by Jyoti Jain, the
widow of Pradeep Jain. Jyoti Jain identified the voice of Abu Salem.
Accused Abu Salem enquired whether they were not mourning the death
of Pradeep Jain and started laughing on them. Jyoti Jain became angry
and abused Abu Salem by saying that what he got by killing her husband.
At that time accused Abu Salem threatened Jyoti Jain that he did not
receive the amount as her husband had became obstacle in his way and,
therefore, he killed him. Accused Abu Salem threatened Jyoti Jain that if
remaining amount is not paid, he will kill Jain brothers one by one. Jyoti
Jain narrated this incident to Sunil Jain. The family was already under
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shock and trauma due to the murder of Pradeep Jain.
15] Accused Abu Salem was after Jain brothers to meet his
demands. He made phone calls to Ashok Jain and threatened Jain
brothers of dire consequences, if his demands were not complied with.
Ashok Jain told Abu Salem that they were in financial difficulties and,
therefore, they would not be in a position to comply his demands. Accused
Abu Salem had a different plan in his mind and, therefore, to fulfill his
greed, he suggested Jain brothers to sell some of their property and satisfy
his demands. Jain brothers had a building known as Mamta Co-operative
Society at Sher-E-Punjab Colony, Mahakali Caves Road, Andheri East,
Mumbai. In that building, Jain brothers had some vacant flats. In order to
get rid of Abu Salem, they agreed to hand over three flats in the said
building to Abu Salem. Abu Salem consented for the said deal and told
Jain brothers that his man V. K. Jhamb, accused No.5, would meet them
and take the keys of the flats. Jain brothers were acquainted with V. K.
Jhamb, as he has been residing in their vicinity . It is the case of the
prosecution that Abu Salem explained entire transaction to accused V.K.
Jhamb and told him that his man Naeem Khan would meet him to see the
flats. Accused Abu Salem contacted Naeem Khan (Approver) and told him
about the transaction and gave him phone number of V.K.Jhamb and told
him to meet V.K. Jhamb and go and see the flats. Accordingly, Naeem Khan
contacted V.K. Jhamb. He went to the residence of V.K.Jhamb. V.K.Jhamb
had already collected the keys of the flats from Jain brothers. Naeem Khan
went to Mamta Co-operative Society and saw the flats. After seeing the
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flats, he contacted accused Abu Salem and informed him that the flats
were in good condition and could fetch good price.
16] Accused No.5 V. K. Jhamb was assigned the role to
dispose of the three flats bearing Nos. 602, 605 and 606 by accused Abu
Salem. V.K.Jhamb sold the flat Nos. 605 and 606 to one person by name
Haresh Mohan Gehi (PW-14). Jain brothers were required to execute the
agreement because the property stood in their name. PW-13 Sunil Jain
and Ashok Jain executed the agreements in the office of Registrar in favour
of Haresh Mohan Gehi (PW-14). Haresh Mohan Gehi gave four cheques of
Rs. seven lakhs each drawn in the name of “Kamla Construction”. All the
transactions of the said three flats were done by V.K. Jhamb accused No.5.
It is the case of the prosecution that on the same day of the execution of
the agreements in favour of Haresh Mohan Gehi, Abu Salem made a phone
call to Jain brothers and started abusing them for their failure to pay the
amount. Jain brothers told Abu Salem that they would pay the money to
VK Jhamb after encashment of the cheques. Abu Salem became upset
after hearing this and commanded Jain brothers to arrange for money on
priority basis. On account of the threats by accused Abu Salem, Jain
brothers arranged Rs. 15 lakhs and handed over the same to V.K. Jhamb at
his residence. After few days, Jain brother withdrew Rs. 15 lakhs from
their bank account and handed over the same to V.K. Jhamb at his
residence. Sunil Jain, Ashok Jain and driver Rizwan Khan had been to the
residence of V. K. Jhamb for this purpose.
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17] One flat bearing No. 602 was unsold. In respect of the
said flat, V. K. Jhamb sent a blank agreement to Jain brothers for signature
with the instructions to Jain brothers to sign the blank agreement. Jain
brothers signed the said agreement but they had not received any
monetary consideration for this flat either from V.K. Jhamb or purchaser
Murji Patel(PW-8). Accused No.5 V.K. Jhamb arranged to send the money
received out of the sale of the flats to accused Abu Salem through Hawala.
18] Accused Abu Salem and Naeem Khan (Approver) were
absconding. The involvement of accused Riyaz Siddiqui and Mehendi
Hasan was disclosed during the course of interrogation of accused Abu
Salem and accused Naeem Khan (Approver).
19] At this stage, it is necessary to mention that during the
course of interrogation initially six accused persons namely Bharat
Raghani, Rajan Fernandis, Subhedarsing Yadav, Shaukatali Mistry, Subhash
@ Vakil Ramkumar Bind and Shekhar Kadam were arrested. They were
acquitted by the Designated Court. In the appeal, the Hon'ble Supreme
Court of India, set aside the order of acquittal qua Subhedarsingh
Ramdassingh Yadav, Subhash @ Vakil Ramkumar Bind and Shekhar Kadam
and convicted them. Subhash @ Vakil Ramkumar Bind and Shekhar Kadam
have been sentenced to suffer Rigorous Imprisonment for life and
Subhedarsingh Ramdassingh Yadav has been sentenced to undergo
Rigorous Imprisonment for two years and fine of Rs.5,000/-.
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20] Accused Abu Salem was extradited to India from
Portugal. He was brought to India in November, 2005 i.e. on 11/11/2005.
He was shown arrested in this case on 24/11/2005. Accused Riyaz
Siddiqui was arrested on 12/12/2005, accused Mehendi Hasan was
arrested on 15/12/2005 accused Naeem Khan was arrested on
12/12/2005 and accused V.K. Jhamb was arrested on 22/12/2005. After
the arrest of accused Abu Salem in this case, the investigation as per the
order of the then Commissioner of Police, Mumbai, was handed over to the
Anti Terrorism Sqaud, Mumbai. After completion of the investigation,
supplementary charge sheet was filed against accused Abu Salem, Mehendi
Hasan, Riyaz Siddiqui, V.K. Jhamb and Naeem Khan on 28/04/2006.
Before filing the charge sheet, PW-23 Shri Anami Roy accorded the
sanction as contemplated u/sec. 20A sub-section (2) of the TADA (P) Act.
After filing supplementary charge sheet, my learned predecessor took
cognizance of the offence.
21] At this stage, it is necessary to mention that after filing
the charge sheet accused Naeem Khan and accused Riyaz Siddiqui
expressed their desire to become an approver by disclosing complete true
facts of the crime. On being satisfied with the genuineness of the
statements made by them, my learned predecessor was pleased to tender
the pardon to them and which they accepted. Naeem Khan did not
hesitate to depose before the Court and disclose true and correct facts from
his knowledge in respect of the crime. However, accused Riyaz Siddiqui
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did not comply the terms and conditions of the pardon and, therefore, on
the certificate of the Special Prosecutor, the pardon granted to him was
forfeited and he had been relegated to the position of the accused. It may
be noted at this stage that as per the mandate of law, accused Riyaz
Siddiqui is being tried separately.
22] My learned predecessor, on the basis of the evidence
compiled in the charge-sheet, framed charge against the accused. The
charge was read over and explained to accused Abu Salem, Mehendi Hasan
and V.K. Jhamb in vernacular. The accused pleaded not guilty and claimed
to be tried. The defence of the accused is that they have been falsely
implicated in this case by planting false witnesses.
23] In order to bring home the guilt against the accused, the
prosecution has led voluminous oral and documentary evidence. It is
necessary to take Birds eye view of the evidence led by the prosecution.
Prosecution has examined 25 witnesses viz; PW-1 Shri Mohammed Naeem
Khan (Approver)(Exh-319), PW-3 Shri Vasant Ramnath Sharma
(Exh-330), PW-4 Shri Sitaram Namdeo Nikalje (Exh-332), PW-5
Mohammed Shabir Munawaruddin Malik (Exh-339), PW-6 Rizwan
Mehmood Khan(Exh-355), PW-7 Shri Arshad Kamal Shaikh (Exh.356),
PW-8 Shri Murji Anada Patel (Exh.357), PW-9 Smt. Jyoti Pradeepkumar
Jain (Exh.369), PW-10 Shri Nawal Yeshpal Bajaj(Exh.375), PW-11 Shri
Shivaji Tulshiram Bodkhe (Exh-379), PW-12 Shri Dattatraya Rajaram
Karale (Exh.384), PW-13 Shri Sunil Brijlal Jain (Exh.394), PW-14 Shri
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Haresh Mohan Gehi (Exh.400) PW-15 Shri Amirali Akbarali Engineer (Exh.
404), PW-16 Shri Vaman Dhondu Sapre (Exh.406), PW-17 Shri Jagdevrao
Gundaji Jadahv, PW-18 Sunil Vasudeo Redkar(Exh.417), PW-19 Shri Datta
Sambhaji Dhavale (Exh.423), PW-20 API Shri Dinesh Parshuram Kadam,
PW-21 Shri Sunil Laxmanrao Deshmukh (Exh.434), PW-22 Shri Kisan N.
Shengal (Exh.445), PW-23 Anami Narayan Roy (Exh.461), PW-24 Rajnish
Seth (Exh.521), PW-25 Shri Ravindra Ganpatrao Shinde (Exh.524). DW-1
Shri Sayyed Abbas Asgar Ali (Exh.470) has been examined by accused.
24] The important documents relied upon by the
prosecution consist of Report of Ashok Jain/FIR (Exhibit - 415), Inquest
Panchanama ( Exhibit-363), Post-Mortem Report of Pradeep Jain
( Exhibit-361), Injury Certificate of Sunil Jain ( Exhibit-558), Confession
of accused Abu Salem ( Exhibit-387 ), Confession of Mehendi Hasan
( Exhibit-382), the Record and Proceeding of Chief Metropolitan
Magistrate qua accused Abu Salem (Exhibit – 387-A (colly.)), the Record
and Proceeding of Chief Metropolitan Magistrate qua accused Mehendi
Hasan (Exhibit – 382-A (colly.)), Arrest Panchanama of accused Naeem
Khan dated 12/12/2005 (Exhibit - 427), Sanction accorded by PW-23
dated 17/04/2006 (Exhibit - 462) and the correspondence made by the
Police Officers during the course of investigation etc..
25] I have heard learned Special Public Prosecutor Shri
Ujjwal Nikam for the State. Learned Advocate Shri Sudeep Pasbola for
accused Nos. 1 Abu Salem Abdul Kayyum Ansari and accused No.4 Mohd.
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Hasan Mehendi Hasan Shaikh and learned Advocate Shri Srikant Shivade
for accused No.5 Virendrakumar Biharilal Jhamb. I have perused the
written notes of arguments submitted by the defence Advocates.
26] In view of the facts, circumstances and evidence
brought on record, following points fall for my determination and I record
my findings thereon for the reasons to follow.
: POINTS FOR DETERMINATION :
Sr.No. POINTS FINDINGS
1. Whether the prosecution proves that the
prior approval of the DCP as contemplated
u/s 20A (1) of TADA(P) Act was obtained
for recording the information about the
commission of the offences under the
provisions of Section 3(2)(i), 3(2)(ii),
3(3), 3(5) and Section 5 of TADA (P) Act,
1987 ?
In the Affirmative
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2. Whether the prosecution proves that the
previous sanction, as contemplated u/sec.
20A(2) of the TADA (P) Act, was accorded
by the Commissioner of Police, Greater
Mumbai before filing the charge sheet in
this Court under the provisions of Sections
3(2)(i), 3(2)(ii), 3(3), 3(5) and Section 5
of the TADA (P) Act ?
In the Affirmative
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3. Whether the prosecution proves that
accused Abu Salem Abu Qayyum Ansari,Mohammed Naeem Abdul Rahim Khan(approver), Mohammed Hassan MehendiHasan Shaikh and accused Subhash Bindand Shekhar Kadam (both already tried inTADA Spl.C.No.22/1995 and convicted.)alongwith wanted accused Anis IbrahimKaskar, Sunil Shashidharan Nair, RajeshIgave (deceased), Uday Pawar (dead),Sanjay Kadam (dead), Salim Rashid
Shaikh dead and others, betweenNovember 1994 and 7/3/1995 at Dubaiagreed to do an illegal act with a intentionto derive huge profit by illegal means andfor that purpose agreed to strike terror inJain brothers and Builder community andto compel Jain brothers to surrender theirrights over 'Kol Dongri Property' and topay extortion amount of Rs 1 crores andthereby accused Abu Salem Abu Qayyum
Ansari and accused Mohammed HassanMehendi Hasan Shaikh have committed anoffence punishable u/sec. 120-B of theIndian Peal Code ?
In the Affirmative
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4. Whether the prosecution proves that
pursuant to the criminal conspiracy
hatched by accused on or about 7.03.1995
at about 8.30 p.m., accused Salim Rashid
Shaikh @ Salim Haddi, Uday Pawar,
Sanjay Kadam and Rajesh Igave (now
dead) and wanted accused Sunil Nair
committed the house trespass by enteringinto the office of “Kamla Constructions
Company” in order to commit and by
using firearms committed murder of
Pradeep Jain and made an attempt on the
life of Sunil Jain with the intention of
striking terror in the builder community
and to compel Jain Brothers to pay
extortion amount of Rs. 1 crores and
thereby the accused Abu Salem, Mohd
Hasan Mehendi Hasan Shaikh have
committed offence punishable U/Sec.120-
B of IPC r/w. Sec.3(2)(i), 3(2)(ii), 3(3),
3(5) of TADA P Act 1987.
In the Affirmative
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6. Whether the prosecution further proves
that in pursuance of the criminal
conspiracy on or about 7.03.1995 at
about 20.10 hours (8.30 p.m.), accused
Salem Rashid Shaikh @ Salim Haddi,
Uday Pawar, Sanjay Kadam and Rajesh
Igve (all now dead) and wanted accused
Sunil Nair entered at the office of “M/s.Kamla Construction Company” and fired
fire arm shots at Pradeep Jain with
intention to cause his death or with the
knowledge that the fire arm shots would
cause his death and Pradeep Jain died due
to fire ram shorts and thereby the accused
Abu Salem Abdul Kayyum Ansari and
accused Mohammed Hasan Mehendi
Hasan Shaikh have committed an offence
punishable u/sec. 302 r/w sec. 120-B of
the Indian Penal Code ?
In the Affirmative
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7. Whether the prosecution proves that in
pursuance of the criminal conspiracy, on or
about 7.03.1995 at about 20.30 hours
(8.30 p.m.) at the office of Kamla
Construction Company, accused Salem
Rashid Shaikh @ Salim Haddi, Uday
Pawar, Sanjay Kadam and Rajesh Igave (all
now dead) and wanted accused Sunil Nairfired fire arm shots at Sunil Jain with such
intention and knowledge and under the
circumstances i.e. by that act they had
caused the death of Sunil Jain, they would
have been guilty of murder and that they
have caused grievous hurt to Sunil Jain
and thereby the accused Abu Salem Abdul
Kayyum Ansari and Mohammed Hasan
Mehandi Hasan Shaikh have committed an
offense punishable U/s. 307 r/w Section
120 (B) of Indian Penal Code.
In the Affirmative
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8 Whether the prosecution proves that the
accused Mohammed Hasan Mehandi
Hasan Shaikh, during the period between
2nd day of March, 1995 and 7th day of
March, 1995 at Greater Mumbai possessed
arms and ammunitions specified in
Column 2 and 3 of Category I and
Category III (A) of the Arms Rules, 1962 inthe notified area of Greater Mumbai and
thereby he has committed an offense
punishable U/sec.5 of TADA(P) Act, 1987.
In the Affirmative
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10. Whether the prosecution proves that in
pursuance of the criminal conspiracy
accused Abu Salem Abdul Kayyum Ansari,
Mohammed Hasan Mehandi Hasan
Shaikh, convicted accused Subhash Bind
and Shekhar Kadam along with wanted
accused Anees Ibrahim Kaskar, Sunil
Shashidharan Nair, Rajesh Igve, UdayPawar, Sanjay Kadam, Salem Rashid
Shaikh (last four now dead), compelled
Jain brothers to pay and did commit
extortion to the tune of Rs. 10 lakhs and
three flats in Mamta Co-operative Society,
Sher-E-Punjab Colony, Andheri (East), by
threatening to kill Jain brothers and
thereby accused Mohammed Hasan
Mehendi Hasan Shaikh has committed an
offense punishable U/s.120-B r/w Section
386 of the Indian Penal Code.
In the Affirmative
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11. Whether the prosecution proves that in
pursuance of the criminal conspiracy
accused Abu Salem Abdul Kayyum Ansari,
Mohammed Hasan Mehandi Hasan
Shaikh, convicted accused Subhash Bind
and Shekhar Kadam along with wanted
accused Anees Ibrahim Kaskar, Sunil
Shashidharan Nair, Rajesh Igve, UdayPawar, Sanjay Kadam, Salem Rashid
Shaikh (last four now dead) and V.K.
Jhamb compelled Jain brothers to
surrender three flats in Mamta Co-
operative Society, Sher-E-Punjab Colony,
Andheri (East), in lieu of extortion money
by threatening to kill Jain brothers and
thereby accused V. K. Jhamb has
committed an offense punishable U/s.120-
B r/w Section 386 of the Indian Penal
Code.
In the Affirmative
: R E A S O N S :
27] Pradeep Jain was murdered on 07/03/1995. The Inquest
Panchanama is at Exhibit - 363. The Post-mortem Report of Pradeep Jain
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is at Exhibit - 361. The 'cause of death' mentioned in the Post-mortem
Report is, “death due to firearm injuries (unnatural).” The Post-mortem
Report has been admitted by the defence. Ld. Advocate Shri Pasbola
conceded that Pradeep Jain died a homicidal death. As such I have no
hesitation to hold that Pradeep Jain died a homicidal death. Sunil
Jain(PW-13) was injured in the incident. One bullet targeted his arm
causing a serious injury to him. The learned advocate appearing for the
accused has admitted the Injury Certificate of Sunil Jain. It is at Exhibit -
558. The Injury Certificate has been relied upon to bring home the charge
u/sec. 307 of the Indian Penal Code.
28] Ld. Advocate Shri Pasbola for the accused submitted
that in this case the ATS was not empowered to arrest the accused. It is
submitted that accused Abu Salem and accused Mehendi Hasan were
arrested prior to 31/08/2006 by the ACP attached to the ATS, Mumbai.
Ld. Advocate relying upon the Government GR/Notification, Home
Department (Special), Mantralaya, Mumbai dated 31/08/2006 submitted
that by virtue of this Government GR/Notification the powers were vested
with the ATS to investigate the offences relating to terrorists activities. Ld.
Advocate Shri Pasbola submitted that prior to this Government
GR/Notification, Notification dated 17/11/2004 issued by the Home
Department (Special), Mantralaya, Mumbai, was in operation and by the
said Notification, the ATS, Mumbai was not empowered to investigate the
offences relating to terrorists activities. Ld. Advocate Shri Pasbola for the
accused, therefore, submitted that investigation conducted by the officer
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was without any legal authority and, therefore, that by itself is sufficient to
vitiate the prosecution initiated against the accused.
29] As against this, Ld. SPP Shri Ujjwal Nikam submitted
that even if the Notifications relied upon by the Ld.Advocate Shri Pasbola
for the accused, are accepted as it is, then also the submissions advanced
on behalf of the accused cannot be accepted. Ld.SPP Shri Nikam
submitted that by invoking the powers of Section 417 of the Criminal
Procedure Code, 1973 (herein after referred to as 'the Cr.P.C.'),
Government was not empowered to invest the powers of investigation qua
the offences under any particular enactment. Ld.SPP Shri Nikam submitted
that by those Notifications, relied upon by the Ld.Advocate Shri Pasbola for
the accused, the status of the Police Station for the purpose of detention
etc. was granted to the ATS.. Ld. SPP Shri Nikam submitted that this issue
has been finally decided by the Hon'ble Bombay High Court and also by
the Hon'ble Supreme Court of India.
30] Admittedly in 1995 the crime was registered being C.R.
No. 144 of 1995 at D.N. Nagar Police Station, Andheri, Mumbai. The
investigation was initially conducted by the officers of D.N. Nagar Police,
Station, Andheri, Mumbai. After arrest of the accused Abu Salem, by a
special order, PW-23 handed over the investigation of C.R. No. 144 of 1995
to the Anti Terrorism Squad from D.N. Nagar Police Station, Andheri,
Mumbai. It is now necessary to see whether arrest of the accused made by
the ATS was illegal or otherwise. The same issue had felt for consideration
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before the Hon'ble Bombay High Court. Ld.SPP Shri Nikam has produced
on record photocopy of the order passed by the Hon'ble Division Bench of
Bombay High Court on 14/08/2008 in Criminal Writ Petition No. 1392 of
2008. In this case before the Hon'ble Bombay High Court, the same issue
was raised by one under-trial prisoner. While considering the effect of
both the Notifications mentioned herein above, the Hon'ble Bombay High
Court has observed that the Notification dated 31/08/2006 is with respect
to place of lodging a person accused of an offence under a particular Act.
The Hon'ble Bombay High Court has held that Section 417 read with sub-
clause (5) of Section 2 of the Cr.P.C. makes it clear that by virtue of this
provision the Government cannot confer any power of arrest or
investigation to any police officer but the Government can only appoint a
place of imprisonment u/sec. 417, and u/sec. 2 sub-section (5) declare a
place to be a police station. The ATS has the Status of Police Station.
31] The same issue was raised again in 2009 by same
prisoner. The Hon'ble Bombay High Court by order dated 29/11/2009 in
Criminal Writ Petition No. 2862 of 2009 dismissed the Petition on the same
grounds. The accused in this case challenged the order of Hon'ble Bombay
High Court before the Hon'ble Supreme Court of India. The Hon'ble
Supreme Court of India dismissed the Special Leave Petition 2012/CRLMP.
No.(s) 19635-19636/2012 on 1st April, 2013.
32] Besides, the submission appears to be fallacious for the
simple reason that the investigation in the crime was conducted by the
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officer of the rank of Assistant Commissioner of Police. The Anti Terrorism
Squad was established being a Special Squad to investigate certain serious
terrorists related crimes. The officers, who have been given posting in the
said Department are the Police Officers. Further more, the Government
has given the Status of a Police Station to the ATS.. Even by posting as an
officer in the ATS, the officer would not be divested of his inherent powers
to investigate the crime. Therefore, the submission advanced by Ld.
Advocate Shri Pasbola for the accused on this technical ground cannot be
accepted. The submissions advanced by Ld.SPP are well founded and
supported by the decisions of the Hon'ble Bombay High Court. On the
basis of the material placed on record, I am of the opinion that the ATS
was empowered to investigate the crime. There was no prohibition under
any law preventing the ATS from investigating any crime without any
specific vesting of powers by the Government.
OBJECTION ABOUT NON-COMPLIANCE OF SECTION 306 OF CR.P.C.
33] In this case, the prosecution is heavily relying upon the
evidence of PW-1. PW-1 Naeem Khan is an Approver in this case. It is
seen on perusal of the record that learned Advocate Shri Shivade
appearing for the accused No.5 raised the objection to the admissibility of
the evidence of PW-1 at the time of recording evidence on the ground that
the pardon granted to this witness is without recording his statement as
mandated by Sections 306 sub-section (4) of the Cr.P.C., 1973. Ld.
Advocate appearing for the accused No.5 raised the objection for non-
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compliance of the mandatory provisions of Sections 306, 307 and 308 of
the Cr.P.C. It is submitted that the Prosecution has illegally procured the
evidence of the approver. In order to meet this objection, Ld. SPP Shri
Ujjwal Nikam at the outset submitted that in this case the pardon tendered
to PW-1 is by invoking the provisions of Section 307 of the Cr.P.C.. Ld. SPP
submitted that as per the provisions of the TADA (P) Act, the charge-sheet
was directly filed in this Court and, therefore, there was no question of
invoking the provisions of Section 306 sub-section (4) of the Cr.P.C. Ld.
SPP during the course of his argument pointed out differentiating/
distinguishing features of Sections 306 and 307 of the Cr.P.C.. In order to
bring home his submission, Ld.SPP has relied upon the following decisions.
i) Jasbir Singh vs. Vipin Kumar Jaggi
2001 SCC (Cri.)1525
ii) A. Devendran vs. State of Tamil Nadu(1997) 11 SCC 720
iii) Santosh Kumar Bariyar vs. State of
Maharashtra
2009(2) SCC (Cri.) 1150
34] In order to find out the sustainability of the objection, it
is necessary to consider the law laid down by the Hon'ble Apex Court. In
the case of Jasbir Singh v. Vipin Kumar Jaggi and other, the Hon'ble Apex
Court has held that the prosecution has to decide whether a pardon is to
be tendered or not. Once the prosecution decides to tender the pardon,
the Court has to agree to the tender of pardon. In the case A. Devendran
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v. State of Tamil Nadu, the Hon'ble Apex Court has distinguished the
provisions of Section 307 and 306 sub-section(4)(a) and its applicability to
different situations. The Hon'ble Supreme Court of India has held that
u/sec. 307 of the Cr.P.C. when pardon is tendered after commitment of the
proceedings by the Court to which the commitment has been made,
legislative mandate is that the pardon would be tendered on the same
condition. If the pardon is tendered before commitment of the case to the
Court competent to try it, the compliance of Section 306 sub-section(4)(a)
becomes mandatory. However, if the pardon is granted by the Court to
which the proceeding is committed, then Section 306 sub-section 4 sub-
clause (a) is not attracted. The expression,"on the same condition" used in
Section 307 refers to conditions indicated in Section 306 sub-section (1) of
the Cr.P.C. The Hon'ble Supreme Court has held that combined reading of
sub-section 4 of Section 306 and Section 307 of the Cr.P.C. would make it
clear that in a case exclusively triable by the Sessions Court if an accused is
tendered pardon and is taken as an approver before commitment then
compliance of sub-section 4 of Section 306 becomes mandatory and non-
compliance of such mandatory requirements would vitiate the proceedings
but if an accused is tendered pardon after commitment by the Court to
which the proceeding is committed in exercise of the powers u/sec. 307 of
the Cr.P.C. then in such a case the provisions of sub-section (4) of Section
306 are not attracted. The procedural requirement under sub-section (4)
sub-clause (a) of Section 306 of the Cr.P.C. to examine the accused after
tendering pardon cannot be held to be a condition of grant of pardon,
when it is tendered after commitment of the case to the Sessions Court.
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35] In the case of Santosh Kumar Bariyar v. State of
Maharashtra , the Hon'ble Supreme Court of India has held that Section
306 sub-section (4) of the Cr.P.C. is procedural in nature. It is necessary to
be followed only by a Magistrate as he would not have any jurisdiction to
try the case himself. The Sessions Judge before whom the case is
committed for trial must be informed as to on what basis pardon has been
tendered. Section 307 of the Cr.P.C. does not contain any such condition.
The power of Sessions Judge is independent of the provisions contained in
Section 306 of the Cr.P.C. The condition mentioned in Section 307 of the
Cr.P.C. refers to the conditions laid down in Section 306(1) namely, that
the person in whose favour the pardon has been tendered, will make a full
and true disclosure of the whole of the circumstances within his
knowledge. The power of a Sessions Court is not hedged with any other
condition.
36] This Court is the Designated Court constituted as per
the provisions of Section 9 of the TADA(P) Act, 1987. As per the
provisions of the TADA (P) Act, charge-sheet is filed directly in the
Designated Court and the cognizance of the offences is taken by the
Designated Court. In view of this special procedure in this case there was
no question of conducting any proceeding before the Chief Metropolitan
Magistrate. There was no question of commitment of a case to this Court.
The approver had forwarded his application through jail to the IO stating
inter alia that he was ready to become a police witness in this case, if he is
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given a pardon. Said application is at Exhibit-322 dated 07/07/2006. It
was forwarded from jail to ACP Shri Shengal, IO, in this case. IO Shri
Shengal through prosecutor made an application before this Court on
14/07/2006 requesting this Court to secure presence of the accused before
this Court and to ascertain the willingness expressed by the accused to
become an approver and tender a pardon, if he is still ready to become an
approver. The production of the accused was sought by order dated
14/07/2006. My then learned predecessor by a speaking order dated
21/07/2006 recorded all the relevant facts. My Ld. predecessor was
satisfied that the accused was ready and willing to disclose all the true and
correct facts within his knowledge with regard to the crime. My Ld.
predecessor was of the opinion that in order to establish the offence of the
criminal conspiracy, which was hatched in great secrecy, the evidence of
the approver would be vital and important. It is, therefore, seen on
perusal of the record that the pardon was tendered by this court after
being satisfied that the accused was ready to make a full and true
disclosure of the facts within his exclusive knowledge about the
commission of the crime and which were found necessary to bring home
the charge of conspiracy. By undertaking the exercise, as mentioned above,
the provisions of Section 307 of the Cr.P.C. were strictly complied with. In
the backdrop of this legal and factual position, there is no substance in the
objection raised on behalf of the accused. The objection therefore has to
be turned down. The Ld. SPP Shri Nikam has substantiated the
submissions on the basis of factual and legal position discussed herein
above.
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AS TO POINT NOS. 1 AND 2 :-
37] The issue of prior approval to record the information of
the commission of the crime in this case by the Competent Officer and also
the issue of previous sanction by the Competent Officer for taking the
cognizance of the offence by this Court are the contentious issues. Section
20A sub-section (1) of the TADA (P) Act, 1987 mandates that without prior
approval of the District Superintendent of the Police, the information of the
commission of the offence under the TADA (P) Act cannot be recorded. In
Mumbai, the rank of Deputy Commissioner of Police is equivalent to the
rank of District Superintendent of Police. Section 20A sub-section (2)
mandates that the Court shall not take cognizance of any offence under
this Act without previous sanction of the Inspector General of Police or as
the case may be the Commissioner of Police. This provision has been
incorporated in the TADA (P) Act to ensure that without participation of
the Senior most Police Officers, the investigation shall not proceed to rule
out the possibility of misuse of the stringent provisions of the TADA (P)
Act. In order to initiate the proceeding under the TADA (P) Act, dual
sanction, as provided u/sec. 20A(1) and sub-section (2) is mandatory. If
the prosecution is not able to establish that there is no sanction, as
contemplated either by sub-section (1) or by sub-section (2) of Section
20A of the TADA(P) Act, then on this ground alone the entire prosecution
gets vitiated.
38] Ld. SPP Shri Ujjwal Nikam submitted that DCP Shri
Rajnish Seth, PW-24, granted the oral approval to PW-25 Shri Ravindra
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Ganpatrao Shinde to register the crime under the provisions of the TADA
(P) Act. Ld SPP submitted that PW-24 got himself acquainted with the facts
of the crime by visiting the spot along with PW-25 and hospital where the
deceased and injured were taken and on the basis of the same, he was
satisfied that the offences under the TADA (P) Act were committed and,
therefore, granted oral approval to PW-25 to register the crime under the
provisions of the TADA (P) Act. Ld. SPP further pointed out that after
registration of the FIR on the basis of the oral approval granted by PW-24,
PW-25 sought written approval from PW-24 and which was accorded by
him. Ld. SPP submitted that PW-25 has corroborated the evidence of
PW-24 on all the material aspects. In the submission of Ld. SPP there is no
reason to doubt the credibility of either PW-24 or PW-25. Ld. SPP
submitted that on the basis of the FIR registered in Crime bearing No. 144
of 1995 by PW-25, the trial was conducted against six arrested accused in
1997. Ld. SPP pointed out that all these accused were acquitted by the
Trial Court. However, in the Appeal, the Hon'ble Supreme Court of India
convicted the accused Nos. 3, 5 and 6. Ld. SPP submitted that the Hon'ble
Supreme Court of India has accepted this case of the prosecution and,
therefore, the objection raised by the defence in this case to the
prosecution and evidence of PW-24 and PW-25 is without substance.
39] Ld. SPP further submitted that in terms of the provisions of
Section 20A sub-section (2) of the TADA (P) Act, on completion of the
investigation in the crime against the present accused, PW-23 the then
Commissioner of Police, Mumbai, granted the sanction for the prosecution
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of the accused and on the basis of the sanction accorded by PW-23, this
Court took the cognizance of the offences under the provisions of the TADA
(P) Act against the accused persons. Ld. SPP submitted that the evidence
led by the prosecution is consistent and reliable.
40] Ld. Advocate Shri Sudeep Pasbola appearing for accused
Abu Salem submitted that the theory of oral approval granted by the DCP
Shri Rajnish Seth (PW-24) is fallacious and it has been propounded to
cover up the lacuna left in the case of the prosecution. Ld. Advocate Shri
Pasbola submitted that after recording the FIR in the case, PW-25 sought
the written approval of PW-24 for recording the FIR. In the submission of
Ld. Advocate Shri Pasbola this exercise undertaken would clearly prove
that there was no oral sanction, as stated by the prosecution and,
therefore, this exercise was undertaken subsequent to the registration of
the FIR in the case. Ld. Advocate Shri Pasbola submitted that there is no
contemporaneous record to establish that oral approval was granted by
PW-24 to the PW-25 for recording the information of the crime under the
TADA(P) Act. Ld. Advocate Shri Pasbola for the accused submitted that,
therefore, there is no compliance of the mandatory provisions of Section
20A of the TADA (P) Act and, therefore, on this ground alone the entire
prosecution has been vitiated.
41] As far as the sanction u/sec. 20A sub-section (2) of the
TADA (P) Act by PW-23 is concerned, Ld.Advocate Shri Pasbola for the
accused submitted that in the sanction order at Exhibit-462, PW-23 has
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stated certain facts. In the submission of Ld.Advocate Shri Pasbola the
facts narrated in the sanction order by PW-23 are the new facts based on
the further investigation. Ld.Advocate Shri Pasbola submitted that perusal
of the sanction order at Exhibit-462 would show the non-application of
mind by PW-23 and, therefore, the said Sanction Order has been vitiated.
42] First I would deal with the case of the prosecution on
the point of approval accorded, as contemplated by the provisions of
Section 20A sub-section (1) of the TADA (P) Act, 1987 by PW-24 Shri
Rajnish Seth. The question that needs to be addressed and answered is
whether the prior approval was granted for recording the FIR against the
accused under the provisions of the TADA (P) Act. In this case, the written
approval was admittedly granted after registration of the crime under the
provisions of the TADA (P) Act. However, it is the case of the prosecution
that PW-24 and PW-25 were present in the Cooper Hospital where the
deceased and injured Sunil Jain were shifted and in the hospital PW-24,
DCP Shri Rajnish Seth conducted necessary enquiry and got himself
acquainted with broad facts and features of the offence committed by the
accused. PW-25 Shri Ravindra Ganpatrao Shinde was also present in the
hospital. He apprised DCP Shri Rajnish Seth about the information
collected by him. PW-25 has stated that on being satisfied with the facts
then brought to the knowledge of PW-24 disclosed the commission of the
offence under the provisions of the TADA (P) Act and, therefore, PW-24
accorded the oral approval to register the offence under the provisions of
the TADA (P) Act.
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43] Before I go to appreciate the evidence led by the prosecution
on the point of oral approval granted by PW-24 on the request of PW-25, it
is necessary to consider the legal position. The basic question needs to be
addressed is as to whether the sanction contemplated u/sec. 20A sub-
section (1) of the TADA (P) Act could be oral or must necessarily be in
writing. According to the Ld.SPP legal position has been settled by the
Hon'ble Supreme Court India on this issue. In order to support of his
submission, Ld.SPP has placed reliance on the decisions of the Hon'ble
Supreme Court of India.
44] In the case of Kalpnath Rai v. State through CBI
reported in 1998 CRI. L. J. 369(1), the Hon'ble Supreme Court of India
has held that there is nothing in sub-section (1) of the Act of Section 20A
to indicate that prior approval of the District Superintendent of Police
should be in writing. What is necessary is the fact of approval which is
sine qua non for recording the information about the commission of the
offence under the Act. The provisions is intended to operate as a check
against the police officials of lower rank commencing investigation into
offences under TADA Act because of the serious consequences which such
action befalls the accused. The Hon'ble Supreme Court of India has held
that this check can effectively be exercised if a superior police official of
the rank of District Superintendent of Police first considers the need and
feasibility of it. His approval can be obtained even orally if such an
exigency arises in a particular situation. The oral approval by itself is not
illegal and would not vitiate further proceedings.
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45] In the case of State of A.P. v. A. Sathyanarayana and
others reported in 2002 CRI.L.J. 265(1), the Hon'ble Supreme Court of
India has held that prior approval of statutory authority referred to in sub-
section (1) of Section 20A of the TADA (P) Act, 1987 is the condition
precedent. The Hon'ble Supreme Court of India has further held that prior
approval need not be in writing and the same can be oral also. The
Hon'ble Supreme Court of India has observed that the reason behind
incarporation of this provisions is that there is some amount of check by
the superior authority before a case is registered under TADA (P) Act.
46] In the case of Mukhtiar Ahmed Ansari v. State (N.C.T.
of Delhi). reported in 2005 CRI.L.J. 2569(1), the Hon'ble Supreme Court
of India has held that prior approval contemplated u/sec. 20-A(1) of the
TADA (P) Act need not be in writing.
47] In the case of Ashrafkhan alias Babu Munnekhan
Pathan and another v. State of Gujarat; With Yusufkhan alias Laplap
Khuddadkhan Pathan and others v. State of Gujarat; With State of
Gujarat v. Yusufkhan alias Laplap Khuddadkhan Pathan and others;
With State of Gujarat v. Abdul Khurdush Abdul Gani Shaikh and
others, reported in (2013) 1 Supreme Court Cases (Cri) 1095; (2012)
11 Supreme Court Cases 606, the Hon'ble Supreme Court of India has
held that, prior approval by the officer of the rank of DSP for recording
information is a condition precedent. If there is absence of approval, then
it is an incurable defect which goes to the root of the matter. In this case,
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the Hon'ble Supreme Court of India has considered the decision in the case
of Kalpnath Rai vs. State through C.B.I. (1998 CRI.L.J. 369(1)); and
State of A.P. v. A. Sathyanarayana and others (2002 CRI.L.J. 265)1) ,
and held that prior approval need not be in writing. The approval can be
oral.
48] Ld. Advocate Shri Pasbola in support of his submission
has relied upon the decisions of the Hon'ble Supreme Court of India on this
point. In the case of Izharul Haq Abdul Hamid Shaikh and another v.
State of Gujarat reported in (2009) 2 Supreme Court Cases (Cri) 653,
the Hon'ble Supreme Court of India has held that the provisions of Section
20-A(1) of the TADA (P) Act are mandatory. The non-compliance of the
mandatory provisions of Section 20-A(1) of the TADA (P) Act is fatal to the
case of the prosecution. If the prosecution fails to establish that the
sanction, as contemplated u/sec. 20-A-(1) of the TADA (P) Act, was not
granted, then entire proceedings gets vitiated for non-compliance of this
provision.
49] In the case of Rangku Dutta alias Ranjan Kumar
Dutta v. State of Assam reported in (2011) 2 Supreme Court Cases
(Cri) 964; (2011) 6 Supreme Court Cases 358, the Hon'ble Supreme
Court of India has held that the provisions of Section 20-A sub-section (1)
of the TADA (P) Act are mandatory and the prior approval of the Deputy
Superintendent of Police has to be taken even if it is oral approval before
any information about commission of the crime under the TADA (P) Act
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preliminary stage of the investigation is basically based on the facts either
brought to his knowledge or know to him personally. It may be mentioned
that this is the distinguishing factor between the approval contemplated
under sub-section (1) and the sanction contemplated under sub-section (2)
of sec.20A the TADA (P) Act. The sanction contemplated sub-section (2) of
Section 20A of the TADA (P) Act is granted after completion of the
investigation. The competent officer empowered to grant the sanction
under sub-section (2) is required to apply his mind to the material
collected during the course of investigation by the Investigating Officer and
on the basis of the said material, the competent officer is required to
record his satisfaction before according the sanction, as contemplated
u/sec. 20A sub-section (2) of the TADA (P) Act. Therefore, sanction
contemplated u/sec. 20A sub-section (2) of the TADA (P) Act cannot be the
oral sanction. But that cannot be the case when it comes to the approval
contemplated u/sec. (1) of Section 20A of the TADA (P) Act. The
competent officer under sub-section (1) of the TADA (P) Act has to apply
his mind to the facts either brought to his knowledge or known to him
personally. It may be noted at this stage that in the crime, the FIR is the
first document.
52] In this case, in addition to oral approval granted by
PW-24 Shri Rajnish Seth for recording the crime under the provisions of
the Act, on the written requisition of PW-25 Shri Ravindra Ganpatrao
Shinde, he accorded the written post-facto approval for the registration of
the crime by PW-25 under the TADA (P) Act. The written approval was
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granted on the same day i.e. on 07/03/1995. It is necessary to consider
the evidence of PW-17, PW-24 and PW-25 together to come to a conclusion
whether the prior approval, as contemplated u/sec. 20A sub-section (1) of
the TADA (P) Act, was granted for registration of the crime or not. FIR
was registered on the basis of the report lodged by Mr. Ashok Jain.
Exhibit-415 is the photo-copy of the report of Mr. Ashok Jain. His original
report was Exhibited in TADA Special Case No. 22 of 1995 at Exhibit-196.
On the basis of the report, the crime was registered being C. R. No. 144 of
1995 under the provisions of the TADA (P) Act. In order to consider the
trustworthiness of the witnesses on this issue, it is necessary to go through
their evidence.
53] At the outset, it would be necessary to see the evidence
of PW-24 and then see whether his evidence has been corroborated by
PW-25 Shri Ravindra Ganpatrao Shinde and PW-17 Shri Jagdevrao Gundaji
Jadhav. The murder was committed at 18.15 hours. At the relevant time
PW-24 Shri Rajnish Seth was the DCP of the concerned Zone. He has
deposed that on 07/03/1995 in the night he got a wireless message about
the incident. He has deposed that the injured had been moved to the
Cooper Hospital. He immediately went to Cooper Hospital. At the Cooper
Hospital, he learnt that one person by name Pradeep Jain was shot dead
and his brother Sunil Jain, who had sustained the injury, was admitted in
the Cooper Hospital. He has deposed that in the meanwhile PW-25, who,
at that time was attached to D. N. Nagar Police Station, reached the
Cooper Hospital. PW-24 has deposed in his evidence that in the Cooper
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Hospital he made enquiry with Ashok Jain and his enquiry revealed that
Jain brothers were receiving threats from certain persons and these
shooters had been sent at the behest of those people to settle the score
when they refused to agree to their demands in connection with the
property dispute. PW-24 has deposed that on the spot ACP Talpade
requested him to apply the provisions of TADA (P) Act in the case. PW-24
has further deposed that he was satisfied and convinced that this was an
act of terror and it is, therefore, necessitated the application of the
provisions of TADA (P) Act. He, therefore, accorded the oral approval to
ACP Talpade to register the offence/crime under the TADA (P) Act. In this
case, ACP Talpade has not been examined. PW-24 has further deposed
that accordingly he proceeded to the scene of offence and from there he
proceeded to his office. He has further deposed that in his office, he
received a written request from the incharge of D.N. Nagar Police Station
seeking approval to apply the provisions of TADA (P) Act in this case.
PW-24 has further deposed that he granted written approval. The written
approval granted by him is at Exhibit-522.
54] PW-25 Shri Ravindra Ganpatrao Shinde has deposed
that on 07/03/1995 he was attached to D.N. Nagar Police Station as PI
(Administration) and on that day he was holding the charge of Sr. PI. of
D.N.Nagar Police Station. He came to know about the incident in his
office. On receipt of the information, he along with his staff went to the
spot around 8.30 p.m.. On the spot, he came to know that Pradeep Jain
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and his brother Sunil Jail were taken to the Cooper Hospital. He has
deposed that from the spot he and his staff went to Cooper Hospital. In
the hospital, he made enquiry with Ashok Jain.. Ashok Jain narrated him
the facts of the crime in brief. PW-25 has deposed that he himself and ACP
Talpade sought the oral approval from DCP Rajnish Seth to register the
crime under the provisions of TADA (P) Act and DCP Rajnish Seth granted
them the oral approval to register the crime under the TADA (P) Act.
Accordingly, PW-25 directed the duty Inspector Jadhav to register the
crime under the provisions of TADA (P) Act. He has further deposed that
he wrote a letter to Rajnish Seth for his written approval for registration of
the crime under the TADA (P) Act. The photo copy of his requisition letter
is at Exhibit-525. PW-25 has identified the written approval accorded by
DCP Rajnish Seth at Exhibit-522.
55] The evidence of these witnesses has been assailed in the
cross-examination on the ground that there is no contemporaneous record
prepared before granting the written approval by PW-24 to establish that
any such oral approval was granted by PW-24. The subsequent post-facto
written approval granted on the requisition of PW-25 by PW-24 has given
rise to the speculation and as such a weapon in the hands of the defence to
suggest that this is a doubtful circumstance to disbelieve the evidence of
PW-24 and PW-25. PW-24 and PW-25 have been thoroughly cross-
examined. I have gone through their cross-examination minutely. On
perusal of their cross-examination, I do not see that any single
circumstance has been elicited in their cross-examination to disbelieve and
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discard the evidence of these two witnesses on the point of oral approval
accorded by PW-24 for registration of the offence under the provisions of
the Act. It is true that there is no mention of this oral approval either in
the FIR or in the subsequent written approval accorded by PW-24.
However, this could not be the ground to disbelieve the evidence of PW-24
and PW-25 on the point of oral approval for registration of crime. PW-24
has admitted in all fairness in the cross-examination that he did not
enquirer with PW-25 whether he had mentioned the fact of the grant of
oral approval in the FIR. In his cross-examination, he has admitted that
before according the oral approval he had talk with ACP Talpade and Mr.
Ashok Jain. PW-25 has admitted in his cross-examination that the
constable was deputed at 9.00 p.m. with a requisition letter to DCP Seth
for according written approval. It has been suggested to PW-24 and PW-25
that the so-called written approval is a fabricated document. This post-
facto written approval is of no significance. The approval contemplated
u/sec. 20A sub-section (1) of the TADA (P) Act is the prior approval for
registration of the offence under the TADA (P) Act.
56] Perusal of the evidence of PW-24 and PW-25 together
did not leave any manner of doubt about the credibility of the witnesses.
PW-24 and PW-25 both were present in the Cooper Hospital. Other Senior
Police Officers were also present in the Cooper Hospital. The broad facts
of the commission of the crime and the weapons used in the crime were
brought to the notice and knowledge of PW-24 and PW-25. Before
granting approval for registration of the crime under the TADA (P) Act, the
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concerned officer must reach to a conclusion on the basis of the basic facts
of the crime that it prima facie discloses the commission of an offence
under the TADA (P) Act. PW-24 in his evidence has deposed that he made
enquiry in the hospital with the Police Officers and Mr. Ashok Jain. He has
deposed that in the hospital he came to know about the motive for the
commission of the crime and the actual facts witnessed and seen by Mr.
Ashok Jain. Therefore, the material available with PW-24 at that time was
sufficient to come to a conclusion that it was an offence committed under
the provisions of the TADA (P) Act. If statement had been made without
disclosure of this information to PW-24 or PW-24 himself got acquainted
with this information of the crime, then there would have been strong
reason to doubt his evidence and reject it outrightly. Therefore, this
evidence of PW-24 and PW-25 on the point of oral approval for registration
of the offence under the TADA (P) Act cannot be rejected. The law has not
mandated that the approval for registration of a crime under the TADA (P)
Act shall be a written approval.
57] In this case there is one more additional fact, which
does not permit me to reject, disbelieve and discard the evidence of PW-24
and PW-25. On the basis of the same FIR, the crime was registered being
crime No. 144 of 1995. In the initial charge-sheet filed in C.R.No. 144 of1995, out of 13 accused, six accused were arrested and were put on trial.
The remaining accused were shown as 'Absconding Accused' in the said
charge-sheet. I have already mentioned that all the six accused in TADA
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Special Case No. 22 of 1995 were acquitted. The Appeal was filed in the
Hon'ble Supreme Court against the order of acquittal. The Hon'ble
Supreme Court of India allowed the Appeal qua the accused Nos. 3, 5 and
6. The Hon'ble Supreme Court of India convicted the accused No.5 and 6
under the provisions of the TADA (P) Act also and sentenced them to suffer
Rigorous Imprisonment for Life. It is, therefore, seen that on the basis of
the same FIR, two accused in this crime namely C.R.No. 144 of 1995 have
been sentenced to suffer Rigorous Imprisonment for Life. Now, it is not
possible to go anti-clockwise and re-open the controversy and find out
whether the case of the prosecution on the oral approval is acceptable or
not. In this case, this is one more important and strong circumstance to
repeal the objection raised on behalf of the defence and, therefore, the
points raised by accused cannot be accepted. On the basis of the
independent evidence in this case, it has been proved that prior oral
approval was accorded by PW-24 for registration of the crime under the
TADA (P) Act.
58] It is now necessary to deal with the sanction accorded
by PW-23 u/sec. 20A sub-section (2) of the TADA (P) Act and the
objections raised by the defence. For taking the cognizance of the evidence
under this Act, the sanction of the Inspector General of Police or the
Commissioner of Police is mandatory. In this case, it is the case of the
prosecution that PW-23 being the then Commissioner of Police, Mumbai,
accorded the sanction for the prosecution of the accused for the offences
punishable under the provisions of the TADA (P) Act. PW-22 is the
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Investigating Officer. The defence has seriously disputed the legality and
validity of the sanction accorded by PW-23. In order to find out the
correctness of the factual and legal issues, it is necessary to peruse the
evidence of PW-22. In his evidence, PW-22 Shri Kisan N. Shengal has
deposed that on 27/02/2006 he forwarded the proposal to the
Commissioner of Police along with photo copies of all the papers collected
during investigation for obtaining sanction to prosecute the accused under
the provisions of the TADA (P) Act. He has further deposed that on
10/04/2006 the Commissioner of Police had called himself and all his
colleagues, who were involved in the investigation of this crime. He has
further deposed that they attended the office of the Commissioner of Police
and apprised him about the facts, materials and the documents collected
during investigation of the crime. They had a discussion with the
Commissioner of Police about the case. He has further deposed that on
17/04/2006 the Commissioner of Police granted sanction to prosecute the
accused under the provisions of the TADA(P) Act. PW-22 being the
Investigating Officer was required to submit the proposal.
59] PW-23 Shri Anami Narayan Roy was required to apply
the mind to the proposal and record his satisfaction and accord the
sanction, if he was satisfied about the commission of the offences on the
basis of the materials and papers submitted to him under the TADA (P)
Act. As far as the cross of this witness on this point is concerned, I do not
see any material elicited in his cross-examination to doubt and disbelieve
the statements made by him in his Examination-in-Chief. PW-23 was the
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competent authority as contemplated u/sec. 20A sub-section (2) of the
TADA (P) Act to accord the sanction for the prosecution of the accused for
the offences under the TADA (P) Act. In his evidence, he has deposed that
he had received the proposal dated 27/02/2006 for the sanction to
prosecute Abu Salem, Riyaz Ahmed Siddiqui, Mehendi Hasan,
Virendrakuma Jhamb and absconding accused Anees Ibrahim and Sunil
Shashidhar Nair. He has deposed that he studied the papers submitted to
him along with the proposal. He has deposed that he had called the
Investigating Officer for personal interview and discussion about the
matter with him. He has further deposed that by following this procedure,
he was satisfied that prima facie case for prosecution of the accused under
the TADA (P) Act was made out and, therefore, he accorded the sanction
for the prosecution on 17/04/2006. Sanction Order is at Exhibit-462. In
his evidence he has further clarified that he has cited the date as
“10/2/2006” in the 5th line from the bottom on page No. 1 of his order,
which in fact ought to have been “27/2/2006”. He has deposed that said
date is correctly mentioned in the top line under the caption 'Reference'.
His evidence has been assailed on the ground that the Sanction accorded
by him is mechanical and on the say of the Investigating Officer. It appears
on perusal of the cross-examination that his evidence is further assailed on
the ground that he has only signed the draft sanction order brought to him
by the Investigating Officer. In his cross-examination he has admitted that
as per his order the investigation was handed over to Anti-Terrorism
Squad(in short ATS) in C.R. No. 144 of 1995 registered at D.N. Nagar
Police Station. He has further admitted that Joint Commissioner of Police,
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A.T.S. discussed with him about the progress of the investigation. He has
admitted in his cross-examination that he was aware that accused Abu
Salem was extradited from Portugal to India. He has admitted in his cross-
examination that he did not notice that prosecution specifically u/sec. 5 of
the TADA (P) Act was denied in the Extradition Order. In his cross he was
asked about the custody of the record forwarded to him by the
Investigating Officer Shri Shengal. He has further admitted that the papers
submitted with the proposal were prepared during the course of further
investigation. On perusal of his cross-examination, I am convinced that
nothing has been brought on record in his cross-examination to discard
and disbelieve his evidence. The oral evidence of PW-23 is supported by
the Sanction Order, which is at Exhibit-462. Perusal of the Sanction Order
would show that on going through the papers, the Commissioner of Police
was satisfied about the commission of the offences under the provisions of
the TADA (P) Act. The Sanction Order at Exhibit 462 is a detail Sanction
Order. On going through the Sanction Order, it cannot be said that it is a
cryptic or vague Sanction Order. Perusal of the Sanction Order would
show that it reflects the application of mind by the Commissioner of Police,
before according the sanction. In the facts and circumstances, I do not see
any reason to disbelieve and discard the evidence of PW-22 Shri Kisan N.
Shengal and PW-23 Shri Anami Narayan Roy on the point of the
proceeding initiated for obtaining sanction and the final sanction accorded
by PW-23.
60] One more objection raised on behalf of the defence is
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that the sanction granted by PW-23 is not valid because it is contrary to the
facts disclosed and proved before this Court. It is pointed out that PW-23
did not go through the sanction order accorded by the then Commissioner
of Police Shri Satish Sahani, when the accused Nos. 1 to 6 in TADA Special
Case No. 22 of 1995 were prosecuted. Ld. Advocate Shri Pasbola pointed
out that the case of the prosecution reflected in both the sanction orders is
not identical. The case stated in the Sanction Order at Exhibit-462 is
completely a new case. This submission cannot be accepted for more than
one reasons. Perusal of both the Sanction Orders would reveal that the
conspiracy was hatched to pressurize the Jain brothers for transfer of the
Kol Dongri Property and/or to pay the ransom. The sanction was required
only for the offences punishable under the TADA (P) Act. The sanction
was not required for the offences under the Indian Penal Code. Perusal of
the Sanction Order would reveal that PW-23 was satisfied about the
commission of the offences under the provisions of the TADA (P) Act. In
this case, death of Pradeep Jain being homicidal has not been disputed. It
has come on record that the arms/pistols were used by the shooters. The
shooters pumped 17 bullets into the body of Pradeep Jain. PW-23 has
deposed in his evidence that he had gone through the papers submitted to
him by PW-22. PW-23 has further deposed that he discussed the facts of
the case with the Investigating Officer PW-22. The use of the weapons and
the homicidal death of Pradeep Jain are undisputed facts. It may be
noted that this was more than enough for PW-23 to form his opinion about
the commission of the offence under the TADA (P) Act. Therefore, this
submission with regard to the introduction of the new facts on the basis of
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some planted evidence cannot be accepted while dealing with the evidence
of PW-23, which is on a limited point.
61] In view of my above said observations based on the facts and
appreciation of evidence, I conclude that the prosecution has proved that
prior approval was accorded by PW-24 Shri Rajnish Seth to record the
information. The proposition of law laid down in the Judgment relied
upon by the Ld. SPP Shri Ujjwal Nikam supports his submission. On the
other hand, the decisions relied upon by the learned Advocate Shri Pasbola
appearing for the accused do not help and assist the accused in
substantiating the contention. In view of my above said observations I
record my findings on Point Nos. 1 and 2 in the affirmative.
AS TO POINT NOS. 3 TO 11 :-
EVIDENCE OF APPROVER PW-1 MOHD.NAEEM KHAN
62] Learned Spl.P.P. Shri Ujjwal Nikam submitted that in this
case PW-1 Approver has unfolded the account of the facts of the
conspiracy, which could otherwise have not been possible. Learned Spl.P.P.
submitted that in this case the evidence given by the Approver is sufficient
to establish that the Approver was “particeps criminis”, guilty partner or
associate, in the commission of the crime since inception. According to
Spl.P.P. the Approver has divulged all the details of the conspiracy, the
object of the conspiracy and the persons involved in the conspiracy and, as
such he is the most natural witness. Learned Spl.P.P. submitted that PW-1
Approver has withstood the grueling cross-examination and as such
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show that he does not fall within the definition of “Approver/ Accomplice”.
Learned Advocate Mr. Pasbola submitted that this PW-1 on his own admits
that he was not a party to any conspiracy meeting. Learned Advocate Mr.
Pasbola submitted that on perusal of the evidence of the Approver in its
entirety would show that the role of this Approver is superfluous. Learned
Advocate Mr. Pasbola further submitted that there are various material
omissions, inconsistencies and contradictions in the evidence of PW-1 and,
therefore, it is not safe to accept his evidence being either “particeps
criminis” or a reliable witness. Learned Advocate Mr. Pasbola submitted
that PW-1 Approver is the creation of the prosecution just to send accused
Abu Salem to the gallows. Learned Advocate Mr. Pasbola submitted that
the story narrated by PW-1 is completely a new story. Learned Advocate
further submitted that PW-1 Approver himself is a hard-core criminal and
the informer of Police. In the submission of learned Advocate Mr. Pasbola
in the backdrop of these admitted facts, this is a fit case to indicate that
credibility of this witness is suspicious. Learned Advocate Mr. Pasbola
submitted that during the course of his police custody as well as his
judicial custody, he was extended special treatment by ATS Officers and
this fact is another indication that there was understanding between the
ATS Officers and the Approver. Learned Advocate Mr. Pasbola submitted
that PW-1 was brought on the scene as per the clear cut understanding
between PW-1 and the Police Officers and in order to substantiate this
statement, reliance has been placed by learned Advocate on the various
statements made by this witness in his evidence. Learned Advocate Mr.
Pasbola submitted that this stage managed exercise of the ATS Officers can
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be condemned on the basis of the positive evidence brought on record.
64] In order to appreciate the submission advanced on
behalf of the prosecution and on behalf of the accused, it is necessary to
minutely scan, scrutinize and analyze the evidence of the Approver to find
out whether he is really a 'particeps criminis', credible and reliable witness.
Let me now see what the Approver has stated and unfolded in his
evidence. As per the case of the prosecution, this accused was arrested on
12/12/2005, when he landed at International Airport, Mumbai. His
Passport, which is marked as 'Article-A', was recovered from him. In his
evidence he has stated about his past antecedents and his stay in Mumbai
as well as in Dubai. In his evidence he has disclosed about his close
acquaintance with accused Abu Salem. He has identified accused Abu
Salem in the Court. He has deposed that he knows Abu Salem since 1992.
He met him for the first time in the office of Abu Salem at 2nd Hasnabad
Lane, Santacruz (West), Mumbai. He has further deposed that he got
acquainted with Mohd. Hasan Mehendi Hasan @ Sunny, Accused No.4, in
the office of Abu Salem. He has deposed that Mohd. Hasan Mehendi
Hasan @ Sunny was driver of Abu Salem and he could see him in the
office of Abu Salem, whenever he had been to the office of Abu Salem. He
has identified Riyaz Siddiqui. In his evidence he has further stated that he
knows Ali Dadi, Dr. Arshad, Vishnu Sharma and Shaukat Mistry @ Shaukat
Kadia, Abdullah of Dunkan Road and Aziz Bilakia @ Aziz Dadi. He has
stated that he met them in the office of Abu Salem. He has further stated
that he knows Jain brothers namely Ashok Jain and Pradeep Jain. He also
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knows Rajesh Igve, Sunil Nair and Salim Haddi. In his evidence he has
further deposed about his visits to Dubai since the year 1982 and his
acquaintance with Anees Ibrahim and notorious gangster Dawood Ibrahim.
In his evidence he has further provided residential address of Anees
Ibrahim and Dawood Ibrahim in Dubai and also the residential address of
Abu Salem. According to him, Rajesh Igve and Sunil Nair are the
assailants of deceased Pradeep Jain.
65] While narrating the conspiracy in this case, his role in
the conspiracy and the roles of Abu Salem and others, he has stated in a
categorical terms that in the month of November, 1994 he received a
phone call of Abu Salem from Dubai. Abu Salem informed him on phone
that there is a very huge plot of land situated at Andheri (East), Kol Dongri
area, which belongs to Ashok Jain but it is in some dispute. Abu Salem
further told him that if the said matter is carefully handled, then they
would make huge profit out of it. As far as the conspiracy meeting and the
decision taken in the conspiracy meeting is concerned, he has stated that
Abu Salem informed him that a meeting was held in Dubai between Abu
Salem, Anees Ibrahim, Riyaz Siddiqui, Shaukat Mistry @ Shaukat Kadia,
Mehendi Hasan and Salim Haddi and in the said meeting it was discussed
that if Ashok Jain is removed from the said property then can earn huge
profit. He has further deposed that Abu Salem further told him that if
needed they would eliminate one of the Jain brothers(“Ekhade ko tapka
denge”). As far as the role of the Approver PW-1 Naeem Khan in the
fulfillment of the object of the conspiracy is concerned, he has deposed
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that Abu Salem told him to continue meeting with Shaukat Mistry and
inform him about the developments in Mumbai. PW-1 Naeem Khan
(Approver) agreed to act accordingly. This witness further disclosed that
the conspiracy hatched in Dubai and the persons present in the
conspiratorial meeting was brought to his(PW-1 Approver Naeem Khan)
knowledge and notice by Abu Salem. Abu Salem also informed PW-1 the
job and the role assigned to him to fulfill the object of the said conspiracy.
66] PW-1 has further deposed about the events unfolded
afterwards. He has deposed that in December, 1994 Abu Salem again
called him from Dubai and he gave him phone number of Ashok Jain. Abu
Salem at that time told him to meet Ashok Jain as he has already told
Ashok Jain about PW-1. As per the instructions of his master Abu Salem,
PW-1 made a phone call to Ashok Jain and went to his residence. He met
Ashok Jain and Sunil Jain and from the residence they went to Kol Dongri,
Andheri (East), Mumbai. He has further deposed that the object of the
visit to Kol Dongri was to see the plot. PW-1 saw the Kol Dongri plot. He
has further deposed that while coming back to the residence, Ashok Jain
told him that though he is the owner of the said property having all the
original documents of title and possession of the plot, still Shaukat Mistry,
Subedar Singh Yadav and Rajan Fernandes were pressurizing him in the
name of Abu Salem. PW-1 has further deposed that on his request, Jain
brothers told him that they would provide photo copies of the Title Deed
within two to three days. He has further deposed that as per the
instructions of Abu Salem, he made a phone call to him and provided him
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the detail account of the visit. This is his evidence about his first visit to
Jain brothers and the property on the say of accused Abu Salem.
67] It is seen on perusal of his evidence that PW-1, after
being informed about the object of the conspiracy and the plan to
eliminate one of the Jain brothers, he decided to participate in the same. It
is also seen on perusal of his evidence that the particular role was assigned
to him in a conspiratorial meeting and communicated to him by accused
Abu Salem to take the conspiracy to its logical end. It is, therefore, seen
that the knowledge of elimination of any one of Jain brothers while taking
the criminal conspiracy to logical end can easily be attributed to PW-1.
PW-1 further tells us about his second visit to the office of Jain brothers.
He has deposed that after two to three days he and Shaukat Mistry went to
the office of Sunil Jain, which was situated at the ground floor of his
bungalow to obtain copies of the Title Deeds. He has deposed that when
they reached his bungalow, he told Sunil Jain to surrender the property. It
appears that this ultimatum was given by PW-1 to Sunil Jain as per the
orders of his master Abu Salem. PW-1 has deposed that at that time Ashok
Jain was present there. Sunil Jain retorted by saying that why they should
leave the property. After hearing this answer from Sunil Jain, Shaukat
Mistry got annoyed and he told that Sunil Jain is understanding more
smartly but he will understand really when at least one murder is
committed (Isko Jaada Samaj Mein Aa Raha Jai. Ekhad Murder hoga tab
samaj mein aayega). PW-1 has deposed that he pacified Shaukat Mistry
and also gave understanding to Ashok Jain and Sunil Jain. At that time
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Ashok Jain supplied them photo copies of the Title Deeds and they
returned back. PW-1 has further deposed that after coming out of the
office of Jain brothers, he made a phone call from a nearby STD Booth. At
that time Abu Salem instructed him to go to Milan Subway signal and wait
there. PW-1 went to Milan sub-way and after sometime Shaukat Mistry
came there and he handed over the photo copies to him.
68] PW-1 has further deposed about the further instructions
received from his master Abu Salem and the action taken by him
accordingly. He has deposed that after two to three days Abu Salem
contacted him on phone and instructed him to take both the parties to the
office of Advocate Bharat Raghani. Abu Salem also gave telephone number
of Bharat Raghani's office. PW-1 has further deposed that after two to
three days again he received a phone call from his master Abu Salem and
he (Abu Salem) instructed him to meet Shaukat Kadia at Milan sub-way
signal. Accordingly, PW-1 went at Milan sub-way signal and met Shaukat
Mistry. He (Shaukat Kadia) told him (PW-1) that a meeting was settled on
the next day at 4.00 p.m. in the office of Advocate Bharat Raghani and
Shaukat Kadia has already informed this fact to Jain brothers. PW-1 has
deposed that Shaukat Mistry instructed him to attend the said meeting. On
the next day PW-1 obtained the address of Bharat Raghani's office by
making a phone call on the number given by accused Abu Salem.
69] He has further deposed about the episode of the
meeting, persons present in the meeting and the actual happenings at the
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meeting. He has deposed that on the next day he went to the office of
Bharat Raghani. He found Ashok Jain, Sunil Jain and Subhash Jain present
in the said office. He also found Subhedar Singh Yadav, Rajan Fernandes
and Shaukat Mistry @ Shaukat Kadia present there. Bharat Raghani was
also present in the meeting. Advocate Mr. Bharat Raghani went through
the copies of papers given by Jain brothers for a while and then explained
both the parties about their rights. PW-1 has deposed that Bharat Raghani
told that Kamla Construction has no right of whatsoever nature in the said
plot. On hearing this pronouncement from advocate Bharat Raghani,
Rajan Fernandes told Ashok Jain to leave the proerty (“Tum yeh jagha
chhod do”). Shaukat Mistry also repeated same sentence addressing Ashok
Jain. A verbal dispute started between Ashok Jain on one hand and Rajan
Fernandes and Shaukat Mistry on the other hand. He pacified them.
Thereafter, PW-1 himself and Jain brothers left the said place. PW-1
provided the details of the meeting to his master Abu Salem on phone.
This evidence would show that PW-1 was actively involved in the activities
of taking the object of the conspiracy to its logical end. If he had not
accepted the role and the work assigned to him by Abu Salem, he would
have no reason to participate in the meetings, take instructions from Abu
Salem and to update Abu Salem about all the events and happenings in
each and every meeting.
70] PW-1 has also deposed that again after two to three
days he received a phone call from Abu Salem and Abu Salem informed
him that after seven to eight days there will be another meeting in the
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office of Bharat Raghani. PW-1 has further deposed that he could not
attend the said meeting. However, he has stated that he received a
message from Ashok Jain on his pager. He immediately contacted him on
phone. Ashok Jain told him that in the meeting Bharat Raghani told them
to bring the original documents. Ashok Jain also told PW-1 that Bharat
Raghani threw away the certified copies of their Title Deeds. He has also
told about the quarrel between himself, Rajan Fernandes and Shaukat
Mistry in the office of Bharat Raghani. PW-1 has further deposed that after
four to five days he received a phone call from Abu Salem. At that time
Abu Salem told him that a meeting will be held in the office of advocate
Bharat Raghani and he has already intimated Ashok Jain and Shaukat
Mistry about it. PW-1 also informed Ashok Jain about the said meeting.
PW-1 went to attend the said meeting on the next day in the office of
advocate Bharat Raghani. In the said meeting he found Rajan Fernandes,
Shaukat Mistry, Subhedar Singh and two unknown persons with them.
Similarly, he saw Ashok Jain and Sunil Jain there. Ashok Jain gave the
original papers to advocate Bharat Raghani. Bharat Raghani went through
the papers and openly declared that these papers were not related to Kol
Dongri property of Jain brothers. PW-1 has deposed that after hearing this
declaration from Bharat Raghani, Ashok Jain became upset and retorted
that if this statement had been made by some peon or clerk, then he would
have accepted it, but it was not expected from the solicitor like Bharat
Raghani. Again in the said meeting verbal exchange took place between
Rajan Fernandes, Shaukat Mistry and Ashok Jain. PW-1 has deposed that
he asked Jain brothers to go out of the office and accordingly Jain brothers
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went out of the said office. PW-1 has deposed that Ashok Jain after this
incident was very angry and upset. PW-1 has deposed that he pacified him
and assured him that he would talk to Abu Salem and would see that
everything is set right. PW-1 has deposed that after this he made a phone
call to Abu Salem and informed him about the happenings in the said
meeting. So this evidence is consistent with the decision taken in the
conspiracy and the attempts made to pressurize Jain brothers to part with
their property. It is not the case of the prosecution that either Abu Salem
or the persons present in the conspiratorial meeting wanted to get the
property transferred to their name. The facts stated by PW-1 in his
evidence would show that they were pressurizing Jain brothers to do away
with the property first. The events and episodes narrated by PW-1, as
stated above, would show that they could not pursue Jain brothers to
either give up or surrender the property as per the dictate of either Abu
Salem or the persons present in the conspiratorial meeting.
71] In his evidence, PW-1 Approver Naeem Khan has further
deposed about the change of mind and slightly moulding of plan by Abu
Salem. The evidence given by PW-1 so far would reveal that he was just
following the instructions of his master Abu Salem. His evidence further
revealed that Abu Salem was directly in contact with the other persons,
who were attending the meetings including Jain brothers. It can be
gathered from evidence of PW-1 that Abu Salem was interested to extort
money from Jain brothers. As can be seen from the decision taken in the
conspiratorial meeting, as stated by PW-1 that the object of the conspiracy
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was to make Jain brothers to surrender the property and by doing so earn
crores of rupees in the said transaction. In his further evidence PW-1
directly touches the heart of the case of the prosecution. PW-1 has
deposed that after the last failed meeting, in the first week of January,
1995 he received a phone call from Abu Salem. It appears from his
evidence that now Abu Salem had changed his tone and direction of
further course of action. PW-1 has deposed that at that time Abu Salem
instructed him to contact Ashok Jain and tell Jain brothers that other party
is ready to give Rs. 2 crores. PW-1 has deposed that Abu Salem also
instructed him to tell Jain brothers that if they are ready to give Rs. 2
crores to them, then he will see that the other party is removed from the
deal and Ashok Jain will be free to develop the said property. PW-1 has
deposed that he went to the office of Ashok Jain and conveyed his (Abu
Salem) message to Ashok Jain. At that time Ashok Jain told PW-1 that
they are the legal owners of the property having original papers and the
possession, still they will pay rupees 20/25 lakhs to Salembhai. PW-1 has
deposed about the reaction of Abu Salem, when he informed him about it.
PW-1 has deposed that when he informed Abu Salem about the offer made
by Jain brothers, Abu Salem appeared enraged and told him to go and tell
Ashok Jain whether he (Abu Salem) was a “Chindhi Chor” (petty thief).
Abu Salem has further told him that they would realise when one out of
five is eliminated. PW-1 has deposed that at that time Abu Salem told him
to go and inform Ashok Jain if he really wanted compromise, then Abu
Salem will be ready to accept Rs. one crore otherwise no. Accordingly,
PW-1 went and conveyed the message of his master Abu Salem to Ashok
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Jain. Now here PW-1 has deposed about the change of the plan by Abu
Salem. This evidence of PW-1 Approver Naeem Khan would show that
Abu Salem wanted Jain brothers to either part with their property and get
some amount from other party or if they were not ready to do so, then
satisfy his demands. This evidence of PW-1 shows that accused Abu Salem
was also directly dealing with Jain brothers to force them to succumb to
his demands.
72] PW-1 has further deposed that in January, 1995 he
received a phone call from Abu Salem and at that time Abu Salem told him
that he had finalized the deal for Rs. 1 crore (Rs. one crore) with Ashok
Jain and Jain brothers would give Rs. 10 lakhs per month. PW-1 has
further deposed that Abu Salem instructed him to go and collect the said
amount. PW-1, obedient servant, went to Ashok Jain and met him in his
office on the next day. PW-1 conveyed him (Ashok Jain)the message
received from Abu Salem. At that time Ashok Jain told him (PW-1) to
come on the next day. PW-1 went to the office of Jain brothers on the next
day. At that time Ashok Jain paid him Rs.ten lakhs. PW-1 tells us that he
informed this fact to Abu Salem on phone. As per the instructions of Abu
Salem on phone, PW-1 kept Rs. two lakhs with him and paid Rs. eight
lakhs to one Abdullah of Shehzadi Building, Dunkan Road, Nagpada.
73] PW-1 further deposed about happenings in February,
1995. He has deposed that in the end of February, 1995, again he received
a phone call from Abu Salem and informed him to meet one Mehendi
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Hasan i.e. accused No.4, in Moti Mahal Hotel situated at S.V. Road,
Andheri, at 4.00 p.m. and give him Rs. one lakh. PW-1 accordingly went
to Moti Mahal Hotel and met Mehendi Hasan. Mehendi Hasan was
accompanied by one person by name Salim Haddi. PW-1 paid Rs. one
lakh to Mehendi Hasan. They came to a nearby phone booth and informed
this fact to Abu Salem. At that time Mehendi Hasan also had a talk with
Abu Salem.
74] PW-1 has further deposed in his evidence about one
incident, which occurred on 02/03/1995. PW-1 has stated that on that
day he received a pager message from Abu Salem. He immediately
contacted Abu Salem on phone and found that Abu Salem was very angry.
At that time Abu Salem asked who was Pradeep Jain and whether he
knows manners of talking. PW-1 has informed Abu Salem that Pradeep
Jain was brother of Ashok Jain. PW-1 has further deposed that at that time
he tried to pacify Abu Salem, but Abu Salem abruptly disconnected the
phone. PW-1 narrates further his attempts to contact Jain brothers.
However, according to him, he could not contact Jain brothers. According
to him, on 08/03/1995 he read in News Paper about murder of Pradeep
Jain in his bungalow in the previous night. He immediately went to STD
Booth and made a phone call to Abu Salem and asked Abu Salem about
the news of murder of Pradeep Jain and correctness of the news. PW-1
has deposed that Abu Salem at that time replied that the news was true
and such persons only know this language and now they would regularly
pay the amount. Here, again Abu Salem gave him some orders. PW-1 has
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deposed that Abu Salem told him to meet Mehendi Hasan at Moti Mahal
Hotel at 5.00 p.m. and deliver him remaining Rs. one lakh. PW-1
accordingly went to Moti Mahal Hotel and met Mehendi Hasan. Mehendi
Hasan was accompanied by two persons. Mehendi Hasan introduced them
as Rajesh Igave, Police Constable, and Sunil Nair-Karate Inspector, and told
that both of them have sent Pradeep Jain to Heaven. PW-1 delivered Rs.
one lakh to Mehendi Hasan. They went to STD Booth at Andheri Naka and
informed this fact to their master Abu Salem. Mehendi Hasan also talked
with Abu Salem and confirmed the receipt of the money.
75] This evidence of PW-1 relate the conspiracy hatched in
the meeting at Dubai. Similarly, the communication of the said conspiracy
and its object to PW-1 and also the role assigned to him by Abu Salem. It
also speaks about the express consent and willingness of PW-1 to become a
part of the conspiracy. The evidence of PW-1 further reveals that,
consistent with the role accepted by him, he arranged and attended the
meetings with Jain brothers and from time to time conveyed the
happenings in the meetings to Abu Salem. Perusal of this evidence would
show that he(PW-1) was not a stranger to the conspiracy and to do all the
needful acts to fulfill the object of the conspiracy.
76] PW-1 narrates the incident occurred post Pradeep Jain
murder. His evidence would show that Abu Salem did not put a full stop to
the conspiracy by eliminating Pradeep Jain. It appears on perusal of his
evidence that Abu Salem continued to threaten Jain brothers to extort
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money from them. PW-1 in his further evidence speaks about another
mode adopted by Abu Salem to extort the ransom from Jain brothers. He
has deposed that in March/April 1996 Abu Salem made a phone call to
him and instructed him to go to Juhu and meet one Jhamb Sahab and also
told him (PW-1) that he (Abu Salem) had already told said Jhamb Sahab
about PW-1. PW-1 has deposed that at that time Abu Salem informed him
that name of PW-1 has surfaced in Pradeep Jain Murder Case. Abu Salem
also instructed him to go along with Jhamb Sahab to Sher-A-Punjab
Colony, Mahakali Caves Road, Andheri (East) and inspect and assess the
values of all the three flats situated there because Jain brothers had no
money to pay to them and in lieu thereof they had agreed to hand over
three flats to them. At that time Abu Salem also gave him one mobile
phone number informing him that it was the telephone number of Jhamb
Sahab. PW-1 followed the orders of his master Abu Salem. He called Mr.
Jhamb on the given number and after taking the address of his bungalow
went there. He has specifically deposed that Abu Salem had told him that
first name of Jhamb was Virendra. At the bungalow one person greeted
him and introduced himself as Jhamb Sahab. PW-1 accompanied the said
Jhamb in his 118 NE Car to Andheri (East). PW-1 has deposed that there
were three persons in the said car i.e. he himself (PW-1), one person
driving the car, who was sitting in the wheelchair with black goggle in the
Court Hall and identified by him as accused No.5 and one another person
by name Jhamb Saheb. PW-1 has deposed that the accused No.5 left the
car on the way to Andheri. Thereafter, he (PW-1) and another Jhamb
Sahab went to Andheri (East), Mahakali Caves Road in Sher-E-Punjab
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Colony and visited Mamta Co-operative Society. The person, who
accompanied him, showed three flats bearing Nos. 602, 605 and 606. The
keys of all the three flats were also with said Jhamb Sahab. After
inspecting the three flats, they returned to Juhu. PW-1 informed Abu
Salem on phone that all the flats were good and could fetch good price.
77] This is his role in the second leg of conspiracy. In this
case also he has followed the orders of his master Abu Salem. In this part
of the conspiracy, it is not his case that he was informed by Abu Salem
about the exact nature of talk and transaction between him and accused
No.5 Jhamb. The evidence of PW-1 post Pradeep Jain murder speaks
about the involvement of the accused No.5 in helping Abu Salem to
disposed off the three flats, which were given to them in lieu of ransom
amount by Jain brothers.
78] Further part of his (PW-1) evidence deals with his
leaving India, staying in Dubai and have some business there. He also
speaks about the arrest and interrogation by ATS Officers. He also speaks
about the willingness expressed by him to confess the crime. PW-1 also
deposed about the decision taken by him to become an Approver and to
give evidence in the Court.
79] The order passed by this Court dated 21/07/2006 needs
to be mentioned at this stage. The Investigating Officer, on receipt of an
application from the accused, made an application before this Court for
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production of the accused before Court to verify the correctness of the
statement made by this witness. Accordingly, production of the accused
was ordered by this Court. By speaking order dated 21/07/2006, taking
note of the application made by the accused, enquiry made by the Court
and the satisfaction arrived at by this Court, this Court accepted the
statement made by PW-1 that he was ready to make a true and full
disclosure of the crime. After being satisfied, this Court tendered pardon
to the accused. The accused accepted the pardon on a condition that he
would make a true and full disclosure of the crime known to him.
80] It is, therefore, apparent on the face of the record that
while tendering the pardon, this Court was satisfied that the application
was made by the accused to become a witness and disclose true and
correct facts of the crime. It is, therefore, seen that there is no iota of
material to point out that the procedure followed while tending the pardon
was not according to law. There was no option before the Court than to
accept the statement made by the Approver. The Court even could not
have declined to tender a pardon when he had expressed his desire to
become an Approver.
81] The evidence of the Approver PW-1 Naeem Khan suffers
from inherent defect. The Approver himself is a criminal. It may be noted
that one of the associates in the commission of the crime becomes an
Approver to save his skin, but at the same time directly notches the skin of
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his co-accused. He betrays all his erstwhile partners in the commission of
the crime. It is, therefore, necessary that great care and precaution is
required to be taken while appreciating the evidence of Approver. The
evidence of the Approver cannot be said to be trustworthy, unless and until
Court is fully satisfied that he was involved in the commission of the crime
with his co-accused and the disclosure made by him projects a true picture
of the commission of the crime including his involvement in the
commission of the crime. The evidence of PW-1 Approver has been
subjected to searching and grueling cross-examination by Advocates Mr.
Pasbola and Mr. Shivade, who according to me, are the best criminal
lawyers in the profession. Learned Advocates during the course of their
cross-examination have not left a single stone unturned to unearth the
truth and to establish before this Court that this man was brought on scene
from nowhere to help the prosecution and give false evidence. It is
necessary to see the cross-examination minutely. At this stage, it is
necessary to mention that learned Spl.P.P. submitted that during the course
of the cross-examination, PW-1 has made consistent and rational
statements to give impression that he was “particeps criminis” and certain
events disclosed by him in his cross-examination fortify the case of the
prosecution that Approver was fully involved in the commission of the
crime. Learned Spl.P.P. submitted that in this case certain suggestions
made to the Approver are pregnant with the facts in issue in this trial and,
therefore, on the basis of those suggestions, it has to be said that the
defence has admitted impliedly the involvement of the Approver in the
commission of the crime.
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82] It is trite law that cross-examination is a double edge
weapon. The cross-examiner, therefore, must be very carefully while
conducting the cross-examination. If the weapon of the cross-examination
is not properly handled by cross-examiner, then the same can inflict a
serious injury to the cross-examiner and ultimately to the case of the
accused. It may be mentioned at this stage that if the witness gives certain
admissions during the course of cross-examination and those admissions
are found to have a bearing with the facts of the prosecution, then those
admissions cannot be ignored. In this case, there are vital admissions given
by the Approver and I will analyze those admissions one by one.
83] The main attack in the cross-examination is to
substantiate the defence of the accused that this Approver was not
“particeps criminis” and to bring on record and point out certain omissions,
improvements, contradictions and discrepancies in his evidence. In his
evidence PW-1 Approver Naeem Khan has stated that he was not present in
conspiratorial meeting. According to PW-1, he was made known of this
conspiracy in November, 1994. In his evidence he has narrated the role
played by him from time to time as per the dictates of his master Abu
Salem. Learned Spl.P.P. admitted that there are certain omissions /
improvements in the evidence of the Approver given before the Court.
Learned Spl.P.P. has explained the same. According to learned Spl.P.P. after
arrest of the accused, statement of the Approver was recorded by the Police
Officers. Later on as per the desire expressed by him, his confession was
recorded. It is pointed out that the Approver did not retract his confession
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at any time. It is pointed out that this accused has narrated all the relevant
facts in his confession recorded by DCP Naval Bajaj. Learned Spl.P.P.
submitted that when Approver had made a statement before Police Officer,
he did not know that he would be granted pardon and for that reason he
might not have come out with all the facts of the crime known to him. But
he has disclosed all the facts when he gave evidence before this Court. It
may be mentioned that the pardon was tendered to this accused on a
condition that he must make a true and full disclosure of the facts known
to him in respect of the crime. Learned Spl.P.P. relying upon the decision in
the case of Madan Mohan Lal vs. State of Punjab reported in 1970
Supreme Court Cases 1006, submitted that omissions in the earlier
statement of the approver do not necessarily render his evidence
unreliable. In this case the Hon'ble Supreme Court of India has held that
when the accomplice gives his police statement he does not know that he
would be granted pardon and possibly for that reason does not come out
with all the facts known to him and he does so while making his statement
before the Magistrate as he knows by then that he would be tendered
pardon on condition that he would disclose all the facts known to him.
The Hon'ble Supreme Court has further held that the omission in the
police statement, therefore, by itself would not necessarily render his
evidence unreliable. The Hon'ble Supreme Court has further held that in
considering whether approver's evidence passed the test of reliability, the
Court would have to consider whether taken as a whole and in the light of
the facts and circumstances of the case it was a credible version or not.
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84] I have gone through the evidence of PW-1 Naeem Khan
(Approver) and perused the omissions and the improvements. Even if
those omissions and improvements are taken into account, the evidence of
the Approver would not change the tenor of his unimproved statement
with regard to his involvement in the commission of the crime and also the
role played by him in the commission of the crime. Therefore, on account
of the omissions and improvements brought on record in the statement of
the Approver, his evidence per se cannot be termed as unreliable. It is
further pertinent to note that this witness was arrested after 10-1/2 years
of the commission of the crime. His name was surfaced when the crime
was registered in 1995. In the earlier charge-sheet he was shown as a
wanted accused. His delayed appearance on the scene is also one of the
contentious issues raised by the defence and the same would be discussed
separately.
85] In his evidence he has admitted that for the first time in
November, 1994 he was contacted by Abu Salem and he was informed
about the conspiracy and the role assigned to him in the conspiracy. On
the basis of the material brought on record, it is submitted by defence that
this evidence of PW-1 Naeem Khan (Approver) is contrary to the earlier
case of the conspiracy of the prosecution and even the present case of the
conspiracy of the prosecution. It has been demonstrated before me that
PW-1 Naeem Khan (Approver) has spoken about the conspiracy and the
events occurred after November, 1994. But according to the defence, it is
the positive case of the prosecution and the evidence of the other witnesses
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that the conspiracy was hatched much prior to November, 1994 and even
the meetings with Jain brothers were held by Shaukat Kadia, Rajan
Fernandes and Subhedar Singh Yadav pursuant to that conspiracy. On the
basis of this submission, the role of PW-1 does not become superfluous.
On the contrary this statement made by PW-1 can lend assurance to the
case of the prosecution that he is the man, who knows minute details of
the conspiracy and he has come forward to depose about the conspiracy,
which even sometimes run contrary to the case of the prosecution. If it is a
case of the defence that this witness is a planted witness, this witness has
come to depose against other accused in a conspiracy with Mumbai Police
to send the other accused to gallows, then this witness in all probabilities
would have toed the line of the prosecution. In that eventuality he would
not have been allowed to make any statement contrary to their own case.
It is suggested that this witness was given special treatment by the ATS
Officers. He was made comfortable and, therefore, he has accepted the
promise given by the ATS Officers and turned Approver. It may be
mentioned that this submission would have become appealable provided
this witness had made a stereo type statement consistent with the earlier
case of the prosecution. The ATS Officers would not have even dared to
introduce such a witness as an Approver, who in all probability would have
damaged their entire case. This is a very sound reason to come to a
conclusion that PW-1 Approver has come forward with a case and made
disclosure of certain facts known to him. If he had toed the line of the
Police Officers then he would have made a statement consistent with the
earlier part of the case of the prosecution. In view of this statement of the
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Approver, the credibility of the Approver becomes above-board. Similarly,
the credibility of the ATS officers also become above-board. They had
decided to go with this witness as an Approver though he made certain
statements, which are contrary to the earlier case of the prosecution. It
appears that the ATS Officers have taken a risk to bring this witness before
the court and make him narrate all the facts of the conspiracy, people
involved in this crime and duration of the conspiracy. This is an indication
that Approver is a natural witness. If the Approver had been concocted or
tutored witness, then he would have toed the line of ATS Officers and
made some statements consistent with their case of conspiracy.
86] One more contention raised to point out that Approver
is not “particeps criminis” and he is not a reliable witness. There is delay
of 10-1/2 years by him to come to India and make a disclosure involving
himself and the other accused. On the point of delay, this witness has been
thoroughly cross-examined. It may be noted that the answers and the
explanation given by this witness cannot be said to be a false statement. In
the earlier trial, this witness was shown as a wanted accused. Accused
Mehendi Hasan was not shown as a wanted accused in the earlier charge-
sheet. It is to be presumed that without disclosure of his involvement in
the commission of the crime, he would not have been arraigned as a
wanted accused in the earlier charge-sheet. The submission of the defence
that he has been planted witness would have been acceptable provided he
had come on the scene for the first time in 2005. But that is not the case
over here. It has come on record in his evidence that accused Abu Salem
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himself informed him that his name was revealed as accused in “Pradeep
Jain Murder Trial”. He was wanted accused. Even if it is assumed for the
sake of argument that for sometime he was in India and for that matter he
travelled to and fro between India and Dubai on every occasion after 1996
does not mean that he is at fault. It has to be treated as a fault and failure
of our police machinery to arrest him. There is no iota of evidence to show
that before 2005 at any time the police had any information about his
arrival in India and departure from India. It has come on record in his
evidence that he is a hardened criminal. He is not a layman and,
therefore, we cannot except him to behave like a layman and to fall in the
trap of police. The hard-core criminal like PW-1 would be difficult to nab
even by the police. At this stage, before going to his explanation, I am
reminded of saying that “Birds of the same feathers flock together.” When
Birds of the same feathers flock together, they no each others capabilities,
plus points, minus points and the network in India as well as outside India.
The doubt as to why this man would come down to India in 2005 only and
not before that is reasonable. His arrival, according to the prosecution,
was timely and properly explained, but according to the co-accused, it was
untimely to suit the purpose of the ATS..
87] In his evidence, PW-1 has deposed about his
acquaintance with accused Abu Salem. In his evidence he has disclosed
about the activities and the dare devil nature of Abu Salem. He must be
aware of the fact that Abu Salem would go to any extent and eliminate
anybody. PW-1 followed the dictates of Abu Salem without bothering to
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know his earnings in this deal. He has also given the reason why he
agreed to work for Abu Salem. That will be dealt with separately. At
present the reason why he did not come to India and surrender before
police prior to 12/12/2005 is material. He was thoroughly cross-examined
on this point. The explanation given by PW-1 appears to be rational and
reasonable. In the facts and circumstances it cannot be said to be a false
explanation just for the sake of convenience. In his evidence at Page 39
Para 43 PW-1 has deposed that he had started repenting over the crime
after the murder of Pradeep Jain. PW-1 has deposed that the reasons for
his repentance was that by meeting Pradeep Jain he (PW-1) had become
close to him and secondly he had not expected that the episode will end in
the death of Pradeep Jain. This one reason he has given for becoming an
Approver. This has come in his cross-examination. In his cross-
examination at Page 40 Para 45, PW-1 has admitted that he came to know
in 2002 that Abu Salem was arrested in Portugal. PW-1 has admitted that
he had decided to follow Abu Salem to India as and when he was brought
to India. This fact would show that he was keeping track of Abu Salem. At
Page 44 Para 51 he has admitted that intention behind coming to India
was to surrender before the Police, admit the guilt and minimize the
burden on his conscience. He was asked the pointed question why he did
not come to India earlier to 2005, when he was intending to disclose all
the facts relating to the crime to the police. At Page 48 Para 59 PW-1 has
stated that though he was thinking to disclose all the facts to police by
surrendering but he could not do so as Abu Salem was still at large. PW-1
has further admitted that after the arrest of Abu Salem in 2002,
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apprehension on his psyche about Abu Salem was lessened. PW-1 has
further admitted that still after 2002 he did not come to India and
surrender before police because he was not sure whether Abu Salem would
be brought from Portugal to India. In the facts and circumstances, this
reason appears to be most rational, probable and acceptable. He knew the
terror of accused Abu Salem. Abu Salem was a greedy Underworld Don to
eliminate one and all, who stood in his way. PW-1 is a family man. If a
family man thinks on this line, it is but natural. I have already observed
that if his name had not been disclosed in the earlier charge-sheet as a
wanted accused and if he had been brought on the scene for the first time
just to create evidence, then that could have been a strong circumstance to
accept the defence. But in this case he (PW-1) was a wanted accused and
in his evidence PW-1 has provided vivid details studded with his role and
the role of his co-accused in the conspiracy. Therefore, it cannot be said
that the Approver was having hand in gloves with Mumbai Police and as
per the understanding arrived at with them, he (PW-1) came to India on
12/12/2005. I do not see anything unnatural in this. When Abu Salem
was brought to India from Portugal he might have thought that this is the
proper opportunity to surrender before the Police and to face the
consequences. It is common knowledge that even a criminal cannot bear
with the burden of such gruesome crime for years together. Therefore, I
do not agree with the submission of the defence that PW-1 Naeem Khan is
brought into India under a conspiracy to create evidence against accused
Abu Salem.
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88] It may further be noted that at the time of his (PW-1)
statement recorded on 17/12/2005 he did not disclose all the facts. When
he decided to confess the crime out of repentance, he (PW-1) changed the
tone of his statement and disclosed almost all the facts of the crime
including his role in the crime. PW-1 took six months time, after his arrest,
to ponder over the decision to become an Approver. If he (PW-1) was
playing in the hands of Police pursuant to some conspiracy with the police,
on the very day of his arrest, he (PW-1) would have made it clear before
Court that he wanted to become an Approver in this case. Nobody could
have prevented him from doing so.
89] His (PW-1)evidence has been severely criticized by
pointing out that he is a hard-core criminal and had good contacts with the
Officers of the Law Enforcement Agencies including Police. At this stage it
may be mentioned at the cost of repetition that one of major flaws in the
evidence of the Approver is that he himself is a criminal. In this case,
therefore, the question is whether merely because of his contacts with the
Law Enforcement Agencies, he could be planted as a witness in this case ?
On this point, PW-1 was thoroughly cross-examined. It may be mentioned
that this witness could have avoided to disclose all his contacts with the
Law Enforcement Agencies. But in all fairness he has admitted in his cross-
examination at Page 43 Para 48 that in 1990 he came in contact with
Authorities under F.E.R.A., D.R.I. and Customs. PW-1 has further admitted
that he became informer of FERA, DRI and Customs in 1990. However, he
(PW-1) has denied that he was a informer for Police. PW-1 also denied
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that he got Rs. 27 lakhs as reward. PW-1 was confronted with his
statement made before Police on 17/12/2005. Ultimately it has been
established that 27 lakhs reward was claimed by him for providing the
information to the Authorities. It may be mentioned that merely because
of his role as an Informer of Law Enforcement Agencies, this could not be a
ground to discard his evidence about his involvement in the commission of
this crime. It may be mentioned at this stage that on the basis of his
contacts with the Law Enforcement Agencies, he (PW-1) would have used
his clout to see that his name does not surface in Pradeep Jain Murder
Trial. It may further be mentioned that if he was so important person for
the Law Enforcement Agencies, then on their own they would have made it
a point to help him in his bad time. Therefore, this could not be the
ground for him to get himself involved in the commission of the crime. It
be may noted at this stage that when his name was surfaced in this crime,
he would have no knowledge that he could become an Approver and claim
the immunity. It is, therefore, seen on the basis of these admissions that he
(PW-1) is a criminal and also the informer of the law Enforcement
Agencies. In the facts and circumstances, this case of the defence that
merely because of this he conspired with the ATS Officers does not stand to
reason and as such cannot be accepted.
90] At Page 46 Para 54 the defence Lawyer asked him about
his contacts with the F.E.R.A., Customs and DRI Authorities. PW-1 has
stated that he was in their contact till 1996. He has further admitted that
before leaving India, he did not consult any of the officer from FERA,
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Customs and DRI whom he knew as an Informer and sought their advice as
to what he should do as his name was involved in this case as a suspect.
This answer given by this witness is most rational and reasonable.
Therefore, on the basis of his contacts with the Law Enforcement Agencies,
which he has admitted in his cross-examination, could not be the ground
to implicate himself in such a heinous crime. Being a Informer of the Law
Enforcement Agencies and himself a criminal, he (PW-1) would have been
aware of the consequences of being an accused in such a heinous crime. It
may be mentioned that on the basis of his criminal antecedents and his
acquaintance with the Officers of Law Enforcement Agencies, the case of
the defence that he (PW-1) has been planted as a witness simply to nail
accused Abu Salem cannot be accepted.
91] The question was raised why Approver Naeem Khan
PW-1 would help Abu Salem in his misdeeds without having the assurance
of financial benefit in the deal or otherwise. PW-1 has been cross-
examined on this aspect also. In his evidence, PW-1 has deposed that he
used to visit the office of Abu Salem. He was acquainted with him. They
were knowing each other being the “Birds of same feather.” Without
having the knowledge of the capabilities of PW-1 and his man
management skill, Abu Salem would not have assigned this role to him. It
is necessary to see what PW-1 has to say about his benefit in taking the
deal of Kol Dongri Property to its logical end. All these accused, PW-1 and
their relatives have criminal background. It is explicit from the evidence
produced on record. PW-1 has narrated the reason why he agreed to do
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the favour for Abu Salem and act consistent with the decisions taken in the
conspiracy and to do the role assigned to him. At Page 51 Para 65 he
(PW-1 has admitted that between March, 1993 to November, 1994 he had
a talk with Abu Salem on phone. He (PW-1) has admitted that the said
talk was in connection with the release of his nephew Danny (Meheraj) as
he was arrested by the Police in connection with firing. PW-1 has admitted
that the said talk took place in the year 1994. He has admitted that the
said talk with Abu Salem regarding Andheri Kol Dongri property had taken
place about three months after Danny's arrest. It has come on record in his
confession that his nephew was arrested for committing the murder as per
the instructions of Abu Salem and, therefore, he contacted Abu Salem
about it. Then Abu Salem assured him that he would do the needful. He
later on engaged a lawyer and the nephew of PW-1 got bail. At Page 67
Para 96, PW-1 has categorically admitted that he (PW-1) was not promised
to pay anything by Abu Salem for his involvement in this matter. He has
admitted that he did not receive anything in the matter. PW-1 has also
admitted that he did not demand anything from Abu Salem. A pointed
question was asked to him that, when you were not promised by Abu
Salem, then why did you participate in conspiracy of Pradeep Jain
murder ? This witness (PW-1 Naeem Khan) has given pointed answer. He
has stated that accused Abu Salem had helped his (PW-1) relative in the
matter of firing and he (PW-1) was not expecting that the matter would go
too far in culmination of Pradeep Jain's murder and further he (PW-1) was
also expecting that if the deal goes through properly, he may get
something. It may be noted that this answer given by the witness PW-1
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Naeem Khan (Approver) cannot be brushed aside. He has categorically
stated the reason for following the commands of his master Abu Salem.
The reason is rational and probable. He decided to help Abu Salem
because he was indebted to Abu Salem for the help extended by Abu
Salem to his nephew.
92] In the cross-examination, he was subjected to grueling
enquiry on his evidence at Page 15 Para 21. In his evidence PW-1 has
deposed that in January, 1995 he had received a phone call from Abu
Salem and Abu Salem had instructed him to contact Jain brothers and
inform them that other party was ready to give Rs. 2 crores to him. PW-1
has further stated that Abu Salem told him that if they are ready to give
Rs.2 crore, then Abu Salem would see that other party is removed from the
deal and Jain brothers would be free to develop the property. It appears
that this is the omission in his earlier statement. This fact has been
mentioned in the confession. It is submitted that this statement made by
PW-1 does not find support even from the confession of accused Abu
Salem and evidence of Sunil Jain-PW-13. While considering this
statement, it is necessary to bear in mind that Abu Salem was interested in
extorting money from Jain brothers. This statement made by PW-1 cannot
be considered in isolation with his other evidence. It appears on perusal
of his evidence in entirety that he (PW-1) was in fact the most trusted
soldier of Abu Salem to deal with Jain brothers for holding the meetings
with Jain brothers and to take care of monetary transactions. It appears on
perusal of his evidence that he was not involved in dealing with Jain
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brothers directly. He was following the instructions of Abu Salem. It is
clear from his evidence. It has come on record in his evidence that Abu
Salem was in contact with Jain brothers and was dealing with them
directly. The deals settled between Abu Salem and Jain brothers were
informed to him and he was directed to do the needful in the matter either
for arranging meetings or collecting money from Jain brothers. PW-1 has
deposed in his evidence that Abu Salem informed him that the matter with
Jain brothers was settled for Rs. one crore and they had agreed to pay Rs.
ten lakhs per month. Therefore, if this statement of PW-1 Naeem Khan
(Approver) is read in juxtaposition with the ultimate settlement with Jain
brothers, then it appears most natural. In the ordinary course of nature,
there ought to have been some discussion on the settlement of some
ransom amount. On perusal of his (PW-1) cross-examination, it appears
that there was some talk between him and Abu Salem on the point of
settlement. He has admitted that he did not know why Abu Salem had
settled the matter only for Rs. one crore. PW-1 has admitted at Page 66
Para 94 that Ashok Jain told him that he will give Rs. ten lakhs per month.
He has admitted that after the first installment of Rs. ten lakhs, Ashok Jain
did not pay next installment. In my view, during searching cross-
examination on all the above stated points, PW-1 has given most rational
and probable answers. He did not baffle. On the contrary, the answers
given by him would make it clear that he was in know of all the things
connected with the conspiracy, its object and the role assigned to him and
the others in the conspiracy.
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93] Learned Advocate pointed out to me the Portion
marked 'B' from the statement of the witness PW-1 recorded on
17/12/2005 and submitted that this witness has given a complete go by to
his case of conspiracy in November, 1994. It is admitted fact that his
statement was recorded by the Police Officer on 17/12/2005. In his
statement he had stated that in November, 1993, a phone call was made to
him by Abu Salem and he had informed him about the conspiracy and the
object of the conspiracy. In his cross-examination, the witness has stated
that the conspiracy was not hatched in 1993. In his further statement, the
witness has stated before Court that the episode of conspiracy and the
phone call made to him by accused Abu Salem took place in November,
1994 and not in November, 1993. The object of confronting the witness
with some improved statement or contradiction is to offer an opportunity
to the witness to explain the correct position, if he is able to do so. The
second object is to prove the statement and make use of the said statement
as evidence before Court. I have minutely perused the evidence of this
witness and the Portion marked 'B', which is marked as Exhibit-437 .
Except the year of the conspiracy, all other things stated by the witness in
his statement as well as before Court are consistent. The explanation
offered by this witness appears probable. It is not the case of the
prosecution that any conspiracy was hatched in 1993. Similarly, it is not
the defence of the accused that there was a conspiracy but it was in 1993.
Therefore, this contradiction with regard to the 'Year' of the Conspiracy has
been properly explained. The statement of the witness about the
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conspiracy in November, 1993 could not be said to be a correct statement.
On the basis of the material placed on record, a reasonable judicial
inference can be drawn that it must have happened due to some mistake
either on the part of the witness or the Officer, who recorded the
statement. On the basis of this contradiction, it cannot be said that this
witness has narrated two different conspiracies conveyed to him, first of
November, 1993 and the second of November, 1994.
94] In order to demonstrate that this PW-1 is a planted
witness and he has been brought on scene in conspiracy between Police
and PW-1, the attention of the Court was drawn towards the Passport -
Article 'A' and various discrepancies from the said Passport. The Passport
is a travel document of a particular person. On the basis of the Passport,
the destinations travelled by the person can be gathered. In this case, the
Passport has been relied upon by the prosecution only for the purpose to
show that PW-1 Naeem Khan (Approver) travelled in India on 12/12/2005
from Dubai. It is submitted that the Passport is a fake Passport prepared to
create a record of travelling of the Approver from Dubai to Mumbai. It
may be mentioned that even without production and proof of this Passport
the Court would not have discarded the case of the prosecution that this
PW-1 was arrested on 12/12/2005. PW-1 was wanted accused since 1995.
He could not be arrested by Police. At the most it could be said to be the
failure of Police to arrest him in this crime. It may be mentioned at this
stage that PW-1 was not involved in the incident of attack on Jain brothers.
The main culprits involved in the attack on Pradeep Jain were Rajesh Igave
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and Sunil Nair. It is necessary to mention at this stage that Rajesh Igave,
who happened to be a serving Police Constable on the date of the attack on
Jain brothers, was later on killed in an encounter. Sunil Nair is also one of
the wanted accused in this case. He was one of the assailants. It may
further be noted that police could not arrest Sunil Nair till date. In the
facts and circumstances, it cannot be said that to favour somebody or to
favour Sunil Nair, Police have not arrested him. Such submission does not
stand to reason. The same principle has to be applied in the case of PW-1.
Sunil Nair was a shooter. In comparison with Sunil Nair, PW-1 Approver
Naeem Khan is placed in a far better position. He could have on his own
travelled to any destination of his choice. In his evidence he has deposed
that in 1996 he left India for Dubai.
95] On the basis of this Passport, a submission has been
made that his old Passport was destroyed only with a view to show that in
1994, 1995 and 1996 PW-1 was not in India and, therefore, there was
hardly any reason for him to participate in the so-called conspiracy. It may
be mentioned that merely because of the failure to produce the old
Passport, this statement cannot be accepted by applying any standard and
any logic. In this case the prosecution was not required to prove the
Passports of the Approver. There is no issue involved with regard to the
validity or otherwise of the Passport of PW-1. The limited question
involved in this case is whether he travelled to India and landed at Sahar
International Airport on 12/03/2005. It has to be presumed that the
Police could not arrest him because he would have been hiding himself. In
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his evidence he has given the reasons to the satisfaction of the Court for his
decision to come down to India only on 12/12/2005. I have found those
reasons acceptable. The reasons have been given in the cross-examination.
I have dealt with the reasons separately. Therefore, the question about the
fake nature of the Passport or otherwise of Article-'A' is not the issue before
this Court. The issue before this Court is limited and the said issue is
whether this witness had arrived in India on the basis of this Passport from
Dubai at the given time and on the given date. This fact has been proved.
Perusal of the Passport would show that there is departure stamp on his
Passport, when he left Dubai and there is immigration stamp on his
Passport at Sahar International Airport. We are not concerned with other
details of the Passport. It is common knowledge that this hard-core
criminals have their own network and they can procure any number of
fake passports. But since this is not the issue in this case, the cross-
examination conducted on this issue to nail this witnesses as a lier, is of no
assistance to the case of the defence. The defence of the accused that this
Passport is a creation of Police cannot be accepted.
96] There is one more document on record to show that on
the given date this accused was arrested by ATS. Exhibit-427 is the Arrest
Panchnama. This Panchnama was drawn on 12/12/2005 between 19.40
hours to 20.10 hours. It was draw in the office of ATS. I do not see
anything unnatural about drawing of this panchnama in the ATS Office.
After arrival of the accused at the Airport, the Officers ought to have been
in a hurry to take him in custody and bring him to the office. If the
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panchanama is not drawn at the Airport immediately after taking him in
custody would not be the ground to discard the panchanama of the arrest
of accused on 12/12/2005. Therefore, for the aforesaid reason, I am not
prepared to accept the submission that the Passport Article-'A' is the
creation in conspiracy with Mumbai police and the accused to plant him as
a witness against accused Abu Salem.
97] I have already mentioned that PW-1 has been subjected
to searching and grueling cross-examination by Advocate Mr. Pasbola and
Advocate Mr. Shivade, the best criminal lawyers in the profession. Perusal
of the evidence of PW-1 and particularly his cross-examination in entirety
would show that this witness has withstood searching and grueling cross-
examination. Despite making searching cross-examination, nothing
substantial has been brought on record in his cross-examination to doubt
the credibility of this witness. On perusal of cross-examination of PW-1, it
appears that main evidence of this witness that he was informed about the
conspiracy by Abu Salem and he was assigned particular task by Abu
Salem and he did follow the instructions of Abu Salem and held various
meetings with Jain brothers and at all times threatened Jain brothers to
succumb to the demands of Abu Salem has not been shattered.
98] On perusal of his evidence in entirety it would show
that the facts narrated by him disclose intrinsic account of the conspiracy.
This witness has disclosed certain relevant facts in his cross-examination
for the first time and those facts lend assurance to the statements made by
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this witness in his Examination-in-Chief. The answers given by this witness
in cross-examination do not doubt his involvement in the conspiracy and
fulfillment of the instructions of Abu Salem by him to take the conspiracy
to its logical end. This witness was not directly involved in the meeting of
conspiracy. In order to hold him guilty of the conspiracy, it is not necessary
that he ought to have been one of the participants in the meeting. What is
material in his case is that whether he was made known the decision taken
in the conspiracy and any role assigned to him to take the conspiracy to its
logical end and his agreement to do the said role. I have already observed
that Abu Salem was based in Dubai. He was directly dealing with Jain
brothers. Abu Salem, as can be seen from his (PW-1) evidence, was
interested in extorting money from Jain brothers. So, there was bound to
be some change in the plan, the decision and the settlement. PW-1 was
not party to it. He was simply there to act according to the decision
conveyed to him by his master Abu Salem. This fact has also been
confirmed by Abu Salem in his confession and by PW-13 Sunil Jain.
99] In this case, on considering the evidence of PW-1 in
entirety rules out the possibility of this witness falling in the trap of Police
and to first confess the crime and later on became an Approver. The
conduct of PW-1, pre-arrest and post-arrest, completely rules out the
possibility of any conspiracy between him and Mumbai Police. It is true
that as a Approver he is entitled for immunity from the Prosecution. It is
also true that he has betrayed his erstwhile companions to save his skin.
His statement is inculpatory. Initially he had implicated himself by making
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a confession. It may be mentioned that if he was in contact with Mumbai
Police, as sought to be alleged, he could have straightway appeared before
Court and expressed his desire to become an Approver. There was no
reason for Mumbai Police to extend him any amnesty. Perusal of his
evidence would show that he has disclosed all the facts within his
knowledge. It is very difficult to accept the proposition that such a story
can be concocted by sheer imagination. If a witness is concocted and the
story is figment of a fertile imagination of the Police, then it is very difficult
for the witness to withstand the searching and grueling cross-examination.
A witness, who comes before Court and narrates a story concocted by
Police, is bound to be exposed somewhere or the other in his cross-
examination.
100] In this case, PW-1 not only withstood in the cross-
examination, but he has also disclosed certain relevant facts in his cross-
examination. Such facts cannot be disclosed unless a person has actively
participated in such conspiracy and has done all possible acts to take the
conspiracy to its logical end. Even in his evidence he has given straight
admissions. On one occasion he stated that he was not party to the
conspiracy. But when Court asked him and when he realized the blunder
committed by him, he gave explanation and stated that he was a party to
the conspiracy. It may be noted that straight admissions given by the
witness in the cross-examination in any way cannot be read out of context
and in isolation with positive evidence brought on record.
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101] The evidence of PW-1, if read in totality, would reveal
his role in the conspiracy as well as the role of the other accused. It is seen
on perusal of his evidence that he has followed the orders of his master
Abu Salem. The account of the meetings placed on record by PW-1
provides us vivid details studded with the role of each and everyone
participated in the meetings. In his evidence, PW-1 has positively stated
that during the meetings he had tried to impress upon Jain brothers to
follow the dictates of Abu Salem, otherwise they would have to face
serious consequences. PW-1 has not avoided to answer any question in his
cross-examination on any ground. His role in the conspiracy was fully
established in this case by his own evidence. PW-1 has not tried to run
away from answering serious and challenging questions in his cross-
examination. PW-1 has disclosed in his cross-examination very important
facts, which revealed his close nexus with Abu Salem and his associates.
102] This witness (PW-1 Approver Naeem Khan) had no
choice to say 'No' to the commands given by his master Abu Salem, but to
fall in line with Abu Salem. Why he has fallen in line with Abu Salem or
otherwise is not the issue. It has come on record in his evidence that
consistent with the role assigned to him and instructions given to him from
time to time by Abu Salem, he arranged meeting with Jain brothers and
tried his level best to convince Jain brothers to follow the dictates of Abu
Salem.
103] His (PW-1) evidence would reveal that he has not only
attended the meetings, but, when Abu Salem, as per the case, settled the
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issue with Jain brothers for Rs. one crore, he also (PW-1) collected Rs. ten
lakhs from Jain brothers and arranged to forward it to Abu Salem through
Hawala. In his evidence, he has provided the names of Hawala Dealers.
In my opinion, a layman, who is not actually involved in commission of
such heinous crime, would not be in a position to provide vivid details of
the crime and minute account of the events occurred till murder of
Pradeep Jain and afterwards. This evidence, therefore, by applying any
standard and rule of credibility reveals his deep involvement in the crime,
his knowledge of the conspiracy, his role in the conspiracy and his tacit
consent to act as per the dictates of his master Abu Salem. He has
explanation for everything in the cross-examination, which is intended to
discredit him on the ground that he is a planted witness. His evidence,
therefore, clearly proves his deep involvement in the conspiracy. He was
made aware of the conspiracy and the object of the conspiracy. He (PW-1
Approver Naeem Khan) not only understood the conspiracy and its object
from Abu Salem, but he also all throughout tried to take the object of the
conspiracy to its logical end.
104] It may be mentioned that certain facts disclosed by him
in his evidence, important on some aspects, run counter to the facts of the
prosecution case. But it could not be the ground to conclude that he is
telling lies. It is a cardinal rule that a person is not supposed to possess a
photogenic memory. In this case, PW-1 narrated the incident, which
occurred in 1995. It is, therefore, seen that the evidence of the Approver
unfolds all the facts within his knowledge. The evidence on record has
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established that PW-1 is “particeps criminis” and being a “particeps
criminis” he is the most natural witness. On minute scrutiny of his
evidence, I have not come across any material to doubt his involvement in
the commission of the crime and his credibility. PW-1 cannot be said to be
a unreliable witness merely because of his criminal background and his
own involvement in this crime.
105] In the case of Saravanabhuvan vs. State of Madras,
AIR 1996 SCC (Cri.) 1273, (cited by Spl.P.P. Shri Ujjwal Nikam), the
Hon'ble Supreme Court of India has held that the antecedents of the
Approver do not really make him either better or worse. The evidence of
the Approver can only be accepted on its own merits and with sufficient
corroboration. The Hon'ble Supreme Court of India thus held that criminal
antecedents of the Approver cannot weigh against the evidence of the
Approver provided the said evidence is reliable and is corroborated in
material particulars. In this context, it is necessary to state that
accomplice/approver cannot be without criminal antecedents. The
Approver is a “particeps criminis”. Unless and until he is “particeps
criminis”, his evidence against the co-accused cannot be at all considered.
The approver himself is a guilty partner or associate in the commission of
the crime with co-accused. It may be noted that the Approver decides to
become a witness, when his conscience does not bear the burden of the
crime committed by him and in view of the repentance, remorse and
contrition over the commission of the crime, he comes before Court with a
request to tender him pardon so as to enable him to unfold all the facts of
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the commission of the crime including his involvement in the commission
of such crime. The change of heart and mind by the accomplice depends
upon various circumstances to betray his partners in the commission of the
crime. There could be various reasons. Human psychology cannot be
judged by applying any universal formula. Each person may react in
different ways in a similar state of circumstances. The Approver-PW-1 has
narrated the reasons for his betrayal of the faith of his other associates.
106] It may be mentioned that PW-13 Sunil Jain has
identified PW-1 Naeem Khan (Approver) being the same person, who had
attended the meetings with Jain brothers and others in Bharat Raghani's
office. PW-13 has also stated about the liaisoning done by PW-1 between
Jain brothers and Abu Salem. It is seen that in the earlier part of the trial,
Jain brothers did not disclose the name of Naeem Khan. However, the fact
remains that his involvement in the commission of the crime was
established in 1995. He was shown as a wanted accused in the earlier
charge-sheet. It may be noted at this stage that Jain brothers did not
disclose so may things in the earlier part of the trial. Ld.SPP submitted
that the reason could be the terror created by Abu Salem and the role
played by PW-1 Naeem Khan (Approver). In the facts and circumstances, I
do see substance in the submission. PW-1 was close associate of Abu
Salem. Jain brothers knew the dreaded nature of Abu Salem and his
associates. Neither Abu Salem nor PW-1 were arrested and facing the trial
at that time with other accused. Therefore, this could be the reason for
Jain brothers not to disclose his name. There is ample evidence on record
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that, even after murder of Pradeep Jain, they were put under constant
threat and terror. Therefore, in my view, non-disclosure of name of PW-1
by Jain brothers in the earlier part of the trial appears to be the net result
of the unlawful activities of Abu Salem and his associates.
107] It has come on record in the evidence of PW-1 that he
was using the Pager and on Pager he was sending messages either to
accused Abu Salem or to Sunil Jain. Similarly, he was receiving the
messages on his Pager from accused Abu Salem. Ld.Advocate appearing for
the accused submitted that this evidence of PW-1 on the point of use of
Pager at that time is totally unacceptable. It is submitted that at the
relevant time radio pager service was not available. In order to establish
this fact, the accused have examined one witness in defence i.e. D.W. No.1.
In his evidence, DW-1 has deposed about the fact of coming into operation
of Radio Paging Service. His evidence reveals that during relevant period
Radio Paging Service was not available and the same was launched for the
first time on 08/06/1995, In his cross-examination, it has been suggested
to this witness that MTNL, Mumbai, had launched Radio Paging Service
much prior to 08/06/1995. In his evidence he has stated that he is not
aware when MTNL, Mumbai, commenced Radio Pager Services in Mumbai.
He has also stated that he is not aware whether MTNL, Mumbai, was also
one of the Radio Pager Service Providers in Mumbai. He has stated that he
did not verify from the record that MTNL, Mumbai, was also providing
Radio Paging Services in Mumbai and from which date. It has been
suggested to him that MTNL, Mumbai commenced Radio Paging Service in
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Mumbai on 02/10/1992 and discontinued the same on 31/03/2004. It
may be noted that this witness has stated in his Examination-in-Chief that
Radio Paging Service was first launched in Mumbai Metropolis on
08/06/1995. He was not sure about the launch of Radio Pager Service by
MTNL, Mumbai, and the date of the same. He could not deny in his
evidence that it was launched in Mumbai by MTNL on 02/10/1992. A
pointed question was asked to him whether Public Sector Undertakings
like MTNL / BSNL are not required to apply for permission or licence to
provide any Telecommunication Service. This witness has stated that he is
not aware of this fact as these Corporations are coming under different
branch of Telecommunication Department, which come under Ministry of
Communication. As such the issue of use of Pager by PW-1 prior to
08/06/1995 cannot be said to be doubtful circumstance. There is one
more circumstance to accept his statement that at that time he was using
the Pager. In his evidence he(PW-1) has deposed that on 02/03/1995 he
had received a pager message from Abu Salem. This fact would indicate
that Abu Salem was also using Pager at that time. If PW-1 was not using
Pager, then there was no question of sending message by Abu Salem on his
(PW-1) Pager. This fact has been confirmed by accused Abu Salem in his
confession. Similarly, PW-13 has also deposed that on number of occasions
he forwarded messages to PW-1 on his Pager. This fact further indicates
that even PW-13 was also using Pager in Mumbai at that time. On the
basis of the evidence of the defence witness, this fact, which has been
proved, on the basis of the oral evidence and supported by circumstantial
evidence, cannot be discarded.
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108] At this stage, it is necessary to mention that after
examination of the defence witnesses by the accused, appropriate care was
not taken by the prosecution. This can be demonstrated from the further
acts of the prosecution. Exhibit - 564 is the application made by the
prosecutor for production of the documents with regard to the
commencement of Radio Paging Service by MTNL, Mumbai, in the year
1992. By order dated 07/01/2015 I have rejected the said application for
the reasons recorded in the said order. It may be noted at this stage that
this attempt made at belated stage was a half-hearted attempt.
Appropriate care was not taken to ensure the proof of the documents by
taking recourse to the appropriate mode of proof of such document. The
reasons recorded by me in my order for rejecting the prayer are self-
explanatory. It may be mentioned at this stage that on the basis of other
evidence I have accepted the case of the prosecution about the use of the
Pager by PW-1 Naeem Khan (Approver) at the relevant time. If the
appropriate steps had been taken earlier by the prosecution, then in that
event the concrete documentary evidence would have come on record.
109] PW-1 in his evidence provided vivid details of the
conspiracy studded with the role played by each one of them. He has also
narrated in extenso his role in the conspiracy. He has also narrated the
role of accused Abu Salem, Mehendi Hasan and Virendra Jhamb. Accused
Virendra Jhamb came on the scene after murder of Pradeep Jain. His
evidence would indicate that even after murder of Pradeep Jain, Abu
Salem was not satisfied and he continued the spell of threats to extort
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money from Jain brothers. The involvement of Virendra Jhamb in this case
has been revealed for the first time after murder of Pradeep Jain. In his
evidence PW-1 has deposed about his meetings with Virendra Jhamb and
visit to Mamta Co-operative Society, Sher-E-Punjab Colony at Mahakali
Caves Road, Andheri (East), to see three flats. As far as accused Virendra
Jhamb is concerned, he has deposed that on the instructions of his master
Abu Salem, he met Virendra Jhamb. At this stage, it is necessary to
mention that he(PW-1) was not aware of the deal between Abu Salem and
Virendra Jhamb However, his evidence clearly establishes that accused
Virendra Jhamb was acting as per the instructions of Abu Salem to dispose
off the three flats from Mamta Co-operative Housing Society, Sher-E-
Punjab Colony, which belonged to Jain brothers. After seeing the flats, he
informed Abu Salem that the flats were in good condition and the flats
could fetch good price. Abu Salem then started disposing off the three
flats through Jhamb Builders and others. In his evidence he (PW-1) has
further stated that after sometime, when he made enquiry with accused
Abu Salem about those three flats, at that time accused Abu Salem told
him that he need not bother about it because that matter was taken care of
by Virendra Jhamb.
110] The evidence of PW-1 Naeem Khan (Approver) unfolds
first hand account of the events occurred and witnessed by him. In view of
this intrinsic evidence led by PW-1, it cannot be said that he was a stranger.
Similarly, it cannot be said that he was tutored and concocted to support
the prosecution without being a party to the conspiracy and without
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playing any part to take the object of the conspiracy to its logical end. He
has deposed about his own involvement in the crime and his said evidence,
after testing on the touchstone of reliability and credibility, appears
intrinsically natural and probable catalog of the events that had taken
place. In this case, on the basis of his evidence, apart from establishing his
involvement in the commission of the crime along with him, he has
deposed about the other accused and also implicating himself in such a
manner to give rise to a conclusion of guilt beyond reasonable doubt. By
applying the test of credibility and reliability to the evidence of PW-1, I do
not see that there is anything inherently improbable and impossible in his
evidence. In the facts and circumstances, I am of the view that the
evidence of the Approver in this case has passed the twin test; i) that he is
“particeps criminis” and ii) that his evidence independently of other
evidence on the facts deposed by him is credible and reliable.
111] It is now necessary to consider the law on the point of
appreciation of evidence of the Approver, nature of corroboration to the
evidence of the Approver and whether the confession of the co-accused can
be used as independent corroborative piece of evidence to the facts
deposed by the Approver.
112] After considering the evidence of the Approver
independently, it is necessary to consider the law laid down by the various
decisions on the subject of the evidence of the Approver. In the case of
Saravanabhuvan vs. State of Madras, AIR 1996 SCC (Cri.) 1273, (cited
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by Spl.P.P. Shri Ujjwal Nikam), the Hon'ble Supreme Court of India has held
that ordinarily a court seeks for corroboration of the evidence of an
Approver before convicting an accused person on that evidence. It is
further held that generally speaking this Corroboration is of two kinds.
Firstly, the Court has to satisfy itself that the statement of the Approver is
credible in itself and there is evidence other than the statement of the
Approver that the Approver himself had taken part in the crime and
secondly, after the Court is satisfied that the Approver's statement is
credible and his part in the crime is corroborated by other evidence, the
Court seeks corroboration of the Approver's evidence with respect to the
part of the other accused persons in the crime, and this evidence has to be
of such a nature as to connect the other accused with the crime.
113] In the case of Ranjeet Singh and another vs. State of
Rajasthan reported in (1988) Supreme Court Cases (Cri) 229, it is held
that while looking for corroboration to the evidence of the approver, the
Court must first look at the broad spectrum of the approver's version and
then find out whether there is other evidence to lend assurance to that
version. The nature and extent of the corroboration may depend upon the
facts of each case. The corroboration need not be of any direct evidence
that the accused committed the crime. The corroboration even by
circumstantial evidence may be sufficient. But such evidence as to
corroboration must be independent and must not be vague or unreliable.
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114] In the case of Shankar alias Gauri Shankar and others
vs. State of Tamilnadu reported in 1994 Supreme Court Cases (Cri)
1252, the Hon'ble Supreme Court has held that the approver/accomplice a
guilty associate in crime is a competent witness. Section 133 of the
Evidence Act lays down that the conviction based on uncorroborated
testimony of an accomplice is not illegal but the rule of guidance indicated
in Illustration (b) to Section 114 of the Evidence Act has provided the
settled practice to require corroboration of evidence of an accomplice and
which has now virtually assumed the force of a rule of law. The Hon'ble
Supreme Court of India has further held that ordinarily the approver's
statement has to be corroborated in material particulars bridging closely
the distance between the crime and the criminal and lending the need and
assurance for acceptance of his testimony. The corroboration need not be
of a kind which proves the offence against an accused. It would be
sufficient if it connects the accused with the crime. What is required is
that there should be sufficient corroborative evidence to show that the
approver is speaking the truth with regard to the accused whom he seeks
to implicate. Such corroboration should be on material particulars and qua
each accused. But it is not necessary that there should be independent
corroboration of the material circumstance and it need not consist of
evidence which standing alone would be sufficient to justify the conviction.
There should be additional evidence by way of corroboration rendering the
story of an accomplice probably true and that it is reasonably safe to act
upon such evidence. The independent corroboration need not also cover
the whole of the prosecution story or even whole of the material
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particulars, for that would amount to rendering the story of the accomplice
itself superfluous. What is required is that the evidence in corroboration
must be an independent testimony which affects the accused by connecting
or tending to connect him with the crime. It is sufficient if there is
corroboration as to the material circumstances and the crime and of the
identity of the accused in relation to the crime. The corroborative
evidence can be direct or circumstantial. The Hon'ble Supree Court has
held that ultimately the question whether there is such sufficient
corroboration or not, again depends upon the facts of circumstances of
each case.
115] Now I propose to consider the Judgments relied upon
by the learned Advocate for the accused in support of his submission and
also on the point of evidentiary value of the testimony of the Approver and
nature of corroboration required for the evidence of the Approver. In the
case of Abdul Sattar vs. Union Territory, Chandigarh, reported in 1985
Supreme Court Cases (Cri.) 505, the Hon'ble Supreme Court of India has
held that the approver is a competent witness but on the uncorroborated
testimony of the approver it would be risky to base conviction particularly
in respect of a serious charge like murder.
116] In the case of Chandan and another vs. The State of
Rajasthan reported in AIR 1988 Supreme Court 599, the Hon'ble
Supreme Court of India has held that on the point of conviction based on
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the testimony of the accomplice is concerned, the law is well settled and it
is established as a 'Rule of Prudence' that the testimony of accomplice if it
is thought reliable as a whole conviction could only be based, if it is
corroborated by independent evidence either direct or circumstantial
connecting the accused with the crime. It is further held that if the test of
credibility is fulfilled, firstly if the story he relates involves him in the crime
and appears intrinsically to be a natural and probable catalog of events
that had taken place. The story if given of minute details according with
reality is likely to save it from being rejected brevi manu. Secondly, once
that hurdle is crossed, the story given by any approver so far as the
accused on trial is concerned, must implicate him in such a manner as to
give rise to a conclusion of guilt beyond reasonable doubt.
117] In the case of Rampal Pithwarahidas vs. State of
Maharashtra 1994 Supreme Court Cases (Cri.) 851, the Hon'ble
Supreme Court of India has held that the courts have generally looked
upon with suspicion the statement of an approver because he is considered
to be a person of low moral and not a wholly trustworthy person who for
the sake of earning pardon for himself is willing to let down his erstwhile
accomplices and therefore before recording conviction courts insist upon
independent corroboration of his testimony. After satisfying the test of
“particeps criminis” and reliability of the evidence of the approver, the
second important test required is that the evidence of the approver must be
corroborated by independent evidence.
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118] In the case of Balwant Kaur vs. Union Territory of
Chandigarh reported in 1998 Supreme Court Cases (Cri.) 1, the Hon'ble
Apex Court has held that an accomplice by long legal tradition, is a
notoriously infamous witness, one who being “particeps criminis”,
purchases his immunity by accusing others. In indictments, particularly of
serious crimes, the counsel of caution and the Rule of Prudence enjoin that
it is unsafe to rest a conviction on the evidence of a guilty partner in a
crime without independent corroboration on the material particulars.
Judicial experience was elevated to a rule of law. It is a practice which
deserves all the reverence of law. However, the nature and extent of the
corroboration must necessarily vary with the nature and circumstances of
each case. Enunciation of any general rule, valid for all occasions, is not
practicable. Same is the proposition of law in the case of Ram Narain vs.
State of Rajasthan reported in 1973 Supreme Court Cases (Cri) 545 and
Niranjan Singh v. State of Punjab reported in 1996 Supreme Court
Cases (Cri) 939.
119] In the case of Bhiva Doulu Patil vs. State of
Maharashtra reported in AIR 1963 Supreme Court Cases 599 (V 50 C
93), the Hon'ble Supreme Court of India has held that there should be
corroboration in material particulars and such corroboration must be qua
each accused.
120] In the case of Rameshwar S/o Kalyan Singh v. The State of
Rajasthan reported in A.I.R. (39) 1952 Supreme Court 54, the Hon'ble
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Supreme Court of India has held that the main test is whether the
statement was made as early as can reasonably be expected in the
circumstances of the case and before there was an opportunity for tutoring
or concoction.
121] The decision in the case of Sheshanna Bhumanna Yadav v.
State of Maharashtra reported in AIR 1970 Supreme Court 1330, is on
the point of nature of corroboration required to the evidence of approver.
In this case, the Hon'ble Apex Court has held that the warning of the
danger of conviction on uncorroborated evidence is given when the
evidence is that of an accomplice. The nature of corroboration is that it is
confirmatory evidence and it may consist of the evidence of second witness
or of circumstances like the conduct of the person against whom it is
required. The corroboration must connect or tend to connect the accused
with the crime. When it is said that the corroborative evidence must
implicate the accused in material particulars it means that it is not enough
that a piece of evidence tends to confirm the truth of a part of the
testimony to be corroborated.
122] In the case of Mrinal Das v. State of Triputa reported
in (2011) 9 Supreme Court Cases 479 almost all the earlier mentioned
Judgments on the point of evidentiary value of the approver's evidence and
nature of corroboration have been considered. In this case, the Hon'ble
Supreme Court India has held that though a conviction is not illegal merely
because it proceeds on uncorroborated testimony of an approver, yet
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CONFESSIONS AND OTHER EVIDENCE
124] In this case the prosecution has sought to rely on the
Confessions of accused Abu Salem and accused Mehendi Hasan to prove
the charges against them and also for the purpose of corroboration to the
evidence of PW-1 Approver Naeem Khan. Before going to consider the
evidence of other witnesses, I propose to deal with the Confessions of
accused Mehendi Hasan and accused Abu Salem and also the evidence of
the concerned Deputy Commissioners of Police, who have recorded their
confessions and the evidence of the Investigating Officer.
125] Ld. Spl.P.P. Mr. Ujjwal Nikam submitted that the
prosecution has adduced on record ample cogent and reliable evidence to
prove beyond reasonable doubt that accused Mehendi Hasan and accused
Abu Salem made voluntary Confessions and confessed the crime
committed by them and other co-accused. Ld. SPP submitted that on the
basis of the evidence adduced on record, the prosecution has proved that
the Confessions of accused Mehendi Hasan and accused Abu Salem are
voluntary and true. Ld.SPP submitted that at the time of recording the
confessions of accused Mehendi Hasan and accused Abu Salem, concerned
Deputy Commissioners of Police have complied with all the mandatory
requirements of Section 15 of the TADA(P) Act, 1987 and Rule 15 of
Terrorist And Disruptive Activities (Prevention) Rules, 1987 (herein after
referred to as 'TADA Rules). Ld. SPP submitted that the prosecution by
adducing cogent and reliable evidence has proved that the Confessions
made by accused Mehendi Hasan and accused Abu Salem have not been
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the result of threat, torture, promise, inducement, coercion etc. Ld.SPP
submitted that during the course of Police Custody of accused Abu Salem
and accused Mehendi Hasan, they were produced before this Court from
time to time and on their production before this Court, they did not make
any complaint before this Court of any ill-treatment or torture at the hands
of the Investigating Officers for making the confessions. Ld.SPP submitted
that when accused Mehendi Hasan and accused Abu Salem were produced
before the Chief Metropolitan Magistrate on the next day of recording of
their respective Confessions, they did not make a complaint of ill-
treatment, torture or harassment either at the hands of the Investigating
Officer or by the concerned Deputy Commissioner of Police while recording
the confessions. Ld.SPP submitted that in this case, both the accused have
retracted their Confessions. But in the submission of Ld.SPP the said
retractions are afterthought and under legal advice. Ld.SPP submitted that
in this case the prosecution has proved beyond reasonable doubt that
accused Mehendi Hasan and accused Abu Salem made voluntary
Confessions and thus admitted the crime committed by them. In the
submission of the Ld.SPP the Confession of the accused recorded u/sec. 15
of the TADA (P) Act is a substantive piece of evidence and the conviction
against the accused and also against the co-accused can be based on the
said Confessions.
126] Learned Advocate Mr. Pasbola submitted that the
evidence brought on record in this case would show that the so-called
Confessions of the accused were obtained by ill-treatment, torture, threat
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and coercion. As far as accused Mehendi Hasan is concerned, Ld.
Advocate Mr. Pasbola submitted that there are two versions made by the
Police Officers about the date of his arrest. In the submission of
Ld.Advocate Mr. Pasbola the record indicates that accused Mehendi Hasan
was taken in custody four to five days before the actual date of his arrest
shown in the record of Police. Ld. Advocate Mr. Pasbola submitted that
accused Mehendi Hasan was not at all ready and willing to make a
confession. On the basis of the record, Ld. Advocate Mr. Pasbola pointed
out that when accused Mehendi Hasan was produced before DCP Mr.
Rajesh Kumar Mor, he declined to make a confession and, therefore, he
was kept for two days in lock-up of Mahim Police Station. In order to
substantiate this submission, reliance has been placed on documentary
evidence. Ld. Advocate Mr. Pasbola submitted that when this accused
Mehendi Hasan declined to make a confession before DCP Mr. Rajesh
Kumar Mor, he was brought back from the lock-up of Mahim Police Station
and he was beaten black and blue. Ld. Advocate Mr. Pasbola submitted
that after his refusal to make a confession before DCP Shri Rajesh Kumar
More, he was beaten mercilessly and he was forced to sign the confession,
which was prepared by the Officers on the basis of the material collected
by them during the course of investigation. Ld. Advocate Mr. Pasbola
submitted that after remand of accused Mehendi Hasan to judicial custody,
he went to jail and got settled. He then wrote a letter to this Court placing
on record all the facts transpired during the course of his Police Custody.
Ld. Advocate Mr. Pasbola submitted that this statement made by the
accused in the application forwarded to the Court has been supported by
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the evidence in the form of correspondence between the Police Officers.
Ld. Advocate Mr. Pasbola submitted that when accused Mehendi Hasan
was produced before the Chief Metropolitan Magistrate, on account of the
threat extended by the Police Officer, he could not open his mouth before
the Magistrate. Ld. Advocate Mr. Pasbola submitted that the confession of
accused Mehendi Hasan placed on record is not a confession, but it is a
creation of record by the Police Officers as per the information collected by
them during investigation.
CONFESSION OF MEHANDI HASAN
127] Accused Abu Salem and accused Mehendi Hasan,
according to the Police Officers, made their Confessions on two different
dates and before two different Officers. Therefore, for the sake of
convenience, first I would like to deal with the Confession of accused
Mehendi Hasan.
128] In this case, the prosecution has heavily relied upon the
Confessions of accused No.1 Abu Salem and accused No.4 Mehendi Hasan.
As per the settled legal position, the confession recorded u/sec. 15 of the
TADA (P) Act cannot be used against the accused and also against co-
accused unless and until it is proved beyond reasonable doubt that the said
confession is voluntary and true. The satisfaction of the above stated twin
test is sine qua non for acting upon the confession against the accused and
the co-accused. Whether a particular confession is voluntary and true
confession is a question of fact and as such has to be decided on the basis
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of the evidence brought on record, admitted facts and other circumstances
obtained on record in each case. The confession of accused Mehendi
Hasan, as per the case of the prosecution, was recorded by DCP Shri
Bodkhe-PW-11, as per the powers vested in him u/sec. 15 of the TADA (P)
Act. Various factors and legal requirements required to be complied with
need to be borne in mind before recording a finding of fact on the issue of
voluntariness and truthfulness of the confession. In this case, it is the
defence of the accused that he did not make a confession. He was simply
made to sign the statement already prepared by the Officers of ATS. Let
me now examine the factual issues one by one touching the core issue of
voluntariness and truthfulness of the confession as sought to be asserted by
the prosecution and as sought to be denied by the defence.
129] On the basis of the contradictory evidence of the Police
Officers on the point of date of the arrest of accused Mehendi Hasan,
learned Advocate for the accused submitted that the defence of the
accused that he was taken in custody on 08/12/2005 appears probable.
The date of the arrest of the accused assumes importance in the backdrop
of the defence of the accused. Any manipulation in the date of the arrest
of the accused, if found on record, would certainly reflect upon the
voluntary nature of the confession and may lead to accept the defence of
the accused. The evidence of PW-19 Assistant Commissioner of Police Shri
Datta Sambhaji Dhavale, PW-20 Assistant Police Inspector Shri Dinesh
Parshuram Kadam and PW-21 Inspector of Police Shri Sunil Laxmanrao
Deshmukh is relevant on this aspect. It is seen on perusal of the evidence
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of the Police Officers that they have given different dates of the arrest of
accused Mehendi Hasan. Similarly, there is contradiction on the point of
the actual place of arrest of accused Mehendi Hasan. PW-20 API Shri
Dinesh Kadam at Page 407 Para 9 has admitted that accused No.4 Mehendi
Hasan was arrested on 12/12/2005. PW-21 PI Shri Sunil Deshmukh was
not the Investigating Officer. He was assisting Investigating Officer PW-19
ACP Shri Dhavale. PW-19 ACP Shri Dhavale has deposed at Page 377 para
10 that on 15/12/2005 he received the information that wanted accused
Mehendi Hasan had come at Patthe Bapurao Marg area. He accordingly
deputed his subordinates PI Shri Khanvilkar and some other officers to
arrest Mehendi Hasan and the officers, after effecting the arrest, produced
accused Mehendi Hasan before him. So, according to PW-19 ACP Shri
Dhavale that accused Mehendi Hasan was arrested on 15/12/2005 from
Patthe Bapurao Marg area. According to PW-19 ACP Shri Dhavale, PI Shri
Khanvilkar was one of the members of the team deputed to arrest accused
Mehendi Hasan. In this case, PI Shri Khanvilkar has not been examined.
130] In his evidence PW-21 PI Shri Sunil Deshmukh has
deposed that he was assisting ACP Shri Dhavale in the investigation of this
case. In his evidence he has specifically mentioned the dates of arrest of
the accused including accused Mehendi Hasan. At Page 416 Para 4 he has
deposed that on 15/12/2005 ACP Shri Dhavale instructed him to search
and arrest accused Mehendi Hasan. He has deposed that on 15/12/2005
on information he along with other police staff went to Mumbra and
arrested accused Mehendi Hasan outside Mumbra Railway Station near
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entrance gate. He has further deposed that Arrest Panchanama was drawn
by PSI Shri Khandarkar. It may be mentioned at this stage that said Arrest
Panchnama was not included in the charge-sheet. It was sought to be
produced on record at the time of evidence of PW-21 PI Shri Sunil
Deshmukh. For the reasons recorded in Para 4 at Page 416, the said Arrest
Panchnama was not admitted being produced at belated stage. This fact,
therefore, would indicate that Arrest Panchanama was available. Neither
the Investigating Officer at the time of filing of the charge-sheet bothered
to include the said Arrest Panchanama in the list of the documents filed
with the charge-sheet nor learned Spl.P.P. Shri Ujjwal Nikam produced the
same at the time of giving a notice u/sec. 294 of the Cr.P.C.. But the fact
remains that Panchnama of arrest of accused Mehendi Hasan was drawn
by PW-21 PI Shri Sunil Deshmukh. In this case, evidence of PW-21 is
important and deserves more weightage in comparison with the evidence
of PW-19 ACP Shri Dhavale and PW-20 API Shri Dinesh Kadam. PW-19
ACP Shri Dhavale has stated that accused Mehendi Hasan was arrested on
15/12/2005. However, according to him, Mehendi Hasan was arrested
from Patthe Bapurao Marg area. Patthe Bapurao Marg area is a part of
Greater Mumbai whereas Mumbra is situated in District Thane. So, the
date of arrest of accused Mehendi Hasan deposed by PW-19 ACP Shri
Dhavale and PW-21 PI Shri Sunil Deshmukh is same but the place of arrest
deposed by them is different.
131] On considering the evidence of PW-19 ACP Shri Dhavle,
PW-20 API Shri Kadam and PW-21 PI Shri Sunil Deshmukh together and
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the role played by each one of them in the arrest of accused Mehendi
Hasan, I would have accepted the evidence of PW-21 PI Shri Sunil
Deshmukh as reliable evidence being the evidence of the officer, who
actually effected the arrest of accused Mehendi Hasan. However, in order
to clear my doubts in the backdrop of the defence of the accused and the
contradictory statements made with regard to the date of the arrest and
the place of arrest of accused Mehendi Hasan, I though it appropriate to
call for the case diaries. Necessary direction was given to the learned
Prosecutor to that effect. The learned Prosecutor produced the case diaries
dated 12/12/2005 and 15/12/2005 in this case for my perusal. I perused
the case diaries. In the backdrop of the evidence of the Police Officers and
the defence of the accused, I thought that perusal of the case diaries was
necessary to aid me in this trial. This exercise has been undertaken by
virtue of powers vested with this Court u/sec. 172 of the Code of Criminal
Procedure. On perusal of the case diary dated 12/12/2005, it appears that
till then the involvement of accused Mehendi Hasan was revealed in this
trial. However, he was not arrested on 12/12/2005. Perusal of case diary
dated 15/12/2005 reveals that accused Mehendi Hasan was arrested by
the team of the Police Officers headed by PI Shri Sunil Deshmukh (PW-21).
It further reveals that he (Mehendi Hasan) was arrested at Mumbra
Railway Station, D.P. Road, Mumbra. The admissions given by PW-19 ACP
Shri Dhawale about the place of arrest of accused Mehendi Hasan and the
admissions given by PW-20 API Shri Kadam about the date of the arrest of
accused Mehendi Hasan have to be presumed as the admissions given
under misconception. API Shri Kadam was one of the members of the
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team, which had arrested accused Mehendi Hasan. He appears to have
committed a mistake while stating the date of arrest of accused Mehendi
Hasan. The Case Diaries dated 12/12/2005 and 15/12/2005 have cleared
the doubt. On the basis of the contradictory evidence of the Police
Officers, at the most, it can be said that the Police Officers took this matter
in a very casual manner. They did not even bother to go through the
available documents of the case before giving evidence in the Court. It is,
therefore, seen on the basis of the evidence of PW-21 PI Shri Sunil
Deshmuk and which has been confirmed on the basis of the Case Diaries
dated 12/12/2005 and 15/2/2005 that accused Mehendi Hasan was
arrested on 15/12/2005 at Mumbra.
132] At this stage it is necessary to mention that in his
application forwarded to this Court through jail and which was registered
as Miscellaneous Application No. 14 of 2006 in T.A.D.A. Special Case No.
01 of 2006, the accused himself has admitted that he was arrested from
Mumbra area. In the said application the accused has further stated that
he was picked up from his house, which is situated in Mumbra area, on
08/12/2005. Therefore, the statement made by the accused about the
place of his arrest confirms the evidence given by PW-21 PI Shri Sunil
Deshmukh. On the basis of the evidence and for the reasons recorded
herein above, it has, therefore, been established that accused Mehendi
Hasan was arrested on 15/12/2005. There is one more circumstance to
disbelieve the defence of the accused about his arrest on 08/12/2005. On
15/12/2005, when accused Mehendi Hasan was produced before this
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Court, he did not make statement that he was kept in illegal detention
from 08/12/2005. On the contrary, he made a statement before this
Court that he had no complaint of ill-treatment at the hands of the ATS
Officers. This fact can be borne out from the Roznama of this Court dated
15/12/2005. On 15/12/2005 this accused was remanded to police
custody till 03/01/2006. (For the purpose of the record of this case,
photocopies of the Case Diaries dated 12/12/2005 and 15/12/2005
are kept in sealed envelope, marked as Article - 'N'. It be attached to
the bunch of the documents with the confession of accused Mehendi
Hasan. The original case diary is returned).
133] The confession of accused Mehendi Hasan was recorded
by PW-11 Shri Shivaji Tulshiram Bodkhe on 09/01/2006. It is the defence
of the accused that he was produced before DCP Zone-V Shri Rajesh Kumar
Mor for recording his confession on 30/12/2005 and the accused stated
before DCP Shri Rajesh Kumar Mor that he does not want to make a
confession. Before going to deal with the evidence of PW-11 DCP Shri
Bodkhe, it is necessary to dwell upon this defence of the accused and the
material brought on record in the oral evidence as well as by way of
documentary evidence. On behalf of the accused, reliance has been placed
on documentary evidence, which is part of Exhibit-530(colly.) to
substantiate his defence. Let me now examine the documentary evidence
and find out whether there is substance in the defence or not.
Exhibit-449, Exhibit-450 and Exhibit-530 (colly.) are those documents.
PW-22 Investigating Officer ACP Shri Kisan Narayan Shengal has not
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denied the existence of these documents. However, the tenor of his
answers suggest that these documents were not prepared in connection
with the process of recording of confession of accused Mehendi Hasan.
Learned Advocate Shri Pasbola drew my attention towards the letters
dated 26/12/2005 and 30/12/2005 and also the letter dated 30/12/2005
and submitted that in these letters DCP, Zone-V Shri Rajesh Kumar Mor has
candidly admitted that accused Mehendi Hasan was produced before him
for recording his confessional statement as per the order of Joint
Commission of Police Shri K. P. Raghuwanshi. It is seen on perusal of the
letters dated 26/12/2005, 30/12/2005 and 30/12/2005 written by DCP,
Zone-V Shri Rajesh Kumar Mor that accused Mehendi Hasan was produced
before him for recording his confession. The letter of DCP Zone-V Shri
Rajesh Kumar Mor dated 26/12/2005 and two letters dated 30/12/2005
cannot be read in isolation with the material evidence placed on record by
the prosecution. On the basis of the said evidence, the defence of the
accused that he was produced before DCP, Zone-V Shri Rajesh Kumar Mor
for recording his confession cannot be accepted.
134] At the outset it is necessary to see the contents of the
letter of Joint Commissioner of Police Shri K. P. Raghuwanshi dated
26/12/2005 at Exhibit-449. This letter was addressed to the Deputy
Commissioner of Police, Zone-V Shri Rajesh Kumar Mor by the Joint
Commissioner of Police Shri K. P. Raghuwanshi. In Para 2 of this letter, it
was specifically mentioned that the accused persons have been kept
separately and it was decided that they should be interrogated by Senior
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Officers of the rank of Deputy Commissioner of Police, keeping in mind
that the accused are the members of crime syndicate indulging in serious
crimes in many parts of the City. The last paragraph of this letter contains
the instructions given to DCP Zone-V Shri Rajesh Kumar Mor qua accused
Mehendi Hasan. The Joint Commissioner of Police Shri K. P.
Raghuwanshi instructed DCP, Zone-V Shri Rajesh Kumar Mor to keep
accused Mohd. Hassan Mehendi Hassan @ Sunny in his custody for the
period he required for interrogation and keep him in any of General
Lockup under his jurisdiction. The Joint Commissioner of Police Shri K. P.
Raghuwanshi further instructed DCP, Zone-V Shri Rajesh Kumar Mor to
inform him about any important information received during the
interrogation immediately. Plain reading of this letter would show that the
decision was taken to nominate the officer of the rank of Duputy
Commissioner of Police to interrogate the accused arrested in this crime.
DCP, Zone-V Shri Rajesh Kumar Mor was instructed to interrogate accused
Mehendi Hasan and keep him in any general lock-up under his jurisdiction
and transmit important information received during the interrogation
immediately to the Joint Commissioner of Police Shri K. P. Raghuwanshi.
Plain reading of this letter would show that Joint Commissioner of Police
Shri K. P. Raghuwanshi never instructed or directed or nominated DCP,
Zone-V Shri Rajesh Kumar Mor to record confession of accused Mehendi
Hasan. Similarly, perusal of the letter dated 26/12/2005 of Joint
Commissioner of Police Shri K. P. Raghuwanshi at Exhibit-449 in entirety
would show that he even impliedly did not instruct DCP Zone-V Shri
Rajesh Kumar Mor to record confession of accused Mehendi Hasan.
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135] It appears that DCP Zone-V Shri Rajesh Kumar Mor did
not even use his robust common sense. It appears that DCP, Zone-V Shri
Rajesh Kumar More acted in over enthusiastic manner and created a
trouble for the Investigating Agency. In the letter dated 26/12/2005
written by DCP Shri Rajesh Kumar Mor to API Shri Dinesh Kadam
(PW-20), he has made a reference of the letter of the Joint Commissioner
of Police Shri K. P. Raghuwanshi and stated that he has been instructed by
that letter to record confessional statement of accused Mohd. Hasan
Mehendi Hasan @ Sunny. It is crystal clear that this statement is factually
incorrect. As per the instructions contained in the letter of the Joint
Commissioner of Police Shri K. P. Raghuwanshi, he (DCP Shri Rajesh
Kumar Mor) was instructed to keep accused Mehendi Hasan in any general
lock-up within his jurisdiction. Accused Mehendi Hasan was kept at the
lock-up of Mahim Police Station from 30/12/2005 to 01/01/2006. I do not
see anything wrong in keeping accused Mehendi Hasan at Mahim Police
Station lock-up. The Investigating Officer was not supposed to breach the
written instructions of his Joint Commissioner of Police Shri K. P.
Raghuwanshi and insist for the detention of accused Mehendi Hasan in the
ATS lock-up. Perusal of the Case Diary maintained at Mahim Police
Station would show that everywhere the purpose of the detention of the
accused has been mentioned. It is for recording confession of accused
Mehendi Hasan by DCP, Zone-V Shri Rajesh Kumar Mor. It may be noted
that if any record is created pursuant to the letter dated 26/12/2005 by
DCP, Zone-V Shri Rajesh Kumar Mor, then, the said record is of no
consequence. The letter dated 26/12/2005 given by DCP, Zone-V Shri
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Rajesh Kumar Mor is itself based on wrong assumption or adding
something in the letter of the Joint Commissioner of Police Shri K. P.
Raghuwanshi, which was not there.
136] It may be mentioned at this stage that the Officer of the
rank of the Joint Commissioner of Police and particularly attached to a
Special Branch of Anti-Terrorism Squad (ATS) must be conscious of the fact
that the Investigating Officer or the Officer interrogating the accused
during the course of investigation was not empowered to record the
confession. It may further be mentioned that the Joint Commissioner of
Police Shri K. P. Raghuwanshi could not be said to have been ignorant of
the procedure followed in such a matter. The evidence produced on record
in this case clearly suggest that the procedure followed by the Joint
Commissioner of Police Shri K.P.Raghuwanshi while nominating the DCPs
for recording confessions of three to four accused in this crime. It would
reveal that the Joint Commissioner of Police Shri K.P. Raghuwanshi never
intended to nominate DCP, Zone-V Shri Rajesh Kumar Mor to record
confession of the accused. If any instruction is given in peculiar
circumstance to the officer of the rank of the DCP to interrogate the
accused during the course of investigation is not something which could be
termed as a wrong act on the part of the Joint Commissioner of Police Shri
K.P. Raghuwanshi.
137] At this stage, I may refer to the documents at
Exhibit-446, Exhibit-447 and Exhibit-448 to find out the procedure
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followed by the Investigating Officer as well as the Joint Commissioner of
Police Shri K. P. Raghuwanshi whenever the accused expressed his desire
during the course of interrogation to confess the crime. Exhibit-446 is the
Note submitted by ACP Shri Kisan Shengal on 31/12/2005 with a request
to the Joint Commissioner of Police Shri K. P. Raghuwanshi to nominate
one DCP for recording confession of accused Abu Salem Abdul Kayyum
Ansari. The Joint Commissioner of Police Shri K. P. Raghuwanshi
thereafter nominated DCP, Zone-XI Shri Datta Karale to record confession
of accused Abu Salem. Exhibit-447 is the Note submitted by ACP Shri
Kisan Shengal on 05/01/2006 with a request to the Joint Commissioner of
Police Shri K. P. Raghuwanshi to nominate one DCP for recording
confession of accused Mohd. Hassan Mehendi Hassan. The Joint
Commissioner of Police Shri K. P. Raghuwanshi thereafter nominated DCP,
Shri Bodkhe to record confession of accused Mohd. Hassan Mehendi
Hassan. Exhibit-448 is the Note submitted by ACP Shri Kisan Shengal on
10/01/2006 with a request to the Joint Commissioner of Police Shri K. P.
Raghuwanshi to nominate one DCP for recording confession of accused
Mohd. Naeem Abdul Rahim Khan. The Joint Commissioner of Police Shri
K. P. Raghuwanshi thereafter nominated DCP, Shri Naval Bajaj to record
confession of accused Mohd. Naeem Abdul Rahim Khan. It is, therefore,
apparent on the face of the record that till 26/12/2005 accused Mehendi
Hasan had not expressed his desire to confess the crime. By the letter
dated 26/12/2005 Exhibit-449 DCP, Zone-V Shri Rajesh Kumar Mor was
not nominated by the Joint Commissioner of Police, A.T.S. Shri K. P.
Raghuwanshi, to record confessional statement of accused Mehendi Hasan.
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The instructions given by the Senior Officer to a Junior Officer to
interrogate accused during the course of investigation and nomination of
any competent officer to record a confession are two different things. It
appears that DCP, Zone-V Shri Rajesh Kumar Mor misconstrued the
instructions of the Joint Commissioner of Police Shri K. P. Raghuwanshi. It
is further apparent on the face of the record that there is no further
correspondence made by the DCP, Zone-V Shri Rajesh Kumar More about
the progress of his interrogation. If he had conducted any proceeding for
recording confession of the accused, he was supposed to maintain a record
and forward the same to the Joint Commissioner of Police, A.T.S. Shri K. P.
Raghuwanshi. If there had been any correspondence or letter to show that
DCP, Zone-V Shri Rajesh Kumar Mor informed the Joint Commissioner of
Police Shri K. P. Raghuwanshi that the accused during the course of his
interrogation declined to confess the crime, then, the defence of the
accused ought to have been accepted without diluting further on any
aspect of the matter.
138] It may further be noted that the Officer of the rank of
the Joint Commissioner of Police would not have created such a record
which could destroy their case completely. It is nobody's case that the
Joint Commissioner of Police Shri K. P. Raghuwanshi interrogated accused
Mehendi Hasan and during the course of that interrogation, he expressed
desire to confess the crime. Unless and until the Joint Commissioner of
Police, ATS is apprised of the fact that the accused has expressed desire to
confess the crime, there would have been no occasion for him to write such
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a letter to the DCP, Zone-V on some assumptions or presumptions. The
Officer of the rank of Joint Commissioner of Police would not have
deviated from the procedure followed in such a matter and which has been
established to have been strictly observed by him. It is, therefore, highly
unbelievable that under this letter the Joint Commissioner of Police Shri K.
P. Raghuwanshi had authorized/nominated the DCP, Zone-V Shri Rajesh
Kumar Mor to record confession of accused Mehendi Hasan. The station
diary entries need to be read in juxtaposition with the letter of the Joint
Commissioner of Police Shri K. P. Raghuwanshi dated 26/12/2005. It is
further apparent on the face of record that the station diary entries were
not made by the DCP, Zone-V Shri Rajesh Kumar Mor. It was natural on the
part of the DCP, Zone-V Shri Rajesh Kumar Mor to keep accused Mehendi
Hasan in any of general lock-ups within his jurisdiction as per the
instructions of the Joint Commissioner of Police Shri K. P. Raghuwanshi.
Merely because of the fact that the accused was detained in the lock-up at
Mahim Police Station, it cannot be presumed that the accused was kept in
isolation only with a purpose to record his confession. In the facts and
circumstances, this defence of the accused that he was produced before the
DCP, Zone-V Shri Rajesh Kumar Mor for recording his confession cannot be
accepted.
139] The Police Officers have admitted that accused Mehendi
Hasan, as per the instructions of the Joint Commissioner of Police, A.T.S.
Shri K. P. Raghuwanshi, was taken to the office of the DCP, Zone-V Shri
Rajesh Kumar Mor for the purpose of interrogation. It is a cardinal rule of
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law that the Officer conducting the investigation or interrogation cannot
record confession under the TADA(P) Act. The accused is required to be
removed from the custody of the Investigating/Interrogating Officer
whenever he expresses desire to confess the crime. It cannot be accepted
that this elementary/rudimentary principle was not known to the Senior
Officer Mr. K. P. Raghuwanshi, the Joint Commissioner of Police, A.T.S.. I
do not see anything wrong in the opinion formed by the Joint
Commissioner of Police Shri K. P. Raghuwanshi to nominate some officer of
the rank of the DCP to interrogate the accused in the crime. It has come
on record in the evidence of the Investigating Officer PW-22 ACP Shri
Kisan Narayan Shengal that other DCPs also visited the lock-up and
interrogated accused. He has admitted that he did not maintain the record
of the same. It may be noted that considering the seriousness and
magnitude of the crime and also the high profile gangsters being involved
in the crime, if interrogation is carried out by the specialist superior officer
is not something which could be a condemnable wrong.
140] There is one more circumstance to disbelieve this
defence of the accused. It is the contention of the accused that he was
beaten black and blue. It is also the defence of the accused that he was
threatened of dire consequences in the case. He did not open his mouth
before any Authority or Court. On 03/01/2006, the Police Custody
Remand of this accused Mehendi Hasan was expiring. The accused was
produced before this Court on 03/01/2006. The accused Mehendi Hasan
did not make a complaint of ill-treatment or torture at the hands of the
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ATS Officers during the Police Custody. The accused was produced before
this Court after the episode of the production of the accused before the
DCP, Zone-V Shri Rajesh Kumar Mor. It is the contention of the accused
that during this period he was ill-treated, tortured, threatened and
mercilessly beaten. If the accused was forced during this period to make
a confession by resorting to ill-treatment etc, he would have complained
about the same before this Court. Therefore, it is too late on the part of
the accused to complain of ill-treatment during his police custody. The
entire evidence has to be read in juxtaposition with the instructions
contained in the letter of the Joint Commissioner of Police Shri K. P.
Raghuwanshi. If it is so done, then the defence of the accused falls flat.
141] The question whether the confession is voluntary and
true is a question of fact and has to be decided on the basis of the evidence
adduced by the prosecution in the case. In this case, the confession of
accused Mehendi Hasan was recorded by PW-11 DCP Shri Shivaji
Tulshiram Bodkhe. The point of voluntariness and truthfulness of the
confession boils down to the evidence of PW-11 DCP Shri Bodkhe. On the
basis of the evidence of PW-11 DCP Shri Bodkhe, it is necessary to
ascertain whether the compliance of the mandatory provisions of Section
15 sub-Section (2) of the TADA (P) Act and Rule 15 sub-Rule(3) sub-clause
(b) of the TADA Rules have been made or not. The provisions of Section
15 of the TADA(P) Act are a deviation from the provisions of general law
on the point of admissibility and use of confession. As the per the
provisions of Section 15 sub-Section (2) of the TADA (P) Act, competent
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officer is required to give a statutory warning to the accused that he is not
bound to make a confession and if he makes the confession, then it can be
used against him as an evidence in the Court of law. Similarly, before
recording confession, the competent officer must form an opinion on the
basis of his enquiry that the accused is making the confession voluntarily
and then only he shall proceed to record the confession.
142] It is now necessary to see the evidence of PW-11 DCP
Shri Shivaji Tulshiram Bodkhe very minutely and find out whether he had
complied with all the mandatory provisions of law and the confession
made before him by the accused is voluntary and true. PW-11 DCP Shri
Bodkhe has deposed that as per the directions of the Joint Commissioner
of Police Shri K. P. Raghuwanshi, he instructed the Investigating Officer
ACP Shri Shengal (ATS) vide Exhibit-380 dated 06/01/2006 to produce
accused Mohd. Hassan Mehendi Hassan before him on 07/01/2006 at
11.00 a.m. The accused Mehendi Hassan was produced before DCP Shri
Bodkhe on 07/10/2006 at 11.00 a.m. He has deposed that when accused
Mehendi Hasan was produced before him, he asked Investigating Officer
ACP Shri Shengal and other police staff accompanying the accused and his
other staff members to go out of his office. He himself and accused
Mehendi Hasan were the only persons present in his office. Before starting
enquiry with the accused, he verified that nobody was outside in his
chamber within the hearing distance. He has informed the accused that he
was DCP. He made enquiry with the accused about his name and address.
He has deposed that he informed the accused that there was no
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compulsion on him to give confessional statement. He further informed
him that if he makes any confessional statement, then it can be used as a
evidence against him. He has further informed the accused that he was not
in the custody of the Investigating Officer and was in his custody. He also
made enquiry with the accused whether he was compelled or lured or ill-
treated for giving confession. The accused replied in negative. He has
deposed that he made enquiry with the accused about the language in
which the accused was conversant with. After making preliminary enquiry,
he decided to give the accused 48 hours cooling off time to reflect over his
decision to make a confession with a direction to the Incharge of Dahisar
Police Station in which he was ordered to be kept and produce him again
on 09/01/2006.
143] Before I go to deal with the actual statement made and
recorded in the confessional statement, it is necessary to see the evidence
of PW-11 DCP Shri Bodkhe on the point of the preliminary enquiry made
by him with accused Mehendi Hasan on his production before him for
recording confession on 09/01/2006. PW-11 has deposed that on
production of accused Mehendi Hasan before him on 09/01/2006, as per
his direction, the other officers left his chamber. He has deposed that he
enquired with the accused whether anybody met him in the lock-up or
harassed him. The accused replied in negative. He has further enquired
with the accused whether the cooling off period was sufficient or not. The
accused replied in the affirmative. PW-11 has further deposed that he
again explained to the accused that there was no any compulsion on him
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to give any statement and if he gives statement, it can be used as evidence
against him in the Court. He has further enquired with the accused
whether anybody has pressurized or lured or manhandled him. The
accused replied in the negative. PW-11 DCP Shri Bodkhe has deposed that
on the basis of his enquiry he was satisfied that the accused was confessing
his guilt voluntarily. After being satisfied that the accused was ready to
make confession voluntarily, he told the accused to state what he wanted
to state and thereupon the accused made a confession and which he has
recorded.
144] PW-11 DCP Shri Bodkhe has further deposed that when
the accused completed his confession, he read over the same to the
accused and the accused admitted the same to be correctly recorded as per
his say. He then obtained signatures of the accused on every page on
backside and he (PW-11) himself made his signatures. After obtaining the
signatures of the accused, he appended the Certificate/ Memorandum to
the said confession in his own handwriting and made the signature below
the said certificate/memorandum. The confession of accused Mohd.
Hassan Mehendi Hassan is at Exhibit-382.
145] The evidence of PW-11 DCP Shri Bodkhe has been
assailed on the basis of the various admissions given by PW-11 DCP Shri
Bodkhe in his cross-examination. It is submitted that this witness has
admitted in clear terms that the mandatory provisions of Section 15 sub-
section (2) of the TADA (P) Act were not complied with. It is submitted
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on the basis of the admissions elicited in the cross-examination that it has
been established beyond doubt that the accused did not make confession
voluntarily and the confession was handy work of the ATS Officers in
collusion with PW-1 Naeem Khan, Approver.
146] Let me now first go through the confession and find out
whether the mandatory requirements of Section 15 sub-section (2) of the
TADA (P) Act were complied with or not. The confession is in two Parts.
First part is with regard to the record of proceeding by PW-11 DCP Shri
Bodkhe on 07/01/2006. On this day for the first time the accused
Mehendi Hasan was produced before PW-11 DCP Shri Bodkhe. Perusal of
the first part of the confession would show that PW-11 DCP Shri Bodkhe
first made enquiry with the accused on all the points and then recorded his
proceeding. In part one of the confession, PW-11 DCP Bodkhe has
recorded that the accused was produced before him on 07/01/2006 at
11.45 a.m. to record his confessional statement u/sec. 15 of the TADA (P)
Act, 1987.
147] In para 4 he has recorded that he took the accused in
his custody and told the other ATS Officers and his staff to go out of his
chamber and ensured that nobody could see or hear the proceeding in his
chamber. At para 5 he has recorded that he informed the accused that he
was no more in the custody of the Anti-Terrorism Squad (ATS), Mumbai
and after this information, he asked the questions to the accused. The first
question is regarding his introduction as DCP to the accused. The second
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question is with regard to the address of the accused. The third question is
with regard to the education of the accused. The fourth question is with
regard to the language in which the accused was conversant with. The
fifth question is with regard to the enquiry about threat, torture or ill-
treatment or allurement at the hands of the police. The accused has
answered this question in the negative. The sixth question is to know the
willingness/desire expressed by the accused to make a confession and the
confirmation of the same at the end of the accused. The seventh question,
which appears to be the bone of the contention, is with regard to the
statutory warning given to the accused u/sec. 15 sub-section (2) of the
TADA (P) Act. By this question, the DCP Shri Bodkhe informed accused
Mehendi Hasan that he is not under compulsion to make a statement and
if he makes statement, then the same can be used against him in the Court
of law. The accused answered that he knew this fact. The accused
answered it in the affirmative. The eighth question is with regard to the
decision taken by the DCP to give sufficient cooling off period to the
accused to think over his decision to make a confession. By the said
question, PW-11 the DCP Shri Bodkhe informed the accused that he would
not be under the control and the pressure of the arresting agency i.e. the
ATS, Mumbai. The accused answered this question stating that he
understood this fact. The DCP PW-11 further informed the accused that
herein after he would be kept in Borivali Police Station Lock-up and
whether he would give his statement after reflecting over his decision to
make a confession. The accused understood it. Lastly, the DCP Shri
Bodkhe, PW-11, informed the accused that he was giving him a cooling off
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period to reflect over his decision till 09/01/2006. The accused understood
it.
148] After these questions and answers, the DCP Shri
Bodkhe, PW-11, recorded that all the questions were asked to the accused
in Hindi and the accused replied the questions in Hindi. The questions and
answers wrote down by him in his own handwriting were read over and
explained to the accused. This is the sum and substance of the first part of
the Confession of accused Mehendi Hasan, which is in the form of
Preliminary Proceeding conducted by the Competent Officer to administer
the statutory warning to the accused to make a confession and to come to
a conclusion that the accused is making the confession voluntarily and not
under any threat, promise, coercion or ill-treatment. The most objected
part of this proceeding is question No. 7 and more particularly the first
part of question No.7 i.e. (Tumhe Bayan Dene ki Jabardasti Nahin Hai).
The question in Hindi is as follows; (rqEgs c;ku ns us dh tcjnLrh ugh gS A ). English
translation of this part of question is : “You are not under compulsion to
make a statement”. The next part of the question is that, “if you make a
statement, then this statement can be used against you in the Court of
law”. The DCP PW-11 Shri Bodkhe further asked him, Did he know this
fact ? The accused has answered this part of the question stating, “Yes”, heknows this fact”. In the submission of the learned Advocate for the
accused by using the word “Jabardasti” in the first part of the confession,
the DCP PW-11 Shri Bodkhe has not given the statutory warning to the
accused as contemplated u/sec. 15 sub-section (2) of the TADA (P) Act. It
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is submitted that instead of words “Jabardasti Nahi Hai” (Not under
compulsion), the Officer ought to have used the word “Bandhankarak Nahi
Hai” (You are not bound). The reply of the learned Prosecutor is that the
meaning of words “Jabardasti” i.e. “Compulsion” and “Bandhankarak” i.e.
“Bound” is the same. No different meaning can be attributed or derived
from both these words. Learned Prosecutor submitted that what is
important is that the accused should be made known of this statutory
warning in the language understood by him. Learned SPP submitted that
the answer given by the accused was the confirmation of the fact that he
understood that he was not under compulsion to make a statement.
Ld.SPP submitted that the two parts of the question cannot be read
separately. It is submitted that if both the parts are read together, then net
result would be that it is a strict compliance of the provisions of Section 15
sub-section (2) of the TADA (P) Act, 1987.
149] At this stage, it is necessary to see what is the meaning
of word “Jabardasti” (compulsion) according to the DCP Shri Bodkhe,
PW-11. It has come on record in his evidence at Page 212 Para No. 31
that, according to him, the word “Jabardasti” (compulsion) means, threat,
coercion and pressure. As per this meaning of word
“Jabardasti” (compulsion), according to the witness PW-11 DCP Shri
Bodkhe, he has conveyed to the accused that he was not under threat,
coercion or pressure to make a statement. In the backdrop of this meaning
of word “Jabardasti”(compulsion) understood and stated by PW-11 DCP
Shri Bodkhe, it is now necessary to find out what is the difference between
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the word “Jabardasti”(compulsion) and word “Bandhankarak”(binding). In
order to find out the literal meaning of word “Jabardasti”(compulsion)
and word “Bandhankarak”(binding), I have referred “Vidhi
Shabdakosh” (Concise Law Dictionary, Marathi-English-English) Second
Edition 2005 by Vivek D. Joshi. The English meaning of Marathi word
“Bandhankarak” (ca /kudkjd ) at Page No. 331 of the Dictionary is “Binding”,
“Restrictive”, “Obligatory”, “coercive”. The English meaning of Marathi
word “Jabardasti” (tcjnLrh ) at Page No. 169 of the Dictionary is, “Coercion,
“the application of physical or moral force to constrain somebody to do
against his will something he would not otherwise have done”. One of the
English meanings of word “Bandhankarak”(binding) is, “coercive”. It is,
therefore, necessary to find out the meaning of word “Coercion”. I have
referred “Concise Oxford English Dictionary”, Twelfth Edition 2011. The
meaning of word “Coercion” at Page No. 278 of the Dictionary is
“Persuade(an unwilling person) to do something by using force or threats”.
The Derivatives of this word are “coercible”, “coercive”. It is seen that the
words “bound”, “binding”, “compulsion”, “coercion” / “coercive” are
synonym of each other.
150] After considering the Dictionary meaning of the words
“Jabardasti”(compulsion) and “Bandhankarak” (binding), as stated hereinabove, the word “Jabardasti” (compulsion) is synonym of word
“Bandhankarak”(binding). In this case, the questions were asked to the
accused in Hindi language. Therefore, while asking the questions in Hindi
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language, the word “Jabardasti” (compulsion) was appropriately used by
the Officer while framing the question instead of word “Bandhankarak”
(binding). Even by using the word “Jabardasti” (compulsion), the Officer
by all means conveyed to the accused that he was not under compulsion to
make a statement. So, the use of word “Jabardasti” (compulsion) being
found to be synonym of word “Bandhankarak” (binding) in Marathi
language, it cannot be given a different meaning and read the same out of
context. Therefore, merely because of use of the word “Jabardasti”, it
cannot be said that this statutory warning was incomplete warning. On
the contrary since the accused was conversant with Hindi language, the
word “Jabardasti”, which is normally used while speaking Marathi as well
as Hindi, was the appropriate word.
151] On perusal of first part of the confession, it is, therefore,
seen that the Officer informed the accused that he was the DCP. The
Officer further inquired the accused about the language in which he was
conversant with. He also enquired with the accused whether he was
threatened, ill-treated or lured by the Officers, who had arrested him. On
a question to him, the accused answered that he was ready to make a
confession at his free will. I have already observed that the statutory
warning in terms of Section 15 sub-section (2) of the TADA (P) Act was
given. The Officer has also given sufficient reflection time to the accused
to think over his decision to make a confession. The Officer further
informed the accused that he was not in the custody of the ATS Officers
and he would be kept out of their custody at Borivali Lock-up. It is seen
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that this preliminary enquiry made by the Officer to ascertain the free will
or desire of the accused to confess the crime without any pressure, threat,
coercion or allurement was in conformity with law.
152] Answer to above issue takes me to second para of
the confession which was recorded on 09/01/2006. In his preliminary
remarks, the Officer has observed that the accused was produced before
him on 09/01/2006 at 17.30 hours in his office for recording his
confessional statement as per the provisions of the TADA(P) Act. The
second part of the proceeding on 09/01/2006, before starting actual
recording of confession, seems to be a record made by the Officer on the
basis of his preliminary enquiry made with the accused. He ensured that
nobody was within the hearing distance when he was conducting the
proceeding. The part 3 refers to the information given by the Officer to the
accused that he was no longer in the police custody and then proceeded to
ask him the questions in Hindi language and recorded the same in Hindi
language. On the same day the accused expressed his willingness to make
a statement. The Officer informed him that sufficient cooling off time was
given to him and still he was not under compulsion to make a statement.
The accused confirmed that the reflection time to think over his decision to
make a confession was sufficient. The Officer informed him that he was
not recording his confession by force or compulsion. The Officer further
enquired with the accused whether anybody lured him during the
reflection period. The accused answered that he was making his statement
voluntarily. Nobody has lured him. Again the Officer warned the accused
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that he was not bound to make confession and if he does so, then it can be
used as a evidence against him in the Court of law. Here, in this question,
instead of using the word “Bandhankarak”(ca /kudkjd ) the Officer has used
the word “Jabardasti”(tcjnLrh ). I have already observed that the word
“Bandhankarak” is synonym of word “Jabardasti”. It is, therefore, seen that
even on 09/01/2006 this statutory warning was given to the accused. It is,
therefore, seen on the basis of the proceeding conducted by the DCP Shri
Bodkhe PW-11 before starting actual recording of confession, he compiled with all the basic mandatory requirements of Section 15 of the TADA (P)
Act.
153] It is seen that the enquiry made by the Officer on
07/01/2006 on first production of the accused and the enquiry made on
09/01/2006 on his second production after cooling off period would reveal
that the enquiry was made by the Officer to ascertain that accused was
making the statement voluntarily and not under threat, duress, coercion,
inducement or allurement of the Investigating Officer. The main object of
such an enquiry is to give an assurance to the accused that he is no more in
the custody of Investigating Agency. It is not the case of the defence that
PW-11 DCP Shri Bodkhe was at any time concerned with the investigation
of this case. The object of this enquiry is to create a free atmosphere forthe accused to tell correct facts before the independent officer, who is not
concerned with the investigation of the case. It appears that this Officer
has ensured by making the enquiry that free atmosphere was created and
the accused was placed in a comfort zone to give second thought to his
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decision. The DCP Shri Bodkhe PW-11 on his own gave sufficient
reflection time to think over his decision to make a confession. On perusal
of the proceedings undertaken by the DCP Shri Bodkhe PW-11 on both the
dates i.e. on 07/01/2006 and 09/01/2006 before starting actual recording
of confession, it appears that the DCP Shri Bodkhe PW-11 has complied
with the statutory requirements. Similarly, he created a free and congenial
atmosphere for the accused to think over his decision independently.
154] A searching cross-examination of PW-11 DCP Shri
Bodkhe was conducted with intent to demonstrate that the paper work
done by him was simply a record created as per the wish and desire of the
Investigating Officer. An attempt has been made in his cross-examination
to suggest that he did not comply with various other mandatory legal
requirements. Similarly, an attempt has been made in the cross-
examination to point out that this witness has shown smartness by
admitting the compliance of various other legal requirements, but in
second breath offered some explanation or the other, which in the
submission of the defence Advocate is not acceptable. I have already
observed in the earlier part of my Judgment that cross-examination is a
double edge weapon. The cross-examiner must be very careful while
handling this weapon, otherwise the possibility of self inflicting injury
cannot be ruled out. The admissions given by the witness either in the
Examination-in-Chief or in the cross-examination cannot be ignored. The
admission has to be understood and given a meaning in the context in
which it has been made. The admission can be used to discredit the
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witness as well as to lend assurance to certain factual position. In this
case, when Exhibit-382 was placed on record and proved as it is, the
cross-examiner was supposed to confine his cross-examination to the
statements made in Exhibit-382 and particularly the proceeding recorded
by the Officer with regard to his preliminary enquiry before starting the
actual confession. The Officer noted down the facts took place before him.
In his Examination-in-Chief, the Officer did not travel beyond what is
stated in the document at Exhibit-382. The defence cross-examined over
enthusiastically with intent and hope to catch the witness unaware and
took the risk by asking certain questions. But the witness, who happened
to be the Officer, who himself conducted the proceedings, given answers to
all the questions. With this observations, it is now necessary to see those
admissions and the cross-examination. The admission can be used both
ways to discredit the witness as well as if it is found acceptable, it can be
used to make the defence of the accused improbable.
155] PW-11 DCP Shri Bodkhe has admitted at Page 194 that
it was his first occasion to record the confession of accused u/sec. 15 of the
TADA (P) Act. He has been cross-examined at Page 195 with regard to the
contents of the letter of the Joint Commissioner of Police, A.T.S. Shri K. P.
Raghuwanshi. In his letter while referring the matter to him directed him
to record the confessional statement of the accused. The enquiry made by
the witness to ascertain the free will and voluntariness of the accused
would suggest that this witness did not blindly follow the contents of the
letter. He has admitted that he did not ask ACP Shri Shengal about the
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custody period of the accused. It may be noted that this will not make any
difference as this witness was not concerned with the investigation.
Despite long or short period of police custody this Officer was supposed to
ascertain from the accused his willingness to confess the crime. At Page
196 he has stated that he did not make preparation for recording
confession between 06/01/2006 and 07/01/2006.. He has admitted that
he did not write down the questions he was supposed to ask to the
accused. He has admitted in all fairness that he asked the questions to the
accused, which occurred to him and which he thought necessary for
satisfying himself about voluntariness of the confession at the time of
recording of his confession on 07/01/2006 and 09/01/2006. He has
admitted that he has faithfully recorded all the happenings which took
place on 07/01/2006 and 09/01/2006 in the sequence in which the same
occurred. He was asked that the confessions are required to be recorded
expeditiously. He has answered that the confessions are recorded as per
the convenience of the I.O., the police and the person recording the
confession. This question is out of context in view of the fact that this
Officer took appropriate precaution from the first date of the production of
the accused and by giving him sufficient cooling off time to think over his
decision to make the confession. At Page 198 Para 15 he has admitted that
till completion of the entire proceeding on 07/01/2006 he did not leave
his chamber. At Page 199 certain questions have been asked about the
enquiry to be made with regard to the language known to the accused.
The witness has stated that he had made enquiry and on his enquiry it
transpired that the accused was conversant with Hindi language.
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156] The witness has admitted that after enquiry he started
recording the events occurred before him. I do not think anything wrong
on the part of the Officer. The Officer has noted down the events, which
took place before him. He also noted down the questions asked by him
and the answers given by the accused to the said questions. He has
admitted that the object of informing the accused about his designation
was for his satisfaction as well as for the satisfaction of the accused. He
has admitted that it was necessary to inform the accused that he was a
Police Officer of the rank of Superintendent of Police and was empowered
to record his confession u/sec. 15 of the TADA (P) Act. On being
questioned, he has answered that at that time he did not think it necessary
to mention this fact in the confession. At Page 200 PW-11 DCP Shri
Bodkhe has admitted that it was necessary to inform the accused that he
was recording his confession u/sec. 15 of the TADA (P) Act. He has
deposed that he has informed this fact to the accused on 07/01/2006 and
09/01/2006. He has further answered that he did not deem it necessary to
record this fact in the confession. He has admitted that before recording
confessional statement of the accused, it is necessary to see that the
accused becomes free from all impressions on his mind about the officer in
whose custody he was and he becomes relaxed to speak. A pointed
question was asked to him at Page 201 about handing over of the custody
of the accused to the Investigating Officer after recording of confession was
over, irrespective of the fact whether accused had given confession or
declined to do so. He has stated that he would have handed over the
custody of the accused to the Investigating Officer. However, in this case
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this question did not arise at all. It was simply to test the knowledge of the
Officer. The answer given by the witness to the next question clarifies
everything. PW-11 DCP Shri Bodkhe has admitted that he did not inform
the accused that he would hand over him in the custody of the
Investigating Officer, if he declines to give confession and produce him
before the Court, if he gives the confessional statement. What the witness
has actually done is part of record in writing. The answer given by the
witness clearly suggests that he did not inform the accused that he would
be given in the custody of the Investigating Officer, if he declines to give
confession. One cannot ignore this admission. The cross-examiner has
taken the risk. The cross-examiner has either to sail or sink with the
admission given by the witness. If the admission given by the witness in
the cross-examination is unfavourable, the defence cannot be allowed to
say that admission has no significance and has to be ignored in toto.
157] At 201 Para 17 PW-11 DCP Shri Bodkhe has admitted
that it was necessary to inform the accused that he was not concerned with
his arrest or investigation. He has admitted that this fact is important and
necessary to be incorporated in the confession. This witness has admitted
that this fact was informed and has been recorded at Para 5 of the first part
of the confessional statement Exhibit-382. He has admitted that there was
no intention on his part to extract the confession from the accused by
misleading him. He has stated that he did not deem it necessary to
mention specifically in the confession that he was neither concerned with
his arrest nor investigation in the matter. At 202 Para 18 he has stated that
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he did not deem it necessary to know from the accused as to when he was
arrested and where he was kept. He did not try to find out whether the
accused had an opportunity to get legal assistance from an Advocate. He
has stated that on 7th and 9th he did not suggest to the accused that he
was at liberty to call his advocate. As far as production of this accused
before DCP Shri Rajesh Kumar Mor is concerned, PW-11 DCP Shri Bodkhe
has frankly stated that he came to know about this fact when he was asked
for the first time in his cross-examination.
158] As far as the reflection period granted to the accused, he
(PW-11) has stated that there is no specific legal provision about it. He
thought it proper to give 48 hours time to the accused. He did not enquire
with the accused as to when first time a thought struck him to give
confession and before whom he expressed his desire to make confession.
He has admitted at Page 204 Para 22 that in the record of proceeding
dated 07/01/2006 he has nowhere used word “Confession”. He has
admitted that on 07/01/2006 the accused was with him for about an hour.
He has admitted that during this period he took a decision to keep the
accused at Borivali lock-up and for that purpose he called police personnel
from Dahisar Police Station. He has admitted at Page 204 Para 23 that
during the period of 7th to 9th January, 2006 he did not personally meet
or see accused Mohd. Hasan Mehendi Hasan. Similarly, he did not
personally verify the Lock-up Register or Station Diary to ascertain where
the said accused was kept during this period. At Page 205 Para 24 he has
admitted that before writing the questions and answers, he was knowing
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the language in which the accused was conversant with. This question has
been asked to suggest that the question with regard to the language came
after about 4 to 5 questions. He has given answer, for repetition of this
question, that this question was repeated for his satisfaction.
159] He has admitted at Page 205 Para 24 that he had asked
the accused as to whether he was threatened, lured or tortured to give
confessional statement. He has admitted at Page 205 that the accused was
taken to Medical Officer before keeping him in Borivali lock-up on
07/01/2006 and he had seen the medical record of that day. At this stage,
it is necessary to mention that in a retraction application forwarded to this
Court by the accused, which has been pointed out to this Court, the
accused has admitted this fact. At Page 206 Para 25 he has answered that
his question to the accused to know whether he was promised, lured,
compelled or threatened to give confession is reflected in unnumbered
question. He has admitted that in this question either the word
“Statement” or “Confession” are not used. He has admitted that he did
not ask the accused whether he was promised to make Approver or lured
to see that he would be given lesser punishment for making confession. At
Page 207, he has admitted that he had specifically informed the accused on
7th and 9th January 2006 that he was not bound to make any confession.
He has admitted in the next breath that, however this fact is not
mentioned in the record of both days proceedings. He has deposed that he
thought that it was not necessary to record this fact in the record of
confessional statement. This answer given by the witness cannot be read
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in isolation with the meaning of word “Jabardasti” derived by this Court.
Similarly, the Officer seems to have given this answer either under some
misconception or his understanding. The Certificate/ Memorandum
appended to the confessional statement clearly mentions that he gave a
specific statutory warning to the accused that he was not bound to make
confession and if he does so it would be used against him in the Court of
law.
160] At Page 207 Para 26 he has admitted that he did not
conduct any physical examination of the accused. However, he has
admitted that he had orally asked the accused whether he has any
complaint or any injury on his person. This fact is not mentioned in the
confession Exhibit-382. However, while considering all these admissions,
it appears that the witness PW-11 DCP Shri Bodkhe has given the answers
to all the questions. He did not avoid or run away from the questions.
Wherever he has forgotten to mention, he has answered accordingly.
Wherever he thought it was not necessary to mention, he has answered
accordingly.
161] On 09/01/2006, as per the record of the PW-11 DCP
Shri Bodkhe, the accused was ordered to be produced before him at 11.00
a.m.. However, the accused was produced before him at 5.30 p.m. A
suggestion is given to the witness that this delayed production was caused
because the accused was not ready to sign the confession, which was
already prepared by the Officers of ATS. In the further cross-examination,
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this witness has admitted that on that day he reached his office at 5.30
p.m. because he was busy in the important work of maintaining Law &
Order. On the basis of this delayed production of the accused, inference
cannot be drawn that the accused was not ready and, therefore, the Officer
sought production of the accused at 5.30 p.m., when he became ready. It
is not the case of the defence that during this period either this DCP visited
Borivali Lock-up or any other officer of ATS visited the Borivali Lock-up.
At Page 209 the witness has admitted that on 09/01/2006 he had asked
more questions to the accused besides the five questions mentioned in the
second part of confessional statement Exhibit-382. But those other
questions have not been incorporated in the confessional statement. He
has admitted that he asked the accused on 09/01/2006 whether anybody
met him or harassed him between 7th to 9th January, 2006. This fact is
not mentioned in the confession. He has answered that he did not think it
necessary to mention about this fact in the record of confessional
statement. He has admitted that he had asked the accused whether he had
sufficient sleep between 7th to 9th January 2006 and whether he was
harassed by anybody. On being confronted with the document
Exhibit-382, he has answered that he did not mention this question and
answer in the confessional statement as he did not think it necessary to
mention this in the record of confessional statement. When this fact was
not mentioned in the confessional statement, this point could have been
argued before Court. What is not there is not there. For the said purpose
the witness cannot be made to answer first and then confront him with the
statement.
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162] He has admitted at Page 210 that on 09/01/2006 he has
specifically informed the accused that he was recording his confessional
statement. It has been found on perusal of second part of the confession
dated 09/01/2006 that in one question the word “Confession” has been
used. In my opinion, the failure to use specific word “Confession” may not
affect the statement made by the witness. The question is what was
brought to the notice of the accused and what he understood. So, in the
second part of the confession dated 09/01/2006, there is specific mention
of word “Confession” in one question i.e. question No. 3. If the accused
had desired only to make a statement and not a confessional statement,
there he could have got an opportunity/wake up call to inform PW-11 DCP
Shri Bodkhe that he is not ready to make a confessional statement.
Therefore, in my view, this entire exercise in the cross-examination cannot
be used as a material to discard the evidence and discard the Confessional
Statement of the accused by treating it as a simple statement. So, in
respect of some facts, which are not stated in the Confession, the cross-
examiner has asked him(PW-11). The witness PW-11 DCP Shri Bodkhe has
admitted that he did it but he either did not deem it necessary to
incorporate or forgot to do it.
163] At Page 211 Para 29 the witness was questioned about
his enquiry with the accused on 7th and 9th January, 2006 about the
reason why he is making confessional statement. According to the witness,
this was important question to be asked to the accused. When he was
asked about the reason for not incorporating this question in the
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confessional statement, the witness has replied that the accused himself
wanted to make confessional statement and, therefore, he did not deem it
necessary to include that question in the record of confession Exhibit-382.
It may be noted that during the course of cross-examination, this witness
has stated about several questions asked by him to the accused, but the
fact remains that all the questions have not been incorporated in
Exhibit-382. Apart from the fact whether these questions were necessary
to be incorporated or not, one cannot ignore the answers given by the
witness in the cross-examination. Now the answers given by the witness
need to be considered in proper perspective and on undertaking this
exercise, it appears that these answers given by this witness are rational.
Similarly the explanation for not incorporating some of the instructions or
warnings given by the witness to the accused before recording his
confession appears to be probable.
164] It may be mentioned that Court has to ascertain from
the evidence that the confession made by the accused is voluntary. Once
Court comes to the conclusion that the confession made by the accused is
voluntary, then one can safely presume that the confession of the crime by
the accused is the result of remorse, repentance and contrition over the
involvement in and commission of heinous crime. It may be noted that
wrong done by a person always dwells in his heart, soul and mind.
Sometimes it becomes unbearable. It may be due to nature and
psychology of particular accused. There is no other way, than to make a
clean breast of the crime and relieve oneself of the burden of the 'sin',
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which is dwelling in the heart and soul. Therefore, I am of the view that
even if there was failure on the part of the Officer to question the accused
about the reason to make confession, it would not make much difference.
It is suggested to this witness that before making confession, this accused
was beaten blue and black by the ATS Officers and also after recording his
confession, so as to desist him from making a complaint of ill-treatment
before Chief Metropolitan Magistrate on his production after recording the
confession. He has denied this suggestion. It is, therefore, seen on perusal
of the cross-examination of this witness in entirety that this witness did not
feign ignorance of certain facts. This witness has come forward with the
facts known to him during searching cross-examination. The answers
given in the cross-examination at the most would show that he had asked
various important questions to the accused before recording his confession,
but he did not incorporate the same in the confession. At this stage the
moot question is whether all these facts were the mandatory requirements
to be complied with by PW-11 DCP Shri Bodkin before recording
confession of the accused u/sec. 15 of the TADA (P) Act. Let me now
consider the points raised by the defence in this perspective.
165] As far as mandatory/statutory warning u/sec. 15 sub-
section (2) of the TADA (P) Act is concerned, I have observed that on the
basis of the evidence of PW-11 DCP Shri Bodkhe and perusal of the
Confession of accused Mehendi Hasan at Exhibit-382, it has been prima
facie established that mandatory requirements of Section 15 sub-Section
(2) of the TADA (P) Act have been complied with. It is submitted that
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PW-11 DCP Shri Bodkhe failed to inform the accused that he was a
Competent Officer to record confession; that PW-11 did not specifically
inform the accused that he had not arrested the accused nor he was
concerned with the investigation of the accused; that PW-11 did not ask
the accused as to when he was arrested and where he was kept in custody;
that PW-11 did not ask the accused whether he had an opportunity in
getting legal assistance nor offered any legal assistance to the accused; that
PW-11 did not verify whether the accused was sent for medical
examination nor took trouble to send the accused for medical examination;
that PW-11 did not use the word “Confession” in the first part of
confession; that PW-11 did not bother to verify whether any officer visited
Borivali Lock-up during reflection period of the accused and checked-up
Station Diary entries; that PW-11 did not bother to ask the accused as to
why he wants to make confessional statement.
166] I have already discussed the facts noted in the
Confessional Statement at Exhibit-382 and the facts, which have not been
noted in the Confessional Statement. PW-11 has been exhaustively cross-
examined on almost all the relevant aspects. PW-11 has not shied away
from answering the questions. The paramount question is whether the
answers were probable or the same were just given for the sake of answers
to cover up certain facts. At this stage, I must state that the admissions
given by PW-11 DCP Shri Bodkhe in his cross-examination appears to be
straightforward. He did not even make an attempt to hide anything from
the Court. If he had not done all the things, which he was supposed to do,
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then he would not have answered the questions put by the defence to him.
But one thing is certain on the basis of his evidence that the basic
requirements of Section 15 (2) of the TADA(P) Act and Rule 15 (3)(b) of
the TADA Rules have been found to be complied with.
167] In the context of the aforesaid discussion and before
adverting to the settled legal position on the point of compliance of
mandatory requirements while recording confession u/sec. 15 of TADA (P)
Act, it is necessary to bear in mind certain important facts. Accused
Mohammad Hasan Mehendi Hasan @ Sunny was arrested on 15/12/2005.
He was produced before this Court. On 15/12/2005 he did not make a
complaint of any ill-treatment or torture at the hands of the ATS Officers
before this Court. On 15/12/2005 this accused was remanded to police
custody till 03/01/2006. On 03/01/2006 the accused was produced
before the Court. On 03/01/2006 the accused did not make a complaint
of ill-treatment or torture at the hands of the ATS Officer during the period
of his police custody. This fact can be borne out from the Roznama of this
Court dated 03/01/2006. On 03/01/2006 he was remanded to further
police custody till 17/01/2006. As per the case of the prosecution on
05/01/2006 during the course of his interrogation by Investigating Officer
Shri Shengal, he expressed desire to confess the crime. Accordingly, on
07/01/2006 he was produced before PW-11 DCP Shri Bodkhe for
recording his confessional statement. PW-11 DCP Shri Bodkhe granted
cooling off period to the accused to reflect over his decision to make
confessional statement till 09/01/2006. On 09/01/2006 PW-11 recorded
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the confession of the accused. The accused Mehendi Hasan was then sent
back to Borivali Police Station Lock-up with instructions to the Police
Officer PSI Shri Hardas to produce the accused along with the confession
before learned Chief Metropolitan Magistrate, Mumbai.
168] On 10/06/2006, as per the orders of DCP Shri Bodkhe,
the accused along with the packet/envelope containing his confessional
statement was produced before Chief Metropolitan Magistrate, Mumbai.
Learned Chief Metropolitan Magistrate appears to have made thorough
enquiry with the accused on the point of his confession. The record of the
proceeding before the Chief Metropolitan Magistrate is at Exhibit-382-A
(colly.). On his production before learned Chief Metropolitan Magistrate,
the accused had an opportunity to place his grievance of ill-treatment,
torture and beating, if any, to him at the hands of the ATS Officers and by
DCP Shri Bodkhe (PW-11) for extracting confession. The record reveals
that on enquiry by the Chief Metropolitan Magistrate with him about his
confessional statement, he did not make any complaint of ill-treatment or
torture either at the hands of the ATS Officers during the course of
interrogation or DCP Shri Bodkhe (PW-11) while recording his confession.
169] At this stage, it is necessary to mention that during the
course of cross-examination of PW-22, ACP Shri Kisan Narayan Shengal
has admitted that during the night of 10/01/2006 he had paid night visit
to Borivali Lock-up where the accused was lodged. On the basis of this
admission, which is contained in his evidence at Page 480-F Para 65, it is
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submitted that he paid visit to Borivali General Lock-up only with a view to
threaten the accused and pressurise the accused not to make a complaint
of ill-treatment before Chief Metropolitan Magistrate on the next day.
PW-22 ACP Shri Shengal has admitted that on 10/01/2006 after midnight
he had paid visit to Borivali General Lock-up during the night round. He
has admitted that he did not know that accused Mehendi Hasan was
lodged in the General Lock-up of Borivali Police Station. He has denied
the suggestion about the threat given to the accused. Even if it is assumed
that this visit was paid with a particular intention in mind, it would not
have prevented the accused from making a statement before the learned
Chief Metropolitan Magistrate on his production. At this stage it may be
noted that in his so-called retraction application the accused has admitted
that due to fear of his life he told the Judge that the confession given was
true. It may further be noted that in his retraction application, the name of
Mr. Shengal being the Officer, who had visited Borivali General Lock-up,
has not been mentioned.
170] Accused Mehendi Hasan had one more opportunity to
make a grievance about ill-treatment, torture, threat etc., when he was
produced before this Court on 10/01/2006 after the proceeding before
learned Chief Metropolitan Magistrate was over. At this stage it may be
mentioned that on the basis of some misconceived admissions of PW-11
DCP Shri Bodkhe and PW-22 ACP Shri Shengal, a impression is tried to be
created that the ATS Officers took custody of the accused in the Court of
the learned Chief Metropolitan Magistrate and produced him before this
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complaint of ill-treatment or torture against the ATS Officers or DCP Shri
Bodkhe (PW-11)before this Court as well as before the learned Chief
Metropolitan Magistrate on his production on more than four occasions.
All these facts are in favour of the prosecution. Some of the admissions
given by PW-11 DCP Shri Bodkhe, which have bearing with the
voluntariness and truthfulness of the confession needs to be read in
juxtaposition with the above stated undisputed facts on record.
172] Besides, presuming for the sake of argument that PW-11
DCP Bodkhe did not comply certain procedural requirements sought to be
brought on record in the cross-examination, then, the question needs to be
addressed is whether it was mandatory requirement to be complied with
and whether non-compliance of such requirement has prejudiced the
accused in his defence or otherwise. Now, it is high time to consider the
law laid down by the Hon'ble Supreme Court of India on this point.
According to me, first landmark decision on this point is in the case of S.N.
Dube v. N. B. Bhoir and others reported in (2000) 2 Supreme Court
Cases 254 (Not cited at Bar).
173] In this case the confession was not recorded in two parts
namely preliminary part for ascertaining voluntary willingness to make
confession and the second part containing actual confessional statement.
It was a continuous one statement. In this case, on this point the Hon'ble
Supreme Court of India has held that neither Section 15 nor Rule 15
contemplates recording of a confessional statement in two parts or giving
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time to the person making a confession to think over and reconsider
whether he still wants to make it in spite of being told that he is not bound
to make it and that it can be used against him. It is held that if the
recording police officer feels assured after giving the statutory warning
that the person who wants to make a confession is doing so voluntarily he
may not give any time for reconsideration and in that case there would be
only one continuous statement. In this case it is held that the requirement
of law is that before recording the confession the police officer should
ascertain by putting questions to the maker of it that he is making the
confession voluntarily and he should also explain to him that he is not
bound to make the confession and that if he makes it that can be used
against him as evidence.
174] On the point of writing the certificate, as contemplated
under Rule 15 sub-Rule (3) of the TADA Rules, at the end of the
confession, the Hon'ble Supreme Court of India has held that certificate/
memorandum need not be written by the police officer in the same form
and terms. The object of writing the certificate and making the
memorandum are to prove that the accused was explained that he was not
bound to make a confession and if he made it it can be used against him as
evidence, that the confession was voluntary and that it was taken down by
the police officer fully and correctly. The requirement of the rule is
preparation of contemporaneous record regarding the manner of recording
the confession in the presence of the person making it.
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175] On the point of compliance of the Bombay High Court
Guidelines for recording confession u/sec. 164 of the Cr.P.C. and the
Guidelines laid down by the Hon'ble Supreme Court of India in Kartar
Singh's case, the Hon'ble Supreme Court of India has held that while
recommending those guidelines it was made clear by the Supreme Court
that it is really for the Court trying the offence to decide the question of
admissibility or reliability of a confession by using its judicial wisdom.
From what has been observed in Kartar Singh's decision it does not follow
that if the suggested guidelines are not followed then the confession must
be discarded as inadmissible or bad on that score or on the ground that it
is not in conformity with Section 15 sub-Section (2) of the TADA Act and
Rule 15 of the TADA Rules. It is held that the Police Officer recording a
confession u/sec. 15 of the TADA Act is really not bound to follow any
other procedure. The rules or the guidelines framed by the Bombay High
Court for recording a confession by a Magistrate u/sec. 164 of Cr.P.C. do
not by themselves apply to recording of a confession u/sec. 15 of the TADA
Act. It is, held that therefore, merely because some of those guidelines
were not followed while recording the confessions it cannot for that reason
be held that the said confessions have lost their evidentiary value. The
Hon'ble Supreme Court of India has observed that if while recording the
confessions the police officer had followed all those guidelines, then also
that would have been a circumstance helpful in inferring that the
confessions were made after full understanding and voluntarily. In this
case the confessions were recorded by the officer in the Police Station. A
grievance was made that the confessions were not recorded in a free
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atmosphere. The recording officer had disclosed his identity as the
Superintendent of Police. It was also made a subject of criticism to
contend that this would have caused the mind of the accused. In this case
the Hon'ble Supreme Court of India has held that the officer had done
nothing wrong by disclosing his identity. The Hon'ble Supreme Court of
India has held that while recording confession under the TADA (P) Act,
compliance of Section 15 sub-Section (2) is mandatory. The Hon'ble
Supreme Court of India has held that the failure to follow the guidelines
laid down by the Bombay High Court u/sec. 164 of the Cr.P.C. and/or
principles of fairness laid down by the Supreme Court of India in Kartar
Singh's case would not be fatal to such confession. The mandatory
requirement of statutory warning to the accused, as contemplated u/sec.
15 sub-Section (2) of the TADA (P) Act, is sine qua non for recording the
confession under the provisions of the TADA (P) Act.
176] I may now refer the Judgments relied upon by the learned
Advocate for the accused. In the case of Ayyub vs. State of U.P. with
Abdul Jabbar v. State of U.P. reported in 2002 Supreme Court Cases
(Cri) 673, the Police Officer, who had recorded the confession, had failed
to write down the certificate in accordance with Sub-rule (3)(b) of Rule 15
of the TADA Rules, 1987. In this case, the Hon'ble Supreme Court of India
has held that as the confession made u/sec. 15 of the TADA Act is made
admissible in evidence, the strict procedure laid down therein for
recording confession is to be followed. Any confession made in defiance of
these safeguards cannot be accepted by the court as reliable evidence. The
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Hon'ble Supreme Court of India has further held that the confession should
appear to have been made voluntarily and the police officer who records
the confessions should satisfy himself that the same had been made
voluntarily by the maker of that statement. The recorded confession must
indicate that these safeguards have been fully complied with. So, this
decision relied upon by the learned Advocate for the accused enunciates
that all the mandatory requirements of Section 15 of the TADA (P) Act and
Rule 15 of TADA Rules must be strictly complied with. It is held that if all
the requirements are not fully complied with then the confession becomes
inadmissible.
177] In the case of Hardeep Singh v. State of Punjab
reported in 2004 ALL MR (Cri) 3428 (S.C.), the Police Officer had failed
to write down the certificate and memorandum as contemplated under
Rule 15 sub-rule (3)(b) of the TADA Rules. In this case the Hon'ble
Supreme Court of India has held that Rule 15 is mandatory and violation
of this mandatory rule particularly on the point of writing certificate and
making memorandum makes the confession inadmissible. Rule 15 would
show that the certificate shall be in writing and signed by the person who
makes it. The Police Officer shall also certify under his own hand that such
confession was taken in his presence and recorded by him and that the
record contains a full and true account of the confession made by the
person and such police officer shall make a memorandum at the end of the
confession and the proforma of such certificate also is appended to Rule
15. The certificate should specifically state that he had explained to the
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person making the confession that he was not bound to make the
confession and if he does so, the confession he may make may be used
against him and that he believed that this confession was voluntarily made
and it was taken in his presence and recorded by him and was read over to
the person making it and admitted by him to be correct and it contained a
full and true account of the statement made by him.
178] At this stage, it may be noted that in this case the
certificate and memorandum appended to the confession of accused
Mehendi Hasan contains all the requirements of the certificate and
memorandum. In fact the officer has appended the proforma certificate
provided under Rule 15 of the TADA Rules. Here, it appears that by
appending the certificate in the form in which it has been provided by the
Rule cannot be the circumstance against the prosecution. The submission
can be made both ways. If a certificate is ditto in the form, then it is
criticized being a mechanical exercise by the officer. The Court has to see
the essence and the compliance of the mandatory requirements. In this
case, the Hon'ble Supreme Court of India has held that the compliance of
Rule 15 sub-rule (3) sub-clause (b) of the TADA Rules must be made
strictly. In this case I do not find that writing of the certificate and
memorandum by the officer in the language of proforma would amount
the exercise of the powers by the officer mechanically and the non-
compliance of the provisions of the TADA (P) Act.
179] The decision in the case of Lilli alias Jagdeep Singh v.
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State of Rajasthan reported in 2005 Supreme Court Cases (Cri) 822 has
been relied upon by the learned defence Advocate in support of his
proposition that non-compliance of the provisions of Section 15 sub-
section (2) of the TADA(P) Act makes the confession completely
inadmissible in evidence. In this case, the Hon'ble Supreme Court of India
has held that the provisions of Section 15 sub-section (2) of the TADA (P)
Act are mandatory and must be strictly complied with. In this case, the
Superintendent of Police, who recorded the confessional statement, simply
stated in the confession that it was explained to the accused that statement
could be used against him as evidence and that the accused made
statement concerning the sequence of events completely on his own free
will without any pressure.
180] The Superintendent of Police neither recorded it in the
confessional statement, nor deposed while giving evidence in the Court
that it was explained to the accused that he was not bound to make the
confession as required u/sec. 15 sub-section (2) of the TADA (P) Act.
Similarly, in this case, one more defect noticed was that the failure of the
Superintendent of Police to prepare memorandum at the end of the
statement as required under Rule 15 sub-rule (3) sub-clause (b) of the
TADA Rules. In this case the confession was held inadmissible for want of
compliance of the mandatory provisions of Section 15 sub-section (2) of
the TADA (P) Act. In this case, the Hon'ble Supreme Court of India has
held that Section 15 sub-section (2) of the TADA (P) Act requires that the
Police Officer shall before recording any confession under sub-section (1)
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explain to the person making it that he is not bound to make a confession
and that, if he does so, it may be used against him and such police officer
shall not record any such confession unless upon questioning the person
making it, he has reason to believe that it is being made voluntarily. If this
mandatory requirement is fulfilled, then only the confession could be held
to be admissible.
181] In the present case, the certificate and memorandum
appended to the confession is in the language and the form provided under
Rule 15 of the TADA Rules. Similarly, the officer, PW-11 DCP Shri Bodkhe,
before recording the confession of the accused on 07/01/2006 and
09/01/2006, administered statutory warning to the accused that he was
not under compulsion to make a confession and if he does so, then it can
be used as evidence against him in the Court of law.
182] There is one more Judgment in the case of Mohd. Ayub
Dar v. State of Jammu & Kashmir reported in 2010(3) Supreme Court
Cases (Cri) 1350. This citation has been relied upon by learned SPP in
support of his submission that merely because the guidelines in Kartar
Singh (1994) 3 Supreme Court Cases 569, were not fully followed, that
by itself does not wipe out of the confession recored u/sec. 15 of the TADA
(P) Act. In this case, the Hon'ble Supreme Court of India has held that the
confession recorded u/sec. 15 of the TADA (P) Act is admissible as
substantive piece of evidence and it can be made the basis for the
conviction of the maker. The Hon'ble Supreme Court of India has held that
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merely because the guidelines in Kartar Singh v. State of Punjab (1994)
3 Supreme Court Cases 569, were not fully followed that by itself does
not wipe out the confession recorded u/sec. 15 of the TADA (P) Act. In
this case the Competent Authority had administered the statutory warning
to the accused that he was not bound to make a confession and if he made
it, it would be used against him in the Court of law. In view of this factual
position, the Hon'ble Apex Court held that it was a full compliance of
Section 15 sub-section (2) of the TADA (P) Act.
183] In this case the mandatory statutory warning was
administered to accused Mehendi Hasan by PW-11 DCP Shri Bodkhe.
Similarly, PW-11 DCP Shri Bodkhe has appended elaborate
certificate/memorandum to the confession of accused Mehendi Hasan. The
Memorandum appended to the confession of accused Mehendi Hasan is
reproduction of the proforma of the certificate/memorandum provided
under Rule 15 of the TADA Rules. Reproduction of certificate provided
under TADA Rules could not affect the voluntary nature or otherwise of the
confession. The failure of the officer to note down certain words or
phrases in his certificate can be made the basis of attack to challenge the
confession. It may be mentioned that on this point the defence can argue
the matter both ways. While considering the compliance of requirement,
Court has to see the evidence of the Recording Officer in totality in
juxtaposition with the relevant facts noted down in the confession by the
Recording Officer with regard to the compliance of the mandatory
provisions. The Officer PW-11 DCP Shri Bodkhe has complied with the
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mandatory requirements of Section 15 sub-section (2) of the TADA (P) Act.
He has ascertained important and relevant facts from the accused before
recording the confession. He gave one and half day's cooling off time to
think over his decision to make a confession. When the Officer was
satisfied that the accused was making the confession voluntarily, he
proceeded to record the same. Therefore, applying the law laid down by
the Hon'ble Supreme Court of India in the Judgments, cited supra, it
becomes crystal clear that failure to comply the guidelines made by the
Bombay High Court and the guidelines in Kartar Singh's case does not
wipe out the confession, which is complying with all the mandatory
requirements of Section 15 of the TADA (P) Act and Rule 15 of the
TADA(P) Rules. On consideration of the evidence in totality, I am of the
view that the prosecution has proved in this case that confession made by
accused Mehendi Hasan was voluntary. The prosecution has proved by
leading cogent and reliable evidence that the required mandatory
provisions of Section 15 of the TADA (P) Act and Rule 15 of the TADA
Rules were complied with. If the submissions made by learned Advocate
Shri Pasbola on the point of non-compliance of various other
factors/conditions by PW-11 DCP Shri Bodkhe before recording the
confession of the accused are considered in juxtaposition with the law laid
down by the Hon'ble Supreme Court of India in the case of S.N. Dube v. N.
B. Bhoir and others reported in (2000) 2 Supreme Court Cases 254 and
also some of the Judgments relied upon by him, then it becomes clear that
the submissions made by learned Advocate cannot be accepted. In view of
the settled legal position, the competent officer was required to comply
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with the mandatory provisions of Section 15 sub-section (2) and Rule
15(3)(2) of the TADA (P) Rules and Rule 15 of the TADA (P) Rules. In the
backdrop of this settled legal position, the searching cross-examination of
PW-11 DCP Shri Bodkhe to point out that he did not comply with various
other requirements is of no substance. The settled legal position does not
permit me to accept the submissions advanced by learned Advocate Shri
Pasbola for the accused inasmuch as those submissions go counter to the
law laid down by the Hon'ble Supreme Court of India in the Judgment,
cited supra. In this case, on the basis of the cogent and reliable evidence,
the prosecution has proved that the confession made by accused Mehendi
Hasan was voluntary. The prosecution has further proved that PW-11 DCP
Shri Bodkhe has complied with the mandatory provisions as held to be
necessary by the Hon'ble Supreme Court of India. Therefore, on this point,
the submissions advanced by learned Advocate Shri Pasbola deserves
rejection. The submissions advanced by learned SPP Shri Nikam deserves
acceptance. It is now necessary to dwell upon the second important aspect
namely truthfulness of the confession made by accused Mehendi Hasan.
184] In order to find out the truthfulness of the confession
made by accused Mehendi Hasan, first Court has to see broad spectrum of
the confession of accused Mehendi Hasan and secondly the corroborative
evidence to the statement made by the accused in his confession. The
broad spectrum of the confession of accused Mehendi Hasan is as follows.
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185] BROAD SPECTRUM OF CONFESSION OF MEHENDI HASAN
i) He(Mehendi Hasan) came into contact with co-accused Abu Salem
through his cousin Abdul Kalam. He used to go to Abu Salem's
office situated in 2nd Hasanabad Lane, Santacruz (West), Mumbai.
There he came in contact with Riyaz Siddiqui, Shaukat Mistry,
Naeem TR (Approver PW-1), Vinu Sharma (PW-3), Ali Dadhi,
Dr. Arshad Kamal Shaikh (PW-7) in this case.
ii) He(Mehendi Hasan) used to sell gold and silver to Marwadi
persons along with Abu Salem and also used to do odd jobs for him
(Salem). He used to drive Abu Salems Maruti-800 car.
iii) After 1993 Bombay Bomb Blasts he fled away to Belgaum as
Mumbai Police was hunting for accused Abu Salem for his
involvement in the Bombay Bomb Blasts case and he (Mehendi
Hasan) resided there for a year.
iv) After coming back to Mumbai, he used to go to Andheri at the office
of Abu Salem. In the office of Abu Salem he was informed by Samir
Moghal that co-accused Abu Salem was searching for him and also
provided Abu Salem's Dubai phone number 009714-226670.
v) He contacted Abu Salem on phone and told Abu Salem that he was
in need of money. On the instructions of accused Abu Salem, he
went to his office and obtained Rs. 10,000/- from Sheela and at the
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same time took possession of Abu Salem's Maruti-800 car from
Nizam residing in Behram Baug and went to Chembur and started
residing there in rented house.
vi) He used to make phone calls to Abu Salem in Dubai from STDBooth
of Shabbir and also used to receive Abu Salem's phone calls at the
said booth of Shabbir.
vii) He used to take Maruti 800 Car to the garage of Salim Haddi and
Salim Haddi introduced him (Mehendi Hasan) to Salim Tukaram
Nazir Hateli, Brijesh Mishra, Uday Pawar, Rajesh Igwe, Shaukat
Kadia, Sunil Nair, Sanjay Kadam.
viii) He started threating and extorting money from builders and wealthy
persons for Abu Salem through these persons.
ix) Abu Salem used to pay money to him through Naeem TR and Dr.
Arshad Kamal Shaikh.
x) In August 1994, he came to know that Mumbai Crime Branch Police
was searching for him at Panjrapol, Chembur area and he(Mehendi
Hasan) informed this fact to Abu Salem. At the instance of AbuSalem, he procured ticket for Dubai through one travel agent
Rizwan at Clair Road, Byculla and went to Dubai in September, 1994
at the cost of Abu Salem.
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xi) Abu Salem received him at Dubai Airport and took him to his house
and thereafter he started working with Abu Salem in his office at
Pearl Building, 12th Floor, Deira, Dubai. Riyaz Siddiqui used to come
in this office. Anees Kaskar also used to come in this office.
xii) Abu Salem was threatening Juhu based Jain Builder and he (Abu
Salem) told him that he had allotted the matter of Jain Builder
to Riyaz Siddiqui.
xiii) In November, 1995 he was present in the office of Abu Salem along
with Salim Haddi, Abu Salem, Anees Kaskar, Vinu Sharma and at
that time Riyaz Siddiqui came to the said office along with Shaukat
Mistry. Shaukat Mistry explained all the facts about Kol Dongri plot
in the said meeting and told in the meeting that they all would get
crores of rupees out of this property.
xiv) After Abu Salem and Anees Kaskar realized and understood this
matter, it was decided amongst them that if Ashok Jain does not
obey his command, then any one amongst five brothers would be
killed.
xv) In the said meeting, the role of each one was decided. It was
decided in the said meeting that Anees Kaskar and Abu Salem would
threaten Ashok Jain on phone, Riyaz Siddiqui would frighten Ashok
Jain by talking on phone about Abu Salem and Anees Kaskar. It was
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decided in the said meeting that by staying in Mumbai Shaukat
Mistry along with Naeem Khan would convey all the developments
to Anees Kaskar and Abu Salem and it was further decided in the
said meeting that if needed Mehendi Hasan along with Salim Haddi
and others would attack any of Jain brothers.
xvi) Abu Salem and Anees Kaskar started making threatening calls to
Ashok Jain and Naeem Khan and Shaukat Mistry started holding
meetings with Ashok Jain in Mumbai and informing Anees Kaskar
and Abu Salem on Dubai Phone No. 009714-226670 and
009714-242939 according to the plan.
xvii) In the meantime, Salim Haddi and Vinu Sharma went back to
Mumbai and Mehendi Hasan also returned to Mumbai in January,
1995 after celebrating his birthday on 29th December in Dubai and
went to Kolhapur due to fear of police.
xviii) On 2nd or 3rd March, 1995 Mehendi Hasan made phone call to Abu
Salem, who abused him and instructed him to go to Mumbai and
meet Salim Haddi and also told him that Pradeep Jain was to be
eliminated in any condition.
xix) Immediately after this message from Abu Salem, Mehendi Hasan
came to Mumbai and met Salim Haddi, who talked with Abu Salem.
xx) Abu Salem also instructed Mehendi Hasan to go to Hotel Moti
Mahal, S.V. Raod, Andheri and meet Sunny and take money from
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him. Accordingly he went there along with Salim Haddi at 4.00 p.m.
and there met Naeem TR (Approver). He also introduced Salim
Haddi to Naeem TR. At that time Naeem TR (Approver)gave him
Rs. One lakh in the said Hotel and thereafter they all talked with
Abu Salem from STD Booth and informed him about receipt of the
amount and from there he and Salim Haddi went to Chembur.
xxi) He again contacted Abu Salem on phone from Chembur. Abu Salem
instructed him to pay Rs. 80,000/- (Rs. Eighty Thousand) to Salim
Haddi and Mehendi Hasan did it accordingly.
xxii) On the next day Mehendi Hasan again made a phone call to Abu
Salem. Abu Salem told him to go to Shalimar Hotel, Bhendi Bazar
for taking delivery of weapons. On the very day in the noon,
Mehendi Hasan went to Shalimar Hotel and took delivery of
weapons from one person outside hotel and informed this fact to
Abu Salem. Mehendi Hasan took the said weapons which were
packed in polythene bag and kept in sweet box and delivered the
same to Salim Haddi near Ramdeo Hotel, Sion at about 5.00 p.m.
on the same day.
xxiii) At that time he also told Salim Haddi that Abu Salem was enraged
and wanted to kill Pradeep Jain in any condition as Pradeep Jain has
abused Abu Salem.
xxiv) Salim Haddi asked Mehendi Hasan to provide person who could
identify Pradeep Jain and he immediately made a phone call to Abu
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Salem in Dubai. Abu Salem directed him to introduce Shaukat
Kadia to Salim Haddi and on the very same day, Mehendi Hasan
arranged the meeting between Salim Haddi and Shaukat Kadia at
Andheri.
xxv) After three to four days of this, Rajesh Igve, Salim Haddi and
Sunil Nair came to Mehendi Hasan at 11.00 a.m. and informed
him that they have shoot Pradeep Jain in his office. He immediately
made a phone call to Abu Salem and Abu Salem instructed him to
take Rajesh Igave and Sunil Nair to Hotel Moti Mahal, Andheri at
5.00 p.m. and meet Naeem TR. Accordingly, he met Naeem TR
along with Rajesh Igve and Sunil Nair. Naeem TR gave him Rs.
one lakh. He thereafter informed Abu Salem about the receipt of
the amount. He paid Rs. Eighty Thousand to Rajesh Igave and Sunil
Nair instructing them to distribute the same amongst themselves.
He kept Rs. 20,000/- with him and went to Kolhapur.
186] The essence of the confession of the accused Mehendi
Hasan extracted above would establish prominently the conspiracy hatched
at Dubai, the role played by him pursuant to the object of the conspiracy
and also the role played by others who were present at the conspiratorial
meeting. This confession can conveniently be divided into three parts.
The first part of his confession speaks about his acquaintance with accused
Abu Salem, Riyaz Siddiqui, Shaukat Mistry, Naeem TR (Approver)(PW-1)
Vishnu Sharma (PW-3), Ali Dadhi, Dr. Arshad Kamal Shaikh(PW-7). He
has stated about his indulgence in the business of selling gold with Abu
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Salem and driving Abu Salem's Maruti-800 Car. In the first part, he has
stated about the role played by him in the absence of accused Abu Salem
when Abu Salem absconded after Bombay Bomb Blasts in 1993 when his
involvement was revealed. In the absence of accused Abu Salem, he could
attend the office of Abu Salem and drive his Maruti 800 Car. He has
further stated that he and his associates thereafter started threatening and
extorting money from the builders and wealthy persons for Abu Salem. He
has stated the names of his associates.
187] Second part of his confession deals with his visit to
Dubai on the say of accused Abu Salem in September, 1994. He tells us
that when he informed Abu Salem about his difficulties, Abu Salem called
him to Dubai and Abu Salem borne the expenses for his journey to Dubai.
He has further stated that Abu Salem personally came to receive him at the
Airport and took him to his house and thereafter he started working with
Abu Salem in his Pearl Building, 12th Floor Deira, Dubai. He has stated
that Abu Salem was threatening Juhu based Jain builder and Abu Salem
told him that he has allotted the matter of Jain brothers to Riyaz Siddiqui.
He has further stated about the conspiratorial meeting held in the month
of November, 1994 in the office of Abu Salem along with Abu Salem, Salim
Haddi, Anees Ibrahim, Riyaz Siddiqui and Shaukat Mistry. He has
specifically stated about the conspiracy and the object of the conspiracy.
He has stated about the role assigned to each one of the persons present in
the meeting. He has stated that in the meeting it was decided that if Ashok
does not pay the money, then one of the five brothers would be killed. He
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has further stated that the persons present in the meeting immediately
thereafter started doing the job assigned to them to take the conspiracy to
its logical end. As far as the Approver PW-1 Naeem Khan is concerned, he
has stated that in the meeting it was decided that by staying in Mumbai
Shaukat Mistry along with Naeem Khan would arrange meetings with Jain
brothers and would convey all the developments to Anees Ibrahim Kaskar
and Abu Salem. As far as his role is concerned, he has stated that it was
decided that if needed he along with Salim Haddi and others would attack
one of the Jain brothers. He has further stated the telephone numbers
used by Abu Salem and Anees Ibrahim Kaskar from Dubai for making the
phone calls to Jain brothers. So, the second part reveals the conspiracy
hatched, the persons present in the conspiratorial meeting, the decision
taken in the meeting, the role assigned to each one to act pursuant to the
object of the conspiracy and to take the conspiracy to its logical end.
188] The third and last important part of his confession is
about his activities in Mumbai after coming back to Mumbai in January,
1995. In this third part, he has stated about the execution of the murder
of Pradeep Jain. He has stated about the instructions given to him by Abu
Salem to kill Pradeep Jain because Pradeep Jain had abused him on phone,
the meeting with Naeem TR (Approver) and collection of money from him
before murder, taking the delivery of weapons as per the instructions of
Abu Salem near Shalimar Hotel, Bhendi Bazar and handing over of the
same to Salim Haddi near Ramdeo Hotel, Sion, at 5.00 p.m. on the same
day and the instructions given by him to Salim Haddi to kill Pradeep Jain
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as Pradeep Jain had abused to their mentor Abu Salem. He has further
stated that as per say of Abu Salem, he introduced Shuakat Kadia to Salim
Haddi to point out the residence of Jain brothers or Jain brothers to him.
He has further stated that after four days of this, Rajesh Igve, Salim Haddi
and Sunil Nair met him and informed him that they have shot Pradeep
Jain in his office. Thereafter, he made a phone call to Abu Salem and as
per the instructions of Abu Salem met Naeem TR (Approver)(PW-1) and
took Rs. 1,00,000/-(Rs. one lakh) from him and paid Rs. 80,000/-(Rs.
Eighty Thousand) to Rajesh Igave, Sunil Nair and kept Rs. 20,000/- (Rs.
Twenty Thousand) with him and went to Kolhapur.
189] The confession made by the accused has to be read as a
whole to find out its truthfulness and voluntariness. In the earlier part of
the Judgment, I have stated that on the basis of the compliance of the
mandatory provisions of law, PW-11 ensured the compliance of the
mandatory provisions of Section 15 of the TADA(P) Act and Rule 15 of the
TADA Rules. Perusal of the confession as a whole reveals that it is
inculpatory. The accused Mehendi Hasan has not shied away from
disclosing his involvement in the conspiratorial meeting and execution of
the job assigned to him to fulfill the object of criminal conspiracy. Perusal
of his confession in entirety would show that he is trusted soldier of Abu
Salem. He was involved in certain illegal activities with accused Abu
Salem. He worked as a driver on Maruti-800 car of Abu Salem. He
provided almost all the details with regard to accused Abu Salem before
and after the commission of the crime. The confessional statement made
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by the accused has provided a stupendous account studded with vivid
details about the hatching of the conspiracy, the object of the conspiracy,
the persons present in the conspiratorial meeting, the role assigned to each
one present in the conspiracy and who were not present in the conspiracy
to fulfill the object of the conspiracy, the acts done by him and Abu Salem
and particularly by him on the say of Abu Salem after coming back to India
in January, 1995 and arranging weapons and coordinating with the
assassinators and providing weapons to them for commission of murder of
Pradeep Jain.
190] While deciding/assessing the voluntary nature and
truthfulness of the confession of accused Mehendi Hasan, the possibility of
torture, coercion, threat, inducement, ill-treatment, promise, allurement
must be completely ruled out. It is the defence of the accused that the
confession was prepared by the ATS Officers and his signatures were
obtained on the said confession in presence of PW-11 DCP Shri Bodkhe
under duress. This defence of the accused needs to be considered in the
backdrop of various defects and lacuna's pointed out in the manner of
recording of confession by PW-11 DCP Shri Bodkhe. It is submitted on
behalf of the accused that before recording the confession, mandatory
provisions of law were not complied with. If the confession of the accused
was a handy work and/or creation of the ATS Officers, then they would
have taken every precaution and ensured that no lacuna or defect remains
in any part of the confession. It may be mentioned that some of the
lacunas ultimately held not to be going to the root of the matter noticed in
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the confession of the accused can lend assurance to the fact that the
confession was not concocted. It was recorded before DCP Shri Bodkhe
PW-11. If it had been a creation or handy work of the ATS Officers, then
they would have taken utmost care not to leave a single legal or technical
lacuna in any part of the confession. This is one of the circumstances to
come to a conclusion that this confession was not prepared or drafted by
the ATS Officers. It was recorded by PW-11 DCP Shri Bodkhe.
191] PW-11 DCP Shri Bodkhe was not concerned with the
investigation in the crime. The facts narrated by the accused Mehendi
Hasan in his confession, as stated above, speaks about their personal life,
involvement in the other crimes, hatching of conspiracy in Dubai etc. It
may be noted at this stage that it would not have been possible for DCP
Shri Bodkhe, PW-11, to imagine and concoct all the details on his own.
DCP Shri Bodkhe PW-11 was not supposed to know all the vivid details
provided by accused Mehendi Hasan in his Confessional Statement. This is
one more aspect which can lend assurance to the fact that PW-11 DCP Shri
Bodkhe recorded the facts narrated before him by accused Mehendi Hasan
personally known to him. DCP Shri Bodkhe PW-11 by no stretch of
imagination could be said to have personal knowledge of all the minute
details provided by accused Mehendi Hasan in his confession.
192] It has not been suggested to PW-11 DCP Shri Bodkhe or
any other officer that during this period accused Mehendi Hasan had not
gone to Dubai. Even if it is assumed that there was such suggestion, then
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such fact could have been easily established by producing the Passport of
accused Mehendi Hasan. His Passport would have shown that he did not
visit Dubai at the relevant time. It is also not the case of the accused
anywhere that he did not possess the passport. The production of his
passport would have demolished the intrinsic value of certain facts
disclosed by him in his Confessional Statement. According to him, the
criminal conspiracy was hatched in his presence at Dubai. He has also
stated about the role assigned to him in the said conspiracy, which,
therefore, indicates that accused Mehendi Hasan had knowledge that
production of his Passport or defence on that line would bring him in
trouble. This is one of the circumstances to opine about truthfulness of he
contents of the confession of accused Mehendi Hasan. The detail narration
of the facts made by accused Mehendi Hasan in his Confessional Statement
leave no manner of doubt in my mind about its voluntariness and
truthfulness. It may further be noted that how would the Police Officer
know about certain facts, which were supposed to be within special and
exclusive knowledge of he accused. This fact indicates that the Officer,
DCP Shri Bodkhe PW-11, recorded the facts narrated before him by
accused Mehendi Hasan, which were within in his exclusive knowledge.
193] On perusal of the evidence and on minute scrutiny of
the evidence and the Confessional Statement and by applying the law laid
down by the Hon'ble Apex Court, I have no semblance of doubt to
conclude that the confession made by accused Mehendi Hasan is voluntary
and true. On the basis of his confession he has admitted the conspiracy
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hatched by accused Abu Salem with others including himself and the
object of the conspiracy. He has also admitted the role played by accused
Abu Salem and the role played by him (Mehendi Hasan) in taking the
object of the conspiracy to its logical end. The conspiracy was to compel
Jain brothers to settle the dispute of Kol Dongri Property and to extort
money from Jain brothers. He also admits the direct involvement of
accused Abu Salem in the murder of Pradeep Jain. He has also admitted
his own role in committing murder of Pradeep Jain. He has also admitted
the involvement of Approver Naeem Khan (PW-1) in the crime. It is found
that the Confession of accused Mehendi Hasan, which has been asserted by
the defence to be involuntary, is not borne out from any material placed on
record.
194] It is now necessary to deal with the aspect of the
retraction of the confession. It is the case of the accused that within ten
days from making of the confession, he retracted the confession by stating
the valid reasons. As far as the point of retraction is concerned, I propose
to consider it along with the defence of accused Abu Salem about the
retraction of his confession. With this, it is now necessary to advert to the
confession of Accused Abu Salem.
CONFESSION OF ACCCUSED ABU SALEM
195] Prosecution has relied upon the Confession of accused
Abu Salem to establish the role of accused Abu Salem as a prime accused
in hatching the conspiracy. The defence has also raised several factual and
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legal objections to attack at the very root of the confession of accused Abu
Salem. The learned Prosecutor and the learned defence Lawyer have
fought the issue of admissibility and otherwise of the confession of accused
Abu Salem tooth and nail. Accused Abu Salem is not an ordinary criminal.
Accused Abu Salem is also one of the accused facing serious charges in
1993 Bombay Bomb Blasts Case. The Special Public Prosecutor submitted
that the confession of accused Abu Salem is voluntary and true. Learned
Spl.P.P. submitted that on the basis of the evidence of PW-12 DCP Shri
Dattatray Rajaram Karale, it has been proved that the mandatory
provisions of Section 15 of the TADA (P) Act and Rule 15 of the TADA
Rules have been complied with at the time of recording of confession of
accused Abu Salem. Learned SPP submitted that accused Abu Salem had
engaged the Lawyer from the first date of his production before this Court
i.e. from 24/11/2005 and every step and action of accused Abu Salem
from day one of his custody was under legal guidance and advice. Learned
SPP submitted that accused Abu Salem did not make a grievance of ill-
treatment, torture, coercion, threat, inducement, promise, allurement or
beating at the hands of the ATS Officers during the course of interrogation
before this Court or before the Chief Metropolitan Magistrate where he
was produced after recording his confession. In the submission of the
learned SPP the evidence of PW-12 DCP Shri Dattatray Karale, who has
recorded the confession of accused Abu Salem has passed the test of
credibility and, therefore, the same has to be relied upon without
semblance of any doubt.
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of all the Tests was negative. Learned Advocate Shri Pasbola submitted
that accused Abu Salem was brought back to Mumbai in the morning of
31/12/2005. Learned Advocate Shri Pasbola submitted that during the
course of Narco analysis, Brain Mapping and Lie Detector Test, certain
chemicals and drugs must have been injected in the body of the accused
and, therefore, the accused must not be in a fit state of mind to take a
decision. Learned Advocate Shri Pasbola submitted that PW-22 ACP Shri
Kisan Narayan Shengal took over the investigation on 27/12/2005 from
his predecessor ACP Shri Dhawale and for the first time he interrogated
accused Abu Salem in the afternoon of 31/12/2005 and therefore,
surprisingly, as per the case of the prosecution, the accused expressed his
desire to confess the crime. Learned Advocate Shri Pasbola in substance
submitted that the accused was put under tremendous pressure and stress
and due to continuous interrogation and other tests, the case of the
prosecution that accused Abu Salem volunteered to confess the crime
cannot be accepted.
197] The second plank of the submission of the learned
Advocate Shri Pasbola is on the point of the failure of the DCP Shri Datta
Karale PW-12 to comply the mandatory provisions of Section 15 of the
TADA (P) Act and Rule 15 of the TADA Rules. Learned Advocate Shri
Pasbola submitted that the warning, as contemplated u/sec. 15 sub-section
(2) of the TADA (P) Act, was not administered to this accused, when, as
per the case of the prosecution, this accused was produced before the DCP
Shri Datta Karale PW-12, after the reflection period was over. Learned
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Advocate Shri Pasbola submitted that while warning the accused about his
right the DCP Shri Karale PW-12 used the word “Aniwarya Nahi Hai”(vfuok;Z
ugh g S A ) which means “Not Compulsory” and not used the word
“Bandhankark Nahi Hai”( ca /kudkjd ugh gS A ) which means “Not binding”.
Learned Advocate Shri Pasbola submitted that on various other mandatory
requirements DCP Shri Datta Karale PW-12 has committed gross mistakes.
Learned Advocate Shri Pasbola, therefore, submitted that the confession of
accused Abu Salem is neither voluntary nor true. Learned Advocate Shri
Pasbola submitted that DCP Shri Datta Karale PW-12 reproduced the
confession on the basis of the draft submitted to him by the ATS Officers
and obtained the signatures of the accused by force and made his
signatures on the confession.
198] Accused Abu Salem has retracted his confession. I have
already mentioned that as far as retraction part is concerned, I would deal
with the retractions of accused Mehendi Hasan and accused Abu Salem
together to avoid repetition of certain facts and provisions of law. As far as
accused Abu Salem is concerned, at this stage, I am deciding the issue of
the voluntary and truthful nature of the confession of accused Abu Salem.
The job of the prosecution is very difficult as can be seen from the material
placed on record. The prosecution appears to have started from the
scratch to built its case and demonstrated that the confession of accused
Abu Salem is voluntary and true. It is undisputed that accused Abu Salem
was in the custody of the ATS Officers from 24/11/2005 onwards. As per
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the case of the prosecution, accused Abu Salem first time expressed his
desire to confess the crime on 31/12/2005 during the course of
interrogation by ACP Shri Kisan Narayan Shengal PW-22. It is the case of
the prosecution that when accused Abu Salem expressed the desire to
confess the crime, ACP Shri Shengal PW-22 brought this fact to the notice
of the Joint Commissioner of Police, A.T.S. Shri K.P. Rahguwanshi.
Exhibit-446 is the Note prepared and put up by ACP Shri Shengal PW-22
before the Joint Commissioner of Police, ATS, Mumbai for nominating a
competent officer for recording confession of accused Abu Salem. By order
dated 31/12/2005, the Joint Commissioner of Police Shri K. P.
Raghuwanshi nominated PW-12 Shri Dattatray Rajaram Karale to record
confession of accused Abu Salem u/sec. 15 of the TADA (P) Act. The Joint
Commissioner of Police wrote a letter at Exhibit-385 to the DCP Shri
Karale PW-12 directing him to record confession of accused Abu Salem.
Exhibit-386 is a letter written by DCP Shri Karale PW-12 to the
Investigating Officer ACP Shri Shengal PW-22 directing him to produce
accused Abu Salem before him on 02/01/2006 at 10.00 a.m. for recording
his confessional statement. It has come on record in the evidence of
PW-22 ACP Shri Shengal as well the evidence of PW-12 DCP Shri Dattatray
Karale that accused Abu Salem was produced before PW-12 DCP Shri
Karale on 02/01/2006 at 10.30 p.m..
199] Whether a particular confession is voluntary and true is
a question of fact. There cannot be any hard and fast rule or a straight
jacket formula to arrive at a conclusion about the truthfulness and
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voluntary nature of a confession. In order to record a finding of fact about
voluntary and truthful nature of the confession, the evidence led by the
prosecution, the admitted facts and all the relevant attending
circumstances need to be borne in mind. In order to find out the voluntary
nature and truthfulness of the confession of accused Abu Salem, according
to me, everything boils down to the evidence of PW-12 DCP Shri Karale
and the facts recorded in the confessional statement at Exhibit-387 . In
order to appreciate the submissions advanced by the learned Special
Prosecutor and the learned defence Advocate appearing for the accused, it
is necessary to minutely scrutinize the evidence of the prosecution and find
out the correct factual position. It may be noted at this stage that since the
accused from the day one of his custody made a statement before this
Court that he does not intend to make any confession and if any confession
is produced before Court, it would be against his wish and desire and,
therefore, extra care and caution is required while analyzing, appreciating
and considering the evidence led by the prosecution to establish that the
confession made by accused Abu Salem is voluntary and true.
200] PW-12 DCP Shri Dattatray Rajaram Karale unfolded in
his Examination-in-Chief the account of the events occurred before him in
connection with the recording of the confession of accused Abu Salem. In
his evidence he has deposed that on receipt of the direction from the Joint
Commissioner of Police, A.T.S., Shri K. P. Raghuwanshi, he (PW-12 DCP
Shri Karale) directed ACP Shri Shengal (PW-22) to produce accused Abu
Salem before him on 02/01/2006. PW-12 DCP Shri Karale has narrated in
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his evidence the account of the events occurred on the first date of the
production of accused Abu Salem before him and the record of the same
prepared and maintained by him. He has deposed that in order to ascertain
the correct factual position vis-a-vis the desire expressed by accused Abu
Salem to make a confession, he made preliminary enquiry with the
accused and then asked various questions to the accused. He has deposed
that before starting enquiry with the accused, he directed the Investigating
Officer and other officers to leave his chamber and told his peon to close
the door of his chamber. He has deposed that after closing the door of his
chamber by the constable, he informed the accused that he is no more in
the custody of the ATS Officers and was in his custody. In his evidence he
has reiterated almost all the facts recorded by him in the first part of the
confession and the preliminary part of the actual confession recorded, after
expiry of the reflection period and production of the accused Abu Salem
before him. It would, therefore, be convenient to go through the
confession and find out whether the mandatory requirements of Section 15
of the TADA (P) Act and Rule 15 of the TADA Rules were complied with or
not and also his satisfaction that accused Abu Salem was making the
confession voluntarily and not under any torture, threat, coercion,
promise, allurement, inducement, ill-treatment, beating etc..
201] Let me now see the first part of his confession. PW-12
DCP Shri Karale has recorded that accused Abu Salem was produced
before him at 10.30 a.m. as per his direction by ACP Shri Shengal (PW-22).
As per his direction, ACP Shri Shengal and other constables left his office.
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He took the accused in his custody and directed his constable Shri Dilip
Varadi to close the door of his cabin and instructed the said constable that
nobody should be allowed to come inside his cabin. PW-12 DCP Shri
Karale has recorded that he informed accused Abu Salem that since he was
conversant with Hindi, he would be asking him the questions in Hindi and
writing down the same in Hindi. The first question asked by PW-12 DCP
Shri Karale is his introduction with his Designation to accused Abu Salem.
The second question is with regard to the understanding to accused Abu
Salem that PW-12 was not concerned with the crime in which he was
arrested. The third question pertains to the information to the accused
that he was not in the custody of the Police, who had arrested him. The
fourth question pertains to the enquiry made by PW-12 DCP Karale with
accused Abu Salem about any misbehaviour with him during the course of
his police custody. The fifth question pertains to his name, education etc..
The sixth question is very important. The DCP Shri Karale PW-12 asked
accused Abu Salem why he was produced before him. The accused Abu
Salem told him (DCP Shri Karale PW-12) that he wanted to confess the
crime and, therefore, he was produced before PW-12. The seventh and
eighth questions asked to accused Abu Salem are in the form of statutory
warning, as contemplated u/sec. 15 sub-section (2) of the TADA (P) Act.
The DCP Shri Karale PW-12 informed the accused that he was not bound
to make a confession and despite this, if he makes a confession, it can be
used as evidence against him.
202] On perusal of the answers given by accused Abu Salem,
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reflect over his decision to make a confession and at the same time
informed him that during night he would be produced before him for
recording his confession. So, these are the questions put by the DCP Shri
Karale PW-12 to accused Abu Salem to know the state of mind of the
accused and find out that the accused was making confession voluntarily.
203] In the next paragraph the DCP Shri Karale (PW-12) has
recorded that he asked all the questions to the accused in Hindi. He wrote
down the questions and answers in Hindi. He read over and explained the
same to the accused in Hindi. He has further recorded that he informed
the accused that he would be produced before him at 22.00 hours in the
night. He has also recorded that he further informed the accused that he
was taken in his custody from the ATS Officers and he would be kept in his
custody till 03/01/2006. This first part of the confession bear the
signatures of the accused on every page as well as the signatures of PW-12
DCP Shri Dattatray Karale on every page.
204] Perusal of this first part of the confession in juxtaposition with
the Examination-in-Chief of PW-12, it is seen that PW-12 administered the
statutory warning to the accused that he was not bound to make a
confession and if he does so, then such confession could be used against
him as evidence. By asking these questions, PW-12 DCP Shri Karale made
accused Abu Salem aware that he was in his custody and not in the
custody of the ATS Officers, who were conducting the investigation in the
crime. PW-12 DCP Shri Karale, by informing accused Abu Salem that he
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was not concerned with the crime in which he was arrested, gave
sufficient warning to the accused to ensure that he (PW-12) was not the
part of the ATS and concerned with the investigation of the crime. It may
be noted at this stage that before recording the confession, the competent
officer must create a congenial and free atmosphere. The competent
officer must ensure that whatever decision the accused takes about the
confession must be taken in a free atmosphere. In order to create a free
atmosphere and to assure the accused that the officer recording the
confession is nowhere concerned with the crime is the most important
aspect. He must ask certain questions to the accused so as to create a
confidence in the mind of the accused that the officer before whom he is
produced is an independent officer. It may be noted that even a hard-core
criminal during the course of investigation and interrogation is bound to
loose his confidence and feel the stress. In order to ascertain the
voluntariness of the accused, the first thing that the competent officer is
required to do is to erase this stress and fear and bring back the confidence
of the accused before recording the actual confession.
205] Perusal of the first part of the confession reveals that
PW-12 DCP Shri Karale took abundant precaution to ensure the
compliance of the mandatory provisions of Section 15 sub-section (2) of
the TADA (P) Act. PW-12 DCP Shri Karale also ensured that appropriate
warning and instructions are given to accused Abu Salem to make him
aware of real state of affairs. The only aspect that PW-12 DCP Shri Karale
has missed and which has been made a bone of the contention is the
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information to the accused that if he declines to make a confession, then
he would not be sent back in the custody of the ATS Officers. The Court
has to consider the effect of this one failure on the part of PW-12 DCP
Karale on the point of the voluntary nature and truthfulness of the
confession. PW-12 DCP Shri Karale, in all fairness, in his cross-
examination has admitted this fact. Except this one warning, the questions
asked to accused Abu Salem on his first production in the morning of
02/01/2006 would show that accused Abu Salem was made to understand
that he was not bound to make a confession and if he makes a confession,
then it could be used against him as evidence. PW-12 DCP Shri Karale by
asking other questions created a free atmosphere. It is seen on perusal of
the first part of the confession that whatever the answers the accused gave
to the questions were in a free atmosphere. At this stage, it is necessary to
mention that even when accused Abu Salem was produced before the
learned Chief Metropolitan Magistrate on 03/01/2006, he did not deny the
contents of the first part of the confession. In view of this stand of the
accused before the learned Magistrate and the evidence adduced by the
prosecution, I do not see any reason to discard the first part of the
confession and the evidence led by PW-12 DCP Shri Dattatray Karale on
this part of the confession.
206] With this finding, it is now necessary to consider the
preliminary part of the proceeding recorded by the DCP Shri Karale PW-12
before starting the actual confession and the objections raised by the
defence to discard the confession in toto and the evidence of PW-12 DCP
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Shri Dattatray Rajaram Karale.
207] Perusal of evidence of PW-12 DCP Shri Karale and the first
part of the confession would reveal that when the officer asked accused
Abu Salem about the time required by him for reflection over his decision
to make a confession, the accused told the officer that half hour to one
hour time would be sufficient. The record further reveals that the
proceeding before the officer DCP Shri Karale PW-12 in the morning of
02/01/2006 was concluded at 11.00 a.m. DCP Shri Karale PW-12 gave
period to the accused to reflect over his decision to make a confession till
10.00 p.m. in the night on 02/01/2006 with an understanding that he
would be in his custody and not in the custody of the ATS Officers. It is
submitted on behalf of the accused that the reflection time granted by
PW-12 DCP Shri Karale was too short and, therefore, on this ground the
confession has to be condemned as 'involuntary'. The learned defence
advocate submitted that the tearing hurry shown by PW-12 DCP Shri
Karale for recording confession of accused Abu Salem on the very same
day by giving in adequate reflection time indicates that PW-12 DCP Shri
Karale had hand in gloves with the Investigating Officer. Before adverting
to this submission, it is necessary to look at the record of the proceeding
prepared by PW-12 DCP Shri Karale before starting actual recording of the
confession of accused Abu Salem on 02/01/2006 at 10.00 p.m.. PW-12
DCP Shri Karale has deposed in his evidence consistent with the facts
recorded by him being preliminary part of the proceeding conducted by
him on 02/01/2006. PW-12 DCP Shri Karale has deposed that after
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production of the accused before him, he took the accused in his custody
and told the other officers to leave his chamber. He ensured that, when
the accused and he himself were in his cabin, nobody was within the
hearing or seeing distance out of his cabin. Thereafter he ascertained that
the accused was not under any pressure and after satisfying that the
accused was not under any pressure he started asking questions to the
accused in Hindi.
208] The second question asked DCP Shri Karale to accused Abu
Salem is very important in the context of the objection raised on the point
of insufficient time granted to the accused to reflect over his decision to
make a confession. PW-12 DCP Shri Karale enquired with the accused
that whether he would like to have some more reflection period/time to
think over his decision to make a confession. Accused Abu Salem replied
in the negative and stated that the time granted by him (DCP Shri Karale
PW-12) was sufficient. The third question was asked by PW-12 DCP Shri
Karale to ensure whether during this period the accused was tortured,
beaten or threatened by anybody for making confession. The accused
answered this question in the negative and stated that he was confessing
the crime at his free will. By asking the fourth question the officer DCP
Shri Karale PW-12 wanted to know whether anybody had promised him of
lesser punishment or to become an approver for making the confession.
The accused replied in the negative. While answering fifth question the
accused stated that he was not lured by anybody to confess the crime. The
sixth question is very important from the point of view of the compliance
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of the mandatory provisions of Section 15 sub-section (2) of the TADA (P)
Act. By asking this question, PW-12 DCP Shri Datta Karale warned accused
Abu Salem that it was not compulsory for him to make a confession. While
asking this question, instead of using Marathi word “Bandhankarak Nahi
Hai”,(not bound) (ca /kudkjd ugh gS ), the officer has used the word “Anivarya
Nahin Hai”(not compulsory) (vfuok;Z ugh gS ). The Court would be required
to find out the literal meaning of Marathi words “Anivarya”(vfuok;Z ) and
“Bandhankarak” (ca /kudkjd ). PW-12 DCP Shri Karale further warned the
accused that despite the statutory warning if he makes a confession, then it
could be used as evidence against him. The answer of the accused
indicates that he understood this statutory warning. The question Nos. 8
and 9 were asked by PW-12 DCP Shri Karale to satisfy himself that the
accused was making the confession voluntarily despite administering the
statutory warning and without any pressure from anybody. The accused
answered the questions in the affirmative and stated that he was
confessing the crime voluntarily. The tenth question, which is the last
question asked by PW-12 DCP Shri Karale to the accused on that day, is
very important. The officer PW-12 DCP Shri Karale asked the accused
whether he would like to keep his friend, advocate, or relative present with
him while making confession. The accused Abu Salem replied in the
negative and declined the offer.
209] After asking all the questions, the officer DCP Shri Karale
PW-12 has recorded his satisfaction in the next paragraph. The officer has
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recorded that on the basis of the answers given to his questions by the
accused, he was satisfied that the accused was making the confession
voluntarily and without any pressure from anybody and, therefore, he
decided to record his confession. After this, the accused Abu Salem
narrated the facts and unfolded his involvement and the involvement of
the others in the commission of the crime, the nature of the conspiracy, the
place of conspiracy, the persons present in the conspiratorial meeting and
the object of the conspiracy. It may be mentioned at this stage that after
ascertaining the voluntary nature of the confession on the basis of the
evidence led by PW-12 DCP Shri Karale and preliminary part of the
proceeding recorded by PW-12 DCP Shri Karale, it would be necessary to
read the confession as a whole to find out whether it is voluntary and
depicts true account of the crime.
210] It is submitted that by using the word “Anivarya” (vfuok;Z )
instead of using the word “Bandhankarak”(ca /kudkjd ), the statutory warning
given to the accused was not in consonance with the mandate of Section
15 sub-section (2) of the TADA (P) Act. I have minutely perused the
evidence of PW-12 DCP Shri Karale. In his evidence, he has deposed that
before ascertaining the voluntariness of the accused to make a confession,
while recording the first part, he administered the warning, ascontemplated u/sec. 15 sub-section (2) of the TADA (P) Act and also
before starting actual recording of his confession, after cooling off period
granted to the accused was over. In his evidence he has deposed that he
told the accused that it was not compulsory for him to make a confession
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and despite this warning if he makes any confession, then it could be used
as evidence against him. At both the places, the answer of the accused
indicates that the accused understood this warning and then proceeded
further to answer remaining questions. In the first part of the confession,
while administering the statutory warning, the officer PW-12 DCP Shri
Karale has used the word “Bandhankarak”(ca /kudkjd ). The officer has
warned the accused that he was not bound to make a confession(bdckyh;k
c;ku ns uk vkids yh;s ca /kudkjd ugh g S ). While administering same statutory warning before starting actual recording of confession, the officer PW-12
DCP Shri Karale has informed the accused that it was not compulsory for
him to make a confession (bdckyh; k c; ku n s u k v fuo k; Z ug h g S). Accused
Abu Salem was conversant with Hindi and Urdu languages. It is
undisputed fact that the accused came to Mumbai prior to 1990. The
question is whether the word “Bandhankarak”(ca /kudkjd )(binding) and
“Anivarya” (vfuok;Z ) (compulsory) connotes same meaning or not.
211] PW-12 DCP Shri Karale has been subjected to searching
and grueling cross-examination to test his credibility on almost all the
aspects deposed to by him in his Examination-in-Chief and also the
confession recorded by him. On this point, the relevant cross-examination
is at Page 241 Para 31. PW-12 DCP Shri Karale has admitted that it is
necessary to impress upon the accused that he was not bound to make a
confession. He has admitted that the Marathi (meaning) synonym for
word “Not Bound” is “Bandhankarak Nahin”(ca /kudkjd ugh ). PW-12 DCP Shri
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Karale has admitted that this statutory warning is necessary when the
accused is produced before the officer for the first time and also before
starting actual recording of confession after cooling off period is over. At
Page No. 242 Para 32 PW-12 DCP Shri Karale has admitted that in the
second part of the confession, he has not used the word
“Bandhankarak”(ca /kudkjd ). The witness, after answering this question,
made a voluntary statement and stated that he used the word
“Anivarya”(vfuok;Z ) instead of the word “Bandhankarak”(ca /kudkjd ) and
according to him, both the words connotes same meaning. It is suggested
that the meaning of word “Anivarya Nahi” (vfuok;Z ugh ) is “Not Necessary”.
The witness has denied this suggestion. It is, therefore, necessary to find
out whether the words “Anivarya”(vfuok;Z ) and “Bandhankarak”(ca /kudkjd )
connotes same meaning or not. It is also necessary to find out whether
word “Anivarya”(vfuok;Z ) is synonym of word “Bandhankarak”(ca /kudkjd ).
212] First, it is necessary to find out the Dictionary meaning
of word “Anivarya” (vfuok;Z ) and word “Bandhankaraka”(ca /kudkjd ). For this
purpose, I have referred the Concise Law Dictionary “Vidhi
Shabdakosh”(Marathi-Engligh-English) by author Shri Vivek D. Joshi, 2nd
Edition 2005. The word “Anivarya” (vfuok;Z ) is at Page 18 of the dictionary.
The English meaning of the Marathi word “Anivarya”(vfuok;Z ) is
“compulsory”, “obligatory”. The Marathi word “Bandhankarak”(ca /kudkjd ) is
at Page 331 of this Dictionary. The English meaning of the Marathi word
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“Bandhankarak” (ca /kudkjd ) is, “binding”, “restrictive”, “obligatory”,
“coercive”. One of the English meanings of the Marathi word
“Anivarya” (vfuok;Z ) is, “compulsory”. It is, therefore, necessary to find out
Marathi meaning of the word “compulsory”. For this purpose, I have
referred the “Oxford English-Marathi Dictionary” (Engraji-Marathi
Shabdakosh) by author Ramesh V. Dhongde, New Edition 2003, 17th
Impression October, 2012. The Marathi meaning of English word
“compulsory” at Page 152 of the said Dictionary is, “Kelach Pahije Aasa”,“Anivarya”, “Saktine”, “Kayadyanusar Aavashyak”, “Bandhankarak”.
(^ d sykp i k fgt s vlk* ^vfuok; Z * ^l! h u s s ^ dk;n;ku qlkj vko";d* ^ c a / kudkjd*).
I have also referred the “Concise Oxford English Dictionary, Twelfth
Edition, Edited by Angus Stevenson & Maurice Waite, Reprinted 2012”, to
find out the meaning of English word “Compulsory”. The meaning of word
“Compulsory” at Page No.295 of the said Dictionary is, “required by law or
a rule”, “obligatory”, “involving or exercising compulsion”, “coercive”.
# #
213] In his evidence, the Officer PW-12 DCP Shri Karale has
stated that he informed the accused that it was not compulsory for him to
make a confession. In the second part of the confession, he has used the
word “Anivarya” (vfuok;Z ) instead of the word “Bandhankarak”(ca /kudkjd ).
I have undertaken the exercise, as stated above, to find out the literal
English meaning of the words “Anivarya” (vfuok;Z ) and
“Bandhankarak” (ca /kudkjd ). After considering the English meaning of the
Marathi words “Anivarya”(vfuok;Z ) and “Bandhankarak”(ca /kudkjd ), as stated
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above, I have no doubt in my mind that the words “Anivarya” (vfuok;Z ) and
“Bandhankarak” (ca /kudkjd ) connotes the same meaning or rather both the
words are synonym of each other. In my opinion, by using the word
“Anivarya” (vfuok;Z ) instead of word “Bandhankarak”(ca /kudkjd ) the Officer
PW-12 DCP Shri Karale has not committed any legal error. The Officer
PW-12 DCP Shri Karale was well within the parameters of law. It may
further be mentioned that the words used may not be important. What is
important is the understanding of the same by the accused. Here, in this
case, the Officer PW-12 DCP Shri Karale was satisfied that even by using
the word “Anivarya” the accused got a full notice that it was not 'obligatory'
or 'compulsory' or 'binding' on him to make a confession. In my opinion,
the word “Anivarya” (vfuok;Z ) cannot be given the meaning sought to be
suggested by the learned defence Advocate for the accused in the cross-
examination. I, therefore, hold that the word “Anivarya”(vfuok;Z ) and“Bandhankarak” (ca /kudkjd ) connotes the same meaning. The word
“Anivarya” (vfuok;Z ) is synonym for word “Bandhankarak” (ca /kudkjd ) and
vice-versa. Therefore, in my view the objection on this count cannot be
sustained.
214] The next objection is about insufficient time granted to
the accused to reflect over his decision to make a confession. In the
submission of the learned Advocate for the accused as pr the law at least
24 hours reflection period must be granted by the officer to the accused to
think over his decision to make a confession or not. The learned Advocate,
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taking the advantage of this short reflection period granted by the Officer
PW-12 DCP Shri Karale, submitted that PW-12 was in a tearing hurry to
complete the recording of the confession of accused Abu Salem because his
police custody was expiring on 03/01/2006 and the Police Officers were
apprehensive that on 03/01/2006 the Court might not extend the police
custody of the accused and, therefore, this exercise was undertaken in
tearing hurry. It is submitted that because of this, the decision making
process of the accused was severely affected and the accused was
immensely prejudiced by this act.
215] Learned Advocate for the accused relying upon the
decision in the case of Ranjit Singh alias Jita and others vs. State of
Punjab reported in 2004 Supreme Court Cases (Cri) 1253 , submitted
that when the officer had decided to grant cooling off period to the
accused to think over his decision to make confession and over the crime,
he should have granted him 24 hours cooling off time. It is necessary to
see the law laid down by the Hon'ble Supreme Court of India in this case
and its applicability to the case on hand. In this case before the Hon'ble
Supreme Court of India the recording officer had granted only half an hour
to the accused to think over before recording confessional statement.
While addressing this issue, the Hon'ble Supreme Court of India has held
that in case the recording officer of the confessional statement on
administering the statutory warning to the accused forms a belief that the
accused should be granted some time to think over the matter, it becomes
obligatory on him to grant reasonable time for the purpose to the accused.
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The Hon'ble Supreme Court of India has held that, in other words, the
cooling time that is granted has to be reasonable. What time should be
granted would of course depend upon the facts and circumstances of each
case. It is further held that, at the same time, however, when the time to
think over is granted that cannot be a mere farce for the sake of granting
time. In a given case, depending on facts, the recording officer without
granting any time may straight away proceed to record the confessional
statement but if he thinks it appropriate to grant time, it cannot be a
mechanical exercise for completing a formality.
216] The second Judgment relied upon by the learned
Advocate for the accused to substantiate the point of inadequacy of cooling
off time granted to the accused and prejudice caused to the accused
thereby is in the case of Adambhai Sulemanbhai Ajmeri & Ors. v. State
of Gujarat reported in 2014 ALL MR (Cri) 2627(S.C.). In this case
before the Hon'ble Supreme Court of India 15 minutes reflection period
was granted by the officer to the accused before recording the confession.
In Adambhai Sulemanbhai Ajmeri v. State of Gujarat the Hon'ble
Supreme Court of India has considered the decision in the case of State of
Rajasthan vs. Ajit Singh and others reported in (2008) 1 Supreme
Court Cases 601. In the case of State of Rajasthan vs. Ajit Singh and
others reported in (2008) 1 Supreme Court Cases 601, 15 to 30 minutes
cooling off period was granted to the accused before recording their
confessions. The Hon'ble Supreme Court of India in the said decision has
held that considering the long period of police custody, 15 to 30 minutes
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allowed to an accused person in any given case.
217] It is now necessary to see whether this 10 to 12 hours
cooling off period granted to accused Abu Salem was sufficient or not.
Neither the TADA (P) Act nor the Rules framed under the TADA Rules
provide for grant of cooling off period to the accused. However, in order to
erase the impression on the mind of the accused created during the course
of police custody, it is necessary to grant to the accused adequate cooling
off period to think over his decision to make confession of the crime.
218] In this case, after preliminary enquiry, PW-12 DCP Shri
Karale informed accused Abu Salem that he had made up his mind to grant
him cooling off period to think over his decision to make confession and
the crime, and asked him about the period he would want for reflection
over his decision to make a confession. The record reveals that the
accused stated before the officer that half an hour to one hour period
would be sufficient to think over his decision to make confession and the
crime. It has to be presumed that considering the long period of the
custody of the accused, the officer PW-12 DCP Shri Karale thought it
appropriate to grant to the accused a bit longer period to think over his
decision to make confession and accordingly granted almost 10 to 12
hours cooling off time. It may further be noted that before concluding the
proceeding, the officer PW-12 DCP Shri Karale specifically informed
him(Abu Salem) that herein after he would be in his custody and not in
the custody of the ATS Officers, who had arrested him. The facts recorded
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in the first part of the confession and in the second part of the confession
prima facie proved that PW-12 DCP Shri Karale after production of
accused Abu Salem before him ensured that the accused is made
comfortable and free atmosphere is created before proceeding further to
record confession of the accused. It is seen on perusal of all the questions
asked to accused Abu Salem during the preliminary proceeding by PW-12
DCP Shri Karale that he (DCP Shri Karale PW-12) assured to the accused
that he could think over his decision to make a confession without
bothering the investigating Agency and the nature of the custody. If two
hours or three hours had been granted in this case, then with certainty, the
said period could have been said to be inadequate period. But in this case
the officer has ensured that the accused is granted sufficient reflection
time. PW-12 DCP Shri Karale granted almost 12 hours to the accused as a
cooling off period to think over his decision to make a confession. It may
be noted that during the course of cross-examination, thorough enquiry
was made by the Advocate. It is seen on perusal of the answers given by
this witness at Page No. 233 Para 16 and Page 247 Para 43 that the witness
withstood the searching cross-examination and justified by giving rational
answers that 10 to 12 hours granted by him was reasonable and sufficient
period. In the backdrop of the evidence brought on record, the facts and
circumstances of this case and also the fact that accused Abu Salem is a
hard-core criminal, 10 to 12 hours cooling off period was more than
sufficient for this accused to think over his decision to make confession and
over the crime.
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219] In this case, there is one more circumstance, which
would weigh in favour of the prosecution on this point. As per the
direction of PW-12 DCP Shri Karale, accused Abu Salem was produced
before him at 10.30 p.m. on 02/01/2006. PW-12 DCP Shri Karale did not
take it for granted that the period of reflection granted to accused Abu
Salem was sufficient. This fact can be seen on perusal of the record of the
proceeding of second part before recording the actual confession. The
question No. 2 is very important. PW-12 DCP Shri Karale reminded
accused Abu Salem that he had given him cooling off period to think over
his decision. He made enquiry with the accused whether he would like to
have more cooling off time to think over his decision to make confession.
The accused stated that reflection time given to him was sufficient. In my
view, this is a very important circumstance in this case. PW-12 DCP Shri
Karale did not take it for granted that reflection period of 10 to 12 hours
granted to accused Abu Salem was sufficient and on that assumption
proceeded to record the confession of the accused. He made enquiry with
the accused. The accused stated before him that the reflection time
granted to him was sufficient. In my view, this evidence is more than
enough to conclude that the reflection time of 10 to 12 hours granted to
accused Abu Salem, in the facts and circumstances obtained on record, was
sufficient and adequate. The accused did not make any grievance about it.
It can, therefore, safely be said that the decision making process of the
accused Abu Salem was not in any way affected and as such there would
be no question of causing any prejudice to the accused by granting 10 to
12 hours reflection period to think over his decision to make confession.
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In view of the facts and circumstances and the evidence brought on record,
in my humble opinion, the proposition of law laid down in the Judgments
relied upon by the learned Advocate for the accused is of no help and
assistance to the case of the accused.
220] Learned Advocate for the accused pointed out that
PW-12 DCP Shri Karale has given his certificate/memorandum on a
separate page though half last page of the confession was blank. In the
submission of the learned Advocate this is a strong circumstance to make
the defence of the accused probable, that PW-12 DCP Shri Karale copied
the confessional statement already prepared by the ATS Officers and
obtained the signatures of the accused on the same and later on prepared
his certificate/ memorandum on a separate page. First and foremost, it is
necessary to see whether the certificate/memorandum appended to the
confession of the accused is in conformity with Rule 15 sub-rule (3) sub-
clause (b) of the TADA Rules. I have gone through the certificate/
memorandum. On going through the certificate/memorandum, which is
in Marathi language, I am fully convinced and satisfied that the
certificate/memorandum is in strict compliance of the provisions of Rule
15(3)(b) of the TADA Rules. Now, the main question that needs to be
addressed is with regard to the issue sought to be raised because his
certificate is on a separate page.
221] In order to come to a appropriate conclusion on this point, it is
necessary to see the evidence of PW-12 DCP Shri Karale. The relevant
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cross-examination is at Page 235 Para 19. PW-12 DCP Shri Karale has
admitted that the certificate of scribe of the confessional statement should
be immediately at the foot of the confessional statement itself. He has
admitted that more than half of the last page of confessional statement at
Exhibit-387 is blank. He has admitted in all fairness that it was possible
to commence the writing of certificate on the page which bore signature of
accused and his signature. The witness made a voluntary statement and
placed the explanation on record for undertaking the exercise in this
manner. He has stated that the blank space on the last page was not
sufficient to contain the entire certificate therefore the certificate is written
on the separate page. He has admitted that even back of the last page of
confessional statement of accused Abu Salem is blank. It is seen that this
explanation given by the witness appears to be probable. Taking
advantage of this situation, a suggestion has been put to this witness that
this certificate is blindly copied by him from the proforma and other
already concocted documents and simply tagged to the papers of the
confessional statement. This suggestion cannot be accepted.
222] If PW-12 DCP Shri Karale intended to copy the certificate, he
could have done it on the backside of the last page of the confession.
However, according to the defence, the witness has copied the confessional
statement on the basis of the draft prepared by the ATS Officers. There
was no hurdle for him to copy the certificate on the backside of the last
page of the confession. Therefore, in my view, this suggestion does not fit
properly in the teeth of the facts and evidence brought on record and more
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particularly the explanation offered by the witness. On the contrary, this
vindicates the stand of the prosecution that no hanky-panky was allowed
by PW-12 DCP Shri Karale while recording confession of accused Abu
Salem. PW-12 has not committed any wrong or mistake by writing the
certificate on a separate page. This fact would also vindicate the
contention of the prosecution that the record was not manipulated. If it
was a case of manipulation, then by putting more than one heads together
they would have given a deeper thought to such a separate certificate on a
separate page and would have made PW-12 DCP Shri Karale to write the
certificate at least on the backside of the last page of the confession of
accused Abu Salem. It may be mentioned that merely because of the fact
that the certificate is on a separate page, the doubt/objection raised by the
defence cannot be accepted.
223] In order to substantiate the submission that the
confession of accused Abu Salem is not voluntary and was not recorded in
a free atmosphere, learned Advocate Shri Pasbola pointed out certain other
circumstances. It is pointed out that this accused was in the custody of the
ATS Officers from 24/11/2005 till 31/12/2005. As per the case of the
prosecution, he did not express the desire to confess the crime till
31/12/2005. It is pointed out that between 24/11/2005 till 31/12/2005
all sorts of methods were applied to pressurize this accused to succumb to
the desire of the ATS Officers. It is pointed out that as per the order of this
Court, accused Abu Salem was taken to Bengluru on 28/12/2005 for
conducting Narco Analysis, Brain Mapping and Lie Detector Tests. All the
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three tests were conducted on this accused between 28/12/2005 till
30/12/2005. The accused was brought back to Mumbai in the morning of
31/12/2005. It is undisputed that the result of the said three tests is
negative. The accused did not give any answer to the question during the
course of those tests to incriminate him in the crime in any manner. It is
pointed out that during the course of the said three tests, the chemicals
and various drugs might have been injected in the body of the accused
and, therefore, without ascertaining whether the effect of those drugs and
chemicals has erased, PW-12 DCP Shri Karale started interrogation of the
accused. It is submitted that when the accused expressed his desire,
according to the Investigating Officer on 31/12/2005, during the course of
his interrogation in the afternoon, is a indication to suggest that the
accused must be under the influence of drugs and chemicals or not in a
position to take a decision due to injections of the drugs and chemicals in
his body. It is also pointed out that when the result of all the tests was
negative, there was no reason for the accused to separately express his
desire to confess the crime. It is submitted that the period of custody was
quite long. The accused was also subjected to interrogation during the
custody period. PW-12 DCP Shri Karale did not ask accused Abu Salem
separately that, when it occurred for the first time to him to confess the
crime. In order to wriggle out of this situation, ld.SPP pointed out that
there was a long gap of about 24 hours between the tests conducted on the
accused and the desire expressed by the accused to confess the crime
during the course of interrogation. Ld.SPP pointed out that the confession
of the accused was recorded on 02/01/2006 and, therefore, from
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31/12/2005 to 02/01/2006 the accused had an opportunity to quietly
think over his decision to confess the crime.
224] In this case there is no evidence to show that the senses
of the accused was affected by injecting the drugs and chemicals in his
body during the course of those tests. The drugs and chemicals injected
during the course of those tests are under the supervision of the expert. It
is common knowledge that over dose of chemicals and drugs can affect
one's senses but the effect of the same subsides within 24 hours. In this
case, the expert, who had conducted the tests on accused Abu Salem,
would not have administered extra dose of chemicals and drugs to make
the accused to lose his senses and push him at the edge of entering in a
'Coma' like situation. Therefore, if the accused had expressed his desire to
confess the crime on 31/12/2005 during the course of his interrogation,
after coming back from Bengluru to Mumbai in the morning of
31/12/2005 could not be a ground to sustain the submission that the
accused was not in his full senses to decide or to think rationally.
225] It may further be mentioned that the accused was not
immediately summoned by DCP Shri Karale PW-12 for recording his
confession. The facts were as submitted by the defence, then in a tearing
hurry, keeping all other work aside, DCP Shri Karale PW-12 would have
caused production of the accused before him on 31/12/2005 itself. But he
did not do that. He caused production of the accused before him on
02/01/2006. PW-12 DCP Shri Karale was also questioned on this delay of
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two days to cause production of accused Abu Salem before him for
recording his confession. PW-12 DCP Shri Karale has given a proper and
acceptable explanation. PW-12 DCP Shri Karale has stated that on
31/12/2005 and on 01/01/2006 on account of celebration of New Year, he
was busy in bandobast duty and, therefore, he could not spare time for
recording confession of accused Abu Salem either on 31/12/2005 or on
01/01/2006. This explanation cannot be discarded as explanation for the
sake of explanation. One who resides in Mumbai knows the enthusiasm of
the people and the nature of celebration on the eve of New Year. The
police has to keep round the clock vigil to avoid any untoward incident
either on 31st December or 1st January of New Year. If the DCP Shri Karale
PW-12 was playing in the hands of the ATS Officers, as submitted by the
defence, then, he could have kept all his bandobast and other assignments
aside and made himself available to record confession of the accused. It is
crystal clear that this fact indicates that the DCP Shri Karale PW-12 was
not acting under the thumb of the ATS Officers. The accused was
produced before the DCP Shri Karale(PW-12) on 02/01/2006 at 10.30
a.m.. It may be noted at this stage that, therefore, there was no question
of subsistence of the effects of the chemicals and drugs injected in the body
of accused Abu Salem to affect his senses. The accused on production
before DCP Shri Karale (PW-12) could have stated that on 31/12/2005
during the course of interrogation he could not think rationally due to his
senses being affected as a result of administration of the drugs and
chemicals in his body during the tests. The accused did not make any
grievance before PW-12 DCP Shri Karale. Therefore, on this point also I
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am not disposed to accept the submission of the defence that decision
making process of the accused was severely affected in peculiar
circumstances brought on record and, therefore, the desire expressed by
the accused to make confession and recorded before the DCP Shri Karale
(PW-12) could not be said to be voluntary.
226] Now, in order to consider some of the admissions given
by PW-12 DCP Shri Karale in his cross-examination, it is necessary to dwell
on those admissions in juxtaposition with the mandatory provisions of
Section 15 sub-section (2) of the TADA (P) Act and Rule 15 of the TADA
Rules. It is submitted that the conclusion reached by PW-12 DCP Shri
Karale that accused Abu Salem was making confession voluntarily is
factually incorrect. It is submitted that PW-12 DCP Shri Karale did not
ascertain the actual police custody period of the accused. The DCP Shri
Karale PW-12 did not inform the accused that if he decline to make
confessional statement, he would not be sent back in the custody of the
Investigating Officer. The DCP Shri Karale PW-12 did not ask accused Abu
Salem as to why he was making confession and tenor of the letter dated
31/12/2005 of the Joint Commissioner of Police Shri K. P. Raghuwanshi
addressed to DCP Shri Karale (PW-12) indicates that he directed the DCP
Shri Karale (PW-12) to record the confession leaving no option with the
DCP than to record the confession by hook or crook. The DCP Shri Karale
did not inform the accused that he was the Officer of the rank of
Superintendent and empowered to record confession u/sec. 15 of the
TADA (P) Act. It is necessary to see the answers and the explanation given
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by PW-12 DCP Shri Karale in his cross-examination about these points
raised by the defence Advocate. While considering the confession of
accused Mehendi Hasan, I have made certain observations with regard to
the cross-examination being double edge weapon and the effect of the
admissions given during the course of cross-examination both ways. In this
case, all the facts, which have not been brought on record and which,
according to the defence, were missed by PW-12 DCP Shri Karale while
ascertaining the desire of making voluntary confession by accused Abu
Salem, have been brought on record in cross-examination.
227] It is true that in the letter dated 31/12/2005 addressed
by the Joint Commissioner of Police Shri K. P. Raghuwanshi while
nominating PW-12 DCP Shri Dattatray Karale to record confession, the
phraseology used by him is 'direction' and not 'instruction' to record
confession. PW-12 DCP Shri Karale has admitted this fact in all fairness in
his cross-examination. However, he has added that the exercise
undertaken by him is not because of the direction of the Joint
Commissioner of Police Shri K. P. Raghuwanshi to record confession of the
accused. In this case, instead of using word 'direction' the Joint
Commissioner of Police, ATS, could have used the word 'instruction 'while
referring the accused to PW-12 DCP Shri Karale for recording his
confession. It may be noted that simply because of use of word 'direction'
in the correspondence to PW-12 DCP Shri Karale by the Joint
Commissioner of Police Shri K. P. Raghuwanshi would not make the
confession a mere farce. If PW-12 had proceeded straightaway to record
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confessional statement of the accused without making any enquiry with
him to ascertain his desire to confess the crime voluntarily and without
giving him cooling off period to think over his decision, then, this
submission would have to be accepted. But the factual situation is
completely different and it justifies the answer given by PW-12 DCP Shri
Karale that he did not record confession merely because of the word
'direction' used in the letter. He has stated that before undertaking the
exercise of recording confession of the accused, he on his own satisfied
himself on the basis of his enquiry made with the accused that he was
making confession voluntarily.
228] Perusal of the confession would reveal that before
starting actual recording of the confession, PW-12 DCP Shri Karale has
specifically stated that after making enquiry with the accused and after
administering the statutory warning to the accused, he was satisfied that
the accused was making confession voluntarily. Therefore, in the facts and
circumstances, much importance cannot be given to this aspect. While
dealing with the confession of accused Mehendi Hasan, I have discussed in
detail the mandatory requirements the competent officer is required to
observe before recording confession. I have already considered the
decisions of the Hon'ble Supreme Court of India in the Cases on this point
i.e.
i) S.N.Dube v. N.B.Bhoir and others
(2002) 2 Supreme Court Cases 254(not cited at bar);
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ii) Ayyub v. State of U.P. with Abdul Jabbar v. State of U.P.
2002 Supreme Court Cases (Cri) 673;
iii) Hardeep Singh v. State of Punjab
2004 ALL MR (Cri) 3428 (S.C.);
iv) Lilli alias Jagdeep Singh v. State of Rajasthan
2005 Supreme Court Cases (Cri) 822;
v) Mohd. Ayub Dar v. State of Jammu & Kashmir
2010(3) Supreme Court Cases (Cri)1350;
It is, therefore, crystal clear that before recording confession on the basis of
his enquiry the officer must be satisfied that the accused is making
confession voluntarily without any threat, coercion, pressure, allurement,
ill-treatment, inducement, promise. In order to come to that conclusion,
the competent officer has to administer statutory warning, as contemplated
u/sec. 15 sub-section (2) of the TADA (P) Act. After recording the
confession, the competent officer has to append the
certificate/memorandum, as provided under Rule 15 sub-rule (3) sub-
clause (b) of the TADA Rules. In this case, on the basis of the evidence, I
have already observed that this legal mandatory requirements have been
complied with by PW-12 DCP Shri Dattatray Karale.
229] At Page 240 Para 28 PW-12 DCP Shri Karale has
admitted that he had informed the accused that he was the officer of the
rank of the Superintendent and empowered to record confession.
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However, he has answered that he did not deem it important to record this
fact in the confession. At Page 241 Para 30, PW-12 DCP Shri Karale has
admitted in the cross-examination that he himself told the accused that he
was no longer in the custody of the ATS Officers. He has admitted that he
did not ask the accused when he was arrested and where he was kept. At
Page 243 he has admitted that it did not occur to him that he should ask
the accused as to when the thought of confessing the crime for the first
time occurred in his mind. At Page 244 Para 33 PW-12 DCP Shri Karale has
admitted that he would have handed over custody of the accused to the
ATS irrespective of whether he had made confession or not. This is
important admission. But, this admission cannot be read out of context.
First and foremost the question did not arise for PW-12 DCP Shri Karale to
hand over the custody of the accused back to the ATS Officers. He kept the
accused in his custody and after recording his confession ensured
production of the accused before a Magistrate as required by Rule 15 sub-
rule (5) of the TADA Rules. The facts recorded in the confession would
show that the officer specifically informed the accused that he was no
more in the custody of the ATS Officers, who had arrested him and that he
would be in his custody. The record further reveals that he gave strict
instructions to the Incharge of Borivali Police Station not to allow any
third person to meet the accused during the reflection period. It has also
come on record that in order to ensure that his directions were complied
with he paid visit to Borivali Police Station Lock-up where the accused was
kept. Therefore, in my view, these admissions have to be read in
juxtaposition with this factual situation.
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230] At Page 248 certain questions have been asked to PW-12
DCP Shri Karale to ascertain the precautions taken by him during the
cooling off period. He has admitted that he was aware that the accused
should get sufficient food, rest and sleep before recording his confession.
He has admitted that on the day of the confession the accused was
provided food between 1.30 p.m. to 2.00 p.m. and 7.30 p.m. to 8.00 p.m.
He has admitted that he got this information from PI Shri Mathadhikari.
He has also admitted that he got this information verified from the
accused. He has also admitted in all fairness that he did not record this
information in the proceeding of the confession because he did not deem it
important or relevant. When this fact was not a part of the record, the
cross-examiner would have decided whether to ask it or not. The cross-
examiner has taken the risk of testing the knowledge and the factual
situation from PW-12 DCP Shri Karale. PW-12 DCP Shri Karale has given
the answers. Now those answers are given on oath and as such has to be
treated as the admissions in the cross-examination. Merely because of the
failure to record the same, now cannot be made the bone of the
contention.
231] This fact would indicate that PW-12 DCP Shri Karale
was fully conscious of the seriousness of the matter and he took every
precaution to ensure that free atmosphere was created and the assurance
was given to the accused that he was before an independent officer, who is
not concerned with the investigation and was bound to take care of all the
things. This witness was recalled for further cross-examination. The
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answers given by this witness in his cross-examination, after recall, are
very important and on the basis of those answers one can jump to a
conclusion that this Officer took all possible care to ensure that accused
Abu Salem was made comfortable. He was kept in a lock-up where
nobody could pressurize and threaten him. This Officer on his own paid
visit to the Borivali Lock-up. He ensured the production of the accused
before the Magistrate on the next date with the envelope of the confession.
232] Besides, presuming for the sake of argument that all
these facts were required to be incorporated in the confession and ought to
have been recorded in the confession, the decision in the case of S. N.
Dube v. N. B. Bhoir and others reported in (2002) 2 Supreme Court
Cases 254 (not cited at bar) would not permit me to accept the
submissions made on behalf of the accused and accept that this was the
violation of the mandatory provisions of law and on account of this
violation the confession has to be discarded in toto. It is, therefore, seen
that satisfaction recorded by the officer cannot be doubted. PW-12 DCP
Shri Karale was subjected to grueling and searching cross-examination by
the Criminal Lawyers, who are the best in the profession. The cross-
examiner could not elicit admissions on record in his cross-examination to
create doubt about the credibility of his evidence vis-a-vis the compliance
of the mandatory provisions of law before recording the confession.
Similarly, the cross-examiner could not demonstrate to suggest that PW-12
DCP Shri Karale was playing in the hands of either the Joint Commissioner
of Police, ATS, Shri K. P. Raghuwanshi or ACP Shri Shengal, the
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Investigating Officer, in this case. On the basis of the above said
discussion, I am of the view that on the basis of the evidence adduced by
PW-12 DCP Shri Karale and the facts found from the confession of accused
Abu Salem, it can safely be said that the confession of accused Abu Salem
was recorded by complying with all the mandatory provisions of law.
Before recording confession, the Officer PW-12 DCP Shri Karale was
satisfied that accused Abu Salem was making the confession voluntarily.
233] In order to ascertain the voluntary nature and
truthfulness of the confession, it is necessary to bear in mind certain
undisputed facts in this case. In my opinion, the undisputed facts would
play a pivotal role in this case. All the undisputed facts have to be
considered in juxtaposition with the submissions made by the defence
Advocate that the confession of accused Abu Salem was the net result of
duress, threat, coercion, pressure, inducement, ill-treatment, promise,
allurement. I may now refer those facts.
234] Accused Abu Salem was a 'wanted accused' in Bombay
Bomb Blasts Case 1993. He was arrested in Portugal. The Government of
India was indulged in long drawn legal battle to seek extradition of
accused Abu Salem to India. After extradition of Abu Salem to India, he
was shown arrested in Bombay Bomb Blasts Case No.01 of 1993. Abu
Salem was one of the wanted accused in this case. Therefore, the
Investigating Officer by adopting due process of law prayed for the custody
of accused Abu Salem in C.R. No. 144 of 1995 registered at D.N.Nagar
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Police Station. Accused Abu Salem was produced before this Court on
24/11/2005. On the application of then Investigating Officer ACP Shri
Dhawale, he was remanded to Police Custody till 02/12/2005. Accused
Abu Salem is a high profile criminal and at that time wanted in various
cases. It appears from the record that with might and money at his
command he could afford the services of advocates from day one of his
production before this Court. Advocate appearing for accused Abu Salem
on 24/11/2005, ferociously opposed the prayer made by the ATS Officers
for police custody remand of accused Abu Salem.
235] On 24/11/2005, the Advocate appearing for accused
Abu Salem made a written application and opposed the police custody. It
was stated in the said application that there was every possibility of Police
Authorities using third degree treatment in order to harass the accused.
On 24/11/2005 itself the Advocate appearing for the accused made a
second application stating inter alia that Abu Salem does not have
intention to confess the crime and if any such statement is produced
and/or relied upon by the prosecution, the same may be deemed to have
been obtained by force, and contrary to the wishes of accused Abu Salem.
The Prosecutor filed the say to the said application contending that the
Advocate for the accused is presuming certain things and making baseless
allegations. It is, therefore, apparent on the face of the record that on the
first date of his production before this Court on 24/11/2005, through his
Advocate, accused Abu Salem made it clear that he did not want to confess
the crime. The accused was, therefore, acting even during his police
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custody under the advice of his Advocate.
236] The third application made on 24/11/2005 was made
to allow the accused to have Home food, Bedding, Medicines and other
day-to-day items. This application was rejected by the Court on the
ground that the accused was in police custody. The last and the most
important application made on 24/11/2005 is to seek permission for three
Advocates namely Advocate Mr. A.M. Saraogi, Mr. O.A. Siddiqui and Mr.
Rashid Ansari to meet accused Abu Salem once in a day during his police
custody. The Prosecutor opposed the said application on the ground that it
was an attempt to interfere in the investigation. Considering the
seriousness of the matter and the conditions for the extradition of accused
Abu Salem, this Court by order dated 24/11/2005 allowed this application
and granted permission to one of the Advocates, out of three Advocates
namely Advocates Mr. A.M. Saraogi, Mr. O.A. Siddiqui and Mr. Rashid
Ansari, to visit Bhoiwada Police Station in a day between 8.00 a.m. to 8.30
a.m. to take instructions from accused Abu Salem. They were granted
permission to talk with the accused for 15 minutes. It is seen on perusal of
the contents of the application that all possible care was taken by the
Advocate appearing for accused Abu Salem and by this Court to ensure
that all the rights of the accused are taken care of and the apprehension
expressed by him about third degree method and duress to compel him to
make confession is put to rest.
237] On 25/11/2005, Advocate Mr. A.M. Saraogi for accused
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Abu Salem made an application seeking production of the accused before
this Court, which was registered as M.A. No. 8 of 2005. In this
application, it was alleged that at the time of visit of Advocate Mr. Rashid
to accused Abu Salem, he found that the accused was severely beaten. The
accused was not allowed to sleep. He was not provided food. The
application was supported by the Affidavit of Advocate Shri Mohammed
Rashid. The Prosecutor filed the reply to the said application and denied
the contents made in the application and at the same time attached the
photo copies of the record of medical examination of the accused. In order
to ensure that the accused is not subjected to any ill-treatment and torture
during the course of interrogation and to verify the correct factual position,
this Court by order dated 25/11/2005 directed the Investigating Officer to
produce accused Abu Salem before the Court on 29/11/2005 at 4.00 p.m..
The Investigating Officer in compliance with the directions produced
accused Abu Salem before this Court on 29/11/2005 at 4.00 p.m. Special
Prosecutor, IO, ACP Shri Dhawale, Advocate Shri Saraogi and Advocate
Shri Siddiqui were present before the Court. The roznama of this Court
dated 29/11/2005 would reveal that this Court made enquiry with the
accused to verify the correctness of the statements made in the application.
The accused made a statement before this Court that he has no complaint
about the eatable provided by police and the place where he was put for
interrogation. The roznama further reveals that from the demeanor of the
accused, my predecessor found that the accused wanted to tell something
to the Court in the absence of the police and the Advocates. My
predecessor, therefore, directed production of the accused in the chamber.
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The record reveals that my predecessor on production of accused Abu
Salem in the chamber made enquiry with the accused. During the course
of said enquiry the accused made a grievance that so many officers were
interrogating him and because of which sometimes he used to become
restless. Accused Abu Salem did not make complaint of any ill-treatment,
torture or beating at the hands of the police. Considering this grievance
made by the accused, my predecessor directed the Investigating Officer
that he himself and/or PI Shri Deshmukh should only interrogate the
accused and no other officer should interrogate the accused and adjourned
the proceeding. It is, therefore, apparent on the face of the record that
statements made in the application dated 25/11/2005 by advocate Mr.
Saraogi were found factually incorrect. It may be noted that this is clear
indication that every now and then an attempt was made by the Advocate
for the accused to place on record certain facts, which either did not
happen or exist. It is crystal clear that accused Abu Salem had the benefit
of legal advice from day one of his production to take care of his case and
all case related aspects.
238] On 30/11/2005 Advocate for accused Abu Salem made
an application seeking direction to the appropriate authority to register
complaint about unauthorized visit of brother of Pradeep Jain i.e. Sunil
Jain and his companions and also presence of eight officers for the purpose
of interrogation and threats given by Sunil Jain to the accused. The
Prosecutor filed reply to the said application on 02/12/2005 denying all
the statements made in the application. It was contended in the reply that
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false allegations were made in the application with a view to change the
nature of the custody of the accused. On 02/12/2005 the accused was
produced before this Court at 4.10 p.m.. The roznama dated 02/12/2005
reveals that this Court made enquiry with the accused on his production.
At that time the accused did not make any complaint of ill-treatment or
torture at the hands of police. The applications were decided by passing a
detail order by this Court on 02/12/2005. This Court did not find any
substance in the allegations made in the application dated 30/11/2005.
This Court taking note of all the facts, granted police custody to the
accused till 17/12/2005. At this stage, it is necessary to mention that the
Advocate appearing for the accused was extra and over cautious. He
placed on record all the facts including some of the facts contrary to the
factual situation. It also indicates that in the form of three lawyers accused
Abu Salem had a protective cover and on every day for 15 minutes one of
the Advocates would meet him. It appears that the Advocates had created
a picture before the Court that the accused was subjected to merciless
beating, ill-treatment and torture. However, when the Court verified this
fact from accused Abu Salem, he did not make any complaint of ill-
treatment or torture at the hands of the ATS Officers.
239] On 05/12/2005, Shri Abu Lais and Shri Taqiuddin,
brothers of accused Abu Salem, made an application through Advocate
Shri Saraogi to allow them to meet accused Abu Salem to know his welfare
and his condition. By order dated 9/12/2005 this Court granted
permission to Abu Lais, brother of accused Abu Salem, to meet him. On
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09/12/2005, Advocate Shri Saraogi moved draft bail application and made
a statement before this Court that the accused had instructed him to file
bail application and further requested the Court to depute any officer of
this Court to meet Abu Salem and verify as to whether he has instructed
his Advocate to file such bail application or not. This Court accordingly
deputed Registrar (Sessions) with the draft bail application to meet
accused Abu Salem and verify whether the accused had instructed the
Advocate to file Bail Application and obtain his signature on the Bail
Application, if the accused is prepared to sign it. The Registrar(Sessions)
filed his report stating that Abu Salem told him that he had not instructed
his Advocate to file bail application and refused to sign the draft bail
application.
240] On 17/12/2005 the accused was produced before this
Court as his police custody was expiring. On 17/12/2005 the Advocate
appearing for the accused was present in the Court. On 17/12/2005 the
accused did not make any complaint of ill-treatment, beating or torture at
the hands of the ATS Officers during police custody. After considering the
prayer made by the Investigating Officer, the Court extended the police
custody till 03/01/2006. On 17/12/2005 his police custody was expiring.
If the accused had been threatened, ill-treated, beaten or tortured at the
hands of the ATS Officers during the course of investigation, the accused
could have made a grievance before this Court.
241] In this case, the investigation was a real challenge
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before the Investigating Officer. The accused Abu Salem was not an
ordinary criminal. Accused Abu Salem took every precaution at every
stage to ensure that he is not deprived of the legal advice. On
23/12/2005 the prosecutor made an application before this Court seeking
permission of the Court to allow the prosecution to conduct Narco
Analysis, Brain Mapping and Lie Detector Test on accused Abu Salem.
Accused Abu Salem on 22/12/2005 itself had informed this Court
regarding his consent for the tests proposed by the Investigating Officer.
By order dated 23/12/2005 this Court granted permission to Investigating
Agency to take accused Abu Salem either to Pune or to Bengluru for
conducting Narco Analysis, Brain Mapping and Lie Detector Tests. The
accused Abu Salem was taken to Bengluru on 28/12/2005 for conducting
the tests. All the three tests, according to the prosecution, were conducted.
However, the result of the tests was negative, in the sense that the accused
did not admit his involvement in the crime. Accused Abu Salem was
brought back to Mumbai in the morning of 31/12/2005.
242] The accused, as per the case of the prosecution, during
the course of interrogation in the afternoon by ACP Shri Shengal (PW-22),
expressed his desire to confess the crime. ACP Shri Shengal, therefore,
submitted a note to the Joint Commissioner of Police, ATS, Mumbai Shri
K.P. Raghuwanshi and requested for nomination of DCP rank Police Officer
to record confession of accused Abu Salem. The DCP Shri Karale PW-12
was nominated by the Joint Commissioner of Police, ATS, Mumbai Shri
K.P. Raghuwanshi to record confession on 31/12/2005. The DCP Shri
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Karale PW-12 instructed the Investigating Officer ACP Shri Shengal
(PW-22) to produce accused Abu Salem before him for recording his
confession on 02/01/2006. The DCP Shri Karale (PW-12) recorded
confession of accused Abu Salem on 02/01/2006. As per the direction of
DCP Shri Karale(PW-12), on 03/01/2006 accused Abu Salem along with
the envelope containing the confession of accused Abu Salem was
produced before learned Chief Metropolitan Magistrate, Mumbai by PI Shri
Mathadhikari of Borivali Police Station. On production of the accused
before the learned Chief Metropolitan Magistrate, Mumbai, the learned
Magistrate made enquiry with accused Abu Salem. The record of
proceeding conducted before learned Chief Metropolitan Magistrate
reveals that accused Abu Salem did not make a complaint of beating, ill-
treatment, torture, coercion, pressure, inducement, promise, allurement,
threat during the course of interrogation by the ATS Officers as well as by
the DCP Shri Karale PW-12 while recording his confession. It is seen on
perusal of the record of the proceeding before the learned Chief
Metropolitan Magistrate that accused has partly admitted the confession
and partly denied the confession. As far as this issue is concerned, I
propose to deal with the same separately while addressing the issue of
retraction of the Confessions by accused Abu Salem and accused Mehendi
Hasan.
243] After completion of the proceeding before the learned
Chief Metropolitan Magistrate, Mumbai, PI Shri Mathadhikari produced
accused Abu Salem before this Court. Perusal of roznama of this Court
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dated 03/01/2006 would reveal that on his production the Court made
enquiry with accused Abu Salem. The accused did not make any
complaint of ill-treatment or torture at the hands of the ATS Officers
during the course of interrogation as well as a complaint of ill-treatment or
torture by DCP Shri Karale PW-12 at the time of recording of his
confessional statement. The accused was remanded to judicial custody till
31/01/2006.
244] There is one more circumstance, which needs to be
noted at this stage. On 10/01/2006, the Investigating Officer ACP Shri
Shengal (PW-22) made an application before this Court for granting police
custody to accused Abu Salem till 22/01/2006. The accused filed his say to
this application on 10/01/2006 and opposed the prayer made in the
application by the prosecution. Various contentions were raised in the
reply including the torture and ill-treatment meted out to the accused
during the course of interrogation by the Investigating Officer. The
Investigating Officer had stated the reasons in the application for seeking
further police custody of the accused, though accused Abu Salem was
remanded to judicial custody on 03/01/2006. My predecessor, after
hearing the arguments of the learned Prosecutor and the Advocate
appearing for the accused, was pleased to allow the application made by
the prosecution and granted police custody to accused Abu Salem till
17/01/2006. My learned predecessor elaborately dealt with the objections
and the grievance made in the reply by accused Abu Salem. My
predecessor did not find substance in those objections and grievance made
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in the reply. The order dated 12/01/2006 would speak for itself on this
issue. On 17/01/2006 accused Abu Salem was produced again before this
Court and he was remanded to judicial custody till 31/01/2006. From
31/01/2006 judicial custody of the accused was extended from time to
time till filing of the supplementary charge-sheet on 28/04/2006. It,
therefore, appears on record that before filing chargesheet, accused Abu
Salem did not make any grievance about ill-treatment and torture either at
the hands of the ATS Officers during the course of interrogation or at the
hands of DCP Shri Karale (PW-12) while recording his confession. The
above stated facts are very relevant and go to the root of the aspect of the
voluntary and true nature of the confession of accused Abu Salem.
245] All the above stated admitted facts coupled with the
consistent and cogent evidence of PW-12 DCP Shri Karale indicate that
accused Abu Salem was not forced, ill-treated, tortured, pressurized,
coerced, lured, promised, beaten etc. to confess the crime. It may be
mentioned at this stage that every step and action of accused Abu Salem
during the course of his interrogation by the ATS Officers was under the
legal advice and, therefore, it was very careful and measured. During the
course of his police custody, every day for 15 minutes in the morning
between 8.00 a.m. to 8.30 a.m. one Advocate was allowed to meet accused
Abu Salem. It is seen on perusal of the record and undisputed facts that
the enthusiasm and the concern about accused Abu Salem expressed by
the Advocate was more than the one expressed by accused Abu Salem for
himself. The record reveals that whenever such grievance or allegation
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was made by the Advocate for accused Abu Salem before this Court, this
Court counter checked it by summoning accused Abu Salem before this
Court. But the accused did not stand by the grievance made by his
Advocate about ill-treatment, torture and beating to him at the hands of
the ATS Officers. It may be mentioned that with this kind of legal advice
and to some extent assurance created in the mind of the accused by this
Court by ensuring his safety, this accused would not have hesitated to
make a grievance of ill-treatment, torture, coercion, pressure, allurement
etc. by the ATS Officers during the course of interrogation. He had an
opportunity to make a complaint/grievance of ill-treatment, torture,
coercion, pressure, allurement, beating, inducement, promise etc.
whenever he was produced before this Court. But the record reveals that
he did not do so.
246] It may further be noted at this stage that even later on
when he started making the grievance, he failed to explain as to why he
did not feel it appropriate and comfortable to make a grievance of ill-
treatment, torture, coercion, pressure, allurement, beating, inducement,
promise etc. by the Investigating Officer during the course of his
interrogation. It may be mentioned that with this kind of legal advice on
every day the accused was placed in a advantageous position. When the
accused was brought back from Bangluru to Mumbai, he had a meeting
with his lawyer in the morning. It has to be presumed that the accused
and his lawyer would have deliberated on the events occurred between
28/12/2005 to 31/12/2005. It may be noted that despite this legal
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advice, accused Abu Salem decided to confess the crime. In this factual
background, we can get the answer for the change of mind by accused
Abu Salem to confess the crime. All the above stated facts would suggest
that the accused desired to confess the crime due to sheer remorse,
repentance and contrition. It may be noted that ghost of the crime
committed by accused always dwell in his heart and mind. A hardened
criminal is not a demon. He is a human being. Such a crime committed
even by a hardened criminal becomes a burden to carry on for a long time.
In this case, the crime was not a simple murder by any standard. By
committing murder, the entire family and its dreams were shattered and
destroyed. The accused during the course of his police custody could have
visualized the plight of the widow of Pradeep Jain and brutality of the
crime committed by him. The loss of Pradeep Jain was permanent loss to
the family. This could be the only reasonable judicial inference for this
accused to express his desire to confess the crime despite having the best
possible legal advice on day to day basis. Therefore, I do not see any
admission on the part of PW-12 DCP Shri Karale to create doubt about the
voluntary nature of the confession. Similarly, PW-12 DCP Shri Karale while
recording the confession complied with all the mandatory provisions of
Section 15 of the TADA (P) Act and Rule 15 of the TADA Rules. There are
certain things which he could have placed on record, but, in the backdrop
of the law laid down by the Hon'ble Supreme Court of India in Case S. N.
Dube v. N. B. Bhoir and others reported in (2002) 2 Supreme Court
Cases 254 (not cited at bar), this cannot go to the root of the matter and
vitiate the entire proceeding.
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definitely caught somewhere on some points touching the recording of the
confession of accused Abu Salem by him. Independent appreciation and
assessment of evidence of PW-12 DCP Shri Karale, certain undisputed facts
noted above and relevant part of the confession at Exhibit-387 indicate
that the accused made the confession voluntarily without any threat,
coercion, ill-treatment, undue influence, promise, inducement, pressure,
allurement, torture, beating etc.
248] At this stage, it is necessary to point out another
important circumstance having bearing with the defence of the accused
that his statement was drafted by the ATS Officers and it was simply copied
by DCP Shri Karale (PW-12). The statement of Jyoti Jain (PW-9) was
recorded on 30/11/2005 before the confession of the crime by accused
Abu Salem on 02/01/2006. In her statement, PW-9 Jyoti Jain had
disclosed the incident occurred on the 13th day ceremony of the death of
her husband Pradeep Jain. Accused Abu Salem has not admitted this fact
in his confession. If the confession of accused Abu Salem was concocted
and/or prepared on the basis of the material collected during the course of
investigation by the ATS Officers, then the ATS officers would not have
missed to incorporate this important fact in the confession of accused Abu
Salem. Nothing would have prevented the ATS Officers from incorporating
this fact in the confession of accused Abu Salem. It may be mentioned that
if the confession had been the concoction of the police/ATS Officers, then
in all certainty, they would have incorporated this fact in the confession of
accused Abu Salem because by that time the ATS officers knew that this
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facts was disclosed by PW-9 Jyoti Jain for the first time in her statement.
This is one more factor to negative the defence of the accused about
concoction or drafting of his (Abu Salem) confession by the ATS Officers
on the basis of the material and evidence collected during the course of
investigation. It may be mentioned that this important fact would go to
the root of the aspect of the voluntary nature of the confession of accused
Abu Salem. In the backdrop of the above stated facts, one can positively
say that the evidence of DCP Shri Datta Karale (PW-12) is worth credible
and acceptable on the point of the disclosure of all the facts before him by
accused Abu Salem vis-a-vis voluntary nature of the confession.
249] Before proceeding to consider the actual confession of
accused Abu Salem, it is necessary to briefly see the evidence of PW-22
ACP Shri Shengal and completely rule out the possibility of any torture,
inducement, threat, pressure, coercion, ill-treatment, undue influence,
promise, allurement, beating etc. being applied by PW-22 ACP Shri
Shengal and as a result thereof, accused Abu Salem confessed the crime.
PW-22 ACP Shri Shengal has admitted at Page 462 that no important
evidence could be discovered by conducting those tests. He has admitted at
Page 465 that he did not produce the accused before Magistrate to record
the confession because under TADA(P) Act the confession is recorded by
DCP. I have minutely perused his cross-examination touching the aspect of
the confession of accused Abu Salem. On going through his cross-
examination, I do not see any material being elicited in his cross-
examination to substantiate the case of the defence that the confession
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made by accused Abu Salem was not voluntary and it was the net result of
torture, inducement, threat, pressure, coercion, ill-treatment, undue
influence, promise, allurement, beating etc. at the hands of the
Investigating Officer. In view of the above said appreciation and analysis
of the evidence, I am of the opinion that the prosecution has proved that
accused Abu Salem made the confession voluntarily without any torture,
inducement, threat, pressure, coercion, ill-treatment, undue influence,
promise, allurement, beating either by the Investigating Officer or by DCP
Shri Karale PW-12. It is now necessary to see the confession of accused
Abu Salem to find out the truthfulness and also voluntary nature of the
same. At this stage, it is necessary to mention that later on accused Abu
Salem by making a separate application retracted his confession. Whether
the retraction is after-thought or not is an important issue and that will be
dealt with later on as stated above.
250] This would now take me to consider the actual
confession made by accused Abu Salem and the facts disclosed by the
accused relating to this crime. Accused Abu Salem is the main master
mind in this crime. Accused Abu Salem was absconding. He was a wanted
accused in Bombay Bomb Blasts Case 01 of 1993. At the relevant time he
was absconding and had settled in Dubai. On the basis of the evidence
brought on record it appears that Dubai appears to be the heaven and the
safe place for the hard-core criminals, who are absconding in major
Terrorists Cases in India. Despite absconding and having based in Dubai,
accused Abu Salem did not stop his activities. It may be mentioned at this
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stage that Mumbai is a commercial capital of India. Accused Abu Salem, a
one time village boy, left his village in search of some petty job in this
wonderful Metropolis. It can be seen that after landing his foot on the soil
of Mumbai and after getting the feel of glitteraty, it appears that he started
dreaming high and mighty. With the passing month and years, it appears
that brick by brick he established his 'Empire' as a 'Underworld Don'.
Cutting this discussion short, it is necessary to see the broad spectrum of
his confessional statement. The broad spectrum of the confession of
accused Abu Salem can be summarized as follows.
251] BROAD SPECTRUM OF CONFESSION OF ABU SALEM
i) Since 1990, he came in contact with Aziz Bilakia, who was
engaged in smuggling of gold and Hawala racket and started
selling gold and got involved in passport and Visa work. Healso came in contact with one Abu Kalam and through him, he
became very close to accused Mohd. Hasan @ Sunny, who
later on started working as his driver on Maruti 800 car.
ii) He started his office in Hasnabad Lane in Santacruz, where
Ali Dadhi, Riyaz Siddiqui, accused Mohd. Hasan @ Sunny,
Naeem T.R. (Approver in this case) and Shaukat Kadia would
frequent there. He would receive phone calls in this office
from Anees Ibrahim and Aziz Bilakia.
iii) In March, 1993 after serial bomb blast in Mumbai, as per the
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information received from Aziz Bilakia on phone, he ran away
from Mumbai alongwith his wife Samira Jumani and first
went to his native town and from native town, went to Dubai
in November, 1993.
iv) After going to Dubai, he started residing at the house of Aziz
Bilakia and was visiting Anees Kaskar's office situated in Pearl
Building, 12th floor, Deira, Dubai. He and Anees were
threatening people in Mumbai and used to extort money from
them and Sunny @ Mehendi Hasan and his companions were
assisting him in these crimes. His office was equipped with
two telephone connections, having No.009714 - 242939 and
009714 - 226670.
v) His aides and Anees were supplying revolvers, pistols and
bullets in Bhendi Bazar office and he used to provide these
weapons to shooters through accused Sunny @ Mehendi
Hasan (co-accused in this case), his associates/aides Salim
Haddi, Salim Tukaram, Uday Pawar, Rajesh Igwe, Sanjay
Kadam, Shekhar Kadam, Shubash Bind, Sunil Nair, Gajjabali,
Brijesh Kumar @ Tiger, Rafiq @ Papu, Nizam and several
other persons who were working at his and Anees command.
vi) He was giving description of accused Sunny to the persons
delivering goods. Salim Haddi and Hasan Ali @ Sunny used
to make phone calls to him from Chembur. He used to kill the
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persons who would fail to pay money to him by firing through
his men. Naeem T.R. (Approver) was sending the extorted
money to one Abdulla of Dunccan Road through Dr. Arshad
and the said Abdulla used to send this money in Dubai to him
and Anees. He used to collect the said Hawala money in
Dubai alongwith Vinu Verma, witness in this case (PW No.3).
vii) He has admitted that he has caused killing of several persons
in Mumbai through his shooters.
viii) Co-accused Hasan Ali @ Sunny informed him that he was
being searched by police and, therefore, he made
arrangements to call Hasan Ali @ Sunny to Dubai in
September, 1994.
ix) The co-accused Riyaz Siddiqui was staying in Dubai and used
to come to his office and narrate the dispute about Kol Dongri
plot and had also provided to him the telephone number
(6201996) of Ashok Jain, brother of the deceased Pradeep
Jain. On being informed about this dispute by Riyaz Siddiqui,
he told Riyaz Siddiqui to call Shaukat Kadia to Dubai.
x) In November, 1994 Salim Haddi came to Dubai and started
residing with him and Sunny and he introduced Salim Haddi
to Riyaz Siddiqui and Shaukat Kadia.
xi) Shaukat Mistry used to tell him that a plot of Subedarsingh
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Yadav at Kol Dongri was purchased by Ashok Jain, owner of
Kamla Constructions by making meager payment to milk men
and have constructed 3 to 4 buildings and was also insisting
all those milk men to vacate remaining land without paying
any consideration to them. Shaukat Mistry also informed him
that, if the said land was taken in possession and sold to some
other builder, the accused Abu Salem would get profit of
crores of rupees.
xii) On being informed about this fact by Shaukat Mistry, he
decided that, if Ashok Jain does not follow him, then any of
his brothers would be killed in order to frighten Ashok Jain.
xiii) In the meeting a decision was accordingly taken and the job of
each one was chalked out. It was decided that Abu Salem and
Anees will threaten Jain brothers on phone. Riyaz Siddiqui,
co-accused will create terror in the mind of Jain brothers by
making phone calls to them and telling them how dangerous
Abu Salem is and advising Jain brothers to follow his
instructions.
xix) It was decided in the meeting that Shaukat Mistry would meet
Jain brothers alongwith Naeem Khan (Approver) in Mumbai
and would convey all the details and information to Abu
Salem. It was also decided that in case of any need, accused
Mohd. Hasan @ Sunny alongwith Salim Haddi and other
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persons will attack any of the Jain brothers.
xv) After this meeting, he informed Naeem T.R. i.e. Approver
about their plan on phone.
xvi) As per their plan, he started threatening Ashok Jain and his
brothers on phone. Riyaz Siddiqui was making phone calls to
Jain brothers and was keeping Abu Salem informed about it
and was advising Jain brothers to follow Abu Salem's
commands.
xvii) Naeem Khan (Approver) and Shaukat Kadia were meeting
Jain brothers in Mumbai and were informing him (Abu
Salem) about all the details of the meeting on his Dubai phone
No. 009714 - 226670 and 009714 - 242939.
xviii) In the last week of January, 1995, he (Abu Salem) made a
phone call to Naeem i.e Approver and informed him about his
talk with Ashok Jain and instructed Naeem to collect Rs.10
lakhs per month from Ashok Jain. Pursuant to this
information, Naeem T.R. (Approver) collected Rs.10 lakhs
from Ashok Jain and informed Abu Salem about the receipt of
this amount.
xix) Abu Salem advised Naeem T.R. to keep Rs.2 lakhs and send
remaining Rs.8 lakhs by Hawala through one Abdulla at
Dunccan Road.
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xx) In January, Ashok Jain paid Rs.10 lakhs, but he did not pay
further installments and, therefore, he and Anees were
repeatedly making phone calls to Ashok Jain. Still Ashok Jain
was avoiding to pay money on one pretext or the other. In the
last week of February, 1995, he made a phone call to Ashok
Jain at his residence, which was picked up by a woman
and later on it was transferred to Pradeep Jain and,
thereafter, Pradeep Jain abused Abu Salem. When Pradeep
Jain abused Abu Salem on phone, Abu Salem also threatened
and abused him. When this incident took place in his office,
Riyaz Siddiqui was also present there.
xxi) After this incident of phone call, he and Anees decided to kill
Pradeep Jain so that the remaining amount would be
recovered as well as their terror will be created in the minds of
the persons from film and building construction line and their
trade of extorting money would become easy.
xxii) On 1st or 2nd March, he send message on pager of Naeem TR.
and when Naeem T.R. contacted him, he made an inquiry
with Naeem as to who Pradeep Jain was and when Naeem
T.R. explained him about Pradeep Jain, he immediately sent
pager message to Sunny. When Sunny made a phone call to
him from Kolpahur, he instructed Sunny to come to Mumbai
and contact Salim Haddi and then contact him in Dubai.
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xxiii) He informed Mehendi Hasan @ Sunny that Ashok Jain's
brother Pradeep Jain was to be killed. On the next day Sunny
and Salim Haddi made a phone call to him and he instructed
both of them that Pradeep Jain was to be eliminated as per
the plan and instructed them to make a preparation for that.
xxiv) He instructed Sunny to go to Hotel Moti Mahal, S.V. Road,
Andheri and meet Naeem T.R. (Approver) and take money
from him. He also simultaneously informed Naeem T.R. to
meet Sunny in Hotel Moti Mahal at 4.00 p.m. and give him
money.
xxv) As per his instructions, Naeem T.R. (Approver) paid Rs.1 lakh
to Sunny and confirmed it by making a phone call. On the
next day, Mehendi Hasan @ Sunny called him and he
instructed Sunny to take the delivery of weapons from
Shalimar Hotel, Bhendi Bazar. Sunny did it accordingly and
informed him about the receipt of the weapons on phone.
xxvi) He then instructed Mehendi Hasan @ Sunny to go to Ramdev
Hotel at Sion and handover the weapons to Salim Haddi. He
also informed Salim Haddi to go to Ramdev Hotel, Sion to
collect the weapons from Mehendi Hasan @ Sunny. In the
evening of the same day, Mehendi Hasan @ Sunny again
made a phone call to Abu Salem and asked for a person who
would assist Salim Haddi in identifying Pradeep Jain.
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xxvii) Abu Salem instructed Mehendi Hasan @ Sunny to call him
after sometime and in the meanwhile he instructed Riyaz
Siddiqui on phone to ask Shaukat Kadia to meet Salim Haddi
in Andheri and point out Pradeep Jain. Riyaz Siddiqui
conveyed this message of Abu Salem to Shaukat Kadia.
xxviii) On 7th March, 1995, Salim Haddi made a phone call to Abu
Salem late night and informed Abu Salem that alongwith his
aides have killed Pradeep Jain in his office. On getting this
information, he instructed Salim Haddi to call him again on
next day alongwith Sunny.
xxix) On the next day of murder of Pradeep Jain, Mehendi Hasan
@ Sunny, co-accused called him again and he instructed
Sunny to go to Hotel Moti Mahal alongwith Sunil Nair and
Rajesh Igawe (who had pumped near about 17 bullets in the
body of Pradeep Jain) and meet Naeem T.R. (Approver). On
the other hand, he also made a phone call to Naeem TR.
(Approver) and instructed him to give Rs.1 lakh to Sunny at
Hotel Moti Mahal and after some time both the persons
informed Abu Salem on phone about receipt of money.
xxx) After the death of Pradeep Jain, he again started threatening
Ashok Jain on phone for making the payment of the
remaining amount. Ashok Jain used to tell him that he had
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no money and would pay whenever it was possible. As Ashok
Jain became sick, his brother Sunil Jain (PW No.13) started
interacting with him and he started asking Sunil Jain to pay
money. Sunil Jain was not able to make arrangement of
money inspite of repeated demands and, therefore, Abu
Salem told him to sell whatever property they have through
his nominee and send money to him.
xxxi) In March/April, 1996, Sunil Jain informed Abu Salem that
they have a building namely Mamta Co-operative Society in
Sher-E-Punjab Colony, Mahakali Caves Road, Andheri, and
he would sell flat Nos.602, 605 and 606 and forward
money to him and also asked him to send some persons to see
and sell those flats.
xxxii) Immediately after receiving the information about the
property from Sunil Jain, Abu Salem made a call to his
acquaintance in Mumbai i.e. accused V. K. Jhamb at
Samruddhi, JVPD Scheme, Juhu and instructed him about the
transactions of the flats.
xxxiii) He informed Naeem T.R. (Approver) on phone to take said
V. K. Jhamb to the office of Sunil Jain and also provided the
address of Jhamb to Naeem T.R. Accordingly, Naeem T.R.
and Jhamb met Sunil Jain and inspected flats and informed
him that the flats could fetch good price, whereupon he told
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Jhamb to sell the flats as early as possible. He also informed
Sunil Jain to sell the flats and immediately handover the
money to Jhamb.
xxxiv) Accused Jhamb Builder was also informing him about the
daily developments and had also finalised deal of two flats for
Rs.28 lakhs. After the sale of two flats, accused Jhamb
Builder took that amount from Sunil Jain and sent to Abu
Salem through Hawala the consideration of the said two flats.
Jhamb Builder also sent Rs.14 lakhs received after sale of third
flat in 1997 through Hawala.
xxxv) In the last part of his confession he has stated that he
repeatedly threatened Sunil Jain not to go to Court and give
evidence in the matter of Pradeep Jain's murder. But Sunil
Jain did not obey his commands to stay away from the Court
and, therefore, he again started threatening Sunil Jain to pay
Rs.20 lakhs which he had allegedly spent for seeking acquittal
of his men in Pradeep Jain murder case. He later on came to
know that Sunil Jain had lodged the complaint to the police
against him.
252] It may be noted that the confession of accused Abu
Salem can conveniently be divided into six parts. In his confession,
accused Abu Salem has confessed/admitted all the relevant facts qua the
crime. The first part of the confession, which is covered by point No.1 to 8
is the narration about his past life and his criminal activities in general. It
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also narrates his association with more than one criminals including the
accused involved in this case and his association with wanted accused
Anees Ibrahim Kaskar and his brother Dawood Ibrahim. In this part of the
confession he specifically narrates his acquaintance with the Approver
Naeem Khan, accused Mehendi Hasan and other wanted accused and the
accused, who have already been tried in this crime.
253] In the second part of his confession, which is covered
by Point Nos. 9 to 21, accused Abu Salem admitted the conspiracy hatched,
the place of conspiracy, the object of the conspiracy, the persons involved
and present in the conspiratorial meetings, the role assigned to each one
present in the conspiratorial meetings to take the object of the conspiracy
to its logical end. Accused Abu Salem also admitted in his confession
about the role assigned to Naeem Khan (Approver) and communication of
the same personally by accused Abu Salem to Naeem Khan. In this part
accused Abu Salem also admitted the acts done by each one of them
pursuant to the decision taken in the meeting. Accused Abu Salem
admitted in this part about various meetings held by Naeem TR and
Shaukat Mistry with Jain Brothers and communication of the result of the
same to him on the phone numbers mentioned at Point No. 17. In this
part, he also admitted the deal finally settled between him and Ashok Jain
and payment of Rs. ten lakhs by Ashok Jain through Approver PW-1
Naeem Khan. In this part he also admitted about the transfer of money
through Hawala by accused Naeem Khan to him. He further admitted in
this part the decision taken by him to kill Pradeep Jain.
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254] In the third part of his confession, which is covered by Point
Nos. 22 to 27, accused Abu Salem admitted the reason, preparation and
plan to kill Pradeep Jain,. He also admitted about the persons involved in
the plan and actually participated in the mission to eliminate of Pradeep
Jain. In this part of the confession accused Abu Salem narrates that his
plan to kill Pradeep Jain and the reason to kill Pradeep Jain was made
known by him to Approver Naeem Khan (PW-1). It may be noted at this
stage that PW-1 Naeem Khan (Approver) has also admitted this fact in his
evidence.
255] The fourth part of his confession, which is covered by
Point Nos. 28 and 29, accused Abu Salem admitted about the execution of
the plan and completion of the plan and mission successfully by his
henchmen. In this part he has also narrated about the reward paid by him
to his henchmen / sharp shooters.
256] The fifth part of his confession, which is covered by Point Nos.
30 to 31, he has admitted the role played by him upto the murder of
Pradeep Jain. This part of his confession reflects heavily on the subsequent
conduct of accused Abu Salem. It is seen on perusal of this part of the
confess that after murder of Pradeep Jain, accused Abu Salem was not
satisfied. He did not stop threatening Jain brothers. He was after Jain
brothers to extort money from them. He became more greedy and went to
the extent of telling Jain brothers to sell whatever property they have and
arrange for money. In this part of the confession, accused Abu Salem has
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admitted the location of the property and the flats, which were available
with Jain brothers and which they had agreed to sell to meet the demands
of accused Abu Salem.
257] In the sixth part of his confession, which is covered by
Point Nos. 32, 33 and 34, he admitted the involvement of the accused No.5
Jhamb Builders for the sale of the three flats belonging to Jain brothers at
the instance of accused Abu Salem. In this part of his confession, accused
Abu Salem has admitted that before telling Jhamb Builder, accused No.5,
he had told all the facts to Jhamb Builders, accused No.5. In this part of
the confession, accused Abu Salem has also admitted the role played by
Naeem Khan, Approver, to interact with accused No.5 Jhamb Builder. In
this part of the confession, accused Abu Salem has admitted the total price
received by him after the sale of the three flats and the transfer of the sale
proceeds of the said three flats to Abu Salem through Hawala by Jhamb
Builder, accused No.5.
258] In the last part of his confession, which is covered by Point No.
35 accused Abu Salem has admitted the events occurred at the time of the
evidence of Sunil Jain in the earlier part of the trial. He has admitted in
the last para of his confession that he repeatedly threatened Sunil Jain not
to go to Court and give evidence in the matter of Pradeep Jain's murder.
Sunil Jain did not obey his commands to stay away from the Court
proceeding. Accused Abu Salem further admitted that thereafter he again
started threatening Sunil Jain to pay Rs. 20 lakh being the amount which
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he had allegedly spent for seeking acquittal of his men in Pradeep Jain
murder case.
259] After considering the broad spectrum of the confession of
accused Abu Salem and compartmentalization of the same, it is established
that DCP Shri Karale PW-12 has made a correct statement before the Court
that accused Abu Salem volunteered to confess the crime before him
without any threat, coercion, promise, undue influence, ill-treatment,
torture, allurement, beating, force etc. from the ATS Officers. In his
confession, accused Abu Salem has unfolded the vivid details of the
conspiracy, the object of the conspiracy, the persons involved in the
conspiracy, the role assigned to each one of the persons involved in the
conspiracy, the role effectively done by those persons, the reason for
eliminating Pradeep Jain and the persons involved in the brutal murder of
Pradeep Jain by his henchmen/sharp shooters. At this stage, it may be
mentioned that one of the shooters Rajesh Igve was in service Police
Constable. This fact can highlight the clout of accused Abu Salem at the
relevant time. This fact would indicate that even the Constable, who was
a Government servant, was on his Pay Roll and was prepared to follow the
commands of accused Abu Salem at the cost of his family and job. After
going through the confession of accused Abu Salem, one can see that DCP
Shri Karale PW-12 would not have been knowing all these facts to concoct
the confession of accused Abu Salem. PW-12 DCP Shri Karale was not part
of the investigation team at any time. I have not accepted the defence of
the accused that PW-12 DCP Karale simply copied the confessional
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statement of accused Abu Salem drafted by the ATS Officers and obtained
the signatures of accused Abu Salem on the same and made his signatures
thereon. DCP Shri Karale PW-12 was not supposed to know all the vivid
details studded with almost all the facts starting from the year 1990 till
arrest of accused Abu Salem on 24/11/2005. Almost all the disclosures
made in the confession by accused Abu Salem could not have been in the
personal knowledge of DCP Shri Karale PW-12. It is only accused Abu
Salem, who is supposed to know all his personal activities being known to
him because of his participation in the crime.
260] Perusal of the confession of accused Abu Salem further
reveals that his involvement in the Bombay Bomb Blasts Case of 1993 was
revealed and, therefore, he absconded. First he went to his native place in
Uttar Pradesh and from there with his wife Samira to Dubai and settled
there. Accused Abu Salem has provided all the details including the place
where he stayed and the persons with whom he stayed in Dubai. He has
provided his two telephone numbers, which according to him, were
installed in his office or in the office of Anees Irabhim Kaskar. DCP Karale
was not supposed to know these telephone numbers unless disclosed to
him by somebody else. In this case the source of disclosure was accused
Abu Salem. Accused Abu Salem was absconding to avoid the arrest in
Bombay Bomb Blasts Case 1993. It may be noted that between 1980 to
1990 the gangsters were literally ruling the commercial capital of India.
The cost of Real Estate and the stakes involved in real estate and film
industry are known to be sky high. These gangsters were, therefore,
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targeting the Builder community and the film fraternity. Accused Abu
Salem was a village boy from state of Uttar Pradesh came to Mumbai in
search of some job with his apparels. Within a short span his stature, he
had grown to such an extent that he started ruling a particular area of
Mumbai with the money and might at his disposal. It can be seen from his
(Abu Salem) confession that he has murdered Pradeep Jain by staying in
Dubai.
261] Our Mumbai Police Force is compared with Scotland Yard
Police. We genuinely feel proud when such comparison is drawn. We have
witnessed the sacrifice by the Police Officers namely Shri Hemant Karkare,
Shri Ashok Kamthe, Shri Vijay Salaskar, Shri Dombale and others to save
lives of innocent people of this Town, when this Town was attacked by the
terrorists from Pakistan on 26th November, 2008. We have also witnessed
the exemplary courage of Shri Sadanand Date, Shri Vishwas Nangre-Patil,
Shri Rajwardhan Sinha and their team to save the lives of the people from
Hotel Taj and to fight back with the terrorists hiding in Taj Mahal Hotel on
26/11/2008. There cannot be a dearth of the officers with impeccable
integrity, devotion, efficiency and courage in Mumbai Police Force. We
have witnessed the exemplary skill of the investigation by Shri Rakesh
Maria and his team in 1993 Bomb Blasts Case, till it was handed over to
CBI, known for its magnitude and enormity. Our past indicates that we
have no dearth of officers with impeccable integrity, courage and ready to
sacrifice their lives. A village boy from Uttar Pradesh came with his
apparels to Mumbai with a hope to earn his livelihood, grew to such a
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stature and it went unnoticed by Mumbai Police Force, which draws
comparison with Scotland Yard Police is unfathomable, mind boggling and
very disturbing. Despite having such committed Police Force, the question
that must be bothering the common man is as to why these “Underworld
gangs, Terrorists gangs and Underworld Dons” are mushrooming in this
Cosmopolitan City, which believes in peace and prosperity. After
considering the factual matrix of this matter, two prominent questions
bothering me most are; i) Why the Underworld gangs, Terrorists gangs
and Underworld Dons are not nipped in the bud and why they are allowed
to assume larger than life stature and image; and ii) Whose “Baby” the
“Underworld gangs, Terrorists gangs and the Underworld Dons,” is ?
Leaving all the above stated hard realities, facts and questions for
speculation and introspection of the concerned, I may come back to the
confession of accused Abu Salem.
262] The disclosure made by accused Abu Salem in his
confessional statement, by no stretch of imagination, could be said to be a
figment of fertile imagination of DCP Shri Datta Karale PW-12. In his
confession accused Abu Salem has admitted in uncertain and clear terms
his involvement in the commission of crime. On the contrary, over all
perusal of his confession would show that after being apprised of the
disputed property of Jain brothers, accused Abu Salem and wanted
accused Anees Ibrahim took a lead and with the greed to earn easy money,
they hatched the conspiracy. Accused Abu Salem has in his confession, in
great detail, narrated the role played by other accused including accused
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evidence. On the basis of the evidence placed on record, I have concluded
that the confession made by accused Mehendi Hasan is voluntary and true.
Once it is held that the confession is voluntary and true, then it becomes
obligatory to see the effect and consequences of the retraction of the
confession by the accused and the stage at which the same has been
retracted. It may be noted at the cost of repetition that during the course
of his police custody the accused was produced before this Court on
various dates. The accused did not make any complaint of ill-treatment,
torture, coercion, threat, promise, allurement, beating, force, undue
influence, etc. at the hands of the ATS Officers. While dealing with the
evidence of the episode of production of the accused before the DCP Shri
Rajesh Kumar Mor, I have concluded that the defence of the accused that
he was produced before the DCP Rajesh Kumar Mor for recording
confession is not acceptable. In this case, admittedly, when the accused
was produced before the learned Chief Metropolitan Magistrate along with
his confessional statement, he did not make a grievance of ill-treatment,
torture, coercion, threat, promise, allurement, beating, force, undue
influence etc. at the hands of the ATS Officers or by the DCP Shri Bodkhe
PW-11 to extract the confession. Accused Mehendi Hasan was remanded
to judicial custody on 10/01/2006. When he was produced before this
Court on 10/01/2006 from the Court of the learned Chief Metropolitan
Magistrate, Mumbai, this Court made enquiry with the accused about any
ill-treatment or harassment at the hands of the ATS Officers. The record
reveals that the accused did not make complaint of ill-treatment or torture
at the hands of the ATS Officers during the course of interrogation and also
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at the hands of the DCP Shri Bodkhe, who recorded his confession. The
application M.A. No. 14 of 2006 was received by this Court from jail on
27/01/2006. Perusal of this application would reveal that this application
was drafted on 20/01/2006. It can, therefore, be seen that after expiry of
ten days from remanding this accused to judicial custody, he, for the first
time, made some grievance.
265] The record reveals that accused Mehendi Hasan had
engaged the lawyer in this case. On 17/01/2006, through his Advocate
accused Mehendi Hasan made two applications. First application was
made seeking direction to the Jail Authorities to allow accused Mehendi
Hasan to have the home food. Second application was made by Advocate
for accused Mehendi Hasan seeking permission to meet the accused along
with his family members in jail. It may be mentioned at this stage that in
both these applications, the Advocate appearing for the accused did not
make a grievance about ill-treatment, torture etc. to accused Mehendi
Hasan at the hands of the police either during the course of interrogation
or by the DCP Shri Bodkhe PW-11 when he was produced before him for
recording confession. The application M.A. No. 14 of 2006 was received by
this Court on 27/01/2006. On receipt of this application, this Court
directed the Registrar(Sessions) of this Court to provide copy of the
application to the prosecution as well as to the Advocate appearing for the
accused.
266] It is necessary to see what transpired before this Court
on production of accused Mehendi Hasan from jail on 31/01/2006. In the
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backdrop of the receipt of the application by accused Mehendi Hasan on
27/01/2006 from jail making certain grievances against the ATS Officers
and the Police Officers, my predecessor deemed it appropriate to make
enquiry with the accused. On enquiry and questioning accused Mehendi
Hasan on the contents of the application, accused Mehendi Hasan stated
that he does not understand English and the application was written by
other person, who is presently lodged in jail. The Advocate appearing for
the accused was present before Court on 17/01/2006. On 17/1/2006 this
Court allowed accused Mehendi Hasan to have home food. On the second
application, this Court had called report of the Superintendent of Central
Prison, Arthur Road, Mumbai. The Roznama dated 31/01/2006 reveals
that this application was written by the jail inmate of the accused. It
further reveals that the accused does not understand English. Perusal of
the application reveals that it was drafted by the jail inmate, who was well
versed with the rudimentary provisions of law. Perusal of this application,
which is numbered as M.A. No. 14 of 2006, would show that accused
Mehendi Hasan did not make any statement that he has not made a
confession at all. On the contrary, the application would show that the
accused had admitted that when he was produced before the Judge, he
stated that his confession was a true confession. This admission is with a
rider that he stated before Judge about truthfulness of the confession
because of the threats extended to him by the ATS Officers. It is seen on
perusal of the application that in the strict sense, this application M.A. No.
14 of 2006 could not be said to be a retraction application.
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267] On 17/01/2006, when accused Mehendi Hasan was
represented by Advocate, he could have advised his Advocate to make a
specific application retracting his confession. On 31/01/2006, when
accused Mehendi Hasan was produced before this Court, his Advocate was
present before this Court. On that date also the Advocate appearing for
the accused did not make any application specifically stating that accused
Mehendi Hasan was retracting the confession. Once the confession is found
to be voluntary and truthful, much importance cannot be given to the
delayed retraction of the confession. It is common knowledge that the
confessions are always retracted by the accused before Court. After
satisfying the voluntary nature and truthfulness of the confessions, the
Court has to weigh the statements made by the accused in the retraction
application. The decision taken by the accused to make a confession is his
own decision. Once it is found that the accused made the confession
voluntarily and before recording the confession, all the mandatory
requirements of law have been complied with, the subsequent retraction
cannot be given much weightage.
268] It is, therefore, apparent on the face of the record that
the application forwarded by accused Mehendi Hasan from jail and
received by this Court on 27/01/2006 was not in fact a retraction
application. It was an application with a prayer to discharge him from this
crime for the grounds stated in the application.
269] In case of accused Mehendi Hasan, it can be seen that
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for the first time he made a statement about retraction of his confession
before this Court while recording his statement u/sec. 313 of the Cr.P.C..
In his statement u/sec. 313 of the Cr.P.C. while answering question No.
160, accused Mehendi Hasan has stated that he has been involved in this
false case. He was threatened to be killed in an encounter. His son was
kidnapped by the ATS Officers from Mumbra to compel him to give a
confession. He was beaten badly. He was lodged in lock-up and was not
allowed to speak anything to anybody. In his application, which was
received by this Court on 27/01/2006, and which is numbered as 14 of
2006, he did not make a grievance that his son was kidnapped by the ATS
Officers from Mumbra, to compel him to give a confession. In his
statement u/sec. 313 of the Cr.P.C. accused Mehendi Hasan has come out
before this Court with this new story. In the backdrop of my finding that
his confession is voluntary and true, his belated retraction does not appear
to be true. It appears to be after-thought and under legal advice.
270] Ld.SPP Shri Ujjwal Nikam relying upon the decision in
the case of Shankaria v. State of Rajasthan reported in 1978 Cri.L.J.
Page 1251(1), submitted that the complaint of ill-treatment made by the
accused while recording his statement u/sec. 313 of the Cr.P.C. has to be
termed as after-thought retraction. In this case, the Hon'ble Supreme
Court of India has held that if the accused retracts his confession by
making a complaint of ill-treatment at the stage of recording his statement
u/sec. 313 of the Cr.P.C., such a retraction has to be termed as after-
thought retraction. In the backdrop of the facts and circumstances
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learned Chief Metropolitan Magistrate, Mumbai, on production of accused
Abu Salem before him was contrary to the spirit of Rule 15 sub-rule (5) of
the TADA Rules. Ld.SPP submitted that as per Rule 15 sub-rule (5) of the
TADA (P) Rule, the learned Chief Metropolitan Magistrate, Mumbai, was
not empowered to re-record the confession and/or the statement of the
accused. Ld.SPP submitted that the learned Chief Metropolitan Magistrate
should have confined his enquiry to know whether accused Abu Salem had
any grievance of ill-treatment, torture, coercion, threat, promise,
inducement, allurement etc. for making confession. If there was any
complaint of such a nature, then the Magistrate would have been under an
obligation to first send the accused for medical examination and prepare
the record of the grievance made by the accused. Ld.SPP submitted that
the exercise undertaken by the learned Chief Metropolitan Magistrate by
recording the statement of accused Abu Salem by reading over his entire
confession to him is contrary to law and, therefore, cannot be held to be
admissible record. Besides, Ld. SPP submitted that while denying the
contents of the confession, accused Abu Salem was selective. Ld.SPP
submitted that he did not state before the learned Chief Metropolitan
Magistrate that he did not make a confession at all. Ld.SPP pointed out
that accused Abu Salem has admitted some part of his confession and has
denied some part of his confession. Ld.SPP submitted that this fact would
show that accused Abu Salem was under legal advice and, therefore, on
the basis of this legal advice, he took this opportunity to create a doubt
about recording of his confession and its voluntary nature. Ld.SPP
submitted that the retraction of the confession by accused Abu Salem is
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after-thought and under legal advice and, therefore, much weightage
cannot be given to it. Ld.SPP further submitted that the confession of
accused Abu Salem has been fully corroborated by the confession made by
accused Mehendi Hasan and vice-versa. Ld.SPP further submitted that
there is other independent evidence to corroborate the statements made by
accused Abu Salem in his confessional statement.
272] Ld. Advocate Shri Pasbola submitted that confession of
accused Abu Salem was recorded under suspicious circumstances and the
said circumstances have been explained in retraction application made by
accused Abu Salem. Ld. Advocate Shri Pasbola submitted that when
accused Abu Salem was produced before the learned Chief Metropolitan
Magistrate, Mumbai, he retracted his confession and stated that he has
signed the statement blindly. In the submission of learned Advocate
accused Abu Salem first and foremost stated before the learned Chief
Metropolitan Magistrate that he did not make any confession. Ld.
Advocate Shri Pasbola submitted that in the subsequent application made
for retraction by the accused before this Court, he has narrated all the
relevant facts. Ld.Advocate Shri Pasbola submitted that on 12/01/2006
when accused Abu Salem was produced before this Court, he made a
complaint before this Court that his confession was obtained against his
wish. He has further stated before this Court that he has not made any
confession, but he was forced to sign on certain papers. On 12/01/2006
accused Abu Salem on his production before this Court has specifically
stated that his so-called confession was not voluntary confession. Ld.
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Advocate submitted that in the retraction application made by the accused
on 13/02/1006, he has narrated all the facts and events occurred leading
to obtaining his signatures on the confessional statement. Ld.Advocate,
therefore, submitted that the retraction of the confession by accused Abu
Salem is truthful. In the submission of the Ld. Advocate for accused Abu
Salem no reliance can be placed on the retracted confession of Abu Salem.
Ld.Advocate Shri Pasbola further submitted that in view of the guideline
No.3 laid down in Para No. 263 of the Judgment in 'Kartrar Singh v. State
of Punjab' reported in 1994 Supreme Court Cases (Cri) 899, the Chief
Metropolitan Magistrate has not committed any mistake. Ld. Advocate
Shri Pasbola submitted that the contention of the learned Prosecutor that
the learned Chief Metropolitan Magistrate is simply required to act as a
postman cannot be accepted in the backdrop of the guidelines laid down in
the case of Kartar Singh v. State of Pubjab reported in 1994 Supreme
Court Cases (Cri) 899.
273] In order to appreciate the submissions, it is necessary to
advert to the facts and also discuss the law laid down by the Hon'ble
Supreme Court of India in various decisions. First and foremost, it is
necessary to see what is the role of the learned Chief Metropolitan
Magistrate or Chief Judicial Magistrate, as contemplated under Rule 15
sub-rule (5) of the TADA Rules. In the case of Kartar Singh v. State of
Pubjab, a Hon'ble Constitution Bench of the Hon'ble Supreme Court of
India has laid down certain guidelines to ensure that the confession
obtained in the pre-indictment interrogation by a police officer not lower
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the hands of the police and forwarded the confessions to the Designated
Court. My predecessor did not approve this course of action adopted by
the learned Chief Metropolitan Magistrate holding that it was contrary to
the spirit of Rule 15 sub-rule (5) of the TADA Rules. This finding of my
learned predecessor was set aside by the Hon'ble Supreme Court of India.
In case of State of Maharashtra v. Bharat Ragani reported in 2002
Supreme Court Cases (Cri) 377, the relevant discussion is covered in
para No.33 to para 40.
274] In the case of State of Maharashtra v. Bharat
Chaganlal Raghani and others, reported in 2003 Supreme Court Cases
(Cri) 377 the Hon'ble Supreme Court of India has considered the scope of
Guideline No.3 from Para 263 in the case of Kartar Singh v. State of
Punjab reported in 1994 CRI. L.J. 3139. In this case, the Hon'ble
Supreme Court of India has held that Rule 15 sub-rule(5) of the TADA (P)
Rule does not oblige such Magistrate either to open the envelope
containing the confessional statement recorded by the police officer or to
satisfy himself regarding the voluntary nature of the confession. The
Magistrate, at the most, can record the statement of the accused if made
regarding alleged harassment, torture or the like. It is further held that if
the Magistrate, referred to in sub-rule (5) of Rule 15 has to ascertain the
voluntary nature of the confessional statement, the purpose of Section 15
authorising a police officer to record the confessional statement shall stand
frustrated. The Hon'ble Supreme Court of India has held that guideline
No.3 mandated the Magistrate concerned to scrupulously record the
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statement, if any, made by the accused so produced and get his signature.
In the event of any complaint of torture, the person should be directed to
be produced for medical examination before a medical officer not lower in
rank than of an Assistant Civil Surgeon. But no duty is cast upon the
Magistrate concerned to record the confessional statement afresh or
himself/herself ascertain the nature of and the circumstances under which
the confessional statement was made unless a complaint is made by the
accused regarding torture etc..
275] In this case, the Hon'ble Supreme Court of India found
that in view of the provisions as contained in Section 15 of the TADA (P)
Act and Rule 15 of the TADA Rules and the law laid down by this Court in
Kartar Singh's case, the Designated Judge committed a mistake of law in
not relying upon the confession on the ground that Chief Judicial
Magistrate had not given a separate certificate and had not herself
enquired about the voluntary nature of the confessional statement.
276] Next Judgment where this point has been considered is
in the case of Jameel Ahmed v. State of Rajasthan reported in 2003
Supreme Court Cases (Cri) 1853. In this case, the confession recorded
by the competent Police Officer was directly forwarded to the Designated
Court instead of forwarding it to the Chief Judicial Magistrate or Chief
Metropolitan Magistrate. While considering this issue, the Hon'ble
Supreme Court of India has held that the provision of Rule 15 sub-rule (5)
of TADA Rules is only directory and not mandatory. It is observed that the
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object of Rule 15 sub-rule (5) of the TADA Rules is to safeguard the
interest of the maker of the confession by directing the confessional
statement to be taken out of the hands of the police so that there could be
no subsequent interpolation. The Hon'ble Supreme Court of India has held
that Rule 15 sub-rule (5) of the TADA (P) Rules does not ascribe any role
to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate of
either perusing the said statement or making any endorsement or applying
his mind to these statements. It is held that it merely converts the said
Courts into a post office for further transmission to the Designated Court
concerned. Therefore, the object of the rule is to see that the statement
recorded u/sec. 15 of the Act leaves the custody of the concerned officer at
the earliest so that the statement has a safer probative value. The Hon'ble
Supreme Court of India has precisely dealt with the role of the Chief
Judicial Magistrate or the Chief Metropolitan Magistrate as contemplated
under Rule 15 sub-rule(5) of the TADA Rules. So, this is the second
Judgment on this point.
277] In order to consider the applicability of the law laid
down by the Hon'ble Supreme Court of India in the above stated two
decisions, it is necessary to advert to the certain facts obtained on record in
this case. Exhibit-387(colly.) comprise of the letter of the learned Chief
Metropolitan Magistrate addressed to this Court stating inter-alia the
nature of the proceeding conducted by him and the facts narrated before
him by accused Abu Salem, the statement of accused Abu Salem signed by
accused Abu Salem and the learned Chief Metropolitan Magistrate and the
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envelope in which the documents were forwarded to the Designated Court
by the learned Chief Metropolitan Magistrate. It is seen on perusal of the
letter of the learned Chief Metropolitan Magistrate, which is part of
Exhibit-387-A(colly.) dated 03/01/2006, that on production of accused
Abu Salem before him, he first opened the sealed packet containing the
envelope. He told the officer, who had produced accused Abu Salem
before him to go out of his chamber. He then caused the production of
accused Abu Salem before him. He then opened the sealed envelope
containing the confession of accused Abu Salem. The learned Chief
Metropolitan Magistrate has further stated that he read over the contents
of the first part of the confession to accused Abu Salem. Accused Abu
Salem admitted the same. The learned Chief Metropolitan Magistrate has
further stated that he then read over the contents of the second part of the
Confessional Statement of accused Abu Salem recorded by the DCP Shri
Datta Karale(PW-12). It further reveals that the learned Chief Metropolitan
Magistrate read over and explained each and every statement recorded by
the DCP Shri Karale (PW-12) to accused Abu Salem and recorded the
comments made by accused Abu Salem on the same.
278] It is seen that this exercise undertaken by the learned
Chief Metropolitan Magistrate is contrary to the law laid down by the
Hon'ble Supreme Court of India in the above referred Judgments. As per
the law laid down by the Hon'ble Supreme Court of India, on production of
accused Abu Salem before the learned Chief Metropolitan Magistrate, he
was supposed to find out whether the confession made is voluntary and
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not by applying any torture, threat, inducement, promise, allurement,
beating, force, coercion, ill-treatment, harassment, undue influence etc..
The learned Chief Metropolitan Magistrate is not empowered to record
statement of the accused afresh. The Hon'ble Supreme Court of India has
held that the power to record the confession of the accused as per the
scheme of the TADA (P) Act vests with the competent officer as mentioned
in Section 15 of the TADA(P) Act. The object of the production of the
accused before Magistrate, after recording the confession, is to provide one
more check to ensure that the confession made by the accused is voluntary
and it is not the result of any torture, ill-treatment, inducement,
allurement, promise, threat, coercion, harassment etc.. In view of the law
laid down by the Hon'le Supreme Court of India, the only concern of the
Magistrate is to verify whether the accused was subjected to ill-treatment,
beating, coercion, threat, torture, inducement, promise etc. before and at
the time of recording of his confession.
279] Even if the accused makes a grievance or complaint of
ill-treatment, torture or beating at the hands of the police, rule 15 sub-
rule(5) of the TADA Rules does not empower the Magistrate to record the
statement or confession of the accused afresh. Rule 15 sub-rule(5) of the
TADA Rules provides a complete mechanism to ensure that the confession
made by the accused is not made as a result of threat, torture, beating, ill-
treatment, promise, coercion, inducement, harassment, force, threat etc..
If the accused on production before the learned Chief Metropolitan
Magistrate or the learned Chief Judicial Magistrate makes a complaint of
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ill-treatment, then Magistrate at the most can record the statement of the
accused made regarding the alleged harassment, torture etc.. The
Magistrate can further direct the production of the accused for medical
examination before a Medical Officer. Save and except, this role assigned
to the Magistrate, the Magistrate cannot record the statement of the
accused or his confession separately. In this case, as per the law laid down
by the Hon'ble Supreme Court of India, the Magistrate was not empowered
to open the envelope containing the confession. The Magistrate was
simply required by law to make enquiry with the accused about ill-
treatment, torture, inducement, threat, coercion, allurement, promise,
undue influence etc. by the police for making confession. In this case, the
Magistrate has categorically stated in his report that the accused did not
make a complaint of ill-treatment, torture, beating, coercion, threat,
allurement either at the hands of the ATS Officers or by the DCP Shri Datta
Karale (PW-12), who recorded the confession of accused Abu Salem.
280] Therefore, by applying the law laid down by the
Hon'ble Supreme Court of India, as mentioned above, this exercise
undertaken by the learned Chief Metropolitan Magistrate to read over each
and every sentence from the confession of the accused to him and offer an
opportunity to the accused to comment upon the same and record the
same is illegal exercise and contrary to the law laid down by the Hon'ble
Supreme Court of India. It may be noted that when a particular exercise is
found to be contrary to the provisions of law and the law laid down by the
Hon'ble Supreme Court of India, then such exercise cannot be accepted as
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a valid exercise vesting any right either in favour of the prosecution or in
favour of the accused. In this case on this ground alone the statement
made before the learned Chief Metropolitan Magistrate by accused Abu
Salem and recorded by the learned Chief Metropolitan Magistrate by
offering the accused an opportunity to explain each and every sentence
from his confession is an illegal exercise. The only thing that can be taken
note from this record, which is at Exhibit-387(colly.), is that when the
accused was produced before the learned Chief Metropolitan Magistrate,
he did not make grievance or utter a single word about ill-treatment,
torture, threat, inducement, coercion, allurement etc. to make a confession
either by the ATS Officers or the DCP Shri Datta Karale (PW-12).
281] Accused Abu Salem had an opportunity to make a
grievance of ill-treatment, torture, threat, inducement, coercion,
allurement, beating, harassment, promise etc. for making the confession,
when he was produced before the learned Chief Metropolitan Magistrate.
A confession, which is caused by inducement, threat, coercion, bearing,
allurement, promise, harassment, torture etc. is not a voluntary confession.
If there is no grievance of any ill-treatment, torture, inducement, threat,
allurement, beating, harassment, promise, for making a confession and if
the said confession is otherwise proved before Court, then the only
irresistible conclusion is that the said confession is voluntary confession. I
have considered the evidence led by the prosecution on the point of the
aspect of true and voluntary nature of the confession of accused Abu Salem
and made threadbare analysis of other evidence. I have observed that the
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confession made by accused Abu Salem is not caused by threat,
inducement, promise, coercion, allurement, beating, ill-treatment, torture,
undue influence, harassment etc. and as such it is a voluntary and true
confession made by accused Abu Salem.
282] In reply to the above stated two decisions, learned
Advocate Shri Pasbola for the accused has placed reliance on the decision
in the case of Adambhai Sulemanbhai Ajmeri v. State of Gujarat
reported in 2014 ALL MR (Cri) 2627 and submitted that the exercise
undertaken by the learned Chief Metropolitan Magistrate in this case was
justified as per the mandate of Rule 15 sub-rule (5) of the TADA Rules. In
this case the Hon'ble Supreme Court of India was considering the
confessions of the accused recorded under the Prevention of Terrorism Act,
2002 (herein after referred to as 'the POTA'). POTA makes a provision for
recording of a confession of the accused. Section 32 of the POTA laid
down a procedure and provide a mandate to police officer and the
Magistrate. Section 32 of the POTA provides for recording of confession of
the accused, the precaution to be taken at the time of recording of
confession, production of the accused before Chief Metropolitan Magistrate
or Chief Judicial Magistrate and the provisions for recording of statement
of the accused, if any, made by him in the backdrop of the mandate of
Section 32 of the POTA. The Hon'ble Supreme Court of India in this case
has held that considering the procedural safeguards therein, these are not
mechanical formalities. The law laid down by the Hon'ble Supreme Court
of India in case of Adambhai Sulemanbhai Ajmeri v. State of Gujarat
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reported in 2014 ALL MR (Cri) 2627 is of no help and assistance to the
case of accused Abu Salem.
283] In this case, accused Abu Salem is facing the charges
under the TADA (P) Act. In the case of State of Maharashtra v. Bharat
Ragani reported in 2002 Supreme Court Cases (Cri) 377 and Jameel
Ahmed v. State of Rajasthan reported in 2003 Supreme Court Cases
(Cri) 1853, the Hon'ble Supreme Court has considered the provisions of
Rule 15 sub-rule (5) of the TADA Rules and laid down law. The decision in
the case of State of Maharashtra v. Bharat Ragani reported in 2002
Supreme Court Cases (Cri) 377 and Jameel Ahmed v. State of
Rajasthan reported in 2003 Supreme Court Cases (Cri) 1853 are the
direct Judgments dealing with the provisions of Rule 15 sub-rule (5) of the
TADA Rules and, therefore, squarely apply to the facts of this case.
284] Ld. Advocate Shri Pasbola, relying upon the decision in
the case of Devender Pal Singh v. State of NCT of Delhi and another
reported in 2002 Supreme Court Cases (Cri) 978, submitted that exercise
undertaking by the learned Chief Metropolitan Magistrate was well within
his powers and according to the law laid down in this case. I may briefly
mention the relevant facts in the case of Devender Pal Singh. The DCP
recorded the confessional statement of the accused on 23/01/1995 as per
the provisions of Section 15 of the TADA (P) Act. On 24/01/1995 the
accused along with the copy of the confessional statement was produced
before the Court of ACMM. The ACMM asked only one question to the
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accused as to whether his statement was recorded by the DCP. The
accused answered the said question in the affirmative and his signatures
were obtained on the application in confirmation of his admission of
having made a statement before the DCP. In this case the Hon'ble Supreme
Court of India relying upon the confession of the accused in the backdrop
of this procedure followed by the ACMM convicted the accused. I have
minutely perused the Judgment of the Hon'ble Supreme Court of India in
the case of Devender Pal Singh cited supra. I have not come across any
observation from this Judgment that the procedure followed by the ACMM
was contrary to the mandates of Rule 15(5) of the TADA (P) Rules.
Therefore, the proposition of law laid down on this issue by the Hon'ble
Supreme Court of India in this case is of no help and assistance to the case
of the accused before me.
285] Besides, presuming for the sake of argument that the
exercise undertaken by the Magistrate was correct and legal, even in that
case also the true and voluntary nature of the confession made by the
accused cannot be wiped out. Accused Abu Salem did not make complaint
of ill-treatment, torture, inducement, threat, allurement, coercion, promise
etc. either by the ATS Officers or the DCP for making confession. It can,
therefore, be said positively that this confession made by the accused was
not caused by inducement, threat, torture, beating, allurement, coercion,
promise, ill-treatment. While dealing with the undisputed facts in this
case, I have observed that from the date of the arrest of accused Abu Salem
in this case on 24/11/2005 till 10/01/2006, accused Abu Salem had an
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opportunity, as and when he was produced before this Court, to make
complaint that he was being subjected to torture, ill-treatment, coercion,
beating, threat to confess the crime. Accused Abu Salem did not do that. I
have also dealt with one important undisputed fact and in my view, this
fact would weigh in view of the conclusion that the confession of accused
Abu Salem was not caused by inducement, threat, promise, coercion,
beating and allurement. Accused Abu Salem from day one of his arrest in
this crime had the benefit of legal advice. My predecessor had granted
permission to one of the lawyers out of the three lawyers namely Mr. A.M.
Saraogi, Mr. O.A. Siddiqui and Mr. Rashid Ansari mentioned in the
application dated 24/11/2005 to meet accused Abu Salem on every day
for fifteen minutes between 8.00 a.m. to 8.30 a.m.. There is no grievance
that the advocate was not allowed to meet accused Abu Salem. If this is
the factual position, then at the belated stage, it cannot lie in the mouth of
accused Abu Salem that though he had an opportunity and best legal
advice, he could not make the grievance of ill-treatment, torture and
beating at the hands of the police during his police custody. Such a
statement cannot be accepted in the teeth of the undisputed facts and the
facts proved in this case on the basis of concrete and cogent evidence.
286] It is necessary to mention that even before learned Chief
Metropolitan Magistrate accused Abu Salem has partly admitted his
confession and partly denied it. This fact would indicate that he is making
this Court to believe that part of his confession is voluntary and part of the
confession is not voluntary. It may be mentioned that the submission of
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accused Abu Salem cannot be accepted. I have already observed that the
DCP Shri Datta Karale (PW-12) was not in any way concerned with the
investigation in this crime. The facts stated in the confession of accused
Abu Salem could not be said to be a figment of fertile imagination of the
DCP Shri Datta Karale (PW-12). On perusal of the confession of the
accused in entirety, it satisfies the conscience of this Court. The facts
stated in the confession were from the exclusive knowledge of accused Abu
Salem. DCP Shri Datta Karale (PW-12) could not have even imagined such
a story. Besides, all the facts narrated by accused Abu Salem in his
confession have been corroborated by the confession of accused Mehendi
Hasan. So, while considering the plea of accused Abu Salem that his
confession was not voluntary and, therefore, he had retracted the same, all
the above stated facts cannot be ignored.
287] In this case, accused Abu Salem was remanded to
judicial custody on 03/01/2006 by this Court. On 10/01/2006,
Investigating Officer ACP Shri Shengal (PW-22) made an application for
granting police custody to this accused till 22/01/2006. This application
was opposed tooth and nail by the accused. In reply to this application the
accused made a grievance that his confession was caused by threat,
promise, coercion, undue influence, allurement, beating, torture,
harassment, ill-treatment. My learned predecessor was required to pass a
detail order to deal with rival contentions. The order passed by my
learned predecessor dated 12/01/2006 would speak for itself about the
fallacious nature of the allegations made by accused Abu Salem. My
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learned predecessor did not accept those allegations for the reasons
recorded in the order dated 12/01/2006. Rejecting all the objections
raised by the accused in his reply, accused Abu Salem was remanded to
police custody till 17/01/2006.
288] Accused Abu Salem was remanded to judicial custody
on 17/01/2006. In this case, from time to time judicial custody of accused
Abu Salem was extended. After investigation, the Investigating Officer filed
supplementary charge-sheet on 28/04/2006. Learned Advocate appearing
for the accused drew my attention towards Misc. Application No. 13 of
2006 and submitted that this is the retraction application made by the
accused to which the Investigating Officer has not filed the reply. It may
be noted that this application for retraction was made after five to six
months from the date of making confession. Before this application
accused Abu Salem did not state positively that he was retracting the
confession or the alleged confessional statement made by him. It may be
mentioned that, when accused Abu Salem was having the legal advice
from day one of his custody and the fact of confession of crime by the
accused was known to the lawyer, I do not fathom the delay of five to six
moths to make an application for retraction of the confession by the
Advocate. In the facts and circumstances, this delay of six months squarely
fits in the submission of the learned SPP that this retraction is after-
thought and after due deliberation and under legal advice. I have
minutely perused M.A. No. 13 of 2006. In this application, accused Abu
Salem has raised various contentions. In his application, he has stated that
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he had placed on record before this Court that he was not concerned with
the commission of this crime and there was no question of giving any
confessional statement by him. If this statement has to be appreciated and
considered in the backdrop of certain events occurred during his police
custody and during his judicial custody, it would indicate that the accused
was playing hot and cold from the same pipe. In his application he has
made serious allegation of ill-treatment, torture, coercion, threat at the
hands of the police during the course of interrogation. Presuming for the
sake of argument that this statement of ill-treatment and torture is
accepted at its face value, then next important question this Court has to
address as to why this accused did not utter a single word about the same
when he was produced before this Court from time to time.
289] Here, at this stage I must make a mention of brave
decision of my then learned predecessor, which I am told was severely
criticised. On 29/11/2005 accused Abu Salem was produced before my
learned predecessor on the basis of the allegation of ill-treatment and
torture caused to him during the course of interrogation by the
Investigating Officer. The record reveals that my learned predecessor
when noticed that the accused was uncomfortable in making statement in
open Court before his Advocate and the Investigating Officer, my learned
predecessor caused production of the accused in the chamber and made
enquiry with the accused. It is seen that this act on the part of my learned
predecessor did not go down well with the people, but my learned
predecessor did not bother about it. My learned predecessor made enquiry
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with the accused in the chamber in the absence of the advocate for the
accused and the Investigating Officer. At that time accused Abu Salem did
not make a grievance about any ill-treatment, torture, beating, promise,
harassment, undue influence, coercion, threat, allurement at the hands of
the Investigating Officer. It may be mentioned that there could not be a
better example of creating a free and comfortable atmosphere for the
accused to ventilate the grievance. If the accused fails to make a grievance
in such a free and comfortable atmosphere, then I do not see any
substance in this belated grievance of ill-treatment, torture, coercion,
threat, allurement to extort confession from him. Accused Abu Salem is
not an ordinary criminal. He is a self-proclaimed Don. He ruled this
Metropolis with the might and money at his command. A Police Constable,
who was in service, was on his Pay Roll and actually participated in the
shooting of Pradeep Jain, is the best example of the influence of this
accused and magic of his money. Accused Abu Salem is a hard-core
criminal. He is very intelligent. He could not have missed this
opportunity to ventilate his grievance against ATS Officers when his
production was caused in the chamber of my learned predecessor in the
circumstances observed by my learned predecessor.
290] Therefore, if this belated allegation is considered in the
teeth of the undisputed facts and the evidence brought on record, I see
serious doubt in the allegation. Before the learned Chief Metropolitan
Magistrate accused Abu Salem did not state that he has not made any
confession. He became choosy. He tried to exculpate himself. In my
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opinion, with this kind and caliber of accused, no other thing can be
expected. Para 6 of his retraction application makes a very interesting
reading. If Para 6 of his application is read in proper perspective, then it
would indicate that even he has not spared the Chief Metropolitan
Magistrate. He has stated that though he had stated before the Hon'ble
Chief Metropolitan Magistrate about all the things stated in Para Nos. 3, 4
and 5, he is not aware as to whether the same have been recorded by the
Hon'ble Chief Metropolitan Magistrate or not. He has further stated that
when he was remanded to judicial custody, he had brought all these facts
to the notice of this Court and which have been recorded by this Court in
roznama. It may be noted that this fact has been reflected in the order of
the Court dated 12/01/2006, when this accused was again remanded to
judicial custody. I have already observed that my learned predecessor in
his order dated 12/01/2006 has considered all the statements made by
accused Abu Salem in his reply. The order dated 12/01/2006 would speak
for itself. My learned predecessor did not accept a single submission made
in that application being factually correct statement. Therefore, this
belated retraction must be held to be after-thought and under legal advice.
When Court comes to the conclusion that the confession made by the
accused is voluntary and true, then the weightage to be given to the
subsequent retraction is a contentious issue.
291] It would, therefore, be necessary at this stage to advert
to the legal position. It is also equally important and necessary to look at
the other evidence to find out the truthfulness of the statements made in
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the confession by accused Abu Salem. It is now necessary to consider the
citations relied upon by learned SPP Shri Ujjwal Nikam on the point of the
evidentiary value of the confession, admissibility of the confession against
the accused and co-accused, value of the retracted confession and the
nature of the corroboration required in case of retracted confession.
292] In the case of Mohd. Ayub Dar vs. State of Jammu &
Kashmir, reported in 2010(3) Supreme Court Cases (Cri.) 1350, the
Hon'ble Supreme Court of India has held that if confession is voluntary and
truthful and relates to accused himself, no further corroboration is
necessary and conviction can be based solely thereon. Such confession is
admissible as substantive piece of evidence. It is further held that even if
other oral evidence goes counter to the confession, yet conviction can be
founded on voluntary and reliable confession. In this case, the Hon'ble
Supreme Court of India has further held that merely because the
guidelines in Kartar Singh,(1994) 3 Supreme Court Cases 569, were not
fully followed, that by itself does not wipe out the confession.
293] In the case of Hem Raj Devilal v. State of Ajmer
reported in A.I.R. 1954 Supreme Court 462, the Hon'ble Supreme Court
of India has held that detail confession made by the accused before
competent authority cannot be condemned as a tutored confession. In
such a situation, inference has to be drawn that person recording the
confession would not be in a position to know all the details which could
otherwise be known to the accused.
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294] In the case before me, the confessions made by accused
Abu Salem and Mehendi Hasan are detailed confessions. In their
confessions they have unfolded almost all the facts, which were with their
special and exclusive knowledge. The Recording Officers were not in a
position to know all the details, which could otherwise be known to these
accused. Therefore, the proposition of law laid down this Judgment
squarely applies to the facts of this case.
295] In the case of Subramania Goundan v. State of
Madras reported in 1958 CRI.L.J. 238 (VOL 59, C.N.79)(1), the Hon'ble
Supreme Court of India has held that the confession cannot be rejected
outrightly on the ground of the retraction. It is observed that a criminal
makes a confession out of repentance, remorse and contrition and,
therefore, in normal circumstances the same is the best evidence against
the accused. The Hon'ble Supreme Court of India has further held that
when a confession is retracted, then, as a matter of prudence and caution,
which has sanctified itself into a rule of law, a retracted confession cannot
be made solely the basis for conviction unless the same is corroborated.
The Hon'ble Supreme Court has held that such corroboration can be of
general nature. The standard of corroboration to the evidence of approver
and to the retracted confession are quite different. In the case of the
person confessing who has resiled from his statement, general
corroboration is sufficient while an accomplice's evidence should be
corroborated in material particulars. In addition the Court must feel that
the reasons given for the retraction in the case of a confession are untrue.
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296] In this case before me, while appreciating the reasons
given by the accused in their retraction applications, I have observed that
the retractions made by both the accused are after-thought and under legal
advice. I have recorded the reasons in support of this finding after taking
the note of the evidence on record and undisputed facts. Similarly, the
confession of the accused once proved to be a voluntary confession is a
substantive piece of evidence and, therefore, it is admissible against the
accused to base a conviction on the same as well as it is permissible against
the co-accused subject to general corroboration. In this case the confession
of accused Abu Salem corroborates the facts stated in the confession by
accused Mehendi Hasan and vice-versa. In view of the facts and the
evidence obtained on record, the proposition of law laid down in this case
squarely applies to the facts of this case.
297] In the case of Bharat v. State of U.P. reported in
1971(3) Supreme Court Cases 950, the Hon'ble Apex Court has laid down
the law on the point of value of retracted confession. The Hon'ble
Supreme Court has held that confessions can be acted upon if the Court is
satisfied that they are voluntary and true. The voluntary nature of the
confession depends upon, whether there was any threat, inducement or
promise and its truth is judged in the context of the entire prosecution
case. The confession must fit into the proved facts and not run counter to
them. When the voluntary character of the confession and its truth are
accepted, it is safe to rely on it. It is further held that indeed a confession,
if it is voluntary and true and not made under any inducement or threat or
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promise, is the most potent piece of evidence against the maker. As far as
the retracted confession is concerned, the Hon'ble Supreme Court has held
that it stands on a slightly different footing. It is held that Court may take
into account the retracted confession, but it must look for the reasons for
the making of the confession as well as for its retraction, and must weigh
the two to determine whether the retraction affects the voluntary nature of
the confession or not. If the Court is satisfied that it was retracted because
of an after-thought or advice, the retraction may not weigh with the court
if the general facts proved in the case and the tenor of the confession as
made and the circumstances of its making and withdrawal warrant its user.
But before acting upon the retracted confession, the Courts must find
assurance from other sources as to the guilt of the accused. A retracted
confession requires the general assurance that the retraction was an after-
thought and that the earlier statement was true.
298] In view of my finding that the confessions made by
accused Abu Salem and accused Mehendi Hasan are voluntary and true
and the confessions have not been caused by any threat, inducement or
promise. Therefore, the proposition of law laid down in this Judgment
squarely applies to facts of this case. In this case, there is other evidence to
corroborate the confessions.
299] In the case of Shankar alias Gauri Shankar and
others v. State of Tamil Nadu reported in 1994 Supreme Court Cases
(Cri) 1252, the Hon'ble Supreme Court of India has held that the
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confession should be a voluntary one, that means not caused by
inducement, threat or promise. Whether a confession is voluntary or not is
essentially a question of fact. When a judicial confession is retracted, the
court shall hold that apart from the statement being voluntary, it should be
true and should receive sufficient corroboration in material particulars by
independent evidence. The Hon'ble Supreme Court has held that the rule
of prudence namely requiring corroboration does not mean that each and
every circumstance mentioned in the confession with regard to the
participation of the accused in the crime must be separately and
independently corroborated. It is sufficient if there is general
corroboration of the important incidents. It is further held that it is not
illegal to base a conviction on an uncorroborated confession of an accused
person but as a rule of prudence which has sanctified itself to the rule of
law, the courts do look for corroboration before acting upon and accepting
the retracted confession and what amount of corroboration would be
necessary in a case would be a question of fact to be determined in the
light of the circumstances of the case.
300] In view of the facts and evidence obtained on record
and discussed by me, the proposition of law in this Judgment squarely
applies to the facts of this case. In this case, there is other evidence to
corroborate the confessions by accused.
301] In the case of State of Tamil Nadu v. Kutty alias
Lakshmi Narasimhan reported in 2001 Supreme Court Cases (Cri)
1177 , the Hon'ble Apex Court has held that judicial confession does not
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become unreliable merely because it is retracted by the accused. In such
situation, Court has to ascertain whether the confession is voluntary and
true and is not vitiated by any other reason and if so, court cannot refuse
but act on it.
302] In view of the facts proved on record in this case, the
proposition of this Judgment squarely applies to the facts of this case.
303] On the point of effect of not making the complaint by an
accused of ill-treatment before Magistrate after his production immediately
after recording the confession, Ld. SPP has placed reliance upon the
decision in the case of Mohmed Amin & Anr. v. C.B.I. through its
Director reported in AIR 2008 Supreme Court (Supp) 938. In this case,
the Hon'ble Supreme Court of India has observed that if the accused does
not make a complaint of ill-treatment or torture at the hands of the
Investigating Officer or by competent officer while recording the
confession before Magistrate on production, then subsequent complaint of
such a nature made by an accused looses its significance. Such conduct of
the accused in the given set of facts reflects upon the subsequent defence
of the accused that he was forced and ill-treated to confess the crime.
304] In this case, neither accused Abu Salem nor accused
Mehendi Hasan made a complaint of ill-treatment or torture at the hands
of the Investigating Officer or by competent officers while recording their
confessions before learned Chief Metropolitan Magistrate on their
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production. Therefore, the subsequent complaint of such a nature made
by the accused loses its significance. In view of the facts, circumstances
and evidence brought on record in this case, the proposition in this
decision squarely applies to the facts of this case.
305] In the case of Ahmed Hussein Vali Mohammed Saiyed
and Anr. v. State of Gujarat reported in 2010 AIR SCW 2548, the Hon'ble
Supreme Court was dealing with a case where the competent Recording
Officer had not appended Memorandum to the confession, as required
under Rule 15 sub-Rule (3) sub-clause (b) of the TADA Rules. In the case
of the Confessions of the remaining co-accused, the Recording Officers had
appended the Memorandum to the Confessions of the remaining co-
accused. In this factual position, the Hon'ble Supreme Court of India has
held that such defect, if any, present in said confessional statements gets
cured through reliable and trustworthy deposition made by respective
Recording Officers in trial before Designated Court and such defect, if any,
gets cured by corroboration from the confessions of co-accused whose
confessions are appended with the memorandum as required under Rule
15(3)(b) of the TADA Rules. It is held that non-compliance of Rule 15 of
the TADA Rules may not be the ground to discard the confession in
entirety. In this case on appreciation of the evidence, I have recorded a
finding that there is cogent and reliable evidence to prove the compliance
of the mandatory provisions of Section 15 of the TADA (P) Act and Rule 15
sub-rule (3) sub-clause (b) of the TADA (P) Rules. While considering the
evidence, I did not find any major defect while recording the confession by
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the competent officers. As far as the minor defects pointed out by the
learned Advocate for the accused are concerned, the same can be taken
care of by applying the proposition of law laid down by the Hon'ble
Supreme Court of India in this case.
306] I would now deal with the Judgments relied upon by
the learned Advocate Shri Pasbola for the accused in support of his
submission. In the case of Jameel Ahmed v. State of Rajasthan reported
in 2003 Supreme Court Cases (Cri.) 1853, while considering the
applicability of the proposition, I must make it clear that Ld.SPP also
conceded that before placing the reliance on the confession of the accused
against co-accused, rule of prudence requires that the Court should look
for some general corroboration.
307] The learned Advocate has placed reliance on the
decision in the case of Abdulvahab Abdul Majid Shaikh and others v.
State of Gujrat with State of Gujarat v. Abdulvahab Abdul Majid
Shaikh and others with State of Gujarat vs. Salim Noormahammad
Haveliwala and another reported in ( 2007) 3 Supreme Court Cases
(Cri.) 126 and submitted that Court has to ascertain first that the
confession is voluntary and true. In this case, it is held that subsequent
retraction is not the ground to reject the confession. The crucial question
is whether at the time when the accused was giving the statement he was
subjected to coercion, threat or any undue influence or was offered any
inducement to give any confession. If these facts are present, then
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u/sec. 15 of the TADA (P) Act is a substantive piece of evidence even
against a co-accused provided the accused concerned are tried together. It
is held that when such confessional statement is to be used against a co-
accused, is as a matter of caution, a general corroboration should be
sought for. However, in cases where the court is satisfied that the probative
value of such confession is such that it does not require corroboration then
it may base a conviction on the basis of such confession of the co-accused
without corroboration. The Hon'ble Supreme Court of India has cautioned
that but this is an exception to the general rule of requiring corroboration
when such confession is to be used against a co-accused.
308] The proposition of law laid down in this decision
instead of extending a helping hand to the accused, it supports the case of
the prosecution in the backdrop of the facts proved in this case. I have
considered in detail the factual aspects qua the confessions of accused Abu
Salem and accused Mehendi Hasan and evidence of PW-11 Shri Bodkhe
and PW-12 Shri Karale.
309] Learned Advocate Shri Pasbola appearing for the
accused submitted that the confession made by the accused is itself a
dented piece of evidence. The confession made by the accused cannot be
relied upon, unless it is corroborated by the other evidence. Ld.Advocate
Shri Pasbola admitted that the corroboration may be of a general nature.
Ld. Advocate Shri Pasbola, therefore, submitted that one dented piece of
evidence, which itself requires a corroboration, cannot be used to
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question here is whether the confession of one accused, which has been
proved to be voluntary and true and the same being a substantive piece of
evidence, can be used to corroborate the confession of the co-accused tried
together. I must mentioned that answer to this question can be found from
the decision in the case of Jameel Ahmed v. State of Rajasthan reported
in 2003 Supreme Court Cases (Cri.) 1853. This Judgment has been
relied upon to substantiate some other submissions by ld.Advocate Shri
Pasbola.
311] In this case, the Hon'ble Supreme Court of India has
held that Section 15 of the TADA (P) Act has statutorily made the
confessional statement of an accused as a evidence admissible against a co-
accused and, therefore, it is futile to contend that if a corroboration is
necessary to accept the confessional statement of an accused, the same
cannot be found in another confession of co-accused in the same trial,
unless of course, the Court on facts and circumstances of a case considers it
necessary to seek corroboration from an independent source. The Hon'ble
Supreme Court of India has held that if both the confessions are of such
quality that the Court does not consider it safe to act on such confessions,
then like any other piece of evidence, the confessions of co-accused cannot
be used even for corroborating another confession of another accused on
the principle that one doubtful piece of evidence cannot be corroborated
by another doubtful piece of evidence. The Hon'ble Supreme Court of
India has held that, therefore, an acceptable confessions of a co-accused
can be used as a corroborative piece of evidence in a trial under the TADA
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(P) Act even to corroborate a confession of another accused in the same
trial. The proposition of law laid down by the Hon'ble Supreme Court of
India in this decision is a fitting reply and answer to the objection raised
on behalf of the learned Advocate for the accused. In this case, on
appreciation of the evidence, I have concluded that the confessions of
accused Mehendi Hasan and accused Abu Salem have been proved to be
voluntary and true. The confessions of accused Abu Salem and accused
Mehendi Hasan have not been caused by promise, threat, inducement,
allurement, torture, threat, coercion, undue influence, beating etc.
Therefore, by applying the law laid down by the Hon'ble Supreme Court of
India, in this case I do not see any difficulty to make use of the confessions
of accused Abu Salem and accused Mehendi Hasan against each other. In
view of this legal position, the controversy on the point of use of
confession of one accused against co-accused for the purpose of
corroboration gets fully resolved.
312] After dealing with the evidence of the Approver PW-1
Naeem Khan, the confession of accused Abu Salem and the confession of
accused Mehendi Hasan, it would now be necessary to find out the other
independent evidence and to embark upon the task of appreciating the
other independent evidence led by the prosecution on the charge of
conspiracy, murder, extortion etc. At this stage, I would like to mention
that before embarking upon the task of appreciating the evidence of other
witnesses, one more point raised by the learned Advocate Shri Pasbola
needs consideration. Ld. Advocate Shri Pasbola submitted that the case of
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the prosecution placed before this Court in the supplementary chargesheet
as well as sought to be proved by the evidence including the confessions of
the accused is contrary to its earlier case based on the same FIR. Ld.
Advocate Shri Pasbola submitted that the period of conspiracy and the
object of the conspiracy materially differs against these accused than the
one which was propounded in the earlier part of this trial. Ld. Advocate
Shri Pasbola, therefore, submitted that the evidence led in this trial by the
prosecution of Approve PW-1 Naeem Khan, confessional statements and
other witnesses is contrary to its own case, which was initially concluded
against the six accused. Ld. Advocate Shri Pasbola, therefore, submitted
that the statements made in the confessions by accused Abu Salem and
accused Mehendi Hasan on the point of period of conspiracy, the role of
some of the accused and the object of the conspiracy is totally different.
Ld. Advocate Shri Pasbola submitted that the prosecution has completely
deviated from the facts of its case in the earlier part of the trial.
313] In reply to this submission of the learned Advocate Shri
Pasbola, Ld.SPP Shri Ujjwal Nikam submitted that the crux of the
prosecution case has not been changed. Ld. SPP submitted that the
Judgment delivered by the Hon'ble Supreme Court of India in State of
Maharashtra v. Bharat Ragani reported in 2002 Supreme Court Cases
(Cri) 377 , arising out of the decision given in the same Crime No.144 of
1995 is self explanatory to answer the submissions advanced on behalf of
the accused. Ld. SPP Shri Nikam submitted that in case of conspiracy and
the fact that the main actors (accused) were absconding for quite a long
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time, it was not possible for the prosecution to know the actual conspiracy,
which was known to these actors(accused). Ld. SPP Shri Nikam submitted
that if the case of the prosecution had to be manipulated against these
accused, then the Investigating Officer would have taken abundant
precaution to collect evidence or create evidence consistent with some of
the facts of the earlier trial. In the submission of Ld.SPP some deviation in
the factual background is possible and such deviation clearly indicates that
the prosecution has come before Court with the true facts disclosed during
the course of interrogation from the mouth of accused Abu Salem and his
associates, who played pivotal role in hatching the conspiracy. They knew
the object of the conspiracy. Therefore, it is submitted by Ld. Prosecutor
that the submission advanced on behalf of the accused that prosecution
has completely deviated from its earlier case cannot be accepted.
314] The point or issue raised by learned Advocate Shri
Pasbola for the accused is very important and, therefore, it needs to be
examined carefully. Before adverting to the facts and evidence on this
point, one cannot be oblivious of the fact that pursuant to the conspiracy
hatched in Dubai, Pradeep Jain was brutally murdered. It may be noted
that utmost secrecy and confidentiality is the hallmark of the offence of
conspiracy. Ordinarily it is very difficult to get direct evidence of the
conspiracy. In case of conspiracy, in the majority of the cases, the evidence
placed before Court is mainly a circumstantial evidence. Court has to find
out the truth on the basis of the circumstantial evidence qua the conspiracy
and sometimes Court has to draw inference on the basis of the facts and
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conspiracy and further the object of the conspiracy moulded with the
changed situation from time to time has come to fore. In this case,
accused Abu Salem, accused Mehendi Hasan, accused Naeem Khan
(Approver) and accused Riyaz Siddiqui confessed their crime. In the
confessions, accused Abu Salem and accused Mehendi Hasan disclosed
about the conspiratorial meetings held in the office of Anees Ibrahim
Kaskar and accused Abu Salem at Dubai, the persons present in the
meeting, the plan hatched in the meeting, the role assigned to each one of
them and to the Approver Naeem Khan in the said conspiracy. It is,
therefore, apparent on the face of the record that now in this case all the
relevant facts qua the conspiracy have been unfolded before this court by
accused Abu Salem, accused Mehendi Hasan and Approver Naeem Khan.
Therefore, while deciding this issue, all these facts cannot be lost sight of.
316] I have gone through the Charge framed in the earlier
trial on 16/04/2007. Perusal of the charge revealed that the period of
conspiracy was between September 1994 to 07/03/1995. As per the
Charge framed in this case, which is based on the facts placed before the
Court by the prosecution, the period of the conspiracy is between
November, 1994 to 07/03/1995. As far as this period of conspiracy is
concerned, the same has been gathered from the facts and prima facie
evidence placed before the Court by the prosecution. I have already
observed that utmost secrecy and confidentiality is hallmark of the offence
of conspiracy. In this case, the Investigating Officer has placed on record
some direct evidence of the conspiracy. As per the prosecution, in the
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earlier trial accused No.3 Subhedar Singh Yadav had claimed the right over
the property, which was in possession of M/s. Kamla Construction. He had
agreed to transfer his right qua the said property to M/s. Labh
Construction for price of Rs.10.93 crores. As per the agreement, he had
taken the responsibility to obtain release, transfer or assignment of the
claim of M/s. Kamla Construction in respect of the said property. In order
to make M/s. Kamla Construction (Partnership Firm of Jain brothers) to
give up their right, he started dealing with Jain brothers with accused No.4
Shaukat Mistry, an Estate agent. When Jain brothers did not succumb to
the pressure, then accused No.3 Subhedarsingh Yadav thought of taking
the help of the Underworld gangsters to force Jain brothers to release the
property struck to accused No.3 Subhedarsingh Yadav. As per the case of
the prosecution, several meetings were held thereafter with Jain brothers.
But Jain brothers did not succumb to threats and pressure from the
Underworld people contending that they possess the valid title in respect
of the 'Kol Dongri Property'. The failure of Jain brothers, according to the
case of the prosecution, to succumb to the pressure and threats of the
Underworld Don Abu Salem culminated into the murder of Pradeep Jain.
317] It is now necessary to see whether there is any
difference in the case of the prosecution in the earlier part of trial and this
trial on the point of the conspiracy, the object of the conspiracy and the
persons involved in the conspiracy. It may be mentioned at this stage that
with slight variation in the facts, some important facts are common. The
common things are, i) the dispute over the Kol Dongri Property of M/s.
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Kamla Construction (Jain brothers), ii) Jain brothers and iii) the threats to
Jain brothers to surrender the Kol Dongri Property. It is not the case of the
prosecution that at any point of time, either accused Abu Salem or his
associates wanted Jain brothers to transfer the Kol Dongri Property to their
name. The common thread in the conspiracy is that they wanted Jain
brothers to surrender the property to third party and the said third party,
as per the case of the prosecution in the earlier part of the trial, was M/s.
Labh Constructions. All these things have not changed. All these things are
apparently common. It must be mentioned that all these common things
are the foundation of the case of the prosecution. Subhedarsingh Yadav,
accused No.3, in the earlier trial and Shaukat Mistry, accused No.4, in the
earlier trial, when realized that Jain brothers would not pay heed to them,
they took resort to the extra judicial forum in the form of the Underworld
to pressurize Jain brothers to succumb to their desire. The basic case of
the prosecution on the point of the conspiracy is to force Jain brothers to
surrender the Kol Dongri Property to some builder and thereby earn profit
by settling the deal for the said builder.
318] Besides, this case of conspiracy stated above, which is
common in the earlier part of the trial and this trial, some other facts have
come to light during the course of investigation in this case. The said fact
is with regard to the threats by accused Abu Salem to Jain brothers to pay
Rs. two crores as a ransom to force the other party to leave its claim over
the said property. As per the case of the prosecution, the said deal was
settled for Rs. one crore and out of Rs. one crore, the first installment of
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Rs. ten lakhs was paid by Jain brothers to Abu Salem through Naeem Khan
(Approver). It must be mentioned that this could not be said to be a
deviation from the earlier case of the conspiracy by the prosecution. On the
contrary, it could be said to be one more additional facet of the conspiracy
came to light during the further investigation, after arrest of accused Abu
Salem, Naeem Khan, Mehendi Hasan and Riyaz Siddiqui. Accused Abu
Salem, accused Mehendi Hasan and accused Riyaz Siddiqui were party to
the conspiratorial meeting, which took place in the office of Anees Ibrahim
Kaskar and Abu salem at Dubai. Shaukat Mistry, who was tried in the
earlier part of the trial and died during the pendency of appeal, was the
only person present, when the conspiracy was hatched in Dubai. It is,
therefore, apparent on the face of the record that the prosecution in the
earlier part of the trial had no benefit of any direct evidence about the
conspiracy.
319] It may be mentioned that having got an access to the
direct evidence on the conspiracy certain new facts have come to light. It
may be mentioned that because of the disclosure of certain new facts for
the first time could not be said to be a somersault by the prosecution to its
earlier case. It is, therefore, seen that the core of the conspiracy, the
persons involved in the conspiracy, the object of the conspiracy, the
property involved being subject-matter of the dispute in the conspiracy and
Jain brothers are all common. It may be mentioned that case of the
conspiracy revealed at the time of the earlier trial was qua the accused
arrested and put on trial in TADA Special Case No. 22 of 1995. The
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accused arrested and put on trial in TADA Special Case No.22 of 1995 were
not main actors in the conspiracy. It may be noted that almost all the
accused tried in TADA Special Case No. 22 of 1995 were tried for their role
in the conspiracy namely to follow the commands and dictates of Abu
Salem and see that the conspiracy is taken to its logical end. All the
accused in the earlier trial i.e. TADA Special Case No.22 of 1995 were
almost the stooges to follow the commands and dictates of Abu Salem.
The main object of the conspiracy as far as Abu Salem is concerned was to
earn money by hook or crook. It is seen on perusal of the evidence
adduced by the prosecution in this case that accused Abu Salem went on
changing or moulding his strategy depending on the developments and/or
change in the circumstances. It can be seen that when Abu Salem realized
that surrender of the property could not be materialized, he seems to have
changed his plan and object and tried to settle a deal with Jain brothers to
extort Rs. two crores from them as a ransom to do away with the other
party.
320] It may be noted that the main accused, who played a
pivotal role in the conspiracy, were arrested after ten years and on their
arrest, certain intrinsic facts of the conspiracy and the role played by each
one of them came before Court in the form of vivid details. In view of this
position, I am of the opinion that the core of the conspiracy hatched and
the object of the conspiracy has not been changed. The period as pointed
out by learned Advocate for the accused of conspiracy is different. But
there is no much difference between the period. I have already discussed
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the evidence of the Approver and the confessions of accused Abu Salem
and accused Mehendi Hasan. I have found that the evidence of the
Approver PW-1 Naeem Khan is reliable and credible. As far as the
confessions are concerned, I have found that the confessions of accused
Abu Salem and accused Mehendi Hasan are voluntary and true. The
confessions have not been caused by inducement, threat, promise,
coercion, ill-treatment, beating, force, undue influence, allurement, torture
etc. Even in his confession accused Abu Salem has stated that in the
month of October, 1994 Riyaz Siddiqui came to their office and apprised
him and Anees about the Kol Dongri Property of Jain brothers and gave a
telephone Number of Ashok Jain. So, there is no much difference between
the period of conspiracy. According to Abu Salem, he was made aware of
the dispute of the Kol Dongri Property and the stakes involved in the
property and likely profit they could make out of transaction, if it is
handled carefully. The confession of accused Abu Salem further reveals
that after getting the information of this dispute of the Kol Dongri Property,
he put the wheels of his gang in motion to find out the truth and to explore
the possibility of the profit, which could be made out of the transaction.
Therefore, factually there is no difference between the period of the
conspiracy stated in the earlier trial and in this trial.
321] Initially, as per the case of the prosecution, Jain brothers
were pressurized to surrender the property in favour of 'M/s. Labh
Constructions'. It is not the case of the prosecution that at any point of
time accused Abu Salem and his associates threatened or pressurized Jain
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brothers to transfer the Kol Dongri Property to Abu Salem or his associates.
It can be seen that when they realized that Jain brothers were not ready
even by applying threats to surrender the property, accused Abu Salem
found out some new way to earn easy money from Jain brothers. All these
facts have been admitted by accused Abu Salem in his confession.
Similarly, PW-1 Naeem Khan, Approver, who was acting as per the
instructions of Abu Salem and following his instructions scrupulously, has
deposed about the change of a stance and a strategy, when their attempts
to pressurize and threaten Jain brothers to surrender the property in
favour of 'M/s. Labh Construction' were frustrated.
322] It is seen on perusal of evidence of PW-9 Jyoti Jain and
PW-13 Sunil Jain that they appears to have made a incomplete disclosure
of certain facts known to them. As far as evidence of Sunil Jain and Jyoti
Jain is concerned, I may deal with the same separately. I would offer my
comments on all the aspects and circumstances touching the evidence of
Jyoti Jain and Sunil Jain at the appropriate stage. It is, therefore, seen that
there is no material difference between the case of a conspiracy in the
earlier part of the trial and this trial. The object of the conspiracy has not
been changed. The added object of the conspiracy has surfaced after arrest
of the main actors in the conspiracy. In the context of the above stated
point, it is necessary to deal with the defence of the accused at this stage.
As per the defence of the accused that by changing the prosecution case,
the Investigating Officer has planted the evidence against the accused. If
this defence is weighed properly, then certainly the balance tilts in fovour
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of the prosecution. In this case from day one of taking custody of accused
Abu Salem, the Special Prosecutor started appearing before Court. The
Investigating Officer and the Prosecutor could not be said to be oblivious
of the case of the prosecution qua conspiracy and the object of the
conspiracy in the earlier part of the trial. In this case, the investigation
was entrusted to the Anti Terrorism Squad, a Special Branch created to
deal with serious crimes. The Officer of a rank of of Assistant
Commissioner of Police was made the incharge of the Investigation Team.
If the prosecution wanted to plant false witnesses, then they would have
made those witnesses to speak in tone with the case of the prosecution in
the earlier trial. But it appears that police did not do it. Even by taking the
risk of placing certain facts on record, which, to some extent, deviate from
earlier case of the prosecution, they have come before Court with the
evidence collected during the course of interrogation. This attempt on the
part of the Investigating Officer clearly indicates that, he has not concealed
any evidence from this Court. Whatever evidence he had collected during
the course of the investigation, though it may run counter to the case of
the prosecution on certain facts, has been placed on record.
323] It may be noted that if the Investigating Officer had
decided to concoct a case by planting the evidence of his choice, he could
have done it. But the material placed on record vindicates the sincere
attempt of the Investigating Officer. The Investigating Officer by taking the
risk of placing all the evidence on record, though it is contrary to some
facets of the case of the prosecution in earlier trial, has justified his
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bonafides. It must be mentioned that this sincere attempt on the part of
the Investigating Officer to place on record all evidence and material
collected vindicates the stand of the prosecution and on the basis of
material placed on record, the theory propounded by the defence that
certain evidence has been planted and concocted to involve these accused
in this case cannot be accepted. It is, therefore, seen that basic core of the
case of the prosecution has not been changed. The object of the conspiracy
is same. The persons involved in the conspiracy are same. Jain brothers
and their Kol Dongri Property is the common thread of the conspiracy. The
object of conspiracy was to threaten and pressurize Jain brothers to
surrender the property and in case of their failure to succumb to the
threats and pressure, to kill one of the Jain brothers. The evidence placed
on record would show that Jain brothers did not budge to the threats and
pressure. Accused Abu Salem, who is the master mind in this conspiracy,
befitting with the situation, moulded and changed his stance and made
Jain brothers to pay ransom, to force the other party to do away with the
property of Jain brothers. It must be mentioned that this new fact revealed
during further investigation could not be said to be contrary to the case of
prosecution on the point of conspiracy. On the contrary, it has to be said to
be an act in continuation with the object of the conspiracy, which was
hatched in Dubai in the year 1994. It may further be mentioned that some
variance/ deviation is bound to happen in such a serious matter. If
variance in the case of the prosecution is such, that it attacks at the very
core and root of the prosecution, then it has to be taken serious note and
viewed with suspicion. If deviation or variance is minor and which is the
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net result of the disclosure of certain new evidence or material, then, it
cannot be given much importance.
324] In the context of this issue, it is necessary to deal with
one more submission made by ld. Advocate Mr. Pasbola. Ld. Advocate Shri
Pasbola submitted that accused Abu Salem can neither be charged nor
tried for the offence punishable u/sec. 120-B of the Indian Penal Code,
inasmuch as this charge is beyond the scope of the order of extradition
passed by the Portuguese Government and the Portuguese Judicial Forums.
Ld. Advocate Shri Pasbola submitted that without any material being
placed on record, it cannot be assumed or presumed that the charge u/sec.
120-B of the Indian Penal Code, which has been framed against accused
Abu Salem, was included in the request made for extradition as well as in
the order of extradition. Ld.Advocate Shri Pasbola submitted that the trial
of accused Abu Salem for the offence u/sec. 120-B of the Indian Penal
Code is against the law of extradition in India and more particularly in
breach of the Rule of Specialty. Ld. Advocate Shri Pasbola submitted that
the facts disclosed before the Portuguese Authorities did not mention the
offence u/sec. 120-B of the Indian Penal Code against accused Abu Salem
in Crime No. 144 of 1995 registered at D.N. Nagar Police Station and,
therefore, it cannot be said that this accused was extradited to India to face
the charge u/sec. 120-B of the Indian Penal Code in C.R. No. 144 of 1995
registered at D.N. Nagar Police Station. Ld.Advocate Shri Pasbola further
submitted that after extradition of accused Abu Salem to India, certain
additional facts have been placed before this Court, which in the
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submission of learned Advocate Shri Pasbola are contrary to the order of
extradition. On this point, learned SPP Shri Ujjwal Nikam submitted that
this submission advanced on behalf of accused Abu Salem is without any
substance and merit. Ld.SPP submitted that the submissions are factually
incorrect. Ld.SPP submitted that time and again it has been held by
Judicial pronouncements that this accused has been extradited to India to
face the charge of conspiracy u/sec. 120-B of the Indian Penal Code in
Crime No. 144 of 1995 registered at D.N. Nagar Police Station. Ld.SPP
submitted that this issue was decided by the Hon'ble Supreme Court of
India vide Judgment and Order dated 10/09/2010 reported in Judgment's
Today 2010(10) Supreme Court 202. Ld.SPP Shri Nikam pointed out that
this Court by order dated 13th and 15th January, 2014 rejected the
contention raised on behalf of the accused similar to the one raised before
this Court now.
325] At the outset, it is necessary to mention that the matter
arising out of interim orders passed by this Court was carried in appeal
before the Hon'ble Supreme Court of India on umpteen times. Accused
Abu Salem, as can be seen from the record, has not left a stone unturned
to frustrate the prosecution case against him for the charge u/sec. 120-B of
the Indian Penal Code in C.R. No. 144 of 1995 registered at D.N. Nagar
Police Station. By order dated 13th and 15th January, 2014, I have decided
this issue. However, in order to avoid any multiplicity of proceedings in
future, I propose to deal with this issue briefly. It is also warranted in view
of certain facts prima facie established before me on the basis of concrete
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and cogent evidence. Accused Abu Salem was one of the wanted accused
in C.R. No. 144 of 1995 registered at D.N. Nagar Police Station. The
Government of India was required to fight long drawn legal battle before
the Portuguese Authorities and the Judicial Forums to seek extradition of
accused Abu Salem to India. Accused Abu Salem was extradited to India
by the Government of Portugal on the request of the Government of India
for facing the charges in various offences mentioned in the order of the
extradition dated 14/07/2004 passed by the Court of Appeals of Lisbon.
The Hon'ble Supreme Court of Justice of Republic of Portugal by its order
dated 27/01/2005 upheld the order dated 14/07/2004 passed by the
Court of Appeals of Lisbon and authorized extradition of accused Abu
Salem to Union of India for facing the charges/trial of the offences, as
disclosed by the Public Prosecutor of Portugal to the Court of Appeals of
Lisbon. The order of extradition was studded with certain conditions. In
view of the extradition order, accused Abu Salem was brought to India on
11/11/2005. As noted above, accused Abu Salem was shown arrested in
C.R.No. 144 of 1995 registered at D.N. Nagar Police Station on
24/11/2005. The investigation in the said crime was transferred to the
Anti Terrorism Squad, Mumbai, and after conducting the investigation, the
ATS/Investigating Officer filed supplementary Charge sheet against
accused Abu Salem and others on 20/04/2006 for the offences u/sec.s
302, 307, 384, 452, 506 read with Section 120-B of the Indian Penal Code
and Sections 5 and 27 of the Arms Act and Sections 3(2), 3(3), 3(5) and
Section 5 of the TADA (P) Act, 1987. At this stage, it may be mentioned
that before framing the charges, my learned predecessor had heard learned
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SPP and the learned Advocates appearing for the accused. My learned
predecessor by a Speaking Order dated 16/04/2007 sustained the prayer
made by the learned Prosecutor for framing the charge against the accused
for the conspiracy u/sec. 120-B of the Indian Penal Code with other
offences.
326] The accused felt aggrieved by this order dated
16/04/2007 and challenged the same in the Hon'ble Supreme Court of
India by filing Criminal Appeal No. 990 of 2006. The basic
allegation/contention of accused Abu Salem before the Hon'ble Supreme
Court of India was that the charges framed against him for the offences
were in breach of the order of extradition and it amounted to breach of the
Rule of Speciality. The Hon'ble Supreme Court of India decided the
Criminal Appeal No. 990 of 2006 vide its Judgment and Order dated
10/09/2010 and held that there was no breach of the Rule of Speciality.
The Hon'ble Supreme Court of India further held that accused Abu Salem
could have been tried for such offences which are lesser in nature than the
offences for which the extradition has been granted. The Hon'ble Supreme
Court of India has categorically held that there was no breach of the
provisions of Section 21(b) of the Indian Extradition Act, 1962.
327] The accused Abu Salem has been charged in this case
u/sec. 120-B of the Indian Penal Code on the allegation that in conspiracy
with the other accused, between November, 1994 to 7th March, 1995 at
Dubai and at Greater Bombay, agreed to strike a terror in Jain brothers and
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Builder community and to compel Jain brothers to pay extortion amount of
Rs.1 crore and in pursuance of the said agreement/conspiracy on or about
07/03/1995, the accused Salim Rashid Shaikh, Uday Pawar, Sanjay Kadam
and Rajesh Igave and wanted accused Sunil Nair, committed the house
tress-pass by entering into the office of 'Kamla Construction Company' and
committed the murder of Pradeep Jain.
328] At this stage, it is necessary to mention that the similar
kind of objection was raised by accused Abu Salem for framing charges
against him in the Bombay Bomb Blasts Case of 1993. The order passed
rejecting his contention that those charges were also not covered by the
extradition order, was also challenged by filing a proceeding in the
Hon'ble Supreme Court of India. It was the main contention of the
accused Abu Salem before the Hon'ble Supreme Court of India that the
charges framed in this case as well as the charges framed against him in
the Bombay Bomb Blasts Case, were not covered by the order of the
extradition and, therefore, the Union of India committed the breach of
Rule of Speciality. I have already mentioned that those Appeals were
decided by the order dated 10/09/2010 by the Hon'ble Supreme Court of
India. In this Judgment, the Hon'ble Supreme Court of India after
considering the contentions of the accused Abu Salem and after
considering the relevant provisions of law, has held that there was no
breach of Rule of Speciality. The Hon'ble Supreme Court of India
confirmed the order of my learned predecessor dated 16/04/2007
holding that the Union of India made it clear to the Government of
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Portugal that as far as C.R.No. 144 of 1995 is concerned, it was a case of
criminal conspiracy and the Government of Portugal had accepted the said
contention of the Union of India as it is. In substance, the Hon'ble
Supreme Court of India confirmed the order of my learned predecessor
holding that the accused in this case can be tried for the offence
punishable u/sec. 120-B of the Indian Penal Code and the said charge
could not be said to be de-hors the order of the extradition of accused Abu
Salem in this case.
329] At this stage, it is necessary to mention that the Hon'ble
Supreme Court of India in the Judgment dated 10/09/2010 reproduced
the contention/stand of accused Abu Salem in Para No.7/7.1. In Para No.
29 of the Judgment, the Hon'ble Supreme Court of India while dealing
with the stand of the accused Abu Salem in this case, has observed that
''the Supreme Court of Justice, Portugal has granted extradition of
appellant Abu Salem for all the offences mentioned in Para-1 of the
Order dt. 27/01/2005''. The relevant observations are in Para No.33 of
the Judgment of the Hon'ble Supreme Court of India. The Hon'ble
Supreme Court of India has observed that the extradition granted in the
present case had due regard to the facts placed which could cover the
offences with which the appellant has been charged. The Hon'ble Supreme
Court of India has further observed that as rightly pointed out by the
learned Solicitor General, the offences are disclosed by the same set of
facts placed before the Government of Portugal. The Hon'ble Supreme
Court of India has further observed that the submissions of the learned
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Solicitor General need acceptance and ultimately confirmed the decision of
the Designated Court framing the charge against accused Abu Salem. The
Hon'ble Supreme Court of India has categorically held that there was no
breach of Rule of Speciality. As far as this case against accused Abu Salem
is concerned, the Hon'ble Supreme Court of India has confirmed the order
of this Court framing the charge against the accused Abu Salem u/sec.
120-B of Indian Penal Code and other offences.
330] It is necessary to see the material placed before the
Portuguese Authorities qua charge u/sec. 120-B of the Indian Penal Code
in this case. One can locate the said material from the order dated
08/11/2005 passed by the Court of Appeals of Lisbon. By this order, the
Court of Appeals of Lisbon has noted down the material placed by the
Union of India constituting the offence of criminal conspiracy. It can be
found in Para No. 7 of the Judgment. The facts disclosed are as follows.
'' In short, these offences have been charged based on the alleged
commitment by the person to be extradited of the following
facts:
In the year of 1995, in co-operation with other individuals (that
have been sentenced meanwhile), he planned the physical
elimination of two brothers in Mumbai because he did not
succeed to convince them to sell some real estate in his favor.
Using sophisticated weaponry, he shot one of them and had the
other one injured.''
331] The Court of Appeals of Lisbon had initially turned
down the prayer for extradition of accused Abu Salem for offences
providing the punishment of death and imprisonment for life. Therefore,
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the matter was carried in Appeal before the Hon'ble Supreme Court of
Justice of Republic of Portugal. The said Appeal was decided on
27/01/2005. The Hon'ble Supreme Court of India has noted down in Para
No.29 the facts presented before the Portuguese Government and those
facts were found reproduced in the Judgment of the Hon'ble Supreme
Court of Justice of Republic of Portugal in Para No.1 of the Judgment. As
far as C.R. No. 144 of 1995 registered at D.N. Nagar police Station is
concerned, the Hon'ble Supreme Court of Justice of Republic of Portugal
has taken cognizance of all those facts and considered the same in the
Judgment. While passing the order dated 27/01/2005 the Hon'ble
Supreme Court of Justice of Republic of Portugal took note of the following
facts. The said facts reads thus:
'In co-operation with other individuals (that have been sentenced
meanwhile in the year of 1995), he devised physical elimination
of two brothers in Mumbai because he did not succeed to
convince them to sell some real estate in his favor. By resortingto sophisticated weaponry, he had shot one of them and the
other one was injured.''
332] On going through the record placed before me, it is
clear beyond doubt that the facts constituting the offence of criminal
conspiracy to eliminate the Jain brothers and prime involvement of
accused Abu Salem therein, were presented before the Portuguese
Authorities and those facts had been duly considered by all the concerned
Authorities and based on consideration of those facts, accused Abu Salem
was extradited to India for the trial of those offences. At the cost of
repetition, it is necessary to mention that order of this Court dated
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16/04/2007 framing charges against accused Abu Salem including the
charge of conspiracy was challenged before the Hon'ble Supreme Court of
India. The Hon'ble Supreme Court of India, after considering all these
facts and the objection raised by accused Abu Salem, confirmed the order
of this Court dated 16/04/2007 whereby the charge u/sec. 120-B and for
other offences was framed against him. In the Judgment of the Hon'ble
Supreme Court of India dated 10/09/2010, arising out of the order passed
by this Court dated 16/04/2007 in this case and the order passed in the
Bombay Bomb Blasts Case of 1993, reported in Judgments Today
2010(10) Supreme Court page-202 in the case of “Abu Salem v. State of
Maharashtra”, the Hon'ble Supreme Court of India has held that there was
no breach of Rule of Speciality. Similarly, there was no violation of the
provisions of Section 21(b) of the Indian Extradition Act, 1962. It may,
therefore, be mentioned that the point raised by the learned Advocate Shri
Pasbola for accused Abu Salem has been finally decided by the Hon'ble
Supreme Court of India. It is, therefore, not possible to accept the
submissions advanced on behalf of accused Abu Salem by learned
Advocate Shri Pasbola on this point.
333] In order to complete discussion on this point, it would be
appropriate to take note of the subsequent development. The said
subsequent development has been recorded by the Hon'ble Supreme Court
of India in its order dated 05/08/2013 in Criminal Appeal No. 415-416 of
2012. It may be mentioned that for some reason or the other, the CBI
moved the Hon'ble Supreme Court of India for modification of the
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Judgment and order dated dated 10/09/2010 in the case of ' Abu Salem v.
State of Maharashtra' and prayed for permission to withdraw certain
charges, which according to the CBI were not covered by the order of
extradition. It may be significant to note at this stage that the Government
of Maharashtra did not make any application before the Hon'ble Supreme
Court of India for modification of the order of the Hon'ble Supreme Court
of India dated 10/09/2010 in the case of 'Abu Salem v. State of
Maharashtra' so far as it relates to the conformation of the order of this
Court dated 16/04/2007 whereby the charge against accused Abu Salem
u/sec. 120-B of the Indian Penal Code was framed. It may be mentioned
at this stage that the Hon'ble Supreme Court of India, in the peculiar facts
brought on record by the CBI, modified the order dated 10/09/2010
passed in the Bombay Bomb Blasts Case 1 of 1993 on the point of framing
certain charges against accused Abu Salem. The Hon'ble Supreme Court of
India has made some candid observation while modification of the said
order on the prayer of the CBI.
334] In the context of the submissions advanced by learned
Advocate Shri Pasbola, it is necessary to make a mention of those
observations of the Hon'ble Supreme Court of India from order dated
05/08/2013. The Hon'ble Supreme Court of India has observed that the
modification Petition is allowed only to the extent of withdrawal of the
additional charges framed against the Appellant (Abu Salem) in Bombay
Bomb Blasts Case. In Para No. 16 of the Judgment and Order dated
05/08/2013, the Hon'ble Supreme Court of India has observed that the
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analysis and reasoning rendered in the Judgment and Order dated
10/09/2010 in the case of 'Abu Salem v. State of Maharashtra' with
regard to the interpretation of the Principle of Speciality still stands good,
as the law declared by this Court under Article 141 of the Constitution of
India and shall be binding on all the Courts within the territory of India.
The Hon'ble Supreme Court of India further held in the order dated
05/08/2013 that the accused Abu Salem could be tried in India despite the
decision of the Constitutional Court of Portugal. The Hon'ble Supreme
Court of India has further held that the decision of the Constitutional Court
of Portugal is not binding on the Courts in India. The Hon'ble Supreme
Court of India by order dated 05/08/2013 permitted the CBI to withdraw
the Charges at Sr.Nos. 3 to 8 only framed against the accused Abu Salem in
Bombay Blasts Case.
335] It may be noted at this stage that in the order dated
05/08/2013, the Hon'ble Supreme Court of India took note of the
statement made by the learned Attorney General of India. The learned
Attorney General of India made a statement before the Hon'ble Supreme
Court of India that they are in the process of withdrawing other charges
pending in various States against the appellant Abu Salem, which are
claimed to be in violation of extradition order and the Hon'ble Supreme
Court of India recorded the aforesaid statement made by the learned
Attorney General of India. Taking advantage of this statement, a
submission was made before this Court by learned Advocate Shri Pasbola
for accused Abu Salem that the prosecution in this case is bound to
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withdraw the charge u/sec. 120-B of the Indian Penal Code framed against
accused Abu Salem inasmuch as it was not covered in the order of
extradition of accused Abu Salem to India. In view of the statement of the
learned Attorney General of India, learned Spl.P.P. applied for withdrawal
of the charges u/sec. 386 and 387 of the Indian Penal Code and Section 5
of the TADA (P) Act, 1987. At the same time, learned Spl.P.P. pointed out
that the prosecution would not press for framing charge against accused
Abu Salem u/sec.s 384, 449, 450, 452, 506 of the Indian Penal Code and
Section 5 and 27 of the Arms Act. In view of the prayer made in
Exhibit-519 by order dated 13th and 15th January, 2014 the prosecution
was allowed to withdraw the charges u/sec. 386, 387 of the Indian Penal
Code and Section 5 of the TADA (P) Act, 1987 against accused Abu Salem.
It is, therefore, crystal clear that time and again it has been held that the
trial of the accused Abu Salem for the offence of criminal conspiracy u/sec.
120-B of the Indian Penal Code was not contrary to the order of
extradition. After considering all the material placed on record, the
Hon'ble Supreme Court of India has held that the facts constituting an
offence u/sec. 120-B of the Indian Penal Code were very much presented
before the Portuguese Authorities by the Union of India. In view of this
position, the submission that the charge u/sec. 120-B of the Indian Penal
Code is in violation of the extradition order, cannot be sustained. It may
be noted at this stage that the main charge against accused Abu Salem is
u/sec. 120-B of the Indian Penal Code. If the charge u/sec. 120-B of the
Indian Penal Code is not framed against accused Abu Salem, then it would
be difficult for the prosecution to establish other charges against accused
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Abu Salem. It must be mentioned that, this could not be and was not the
object of the Union of India, when the facts of C.R. No. 144 of 1995
registered at D.N. Nagar Police Station were presented before the
Government of Portugal seeking extradition of accused Abu Salem for
facing the trial in C.R. No.144 of 1995 registered at D.N. Nagar Police
Station. The facts presented before the Portuguese Government and
Authorities distinctly stated the allegations against accused Abu Salem in
C.R. No. 144 of 1995 registered at D.N. Nagar Police Station. The Judicial
Forums in Portugal have taken note of those facts. For the purpose of
convenience, I have reproduced those facts in the earlier part of my
Judgment.
336] In the backdrop of the above said observations, it is
necessary to deal with the submission that the prosecution was not
empowered to place on record the facts subsequently discovered after
extradition of accused Abu Salem to India to form the basis of the charge
u/sec. 120-B of the Indian Penal Code. This submission cannot be
accepted for more than one reasons. I have already observed that the facts
constituting the offence of the conspiracy to eliminate the Jain brothers in
the crime with some other accused were placed/presented before the
Portuguese Authorities and on the basis of those facts extradition of the
accused Abu Salem was ordered. In the earlier part of my Judgment, I
have observed that accused Abu Salem was the master mind in this crime.
The accused put on trial in this crime in TADA Special Case No. 22 of 1995
were the stooges of the accused Abu Salem. They were acting at the
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commands and dictates of the accused Abu Salem. Accused Abu Salem
was the decision maker and they were simply assigned the job to execute
the said decision. The main accused namely accused Abu Salem, accused
Naeem Khan (Approver) and accused Mehendi Hasan were absconding.
The accused Abu Salem was arrested in this crime on 24/11/2005. The
remaining accused, who are facing the trial before me, were arrested after
24/11/2005. In the earlier part of investigation, the involvement of
accused Mehendi Hasan and accused Riyaz Siddiqui was not even
disclosed by name. Their involvement was revealed/disclosed during the
course of interrogation of accused Abu Salem. Accused Mehendi Hasan
appears to be the trusted soldier of the accused Abu Salem. Accused
Mohd. Naeem Khan (Approver) was following the commands and dictates
of the accused Abu Salem because accused Abu Salem had obliged Naeem
Khan in a case pending against his nephew. Accused Riyaz Siddiqu was
initially the Approver in this case. However, he did not comply the
conditions of the Pardon tendered to him and, therefore, he has been
relegated to the position of accused and being tried separately as per the
mandate of law. It may be mentioned that during the course of
interrogation of accused Abu Salem, Mehendi Hasan, Naeem Khan and
Riyaz Siddiqui, they have unfolded the first hand account of the
conspiracy, the object of the conspiracy, the persons involved in the
conspiracy and moulding of the object of the conspiracy by accused Abu
Salem depending upon situation faced to put the conspiracy to its logical
end.
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unwarranted leverage cannot be granted in favour of the prosecution. The
prosecution can be made to play within the playing field. As understood
by our 'Criminal Jurisprudence', where some additional facts are placed on
record or slight deviation made from earlier facts, then the same has to be
tested on the 'Criminal Jurisprudential Principles.' Our Criminal
Jurisprudence tilts the balance in favour of the accused. As per our
'Criminal Jurisprudence' the theory propounded is that, “Let hundred
criminals be acquitted but not a single innocent person be convicted.” We
are governed by the rule of law. When were governed by the rule of law,
the application of above stated criminal jurisprudential principle becomes
prominent. In short, as per our 'Criminal Jurisprudence', the accused is
treated as a “Holy Cow”. He cannot be termed as an accused unless and
until he is proved guilty of the crime. At the same time, above said
principles of Criminal Jurisprudence does not propound that while
adhering to this principle the Court should completely ignore the victim
and the society at large. The prosecution is required to prove the guilt
against the accused beyond reasonable doubt. The accused is not required
to prove anything. The accused is also not required to place any defence
on record. He can remain silent as far as any defence is concerned. But,
this principle cannot be stretched to such an extent to go out of way by
extending benefit to the accused where there is acceptable evidence. A
stereo type evidence is possible only when there is concoction and
tutoring. If there is no concoction and tutoring, then there is bound to be
inconsistencies, variance, to some extent contradictions in the case of the
prosecution and the evidence of the witnesses. It must be mentioned that
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when there are inconsistencies and contradictions in the evidence of the
prosecution witnesses that is to a larger extent an assurance that the case
and witness is not tutored and concocted. While taking care of right of
accused propounded under Criminal Jurisprudence, the Court has to
balance scale and see that at the same time interest of the victim and
society at large is protected. In the context of the facts of this case, it
needs to be observed that the terrorism has become a global phenomena.
The terrorists activities are on the rise. The object of the terrorists differs
from case to case. However, whenever there is a terrorists activity, the
ultimate victim of the same is society and people at large. The Criminal
Administration of Justice is equally answerable to the victims of the crime
and the society at large. The Criminal Courts cannot ignore the plight of
the victims and the society at large, which become scapegoat of the
terrorists activities. The object of the terrorists may differ, but while
fulfilling the different objects of different terrorists, the ultimate sufferer is
the society. The victim and the society, who have suffered at the hands of
the terrorists, are bound to cry for justice. It may be mentioned that while
balancing the principle of Criminal Jurisprudence, as propounded herein
above, the Court has to balance the scale and see that within the permitted
parameters of law justice is done to the accused as well as to the victims
and the society at large.
EVIDENCE OF PW-9 JYOTI JAIN
339] PW-9 Jyoti Jain is the unfortunate widow of Pradeep
Jain. According to the prosecution, her evidence is direct evidence on the
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episode of a phone call from Abu Salem, which she had picked up and
later on handed over to Pradeep Jain and the events occurred at that time.
It is further case of the prosecution that her evidence is direct evidence on
the point of the second phone call received by her from Abu Salem, after
the murder of Pradeep Jain on the 13th day ceremony of Pradeep Jain and
the threats extended by the accused Abu Salem to satisfy his demand of
ransom. PW-9 Jyoti Jain was examined as a witness in the earlier part of
the trial i.e. TADA Special Case No. 22 of 1995 (PW-33) on 25/03/1997.
The prosecution has heavily relied upon her evidence to prove certain
material facts and seek independent corroboration to the evidence of the
Approver PW-1 Naeem Khan and general corroboration to the confessions
of the accused Abu Salem and accused Mehendi Hasan.
340] Ld. SPP Shri Ujjwal Nikam submitted that PW-9 is a
natural witness. Ld.SPP Shri Nikam submitted that the statement of PW-9
Jyoti Jain on the point of the threats disclosed to her by her husband
immediately after completion of telephonic conversation with Abu Salem
would fall within the domain of oral dying declaration inasmuch as it
forms the part of the transaction and circumstances which resulted / led to
the death of Pradeep Jain. Ld.SPP Shri Nikam submitted that the evidence
of PW-9 Jyoti Jain proves that direct threats were extended to her by
accused Abu Salem. Ld.SPP Shri Nikam submitted that the evidence of
PW-9 Jyoti Jain is consistent, cogent and reliable. Ld. SPP Shri Nikam
submitted that the omissions brought on record in her cross-examination
are minor omissions and. therefore, cannot be given much importance to
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discredit the testimony of PW-9 in toto. Ld. SPP Shri Nikam submitted that
while appreciating the evidence of PW-9 Jyoti Jain, the Court has to bear
in mind the plight and the state of mind of the witness, after the murder of
her husband and also the continuous spell of threats at the hands of
accused Abu Salem. Ld.SPP Shri Nikam, therefore, submitted that even if
certain disclosures are made for the first time while giving evidence in this
case, the same cannot be viewed with a suspicion in the backdrop of
certain facts brought on record by the prosecution.
341] Ld. Advocate Shri Pasbola for the accused submitted
that the evidence of PW-9 Jyoti Jain is concocted and brought into
existence to falsely involve the accused in this case. Ld. Advocate Shri
Pasbola submitted that there are various major omissions, inconsistencies
and contradictions in her evidence on material facts. Ld. Advocate Shri
Pasbola submitted that the evidence of PW-9 Jyoti Jain is contradictory to
the evidence given on oath before this Court in TADA Special Case No. 22
of 1995. Ld. Advocate Shri Pasbola pointed out various improvements
made by this witness in her deposition before this Court and on the basis
of those improvements submitted that the improvements have been made
to support the evidence of the planted witness PW-1 (Approver Naeem
Khan) Ld. Advocate Shri Pasbola submitted that the prosecution has not
placed on record any plausible explanation for the material omissions,
contradictions and inconsistencies in the evidence of PW-9 Jyoti Jain. In
the submission of Ld.Advocate Shri Pasbola the evidence of PW-9 Jyoti Jain
is full of improvements and exaggeration on certain material facts. Ld.
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Advocate Shri Pasbola submitted that the evidence of PW-9 Jyoti Jain and
PW-13 Sunil Jain, on the facts deposed by PW-9, is contradictory.
342] In order to appreciate the rival submissions and to come
to a conclusion on the point of reliability and creditworthiness of the
evidence of PW-9 Jyoti Jain, it is necessary to bear in mind certain facts
having a pre-dominant importance in the peculiar nature of this case.
Undisputedly Pradeep Jain was murdered on 07/03/1995. As per the case
of the prosecution accused Abu Salem is the brain behind the crime and
the other accused were his stooges to follow his commands and dictates
pursuant to the conspiracy hatched in Dubai. Jain brothers were
pressurized and threatened to surrender their right over the Kol Dongri
Property. Similarly, when with the passage of time, accused Abu Salem
realized that he could not force the Jain brothers to surrender the property
and satisfy the other party, he took a somersault and started making
threats of the dire consequences to the Jain brothers to pay him Rs. one
crore. After the murder of Pradeep Jain on 07/03/1995, PW-9 Jyoti Jain
could not bear the shock and, therefore, she was admitted to hospital.
Though the wheels of the investigation were put into motion on 7th itself,
her statement could not be recorded till 10/03/1995. She was discharged
from the hospital on 10/03/1995. While appreciating the evidence of
PW-9 Jyoti Jain, one cannot be oblivious of the fact that the Jyoti Jain must
be under tremendous shock and completely horrified and shaken by the
diabolical, dasterdly and depraved act of accused Abu Salem. Even by
applying any standard, the shock and trauma of the death of her husband
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Pradeep Jain would not have been erased from her mind on 10/03/1995.
By applying any standard of prudent man, she would have taken months
together to come out of the shock, trauma and horror and, therefore, in the
process, if some omissions had occurred while stating certain facts, then,
merely because of that her entire evidence cannot be looked with
suspicion.
343] In the earlier trial, six accused were tried. Accused Abu
Salem and his main associates were at large. PW-9 Jyoti Jain's second
statement was recorded after the arrest of accused Abu Salem. In her
statement, besides the facts stated by her in her earlier statement, she has
narrated the incident occurred on 13th day death of Pradeep Jain. In view
of the facts stated above, one can visualize the plight, shock and trauma
undergone by PW-9 Jyoti Jain in particular and Jain family in general. Her
evidence would show that spell of threats at the hands of accused Abu
Salem continued even after murder of Pradeep Jain to satisfy his greed and
force the Jain brothers to part with the ransom amount. It is now
necessary to consider the evidence of PW-9 Jyoti Jain keeping in mind all
the above stated facts.
344] The evidence of PW-9 Jyoti Jain was recorded in the
earlier trial on 25/03/1997. In her evidence, PW-9 Jyoti Jain has narrated
two incidents. First incident occurred in the month of February, 1995 and
the second occurred on 13th day death ceremony of her husband Pradeep
Jain on 20/03/1995. Her statement recorded earlier on 10/03/1995 and
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her evidence given in earlier trial i.e. TADA Special Case No. 22 of 1995 on
25/03/1997 is silent about the incident of a phone call dated 20/03/1995.
First let me see what PW-9 Jyoti Jain has deposed about the incident of
2nd week of February, 1995. She has deposed that her husband was
having meal at about 10.00 p.m. She was present there. She has deposed
that at that time their phone rang and she picked up receiver and said
Hello. She has deposed that person at the other end told that he was
Salem from Dubai and enquired whether Ashokbhai was there. She
replied that Ashok was not there. Salem then enquired who else was there
and she replied that Ashok's brother Pradeep was there. She passed the
telephone receiver to her husband Pradeep Jain. Her husband Pradeep
Jain had engaged in talk on phone for a long and thereafter her husband
put the receiver in enraged condition. He had also left his meal. She has
deposed that she enquired with her husband as to what had happened and
with whom he was talking. Her husband replied that it was a call of Abu
Salem from Dubai. Her husband further told her that the said person had
created a terror in Mumbai. When she asked the reason of the call, her
husband told her that the caller had instructed him to get away from Kol
Dongri property else he would be killed. She has deposed that after
hearing this she was too much frightened. She told her husband to lodge a
report with police. Her husband told her that the matter would become
worse if they go to police and he along with his brothers would discuss and
find out some other way. She has further deposed that she was not
satisfied with this reply from her husband and she approached her father-
in-law and told him about the incident. Her father-in-law assured her not
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to be worried about the incident and they would get the things set right.
345] PW-9 Jyoti Jain has been thoroughly cross-examined.
The main thrust of the cross-examination is to point out the omissions,
inconsistencies and contradictions in her evidence qua her earlier
statement, earlier evidence and the statement recorded after arrest of Abu
Salem.
346] Let me now examine those statements of PW-9 Jyoti
Jain to come to a conclusion on the issue of the facts stated by her
consistently and the facts which are improvements, contradictions etc.. I
have carefully gone through her cross-examination. On going through her
cross-examination on this issue, there appears to be some variance in the
two statements. But the evidence of PW-9 Jyoti Jain is consistent on the
aspect of the receipt of the phone call from Abu Salem; that she picked up
the phone call and gave it to her husband Pradeep Jain; that the caller
disclosed his name as Salem speaking from Dubai. Her evidence is also
consistent on the fact that after the conversation her husband was
disturbed and she asked him the reason. The variance is on one point. In
her evidence before this Court, she has deposed that when she picked up
the phone, the person on the other end enquired whether Ashok Jain was
there and she replied that Ashok Jain was not there. Then the caller asked
her who else was there and then she replied that Pradeep Jain was there.
She passed on the telephone to Pradeep Jain. In her earlier evidence she
had stated that accused Abu Salem made enquiry whether Pradeep Jain
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was present and on this enquiry she handed over the phone to Pradeep
Jain and thereafter there was hot exchange of words between Pradeep Jain
and Abu Salem. In her earlier evidence in TADA Special Case No. 22 of
1995 she has deposed that on enquiry with her husband, he told her that
Abu Salem threatened them to do away with the Kol Dongri Property by
signing the documents kept in the office of Bharat Raghani. In the
evidence given by her in this case, she has stated that her husband told her
that the caller had instructed him to do away with Kol Dongri property else
he will be killed. I have taken note of the variance in her two statements.
It may be mentioned that as far as the material part of her evidence is
concerned, it is consistent. She has consistently deposed about the receipt
of a call from Abu Salem. She has also deposed that she picked up the call
and on enquiry the person on the other side introduced being Salem
speaking from Dubai. Her evidence is consistent about the conversation
between Abu Salem and her husband Pradeep Jain. Her evidence is
consistent on the point that the call was received when her husband was
having meal at 10.00 p.m. Her evidence is also consistent on the point
that the caller told her husband to do away with Kol Dongri Property else
he will be killed. In her earlier deposition she has stated that her husband
told her that Abu Salem told him to go to the office of solicitor Bharat
Raghani and sign the documents. In her evidence in this case she has
stated that her husband told her that accused Abu Salem told him to get
away from the Kol Dongri property. The substance is the same. It is the
case of the prosecution that the conspiracy was hatched to make the Jain
brothers to surrender the property in favour of some third party and earn
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crores of Rupees by finalizing the deal. Therefore, the evidence of PW-9
Jyoti Jain on the point of call, conversation and certain facts disclosed to
her by her husband is consistent. There is no major variance, major
omission or major contradiction.
347] In her evidence, PW-9 Jyoti Jain has deposed that after
hearing this from her husband Pradeep Jain, she was too much frightened
and she told her husband to lodge a report with police. Her husband
replied that the matter would become worse if we go to police and he
along with his brothers would discuss and find out some way. She has
further deposed that she was not satisfied with this answer of her husband
and, therefore, she approached her father-in-law and told him everything.
She has further deposed that her father-in-law told her not to be worried
about the things as they would get the things set right. This subsequent
statement of PW-9 Jyoti Jain cannot be said to be unnatural conduct. A
person of ordinary prudence placed in similar situation would react in this
manner only. So, even if it is found that this is a improvement in her
statement, in the context of certain facts established on the basis of her
evidence this natural reaction on her part cannot be disbelieved and
discarded. Before going to consider some of the admissions given by PW-9
Jyoti Jain in her cross-examination, at this stage it would be necessary to
consider other evidence. The evidence of PW-9 Jyoti Jain, as discussed
above, has to be considered as independent corroborative piece of
evidence to the statement of PW-1 Naeem Khan (Approver) and as general
corroboration to the confessions of accused Abu Salem and accused
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Mehendi Hasan. It may be mentioned at this stage that the confession of
accused once found to be voluntary and true, it is a substantive piece of
evidence and the conviction can be based on the said voluntary and
truthful confession alone. As discussed herein above, the dictum of the
Hon'ble Apex Court lays down that when it is proposed to use the the
confession of the accused against the co-accused, then by applying the rule
of prudence the Court must seek a general corroboration to the confession
of the accused. In this case, the confession of the accused Abu Salem and
accused Mehendi Hasan have been found to be voluntary and true.
Therefore, their confessions can be used against them individually as well
as against each other to corroborate their statements. I have considered
the legal position on the point of use of the confession of one accused to
corroborate the confession of the other accused in the earlier part of my
Judgment.
348] Let me now see what Abu Salem has stated about this
fact in his confession. The confession of accused Abu Salem is at
Exhibit-387. In his confession, accused Abu Salem has admitted that as
per the deal settled by him with the Jain brothers, Ashok Jain paid him Rs.
ten lakhs in January , but he stopped making the payment of the remaining
installments as agreed. Therefore, he and Anees Ibrahim started making
phone calls to Ashok Jain, but Ashok Jain was avoiding to make payment
on one pretext or the other. Abu Salem has admitted in his confession that
in the last week of February, 1995, he made a phone call at the house of
Ashok Jain. The phone was attended by a woman. Abu Salem has
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admitted in his confession that he told that woman to give the phone to
Ashok Jain. But Pradeep Jain came on phone and started abusing him.
Abu Salem has also admitted that he also abused and threatened Pradeep
Jain. Abu Salem then gave the phone to Anees Ibrahim. Anees Ibrahim
abused Pradeep Jain. Pradeep Jain also abused Anees Ibrahim. Then
Anees Ibrahim disconnected the phone. At that time Riyaz Siddiqui was
present in the office. Abu Salem has admitted in his confession that at that
time he and Anees Ibrahim decided that Pradeep Jain should be killed. In
his confession, Abu Salem admits two important things. First that he made
a phone call at the residence of the Jain family in the last week of
February, 1995. Abu Salem has further admitted that the phone was
picked up by a woman. Abu Salem has further admitted that he told the
woman to give phone to Ashok Jain. But at that time Pradeep Jain came on
phone. Abu Salem, therefore, confirms the conversation between him and
Pradeep Jain. It is, therefore, established that evidence of PW-9 Jyoti Jain
corroborates these statements of accused Abu Salem made in his
confession.
349] At this stage, it is necessary to mention that the
confession of accused Abu Salem is silent on the issue of telling Pradeep
Jain to get out of Kol Dongri Property by signing the documents. But the
fact remains that the conversation occurred at that time between Abu
Salem and Pradeep Jain, which was later on narrated by Pradeep Jain to
his wife i.e. PW-9 Jyoti Jain, has been deposed by PW-9 Jyoti Jain before
this Court. At this stage it is, therefore, necessary to mention that accused
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Abu Salem was neither friend nor relative of Pradeep Jain. It is also
necessary to mention that though his confession is silent about the real
talk, it can be said with certainty that Abu Salem would not have made a
phone call to the Jain brothers to exchange the greetings or pleasantries
with the Jain family. The reason for the call has been stated by PW-9 Jyoti
Jain. It is studded with all the details. If the phone call was not made by
Abu Salem to exchange the greetings or pleasantries, then his statement
that it was made to the Jain brothers to pay the remaining ransom amount
deserves acceptance. While discussing the submission of Ld.Advocate Shri
Pasbola for the accused on the point of complete deviation from the facts
of the earlier case and introduction of a new case, I have observed that
though accused Abu Salem has moulded his plan according to the
situation, but the core of the issue was the Kol Dongri Property of the Jain
brothers, the threats and pressure to the Jain brothers to relinquish their
right over the Kol Dongri Property and Jain brothers. It is seen on perusal
of the record that when the Jain brothers did not succumb to the demand
of Abu Salem to surrender the property, he moulded his modus-operandi
and settled the deal with them for Rs. one crore. Abu Salem has himself
admitted this fact. Therefore, even though Abu Salem is silent in his
confession about the talk took place between him and Pradeep Jain and
they exchanged abuses to each other, the evidence of PW-9 Jyoti Jain is
sufficient to fill the void created in the evidence.
350] Let me now see the confession of accused Mehendi
Hasan on this point. Accused Mehendi Hasan has admitted in his
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confession that after coming back from Dubai to Mumbai, he went to
Kolhapur. Mehendi Hasan has admitted in his confession that on 2nd or
3rd March, 1995, he made a phone call to accused Abu Salem. At that
time accused Abu Salem was angry and he abused him and told him to go
to Mumbai and meet Salim Haddi and make a phone call to him. Mehendi
Hasan has admitted in his confession that, at that time Abu Salem told him
that in any circumstance they have to kill Pradeep Jain because Pradeep
Jain had abused him. These facts stated in the confession by accused
Mehendi Hasan also get corroborated by the evidence of PW-9 Jyoti Jain.
351] Now, let me see what PW-1 Naeem Khan (Approver) has
to say about it. PW-1 Naeem Khan (Approver) has deposed that on
02/03/1995 on receipt of Pager message from Abu Salem he immediately
contacted him on phone and found that Abu Salem was very angry. Abu
Salem asked him who the Pradeep Jain was and whether he knows the
manners of talking. PW-1 Naeem Khan (Approver) has deposed that he
told Abu Salem that he was Ashok Jain's brother. PW-1 Naeem Khan
(Approver) has deposed that he tried to pacify Abu Salem, but at that time,
Abu Salem disconnected the phone. As far as the conversation between
Abu Salem and Pradeep Jain on phone is concerned, it has been confirmed
by PW-1 Naeem Khan (Approver) also. The manner in which accused Abu
Salem made enquiry with PW-1 Naeem Khan (Approver) about Pradeep
Jain clearly indicates that when he made a phone call to Pradeep Jain and
had a talk with Pradeep Jain, the sailing was not smooth between Pradeep
Jain and Abu Salem. As far as the cause of the phone call is concerned, I
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have already mentioned that by no stretch of imagination that the phone
call would have been made by Abu Salem to Pradeep Jain or to Ashok Jain
to exchange the greetings or pleasantries. The object, therefore, has to be
presumed to be either to get the second installment of the money or to
pressurize the Jain brothers to get out of Kol Dongri property. If the
evidence of PW-1 Naeem Khan (Approver) on this point is considered in
juxtaposition with the facts admitted by accused Abu Salem in his
confession, the facts admitted by accused Mehendi Hasan in his confession
and the facts deposed by PW-1 Naeem Khan (Approver) in his evidence,
would show that PW-9 has made a narration of the facts occurred and
known to her. Her statement since beginning on the point of receipt of the
phone call, the talk between Abu Salem and her husband Pradeep Jain and
the threats given by accused Abu Salem is consistent. She has not deviated
from that statement. It is, therefore, seen that evidence of PW-9 Jyoti Jain
proves the motive for the murder of Pradeep Jain. In his confession
accused Abu Salem has admitted that he murdered Pradeep Jain through
his henchmen.
352] While appreciating the evidence of PW-9 Jyoti Jain qua
accused Abu Salem and accused Mehendi Hasan, one can not lay
unnecessary emphasis on the inconsistencies and omissions in her
evidence. In the earlier trial arising out of the same crime, the accused
were the stooges of the master mind Abu Salem. But at that time accused
Abu Salem was not facing the trial before the Court and, therefore, the
Prosecutor would not have interrogated or asked the questions to PW-9
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Jyoti Jain about accused Abu Salem. Even at that time also she had
disclosed the direct involvement of the accused Abu Salem in the
commission of the crime. Accused Abu Salem has confirmed that the
phone call was first attended by a woman. This fact would show that
when conversation between accused Abu Salem and Pradeep Jain took
place, PW-9 Jyoti Jain was present there. This statement by the accused
Abu Salem lends an assurance to the circumstance that after the
conversation was over between him (Abu Salem) and Prdeep Jain, PW-9
Jyoti Jain was present in the room. Being a wife, after such a hot talk, it
was natural for her to ask her husband about the same. She asked her
husband as to what had happened. Her husband Pradeep Jain disclosed to
her the details of Abu Salem and the purpose of the call. Therefore, the
Portion marked 'A', in strict sense, cannot be said to be the improvement
or contradiction. It is a mere inconsistency. Her subsequent conduct to
advise her husband to lodge a police complaint is natural and consistent
with the conduct of a man of ordinary prudence placed in similar situation.
353] Second statement of PW-9 Jyoti Pradeep Jain was
recorded after arrest of accused Abu Salem. It was recorded on
30/11/2005. In her evidence, PW-9 Jyoti Jain has deposed that on
20/03/1995 the 13th day ceremony of her husband Pradeep Jain, at about
7.00 to 7.30 p.m., their phone rang. She picked up the receiver. The caller
asked her who was speaking. She has deposed that she recognized the
said voice and it was of Abu Salem. She has deposed that she told him
that she was wife of Pradeep Jain speaking to him and what more did he
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want. She has deposed that after that Abu Salem started laughing and told
her that whether she was not mourning. She has further deposed that she
became furious and started abusing him. At that time Abu Salem directed
her to stop abusing and told her that he has killed her husband Pradeep
Jain because they did not pay him money on time. The accused Abu Salem
told her that if they do not pay remaining amount, he would kill her other
brother-in-laws one by one and disconnected the call. Her brother-in-law
Sunil Jain was sitting around her. After completion of the call, he made
enquiry with her about the caller and she told him the name of the caller
and repeated what Abu Salem had told her. It may be noted at this stage
that this fact was neither stated by PW-9 Jyoti Jain before police while
recording her first statement on 10/03/1995 nor in her evidence recorded
before the Court in the earlier trial on 25/03/1997. She has deposed
about this incident for the first time. This is an improvement in her earlier
statement.
354] This statement of PW-9 Jyoti Jain has been assailed on
the ground that this improvement has been made only with a view to
implicate the accused and support the other planted witnesses. In this case,
the Investigating Officer has not produced on record any document of the
Call Record. So, there is no documentary evidence about this call. The
veracity of this statement of PW-9 Jyoti Jain has to be tested keeping in
mind the other direct and circumstantial evidence. Unless and until, this
version is supported either by direct or circumstantial evidence, this
cannot be accepted as a gospel truth. Before I go to deal with the direct
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and circumstantial evidence, I must observe at this stage that after murder
of Pradeep Jain, accused Abu Salem was not satisfied. He did not snap the
conspiracy then and there only. It is common knowledge that 'Underworld
Self-proclaimed Dons' are greedy to earn easy money. They have no respect
for life. They only respect money. They find out their own ways, means
and methods to earn easy money. The events narrated and ultimately
culminated in the murder of Pradeep Jain could make a common man to
think twice that he is residing in a country, which is known for its
successful democracy and governed by rule of law. But it is our misfortune
that with this crop and breed of Underworld Gangs and Dons, a stigma has
been attached to our successful Democratic Nation, which has been
governed by rule of law. Our emphasis all through out has been to respect
all the Constitutional Rights of the accused, even in heinous and diabolic
crimes.
355] This new story narrated by PW-9 Jyoti Jain would not
be acceptable in the ordinary circumstances. She did not make whisper
about this story till recording of her statement on 30/11/2005. When this
incident occurred on 13th day ceremony of her husband Pradeep Jain, in
the ordinary circumstances, the Jain brothers would have reported the
matter to the police. They did not do it. The explanation of the
prosecution is that they were traumatized, horrified and terror-stricken
after the murder of Pradeep Jain and on 13th day ceremony itself, the
accused Abu Salem made a phone call and threatened them to fulfill his
demand, otherwise remaining Jain brothers would be killed one by one. It
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may be mentioned that the Jain brothers had suffered for non complying
the demands of the accused Abu Salem. The threat given by accused Abu
Salem was converted into action by killing Pradeep Jain. The Jain family,
therefore, could not have taken the accused Abu Salem lightly. They had a
fair idea of his clout and network. Therefore, if this incident was not
reported to the police despite providing the police protection, would not
make any difference vis-a-vis this incident narrated by PW-9 Jyoti Jain. It is
the case of the prosecution that after the murder of Pradeep Jain, the
accused Abu Salem went on extending the threats to Jain brothers to
comply his demand of ransom. When Jain brothers expressed their
financial difficulty, Abu Salem suggested them to sell whatever property
they have and send the money to him. The evidence brought on record
clearly proves that even after the death of Pradeep Jain, the Jain brothers
were made by accused Abu Salem to pay him more than Rs.40 lakhs. It
may be noted that this is the circumstance, which makes me not to take
this incident disclosed by PW-9 Jyoti Jain for the first time after ten years
of the murder of Pradeep Jain as unbelievable. If the accused Abu Salem
had snapped the conspiracy and had put a full stop to his further activities,
then there would have been no reason for the Jain family to propound this
story. It may further be mentioned that by concocting such a story, they
were not otherwise even going to be benefited. Before considering some
of the answers given by PW-9 Jyoti Jain in her cross-examination, it is
necessary to advert to the confession of the accused Abu Salem. It must be
mentioned that this incident narrated by PW-9 Jyoti Jain for the first time
could be a circumstantial evidence to corroborate the confession of the
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accused Abu Salem. Similarly, this incident narrated by PW-9 Jyoti Jain
could also be used as a circumstantial piece of evidence to corroborate the
testimony of PW-1 Naeem Khan (Approver).
356] In his confession, accused Abu Salem has admitted that
after the murder of Pradeep Jain, he started threatening Ashok Jain for the
remaining amount of ransom. When Jain brothers told Abu Salem that
their financial condition was not good, Abu Salem suggested them to sell
whatever property they have and meet his demand. He has further
admitted that accordingly they agreed to give their three flats bearing Nos.
602, 605 and 606 from Mamta Co-operative Society , Sher-E-Punjab
Colony, Mahakali Caves Road, Andheri (East), Mumbai, in lieu of the
demand of money. They agreed to sell those three flats and send the
consideration of the said flats to accused Abu Salem. On this point PW-1
Naeem Khan (Approver) has deposed in his evidence that the accused Abu
Salem informed him in March/ April 1996 on phone to meet accused V. K.
Jhamb in connection with the sale of those three flats. PW-1 Naeem Khan
(Approver) has deposed that he did it accordingly. They visited the said
three flats and they approved the flats. PW-1 Naeem Khan (Approver) has
deposed that he accordingly informed accused Abu Salem on phone that
the flats are in good condition and could fetch good price. As far as further
evidence of the dealing of the flats is concerned, I may deal with the same
in great detail while considering the case of the prosecution against the
accused No.5 V.K. Jhamb. But on the basis of this evidence, one can see
that accused Abu Salem after the murder of Pradeep Jain, was after the
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Jain brothers and threatened the Jain brothers to satisfy his demand. The
Jain brothers though unwilling to fulfill those demands, but Jain brothers
had tested the medicine of the threats of accused Abu Salem. They had
lost their brother. Therefore, the failure of the Jain brothers to report of
the incident to the police cannot be a unnatural circumstance.
357] At that time accused Abu Salem was in Dubai. From
Dubai, he (Abu Salem) executed his plan skillfully and meticulously. His
henchmen were so trusted that they took the the insult of their Mentor
Abu Salem as their insult and pumped 17 bullets into the body of Pradeep
Jain at a time. This fact would reflect the respect these contract killers and
henchmen had for the commands and orders of Abu Salem. It may be
noted that Jain brothers after this bitter experience would have naturally
become wise. By that time, Jain brothers must have got the idea that, for
Abu Salem one command is sufficient to kill a person like a stray dog.
Therefore, in the backdrop of this fact, the second incident narrated for
the first time by PW-9 Jyoti Jain does not appear to be unnatural. The
narration of the incident speaks about the cruel and inhuman approach of
the accused Abu Salem. For Abu Salem, it appears that, the money is more
important, than the life of a man.
358] Let me now see some of the admissions brought on
record during the course of the evidence of PW-9 Jyoti Jain and see
whether these admissions are sufficient by itself to conclude that the
evidence of PW-9 Jyoti Jain is unnatural, tutored and concocted. I have
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dealt with certain facts which are at variance in her evidence. But the
variance in the narration of the facts is not so wide to create a doubt about
the core of the case of the prosecution narrated by PW-9 Jyoti Jain. In her
cross-examination, she has admitted that she was admitted in hospital on
the date of the incident itself i.e. on 07/03/1995 and was discharged on
10/03/1995. PW-9 Jyoti Jain admits about the recording of her two
statements on the dates mentioned above. PW-9 Jyoti Jain admits that
she did not disclose while recording her statement on 10/03/1995 about
the phone call of 20/03/1995 by accused Abu Salem. About this omission,
she has stated that police might not have asked to her while recording her
statement and, therefore, she might not have stated so while recording her
statement. In her cross-examination at Page 174, she has admitted that
after the phone call dated 20/03/1995, she asked Sunilbhai as to what he
had decided about the threats. But Sunilbhai told her that no complaint
was lodged as they want to give money to Abu Salem gradually to end the
matter. It is submitted that PW-9 Jyoti Jain is solely depending on PW-13
Sunil Jain after the murder of her husband Pradeep Jain and, therefore, on
the say of Sunil Jain(PW13), she has come before Court and deposed
against accused Abu Salem. In the backdrop of my above said discussion
and acceptance of her (PW-9) evidence being a concrete and cogent
evidence on the important facts, this submission has to be rejected being
fallacious. In her cross-examination, there are certain suggestions, which
are pregnant with the fact in issue. After considering the cumulative effect
of the cross-examination, I do not see that the credibility of this witness
PW-9 Jyoti Jain has been shaken on the important aspects.
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359] There are certain omissions in her evidence. However,
those omissions are not material omissions. On the material point of
receipt of threat calls, her evidence is consistent. PW-9 has not deposed
about other incident. If she had been a planted, concocted or tutored
witness, then the prosecution would have made her to depose about
certain other facts, which were not even known to her. PW-9 Jyoti Jain has
not uttered a single word about the various meetings held to settle the
matter and other related aspects. In my view, this is one more fact which
lends an assurance to the evidence of this witness. There is a variance in
her earlier statement as well as in the statement made in this case. But the
variance is not on material aspects. If a witness makes a parrot like
narration of a fact, then the Court has to presume that witness is either
tutored or is concocted. The witness is bound to miss certain facts while
giving evidence before Court. If it is pointed out that the witness has
missed certain aspects or made a contradictory statement on certain
aspects, it is an assurance to come to a conclusion that witness has come
before the Court to narrate the facts known to the witness. After
considering evidence of PW-9 Jyoti Jain in totality and in juxtaposition
with the confessions of accused Abu Salem and accused Mehendi Hasan
and the evidence of Approver PW-1 Naeem Khan, I do not see any reason
to discard and disbelieve her (PW-9) evidence on the point deposed to by
her. Her evidence is cogent and reliable on the aspects deposed to by her.
Her evidence has also provided general corroboration to the confession of
accused Abu Salem and accused Mehendi Hasan. Similarly, all the
important aspects deposed to by her has been established as a
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corroborative independent evidence to the testimony of PW-1 Naeem Khan
(Approver).
EVIDENCE OF PW - 13 - SUNIL JAIN
360] PW-13 Sunil Jain is the brother of deceased Pradeep
Jain. He is an eye-witness to the murder of his brother Pradeep Jain by the
trusted henchmen of accused Abu Salem. PW-13 Sunil Jain himself
sustained bullet injury to his right hand. PW-13 Sunil Jain is a very
important witness in this case. In this case, the prosecution have had the
benefit of the evidence of the Approver and the confessions made by
accused Abu Salem and accused Abu Salem. This is an added benefit to
the prosecution in this case. PW-13 Sunil Jain is a witness to all the events
occurred, when the object of the conspiracy hatched in Dubai by accused
Abu Salem and others started taking shape in the form of implementing
the object of the conspiracy. PW-13 Sunil Jain, as can be seen from his
evidence, withstood the trauma and shock of death of his brother Pradeep
Jain. He was consistently put under the spell of threats by the accused Abu
Salem. PW-13 Sunil Jain has, therefore, in his evidence unfolded the
events occurred from the day of implementation of the object of the
conspiracy started taking shape. With this brief background facts, it is
necessary to consider the credibility, reliability and trustworthiness of the
evidence of PW-13 Sunil Jain.
361] Ld. SPP Shri Ujjwal Nikam submitted that there are
certain omissions in the evidence of PW-13 Sunil Jain qua his statement
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recorded in 1995, his evidence in TADA Special Case No. 22 of 1995 and
his statement recorded in 2005 after arrest of accused Abu Salem. Ld.SPP
submitted that in his cross-examination he was offered an opportunity to
explain those omissions and PW-13 grabbed the said opportunity and
placed plausible explanation on record. Besides, Ld.SPP Shri Nikam
submitted that the omissions/improvements pointed out from the evidence
of PW-13 Sunil Jain cannot be read in isolation, but the same has to be
read in juxtaposition with the evidence of the other witnesses and the
confessions of accused Mehendi Hasan and accused Abu Salem. Ld. SPP
Shri Nikam submitted that in such a case the Court has to find out whether
the facts deposed by the witness are factually correct or not. In the
submission of Ld.SPP Shri Nikam if the Court comes to the conclusion that
the facts stated by the witness are correct, then merely on the ground that
those facts are omissions from the earlier statements or earlier evidence
and/or improvements could not be the sole ground to reject such evidence
in toto. Ld.SPP submitted that PW-13 Sunil Jain in the ordinary course of
nature had no axe to grind against the accused in this case. Ld. SPP Shri
Nikam submitted that one can visualize the plight of this witness after the
incident of shooting of his brother by the hired goons of accused Abu
Salem in heinous manner. Ld.SPP Shri Nikam submitted that while
appreciating the evidence of this witness, the fact that accused Abu Salem
consistently maintained the terror on the mind of this witness and Jain
family and made them to comply his demand even after the death of
Pradeep Jain cannot be brushed aside. Ld.SPP Shri Nikam submitted that
after testing the bitter medicine and experience of the threats of accused
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Abu Salem and the fact that the accused Abu Salem and Naeem Khan
(PW-1 Approver) were at large at that time and were capable to do
anything, the Jain family would have naturally been scared to utter a
word against the accused Abu Salem. Ld.SPP Shri Nikam pointed out that
the conduct of accused Abu Salem must have created ever lasting
impression on the mind of Jain family that accused Abu Salem has no
regard for life, but only regard for money. Ld. SPP Shri Nikam, therefore,
submitted that if all these omissions and improvements are read in
juxtaposition with the other evidence, then it becomes a complete catalog
of the facts projecting the correct picture of the case of the prosecution for
the due consideration of the Court against the accused, who are the
mercenary killers.
362] Ld. Advocate Shri Pasbola has not left a single stone
unturned to criticize the evidence of this witness threadbear. Ld. Advocate
Shri Pasbola submitted that the sympathetic background sought to be
created by Ld.SPP Shri Nikam by bringing on record certain imaginary
facts cannot make the Court get swayed by it. Ld.Advocate Shri Pasbola
submitted that the evidence of PW-13 is full of improvements qua his
earlier evidence and statements. Ld.Advocate Shri Pasbola submitted that
except the FIR in this case, no other complaint was lodged by the members
of the Jain family either before the murder of Pradeep Jain or after the
murder of Pradeep Jain. Ld. Advocate Shri Pasbola submitted that,
therefore, undue delay in narrating the facts for the first time creates
doubt on the veracity of the evidence of PW-13 Sunil Jain. Ld. Advocate
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Shri Pasbola submitted that on the basis of the omissions in the police
statement and in the earlier evidence, the case sought to be placed on
record by this witness about the threats by accused Abu Salem falls to the
ground and the same deserves to be rejected. Ld. Advocate Shri Pasbola
submitted that the period of the so-called meetings in the office of solicitor
Bharat Raghani and deposed to by this witness PW-13 Sunil Jain is, first,
self-contradictory and second, it has not been supported by other evidence
or rather contradicted by other evidence. Ld. Advocate Shri Pasbola
submitted that this witness or any member of the Jain family did not
disclose the name of either accused Abu Salem or accused Naeem Khan
(Approver PW-1) in their earlier statements as well as in the evidence led
before Court. Ld. Advocate Shri Pasbola submitted that there are material
contradictions between the evidence of PW-1 Naeem Khan (Approver) and
PW-13 Sunil Jain on material aspects and, therefore, the evidence of
PW-13 Sunil Jain cannot be believed and such tainted evidence could not
be said to be a independent corroborative piece of evidence to the evidence
of Approver PW-1 Naeem Khan. Ld. Advocate Shri Pasbola submitted that
PW-13 Sunil Jain has given a complete go by to the case of the prosecution
in the earlier part of the trial and has come before Court with totally a new
case. Ld. Advocate Shri Pasbola pointed out that PW-13 Sunil Jain is a
concocted witness, after arrest of accused Abu Salem on the basis of the
material collected by the Investigating Officer. Ld. Advocate Shri Pasbola
submitted that after murder of Pradeep Jain, police protection was
provided to Sunil Jain (PW-13) and, therefore, he would not have
hesitated to lodge the complaint against accused Abu Salem, if there was a
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threat by accused Abu Salem to him on the 13th day ceremony of his
brother deceased Pradeep Jain. Ld. Advocate Shri Pasbola submitted that
the omissions and contradictions in the evidence of PW-9 Jyoti Jain and
PW-13 Sunil Jain cannot be swept under the carpet by stating that they are
minor or mere discrepancies.
363] In order to appreciate the rival submissions and to
come to a conclusion on the issue of credibility and reliability of the
evidence of PW-13 Sunil Jain, certain facts obtained on record need to be
mentioned at the outset. Jain brothers were the owners of the Kol Dongri
Property. They had started developing the said property. Some people
with an evil eye on the said property started disputing the title of Jain
brothers over Kol Dongri Property. In Mumbai, the prices of the Real
Estate are sky high. The people in this Metropolis are fighting for every
inch of residential and commercial space. With this crunch of the land in
Mumbai, there is cut-throat competition amongst the Builders and
Developers. With the initiation of the project by the builder or developer
starts the litigations by the unscrupulous claimants. Some projects of the
builders and developers are withheld to such an extent that sometimes it
practically becomes impossible for the builder or developer to complete the
project. Here comes the role of the 'Underworld'. The profit from the Real
Estate seems to be the main source of earning by these Underworld
Gangsters. This can be either in the form of 'Protection Money' or
'Extortion'. With the globalization, started the growth of the development
of the property in Mumbai. These Underworld people started filling their
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coffins either by taking 'Protection Money' or 'Extortion Money' from the
builders. This case is ideal example of this situation prevailing in this
Metropolis. At this stage, I would like to mention that the majority of the
litigations in this Metropolis is between landlords and tenants and
sometimes between developers, builders and tenants and/or landlords.
With my experience as a Judge of the Small Causes Court, Mumbai, almost
for a decade where the cases under the Rent Act are tried, the Eviction
Decree in the Suits filed under the Rent Act is a civil death for the tenants.
So, in city of Mumbai, property dispute is fought bitterly.
364] These Underworld gangsters with an evil eye over the
builders and developers are always in the search of their pray. In this case,
the Jain brothers, though having a clear title over the Kol Dongri Property,
were informed that their title was not clear and they bought the land by
paying a meager amount to the land owners and, therefore, they should
get away from the property and surrender their right over the said
property else they would have to face the music of the bullets of the
Underworld Don.
365] Before the murder of Pradeep Jain, which took place on
07/03/1995, Jain brothers were threatened and pressurized to surrender
their right over the Kol Dongri Property. As per the case of the
prosecution, the main actors were Abu Salem and Anees Ibrahim Kaskar
sitting in Dubai and operating the activities to compel the Jain brothers to
surrender the Kol Dongri Property. The remaining accused were used as
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stooges to coordinate with the Jain brothers to hold meetings. The
accused No.1 in the earlier trial, the solicitor of the repute, was one of the
parties or rather convener of the meetings. As per the case of the
prosecution, all the meetings to settle the deal of surrender of the property
by Jain brothers were held in the office of solicitor Bharat Raghani. In this
case, Jain brothers were threatened to face dire consequences, if they fail
to surrender the Kol Dongri Property and get away of the said property. It
appears that surrender could not materialize and, therefore, accused Abu
Salem moulded the conspiracy and renewed his threats with the demand
of money from Jain family as a Protection Money to tell the other
prospective buyers to get out of the property. One can visualize the mental
condition, plight and trauma of a person, who has witnessed the brutal
murder of his brother. Therefore, a statement is made that such omissions
are possible, when a person comes before police with such a state of mind
and makes a statement. As per the case of the prosecution, the Jain
brothers even after murder of Pradeep Jain were kept under constant spell
of threats by accused Abu Salem to satisfy his greedy demand. When Sunil
Jan deposed before this Court in earlier trial, he was threatened by accused
Abu Salem not to give evidence before Court.
366] I have minutely perused his evidence and on perusal of
his evidence, it appears that Jain family was terror-stricken and
pressurized by accused Abu Salem. They did not open their mouth and
take names of either accused Abu Salem, Anees Ibrahim or Naeem Khan.
The 13th day ceremony incident after the death of Pradeep Jain has been
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proved in this case on the basis of the evidence of PW-9 Jyoti Jain and
corroborated by the evidence of PW-13 Sunil Jain. When Jain brothers
were not able to fulfill the extortion demand of accused Abu Salem, he
(Abu Salem) suggested to them to sell their property and meet his
demand. There is a voluminous evidence on record to show that Jain
brothers were made to hand over three flats from Mamta Co-operative
Society, Sher-A-Punjab Colony, Mahakali Caves Road, Andheri (East),
Mumbai to Abu Salem. All these facts cannot be brushed aside while
considering the omissions appearing in the statement and in the evidence
recorded earlier. After testing the bitter medicine of the threats of accused
Abu Salem, it was but natural for the Jain family members not to utter a
single word about these gangsters. The Jain family had an experience that
this Underworld Don could go to any extent and kill any person through
his henchmen at any time. It may be noted that even a man of ordinary
prudence placed in a similar situation would have followed the commands
and dictates of the Underworld Don and not his own conscience. It is true
that police protection was provided to Sunil Jain (PW-13) after murder of
his brother Pradeep Jain. However, providing police protection does not
mean that accused Abu Salem would not have executed the threats. The
Jain family had bitter experience in this case because one of the killers of
Pradeep Jain i.e. Rajesh Igave was a serving Police Constable. It must be
mentioned that this is a case of “Fence Eating The Field”. The above stated
facts needs to be borne in mind in appreciating the evidence of PW-13
Sunil Jain. These are the hard realities of the life of the people in
Mumbai. This Court cannot oblivious of the hard realities of this life
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prevalent in this Metropolis.
367] Admittedly, there are omissions and discrepancies in the
evidence of PW-13 Sunil Jain. Similarly, there are certain omissions
amounting to contradictions. Any contradiction from the evidence of the
witness unless explained becomes a strong circumstance and evidence
while appreciating the submissions advanced by the defence and assailing
the credibility and reliability of the evidence. While appreciating the
explanation placed on record for the omissions, discrepancies and
contradictions in the evidence of PW-13, first it is necessary to consider the
facts admitted by accused Abu Salem in his confession. The confession of
accused Abu Salem has been proved to be voluntary and true. As per the
settled legal position pointed out herein above from the various decisions
of the Hon'ble Supreme Court of India, the confession of the accused
recorded u/sec. 15 of the TADA (P) Act, 1987 is a substantive piece of
evidence and the conviction can be based on the confession of the accused.
Therefore, the omissions, discrepancies and contradictions from the
evidence of PW-13 Sunil Jain cannot be considered in isolation with the
facts admitted by accused Abu Salem in his confession.
368] In order to draw comparison between the facts stated by
accused Abu Salem in his confession and the facts stated by witness PW-13
Sunil Jain in his evidence, at the outset, it is necessary to see what accused
Abu Salem has admitted in his confession. The confession is the best
evidence against the accused. The admitted facts narrated herein above
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are sufficient to come to a conclusion that the Jain family was aware of the
prowess and capabilities of accused Abeu Salem. They had tested the
medicine of his threats. They had bitter experience. It can be presumed
that after the death of Pradeep Jain, Jain family must be of the confirmed
view that any threat extended by the accused Abu Salem cannot be treated
as a threat simply for the sake of threat. The murder of Pradeep Jain had
created the terror in the mind of the Jain family. The accused Abu Salem
did not snap his activities there. Even after murder of Pradeep Jain, he
was after the Jain brothers to satisfy his demand of ransom. He had
threatened Jain brothers that if his demands are not complied with, then
he would kill Jain brothers one by one. It may be noted that with the
bitter experience of the past, if Jain brothers were threatened, then it could
be safely be said that Jain brothers must be terror-stricken and could not
have disclosed the same to the police or to anybody else. This explanation,
to my mind, fits in the facts and circumstances brought on record in this
case.
369] At the cost of repetition, let me see what accused Abu
Salem has stated in his confession about those omissions, discrepancies
and contradictions found from the evidence of PW-13 Sunil Jain.
370] Accused Abu Salem has admitted his acquaintance with
Naeem Khan (Approver PW-1), accused Mehendi Hasan, accused
Shaukatali, accused Riyaz Siddiqui and Anees Ibrahim etc. As far as the
episode of Kol Dongri Property is concerned, Abu Salem has admitted in
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his confession that in October, 1994 Riyaz Siddiqui had come to the office
and acquainted him(Abu Salem) and Anees Ibrahim about the dispute of
Kol Dongri Property of Jain brothers at Andheri and gave a telephone No.
6201996 of Ashok Jain to them to talk with Ashok Jain. He has admitted
that after this he called Shaukat Kadia through Riyaz Siddiqui to Dubai in
November, 1994. In the month of November, 1994, Shaukat Mistry gave
them the full information of the Kol Dongri Property and in the said
meeting, which was attended by accused Mehendi Hasan also, a conspiracy
was hatched to take the Property from Jain brothers and sell it to some
other builder and thereby earn a huge profit. A conspiracy was also
hatched at that time that if Jain brothers fail to comply their demand, then
one of the five Jain brothers would be killed. Abu Salem has further
admitted that the role assigned to each one present in the meeting as well
as not present meaning thereby Naeem Khan was decided. It was decided
in the said meeting that Abu Salem and Anees Ibrahim would make
threatening calls to the Jain brothers to surrender the Kol Dongri Property.
Abu Salem has admitted in his confession that it was decided that Naeem
Khan alias Neem TR (Approver) (PW-1) and Shaukat Mistry would hold
meetings with Jain brothers and would convey to Abu Salem and Anees
Ibrahim about the progress of the meetings / transaction from time to
time. Abu Salem has further admitted in his confession that he has
conveyed the entire plan/the conspiracy hatched to Naeem Khan
(Approver)(PW-1). Abu Salem has further admitted in his confession that
as per the plan, he started threatening to Ashok Jain and his brothers on
phone. Similarly, he has admitted that Riyaz Siddiqui was also executing
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his job. Abu Salem has admitted that Naeem Khan and Shaukatali used to
arrange meetings with Jain brothers in Mumbai and would convey the
progress of the meetings to him (Abu Salem) on his Dubai telephone No.
009714-226670 and 009714-242939. So, this is the confession of accused
Abu Salem about the object of the conspiracy, the threats extended by him
to the Jain brothers pursuant to the conspiracy, various meetings held with
Jain brothers by Naeem Khan (Approver) (PW-1) and Shaukat Mistry and
reported to him on the above stated telephone Numbers.
371] Further part of the confession of accused Abu Salem
would show that after the last meeting in the office of solicitor Bharat
Raghani, they got indication that it was not possible to succumb the Jain
brothers to surrender their property. His (Abu Salem) further confession
would show that he accordingly moulded his stand and settled the matter
with Jain brothers. In his confession, accused Abu Salem has admitted
that in last week of January, 1995, he made a phone call to Naeem Khan
(Approver)(PW-1) and informed him that he had settled the matter with
Ashok Jain and Ashok Jain has agreed to pay Rs. ten lakhs per month. Abu
Salem has admitted in his confession that accordingly he informed Naeem
Khan(Approver)(PW-1) to go to Ashok Jain and collect those Rs. ten lakhs.
Abu Salem has further admitted in his evidence that Naeem Khan
(Approver) (PW-1) did it accordingly and as per his (Abu Salem)
suggestion, retained Rs. two lakhs with him and forwarded remaining Rs.
eight lakhs via Hawala through one Abdullah of Dunccan Road. The
confession of accused Abu Salem would show that he informed Naeem
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Khan about the settlement with Jain brothers.
372] In his confession, accused Abu Salem has further
admitted that after payment of Rs.ten lakhs, Jain brothers were avoiding to
make the payment despite making repeated calls. In further part of his
confession, accused Abu Salem has narrated the episode occurred with
Pradeep Jain. As far as the events occurred after murder of Pradeep Jain
are concerned, accused Abu Salem has admitted that after the murder of
Pradeep Jain, he again started making phone calls to Ashok Jain and
threatened them to make remaining payment. In his confession, accused
Abu Salem has further admitted that Ashok Jain explained to him his
financial crisis and agreed to his suggestion to give three flats from Mamta
Co-operative Society, Sher-A-Punjab Colony, Mahakali Caves Road, Andheri
(East), Mumbai. Accused Abu Salem has further narrated that he told Jain
brothers that his man V.K. Jhamb (Accused No.5) will deal with those
flats. Accused Abu Salem has admitted in his confession that he has
accordingly informed Naeem Khan (Approver PW-1) to go and meet
V.K.Jhamb and complete the transaction. In his further confession, accused
Abu Salem has admitted that he received in all Rs. 42 lakhs out of the sale
of those three flats bearing Nos. 602, 605 and 606 through Hawala in
Dubai.
373] The confession made by accused Abu Salem has been
found to be voluntary and true. It is, therefore, necessary to see whether
the evidence of PW-13 Sunil Jain and this part of the confession of accused
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Abu Salem is consistent with each other or not.
374] In his evidence, PW-13 Sunil Jain has deposed about the
visit of three persons to the Kol Dongri Property in December, 1992 and
after coming back to their office, a hefty fellow out of the three informed
them that this property was acquired by them. PW-13 Sunil Jain has
deposed that in first week of October, 1994 he had received a phone call
from Abu Salem. Abu Salem told on phone that they should hand over the
Kol Dongri Plot to one Shaukat Mistry else he would kill all of them.
PW-13 Sunil Jain has further deposed that on 10/10/1994, again he
received a telephone call from Abu Salem and on that day after playing the
conversation of murder of one Cohelo, accused Abu Salem threatened
them to hand over the property to Shaukat Mistry. PW-13 Sunil Jain has
further deposed that in the 4th week of November, 1994, he received a
phone call from Abu Salem. At that time, Abu Salem told him that he is
sending a person by name Khan to his office and he (Khan) would discuss
with them about the Kol Dongri Property. Thereafter, said Khan came to
their office and saw all the documents of the Kol Dongri Property. They
visited the Kol Dongri Property. He was accompanied by Shaukat Mistry.
His brother Ashokbhai Jain gave xerox copies of the documents to Khan.
PW-13 Sunil Jain has deposed that at that time Mr. Khan told that the plot
was purchased by his man and they should leave the Plot. During the
course of conversation, Shaukat Mistry abused and threatened them that if
they do not follow the dictate, then Abu Salem would kill one of them. In
his evidence, PW-13 Sunil Jain has, therefore, confirmed the threatening
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calls from Abu Salem to Jain brothers. On this point, there is consistency
between the evidence of PW-13 and the facts admitted by accused Abu
Salem in his confession. Similarly, consistent with the facts admitted by
accused Abu Salem in his confession, Shaukat Mistry and Naeem Khan
(Approver) started meeting with Jain brothers and threatening them to get
away from the Kol Dongri Property. This is also consistent with the facts
admitted by accused Abu Salem in his confession.
375] In his further evidence, PW-13 Sunil Jain has provided
account of various meetings held in the office of solicitor Bharat Raghani.
All the meetings were attended by Jain brothers at the instance and as per
the instructions of Naeem Khan(Approver PW-1). Naeem Khan was not a
party to the meeting, when the conspiracy was hatched in Dubai. Naeem
Khan joined the conspiracy, when the object of the conspiracy was
conveyed to him by accused Abu Salem. If Naeem Khan (Approver)
(PW-1) had refused to act consistent with the conspiracy hatched in Dubai
and informed to him by accused Abu Salem personally, then there would
have been no question of admitting him as an Approver in this case. The
moment he was apprised of the conspiracy, the decision taken in the
conspiracy and the role assigned to him by accused Abu Salem and he
started acting consistent with the role assigned to him by accused Abu
Salem, it is crystal clear that he became a 'particeps criminis' from that day.
PW-13 Sunil Jain has stated that except one meeting, almost all the
meetings held in the office of Bharat Raghani were attended by PW-1
Naeem Khan (Approver).
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377] Perusal of the entire evidence of PW-13 Sunil Jain in
totality would show that despite stating that the first meeting took place in
first week of October, 1994, the events occurred during all the meetings,
have been stated by PW-13 Sunil Jain. Accused Abu Salem has admitted in
his confession that the job was assigned to Shaukat Mistry and Naeem
Khan (Approver) (PW-1) to hold meetings with Jain brothers and to
convey to him the progress made in the meetings. Accused Abu Salem has
further admitted in his confession that accordingly Naeem Khan (Approver
PW-1) and Shaukatali from time to time would convey the progress of the
meetings took place in the office of solicitor Bharat Raghani with Jain
brothers. The account of the events occurred in the meetings presented by
witness PW-13 Sunil Jain and PW-1 Naeem Khan (Approver) is consistent.
This is a strong circumstance to indicate that all the meetings took place
pursuant to the conspiracy hatched in the meeting of November, 1994.
Barring the difference of date of the first meeting, the entire account of
events occurred in all the meetings narrated by PW-13 Sunil Jain and
PW-1 Naeem Khan (Approver)(PW-1) is consistent. In this case,
considering the time gap and the state of mind of PW-13 Sunil Jain, after
murder of Pradeep Jain, at the time of recording his statement on
10/03/1995 and the time of his evidence deserves some leverage. So, as
far as the evidence of PW-13 Sunil Jain, about the threats by accused Abu
Salem and various meetings held in the office of Bharat Raghani at the
instance of Naeem Khan (Approver) (PW-1) and Shaukat Mistry, is
consistent. It has come on record in his cross-examination at Page 298 that
the last meeting in the office of Bharat Raghani might have been held in
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December, 1994. This statement is also consistent with the facts admitted
in the confession by accused Abu Salem.
378] It is the case of PW-13 Sunil Jain and PW-1 Naeem Khan
(Approver) (PW-1) that in the last meeting, serious threats were extended
to Jain brothers by Shaukatali in presence of Bharat Raghani to kill them,
if they fail to surrender the property and, therefore, he told the Jain
brothers to get down from the office of Bharat Raghani. The events
narrated by this witness PW-13 Sunil Jain about the role of Bharat
Raghani, the role of Shaukat Mistry and the role of Naeem Khan (Approver
PW-1) is consistent with the confession of accused Abu Salem. At Page 287
Para 39, PW-13 Sunil Jain has admitted that all the facts stated by him in
Examination-in-Chief and which were not deposed in the earlier trial i.e.
TADA Special Case No. 22 of 1995, are the important facts, as they are
directly concerned with the murder of his brother Pradeep Jain. He has
admitted that still he deliberately did not disclose all the facts before the
Court in his deposition. The witness has made a categorical statement at
this stage that as he had been threatened of his life, he did not depose
these facts before the Court. He has further made a voluntary statement
that he did not take the name of accused No. 5 V.K. Jhamb and Naeem
Khan because he was afraid of using those names. It may be noted that
his explanation is a fitting reply to all the questions raised in this matter.
Accused Abu Salem was settled in Dubai. He was free to do anything.
Jain brothers knew that his stooges in Mumbai were block headed to
follow blindly the commands of Abu Salem and kill the persons as per the
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commands of Abu Salem. Jain brothers knew that Naeem Khan(Approver)
(PW-1) and V.K. Jhamb (accused No.5) were the trusted men of Abu
Salem. Considering the admissions of Abu Salem in his confession, it can
be seen that a very important task was assigned to Naeem Khan
(Approver)(PW-1) as well as to V. K. Jhamb, accused No.5. Holding a
meeting with Jain brothers and prevailing upon them to follow the
commands and dictates of Abu Salem required some skill. Considering the
evidence of Naeem Khan (Approver)(PW-1), one can gather that accused
Abu Salem was aware of his experience and skill in the business. Out of
thousands of the builders in Mumbai, accused Abu Salem has chosen only
V. K. Jhamb to complete the transaction of sale of three flats. This could
clearly indicate that Naeem Khan and Jhamb builder were the trusted men
of accused Abu Salem and, therefore, they were assigned with this
important task. If their names were not disclosed in the earlier trial or in
the statements recorded by police, then, one should not be surprised. The
reason has been assigned by PW-13 Sunil Jain and in the backdrop of the
admitted facts, circumstances and evidence brought on record, this
explanation is plausible and appealable to the conscious mind.
379] PW-13 Sunil Jain has deposed that while recording his
statement on 10/03/1995 and his evidence, he did not disclose about the
incident occurred on 13th day ceremony of Pradeep Jain murder. He has
also admitted that despite having a police protection and the fact that the
matter was sub-judice before Court, they did not disclose further threats
given by accused Abu Salem to make them to meet his demand of ransom
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by selling their three flats from Mamta Co-operative Society through
builder V.K. Jhamb (accused No.5). It is admitted fact that this was not
disclosed in the earlier part of evidence. Again, at this stage, as far as this
transaction is concerned, one has to look at the confession of accused Abu
Salem. In his confession, accused Abu Salem has admitted that even after
murder of Pradeep Jain he continued to extend the threats to the Jain
brothers and made them to sell their three flats through
V.K.Jhamb(accused No.5) and he got the consideration of Rs. 28 lakhs +
14 lakhs through Hawala in Dubai. PW-13 Sunil Jain has deposed about
this fact in his evidence. The statement of PW-13 Sunil Jain, after arrest of
accused Abu Salem, was recorded on 28/11/2005. Accused Abu Salem
was arrested in this case on 24/11/2005. The episode of the threats, after
the murder of Pradeep Jain and the transaction of the three flats through
builder V.K. Jhamb (accused No.5), was disclosed by PW-13 Sunil Jain
while recording his statement. Accused Abu Salem made his Confession
on 02/01/2006. It can, therefore, positively be stated that PW-13 Sunil
Jain had no chance to develop any case as per the whims of the Police
Officers on the basis of some statement made by accused Abu Salem.
380] The arrest of the accused Abu Salem in this crime in the
backdrop of the facts would be the most important aspect while
appreciating the evidence of PW-13 Sunil Jain. PW-13 Sunil Jain was
concerned for his life and life of his family. PW-13 Sunil Jain and his
family members were aware of the dreaded nature of accused Abu Salem.
Accused Abu Salem was absconding since 1993 inasmuch as his
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involvement in Bombay Bomb Blasts Case 1 of 1993 was revealed. He had
taken shelter at Dubai. But the evidence placed on record clearly indicate
that despite having settled in Dubai, they continued their extortion
activities in Mumbai through their henchmen. PW-13 Sunil Jain and his
family members could not have been oblivious of this fact. There is one
more fact which can speak about the terror of accused Abu Salem over the
mind of Jain family. It has come on record that during the course of the
evidence in the earlier trial i.e. TADA Special Case No. 22 of 1995, PW-13
refused to come to the Court and give evidence despite provided with
police protection. It has come on record that he was threatened by
accused Abu Salem not to go to the Court and give evidence against him.
In TADA Special Case No. 22 of 1995 when he (PW-13 Sunil Jain) did not
attend the Court, the Presiding Officer was constrained to issue a warrant
against witness PW-13 Sunil Jain to secure his presence before Court. The
proceeding recorded by the Court at that time would show that there is
substance in the contention of the witness that the terror created in their
mind by accused Abu Salem and his henchmen was such that even before
Court PW-13 Sunil Jain could not dare to open his mouth and tell the
name of the accused.
381] It must be mentioned that this witness (PW-1) after a
gap of ten years narrated certain facts and most of the facts have been
admitted by accused Abu Salem in his confession. If any revengeful or
vindictive approach had been adopted and there was no terror or fear of
accused Abu Salem, PW-13 Sunil Jain and his family members would have
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disclosed so many things in 1995 itself. It is apparent on the face of the
record that when they realized that now the Underworld Don Abu Salem is
in the lock-up and in the custody of police, they thought it fit to disclose
certain facts before police. The arrest of accused Abu Salem must be a big
sigh of relief to the Jain family. This could have been the most important
factor to erase the terror and impression of the accused Abu Salem from
their mind. Therefore, the explanation given by PW-13 Sunil Jain that he
did not disclose all the facts because of the persons involved in the crime
appears palpably acceptable. I do not see any reason to reject it. If the
omissions, discrepancies and contradictions are considered in juxtaposition
with the facts admitted by accused Abu Salem in his confession, then it
would show that the evidence of PW-13 Sunil Jain cannot be termed as
unreliable and unworthy of credence. The account of the happenings in the
meetings narrated by PW-13 Sunil Jain and PW-1 Naeem Khan(Approver)
is identical and, therefore, the difference between the period of meetings
narrated earlier and narrated at present by PW-13 would not make any
difference. There is variance about the period of the meetings. But there
is no variance of the actual events occurred in the meetings. The evidence
is consistent about the meetings held in the office of solicitor Bharat
Raghani and the events occurred in those meetings from time to time. The
facts and circumstances in the backdrop of the explanation and the
evidence placed on record would show that the Jain family purposely
avoided to take the name of accused Abu Salem, accused Naeem Khan and
Jhamb builder. Therefore, while considering the omissions, all the above
stated facts, circumstances and evidence cannot be ignored. It must be
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mentioned that merely because of the omissions, discrepancies and some
contradictions, the evidence of PW-13 Sunil Jain cannot be discarded.
382] On the basis of the evidence of PW-13 Sunil Jain, it has
been proved that accused Abu Salem and Anees Ibrahim Kaskar threatened
them to surrender their right over the Kol Dongri Property. His evidence
further proves that various meetings were held in the office of solicitor
Bharat Raghani and in those meetings also the Jain brothers were
threatened by Shaukat Mistry and Naeem Khan (Approver) (PW-1). PW-13
Sunil Jain has categorically stated and by his statement, it has been
established that Naeem Khan (Approver) was “particeps criminis”. On the
basis of his evidence, the prosecution has proved that on account of their
failure to meet the demand of ransom by accused Abu Salem and the hot
exchange of abuses and words between accused Abu Salem and Pradeep
Jain, the accused Abu Salem through his henchmen brutally murdered
Pradeep Jain and attempted to commit murder of PW-13 Sunil Jain. On
the basis of his evidence, it has also been established that even after
murder of Pradeep Jain, accused Abu Salem continued the spell of threats
and made the Jain brothers to meet his demands. In the teeth of all the
above stated facts, circumstances and evidence brought on record, much
weightage and importance cannot be given to the omissions, discrepancies
and contradictions. In the backdrop of certain facts admitted by accused
Abu Salem in his confession, the omissions, discrepancies and
contradictions become insignificant and of no consequence. The
confession of the crime by accused Abu Salem, in the backdrop of the
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facts, circumstances and evidence in this case would be an appropriate
explanation for those omissions, discrepancies and contradictions.
Therefore, I am not inclined to discard the evidence of PW-13 Sunil Jain.
The facts deposed to by PW-13 Sunil Jain in his evidence cannot be looked
upon with suspicion. The facts narrated by PW-13 before the Court after
the arrest of accused Abu Salem provides a detail catalog of the events
resulted into the murder of Pradeep Jain as well as subsequent extortion
after the murder of Pradeep Jain. This is the independent evidence. This
independent evidence, therefore, can be used to corroborate the evidence
of PW-1 Naeem Khan (Approver). Barring few inconsistencies, the
evidence of PW-1 Naeem Khan (Approver) and PW-13 Sunil Jain is
consistent on material points. It is necessary to mention that if the
accused Abu Salem had not been involved in the crime and responsible for
the murder of Pradeep Jain, otherwise PW-13 Sunil Jain and the Jain
family had no axe to grind against him. As such I am not inclined to
accept the submissions advanced by the defence Advocates. Submissions
advanced by prosecution are accepted being well founded.
383] The prosecution has relied upon the evidence of PW-4
Shri Sitaram Namdeo Nikalje and PW-5 Mohammed Shabir Munawaruddin
Malik to seek independent corroboration to the evidence of PW-1 Naeem
Khan (Approver) and general corroboration to the confessions of accused
Abu Salem and accused Mehendi Hasan on the point of existence of the
STD booths from where the calls were made to Dubai and also the
telephone numbers to which the calls were made. As per the case of the
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prosecution during the course of interrogation of accused Mehendi Hasan
by PW-20 API Shri Dinesh Kadam, he expressed the desire to point out the
STD booths from where he would make phone calls to accused Abu Salem
in Dubai. PW-20 API Shri Dinesh Kadam then immediately summoned two
panchas and in presence of those panchas accused Mehendi Hasan made a
statement stating that he would point out the STD booths from where he
was making the phone calls to accused Abu Salem in Dubai. PW-20 API
Shri Dinesh Kadam has deposed that he accordingly drew the
Memorandum Panchnama in presence of two panchas. He has deposed
that accused took them to one STD booth at Chembur and from Chembur
he took them to another STD booth at Andheri. PW-20 API Shri Dinesh
Kadam has further deposed that from the STD Booth at Chembur, they
seized two registers and some telephone bills, which are marked as
Articles B1, C1 and D1.
384] At this stage, it is necessary to note down the
submissions made by learned Advocate Shri Pasbola for the accused.
Learned Advocate Shri Pasbola submitted that alleged discovery of the STD
booths could not be said to be a discovery of fact within the meaning of
Section 27 of the Evidence Act. Learned Advocate Shri Pasbola submitted
that the discovery of a person or discovery of the object like a booth could
not be treated as a discovery of fact and as such the statement alleged to
have been made by accused Mehendi Hasan would not be admissible
u/sec. 27 of the Indian Evidence Act. In order to find out the correct
factual and legal position, at the outset, it is necessary to see whether any
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statement was made by the accused and said booths were pointed out by
the accused, as stated by the prosecution. After answering this factual
question, it would be necessary to advert to the legal issue as to whether
this would amount to a statement leading to the discovery of fact strictly
within the parameters of Section 27 of the Indian Evidence Act. Learned
Advocate Shri Pasbola on facts submitted that there is ample evidence to
falsify the evidence of PW-4 Shri Sitaram Namdeo Nikalje, PW-5
Mohammed Shabir Munawaruddin Malik and PW-20 API Shri Dinesh
Kadam on the point of seizure of Articles B1 and D1 i.e. the telephone
record registers.
385] It is now necessary to see the evidence of PW-4 Shri
Sitaram Namdeo Nikalje, PW-5 Mohammed Shabir Munawaruddin Malik,
PW-20 API Shri Dinesh Parshuram Kadam and PW-22 Kisan Narayan
Shengal collectively on the factual aspects. It may be mentioned at this
stage that the statement made by the accused was not in respect of
pointing out of some telephone registers. Accused Mehendi Hasan had
expressed the desire to point out the STD Booths from where he would
make phone calls to accused Abu Salem in Dubai. PW-4 Shri Sitaram
Namdeo Nikalje is the panch witness. In his evidence he has deposed that
on 19/12/2005 he and co-panch were called to Bhoiwada Police Station.
The purpose of calling them to the police station was explained to them.
He has further deposed that in his presence the accused Mohd.Mehendi @
Sunny made a statement that he would point out the STD booth from
where he used to make phone calls to Abu Salem at Dubai. He has
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identified the Panchanama. It is at Exhibit-333. He has deposed that
thereafter the accused Mehendi Hasan, Police Officers, constables and
Panchas boarded the Police jeep. Accused took them to Trombay and
particularly to “Samina Communication”. One person by name Mohd.
Shabbir was present there. In their presence, accused Mehendi Hasan
pointed out the STD booth from where he would make phone calls to
accused Abu Salem in Dubai. He has deposed that in his presence, police
had seized Articles B1, C1 and D1. He has further deposed that from
there the accused took them to Andheri and pointed out another STD
booth “Lucky STD”. He has deposed that after this, the Panchanama was
completed and it was signed by both of them and the police officer. It is at
Exhibit-334. This witness has identified the Articles.
386] In his cross-examination, his very presence in the
police station has been disputed. However, he has offered proper
explanation in his cross-examination to justify his presence in the locality
of Bhoiwada Police Station. The answers given by him in his cross-
examination, if perused in entirety, would make it clear that he was the
witness to all these facts. On the basis of his evidence, one thing could
certainly be proved that in his presence at Bhoiwada Police Station accused
made a statement that he would point out the STD booths and the accused
took them to the STD booths and pointed out those STD booths. As far as
seizure of the telephone registers are concerned, other evidence led by the
prosecution is very shaky and doubtful. Therefore, on the basis of the
evidence of this witness, the facts of seizure of the registers Articles B1
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and D1 cannot be accepted. So, on the basis of the evidence of this
witness, it has been established that he had accompanied the police to the
two STD booths, which were pointed out by the accused. His evidence on
this aspect is consistent and as such cannot be discarded.
387] It is now necessary to consider the evidence of PW-5
Shri Mohammed Shabir Munawaruddin Malik. PW-5 is the owner of
“Shamina PCO Centre” at Chembur. In his evidence he has deposed that
he knows accused Mehendi Hasan. He has deposed that accused Mehendi
Hasan resides in his locality and, therefore, he knows him since his
childhood. He has deposed that accused Mehendi Hasan used to come to
his STD booth to make phone calls. He has further deposed that
sometimes he used to pick up the calls coming from Bhai or Salem from
Dubai. As far as the seizure of the registers and telephone bills are
concerned, he has stated that those were seized from his STD booth on
19/12/2005. He has identified the entries from the registers to connect the
said entries with accused Mehendi Hasan. This evidence of PW-5 to
connect particular entries from those registers with the accused No.5 is not
believable. First and foremost, the fact of seizure of the telephone registers
Articles B1 and D1 on that day is doubtful. As far as the seizure of the
telephone bills are concerned, I do not see any problem. Similarly the
defence has also not disputed seriously about the seizure of those
telephone bills on that date. The defence has disputed the admissibility of
the Telephone Bills for want of proper evidence to prove the same. On the
basis of the evidence of this witness, two facts are established. First is that
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he knows accused Mehendi Hasan since his childhood and second fact is
that accused Mehendi Hasan used to come to his STD booth to make
phone calls to Dubai. As far as receipt of the phone calls from Abu Salem
and attendance of the said calls sometimes by him is the improvement in
his evidence. This fact was not stated by him while recording his
statement. However, this fact has been admitted by accused Abu Salem in
his confession. In his confession, accused Abu Salem has admitted that he
used to make phone calls from Dubai at the STD booth at Chembur to
accused Mehendi Hasan. Therefore, the statement made by this witness,
though found to be a improvement, cannot be discarded. As per the
defence of the accused, Articles B1 and D1 were seized pursuant to some
search warrant in 1993-1994 by the officers of the Crime Branch. PW-5
has admitted in his cross-examination at Page 131 Para 30 that the police
had come to his STD booth with Search Warrant in 1993. He has admitted
that at that time police did not prepare any panchanama in his shop or
seized any article. He has admitted that the police had come to his shop
with the Search warrant in connection with one Salim Haddi. He has
admitted at Page 132 Para 30 that at that time police had inspected his call
registers. He has admitted that he had shown the call registers Articles B1
and D1. He has further admitted that at that time the police officers from
Crime Branch had come to his shop. PW-20 API Shri Dinesh Kadam has
admitted this fact in his cross-examination at Page 409 Para 12. He has
admitted that registers Articles B1 and D1 were already taken in
possession even before their visit to the shop.
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388] PW-22 Shri Kisan Narayan Shengal has admitted in
his evidence at Page 474 Para 50 that PI Dinesh Kadam PW-20 had seized
phone call registers Articles B1 and D1 and telephone bills Article C1
collectively during the course of investigation in some other trial. He has
admitted that he did not show these documents to PI Shri Kadam(PW-20)
while recording his statement afresh. In the backdrop of these admissions
by the police officers, I am of the opinion that the case of the prosecution
that these registers were sized on 19/12/2005 cannot be believed at all.
PW-22 was nominated as the Investigating Officer in this case on
27/12/1995. Before him, PW-19 Shri Datta Sambhaji Dhawale was the
Investigating Officer. The then Investigating Officer Shri Dhawale PW-19 is
silent in his evidence about the seizure of Articles B1, C1 and D1. At this
stage, it is necessary to mention that being the Investigating Officer in this
case PW-19 Datta Dhawale was supposed to know this fact and he was
supposed to depose about this fact before Court. It may be mentioned
that in the absence of any statement by PW-19 on this aspect, the benefit of
the same must go to the accused.
389] On the basis of the evidence of PW-4 Shri Sitaram
Namdeo Nikalje, PW-5 Mohammed Shabir Munawaruddin Malik and
PW-22 only fact of pointing out of the STD booths by accused Mehendi
Hasan has been proved. This evidence cannot be discarded. The evidence
of the prosecution with regard to the discovery of the STD Booths at the
instance of accused Mehendi Hasan is consistent with some of the facts
admitted on this point in their confessions by accused Abu Salem and
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accused Mehendi Hasan. Accused Mehendi Hasan has admitted in his
confession that he used to make phone calls to accused Abu Salem from
the STD booth at Chembur. He has also admitted in his evidence that he
used to make phone calls to accused Abu Salem from the STD booth at
Andheri. Accused Abu Salem has also admitted in his confession that
sometimes he used to make phone calls on PCO booth at Chembur to
Mehendi Hasan. It is, therefore, seen that the evidence of these witnesses
with regard to the discovery of the STD booths corroborates the facts
admitted by accused Abu Salem and accused Mehendi Hasan in their
respective confessions. In the confessions, accused Abu Salem and accused
Mehendi Hasan have categorically stated the two telephone Numbers used
by accused Abu Salem at Dubai. Their confessions are consistent on this
aspect.
390] It further appears that in his evidence PW-1 Naeem
Khan (Approver) has deposed that on two occasions, along with Mehendi
Hasan he had an occasion to make phone calls to accused Abu Salem in
Dubai from STD booth at Andheri near Hotel Moti Mahal. On the basis of
the evidence of PW-4 Shri Sitaram Namdeo Nikalje, it has been proved that
these two STD booths were pointed out by accused Mehendi Hasan. The
evidence of PW-4 and PW-5 lends general corroboration to the confessions
of accused Abu Salem and accused Mehendi Hasan on the point of
existence of the STD booths. The evidence PW-4 and PW-5 also
corroborates the evidence of PW-1 Naeem Khan (Approver) on this point.
At this stage, it is necessary to mention that if it is found that the statement
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made by accused Mehendi Hasan does not fall within the ambit of Section
27 of the Indian Evidence Act, then, there would not be any difficulty in
accepting the said statement as subsequent conduct of the accused u/sec. 8
of the Indian Evidence Act.
391] As far as the telephone registers are concerned, the
prosecution has not been able to establish that these documents were
seized on 19/12/2005. As far as the telephone bills are concerned, the
same have not been proved as required by law. The telephone bills are the
print outs of the electronic record maintained by the MTNL, Mumbai. No
certificate, as required by Section 65B of the Indian Evidence Act, has been
produced on record with those telephone bills, which are the print outs of
the electronic record. Therefore, even if it is assumed for the sake of
argument that these telephone bills were seized on 19/12/2005, the same
have not been proved as per the law.
392] It is now necessary to advert to the main objection of
the learned Advocate Shri Pasbola for the accused. Learned Advocate Shri
Pasbola has submitted that the statement made by accused Mehendi Hasan
leading to the discovery of the STD booths cannot be accepted within the
parameters of Section 27 of the Indian Evidence Act. In order to
substantiate this submission, learned Advocate has relied upon the
following three decisions.
i) Himachal Pradesh Administration v. Om
Prakash AIR 1972 SUPREME COURT CASES 975;
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ii) Pandurang Kalu Patil and another v. State of
Maharashtra 2002 CRI. L. J. 1007; and
iii) Pulukuri kottaya and others v. Emperor
A.I.R. (34) 1947 Privy Council 67
393] In the present case, the prosecution has relied upon
the statement made by accused Mehendi Hasan to the effect that, “he
would point out the STD booths at Chembur as well as at Andheri from
where he used to make the phone calls to Abu Salem in Dubai.” In the
submission of the learned Advocate for the accused this statement does not
relate to the discovery of the fact as understood by Section 27 of the Indian
Evidence Act, but it relates to the discovery of the object and which is not
admissible u/sec. 27 of the Indian Evidence Act.
394] In the case of Himachal Pradesh v. Om Prakashreported in AIR 1972 Supreme Court Cases 975, the person, from whom
the weapon used in the offence was purchased by the accused, was pointed
out and allegedly discovered. In this case, the Hon'ble Apex Court has held
that “fact discovered” within the meaning of Section 27 of the Indian
Evidence Act must refer to a material fact to which the information directly
relates. That information which does not distinctly connect with the fact
discovered or that portion of the information which merely explains the
material things discovered is not admissible u/sec. 27 of the Indian
Evidence Act and cannot be proved. In this case the Hon'ble Supreme
Court of India has observed that where an accused gives information to the
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Investigating Officer that he purchased murder weapon from a particular
dealer and takes the Investigating Officer and the panchas to the place of
the dealer and points him out the dealer and the shop, the said
information is not inadmissible u/sec. 27 of the Indian Evidence Act. The
Hon'ble Supreme Court of India has observed that however the evidence of
the Investigating Officer and the panchas that the accused had taken them
to the dealer and pointed him out and as corroborated by the dealer
himself is admissible u/sec. 8 of the Indian Evidence Act as the conduct of
the accused.
395] In the case of Pandurang Kalu Patil and another v.
State of Maharashtra reported in 2002 CRI. L. J. 1007, the accused had
made a statement, “ I have kept fire-arm concealed behind the old house in
a heap of wood”. In this case the fact discovered was not the Gun but the
fact discovered was that the accused had concealed the gun behind old
house under heap of wood. The Hon'ble Supreme Court of India has held
that what is admissible u/sec. 27 of the Indian Evidence Act is the fact
discovered and not the object produced pursuant to the statement made by
the accused. In Pandurang Kalu Patil and another v. State of
Maharashtra, the Hon'ble Supreme Court of India has considered the
decision in the case of Pulukuri kottaya and others v. Emperor reported
in A.I.R. (34) 1947 Privy Council 67.
396] In Pulukuri kottaya and others v. Emperor reported
in A.I.R. (34) 1947 Privy Council 67 , the Hon'ble Supreme Court has
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held that it is fallacious to treat the “fact discovered” within Section 27 of
the Indian Evidence Act as equivalent to the object produced. The fact
discovered embraces the place from which the object is produced and the
knowledge of the accused as to this, and the information given, must relate
distinctly to this fact. Information as to past user, or the past history, of the
object produced is not related to its discovery in the setting in which it is
discovered. The Hon'ble Privy Council has observed that information
supplied by a person in custody that, “I will produce a knife concealed in
the roof of my house” does not lead to the discovery of a knife; knives were
discovered many years ago. It leads to the discovery of the fact that a knife
is concealed in the house of the informant to his knowledge, and if the
knife is proved to have been used in the commission of the offence, the fact
discovered is very important.
397] While considering the applicability of the proposition
of law laid down in the Judgments, cited supra, it is necessary to take a
note of the statement made by accused Mehendi Hasan in this case. I have
taken note of the statement in the beginning. As per the statement made
by the witness already existing STD booths were pointed out by the
accused and according to the prosecution, the discovery of the STD booths
at the instance of the accused would be admissible u/sec. 27 of the Indian
Evidence Act. It may be mentioned at this stage that as per the statement
made by the accused no other material object or fact was discovered. It
has come on record in the evidence that the Articles were already seized by
the police in 1993-1994. The existence of the STD booths was known to
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the police officers. In this case the statement made by the accused has not
led to the discovery of any fact. At the most it could be said to have led to
the discovery of the object i.e. the STD Booths. By applying the law laid
down by the Hon'ble Supreme Court of India and the Privy Council, this
statement made by the accused leading to the discovery of the STD Booths
cannot be held to be admissible u/sec. 27 of the Indian Evidence Act. As
held by the Hon'ble Supreme Court of India in the case of Himachal
Pradesh v. Om Prakash, it could be admitted u/sec. 8 of the Indian
Evidence Act as a conduct of the accused. I do not see any difficulty in
accepting this statement to establish the subsequent conduct of the
accused. PW-4 panch witness has admittedly deposed that the accused
took them to the STD Booth. PW-5 has deposed that he knew accused
Mehendi Hasan since his childhood. They are residing in the same vicinity.
PW-5 has deposed that accused Mehendi Hasan used to come to his STD
booth to make phone calls to Dubai. PW-5 has further deposed that
sometimes he used to attend the phone calls made at his PCO booth from
Dubai by accused Abu Salem. The evidence of PW-5 is consistent with the
facts admitted by accused Abu Salem and accused Mehendi Hasan in their
respective confession. In this case, on the basis of the evidence, the
statement made by accused Mehendi Hasan can be used and admitted
u/sec. 8 of the Indian Evidence Act as a conduct of the accused. It has been
corroborated by other evidence. The statement made by the accused
Mehendi Hasan for the reasons stated above in view of the law laid down
by the Hon'ble Supreme Court of India cannot be accepted as a statement
leading to the discovery of fact u/sec. 27 of the Indian Evidence Act.
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Therefore, on the law point, the submissions advanced by learned
Advocate Shri Pasbola deserves acceptance. I have already observed that
on the point of existence of the STD booth, the evidence of PW-4, PW-5
and the confessions of accused Abu Salem and accused Mehendi Hasan
cannot be discarded. In this case, only this part of evidence can be used to
extend general corroboration to the confessions of the accused and the
evidence of PW-1 Naeem Khan (Approver).
CHARGE AND EVIDENCE AGAINST ACCUSED NO. 5
V. K. JHAMB
398] The accused No. 5 V. K. Jhamb is facing the charge
u/sec. 120-B read with Sections 386 and 387 of the Indian Penal Code
along with accused Abu Salem, accused Naeem Khan, accused Mehendi
Hasan and others. Accused Naeem Khan has become Approver(PW-1) in
this case. A Pardon tendered to accused Riyaz Ahmed Siddiqui was
forfeited and, therefore, he is being tried separately as per the mandate of
law. The charges u/sec. 386 and 387 of the Indian Penal Code have been
withdrawn by the prosecution against accused Abu Salem. As per the case
of the prosecution, even after the murder of Pradeep Jain on 07/03/1995,
pursuant to the conspiracy hatched before the murder of Pradeep Jain, the
accused Abu Salem himself and with the help of his henchmen continued
the spell of threats to the Jain family to pay the extortion money. When
the Jain brothers placed before accused Abu Salem their financial crisis,
the accused Abu Salem suggested them to sell some of their property and
satisfy his demands. As per the case of the prosecution, therefore, the Jain
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brothers agreed to transfer three flats in lieu of the extortion amount and
as suggested by accused Abu Salem, accused No.5 V. K. Jhamb was his man
to complete the sale of those flats and send the money out of the sale price
of those flats to accused Abu Salem in Dubai. According to the case of the
prosecution accused No.5 V.K. Jhamb was not involved in the conspiracy
prior to the murder of Pradeep Jain on 07/03/1995. As per the case of the
prosecution, the accused No. 5 V. K. Jhamb joined the conspiracy
somewhere in March/April 1996. So, these are some of the background
facts qua accused No.5 V. K. Jhamb.
399] Learned SPP Shri Ujjwal Nikam submitted that in
this case the conduct of the accused No. 5 V. K. Jhamb is very material and
relevant. Learned SPP Shri Nikam submitted that when he was instructed
by the accused Abu Salem to complete the sale transaction of those three
flats, after explaining the real nature of the transaction, he (accused No.5
V. K. Jhamb) never complained about the same either to the police or to
any other person alleging that he was being forced by accused Abu Salem
to indulge in the illegal act. Learned SPP Shri Nikam submitted that this
conduct of the accused No.5 V. K. Jhamb reflects upon his guilty state of
mind. Learned SPP Shri Nikam submitted that the conspiracy hatched in
Dubai to force the Jain brothers to surrender the flats and to acquire the
monetary benefits out of the sale transaction was not snapped after the
murder of Pradeep Jain. Learned SPP Shri Nikam submitted that the
prosecution has proved that pursuant to the said conspiracy accused Abu
Salem compelled the Jain brothers to surrender the three flats in lieu of
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the extortion money and execute the documents in favour of the buyers
suggested by V. K. Jhamb (accused No.5). Learned SPP Shri Nikam
submitted that the prosecution by examining the independent witnesses
has proved the commission of the offence u/sec.s 386 and 387 of the
Indian Penal Code read with Section 120-B of the Indian Penal Code by
accused No.5 V. K. Jhamb. Learned SPP Shri Nikam submitted that the
defence submitted in writing at the time of 313 statement of the accused
No. 5 V. K. Jhamb is contrary and as such completely belies his stand and
defence taken in this case. Learned SPP Shri Nikam submitted that taking
the advantage of death of Ashok Jain, accused No. 5 V. K. Jhamb has taken
the defence of the loan transaction with deceased Ashok Jain. Learned SPP
Shri Nikam submitted that since the offence committed by accused No.5 V.
K. Jhamb was pursuant to the conspiracy, which was hatched in Dubai in
October/November, 1994, the accused No.5 is liable to be prosecuted with
the other accused though he has not been charged for commission of any
of the offences under the TADA (P) Act.
400] Learned Advocate Shri Srikant Shivade appearing
for the accused No. 5 V. K. Jhamb submitted that accused No. 5 V. K. Jhamb
cannot be charged and tried in this case because he was not the participant
in the conspiracy and the offence alleged against the accused was
committed after the expiry of the TADA (P) Act i.e. on 23/05/1995.
Learned Advocate Shri Shivade submitted that the TADA (P) Act was a
temporary legislation and which expired on 23/05/1995 and, therefore, by
virtue of the provisions of Section 1 sub-section 4 sub-clause (d) of the
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TADA (P) Act, the accused No.5 V. K. Jhamb cannot be charged and tried
with the other accused in this case. Learned Advocate Shri Shivade
submitted that as per the case of the prosecution the alleged offence was
committed in March/April 1996, after about a year from the date of the
murder of Pradeep Jain and, therefore, it was a part of a separate
conspiracy. Learned Advocate Shri Shivade submitted that after murder of
Pradeep Jain on 07/03/1995, the conspiracy allegedly hatched in Dubai in
1994 was snapped and, therefore, the alleged act of the accused No. 5 V. K.
Jhamb cannot be brought within the ambit of the said conspiracy. Learned
Advocate Shri Shivade submitted that the alleged acts done in March/April
1996 could not be said to be in continuation of the conspiracy even after
the murder of Pradeep Jain on 7th March, 1995. Learned Advocate Shri
Shivade submitted that since the accused No. 5 V. K. Jhamb is not charged
and tried for any of the offences punishable under the TADA (P) Act, the
confession made by the accused Abu Salem cannot be used and admissible
against him (accused No.5 V.K. Jhamb). Learned Advocate Shri Shivade
submitted that in view of the facts, this is the issue of the jurisdiction of
this Court to entertain the charge against the accused No.5 in this trial.
Learned Advocate Shri Shivade submitted that while deciding the point of
acts done in the same transaction, the proximity of time test is very
important. Learned Advocate Shri Shivade submitted that the time gap
between the murder of Pradeep Jain and the alleged transaction in
March/April 1996 clearly indicates that it was not the part of the same
transaction. Learned Advocate Shri Shivade submitted that the evidence
adduced by the prosecution to prove the charge against accused No.5 V. K.
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Jhamb is not cogent and reliable. In the submission of learned Advocate
Shri Shivade the accused No.5 V.K.Jhamb has been falsely involved in this
case by planting the witnesses to substantiate the case of the prosecution
against accused Abu Salem. Learned Advocate Shri Shivade submitted that
there is no iota of evidence to establish the case of extortion against the
accused No.5 V. K. Jhamb. Learned Advocate Shri Shivade submitted that
the defence of the accused about the monetary transaction between the
Jain brothers and brother of accused No. 5 is probable and, therefore,
deserves acceptance.
401] Before adverting to the evidence led by the
prosecution to prove the charges against the accused No.5 V. K. Jhamb, it is
necessary to decide two important issues. First issue is as to whether the
accused No.5 V. K. Jhamb could be charged and tried together with the
other accused for the offences u/sec. 120-B of Indian Penal Code read with
Sections 386 and 387 of the Indian Penal Code in a trial initiated under the
TADA (P) Act, when no charge under the provisions of the TADA (P) Act
has been framed against the accused No.5 V. K. Jhamb. The second
important question depends upon the answer, one way or the other, to
question No.1. If the Court comes to the conclusion that as per law the
accused No.5 V. K. Jhamb can be jointly charged and tried with the other
accused, then, whether the confession made by the accused Abu Salem
could be used against him (accused No.5 V. K. Jhamb) since the accused
No.5 has not been charged for the commission of any of the offences under
the TADA (P) Act.
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402] As per the case of the prosecution, the conspiracy
was hatched in October/November, 1994 to force the Jain brothers by
threats and pressure to surrender their rights over the Kol Dongri Property
at Andheri, Mumbai, and to earn huge profits out of the transaction from
Jain builders. While considering the confession of the accused Abu Salem
and the evidence adduced by the prosecution, I have observed that without
changing the basic object and subject of the conspiracy, the accused Abu
Salem depending upon the situation suitably moulded his plan to execute
the object of the conspiracy. It is not necessary to repeat all the evidence at
this stage. It would suffice to state that the accused No. 5 V.K. Jhamb, as
per the case of the prosecution, joined the common object of the
conspiracy by boarding the train of conspiracy in the month of March/April
1996. It is not the case of the prosecution that prior to March/April 1996,
accused No. 5 V. K. Jhamb was in any manner involved in commission of
any offence in this case. The important question that requires answer is as
to whether this subsequent joining of the conspiracy by the accused No. 5
V. K. Jhamb in March/April 1996 would relate back to the inception of the
conspiracy qua the charges framed against him. At this stage, it is
necessary to consider the legal position on this issue. I may usefully refer
the decision in the case of Govt. of NCT of Delhi vs. Jaspal Singh reported
in (2003) 10 Supreme Court Cases 586 (Not cited at bar). In this case,
the Hon'ble Supreme Court of India has held that once there is sufficient
material to reasonably believe that there was concert and connection
between persons charged with a common design, it is immaterial as to
whether they were strangers to each other or ignorant of the actual role of
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each of them or they did not perform any one or more of such acts by joint
efforts. The Hon'ble Supreme Court of India has held that it is not
necessary that all the conspirators, who have joined in the scheme from
the first and those, who came in at later stage, are equally guilty provided
the agreement is proved. The law laid down by the Hon'ble Supreme
Court of India in this case is an answer to the role played by the accused
No. 5 V. K. Jhamb by subsequently joining the conspiracy.
403] While raising the issue of the jurisdiction of this
Court to proceed against the accused No. 5 V. K. Jhamb, learned Advocate
Shri Shivade drew my attention towards the provisions of Section 12 of the
TADA (P) Act. It is submitted that the powers are vested with the
Designated Court established under the TADA (P) Act to try the other
offences as per Section 12 of the TADA (P) Act. Learned Advocate Shri
Shivade pointed out that the powers u/sec. 12 of the TADA (P) Act can be
invoked by the Designated Court only where the accused is charged with
the offences under the TADA (P) Act and also the offences connected and
allegedly committed by the said accused under any other Act. In this case,
admittedly the accused No.5 V. K. Jhamb has not been charged for any of
the offences under the provisions of the TADA (P) Act. The accused No. 5
has been charged for the offences u/sec. 386 and 387 read with Section
120-B of the Indian Penal Code. As per the case of the prosecution, the
conspiracy to extort money from Jain brothers was hatched in October/
November, 1994 in Dubai and the said conspiracy was continued even after
the murder of Pradeep Jain on 07/03/1995 and it was put to its logical
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end when the Jain brothers were forced to pay the extortion money to
accused Abu Salem by selling the three flats i.e. flat Nos. 602, 605 and 606
from Mamta Co-operative Society. As per the case of the prosecution, the
accused No.5 joined the conspiracy in March/April 1996. As per the case of
the prosecution, the accused No. 5 was roped in by accused Abu Salem to
sell those three flats and send the purchase price of the said three flats
through Hawala to him at Dubai. It is further case of the prosecution that
accused Abu Salem in his confession has admitted that before assigning the
role in this conspiracy to accused No. 5 V.K. Jhamb, accused Abu Salem
apprised accused No.5 V. K. Jham of all the facts. Since the accused No. 5
has not been charged under any of the provisions of the TADA (P) Act, the
expiry of the TADA (P) Act on 23/05/1995 is of no consequence. The
accused No. 5 V.K. Jhamb shared the common object of the conspiracy,
which was hatched in 1994 at Dubai to the extent of extorting the ransom
from Jain brothers. It is undisputed in this case that the offences
committed under the TADA (P) Act were completed on murder of Pradeep
Jain on 07/03/1995. It appears that because of the murder of Pradeep
Jain on 07/03/1995 and the joining of the accused No.5 in the conspiracy
in March/April, 1996, the prosecution must have thought it appropriate
not to book him for the offences punishable under the TADA (P) Act. It
was the decision of the prosecution. Whether it is a wise decision or
otherwise is the matter of concern and speculation for the prosecution.
Therefore, in this case, the expiry of the TADA (P) Act on 23/05/1995
would not in any way affect the trial of the accused No. 5 V. K. Jhamb with
the other accused, inasmuch as he shared the common object of the
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conspiracy, though joined later on, to extort money from Jain brothers.
404] On this point, learned SPP Shri Nikam has relied upon
the decision in the case of State of Maharashtra and others v. Som Nath
Thapa and others reported in (1996) 4 Supreme Court Cases 659. In
this case, the Hon'ble Supreme Court of India has held that to establish a
charge of conspiracy knowledge about indulgence in either an illegal act or
a legal act by illegal means is necessary. In some cases, intent of unlawful
use being made of the goods in services in question may be inferred from
the knowledge itself. When the ultimate offence consists of a chain of
actions, it would not be necessary for the prosecution to establish, to bring
home the charge of conspiracy, that each of the conspirators had the
knowledge of what the collaborator would do, so long as it is known that
the collaborator would put the goods or service to an unlawful use. In view
of the facts and the evidence brought on record in this case, considering
the role assigned to the accused No.5 V. K. Jhamb in the crime by accused
No.1 Abu Salem, would be sufficient to attribute the knowledge of
conspiracy to the accused No.5 V.K. Jhamb and also the illegal nature of
the transaction and act.
405] In this case, fortunately for the accused No. 5 V. K.
Jhamb, the Investigating Officer has not filed the supplementary charge-
sheet against the accused No.5 under any of the provisions of the TADA (P)
Act. On the basis of the material placed before the Court, my learned
predecessor was pleased to frame the charges against the accused No. 5 V.
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K. Jhamb with others u/sec. 120-B read with Sections 386 and 387 of the
Indian Penal Code. In this case, the murder of Pradeep Jain on
07/03/1995 was committed pursuant to the conspiracy hatched in 1994 at
Dubai. This fact has been proved by leading cogent and reliable evidence.
In this case, since the accused No.5 V. K. Jhamb has not been charged for
commission of any of the offences under the TADA (P) Act, the submission
made by learned Advocate Shri Shivade that when the alleged offence was
committed by the accused No.5, the TADA (P) Act had already expired, is
of no substance and consequence. In this case, fortunately for the accused
No.5 either by mistake or otherwise, supplementary chargesheet has not
been filed for commission of all the offences from the inception of the
conspiracy. After considering the facts and evidence in entirety, the
accused No.5 must take it as blessing in disguise. The accused No.5 has
been made to answer only the charge u/sec.s 386 and 387 of the Indian
Penal Code read with Section 120-B of the Indian Penal Code. While
challenging the jurisdiction of this Court to entertain the charge against
the accused No. 5 V. K. Jhamb under the Indian Penal Code, learned
Advocate Shri Shivade has challenged the jurisdiction of this Court under
the TADA (P) Act.
406] Applicability of Section 12 of the TADA (P) Act in
this case qua accused No.5 V.K. Jhamb has to be considered in the
backdrop of the case of the prosecution that even after murder of Pradeep
Jain the conspiracy was not snapped. The accused Abu Salem and others
continued the spell of threats to the Jain brothers to force them to pay the
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ransom amount. According to the learned Prosecutor Shri Nikam this
conspiracy, which was kept alive after the murder of Pradeep Jain, was not
a separate conspiracy, but it was a part of the same transaction and,
therefore, the acts done pursuant to the conspiracy in March/April 1996
were the part of one series of acts connected together to form the same
transaction. Learned Advocate Shri Shivade submitted that as per the case
of the prosecution ex-facie it appears that in March/April 1996 a separate
conspiracy was hatched and, therefore, the acts done pursuant to the said
conspiracy could not form the part of the conspiracy, which was hatched in
October/November, 1994 and as such it would not form the part of the
same transaction. At this stage, it is necessary to mention that if it is found
on facts that this act done in March/April 1996 was a part of series of acts
connected together to form the same transaction, then the submission
advanced on behalf of the accused No. 5 cannot be sustained. Since this is
a question of fact, it has to be decided on the basis of the facts,
circumstances and evidence brought on record. If there is evidence to
establish that the acts done/allegedly committed by others with the
accused No.5 in March/April, 1996 were part of series of the acts
connected together to form the part of the same transaction, then the
Court would be required to address important question as to whether the
trial of the accused No.5 V.K. Jhamb with the others is permissible under
law and more particularly by applying the provisions of Section 220 and
223 of the Cr.P.C and Section 12 of the TADA(P) Act.
407] The prosecution has adduced the evidence to prove
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the complicity of accused No.5 V.K.Jhamb in the crime. The most
important piece of evidence relied upon by the prosecution against the
accused No.5 is the confession of accused Abu Salem recorded u/sec. 15 of
the TADA (P) Act. In this case, learned Advocate appearing for the accused
No 5 has raised the issue of admissibility of the confession of the accused
Abu Salem as evidence against the accused No. 5 on the ground that it falls
outside the ambit and the scope of the provisions of Section 15 of the
TADA (P) Act. In the submission of learned Advocate Shri Shivade the
confession of the accused recorded u/sec. 15 of the TADA(P) Act can be
used against the co-conspirator / abettor etc. provided the accused is
charged and tried with the said accused for the offences under the TADA
(P) Act. In this case, admittedly, the accused No.5 has not been charged
for the commission of any of the offences under the TADA (P) Act. On the
basis of the material placed on record and in view of the case of the
prosecution accused No.5 V.K. Jhamb has been tried together with the
other accused. So, the admissibility of the confession of accused Abu
Salem against the accused No.5 V.K. Jhamb and his joint trial with accused
Abu Salem and others is the contentious issue raised by the defence
Advocate.
408] At this stage, it is necessary to mention that while
dealing with the evidence led by the prosecution to prove the voluntary
and truthful nature of the confession, I have held that the prosecution has
proved in this case that the confession of accused Abu Salem is voluntary
and true. If the confession of accused Abu Salem is excluded from
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consideration qua the accused No.5 V.K. Jhamb, then, there would hardly
be any consistent evidence to come to a positive conclusion about the
involvement and complicity of the accused No.5 V. K. Jhamb. The
confession of accused Abu Salem is, therefore, a important piece of
evidence. The responsibility was on the shoulder of the Prosecutor to
justify that under law the confession of accused Abu Salem, in view of the
admitted facts, is admissible and can be used as a piece of evidence against
the accused No.5 V.K. Jhamb. If the confession of accused Abu Salem is
excluded from the evidence relied upon against the accused No.5, then the
prosecution would be required to face a very precarious situation. In order
to satisfy this Court on the point of admissibility of the confession of
accused Abu Salem against the accused No.5 V.K. Jhamb in the facts
obtained on record, learnedSPP Shri Nikam has relied upon the decision in
the case of Prakash Kumar alias Prakash Bhutto v. State of Gujarat
reported in 2005 Supreme Court Cases (Cri.) 518. In this case, while
considering the provisions of Section 12 and Section 15 of the TADA (P)
Act, the Hon'ble Supreme Court of India has held that confessional
statement of accused recorded u/sec. 15 of the TADA (P) Act would
continue to remain admissible for the offences under any other law, which
were tried along with the TADA offences u/sec. 12, notwithstanding that
the accused was not found guilty of offences under the TADA (P) Act in the
same trial. In this case, the Hon'ble Supreme Court of India has held that
the confessional statement recorded under the TADA (P) Act is admissible
against the accused and co-accused, if they are acquitted under the TADA
(P) Act and found guilty of the offences punishable under the other Acts.
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On facts the proposition of law laid down in the Judgment, cited supra, by
learned Prosecutor would not justify and support the submission advanced
by learned Prosecutor.
409] Considering the importance and the magnitude of this
case and valuable evidence being required to be brushed aside on some
technical or legal points, I did some research on the subject. After some
research, I could lay my hands on the Judgment in the case of Manjit
Singh alias Mange v. Central Bureau of Investigation Through its
Superintendent of Police reported in ( 2011) 11 Supreme Court Cases
578. T his decision of the Hon'ble Supreme Court of India is the direct
Judgment on this issue. The facts in the case of Manjit Singh v. C.B.I .
and the facts of the case on hand are identical and similar. In the case
before the Hon'ble Supreme Court of India accused Manjit Singh and K.K.
Sayani were charged for the offences under the provisions of Section 3
sub-section (2) and Section 3 sub-section (3) read with Section 3 sub-
section (1) of the TADA (P) Act and also the offences u/sec. 302 read with
Section 120-B of the Indian Penal Code. Accused Babloo was not charged
for any of the offences under the TADA (P) Act. He was charged for the
offences u/sec. 120-B read with Section 302 of the Indian Penal Code. All
the three accused were tried together. Accused K.K. Sayani and accused
Manjit Singh were acquitted for the offences punishable under the TADA
(P) Act and relying upon their confessions, being admissible in evidence,
were convicted u/sec. 120-B read with Section 302 of the Indian Penal
Code. The question involved in this case was whether the confessions of
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accused Manjit Singh and accused K.K. Sayani could be used against them
in view of the fact that they have been acquitted of the charges under the
TADA (P) Act and against accused Bablu, who was not charged for the
offences under the TADA (P) Act, but was only tried together with accused
Manjit Singh and accused K.K. Sayani. For addressing the first point, the
Hon'ble Supreme Court of India has referred the Judgment of Prakash
Kumar v. State of Gujarat and held that the confessions were admissible
against accused Manjit Singh and accused K.K. Sayani. While deciding the
admissibility of the confessions of accused Manjit Singh and accused K.K.
Sayani against accused Bablu, who was tried with them but was not
charged for the offences under the TADA (P) Act, the Hon'ble Supreme
Court of India has held that the confessional statement made by a person
u/sec. 15 of the TADA (P) Act shall be admissible in the trial of a co-
accused for the offences committed and tried in the same case together
with the accused, who makes the confession. The Hon'ble Supreme Court
of India has held that the confession made by accused u/sec. 15 of the
TADA (P) Act can be used against the co-accused where the co-accused is
not charged for the offences under the TADA (P) Act, but he is tried
together with the accused, who has made the confession. In my view, the
law laid down by the Hon'ble Supreme Court of India in this case would be
an answer to the question posed by learned Advocate Mr. Shivade. The
decision in the case of Manjit Singh is the direct decision on this point.
410] In this case, accused Abu Salem has made the
confession u/sec. 15 of the TADA (P) Act. The same has been found
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voluntary and true. The accused No.5 V.K. Jhamb has been charged for the
offences u/sec. 120-B read with Sections 386 and 387 of the Indian Penal
Code, together with accused Abu Salem and others. He has not been
charged for the offences under the TADA (P) Act. Therefore, in my view,
by applying the ratio laid down by the Hon'ble Supreme Court of India in
the case of Manjit Singh, the confession made by accused Abu Salem is
admissible and can be used as a piece of evidence against the accused No.5
V.K. Jhamb. Once it is found that the confession of accused Abu Salem can
be used and is admissible in evidence against the accused No.5, it is
necessary at the cost of repetition to see as to what accused Abu Salem has
stated in his confession qua the accused No.5 V. K. Jhamb.
411] In his confession, accused Abu Salem has admitted
that after the murder of Pradeep Jain, he again started threatening the Jain
brothers for making the balance payment. Jain brothers were in financial
difficulties and, therefore, they could not comply his demand. The accused
Abu Salem has admitted that, therefore, he told Sunil Jain (PW-13) to sell
his property and pay the money to his man in Mumbai. Accused Abu
Salem has admitted in his confession that accordingly in March/April,
1996, Sunil Jain (PW-13) told him that they have three flats in Mamta Co-
operative Society, Sher-E-Punjab Colony, Mahakali Caves Road, Andheri
(East), Mumbai, and they would sell those flats and meet his demands.
Sunil Jain told accused Abu Salem to send his man to see the flats and
buyers for the flats. This statement made by accused Abu Salem would
show that even after murder of Pradeep Jain on 07/03/1995, he did not
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stop his greedy demands. He was after the Jain brothers and continued
the spell of threats to them to pay the extortion money. So, this statement
made by accused Abu Salem in his confession would show that the
conspiracy to extort money from Jain brothers was not snapped and put to
an end with the death of Pradeep Jain. Accused Abu Salem has admitted
that Jain brothers would tell him that they are in financial difficulties and,
therefore, they were unable to comply his demands. In these
circumstances, on suggestion of accused Abu Salem, they agreed to sell
their property namely three flats and pay the purchase price to accused
Abu Salem through his men. This confession made by accused Abu Salem
would show that the conspiracy to extort money continued even after the
death of Pradeep Jain. Accused Abu Salem was hell-bend to pressurize
and force the Jain brothers to pay him extortion money. In this process,
the deal of sale of three flats was struck. It appears that accused Abu
Salem took one year to materialize the deal with Jain brothers. It may be
noted that because of this time lag, it cannot be accepted in view of the
confession of accused Abu Salem that the conspiracy to extort money from
Jain brothers was snapped at any time.
412] It may be mentioned at this stage that the accused
No. 5 V. K. Jhamb joined the conspiracy in March/April, 1996. There is
concrete and cogent evidence led by the prosecution that the conspiracy
was hatched, as stated by the prosecution. In his confession, accused Abu
Salem has admitted that when Jain brothers agreed to give him three flats,
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he immediately contacted accused No.5 V. K. Jhamb and informed him
about the entire transaction. Similarly, at the same time, accused Abu
Salem informed Naeem Khan (Approver PW-1) to go and meet Jhamb
builder(accused No.5) and take him to Sunil Jain (PW-13). As per the
command of his Mentor Abu Salem, Naeem Khan (Approver PW-1) met
accused No.5 V.K. Jhamb, saw the flats with him and informed accused
Abu Salem on phone that the flats are in good condition and could fetch
good price. Accused Abu Salem has admitted that he thereafter made a
phone call to accused No. 5 V.K. Jhamb and told him to sell those flats as
early as possible. Accused Abu Salem has further admitted in his
confession that he made a phone call to Sunil Jain (PW-13) and told him
that as soon as he get the purchase price of the said three flats, he should
hand over the same to V.k. Jhamb (accused No.5). Accused Abu Salem has
further admitted that V.K. Jhamb(accused No.5) would inform him on day-
to-day basis about the sale transaction of the flats. Accused Abu Salem has
further admitted that accused No.5 V.K. Jhamb sold two flats for Rs. 28
lakhs and collected the sale proceeds from Sunil Jain (PW-13) and sent the
same to him at Dubai through Hawala. Accused Abu Salem has further
admitted that similarly in 1997 accused No.5 V. K. Jhamb sold the third flat
for Rs. 14 lakhs and sent the sale proceeds to him at Dubai through
Hawala. On perusal of this confession of accused Abu Salem, two things
are established. First, that the conspiracy was never snapped at any time
till it was put to its logical end and second, that from March/April 1996
accused V.K. Jhamb joined the conspiracy, who shared the concert and
common object of the conspiracy and sold the flats and sent the sale
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proceeds of those three flats to accused Abu Salem at Dubai through
Hawala.
413] The prosecution has also examined other witnesses to
establish the complicity of accused No.5 in this case. In order to decide the
limited objection raised by learned Advocate Shri Shivade to try the
accused No.5 with other accused by invoking the provisions of Section 12
of the TADA (P) Act on the ground that the conspiracy was snapped after
the murder of Pradeep Jain, the confession made by accused Abu Salem is
very material. At this stage, I must mention that the fact of continuation of
the conspiracy after the murder of Pradeep Jain has been corroborated by
the evidence of PW-1 Approver Naeem Khan, PW-9 Jyoti Pradeep Jain and
PW-13 Sunil Jain etc.. In view of the law laid down by the Hon'ble
Supreme Court of India in the case of Manjit Singh v. C.B.I ., referred
above, the accused, who is not facing the charges under the provisions of
the TADA (P) Act, can be charged and tried together with the accused
facing the charges under the TADA (P) Act together with the others for the
offences committed under the other Act by them. Therefore, the law laid
down by the Hon'ble Supreme Court of India in the case of Manjit Singh
v. C.B.I. is an appropriate answer to the objection raised by learned
Advocate Shri Shivade by pressing into service the provisions of Section 12
of the TADA (P) Act. The evidence on record in the form of confession of
accused Abu Salem, evidence of Naeem Khan (Approver PW-1), PW-9 Jyoti
Pradeep Jain, PW-13 Sunil Jain and others clearly go to show that the
conspiracy hatched in October/November, 1994 to extort money from Jain
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brothers was not snapped till it was put to its logical end. Accused Abu
Salem and others continued to extend the spell of threats to Jain brothers
to satisfy the demand of ransom. Simply because of the fact that the deal
could be materialized after one year would not be the only factor to opine
that the conspiracy was snapped and a new conspiracy was entered into in
March/April 1996. On the basis of the evidence on record, it can positively
be said that the subsequent acts of the accused Abu Salem and the
participation of the accused No.5 V.K. Jhamb in the same was a part of one
series of acts. It was so connected together that it formed the part of the
same transaction. No other conclusion can be reached on the basis of the
positive evidence adduced before me.
414] Section 220 and 223 of the Code of Criminal Procedure, 1973,
which fall under the Heading of 'Charge' deals with the “joinder of the
offences” and “joinder of the offenders in one trial”. In this case, by
invoking the provisions of Sections 220 and 223 of the Cr.P.C., the offences
and offenders in this crime can be tried together. Here, in this case,
Sections 220 and 223 of the Cr.P.C. would squarely apply. On the basis of
Sections 220 and 223 of the Cr.P.C., the trial of accused No.5 V. K. Jhamb
with others, who have been additionally charged for the offences under the
TADA (P) Act could not be said to be in breach of the provisions of Section
12 of the TADA (P) Act. All the acts combined together would show that
the conspiracy constituted a major offence in this case. The accused No.5
V.K. Jhamb joined the conspiracy in March/April 1996 and shared the
common object of the conspiracy. Therefore, the submission of learned
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Advocate Shri Shivade that his acts would not form part of the same
transaction, cannot be accepted. In view of the positive evidence led by
the prosecution in this case, the proximity of time test required to be
applied in such a situation does not become applicable in this case. In this
case, the prosecution has proved that even after the murder of Pradeep
Jain, the conspiracy to extort money from Jain brothers continued and it
was put to its logical end when Jain brothers were made to pay the money
by selling three flats through accused No. 5 V.K. Jhamb.
415] As far as the objection of the learned Advocate Shri
Shivade on the point of application of the provisions of the TADA (P) Act is
concerned, it has to be observed that in this case the accused No.5 V.K.
Jhamb has not been charged for any of the offences under the provisions of
the TADA (P) Act. As per the case of the prosecution that the knowledge of
the conspiracy can be attributed to the accused No.5 V. K. Jhamb. In view
of the evidence placed on record, he can be made liable for the acts and
consequences by invoking the provisions of Section 120-B of the Indian
Penal Code. In this case, admittedly the conspiracy was hatched during
the subsistence of the TADA (P) Act. Pursuant to the conspiracy, accused
Abu Salem and others committed the offences under the provisions of the
TADA (P) Act. The conspiracy hatched to extort money from Jain brothers
by hook or crook was not snapped even after the murder of Pradeep Jain
on 07/03/1995. Section 1 sub-section 4 of the TADA (P) Act was in the
form of saving clause. Learned Advocate Shri Shivde submitted that none
of the clauses of sub-section 4 of Section 1 of the TADA (P) Act would
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justify the prosecution of the accused No.5 V.K. Jhamb with accused Abu
Salem and others. I have minutely gone through the provisions of Section
1 sub-section 4 of the TADA (P) Act. Strictly speaking, it applies only to
the offences under the TADA (P) Act. As per the conspiracy, some of the
offences committed were under the TADA (P) Act and some of the offences
were under the Indian Penal Code and other Acts. By invoking Section 1
sub-section 4 of the TADA (P) Act, the participants or the members of the
conspiracy to commit other offences cannot be exonerated and segregated.
I have already observed that since the accused No.5 V.K. Jhamb has not
been charged for commission of any of the offence under the TADA (P)
Act, the reliance on the provisions of Section 1 sub-section 4 of the TADA
(P) Act by learned Advocate Shri Shivade for accused No.5 is completely
misplaced. As far as the confession of accused Abu Salem is concerned, it
was recorded during the subsistence of the TADA (P) Act. Therefore, by
applying the ratio in the case of Manjit Singh v. C.B.I ., it can be used
against the accused No. 5 V. K. Jhamb and accused No. 5 V. K. Jhamb can
be tried with accused Abu Salem and others by invoking the provisions of
Section 12 of the TADA (P) Act and Sections 220 and 223 of the Cr.P.C..
416] On the point of holding a joint trial of accused No.5
V.K. Jhamb with accused Abu Salem and others, learned Advocate Shri
Shivade submitted that it does not fall within the parameters of the
provisions of Section 223 of the Cr.P.C. In support of his submission, he
has relied upon the decision in the case of Lallu Prasad Yadav v. State
through CBI reported in 2003 CRI.L.J. 4452 (S.C.) . In the case before
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the Hon'ble Supreme Court of India, the amalgamation of all the cases
arising out of animal husbandry Scams was sought on the ground that
there was one common conspiracy. While rejecting the contention for
amalgamation of the cases, the Hon'ble Supreme Court of India has
observed that the main offences in all the cases were under the Corruption
Act. The conspiracy was only an allied offence to main offence. The
Hon'ble Supreme Court of India, therefore, observed that it cannot,
therefore, be said that the alleged overtact of siphoning money out of
different treasuries at different time could be said to be in the course of
the same transaction. It is held that in order to hold the joint trial, the
persons must be the accused of the same offences committed in the course
of same transaction. On facts the proposition in this case is of no help and
assistance to the case of the accused No.5 V.K. Jhamb. In this case on the
basis of the evidence it has been found that the conspiracy was hatched in
October/November 1994. The conspiracy was not snapped even after the
murder of Pradeep Jain on 07/03/1995. The accused No.5 joined the
conspiracy and shared the common object of the conspiracy in March/April
1996. The conspiracy was put to its logical end after the sale of third flat
and receipt of the purchase price of the said flat by accused Abu Salem in
Dubai. There is evidence on record to prove that the accused No.5 played a
very vital role in the process of sale of those three flats on the say of the
accused Abu Salem. In this case there is concrete evidence to prove that
accused No. 5 V. K. Jhamb has to be charged with accused Abu Salem and
others, as the offences committed by them are in the course of the same
transaction.
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417] Learned Advocate Shri Shivade for accused No.5 has
relied upon the decision in the case of Hirabhai Chhibabhai Tandel vs.
State of Gujarat reported in (2004) 6 Supreme Court Cases 421 to
substantiate his contention that the offences committed after expiry of the
TADA (P) Act cannot be brought within the fold and tried as per the
provisions of the TADA (P) Act. In the case before the Hon'ble Supreme
Court of India the acts were admittedly found committed after expiry of
the TADA (P) Act. The proposition in this decision is of no help and
assistance to the case of accused No.5 V.K. Jhamb for two reasons; i) that
the accused No. 5 V.K. Jhamb has not been charged for commission of any
of the offences under the provisions of the TADA (P) Act and, ii) that
accused Abu Salem has been charged for the commission of the offences
under the provisions of the TADA (P) Act and the confession made by
accused Abu Salem, in view of the decision in the case of Manjit Singh v.
C.B.I., can be used against the accused No. 5 V.K. Jhamb.
418] It is necessary to consider the other evidence led by
the prosecution to establish the complicity of the accused No. 5 V.K. Jhamb
in this case. As far as the confession of accused Abu Salem is concerned, it
speak volumes about the involvement of the accused No. 5 in the crime.
As per the law laid down by the Hon'ble Supreme Court of India, when a
confession of accused is sought to be used against the co-accused, the rule
of prudence demands that there must be a general corroboration to the
confession of the accused before it is made a basis of conviction of the co-
accused. The prosecution has adduced ample evidence to corroborate the
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confession of accused Abu Salem on the facts admitted by him qua accused
No.5. PW-1 Naeem Khan is the Approver. In his evidence, he has deposed
that as per the instructions of accused Abu Salem, he went to the residence
of the Jhamb builders and met him. PW-1 Naeem Khan (Approver) has
further deposed that the accused No.5 and his brother took him to the
flats. PW-1 Naeem Khan (Approver) has further deposed that the accused
No.5 V.K. Jhamb got down on the way from the car and the flats were
shown to him by the brother of the accused No.5. PW-1 Naeem Khan
(Approver) has identified the accused No.5 in the Court. As per the
instructions of accused Abu Salem, PW-1 (Approver) Naeem Khan was
assigned the task to meet the Jhamb builder and to see those flats and
report him back about the condition of the flats. PW-1 Naeem Khan
(Approver) did it accordingly. PW-1 Naeem Khan (Approver) has deposed
that after seeing the flats, he made a phone call to accused Abu Salem and
informed him that the flats were in good condition and could fetch good
price. At this stage, it is necessary to mention that PW-1 was not involved
in the process of sale of those flats and also the transfer of money out of
sale of those flats to accused Abu Salem. His role came to an end once he
reported about the condition of the flats to accused Abu Salem. As far as
the role assigned to PW-1 Naeem Khan (Approver) by accused Abu Salem
is concerned, accused Abu Salem himself has confirmed this fact in his
confession. PW-1 Naeem Khan (Approver) has been cross-examined on
behalf of accused No.5. I have minutely perused the cross-examination of
PW-1 Naeem Khan (Approver) made on behalf of accused No.5. On
perusing his cross-examination, I have not come across any admission in
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his cross-examination to cause a dent to his evidence on the fact of his visit
to the residence of Jhamb builder and from the residence of Jhamb builder
to Mamta Co-operative Society to see the three flats. If the prosecution
had planted this witness, then the prosecution could have made this
witness to depose on all the facts till the third flat was sold to PW-8 Shri
Murji Patel. This reflects upon the fact that the PW-1 Naeem Khan is a
natural witness. He has only deposed about the facts known to him.
419] As far as independent corroboration to the evidence of
PW-1 Naeem Khan (Approver) is concerned, one can get it from evidence
of PW-13 Sunil Jain. I may deal with the evidence of PW-13 Sunil Jain
separately on this issue independently and decide about its credibility and
the independent corroboration it offers to the evidence of PW-1 Approver
Naeem Khan.
420] I may now deal with the evidence of the witnesses on
the point of actual sale of three flats. As per the case of the prosecution,
two flats namely flat Nos. 605 and 606 were sold to PW-14 Haresh Mohan
Gehi in March, 1996. PW-14 has not supported the case of the
prosecution. He was declared hostile. It is settled position in law that
evidence of hostile witness cannot be discarded in toto. In his evidence,
PW-14 has admitted that he purchased two flats through Estate Broker
Amirbhai. In his Examination-in-Chief, he has stated that Amirbhai told
him that these flats belong to his friend, who resides near the State Bank of
India at Juhu. The bungalow of accused No.5 V.K. Jhamb is near to the
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State Bank of India at Juhu. He has not identified accused No.5 being the
same person whom he had met with Amirbhai. It is undisputed fact that
the two flats were sold to PW-14 Haresh Gehi for Rs. 28 lakhs. He made
the payment by cheques. The total consideration of the two flats was Rs.
28 lakhs. In his evidence, he nowhere states that he had dealings with the
partners of M/s. Kamla Constructions namely the Jain brothers while
purchasing those two flats.
421] The prosecution has examined Shri Amirali Akbarali
Engineer. He is PW-15. He is also a hostile witness. I have gone through
his evidence. On going through his evidence, I am convinced that it can
extend some help to the prosecution on certain important aspects. The
evidence of hostile witness cannot be discarded in toto. While appreciating
the evidence of hostile witness, great amount of care is required to be
taken. In case of such witness, the Court has to do the minute scrutiny and
separate the grains from the chaff. If any part of the evidence of the
hostile witness is found believable and acceptable, then it cannot be
discarded only on the ground that the witness was declared as a hostile by
the Court on the prayer of the prosecution. Perusal of the evidence of
PW-15 Amirbhai would show that this witness was in dual mind. On some
points he has supported the case of the prosecution and on some points he
has resiled from his earlier statement. In his evidence, PW-15 has
admitted that PW-14 Haresh Gehi wanted to purchase flats by making full
payment in cheque. Another Estate Broker Kasambai suggested the flats
situated in Mamta Co-operative Society, Sher-E-Punjab Colony, Mahakali
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Caves Road, Andheri (East), Mumbai. He has deposed that the said flats
were belonging to one investor Mr. Jhamb. He has admitted in his
Examination-in-Chief that he along with Kasambhai went to the residence
of V.K. Jhamb at Juhu and Jhamb's man handed over the keys of those flats
to Kasambhai. With the permission of the Court, learned SPP put the
questions of the nature to be put in cross-examination to this witness. In
his cross-examination by the learned Prosecutor, he has given certain
admissions. He has admitted that he met V.K. Jhamb on two occasions. In
those meetings, he talked with him about the cheque payment. V.k. Jhamb
told him that first they should see the flats and approve it, then he would
tell about acceptance of cheque payment. They accordingly saw those flats
and approved flat Nos. 605 and 606. He has admitted that after inspecting
the flats, the keys were handed over to V.K. Jhamb. So, in his cross-
examination, he confirms that he along with Mr. Haresh Gehi (PW-14)
transacted for the purchase of the two flats with Mr. V.K. Jhamb (accused
No.5). This witness has conveniently avoided to identify accused No.5 V.K.
Jhamb before Court. In his cross-examination by learned SPP he has
admitted that after inspection of the flats and approval thereof by Haresh
Ghei (PW-14), V.K. Jhamb was ready to accept full payment by cheque.
422] This witness has been cross-examined on behalf of the
accused No.5 V.K. Jhamb. In his cross-examination, he has given certain
admissions. Those admissions can be used in favour of the prosecution. At
page 348 para 7 he has admitted that he was not knowing Mr. Jhamb
before this transaction. He has further admitted that their first meeting
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with Jhamb was for maximum period of two minutes. He has admitted
that in first meeting he was not knowing the first name or initial of said
Jhamb. He has admitted that he does not remember any special mark to
remember that person. Further perusal of his cross-examination would
show that in his statement recorded by police, he did not state name of the
said person as V.K. Jhamb. His cross-examination at page 350 para 9 is very
material. PW-15 has admitted that he does not know builder Ashok Jain.
He has admitted that Gehi had given four cheques of Rs. seven lakhs each
to Jain builder of Mamta Society. He has admitted that he does not know
the full name of Jain builder. He has admitted that he does not know
whether there was other financial dealing between Haresh Gehi and Jain
builders besides transfer of flats. When he was specifically asked about his
visit to the residence of Jhamb builder, he has stated that he would not be
in a position to tell day, date and month of his visit. However, again he has
stated that it was in the month of March, 1996. He has denied the
suggestion that V.K. Jhamb had no concern with the transaction between
Gehi and Jain builders but it was a direct transaction between them.
Perusal of the evidence of this witness in entirety would show that for the
purpose of sale of two flats, he had no direct dealings with Jain brothers.
He had dealings with Jhamb builder. PW-14 Haresh Gehi has also not
stated that there was direct transaction between him and Jain builder. So,
on the basis of the evidence of this witness, one fact is established and the
said fact is that for the purpose of sale of the two flats in favour of Mr.
Haresh Gehi, they transacted with Jhamb builder. They have avoided to
identify accused No.5 in the Court. In this case the identity of accused No.
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5 V.K. Jhamb has been established on the basis of the evidence of other
witnesses. It is the defence of the accused No. 5 V.K. Jhamb that he had no
concern at all with the transfer of two flats in favour of Mr. Gehi. These
two witnesses confirm the sale price being 28 lakhs Rupees of the said two
flats. Similarly, PW-15 Amirali, though declared hostile, has admitted one
thing in clear terms that for the purpose of dealings in respect of those two
flats, he had approached V.K. Jhamb. On this limited aspect, the evidence
of PW-15 corroborates the case of the prosecution.
423] It is now necessary to deal with the evidence led by
the prosecution about sale of third flat. The purchaser of the third flat is
PW-8 Shri Murji Ananda Patel. Before I go to consider the case of the
prosecution and appreciate the evidence of PW-8 Shri Murji Patel, it is
necessary to briefly note down the defence of the accused. The accused No.
5 V.K. Jhamb has filed his Written Statement. In his statement he has
stated that his brother N.K.Jhamb was knowing Ashok Jain. Ashok Jain
has taken friendly loan from time to time from his brother. His brother
N.K. Jhamb paid Rs.10 lakhs to Ashok Jain on 12/02/1997, Rs.4,97,500/-
on 14/01/1998 and Rs.5,00,000/- on 16/01/1998 respectively. The said
amount was paid to Ashok Jain by his brother N.K. Jhamb and Ashok Jain
had agreed to transfer some flats to his brother as a security towards hand
loan. As far as this defence is concerned, the transaction of sale of two
flats to Mr. Gehi has not been brought within its sweep. The facts brought
on record in the evidence by the prosecution has made this defence
palpably unbelievable and as such cannot be accepted. This defence,
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instead of making the case of the prosecution improbable, has extended a
helping hand to the case of the prosecution.
424] The evidence of Ashok Jain was recorded in the earlier
trial on 19th April, 1997. Ashok Jain was suffering from Cancer. He was
not able to move out of his house and, therefore, my learned predecessor
was required to record evidence of Ashok Jain at his residence by shifting
the place of trial there by invoking the provisions of Section 19 of the
TADA (P) Act. It has come on record in the evidence of PW-13 Sunil Jain
that construction of Mamta Co-operative Society was completed in the
year 1990. It has also come on record that the flats constructed on 6th
floor of the building were not as per the sanction accorded by the Bombay
Municipal Corporation and, therefore, there was some dispute. As per the
confession of accused Abu Salem and the evidence of PW-13 Sunil Jain, the
flats were ready for sale in all respect in the year 1995. The agreement
with Shri Murji Patel (PW-8) was executed on 15/03/1997. As per the
defence of the accused No.5 V.K. Jhamb, Ashok Jain felt the need of money
in February, 1997. His brother N.K.Jhamb paid Rs. ten lakhs to Ashok Jain
on 12/02/1997. The remaining loan amount, according to accused No.5
V.K. Jhamb, was paid in January, 1998. Considering the fact that the
agreement with PW-8 Murji Patel was executed on 15/03/1997, there
would not have been a question of need of loan amount in January, 1998
to Ashok Jain. It is not the defence of the accused No.5 V.K. Jhamb that
this flat was given to the brother of accused No.5 as a security for the loan
to be paid in future. If there was a need of money, then the Jain brothers
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could have sold this flat in the open market. According to PW-8 Murji
Patel, he purchased the flat for Rs. 21 lakhs. A person from building line
would not act in the manner sought to be projected by accused No.5 V.K.
Jhamb. This defence does not fit in the facts and evidence obtained on
record. It appears that this defence has been taken on the basis of some
withdrawal entries of the amount from the bank accounts of wife of N.K.
Jhamb and N.K. Jhamb. If it has been the defence of the accused No. 5
that the entire loan amount was paid before execution of the agreement
dated 15/03/1997 in favour of PW-8 Shri Murji Patel, then coupled with
other circumstances the accused No. 5 could have convinced this Court
about his defence. Therefore, this defence falls flat.
425] It is now necessary to consider the evidence of PW-8
Murji Patel and the transaction between PW-8 Shri Murji Patel and N.K.
Jhamb. PW-8 has deposed that he is in the business of selling electrical
appliances and accessories. He has admitted that he knows V.K. Jhamb.
He has deposed that he had supplied electrical goods worth Rs. 15 lakhs
between 1995 to 1997 to V.K. Jhamb on credit. He has deposed that when
he demanded the money, Jhamb, told him that he had no money, but he
has some flats and if he is interested in purchasing the same, he could
inspect the said flats. He has further deposed that the talk in respect of
the flat took place between himself and Chhote Jhamb, brother of V.K.
Jhamb, in March, 1997. After seeing the flat, he agreed to buy the same
for Rs.21 lakhs. It was decided that to make the full payment, he should
supply the goods for remaining Rs.six lakhs. He has deposed that the
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contradictory to the defence of the accused No.5 V.K. Jhamb. One thing is
certain, on perusal of his evidence, that in respect of this flat he had no
dealings with the Jain brothers. Even if it is assumed that there was a
transaction between Jhamb builder and PW-8 Shri Murji Patel, it was their
own transaction. On the contrary, in my view, since the defence of the
accused No. 5 has fallen flat, the case of the prosecution in the teeth of this
evidence becomes more credible. Jain brothers had nothing to do with the
transaction between Jhamb builder and PW-8 Shri Murji Patel. As per the
case of the prosecution, they had surrendered three flats to Jhamb builder.
The accused Abu Salem had given the pious responsibility to V.K.Jhamb to
sell those flats and make money out of the same and send the same to him
at Dubai. In the process, if the accused No.5 had done some adjustment
with witness PW-8 Shri Murji Patel, it would not at all be the concern of
the prosecution or Jain brothers. Similarly, the accused Abu Salem would
have hardly be interested and concerned with that transaction. He was
interested in the money. Therefore, on the basis of this defence, it appears
that as far as this third flat is concerned, Jain builder executed the
agreement with PW-8 Shri Murji Patel and met the demand of accused Abu
Salem. In my humble opinion, this is the most reasonable judicial
inference that one could draw from this evidence, circumstances and the
facts. Therefore, the evidence of PW-8 Shri Murji Patel with certainty
establishes the role of accused No.5 V.K. Jhamb in the sale of the said flat.
On the basis of this independent evidence, it has been established that the
transaction of three flats was exclusively handled and completed by
accused No.5 V.K. Jhamb.
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that they took him to the house of Abu Salem. He was doing the job of
maintaining the office and house of accused Abu Salem. In his evidence he
has deposed about the conspiratorial meeting held in the office of Abu
Salem and Anees Kaskar in November, 1994. He has deposed that
Mehendi Hasan and he had gone to the office of Anees as they were called
there. Abu Salem, Riyaz Siddiqui, Anees Ibrahim and Shaukat Kadia were
present in the office. He has deposed that he was asked to go out of the
office at the time of the meeting. After the meeting, they all came out of
the office after 30 to 45 minutes. This evidence of PW-3 is relevant on the
point of holding of a meeting in the office of Anees Ibrahim Kaskar in
November, 1994. However, he is not aware of the deliberations took place
in the said meeting.
429] As far as his evidence against the accused No.5 V.K.
Jhamb is concerned, he has deposed that while staying with accused Abu
Salem he used to go with Abu Salem in Sharjah Textile Market to the shop
of Anees Hawalawala where Abu Salem's Hawala money would come. He
has deposed that once when he was returning along with Abu Salem after
taking money from Anees Hawalawala, Abu Salem told him in the car that
the money was sent by Jhamb builder from Mumbai. He has deposed that
he returned back to Mumbai in 2002.
430] Before I go to consider the statements made by this
witness in his cross-examination, it is necessary to look at the confessions
of accused Abu Salem and accused Mehendi Hasan and see what they have
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stated about the association of this witness with them. At Page 5 of his
confession, accused Abu Salem has admitted that PW-3 used to come to his
office in Mumbai. At Page 7 of his confession accused Abu Salem has
admitted that in Dubai he and Vinu Sharma (PW-3) used to collect the
money received through Hawala. In his confession accused Mehendi
Hasan at Page No.2 has admitted that he got acquainted with Vinu
Sharma(PW-3) and others in the office of Abu Salem in Mumbai. At Page 4
of his confession he has admitted the presence of PW-3 in the office of
accused Abu Salem in Dubai in November, 1994, when the meeting took
place.
431] Accused Abu Salem and Mehendi Hasan in their
confessions have admitted the presence of PW-3 Vinu Sharma in Dubai,
being their associate. PW-3 has, therefore, corroborated in general the
facts admitted by accused Abu Salem and Mehendi Hasan in their
confessions. While assailing the evidence of PW-3 Vinu Sharma, it is
pointed out that this witness has not produced his original Passport before
this Court to show that at any point of time he travelled to Dubai and was
in Dubai. In my view, the answer to this submision has been provided by
the facts admitted by accused Abu Salem and accused Mehendi Hasan in
their respective confessions. I have minutely gone through his cross-
examination. In his cross-examination he has admitted his involvement in
some crimes in Mumbai. There is no denial of the fact that he was the
erstwhile associate of accused Abu Salem. In his cross-examination his
criminal background has been vividly depicted., which, in the facts and
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circumstances, cannot be the sole criterion to discard his evidence in
entirety. As a matter of fact this witness being associate of accused Abu
Salem and others deposed certain facts known to him personally. His
evidence cannot be discarded merely because of the fact that he has
deceived his erstwhile Mentor. There could be several reasons for the
same and those reasons cannot weigh in favour of the accused No.5.
432] Perusal of his cross-examination in entirety would
show that he has answered all the questions put to him on the point of his
presence in Dubai and his association with accused Abu Salem consistently.
On the basis of the admissions in the cross-examination, it is very difficult
to discard the evidence of this witness in entirety. The omissions in his
evidence are found to be immaterial. Merely because of the fact that his
passport is not produced before Court, his otherwise credible evidence
cannot be brushed aside. His evidence, therefore, lends general
corroboration to the confession of accused Abu Salem that witness No. 3
Vasant Sharma and Abu Salem used to collect Hawala money in Dubai,
which was sent from Mumbai. If Abu Salem tells him that the money was
sent from Mumbai by Jhamb builder, as deposed by PW-3, could not be
said to be unnatural event. As stated by PW-3, he was doing the work at
home and in the office of accused Abu Salem at Dubai. In the facts and
circumstances he becomes a natural witness. There is one more fact,
which has been brought on record in cross-examination to admit his
presence in Dubai and his visit to the office of Anees Hawalawala. During
the course of cross-examination, he was asked various questions with
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regard to the description of the shop of Anees Hawalawala, the duration of
the meetings between Abu Salem and Anees Hawalawala and the location
of the office of Anees Hawalawala. The witness has provided the details of
all these things in his cross-examination. It must be mentioned that
without visiting the office of Anees Hawalewala, PW-3 Vasant Sharma
would not have been in a position to answer these questions. Therefore, I
do not see any reason to discard the evidence of this witness.
433] PW-7 Dr. Arshad Kamal Shaikh has been examined to
prove that he had collected the amount of sale of the flats from Jhamb
builder and forwarded the same to accused Abu Salem through one Abdul
Quavi residing at Shehjadi Co-operative Society , Dunkan Road, Nagpada.
His evidence is also relevant to pin point the nature of the transactions
between accused Abu Salem and Jhamb builder. In his evidence, he has
deposed that he used to visit the office of Abu Salem situated at Arsa
Market, Andheri. He has further deposed that in 1992 Abu Salem shifted
his office from Andheri to Santacruz at 2nd Hasanabad Lane. He has
deposed that he and Abu Salem hail from the same District. He has
identified both accused No.1 Abu Salem and accused No. 5 V.K. Jhamb.
While narrating the reasons to identify accused No.5, he has deposed that
in the year 1996 Abu Salem had requested him to find out some customers
for the flats, as he has to recover the money from Jhamb builder. He has
deposed that Abu Salem told him that those flats were in possession of
Jhamb builder. He has deposed that he was not knowing Jhamb builder
and, therefore, as stated by accused Abu Salem, he took one Kasim to the
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residence of Jhamb builder. He collected the keys of the flats from Jhamb
builder to show the flats to Mr. Seva Singh and Mr. Shetty. He showed the
flats to them. However, they did not approve the flats. He has deposed
that in the month of April, 1996 Abu Salem had called him from Dubai. At
that time Abu Salem told him to go to Jhamb builder and collect the
money from him. He has deposed that he himself and Mohd. Kasim went
to Jhamb builder and collected Rs. 15 lakhs. After collecting Rs. 15 lakhs,
he himself and Mohd. Kasim went to Abdul Quavi and handed over the
said amount to him. After handing over the amount to Abdul Quavi,
Hawala dealer, he informed about the payment to Abdul Quavi, by making
a phone call from STD booth to accused Abu Salem.
434] This witness is a doctor by profession. He has stated
that the accused Abu Salem and he himself hail from the same District. It
has come on record in his cross-examination that at Page 152 Para 8 that
since 1984 he was working in Tibbiya College Hospital, Nagpada. He has
further admitted that he started his private practice in the year 1987. A
Doctor by profession came in a bad company and started doing operations
with the bad company by stigmatizing his noble profession. In his cross-
examination it has come on record that he worked as a soldier of accused
Abu Salem and completed certain criminal operations for accused Abu
Salem. He has criminal antecedents and history. His evidence has been
assailed on the ground that his criminal background is such that no
prudent man would rely on his evidence. A doctor by profession could not
restrain and control himself from joining a bad company and indulging in
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criminal activities with those hard-core criminals. It appears that for some
reason or the other, he decided to part his ways with accused Abu Salem
and changed his loyalty. In this case, the vivid account of his involvement
in various criminal activities would indicate that, in the facts and
circumstances, he is a natural witness. His evidence cannot be discarded
merely because of the fact that he has parted with the company of accused
Abu Salem and became disloyal to him. Before going to consider his cross-
examination at this stage it would be appropriate to see what accused Abu
Salem and accused Mehendi Hasan have stated about this witness in their
confessional statements.
435] Accused Abu Salem in his confession at Exhibit - 387
at Page 6 and 7 has admitted that Naeem TR (PW-1) and Dr. Arshad
(PW-7) would send the extortion money by Hawala through one Abdullah
Quavi, resident of Dunkan Road, Nagpada. In his confession at Page 17
accused Abu Salem has further admitted that after collecting the purchase
price of the two flats from Sunil Jain, builder V.K.Jhamb sent the said
amount through Hawala to him (accused Abu Salem). Accused Mehendi
Hasan has admitted at Page 2 of his confession that he came into contact
with Dr. Arshad (PW-7) in the office of accused Abu Salem.
436] In his evidence PW-7 Dr. Arshad Kamal Shaikh has
deposed about his acquaintance with accused Abu Salem and accused
Mehendi Hasan. He has provided the details and particulars of the office
of accused Abu Salem in Mumbai. Accused Abu Salem has clearly
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admitted in his confession that PW-1 Naeem Khan and PW-7 Dr. Arshad
used to send the extortion money to Dubai through Abdul Quavi, resident
of Dunkan Road, Nagpada. This admission by accused Abu Salem clearly
indicates that the role of collection of the extortion amount was assigned
to Naeem TR (Approver)(PW-1) and Dr.Arshad (PW-7). In the context of
this statement by accused Abu Salem, the evidence of PW-7 Dr. Arshad
Kamal Shaikh assumes greater importance. The evidence of PW-7 Dr.
Arshad Kamal Shaikh can extend general corroboration to the statement of
accused Abu Salem. Similarly, it can lend assurance to the statement of
this witness that he had been to the residence of Jhamb builder and
collected Rs. 15 lakhs from him being the sale price of one flat. In his
cross-examination at Page 148 Para 8 PW-7 has admitted that in 1995 one
Mohd. Kasim had introduced him to Jhamb builder. He has further
admitted that said introduction was in connection with the search of flats
for his friends Mr. Singh and Mr. Shetty. He has further admitted that Mr.
Jhamb at his bungalow handed over the keys of the two flats to him. He
had showed the said flats to Mr. Singh and Mr. Shetty, but they did not like
the flats. He has denied the suggestion that this happened before he
received phone from Abu Salem. As far as this evidence is concerned,
except the year, all other admissions directly corroborate the transaction
narrated by PW-7 Dr. Arshad. It has not been suggested in the cross-
examination that those flats shown to Mr. Singh and Mr. Shetty were from
some other building and not from Mamta Co-operative Housing Society. It
may be noted that this is a sort of conformation to his statement in the
Examination-in-Chief. The fact with regard to the communication between
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him and accused Abu Salem in 1996 with regard to the transaction of a flat
is found to be a omission from his statement recorded before the
Magistrate. However, the said fact is there in the statement recorded by
the police. Similarly, the fact deposed by him with regard to the visit to
the residence of Jhamb builder and collection of Rs. 15 lakhs is found to be
a omission from the statement recorded by the Magistrate. However, the
said fact is there in his statement recorded by police. There are certain
improvements in his evidence. However, the omissions if read in context
of the facts admitted by accused Abu Salem and accused Menhendi Hasan
in their confessions cannot be made the sole basis to discard the evidence
of this witness. At Page 152 this witness has admitted that he was arrested
by L.T.Marg Police Station in a case of murder of two people for non-
payment of extortion money. He has admitted that he was associate of
accused Abu Salem in that case. Abu Salem was also one of the wanted
accused in the said case. At Page 153 it has been suggested to this witness
that since he was co-accused with accused Abu Salem in the extortion case
registered at L.T. Marg Police Station, the police pressurized him to give
evidence against accused Abu Salem in this case. At Page 152 Para 17 this
witness has admitted that in the year 2004 itself he was acquitted from the
said case. Therefore, the suggestion appears to be a meaningless
suggestion. Certain admissions given by this witness in his cross-
examination clearly indicate that he was the trusted man of accused Abu
Salem once upon a time. It further goes to show that though he was a
doctor by procession, he joined the bad company and acted with them.
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437] In his cross-examination on behalf of accused No.5 he
has not denied his involvement in various other crimes. At Page 156,
thorough enquiry has been made in the cross-examination. In his evidence
he has admitted in his cross-examination that Jhamb builders are two
brothers. He met them in their office. He has further admitted that at that
time he saw both the brothers and both the brothers were having similar
look. He has further admitted that he went to the office of Jhamb builder,
took the keys and returned immediately. He has frankly admitted that the
nature of the talk took place between Jhamb builder and Mohd. Kasim is
not known to him. He has admitted at Page 156 Para 26 that both Jhamb
brothers were present in the office while they took the amount from their
office. He has admitted that he is unable to state the name of the brother
out of two, who gave money. These admissions are very crucial. The line
of defence suggest that this accused No.5 was not involved in the
transaction but his brother was involved. It may be mentioned that he
(PW-7) has identified accused No.5 in the Court. The line of cross-
examination indirectly admits the acquaintance between this witness and
Jhamb builders and his presence in their office. In the facts and
circumstances and more particularly in view of the confession of accused
Abu Salem, I do not see any reason to doubt the credibility of this witness.
The evidence of this witness cannot be disbelieved and discarded only on
the ground that this witness has a criminal background. In the facts and
circumstances, it must be stated that this witness could depose against
accused Abu Salem and V.K. Jhamb only because of the fact that he was
associated with accused Abu Salem. In the facts and circumstances, this
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witness appears to be a natural witness. If this witness had been planted
by the prosecution, then this witness would have been exposed in the
cross-examination. Same is the case as far as witness Vinu Sharma (PW-3)
is concerned. Perusal of the evidence of this witness in entirety
corroborates the confession of accused Abu Salem.
438] Both PW-3 Shri Vasant Ramnath Sharma and PW-7
Shri Arshad Kamal Shaikh have stated that they got acquainted with PW-1
Naeem Khan (Approver) in the office of accused Abu Salem. PW-1 at Page
6 Para 7 has deposed that he knows PW-3 and PW-7. He has deposed that
he met them in the office of accused Abu Salem. On the point of presence
of PW-1 Naeem Khan(Approver) in the office of accused Abu Salem and his
acquaintance with accused Abu Salem, evidence of PW-3 and PW-7 provide
independent corroboration. The evidence of PW-3 Shri Vasant Ramnath
Sharma, PW-7 Shri Arshad Kamal Shaikh and PW-1 Naeem Khan
(Approver) if considered collectively, then it would show that they were
visiting the office of accused Abu Salem. They were in good books of
accused Abu Salem. Their evidence would further show that for some
reason or the other, they parted the company of accused Abu Salem and
changed their loyalty. Instead of going into the reason for shifting their
loyalty, one must go to the root of the statements made by them and find
out whether the statements made by them are credible or not. It is said
that the “Birds of the same feather flock together.” After taking abundant
care and precaution while appreciating their evidence, I do not see any
reason to discard and disbelieve their evidence on the facts disclosed by
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these witnesses.
439] Before considering the evidence of PW-6 Shri Rizwan
Mehmood Khan, who happens to be the driver of Sunil Jain, and Sunil Jain
(PW-13), I have dealt with the evidence of PW-3 Shri Vasant Ramnath
Sharma and PW-7 Shri Arshad Kamal Shaikh. In their evidence, they have
confirmed the receipt of sale price through Hawala by accused Abu Salem.
It is now necessary to find out whether the prosecution has been able to
prove that the purchase price of the two flats was handed over to Jhamb
builder(accused No.5) by Sunil Jain (PW-13) or not. PW-13 Sunil Jain
does not speak about the receipt of the purchase price of the third flat.
While considering the evidence of PW-8 Shri Murji Patel, I have concluded
that in view of the transaction between accused No.5 V.K. Jhamb and PW-8
Shri Murji Patel, the Jhamb builder arranged to send Rs. 14 lakhs to
accused Abu Salem without involving any of the Jain brothers. I am
considering the evidence of PW-13 Sunil Jain on this point after the
evidence of other witnesses because PW-13 Sunil Jain has disclosed this
case of threats by accused Abu Salem even after the murder of Pradeep
Jain and as a result of the threats in lieu of money, he handed over three
flats to the man of accused Abu Salem and that the said man is accused
No. 5 V.K. Jhamb, for the first time after arrest of accused Abu Salem in
this case.
440] PW-6 is an independent witness. He has been
examined to corroborate the evidence of PW-13 Sunil Jain on the point of
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their visits to the bungalow of accused No.5 V.K.Jhamb on two occasions to
make him the payment after sale of two flats in 1996, He has deposed that
on two occasions he accompanied Jain brothers to the bungalow of
accused No.5. As far as his evidence is concerned he has deposed that in
the first week of April 1996 he drove the Ashok Jain and Sunil Jain in their
Tata-Ciera Car to the bungalow of accused No.5 V.K. Jhamb, which is near
to the bungalow of filmstar Amitabh Bachchan. After parking the car, he
carried the bag with money and followed the Jain brothers to Jhamb
builder's bungalow. He has stated that when the cash was handed over to
the accused No.5 V.K. Jhamb, he was present. He has also deposed about
the conversation took place between Sunil Jain(PW-13) and Jhamb builder.
He has further deposed that in second week of April 1996 he first drove
Sunil Jain and Ashok Jain to Allahabad Bank, Juhu Scheme, JVPD Road,
In the bank Jain brothers withdrew Rs. 15 lakhs from their bank account.
They again went to the same bungalow. He followed the Jain brothers
carrying the bag with cash. The bag with cash was handed over to the
accused No.5. Sum and substance of his evidence is that on two occasions
Jain brothers paid Rs. 15 lakhs each to the accused No.5. This witness has
been thoroughly cross-examined. It is suggested that this witness is a got
up witness brought in to existence just to support the false case of the
prosecution. This witness is not a qualified person. He has admitted that
even today also he is in the service of Sunil Jain as a driver. If the Court
comes to the conclusion that his evidence is credible and acceptable, then,
this witness cannot be said to be an outsider. He would be a most natural
witness.
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441] I have minutely gone through his cross-examination.
He has withstood the searching and grueling cross-examination. If he had
been a got up or planted witness, then at some point he would have been
caught unaware in the cross-examination. Except minor improvements,
over all perusal of his cross-examination would show that he did not
fumble in the cross-examination. The over all perusal of his cross-
examination would show that he did accompany the Jain brothers to the
bungalow of the accused No.5 V.K. Jhamb. If he had not accompanied the
Jain brothers, then he would not have been in a position to face the cross-
examination on certain relevant aspects. In that case he would have been
certainly exposed in his cross-examination. He has admitted at Page 137
Para 5 that he cannot give exact date of their visit to the said bank. At
Page 138 he has admitted that he opened the bag at first instance when he
handed over the bag to Jhamb builder. The cross on behalf of the accused
No.5 is very material. He has admitted that his relations with the Jain
family are very cordial. He has admitted that he has trust in them. He has
provided the details of his earlier employment etc. At Page 139, a case is
sought to be put up to this witness that he was present in the Court when
evidence of Sunil Jain (PW-13) was recorded in the earlier part of the trial.
The witness has denied this suggestion. At Page 139 Para 9 he has
provided the account of the events occurred at the time of recording of his
statement. This account of the events provided by him at the time of
recording of his statement would show that his statement was recorded on
his say. At Page 140 he has admitted that his signature was not obtained
on the writing or on the computer print of his statement. At Page 140
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Para 10 he has admitted that after two visits to the bungalow of the
accused No.5 V.K. Jhamb, he did not visit the said bungalow in April, 1996.
He has admitted that he has seen the accused No.5 for the first time when
he visited his bungalow. He has further admitted that after the said
incident, he had seen the photograph of accused No.5 in the magazine
somewhere in 1997. He has admitted that there were two gates to the said
bungalow. One gate was big and the other gate was small. He has
admitted at Page 141 that bell of the bungalow was rang by the person,
who met them in the compound of the bungalow. The main thrust of the
cross-examination was to know from this witness the description of the
bungalow and the surroundings of the bungalow to expose him that he
had not been to the bungalow. and, therefore, he would not be in a
position to tell the description, but perusal of his cross-examination would
show that this witness has meticulously narrated the description of the
bungalow and the majority of the surroundings of the bungalow.
442] On perusal of his cross-examination in entirety, it is
seen that this witness has not fumbled at any place. He has answered all
the questions in a straight forward manner. PW-6 is a layman. A layman is
not supposed to know nitigrities of law. One can accept a statement that
the witness can be asked to memorise the statement either read over to
him or read by him. In my opinion, that cannot apply to the cross-
examination. The cross-examination is such a weapon that it can make a
tutored or planted witness to fall like a house of cards. A tutored,
concocted and planted witness can be caught somewhere. If the witness
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happens to be the driver, then in all certainty one can say that such witness
cannot escape from the trap of the cross-examiner. Here, it appears that
the trap of the cross-examiner fell short because this witness did not allow
the trap to scratch his body indicating that he is a natural witness.
Therefore, I do not see any reason to disbelieve and discard the evidence
of this witness. On the basis of evidence of this independent witness, it has
been established that on two occasions Jain brothers had been to
bungalow of the accused No.5 to make the payment of Rs. 15 lakhs each.
443] As far as the involvement of the accused No.5 V.K.
Jhamb and the case with regard to the handing over of the three flats in
lieu of the extortion money to the accused Abu Salem and completion of
the transaction of sale of three flats by accused No.5 V. K. Jhamb is
concerned, has been disclosed for the first time after the arrest of the
accused Abu Salem. The evidence of PW-13 was recorded in TADA Special
Case No. 22 of 1995 in the month of August, 1997. PW-13 Sunil Jain did
not disclose this case when he led evidence in the said trial. The facts
disclosed on this episode have been stated to be the improvements over his
earlier statements recorded by the police and his evidence given in the
Court. On perusal of the evidence and the case of the prosecution in
entirety, it appears that this case was not disclosed by PW-13 Sunil Jain in
his statement recorded by the police as well as in his evidence before
Court. While deciding the credibility of the evidence of PW-13 Sunil Jain
qua accused Abu Salem and accused Mehendi Hasan, I have extensively
dealt with the point of omissions, inconsistencies and contradictions
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appearing in the evidence of PW-13. While considering the evidence of
PW-13 Sunil Jain qua accused No.5, same observations would apply. The
observations made by me are based on certain facts and after considering
the facts despite omissions, discrepancies and some contradictions, I was
not prepared to discard the evidence of PW-13 Sunil Jain outrightly. I do
not want to repeat those facts. Keeping those observations and reasons in
mind, I now propose to deal with the evidence of PW-13 Sunil Jain.
444] PW-13 Sunil Jain has deposed that in view of the
continuous threats by accused Abu Salem, they decided to hand over him
three flats in lieu of the money since they were in financial difficulties. He
has deposed that accused Abu Salem had told them that he would send
Jhamb to them and they should execute the agreement with him. Jhamb
came to their office and saw the flats. He has identified the accused No.5
in the Court. He has further deposed that he has executed two agreements
of flat Nos. 605 and 606 in favour of Mr. Haresh Gehi. He has deposed
that Mr. Haresh Ghei purchased the two flats for Rs. 28 lakhs and he issued
four cheques for Rs. 27 lakhs. He has deposed that on the date of the sale
of the flats, he received a phone call from accused Abu Salem and he(Abu
Salem) started abusing him. He(Abu Salem) demanded the money. When
PW-13 Sunil Jain told him that he would pay money after encashment of
the cheques, but accused Abu Salem became upset and told him that he
should arrange the payment immediately. He has admitted that, therefore,
he arranged the amount of Rs. 15 lakhs and on the next day went to house
of Jhamb with his brother Ashokbhai and driver Rizwan Khan and paid it
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to accused No.5 V. K. Jhamb. He has further deposed that after few days,
they withdrew Rs. 15 lakhs from their bank account and paid the same to
accused No.5 V.K. Jhamb at his residence.
445] As far as third flat i.e. flat No. 602 is concerned,
PW-13 Sunil Jain has deposed that in March, 1997 Mr. Jhamb sent a blank
agreement regarding the said flat to his office for signature. He
immediately signed the said agreement. He has deposed that about this
flat they did not receive a monetary consideration either from Jhamb
builder or the purchaser. In his evidence he has not said a word about the
identity of the purchaser. While commenting upon the evidence of
purchaser PW-8 Shri Murji Patel on this fact, I have observed that the
transaction between accused No.5 V. K.Jhamb and PW-8 Murji Patel was an
independent transaction. The adjustment made by them was neither
known to the Jain family nor the concern of the Jain family.
446] Before going to consider the cross-examination of this
witness (PW-13), it is necessary to mention at this stage that accused Abu
Salem has admitted almost all the facts in his confession as deposed by
PW-13. Learned Advocate for the accused No. 5 submitted that when the
purchase price of the two flats was Rs. 28 lakhs, the Jain brothers, as
deposed by PW-13 Sunil Jain, paid Rs. 30 lakhs to Mr. Jhamb. It is
submitted that this was contrary to the confession of accused Abu Salem.
At this stage while dealing with this submission, one cannot lose sight of
the precarious condition in which the Jain brothers were placed at that
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time. The Jain brothers would not have happily paid their hard earned
money to accused Abu Salem through V.K. Jhamb accused No.5. If they
had paid only Rs. 28 lakhs they could have stated so because as per their
case before encashment of the four cheques, Rs.15 lakhs were collected by
them and paid to V.K. Jhamb, accused No.5. If the prosecution wanted to
make a water tight case, they could have done so by taking the advantage
of this situation. It is also apparent on the face of record that the
prosecution by making this statement of the payment of Rs. 30 lakhs was
taking the risk. It must be mentioned that in the risk taken by the
prosecution lies the truth. In this case, as per the evidence of PW-13, after
encashment of the cheques, Rs. 15 lakhs was withdrawn. The learned
Prosecutor has produced on record the statement of the bank account of
'Kamla Constructions'. The Bank Statement was taken on record by my
learned predecessor. The Statement of the Bank was produced at belated
stage. The Bank Account Statement has not been admitted in evidence.
The failure has not been explained. Even at a belated stage, keeping in
mind the provisions of the Bankers' Books Evidence Act, 1891 the
appropriate certificate could have been attached to the Bank Account
Statement. The Bank Account Statement with proper certificate has a
presumptive value under the Bankers' Books Evidence Act, 1891. Such
care was also not taken. At this stage, while dealing with this Bank
Account Statement, I must observe that more than one documents were
produced by the Prosecutor at the time of evidence. My learned
predecessor was pleased to reject production of some of the documents. It
may be mentioned at this stage that in such a serious matter, the
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Prosecutor in the beginning of the matter must give serious thought to the
documentary evidence relied upon by the prosecution. The prosecutor
must ensure that all the documents are made available to the accused well
in advance. Similarly, the documents must be placed on record before
Court to decide the admissibility and otherwise of the documents at the
initial stage to avoid burdening of the record by unnecessary evidence.
The failure on the part of the prosecutor to take appropriate steps at
proper time may result into prejudice to the accused. Similarly, it causes
inconvenience and duplicates the work of the Court.
447] Be that as it may, in this case there is other ample
evidence to take care of this fact. The evidence of PW-3 Vasant Ramnath
Sharma, PW-7 Dr. Arshad Kamal Shaikh and evidence of PW-6 Rizwan
Mehmood Khan has lend sufficient independent assurance to the facts
admitted by accused Abu Salem in his confession as well as to the facts
deposed to by PW-13 Sunil Jain on this issue. It is now necessary to
consider the exercise undertaken by the defence lawyer in the cross-
examination to point out that the evidence of PW-13 Sunil Jain is a
concoction to suit the case of the prosecution. I have already mentioned
that he (PW-13) has admitted in his cross-examination as well as it has
been conceded by learned prosecutor that this case has been put forth by
the prosecution for the first time after arrest of accused Abu Salem. In
view of my above said observations, I am of the opinion that this case
introduced for the first time cannot be rejected and disbelieved in toto.
PW-13 Sunil Jain has placed on record the reasons for non-disclosure of
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this case when he gave evidence in August, 1997. While considering the
evidence of PW-13 Sunil Jain independently, I have accepted this
explanation as believable.
448] At Page 305 Para 63, on the point of withdrawal of
Rs. 15 lakh from the account in Allahabad Bank, Juhu Branch, PW-13 Sunil
Jain has been questioned with regard to the entry of the withdrawal of Rs.
15 lakhs and the payment to Mr. Jhamb in their Income Tax Returns.
PW-13 Sunil Jain has stated that he does not remember about it. He has
not denied the fact that Kamla Constructions was an Income Tax assessee.
He was called upon to produce the Income Tax record or the balance
sheets for the concerned year. But he has stated that all those papers were
destroyed in July 2005 flood. In fact the Investigating Officer ought to
have taken care of this issue. In the cross-examination when confronted
with this position, the witness has offered the explanation. For this mess,
PW-13 Sunil Jain cannot be blamed. Here, in this case, the prosecution has
failed to take appropriate steps to produce and prove the Bank Account
Statement.
449] The cross of PW-13 Sunil Jain on behalf of the accused
No.5 by learned Advocate Shri Shivade needs careful consideration. He
has admitted that he knows V.K. Jhamb. He has admitted that he is
residing in their vicinity. In the cross-examination, an attempt has been
made to point out that this theory of payment of Rs. 30 lakhs to V.K. Jhamb
by PW-13 Sunil Jain is false. PW-13 Sunil Jain has given consistent answers
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to the questions on this issue. Similarly, there is other corroborative
evidence to accept this part of the evidence of PW-13 Sunil Jain. Besides,
the accused Abu Salem in his confession has categorically admitted this
fact. Therefore, this fishing enquiry has proved futile. At Page 329 PW-13
Sunil Jain has admitted that Kamla Constructions had not obtained loan
from any Bank. The loan was taken from private persons. He has admitted
that he did not ask Ashokbhai about the source of loan. He has further
admitted that whenever a loan is obtained for building construction, the
flats in the building are to be offered as a security. No documents or
agreements were handed over to Financers, but only Promissory Note was
executed in their favour. In my view, this cross-examination, in the
backdrop of the defence of the accused No.5 V.K. Jhamb in his written
statement, could not be said to be of any help to the case of the accused
no.5.
450] It is not the case of the accused that prior to
12/02/1997 any loan was obtained by Ashok Jain from the Jhamb family.
This fact has not been disclosed either in the cross-examination or in the
Written Statement placed on record by accused No.5 V.K. Jhamb. While
considering the evidence of the prosecution in juxtaposition with the
defence of the accused No.5, I have observed that this defence is just for
the sake of defence taking the advantage of some of the withdrawals from
the Bank Accounts of the Jhamb family members. At Page 332 Para 104
PW-13 has admitted that at the time of withdrawing money from
Allahabad bank for making payment to the accused No.5 V.K. Jhamb, it
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was withdrawn by self pay cheque. He has admitted that he does not
know whether any prior instruction was given to the Bank for arranging
Rs. 15 lakhs on the given day. I have minutely gone through the cross-
examination of PW-13 Sunil Jain conducted on behalf of the accused No.5
V.K. Jhamb. On going through his cross-examination, I do not see that any
admission has been elicited in his cross-examination to discard the
evidence of PW-13 in toto. It may be mentioned at this stage that PW-13
Sunil Jain withstood the searching cross-examination on almost all the
aspects. Perusal of his cross-examination on behalf of the accused No.5, it
is seen that his credibility vis-a-vis his evidence in Examination-in-Chief on
this issue has not been shaken. He has denied almost all the suggestions
put to him consistent with the defence of the accused by his Advocate.
After doing minute appreciation and analysis of the evidence of PW-13
Sunil Jain qua the accused No.5 V.K. jhamb, I do not see any reason to
discard and disbelieve his evidence. One fact, which needs to be borne in
mind while considering the evidence of PW-13 Sunil Jain is that Jain
family and Jhamb family are in building construction business. It is not
the defence of the accused No.5 that there was any feud or enmity
between the two families. Both the families are residing in the same
vicinity. The Jain family otherwise had no axe to grind against the Jhamb
family.
451] It may be mentioned that V.K. Jhamb, accused No.5,
might have followed the dictates of accused Abu Salem under compulsion
or to oblige the accused Abu Salem, accused No.5 V.K. Jhamb could not
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have said 'No' to accused Abu Salem. Instead of saying 'No' to accused Abu
Salem, he followed his dictates and fell pray to his dictates. Why and
under what circumstances the accused No.5 V. K. Jhamb had fallen pray to
the accused Abu Salem is not the issue at all. Once he has said 'Yes' to
accused Abu Salem and started acting for him, the accused No.5 would
become equally responsible for the commission of the offence of conspiracy
and extortion. If he had no intention to join the conspiracy, he could have
said 'No' to accused Abu Salem and in case of any threat or pressure, he
could have lodged a complaint to the police. It appears that instead of
safeguarding the interest of his Builder Community member, he at that
time thought it fit to follow the dictates of the 'Underworld Don' Abu
Salem. The knowledge, that the accused Abu Salem is a notorious gangster
and that the extortion of money was for a particular purpose, can be
attributed to the accused No.5 V.K. Jhamb. Accused Abu Salem in his
confession has admitted that when he struck the deal with Jain brothers,
he made a phone call to the accused No.5 V.K. Jhamb and informed him
about the entire transaction and assigned him the role to sell those three
flats and send the sale price of the said three flats to him at Dubai. The
evidence on record is clinching evidence and on the basis of this clinching
evidence, the complicity of the accused No.5 V.K. Jhamb has been
established in this case. In the facts and circumstances, I do not see any
reason to disbelieve and discard the case of the prosecution, though
propounded for the first time in this trial, after arrest of accused Abu
Salem. The explanation placed record is the acceptable explanation. The
facts and circumstances, discussed herein above, are very clinching to
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indicate that all throughout the Jain family was threatened with dire
consequences even after the murder of Pradeep Jain on 07/03/1995. After
testing the medicine of the conversation of the threats into action by
committing the murder of Pradeep Jain, even a person of ordinary
prudence placed in such a situation and position of Jain family, he would
have acted in the similar fashion and manner. Therefore, the omissions,
improvements, discrepancies and even some contradictions cannot be
given much weightage in the teeth of the explanation, facts and
circumstances placed on record in this case.
452] I may now deal with the Judgment relied upon by
learned SPP Shri Ujjwal Nikam and learned Advocate Shri Sudeep Pasbola
on the point of the effects of the omissions, discrepancies and the
contradictions in the evidence of the witness. Learned SPP Shri Nikam
relying upon the decision in the case of Chandrasekhar Sureshchandra
Bhatt v. State of Maharashtra reported in (2000)10 Supreme Court
Cases 582 submitted that the prosecutor cannot be nailed to the statement
recorded u/sec. 161 of the Cr.P.C., The Prosecutor has a prerogative to
elicit such facts from the witness as he deems necessary for the case.
Relying upon this Judgment, learned SPP Shri Nikam submitted that for
some improvements in the evidence of the witnesses any sinister motive
cannot be attributed to the prosecution. Learned SPP submitted that since
certain facts brought on record for the first time are in the nature of
elaborations, the same cannot be dubbed with improvements as made with
sinister motive. In this case, the Hon'ble Supreme Court of India has held
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that marginal variations between the statement of the prosecution witness
recorded u/sec. 161 of the Cr.P.C. and the testimony given in Court cannot
be dubbed as improvements made with any sinister motive. The Hon'ble
Supreme Court of India has held that if it is in the nature of elaborations
elicited by the Prosecutor during the Examination-in-Chief, it must be held
to be within the prerogative of the Public Prosecutor. The Hon'ble
Supreme Court of India has held that it is the prerogative of Public
Prosecutor to elicit such points from a witness as he deems necessary for
the case. No Public Prosecutor can be nailed for such statement recorded
u/sec. 161 of the Cr.P.C..
453] In this case the incident occurred in 1995. The facts
brought on record clearly indicate that after murder of Pradeep Jain, the
Jain family was terror-stricken. It has been proved in this case that even
after murder of Pradeep Jain, accused Abu Salem was not satisfied and he
made Jain brothers to pay ransom amount by selling their three flats
through accused No.5 V.K. Jhamb. In this case the Prosecutor was well
within his rights to bring on record and/or elicit certain points from the
witnesses as he thought the same being necessary for the case.
454] Second Judgment relied upon by learned SPP Shri
Nikam is in the case of Esher Singh v. State of Andhra Pradesh reported
in (2004) 11 Supreme Court Cases) (Cri) 585. This Judgment has been
relied upon to substantiate the statements of the witnesses made for the
first time in the Court and not during the investigation. In this case, the
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Hon'ble Supreme Court of India has held that a mere elaboration of a fact
by the witness cannot be termed as a discrepancy. It is further held that
when the basic features are stated, unless the elaboration is of such nature
that it creates a different contour or the commission of the offence, the
same cannot be said to have totally changed the complexion of the case.
455] In this case, there are omissions, discrepancies and the
some contradictions in the evidence of PW-9 Jyoti Jain and PW-13 Sunil
Jain. While appreciating the evidence of PW-9 and PW-13, I have observed
that in the teeth of the explanation and the facts and circumstances placed
on record, the improvements, discrepancies and contradictions cannot be
given much weightage and importance. In this case the prosecution by
examining the witnesses have not totally changed the complexion and core
of the case. I have already observed that the case of the prosecution
revolves around the “Kol Dongri Property” of Jain brothers, the threats to
the Jain brothers to surrender the property, murder of Pradeep Jain on
failure of Jain family to comply the demand of accused Abu Salem and the
threats to the Jain family to pay the extortion money even after murder of
Pradeep Jain. This is the core and complexion of the prosecution case.
This has not been changed at all.
456] Learned Advocate Shri Pasbola appearing for the
accused submitted that the omissions, contradictions and discrepancies in
the evidence of the witnesses are material and, therefore, on the basis of
the same, the very credibility of all the witnesses has been shaken. In
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support of his submission, he has relied upon certain Judgments. In the
case of Lahu Kamlakar Patil and another v. State of Maharashtra
reported in (2013) 4 Supreme Court Cases (Cri) 528, the Hon'ble
Supreme Court of India has held that though there cannot be uniformity in
human reaction, but at the same time it is also to be borne in mind that if
the conduct of the witness is so unnatural and is not in accord with
acceptable human behaviour even allowing for variations, then his
testimony becomes questionable and is likely to be discarded.
457] In the case of Sampath Kumar v. Inspector of Police,
Krishnagiri reported in (2012) 2 Supreme Court Cases (Cri) 42, (2012)
4 Supreme Court Cases 124, the Hon'ble Supreme Court of India has held
that minor contradictions are bound to appear in statements of truthful
witnesses as memory sometimes plays false and sense of observation
differs from person to person. Discrepancies in testimony of a witness
caused by memory lapses are acceptable. The Hon'ble Supreme Court of
India has held that, however, it is only unsafe to rely upon a version with
material improvement unless it is corroborated by some other independent
evidence that may probabalise the testimony.
458] In the case of Kantilal alias K. L. Gordhandas Soni v.
State of Gujarat reported in 2003 Supreme Court Cases (Cri) 1408, the
Hon'ble Supreme Court of India has held that merely because the
statement of a witness is recorded by the police u/sec. 161 of the Cr.P.C.
belatedly, by itself, does not make the evidence unacceptable provided
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there is some logical or acceptable explanation for the same. If there is no
logical or acceptable explanation, then the evidence of such witness is
liable to be disbelieved.
459] In the case of State of H.P. v. Lekhraj and another
reported in 2000 Supreme Court Cases (Cri) 147, the Hon'ble Supreme
Court of India has held that minor discrepancy or variance in evidence
does not make the prosecution's case doubtful. It rather lends credential to
the deposition. It is held that if there are material discrepancies, variance
and contradictions, then the same cannot be ignored. The material
discrepancies are those which are not normal and not expected of a normal
person.
460] In the case of Rai Sandeep alias Deepu v. State (NCT
of Delhi) reported in (2012) 3 Supreme Court Cases (Cri) 750, (2012)
8 Supreme Court Cases 21, the Hon'ble Supreme Court of India has held
that a “sterling witness” should be of a very high quality and caliber whose
version should, therefore, be unassailable. The Court considering the
version of such witness should be in a position to accept it for its face value
without any hesitation. To test the quality of such a witness, the status of
the witness would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness. It is further held
that what would be more relevant would be the consistency of the
statement right from the starting point till the end. It should be natural
and consistent with the case of the prosecution qua the accused. There
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should not be any prevarication in the version of such a witness. The
witness should be in a position to withstand the cross-examination of any
length and howsoever strenuous it may be and under no circumstances
should give room for any doubt as to the factum of the occurrence, the
persons involved, as well as the sequence of it. The version of the witness
should be consistent to match with the version of every other witness.
461] In the case of Hema v. State through Inspector of
Police, Madras reported in (2013) 4 Supreme Court Cases (Cri) 755,
(2013) 10 Supreme Court Cases 192 the Hon'ble Supreme Court of India
has held that where contradictions and variations are of a serious nature,
which apparently or impliedly are destructive of the substantive case
sought to be proved by the prosecution, they may provide an advantage to
the accused. In this case, the Hon'ble Supreme Court of India has further
held that merely because of some defect in the investigation, lapse on the
part of the Investigating Officer, the accused cannot be acquitted. It is
further held that even if there had been negligence on the part of the
investigating agency or omissions, etc. it is the obligation on the part of the
Court to scrutinise the prosecution evidence de-hors such lapses to find out
whether the said evidence is reliable or not and whether such lapses affect
the object of finding out the truth.
462] In the case of Dr. D. L. Goswami v. State of Madhya
Pradesh reported in 1972 Supreme Court Cases (Cri) 258, the Hon'ble
Supreme Court of India has held that the onus of proving all the
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ingredients of an offence is always upon the prosecution and at no stage
does it shift to the accused. It is no part of the prosecution duty to
somehow hook the crook. Even in cases where the defence of the accused
does not appear to be credible or is pulpably false that burden does not
become any the less. It is held that the standard of proof to prove a
defence plea is not the same as that which rests upon the prosecution.
Where the onus shifts to the accused, and the evidence on his behalf
probabilises the plea he will be entitled to the benefit of reasonable doubt.
463] In order to see the applicability of the law laid down
by the Hon'ble Supreme Court of India in the decisions relied upon by
learnedSPP Shri Ujjwal Nikam and learned Advocates Mr. Pasbola and Mr.
Shivade for the accused, at the cost of repetition, it would be necessary to
advert to some of the observations made by me while dealing with the
evidence of each witness independently as well as collectively. I have
already observed that the omissions, discrepancies and contradictions have
been explained on the basis of the facts, circumstances and evidence
placed on record. The prosecution has not changed the basic foundation
of its case. The entire evidence led by the prosecution revolves around the
basic core and foundation of the case of the prosecution. The entire
conspiracy was not unfolded when the trial against the six accused in this
crime was conducted. The conspiracy qua the role of accused Abu Salem,
accused Mehendi Hasan, accused Naeem Khan(Approver), accused Riyaz
Siddiqui and accused V.K. Jhamb was elaborately revealed during the
course of the investigation in this crime after arrest of Abu Salem, the
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prime accused and master mind behind the crime. Accused Abu Salem and
accused Mehendi Hasan have confessed their crime. Their confessions have
been found voluntary and true. Their confessions have been corroborated
by other evidence. Here, in this case the prosecution has the benefit of the
evidence of the Approver Naeem Khan(PW-1). The evidence of the
Approver has unfolded the vivid details studded with all the facts and
circumstances related to the crime in this case. Certain omissions,
discrepancies and contradictions in the evidence of PW-9 Jyoti Jain and
PW-13 Sunil Jain have been explained on the basis of the evidence of PW-1
Naeem Khan (Approver) and the confessions of accused Abu Salem and
accused Mehendi Hasan. In this case there is independent evidence to
corroborate the testimony of PW-1 Naeem Khan (Approver) on material
aspects. The confessions of accused Abu Salem and Mehendi Hasan are
proved to be voluntary and true. There is ample independent evidence led
by the prosecution to corroborate the confessions of accused Abu Salem
and accused Mehendi Hasan. In the backdrop of the entire evidence, facts,
and circumstances placed on record, the omissions, discrepancies and
contradictions cannot be termed to be fatal to the case of the prosecution.
Therefore, the law laid down in the Judgments relied upon by learned
Advocate for the accused is of no help and assistance to the case of the
accused. By applying the ratio laid down by the Hon'ble Supreme Court of
India in the decisions relied upon by the learned Advocates for the
accused, the evidence led by the prosecution cannot be discarded solely on
the ground of omissions, discrepancies and some contradictions. Besides,
the omissions, discrepancies and contradictions have been fully explained
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by other cogent evidence.
: CONCLUSION :
464] I have undertaken the meticulous exercise to
appreciate, analysize and scrutinise the evidence of the prosecution
witnesses. On undertaking this exercise, I have found that the evidence of
the prosecution witnesses is natural, reliable and, therefore, deserves
acceptance. PW-1 is the “sterling witness” for the prosecution. On
independent appreciation, analysis and scrutiny of the evidence of the
Approver PW-1 Naeem Khan, I have found that his evidence is reliable and
credible. As per law, the accomplice is unworthy of credence, unless his
evidence is corroborated in material particulars. Once the Approver passes
twin tests i.e. i) “particeps criminis” and ii) reliability, the Court has to see
whether there is independent evidence to corroborate the version of the
accomplice. In this case, there is voluminous direct and circumstantial
evidence led by the prosecution to corroborate the evidence of the
Approver PW-1 Naeem Khan. PW-9 Jyoti Jain and PW-13 Sunil Jain are
some of those witnesses. The evidence of PW-9 and PW-13 have also
passed the test of credibility. The evidence of PW-9 and PW-13
corroborates the evidence of the Approver PW-1 Naeem Khan on material
aspects.
465] By examining PW-5 Mohd. Shabir Malik, PW-6 Rizwan
Mohd. Khan, PW-7 Dr. Arshad Kamal Shaikh, PW-8 Murji Ananda Patel and
PW-15 Amirali Akabarali Engineer, the prosecution has proved various
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important circumstances. The evidence of these witnesses cannot be said
to be a direct evidence to corroborate the testimony of PW-1 Approver
Naeem Khan. However, the circumstances brought on record in their
evidence clearly corroborate the testimony of PW-1 Approver on various
material aspects. At this stage, I may mention that while independently
appreciating the evidence of all the witnesses, I have offered my comments
about their evidence and corroboration the said evidence offers to the
evidence of PW-1 Naeem Khan and the evidence of each other. At this
stage, I do not think it necessary to repeat all these aspects.
466] The confessions of accused Abu Salem and accused
Mehendi Hasan have been proved to be voluntary and true. As per the law
laid down in the case of Jameel Ahmed v. State of Rajasthan reported in
2003 Supreme Court Cases (Cri.) 1853, the confession of one accused
can be used to corroborate the confession of the co-accused. On minute
scrutiny of the evidence led by the prosecution to prove the confessions of
the accused, I have held that the said evidence is credible evidence to lend
assurance that the confessions were recorded in free and congenial
atmosphere. I have also held that the competent officers have followed all
the mandatory provisions of law while recording the confessions of
accused Abu Salem and Mehendi Hasan. On going through the
confessions of accused Abu Salem and Mehendi Hasan and after drawing
comparison between the facts admitted by them in their respective
confessions, it can be positively said that the facts admitted by them qua
commission of the crime since inception are consistent. Their confessions
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are inculpatory. On the basis of the confessions of accused Abu Salem and
Mehendi Hasan, the prosecution has proved the charges levelled against
the accused. The evidence of PW-5, PW-6, PW-7, PW-9, PW-13 and PW-15
have corroborated the facts admitted by accused Abu Salem and Mehendi
Hasan in their respective confessions. While dealing with the evidence of
these witnesses independently, I have dealt with the point of the
corroboration, the evidence of each witness leading to the facts admitted
by accused Abu Salem and accused Mehendi Hasan in their confessions on
particular points. As per the law, before using the confession of the
accused against the co-accused, rule of prudence demands that there must
be a general corroboration to the confession of the accused. The evidence
of the above stated witnesses fulfills the said requirement of law.
467] The facts admitted by accused Abu Salem and accused
Mehendi Hasan in their respective confessions are consistent with each
other. Now the question is whether the facts admitted by them in their
confessions or rather their confessions can be used as a corroborative piece
of evidence to the evidence of PW-1 Approver Naeem Khan. Ld. Advocate
Shri Pasbola submitted that the confession of the accused requires a
corroboration to act upon it. In the submission of the Ld. Advocate Shri
Pasbola as such the confession of the accused is a dented piece of evidence.
Ld. Advocate Shri Pasbola submitted that a dented piece of evidence,
which itself requires a corroboration, cannot be used as a corroborative
piece of evidence to corroborate the evidence of some other witnesses or
more particularly the evidence of the Approver. On one point, I am in
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agreement with learned Advocate Shri Pasbola. It is true that the
confession is a dented piece of evidence. But, we have to go one step
ahead and consider the position where the said dent is removed by
establishing that the said confession is voluntary and true confession and it
has been corroborated by other evidence. It is settled legal position that
the confession recorded u/sec. 15 of the TADA (P) Act, once it is proved to
be voluntary and true, is a substantive piece of evidence. It is settled legal
position that the conviction of the accused can be based solely on his
confession recorded u/sec. 15 of the TADA (P) Act. I fully agree with the
submission of the learned Advocate Shri Pasbola that the confession is a
substantive evidence but not a substantial evidence. Even assuming for the
sake of argument that it cannot be said to be a substantial evidence, in the
ordinary circumstances, without corroboration, Court may not rely upon
that evidence. But once the facts admitted by the accused in the confession
are corroborated by other evidence, then, the said evidence would become
both, substantive and substantial. On minute scrutiny of the evidence of
the independent witnesses, I have concluded that the evidence of those
witnesses is credible and as such acceptable. I have also observed that in
the backdrop of the facts obtained on record, all the witnesses are natural
witnesses. The important question that needs to be addressed is as to
whether the confession being proved to be voluntary and truthful and as
such substantive and substantial evidence can be used for the purpose of
corroboration to the evidence of Approver. In my humble opinion, once it
is proved that the confession is voluntary and true confession, then, the
dent attached to the said confession gets removed. It becomes a shiny
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piece of evidence without dent. The confession once proved to be
voluntary and truthful, is a substantive piece of evidence. In this case,
while considering the case of the accused on the point of retraction, I have
concluded that the retraction is after-thought and under legal advice. I
have also concluded that once their confessions are proved to be voluntary
and truthful, their subsequent retractions become insignificant.
468] In the backdrop of this position and situation, one has
to consider the evidentiary value of the confession of the accused recorded
u/sec. 15 of the TADA (P) Act for the purpose of the corroboration to the
evidence of the Approver. In this case, I have concluded that there is
independent evidence to corroborate the testimony of the Approver. When
the law has recognised the confession of the accused recorded u/sec. 15 of
the TADA (P) Act as a substantive piece of evidence, I do not see any
reason and logic not to act upon it as a corroborative piece of evidence to
the evidence of the Approver. In this case, the evidence of the Approver
has also passed the test of reliability. The evidence of the Approver has
been corroborated. The Approver PW-1 Naeem Khan and accused Abu
Salem and Mehendi Hasan are the Birds of the same feather and quiet long
time they flocked together. But when the testing time came, the accused
Naeem Khan i.e. Approver PW-1, answered his conscience properly and
decided to become an Approver thereby betraying his erstwhile too close
associate. It was the decision of the PW-1 Approver Naeem Khan. This
Court could not have questioned the said decision. Before tendering the
pardon, this Court took appropriate care to ensure that the desire
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expressed by the accused to disclose the true facts from his knowledge
about the commission of the crime is bonafide. Therefore, I do not see
any difficulty to use the confessions of the accused Abu Salem and accused
Mehendi Hasan as a corroborative piece of evidence to the evidence of
PW-1 Approver Naeem Khan. PW-1 Naeem Khan has unfolded the account
of the conspiracy and the various actions undertaken to implement the
object of the conspiracy to take it to its logical end. In their confessions,
accused Abu Salem and accused Mehendi Hasan have also provided the
vivid details studded with the necessary facts and circumstances qua the
conspiracy and the object of the conspiracy and the steps/action taken
from time to time to execute the object of the conspiracy and to take the
conspiracy to its logical end. As per law there is no hurdle to use the
confessions of the accused Abu Salem and accused Mehendi Hasan
recorded u/sec. 15 of the TADA (P) Act being substantive piece of evidence
for the purpose of corroboration to the evidence of the Approver PW-1
Naeem Khan. The evidence adduced by the prosecution in this case is
concrete, cogent and reliable evidence. I do not see any reason to
disbelieve and discard the evidence led by the prosecution.
469] In this case, on the basis of concrete, cogent and
reliable evidence, the prosecution has proved that the conspiracy was
hatched in Dubai in October/November, 1994 by accused Abu Salem Abdul
Kayyum Ansari, Mohammed Naeem Abdul Rahim Khan, Mohammed
Hussain Mehendi Hasan Shaikh, wanted accused Anees Kaskar and
Shaukat Mistry tried in TADA Special Case No. 22 of 1995 to pressurize
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and force the Jain brothers, Partners of “M/s. Kamla Construction
Company” to surrender their rights over the 'Kol Dongri Property' at
Andheri, Mumbai. The prosecution has further proved that the above
stated accused had agreed to kill one of the Jain brothers, if they did not
succumb to the threats and surrender their rights over 'Kol Dongri
Property'. The object behind threatening and pressurising the Jain
brothers to surrender their rights over the 'Kol Dongri Property' in favour of
some other builder was to earn huge profit by striking a deal with other
builder. The prosecution has proved that in the conspiracy the role of each
one present in the conspiratorial meeting and those, who were not
present, was chalked out. I have elaborately dealt with all the relevant
aspects. The prosecution has proved that when the Jain brothers, the
Partners of “M/s. Kamla Construction Company”, did not succumb to the
pressure and threats of the accused persons, accused Abu Salem suitably
moulded his plan and struck a deal with the Jain brothers to pay him Rs.
one corer. The prosecution has proved that the first installment of Rs. ten
lakhs, as agreed, was paid, but the Jain brothers could not pay remaining
amount on account of their financial difficulties. The prosecution has
proved that one day when accused Abu Salem made a phone call to the
residence of the Jain brothers, it was picked up by PW-9 Jyoti Jain and
later on it was handed over to deceased Pradeep Jain. The prosecution has
proved that hot exchange of words and abuses took place between accused
Abu Salem and Pradeep Jain. The ego of accused Abu Salem was deeply
hurt and crashed and as a result of the same, Pradeep Jain was murdered
on 07/03/1995.
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470] The prosecution has proved that the shooters
namely the henchmen of accused Abu Salem pumped 17 bullets into the
body of Pradeep Jain. One bullet hit PW-13 Sunil Jain. however, it missed
the target. PW-13 Sunil Jain sustained bullet injury to his right arm. The
Medical Certificate is at Exhibit-558. I have already discussed the
evidence of the prosecution about the actual incident of shooting by the
assailants in the office of Jain brothers. PW-13 Sunil Jain was fortunate.
The bullet did not target any vital part of his body. If bullet had hit any
vital part of the body of Sunil Jain, certainly he would have died. The
bullet injury caused to PW-13 Sunil Jain was with an intention or
knowledge and under the circumstances that if it had hit him, it would
have caused his (Sunil Jain) death in certainty. Therefore, in this case, the
prosecution has proved the offence of criminal conspiracy, the offence of
murder of Pradeep Jain and the offence of attempt to commit murder of
PW-13 Sunil Jain by accused Abu Salem and accused Mehendi Hasan
pursuant to the said conspiracy which was hatched in Dubai.
471] The Post-mortem Report is at Exhibit-361. The cause
of death is “death due to firearms injuries(unnatural). The C.A. Reports
are at Exhibit-360 (colly.). In this case, the sophisticated firearms were
used by the shooters. The nature of the firearms can be seen from the C.A.
Reports at Exhibit - 360 (colly.). As per the case of the prosecution, this
was a terrorist act. On the basis of the use of the sophisticated firearms
and the brutal murder committed by pumping 17 bullets in the body of
deceased Pradeep Jain and causing bullet injury to PW-13 Sunil Jain, the
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prosecution has proved that the said act was done with intention to strike
a terror in the mind of the Jain brothers and builders community. For the
purpose of striking terror, the sophisticated firearms were used by the
assailants and the henchmen of the accused Abu Salem. This terrorist act
was committed pursuant to the conspiracy hatched in October/November,
1994 at Dubai. The object of the conspiracy was to eliminate one of the
Jain brothers, if they fail to obey the commands and dictates of the
Underworld Don Abu Salem and Anees Kaskar to surrender their property.
While committing the various acts with the help of firearms, the assailants
have caused the death of Pradeep Jain and also attempted to cause the
death of PW-13 Sunil Jain. The terrorist acts have resulted into the death
of Pradeep jain. While committing the terrorist acts, several other offences
have also been committed. Accused Abu Salem and accused Mehendi
Hasan pursuant to the object of the conspiracy knowingly facilitated the
commission of the terrorist act and all other acts preparatory to the
terrorist act. Accused Abu Salem and accused Mehendi Hasan as such
were the members of the terrorist gang, which was involved in terrorist
act, as stated above. In this case, therefore, the prosecution has proved the
offences punishable u/sec. 3(2)(i), 3(2)(ii), 3(3) and Section 3(5) of the
TADA (P) Act against accused Abu Salem and accused Mehendi Hasan.
472] The prosecution has withdrawn the charges u/sec. 5 of
the TADA (P) Act and u/sec. 386 and 387 of the Indian Penal Code against
accused Abu Salem. In this case, the prosecution has proved that accused
Mehendi Hasan, as per the instructions of accused Abu Salem, took the
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delivery of the firearms near Shalimar Hotel, Bhendi Bazar area and
handed over the firearms to Shaukat Kadia near Ramdeo Hotel at Sion.
By leading this evidence, the prosecution has proved that accused Mehendi
Hasan possessed the firearms namely Pistols used in the commission of the
crime. It is undisputed fact that it became unauthorized possession of the
firearms i.e. pistols by accused Mehendi Hasan because at the relevant
time, Mumbai was declared as a “Notified Area”. Possessing a firearm i.e.
Pistol in a 'Notified Area' is a substantive offence u/sec. 5 of the TADA (P)
Act. In this case, by leading the cogent evidence, the prosecution has
proved that accused Mehendi Hasan possessed the firearms namely Pistols
in the 'Notified Area'. Accused Mehendi Hasan is, therefore, guilty of an
offence punishable u/sec. 5 of the TADA (P) Act.
473] The prosecution did not press for framing of the
charges u/secs. 449, 450 and 452 of the Indian Penal Code against accused
Abu Salem. In this case, the prosecution has proved that pursuant to the
conspiracy, on 07/03/1995 at about 8.30 p.m., Salim Rashid Shaikh @
Salim Haddi, Uday Pawar, Sanjay Kadam, Rajesh Igave (all now dead) and
wanted accused Sunil Nair committed the house-trespass holding firearms
and having made a preparation for assault with intent to kill Jain brothers
and strike terror in builder community. Accused Mehendi Hasan was
party to the conspiracy. He shared the common object of the conspiracy.
The house-trespass to commit the various offences was committed
pursuant to the object of the criminal conspiracy, which was hatched in
Dubai in October/November, 1994. In this case, the prosecution has
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proved that the house-trespass was committed pursuant to the criminal
conspiracy to commit the offence punishable with death. Similarly, the
prosecution has proved that the house-trespass was committed pursuant to
the conspiracy in order to commit the offence punishable with
Imprisonment for Life. The prosecution has also proved that the house-
trespass was committed pursuant to the conspiracy in order to commit the
offence punishable with the Imprisonment. In this case, the prosecution
has proved the offence punishable u/secs. 449, 450 and 452 r/w. Sec. 120-
B of the Indian Penal Code against accused Mehendi Hasan.
474] In this case, accused Mehendi Hasan and accused V.K.
Jhamb are charged for the offences punishable u/secs. 386 and 387 of the
Indian Penal Code r/w. sec. 120-B of the Indian Penal Code. The
prosecution has proved by leading cogent and reliable evidence that
accused Abu Salem pursuant to the object of the conspiracy extorted
ransom by putting the Jain brothers in fear of death and grievous hurt.
Initially the threats were extended to commit murder of one of the Jain
brothers to extort ransom from them. Similarly, after committing murder
of Pradeep Jain, accused Abu Salem did not snap the conspiracy and
continued the spell of threats to extort money from Jain brothers by
putting them in fear of death or of grievous hurt. By putting the Jain
brothers in fear of death or grievous hurt, accused Abu Salem with accused
Mehendi Hasan and accused V. K. Jhamb, forced the Jain brothers to hand
over three flats from Mamta Co-operative Society in lieu of ransom
amount. The prosecution has proved that this act was done pursuant to
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the criminal conspiracy hatched in October/November, 1994. The
conspiracy was put to its logical end after sale of those three flats and on
receipt of the ransom amount by accused Abu Salem in Dubai through
Hawala. In this case, the prosecution has proved that accused V. K. Jhamb
boarded the train of the conspiracy in March/April, 1996 and shared the
concert and common object of the said conspiracy. The prosecution has
proved that the accused V. K. Jhamb, in order to fulfill the object of the
conspiracy, took active part in the sale of those three flats. Accused V. K.
Jhamb, as per the dictates and commands of accused Abu Salem, sold
those three flats i.e. flat Nos. 602, 605 and 606 from Mamta Co-operative
Society, Sher-E-Punjab Colony, Mahakali Caves Road, Andheri (East),
Mumbai, and arranged to send the purchase price of the three flats to
accused Abu Salem in Dubai through Hawala. I have discussed the
evidence against accused Abu Salem, accused Mehendi Hasan and accused
V. K. Jhamb in great detail. On doing the analysis, appreciation and
threadbare scrutiny of the evidence of the prosecution witnesses, I have
found the said evidence credible. On the basis of the evidence, the
prosecution has proved the offences u/sec. 386 of the Indian Penal Code
r/w. sec. 120-B of the Indian Penal Code against accused Mehendi Hasan
and accused V. K. Jhamb. In this case, in view of the facts, circumstances
and evidence brought on record, the prosecution has proved only the
offence u/sec. 386 of the Indian Penal Code r/w. sec. 120-B of the Indian
Penal Code against accused Mehendi Hasan and accused V. K. Jhamb. In
this case, the offence punishable u/sec. 387 cannot be attracted.
Accordingly, I record my finding on Point Nos. 3 to 8, 10 and 11 in the
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Affirmative. My finding on Point No. 9 in the Negative.
ARGUMMENTS ON THE POINT OF SENTENCE
ACCUSED NO. 1 ABU SALEM
475] Ld. Special Public Prosecutor Shri Nikam on the first
date of argument submitted that maximum punishment provided u/sec.
302 of I.P.C. and u/sec. 3 sub-section (2) sub-clause(i) of the TADA (P) Act,
1987 is Death or Imprisonment for Life. On the first date of his argument,
ld.SPP Shri Nikam ferociously submitted for awarding death sentence to
accused Abu Salem. However, after the arguments of the defence
Advocate Shri Sudeep Pasbola, Ld.SPP took a complete somersault and
submitted that in this case the Death Sentence is out of question. Ld. SPP
Shri Nikam submitted that the solemn sovereign assurance given by the
then Hon'ble Deputy Prime Minister of India Shri L. K. Advani cannot be
construed as a obstruction or usurpation of the powers of this Court to
award the appropriate sentence under the law. Ld.SPP Shri Nikam
submitted that sovereign solemn assurance/guarantee given is applicable
in the matter of execution of the sentence and not in the matter of
awarding or application of the sentence by the Court. Ld. SPP Shri Nikam
submitted that in view of the provisions of Section 34C of the Indian
Extradition Act, 1962 and the provisions of sec. 302 of the IPC, accused
Abu Salem is liable to be punished with imprisonment for Life. Ld. SPP
Shri Nikam submitted that the solemn sovereign assurance/guarantee
given by the then Hon'ble Deputy Prime Minister of India cannot be
construed as guarantee/Undertaking stating that no Court in India would
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award the punishment provided by the law in force in India. Ld.SPP Shri
Nikam submitted that in this case the solemn sovereign
assurance/guarantee given by the Union of India would come into play
after awarding the punishment by this Court as provided under law and
not before that.
476] Ld. Advocate Shri Sudeep Pasbola for the accused
submitted that the solemn sovereign assurance/guarantee given by the
then Hon'ble Deputy Prime Minister of India Shri L.K. Advani need to be
borne in mind at the stage of awarding the punishment and on the basis of
the said solemn sovereign assurance in this case, accused Abu Salem
cannot be sentenced to suffer imprisonment for a period more than 25
years. Ld. Advocate Shri Pasbola submitted that solemn sovereign
assurance/guarantee given to the Portugal Government was accepted and
on accepting the same, accused Abu Salem was extradited to India and as
such the solemn sovereign assurance could bind this Court. Ld. Advocate
Shri Pasbola drew my attention towards certain paragraphs from the
Judgment of the Hon'ble Supreme Court of Justice, Portugal, dated 27th
January, 2005 to submit that the solemn sovereign assurance/guarantee
given by the then Hon'ble Deputy Prime Minister of India Shri L. K. Advani
was construed and accepted as an Undertaking and assurance that no
Court in India shall award punishment of Death or punishment for a
period of more than 25 years. Ld. Advocate Shri Pasbola submitted that the
paramount duty has been cast upon this Court to enforce the solemn
sovereign assurance/guarantee while awarding the punishment itself. Ld.
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Advocate Shri Pasbola submitted that the guarantee must be construed in
literal sense. In the submission of Ld. Advocate Shri Pasbola in view of the
solemn sovereign assurance/guarantee given by the then Hon'ble Deputy
Prime Minister of India, the hands of this Court are tied to award the
punishment more than 25 years, though the provisions of sec. 34C of the
Indian Extradition Act, the provisions of sec.302 of the IPC and sec. 3 sub-
section (2) sub-clause (i) of the TADA (P) Act are mandatory.
477] In order to appreciate the rival submissions, I must
mention at the outset that it is very ticklish issue and as such warrants a
very difficult and balancing exercise at the behest of this Court. Pride and
prestige of our country is involved. Therefore, in this case, if any, decision
is taken contrary to the spirit of the Indian Laws and also contrary to the
spirit of the solemn sovereign assurance given by the then Hon'ble Deputy
Prime Minister of India Shri L. K. Advani and understood by the Hon'ble
Supreme Court of Justice, Portugal in its Judgment dated 27/01/2005,
then very serious repercussion could follow.
478] On the basis of the solemn sovereign assurance/
Undertaking/guarantee given by the then Hon'ble Deputy Prime Minister
of India Shri L. K. Advani and consideration and acceptance of the same
after doing threadbare analysis by the Hon'ble Supreme Court of Justice,
Portugal could take one to the true spirit of the solemn sovereign
assurance and also true spirit in which it was understood and accepted by
the Judicial Forums in Portugal. First I would like to reproduce the solemn
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sovereign assurance/guarantee given by the then Hon'ble Deputy Prime
Minister of India Shri L. K. Advani dated 17/02/2002. The assurance
reads thus:
“At the outset, I would like to express my deep appreciation for
your letter of October 4, 2002 in response to the letter of our
External Affairs Minister of September 23, 2002 regarding the
return of Abu Salem Abdul Qayoom Ansari to India. In yourletter, you had advised that a formal extradition request be
presented which would fulfill the requirements of Portuguese
law. Accordingly, the concerned authorities in India have been
in the process of preparing the required formal extradition
request for presentation to the Portuguese side.
In this context, we have been informed that under Portuguese
Law , an offender cannot be extradited to the requesting country
if the offence or offenses committed attract the visitation of either
the death penalty or imprisonment for an indefinite period
beyond 25 years. As the offenses Abu Salem Abdul Qayoom
Ansari is charged with or accused of would attract the death
penalty and life imprisonment under Indian law, a solemn sovereign assurance is required to enable his extradition from
Portugal to India.
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The Government of India also desires that Abu Salem Abdul
Qayoom Ansari's accomplice, Monica Bedi, be extradited to
India. One of the offences she is accused of would carry the
penalty of life imprisonment. Monica Bedi was arrested in
Portugal on September 18, 2002 alongwith Abu Salem Abdul
Qayoom Ansari.
The issue of the legal basis for the above assurances to be givenby the Government of India has been given due attention. I may
mention that Section 34C of the Indian Extradition Act 1962
states that ''Notwithstanding anything contained in any other
law for the time being in force, where a fugitive criminal, who
has committed an extradition offence punishable with death in
India, is surrendered or returned by a foreign State on the
request of the Government and the laws of that foreign State do
not provide for the death penalty for such an offence, such
fugitive criminal shall be liable for punishment of imprisonment
for life only that offence''.
Further, Article 72(1) of the Constitution of India provides that
''The President shall have the power to grant pardons, reprieves,respites or remissions of punishment or to suspend, remit or
commute the sentence of any person convicted of any offence''
in all cases where the punishment or sentence is for any offence
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against any law relating to a matter to which the executive
power of the Union extends including where the sentence is a
sentence of death. Further, it is a settled law that the power
under Article 72 of the Constitution of India is to be exercised on
the advice of the Government and not by the President acting on
his own and that the advice of the Government is binding on the
Head of the State. Also, the President's power under the said
Article 72 is a constitutional power and is beyond judicialreview.
It is also pertinent to state that in addition to the above
provisions, Section 432 and 433 of the Code of Criminal
Procedure of India 1973 confer power on the Government, to
commute a sentence of life imprisonment to a term not exceeding
14 years.
The Government of India, therefore, on the basis of the
provisions of the Constitution of India, the Indian Extradition
Act 1962 and the Code of Criminal Procedure of India, 1973
solemnly assures the Government of Portugal that it will exercise
its powers conferred by the Indian laws to ensure that if extradited by Portugal for trial in India, Abu Salem Abdul
Qayoom Ansari and Monica Bedi would not be visited by death
penalty or imprisonment for a term beyond 25 years.
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479] Perusal of the solemn sovereign assurance in its
entirety would show that it was given after considering the existing legal
provisions. In this assurance the provisions of sec. 34C of the Indian
Extradition Act, 1962 have been reproduced. By reproducing sec. 34C of
the Indian Extradition Act, 1962, it was made clear that in view of the
provisions of sec. 34C of the Indian Extradition Act, 1962, no Court in
India would be empowered in this case on extradition of accused Abu
Salem to award death penalty to him. Perusal of sec. 34C of the Indian
Extradition Act, 1962 would reveal that it provided two mandates. The
first mandate is that in case of extradition of fugitive criminal, who is
involved in the commission of the extradition offence punishable with
death in India, on his surrender he shall not be liable for punishment of
death. The second mandate of sec. 34C of the Indian Extradition Act, 1962
provides that in case of such extradition offences punishable with death,
then in place of death penalty such fugitive criminal shall be liable for
punishment of imprisonment for life for that offence. It may be mentioned
at this stage that the provisions of sec. 34C of the Indian Extradition Act,
1962 has a overriding effect over the provisions of sec. 302 of the I.P.C.
and sec. 3 sub-section (2) sub-clause (i) of the TADA(P) Act, 1987, as far
as it relates to the awarding of death penalty. Sec. 34C of the Indian
Extradition Act, 1962 has provided alternative punishment i.e.
imprisonment for life in place of death penalty. It may, therefore, be
mentioned that sec. 34C of the Indian Extradition Act, 1962 has no
overriding effect over the provisions of sec. 302 of the I.P.C. and sec. 3(2)
(i) of the TADA(P) Act, 1987 so far as it relates to the punishment of
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imprisonment for life. At this stage it is necessary to emphasis that,
therefore, by the provisions of sec. 34C of the Indian Extradition Act, 1962,
the powers of this Court to award the life imprisonment in case of an
offence punishable u/sec. 302 of the I.P.C. and sec.3 sub-section (2) sub-
clause(i) of the TADA (P) Act, 1987 have not been taken away. On the
contrary, it mandates Life Imprisonment in place of death sentence.
480] So, in view of the provisions of sec. 34C of the Indian
Extradition Act, 1962, awarding of death penalty qua accused Abu Salem
is out of question. It may be mentioned that further part of the solemn
sovereign assurance given by the then Hon'ble Deputy Prime Minister of
India Shri L.K. Advani would speak volume about maintenance of the
independence of the Judiciary and a direct indication that the Government
of India would not give any solemn sovereign assurance that no Court in
India shall award punishment of life imprisonment to the accused Abu
Salem. In further part of assurance, reference has been made to the
provisions of Article 72(1) of the Constitution of India to emphasis that
The President of India has power to grant pardon, reprieves, respites or
remissions of punishment or to suspend, remit or commute the sentence of
any person convicted of any offence''. It has been further emphasized that
the powers of Article 72 of the Constitution of India is to be exercised on
the advice of the Government and not by the President acting on his own
and that the advice of the Government is binding on the Head of the State.
It has been specifically stated and emphasized that The President's power
under the Article 72 is a constitutional power and is beyond judicial
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review. This part of the solemn sovereign assurance makes it clear that
whatever decision His Excellency The President of India takes in the matter
of pardon, reprieves, respites or remissions of punishment or to suspend,
remit or commute the sentence of any person convicted of any offence, is
final and it cannot be questioned in the Court of law meaning thereby it is
beyond judicial review.
481] In the further part of the assurance, it has been
emphasized that in addition to the provisions of Article 72 of the
Constitution of India, Section 432 and 433 of the Code of Criminal
Procedure of India 1973 confer power on the Government, to commute
sentence of life imprisonment to a term not exceeding 14 years.
482] At this stage, it is necessary to mention that first by
reproducing sec. 34C of the Indian Extradition Act, 1962, it was made
clear that in view of the overriding effect of sec. 34C of the Indian
Extradition Act, death penalty cannot be awarded in this set of facts by
Indian Courts. While taking care of the life imprisonment, the exercise
undertaken thereafter is very material. By undertaking this exercise, it was
made clear that execution of the sentence of punishment awarded by the
Court in India is within the exclusive powers and domain of the
Government. Any decision taken by the Government or even for that
matter by The President of India is beyond judicial review. So, the object
of incorporation of Article 72 of the Constitution of India and secs. 432
and 433 of the Cr.P.C. is to assure that the Union of India would ensure
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that while executing the sentence or punishment imposed by the Court in
India, the Union of India would exercise its powers and bring down the
punishment consistent with the solemn sovereign assurance given to the
Government of Portugal. The last para of the assurance is very clear. In
this part, it has been specifically mentioned that on the basis of the
provisions of the Constitution of India, the Indian Extradition Act, 1962
and the provisions of the Code of Criminal Procedure, 1973, the
Government of India solemnly assures the Government of Portugal that it
will exercise its powers conferred by the Indian laws to ensure that if
extradited by Portugal for trial in India, Abu Salem Abdul Qayoom Ansari
and Monica Bedi would not be visited by death penalty or imprisonment
for a term beyond 25 years. It is plain and simple solemn sovereign
assurance by the then Hon'ble Deputy Prime Minister of India Shri L. K.
Advani that in his case death penalty is out of question and if any other
punishment is awarded as per law by Indian Courts, then the Government
of India would exercise the powers under the Constitution of India, the
Indian Extradition Act, 1962 and the Code of Criminal Procedure of India,
1973. It is, therefore, crystal clear that while giving this assurance the
independence of the judiciary has been taken care of. At the same time a
solemn sovereign assurance has been given that despite maintaining the
independence of Indian judiciary in the matter of application or awarding
of punishment, the Government of India, His Excellency The President of
India is vested with the powers to comply the solemn sovereign assurance
given by the then Hon'ble Deputy Prime Minister Shri L. K. Advani. In my
opinion, this solemn sovereign assurance cannot be construed in any other
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way. On the basis of the solemn sovereign assurance, it cannot be said and
gathered that it is an assurance that the no Courts in India would not
award the punishment provided under the Indian Criminal law.
483] If assurance had been given that no Court in India
would award / apply the punishment beyond the period of 25 years even
for the offences providing the punishment for imprisonment for life, it
would have the effect of indirectly amending the provisions of sec. 302 of
the IPC, sec. 3(2)(i) of the TADA(P) Act, 1987, which provide the
punishment of imprisonment for life. The above stated discussion would
cover the scope, nature and effect of the assurance and its binding nature.
484] The next important question is how and in what manner
and sense this assurance was construed, appreciated and accepted by the
Portuguese Authorities, Portuguese Government and Portuguese Courts.
Ld. Advocate Shri Pasbola relying upon the Judgment of the Hon'ble
Supreme Court of Justice, Portugal dated 27/01/2005 submitted that in
this case the extradition was allowed after accepting the solemn sovereign
assurance given by the Union of India and, therefore, the punishment
beyond the period of 25 years cannot be awarded. Ld. Advocate Shri
Pasbola took me through the para Nos. 10.1 onwards of the Judgment of
the Hon'ble Supreme Court of Justice, Portugal dated 27/01/2005. This is
the final Judgment whereby the issue of the solemn sovereign assurance
given by the then Hon'ble Deputy Prime Minister of India and its effects,
binding nature and consequences were considered threadbare in the
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context of separation of the powers of three branches of the Government of
India. The Hon'ble Supreme Court of Justice, Portugal in its Judgment
dated 27/01/2005 has given a deep thought to the contents of the solemn
sovereign assurance. In this context, I would like to reproduce Para 12.2 at
Page 90 from English translation of the Judgment of the Hon'ble Supreme
Court of Justice, Portugal dated 27/01/2005. It read thus :
“Given that the Government of the Indian Union cannot guarantee that
such sentence will not be applied by its (independent) courts, one can only
request it to provide a guarantee that, should such sentence be imposed,
then, in order to restrict it, it will resort to all legal measures available
(“pardon, reprieve, respite or remission of punishment or similar
measure”)”
485] It must be mentioned that this observation has been made
after making threadbare analysis of the solemn sovereign assurance given
by the then Hon'ble Deputy Prime Minister of India Shri L.K. Advani. The
Hon'ble Supreme Court of Justice, Portugal accepted the position that the
Government of India cannot assure that such sentence will not be applied
by its Courts. The Hon'ble Supreme Court of Justice, Portugal has observed
in the Judgment that the assurance has to be given that such sentence will
not be applied or executed. The Hon'ble Supreme Court of Justice,
Portugal considered this assurance in the matter of execution of the
sentence and not in the context of the application of the sentence. The
Hon'ble Supreme Court of Justice, Portugal, has accepted the assurance
after being satisfied that the Government of India is not without power to
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comply the solemn sovereign assurance in the matter of execution of
sentence imposed by the Court. It is, therefore, crystal clear that the
Hon'ble Supreme Court of Justice, Portugal, has considered this assurance
from the point of view of the exercise of the powers by the Union of India
in the matter of execution of sentence and not in the matter of application
of sentence. The question in this case, as observed by the Hon'ble
Supreme Court of Justice, Portugal, of non-compliance of solemn sovereign
assurance or breach of assurance would arise if there is failure on the part
of the Union of India to stand-by the assurance while executing the
sentence awarded by the Indian Courts. It may, therefore, be mentioned
that the Hon'ble Supreme Court of Justice, Portugal has not understood,
considered and accepted this solemn sovereign assurance being an
assurance that no Court in India shall award the punishment provided
under the Indian laws. In my opinion, the Judgment of the Hon'ble
Supreme Court of Justice, Portugal would speak volumes about the true
purport, meaning and interpretation of the solemn sovereign assurance
given by the then Hon'ble Deputy Prime Minister of India. Therefore, in
the backdrop of the above said discussion, the submission made by ld.
Advocate Shri Pasbola that in this case in view of the assurance given by
the Union of India, punishment for more than 25 years cannot be awarded
deserves to be rejected.
486] The provisions of sec. 302 of the IPC are mandatory. The
provisions of sec. 3 sub-section (2) sub-clause (i) of the TADA (P) Act are
mandatory. Similarly, the provisions of sec. 34C of the Indian Extradition
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Act, 1962 are mandatory. In view of these mandatory provisions, the
assurance given on behalf of the Union of India could not be construed as
an implied amendment of the said provisions. While giving the assurance
within the parameters of law and by doing so, the independence of
judiciary has not been tinkered with. In this case, therefore, on the basis
of the said assurance the provisions of sec. 302 of the IPC, sec. 3(2)(i) of
the TADA (P) Act, 1987 and sec. 34C of the Indian Extradition Act, 1962
cannot be construed to have been amended. Therefore, in this case, as far
as accused Abu Salem is concerned, the death penalty is out of question.
The provisions of law and the solemn sovereign assurance given by the
then Hon'ble Deputy Prime Minister of India on behalf of the Union of
India would not stand in the way of this Court to exercise its jurisdiction to
award the punishment provided under the law. The application of
punishment and execution of punishment are two different aspects. The
application/awarding punishment falls within the domain and jurisdiction
of this Court. The execution of the punishment falls within the domain
and jurisdiction of the executives. The powers vested with the executives
while executing the sentence are independent. The said powers are not the
subject to judicial review. Therefore, in my domain, I have to apply the
provisions of sec. 302 of the IPC and sec. 3(2)(i) of the TADA (P) Act, 1987
as the same stand. The Union of India in its domain and wisdom and
particularly the executives in their wisdom and domain would be free to
exercise its powers in the matter of execution of the sentence awarded by
this Court.
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ACCUSED NO. 4 MEHENDI HASAN
487] Ld.SPP Shri Nikam submitted that the case of accused
Mehendi Hasan falls within the rarest of rare category and, therefore,
accused Mehendi Hasan is required to be visited with death penalty u/sec.
302 of the IPC and sec. 3 sub-section (2) sub-clause (i) of the TADA (P)
Act, 1987. Ld. SPP submitted that accused Mehendi Hasan was involved
in the conspiracy since inception. Ld. SPP submitted that the role played by
accused Mehendi Hasan in taking the conspiracy to its logical end is very
vital. Ld. SPP pointed out that accused Mehendi Hasan was the trusted
soldier of accused Abu Salem. He unhesitatingly complied with all the
commands of accused Abu Salem. Ld. SPP submitted that accused
Mehendi Hasan delivered the weapons to the assailants. Similarly,
complied with the commands of accused Abu Salem. Ld. SPP further
submitted that accused Mehendi Hasan is of major age. He knew the
consequences of their acts. Ld.SPP submitted that there is no guarantee
that he would not repeat the similar offence, if he is let off in this crime.
There is no possibility of his reform. Ld. SPP submitted that accused
Mehendi Hasan was not acting under duress and domination. He is a
habitual offender. In the submission of the Ld.SPP above stated are the
aggravating circumstances to award death sentence qua accused Mehendi
Hasan.
488] As against this, learned Advocate Shri Pasbola for the accused
submitted that this case is not rarest of rare cases warranting extreme
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learned Advocate Shri Pasbola the aggravating circumstances sought to be
relied upon by the learned Prosecutor are so fragile to come to a
conclusion that this case is rarest of rare category warranting the death
penalty.
489] Ld. Advocate Shri Pasbola further submitted that in the earlier
part of the trial in the same crime (State of Maharashtra v. Bharat
Raghani and others reported in 2003 Supreme Court Cases (Cri) 377)accused Shekhar Kadam and Subhash Bind convicted of all the offences
and they have been sentenced to suffer Rigorous Imprisonment for life.
Ld. Advocate Shri Pasbola submitted that since accused Mehendi Hasan is
not the brain behind the crime, his role at the most could be equated with
the role played by the assailants Subhash Bind and Shekhar Kadam. Ld.
Advocate Shri Pasbola submitted that in the case of (State of
Maharashtra v. Bharat Raghani and others reported in 2003 Supreme
Court Cases (Cri) 377) arising out of the same crime, the Hon'ble
Supreme Court of India has recorded a finding that this case does not fall
in the category of the rarest of rare cases to award death penalty against
accused Shekhar Kadam and accused Subhash Bind. Ld. Advocate Pasbola
submitted that this observation of the Hon'ble Supreme Court of India
would aptly apply to the case of accused No. 4 Mehendi Hasan. Ld. Advocate Shri Pasbola submitted that on the basis of this finding of the
Hon'ble Supreme Court of India, a parity is required to be maintained
while awarding the sentence to accused Mehendi Hasan.
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490] Ld. Advocate Shri Pasbola in support of his submission
has relied upon the recent decision of the Hon'ble Supreme Court of India
in the case of Deepak Rai v. State of Bihar with Jagat Rai and another v.
State of Bihar reported in (2013) 10 Supreme Court Cases 421. In this
case, the Hon'ble Supreme Court of India has considered almost all the
earlier decisions of the Hon'ble Supreme Court of India on the issue of
awarding the death sentence, requirement and recording “Special reasons”
for awarding the death sentence and the fact that the case must fall within
the category of rarest of rare case for awarding the death penalty. At the
outset it is necessary to consider the law laid down by the Hon'ble
Supreme Court of India on this point. In this case, the Hon'ble Supreme
Court of India has held that the judicial approach towards sentencing has
to be cautious, circumspect and careful. The courts at all stages----trial and
appellate---must therefore peruse and analyse the facts of the case in hand
and reach an independent conclusion which must be appropriately and
cogently justified in the “reasons” or “special reasons” recorded by them
for imposition of life imprisonment or death penalty. The Hon'ble Supreme
Court of India has held that the reasons must be lucid and satisfy the
appellate court that the court below has considered all the factors and
recorded sentence. The Hon'ble Supreme Court of India has held that after
amendment of the Code of Criminal Procedure, 1973, there has been shift
in penological trend. The Hon'ble Supreme Court of India has held that as
per the present penological trend noticed the life imprisonment must be
the rule and death penalty must be an exception. On the point of
recording “special reasons”, the Hon'ble Supreme Court of India has held
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that the “special reasons” must be recorded by the court before awarding
death penalty. The Hon'ble Supreme Court of India has observed that it is
extremely difficult to catalogue such “special reasons” for imposition of
death sentence. They have to be construed from the aggravating and
mitigating factors. Such factors cannot be considered in isolation. Such
factors are inflexible, absolute or immutable and must be perceived only as
indicators which the courts must bear in mind while awarding sentence.
The Hon'ble Supreme Court of India has held that death sentence can be
awarded only in rarest of rare cases where there is no scope for imposition
of a less harsh sentence. The Hon'ble Supreme Court of India has held that
while applying the test of “rarest of the rare” case and considering the
relevant factors, court must bear in mind; i) the motivation of the
perpetrator, the vulnerability of the victim, enormity of the crime, the
execution thereof and ii) societies abhorrence, extreme indignation and
antipathy to certain types of crimes which shake the collective conscience
of the society. The Hon'ble Supreme Court of India has held that such
circumstances cannot be laid down as a straitjacket formula but must be
ascertained from case to case. The legislature has left it open for the
courts to examine the facts of the case and appropriately decide upon the
sentence proportionate to the gravity of the offence.
491] In order to appreciate the rival submissions and to
consider the applicability of the law laid down by the Hon'ble Supreme
Court of India, it is necessary to advert to the some of the proved facts in
this case. Accused No.1 Abu Salem is the brain behind the crime. Accused
484
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No.4 Mehendi Hasan was his trusted soldier. Initially, accused Mehendi
Hasan worked with him as his (Salem) driver. It has come on record that
accused No.4 Mehendi Hasan joined accused Abu Salem to satisfy his day-
to-day financial needs. He was in the need of employment to earn his
livelihood. There is no evidence on record that he was a part of any
syndicate or organised gang. After 1993 Bombay Blasts Case, accused Abu
Salem absconded and settled his base in Dubai. One day, when accused
Mehendi Hasan was in need of money, he called him (Abu Salem) at Dubai
by taking his telephone number from his office. Accused Abu Salem
satisfied his financial needs and called him to Dubai. He (Mehendi Hasan)
started working with accused Abu Salem in Dubai.
492] It has come on record that he was present in the
meeting where the conspiracy was hatched. The evidence in the form of
confessions would reveal that he(Mehendi Hasan) was not the master
mind behind the conspiracy. Similarly, he did not play vital role in
chalking out further course of action pursuant to the conspiracy. He came
down to India in January, 1995. It is not the case of the prosecution that
after coming back to India in January, 1995, he did any act consistent with
the object of the conspiracy. On the contrary his confession would show
that when he came to know that police were searching him in one crime,
he left Mumbai for Kolhapur. He did not bother about the conspiracy and
the fulfillment of the object of the conspiracy once he left to Kolhapur, his
native place. It has come on record that when there was hot exchange of
word and abuses between accused Abu Salem and Pradeep Jain, accused
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Abu Salem felt the need of Mehendi Hasan. Accused Abu Salem made a
phone call to Mehendi Hasan and directed him to come to Mumbai from
Kolhapur. After coming to Mumbai, accused Mehendi Hasan, as per the
instructions of accused Abu Salem, collected the weapons from a person
near Shalimar Hotel, Bhendi Bazar and handed over the same to Salim
Haddi near Ramdev Hotel at Sion. He did not participate in the incident of
attack on Pradeep Jain. It is seen that accused Abu Salem made use of
Mehendi Hasan to fulfill his plan to murder Pradeep Jain. In this case,
accused Abu Salem cannot be visited with death penalty. He is entitled for
the benefit of the provisions of sec. 34C of the Indian Extradition Act,
1962. In this case, it is, therefore, apparent on the face of the record that
master mind behind the crime has escaped the major penalty of death.
The role played by accused Mehendi Hasan is not the role of a main actor
or planner of the commission of the crime. His role has been found to be
of obedient soldier and that too because of his financial constraints. He
was in need of employment. He joined the bad company.
493] In this case, by applying the law laid down by the
Hon'ble Supreme Court of India in the Judgment cited supra the accused
Mehendi Hasan cannot be visited with death penalty. If we consider the
aggravating and mitigating circumspect together, then one cannot find that
the aggravating circumstances would overweigh the mitigating
circumstances. In this case, there is no material to conclude that accused
Mehendi Hasan has acted in a diabolical, depraved and brutal manner in
the commission of the crime at any point of time. The main shooters
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committed the murder, as per the instructions of accused No.1 Abu Salem
and not as per the instructions of accused No.4 Mehendi Hasan. Mehendi
Hasan was just used as a communication link between Abu Salem and
actual assailants of Pradeep Jain. Accused Mehendi Hasan is a family man.
He has wife, three sons and aged parents. No evidence has been brought
on record to show that he is beyond reformation and he cannot be
rehabilitated in the society. Similarly, no evidence has been brought on
record to show that he is such a menace to the society that his existencealone would not benefit the society.
494] There is one more circumstance as rightly pointed
out by the ld. Advocate Shri Pasbola to negative the submission of
Ld.SPP that this case falls in the category of 'rarest of rare' cases.
While considering the case of Subhash Bind and Shekhar Kadam in
the case of State of Maharashtra v. Bharat Raghani and others
reported in 2003 Supreme Court Cases (Cri) 377), the Hon'ble Supreme
Court of India has found that the case was not of the rarest of rate category
to award death penalty. In my opinion, in this case, there are no great
dissimilarities between the acts committed by accused No. 4 Mehendi
Hasan and the acts committed by accused Shekhar Kadam and accused
Subhash Bind. On the contrary, it appears that accused Shekhar Kadam
and Subhash Bind with others shot Pradeep Jain for the reward. The
reward was paid to them for execution of the murder. In this case, it
appears that accused Mehendi Hasan was not the beneficiary. Therefore,
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in my opinion, in this case accused Mehendi Hasan deserves parity with
accused Shekhar Kadam and accused Subhash Bind. This is not the
gravest case of extreme culpability to award extreme penalty of death. The
aggravating circumstances placed on record by Ld.SPP could not be
accepted as special circumstances constituting the special reasons for
awarding the death penalty. As held by the Hon'ble Supreme Court of
India, life imprisonment is a rule and death penalty is an exception.
Unless and until there are exceptional circumstances proved and brought
on record, life imprisonment must be preferred to death penalty. Whether
a particular case falls within the category of 'rarest of rare' cases is a
question of fact. The Hon'ble Supreme Court of India in the Judgment
cited supra has held that there cannot be any straitjacket formula in this
regard. So, whether a particular case falls within the category of rarest of
rare cases is a question of fact. While deciding the same, court has to
consider the crime as well as the criminal. The court has to balance the
aggravating and mitigating circumstances. In this case, after considering
the material placed on record, I do not see that this case falls within the
category of 'rarest of rare' cases to award death penalty. The proposition of
law, therefore, squarely applies to the submissions advanced by ld.
Advocate Shri Pasbola. I am not inclined to accept the submissions of
Ld.SPP Shri Nikam on the basis of the aggravating circumstances pointed
out by him to award death penalty in this case.
ACCUSED NO. 5 V.K. JHAMB
495] Ld. SPP Shri Nikam submitted that though accused V. K.
Jhamb boarded the train of conspiracy in March/April, 1996, the
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subsequent acts done by him could not be said to be minor acts. Ld.SPP
submitted that accused No.5 V. K. Jhamb could have gracefully avoided the
dictates and commands of accused Abu Salem. Ld. SPP submitted that
since accused No. 5 V.K. Jhamb has been found to have shared the common
object of the conspiracy to commit the extortion, he deserves the
punishment upto seven years Rigorous Imprisonment. As against this, Ld.
Advocate Shri Shivade for accused No.5 submitted that case of the accused
No.5 cannot be considered on par with case of accused Abu Salem and
accused Mehendi Hasan. Ld. Advocate Shri Shivade submitted that the
offence proved against this accused is minor offence. He was not charged
for commission of any of the offences under the provisions of the TADA (P)
Act. Ld. Advocate Shri Shivade further submitted that the accused is 86
years old. He has no criminal antecedents. Ld.Advocate submitted that he
is not able to walk and he is chair bound. He has undergone two open
heart surgeries. He is suffering from almost all old age ailments. Ld.
Advocate Shri Shivade submitted that considering the physical condition of
the accused even ten days stay of this accused in jail would literally
amount to imprisonment for life or death. The nature of the ailment, the
medication provided to the accused and medical attendance required on
day-to-day basis has been specifically mentioned in an application made at
Exhibit - 571 to releases this accused accused on probation. Ld.Advocate
Shri Shivade submitted that this accused was in custody from 22/12/2005
to 25/09/2006. In the submission of ld. Advocate Shri Shivade on
humanitarian ground the accused may be ordered to undergo the
imprisonment equivalent to the period for which he was in the custody i.e.
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for nine months and to pay appropriate fine amount, which may be on
higher side. Ld. Advocate Shri Shivade submitted that in this case
considering all the above stated facts, a sympathetic view is required to be
taken. The second plank of his submission is that considering all the above
stated facts this accused may be released on probation.
496] I have gone through the record and proceeding and more
particularly Exhibit -571 wherein the nature of ailment, medical
treatment, medical attendance required by accused No.5 has been stated.
In this case I have called the report of the Probation Officer. The report of
the Probation Officer is not a reasoned report. The report of the Probation
Officer is cryptic and vague. Certain observations have been made in the
report without any evidence. The report is not favourable to the accused
No.5. In my opinion, therefore, the question of releasing the accused No.5
on probation is out of question.
497] First submission made by Ld.Advocate Shri Shivade needs to
be considered. The accused No.5 has not done any overt act. He simply
shared the object of the conspiracy to extort money from Jain brothers. He
was assigned the taks to complete sale transaction of three flats, which
were given by the Jain brothers to accused Abu Salem in lieu of the
extortion money. Accused No. 5 V.K. Jhamb has not been benefited in this
transaction. He has no criminal antecedents. He is on bail. His age,
physical condition and nature of ailment, as can be seen from the record, is
undisputed. The accused No.5 is not a hard-core criminal. The only
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wrong committed by him is to succumb to the commands of accused No.1
Abu Salem and got himself involved in the transaction. He was in jail for
nine months. Since he is not a hard-core criminal, while awarding the
punishment his case needs to be considered on separate pedestal and by
applying separate considerations. His case cannot be considered on par
with accused No. 1 Abu Salem and accused No. 4 Mehendi Hasan. They
were party to the conspiracy since inception. Before murder of Pradeep
Jain, accused No. 4 Mehendi Hasan had played important role. Accused
No. 5 V. K. Jhamb came on the scene after murder of Pradeep Jain.
Therefore, in my view, no fruitful purpose would be served by sending
accused No. 5 V. K. Jhamb to jail. I fully agree with the submission of Ld.
Advocate Shri Shivade that if he is sent to jail even for one day, it would
amount to death sentence for this accused.
498] The punishment provided for the offences u/sec. 386 of
the IPC is Rigorous Imprisonment upto ten years. A discretion has been
vested with the court to apply appropriate punishment within this range.
While awarding the punishment there cannot be any straitjacket formula.
Each and every case has to be considered while awarding the punishment
by taking into considering the facts and circumstances obtained on record.
Similarly, the nature of the crime and involvement of the accused in the
commission of the crime is one of the factors for consideration. In this
case, therefore, while awarding the punishment to accused No.5 V. K.
Jhamb, a realistic approach needs to be adopted. The case of accused No.5
is a genuine case to take a sympathetic view. In my opinion, therefore, he
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can be awarded Rigorous Imprisonment equivalent to the period for which
he was in the custody i.e. from 22/12/2005 to 25/09/2006. Since the
Court has taken a lenient view in the matter of awarding the substantive
sentence, the fine amount in the case of accused No. 5 V.K. Jhamb would
be on higher side.
499] Before parting with the matter, I would like to place on
record, the words of appreciation for the people, who have extended their
whole hearted cooperation and support to me. This case was a roller
coaster ride and a herculean task for me. Ld. SPP Shri Ujjwal Nikam, Ld.
Advocate Shri Sudeep Pasbola, his junior Advocate Shri Upadhyay, Ld.
Advocate Shri Shivade and his junior Ms. Santhani extended their fullest
cooperation to me. Ld. Prosecutor and the Advocates appearing for the
accused conducted and presented the matter in a very erudite and graceful
manner. This Court, therefore, appreciate their contribution. My
stenographer, Seema Tendulkar, who has worked during holidays to
complete the transcription of the Judgment. My Typist Rajeshwari
Narvekar has been very meticulous in preparing the notes and keeping the
record in order to avoid any sort of inconvenience to me. My other staff
Shri Baile, Shri Gole, Shri Nanaware and Shri Bhide exerted to help me in
all possible ways to see that I am not put in any sort of inconvenience.
500] The Investigating Officer Shri Shengal and his team deserves
the credit and words of appreciation for conducting the investigation in a
meticulous manner in such a difficult case. The officers API Shri
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Ghanshyam Nair and PI Shri Sunil Mane all throughout attended this
matter. They have not only extended their assistance to the Ld. SPP but
also extended maximum cooperation to me in locating the record and
sometimes making the relevant record available to me.
501] On the basis of my above said observations, I conclude
that the prosecution has proved that Accused No.1 Abeu Salem Abdul
Kayyum Ansari is liable to be convicted for the offences punishable u/sec.
120-B of Indian Penal Code, sec. 302 and sec. 307 r/w sec. 120-B of the
Indian Penal Code and u/secs. 3(2)(i), 3(2)(ii), 3(3), 3(5) of the Terrorist
And Disruptive Activities(Prevention) Act, 1987 r/w. sec. 120-B of Indian
Penal Code.
502] Accused No.4 Mohd. Hasan Mehendi Hasan Shaikh is
liable to be convicted for the offences punishable u/sec. 120-B of Indian
Penal Code, secs. 302, 307, 386, 449, 450, 452 r/w. sec. 120-B of the
Indian Penal Code and u/sec. 3(2)(i), 3(2)(ii), 3(3), 3(5) and Sec. 5
of the Terrorist And Disruptive Activities (Prevention) Act, 1987 r/w.
sec. 120 (B) of Indian Penal Code.
503] Accused No.5 Virendrakumar Biharilal Jhamb is liable
to be convicted for the offence punishable u/secs. 386 r/w sec.120-B of
Indian Penal Code.
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504] With this, I proceed to pass following order.
: O R D E R :
1] Accused Abu Salem Abdul Kayyum Ansari stands convicted for
the offence punishable u/sec. 302 r/w. sec. 120-B of the Indian Penal
Code and sentenced to suffer Rigorous Imprisonment for Life and to pay a
fine of Rs. 2,00,000/- (Rs. Two Lakhs). In default of payment of fine, he
has further to undergo Rigorous Imprisonment for Two Years.
2] Accused Abu Salem Abdul Kayyum Ansari stands convicted
for the offence punishable u/sec. 307 r/w. sec. 120-B of the Indian Penal
Code and sentenced to suffer Rigorous Imprisonment for 25 Years and to
pay a fine of Rs. 1,00,000/- (Rs. One Lakh). In default of payment of fine,
he has further to undergo Rigorous Imprisonment for One Year.
3] Accused Abu Salem Abdul Kayyum Ansari stands convicted
for the offence punishable u/sec. 3 sub-section (2) sub-clause (i) of the
Terrorist And Disruptive Activities (Prevention) Act, 1987 r/w. sec. 120-B
of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment
for Life and to pay a fine of Rs. 2,00,000/- (Rs. Two Lakhs). In default of
payment of fine, he has further to undergo Rigorous Imprisonment for Two
Years.
4] Accused Abu Salem Abdul Kayyum Ansari stands convicted
for the offence punishable u/sec. 3 sub-section (2) sub-clause (ii) of the
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Terrorist And Disruptive Activities (Prevention) Act, 1987 r/w. sec. 120-B
of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment
for 25 Years and to pay a fine of Rs. 1,00,000/- (Rs. One Lakh). In default
of payment of fine, he has further to undergo Rigorous Imprisonment for
One Year.
5] Accused Abu Salem Abdul Kayyum Ansari stands convicted
for the offence punishable u/sec. 3 sub-section (3) of the Terrorist And
Disruptive Activities (Prevention) Act, 1987 r/w. sec. 120-B of the Indian
Penal Code and sentenced to suffer Rigorous Imprisonment for 25 Years
and to pay a fine of Rs. 1,00,000/- (Rs. One Lakh). In default of payment
of fine, he has further to undergo Rigorous Imprisonment of One Year.
6] Accused Abu Salem Abdul Kayyum Ansari stands convicted
for the offence punishable u/sec. 3 sub-section (5) of the Terrorist And
Disruptive Activities (Prevention) Act, 1987 r/w. sec. 120-B of the Indian
Penal Code and sentenced to suffer Rigorous Imprisonment for 25 Years
and to pay a fine of Rs. 1,00,000/- (Rs. One Lakh). In default of payment
of fine, he has further to undergo Rigorous Imprisonment for One Year.
7] Accused Mohammed Hasan Mehendi Hasan Shaikh
stands convicted for the offence punishable u/sec. 302 r/w. sec. 120-B of
the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for
Life and to pay a fine of Rs.2,00,000/-(Rs.Two Lakhs). In default of
payment of fine, he has further to undergo Rigorous Imprisonment for Two
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Years.
8] Accused Mohammed Hasan Mehendi Hasan Shaikh stands
convicted for the offence punishable u/sec. 307 r/w. sec. 120-B of the
Indian Penal Code and sentenced to suffer Rigorous Imprisonment for 25
Years and to pay a fine of Rs. 1,00,000/- (Rs. One Lakh). In default of
payment of fine, he has further to undergo Rigorous Imprisonment for
One Year.
9] Accused Mohammed Hasan Mehendi Hasan Shaikh stands
convicted for the offence punishable u/sec. 3 sub-section (2) sub-clause (i)
of the Terrorist And Disruptive Activities (Prevention) Act, 1987 r/w. sec.
120-B of the Indian Penal Code and sentenced to suffer Rigorous
Imprisonment for Life and to pay a fine of Rs. 2,00,000/- (Rs. Two Lakhs).
In default of payment of fine, he has further to undergo Rigorous
Imprisonment for Two Years.
10] Accused Mohammed Hasan Mehendi Hasan Shaikh stands
convicted for the offence punishable u/sec. 3 sub-section (2) sub-clause
(ii) of the Terrorist And Disruptive Activities (Prevention) Act, 1987 r/w.
sec. 120-B of the Indian Penal Code and sentenced to suffer Rigorous
Imprisonment for 25 Years and to pay a fine of Rs. 1,00,000/- (Rs. One
Lakh). In default of payment of fine, he has further to undergo Rigorous
Imprisonment for One Year.
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11] Accused Mohammed Hasan Mehendi Hasan Shaikh stands
convicted for the offence punishable u/sec. 3 sub-section (3) of the
Terrorist And Disruptive Activities (Prevention) Act, 1987 r/w. sec. 120-B
of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment
for 25 Years and to pay a fine of Rs. 1,00,000/- (Rs. One Lakh). In default
of payment of fine, he has further to undergo Rigorous Imprisonment of
One Year.
12] Accused Mohammed Hasan Mehendi Hasan Shaikh stands
convicted for the offence punishable u/sec. 3 sub-section (5) of the
Terrorist And Disruptive Activities (Prevention) Act, 1987 r/w. sec. 120-B
of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment
for 25 Years and to pay a fine of Rs. 1,00,000/- (Rs. One Lakh). In default
of payment of fine, he has further to undergo Rigorous Imprisonment for
One Year.
13] Accused Mohammed Hasan Mehendi Hasan Shaikh stands
convicted for the offences punishable u/sec. 5 of the Terrorist And
Disruptive Activities (Prevention) Act, 1987 r/w. sec. 120-B of the Indian
Penal Code and sentenced to suffer Rigorous Imprisonment for Ten Years
and to pay a fine of Rs. 25,000/- (Rs. Twenty Five Thousand). In default
of payment of fine, he has further to undergo Rigorous Imprisonment for
six months.
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14] Accused Mohammed Hasan Mehendi Hasan Shaikh stands
convicted for the offence punishable u/sec. 386 r/w. Sec. 120-B of the
Indian Penal Code and sentenced to suffer Rigorous Imprisonment for
Three Years and to pay a fine of Rs. 10,000/- (Rs. Ten Thousand). In
default of payment of fine, he has further to undergo Rigorous
Imprisonment for Three Months.
15] Accused Mohammed Hasan Mehendi Hasan Shaikh stands
convicted for the offence punishable u/sec. 449 r/w. Sec. 120-B of the
Indian Penal Code and sentenced to suffer Rigorous Imprisonment for Five
Years and to pay a fine of Rs. 10,000/- (Rs. Ten Thousand). In default of
payment of fine, he has further to undergo Rigorous Imprisonment for Six
Months.
16] Accused Mohammed Hasan Mehendi Hasan Shaikh stands
convicted for the offence punishable u/sec. 450 r/w. Sec. 120-B of the
Indian Penal Code and sentenced to suffer Rigorous Imprisonment for
Three Years and to pay a fine of Rs. 10,000/- (Rs. Ten Thousand). In
default of payment of fine, he has further to undergo Rigorous
Imprisonment for Three Months.
17] Accused Mohammed Hasan Mehendi Hasan Shaikh stands
convicted for the offence punishable u/sec. 452 r/w. Sec. 120-B of the
Indian Penal Code and sentenced to suffer Rigorous Imprisonment for
Three Years and to pay a fine of Rs. 10,000/- (Rs. Ten Thousand). In
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default of payment of fine, he has further to undergo Rigorous
Imprisonment for Three Months.
18] Accused Virendrakumar Biharilal Jhamb stands convicted for
the offences punishable u/sec. 386 r/w sec. 120-B of the Indian Penal
Code and sentenced to suffer Rigorous Imprisonment for the period for
which he was in the custody i.e. from 22/12/2005 to 25/09/2006 and to
pay a fine of Rs. 5,00,000/- (Rs. Five Lakhs). In default of payment of fine,
he has further to undergo Rigorous Imprisonment for Two Years.
19] Substantive sentences are directed to run concurrently.
20] Set off be given to the accused persons against the substantive
sentences awarded to them for their custody period in this trial from the
date of their arrest.
21] Accused No. 4 Mohammed Hasan Mehendi Hasan Shaikh and
accused No. 5 Virendrakumar Biharilal Jhamb stand acquitted of the
offence punishable u/sec. 387 r/w. Sec. 120-B of the Indian Penal Code.
22] Bail bond of accused No. 5 Virendrakumar Biharilal Jhamb
stands cancelled.
23] It is ordered that 50% of the fine amount, as and when
deposited by the accused persons pursuant to the above said order, shall be
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paid over to the widow of Pradeep Jain i.e. Smt. Jyoti Jain (PW-9), after
the Appeal period provided against this order is over.
24] Certified copy of this Judgment be provided to the accused
Nos. 1 Abu Salem Abdul Kayyum Ansari, accused No. 4 Mohammed
Hasan Mehendi Hasan Shaikh and accused No. 5 Virendrakumar Biharilal
Jhamb, free of cost.
(G.A.SANAP)25th February, 2015 Judge
(Designated Court for TADA) Bombay City Civil & Sessions Court,
Greater Mumbai.
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