Judgment

M.K. Mukherjee, J.-Leave granted in both the petitions.

2. Suresh Budharmal Kalani @ Pappu Kalani and Dr. Aken Kumar Gajendra Rai Desai, the appellants in these two appeals, figure as accused (besides others) in TADA Special Case No. 31 of 1993, pending before the Designated Court, Brihan Mumbai constituted under The Terrorists and Distruptive Activities (P) Act, 1987 (TADA for short). The case arises out of an incident of rioting, murder and other cognate of­fences that took place on September 12, 1992 at J.J. Hospital, Bomay. According to the prosecution case, on that day at or about 3.45 P.M. a group of persons armed with automatic fire arms, such as pistols, AK 47 assault rifles, stormed into Ward No. 18 of the hospital and opened fire upon Shailesh Haldankar, who was an accused in Crime No. 452/92 of V.P. Road Police Station and admitted there due to injuries earlier sustained. The indiscriminate firing by the miscreants resulted in the death of Haldankar and two policemen on guard duty and injuries to five others. Shri K.G. Thakur, Sub-Inspector of police attached to V.P. Road Police Station, who was then on duty at the hospital re­turned the fire causing injuries to some of the miscreants including one Shrikant Rai @ Pradhan. The miscreants, however, managed to escape carrying with them the injured associates in a car. It is the further prosecution case that the incident was the outcome of a conspiracy hatched by Dawood Ibrahim, a notorious gangster, and his men to avenge the murder of his brother-in-law, Ibrahim Ismail Parkar, who was eliminated by the members of his rival gang led by Arun Gowli of which Haldankar was a member.

3. Over the incident, a case was registered on a report lodged by Shri Thakur and on completion of investigation, charge sheet was submitted by the police after obtaining requisite sanction under Section 20A(2) of TADA to prosecute the appellants and others. On that charge sheet cognizance was taken by the Designated Court; and on consideration of the documents referred to under Section 173(2) Cr.P.C. and, after hearing the parties, it passed orders for framing charges under Sec­tions 3(3) of TADA and 120B I.P.C. against Kalani and under Sections 3(4) of TADA and 212 I.P.C. against Dr. Desai. Assailing the above orders, the appellants have filed these appeals.

4. The gravamen of the charges to be framed against Kalani is that he hatched a criminal conspiracy to murder Haldankar and thereby abetted the commission of his murder. The above accusation is based on the following facts and circumstances :-

(i) a meeting was held on September 2, 1992 in a holiday resort belonging to Kalani where the decision to kill Haldankar was taken;

(ii) soon after the murder, Kalani had a telephonic talk with one of the accused persons regarding the arrangement to be made to remove injured Shrikant Rai in his car; and

(iii) on September 13, 1992, Kalani threatened Jayawant Suryarao, (one of the accused) that in case he disclosed the removal of Shrikant Rai in his (Kalani’s) car he and his family members would be liquidated.

To prove the above facts and circumstances, the prosecution seeks to rely upon:-

(i) the evidence of Smt. Priti, wife of accused Jayawant Surya­rao, and Shri Himmat Rawal;

(ii) confessional statement of Dr. Bansal; and

(iii) confessional statement of Jayawant Suryarao; respec­tively.

5. On perusal of the statements of the above mentioned two witnesses recorded under Section 161 Cr.P.C. we find that they did not speak of any conspiracy, much less of a conspiracy to commit the murder in question. Their statements only disclose that on September 2, 1992 Kalani had a meeting with accused Jayawant Suryarao, the President of Bhiwandi Nizampura Municipal Council, and others in his holiday resort over a no confidence motion that was to be brought against the latter. It is pertinent to mention here