2001 Supreme(SC) 922

2001(5) Supreme 67
Supreme Court of India
(From Mumbai High Court)
K.T. Thomas & R.P. Sethi, JJ.
State of Maharashtra —Appellant
versus
Bharat Chaganlal Raghani & Ors. —Respondents
Criminal Appeal No. 628 of 1998
Decided on 11-7-2001
Counsel for the Parties :
For the Appearing Parties : V.S. Kotwal, Sr. Advocate, U.U. Lalit, S.S. Shinde, S.V. Deshpande, Ms. Aparajita Singh, Sushil Kr. Karanjakar, A. Venkatesh, Vishwajit Singh, (N.M. Sakhardande) Advocate (AC), (R.C. Kohli) Advocate (N.P.), (Mrs. Meenakshi Sakhardade) Advocate for Mrs. V.D. Khanna, Bhaskar Y. Kulkarni, Advocates.

Very important point
This judgment has given a forceful call to all wings to fight against illegal contract killing cases by underworld gangs in the field of ‘organised crime’ for ‘protection money’ or feudal "khandani" collection. It has partly allowed appeal against judgment of Designated Court, Mumbai, setting aside acquittal of A3 for offence of extortion and of A5 and A6 for various offences under IPC, Arms Act and TADA.

Headnote:(i) Indian Penal Code, 1860—Sections 384 r/w Sections 34, 302, 307 r/w 120B, 23, 114—Arms Act, 1959—Section 3 r/w Sections 25(1B) (a), Section 5 r/w Section 27—TADA (Prevention) Act, 1987—Sections 3(2)(1), 3(2)(ii), 3(3) 3(5), 5 and 6—Offences under—"Organised crime" —Contract killing through underworld dons—Jain Brothers owner of Kamla Construction had agreement to purchase property—‘B’ Koldongir property in Andheri (W)—One S.R. Singh Yadav (A3) also contracted to purchase it for his Labh Construction—Hired mercenary killers Dawood Ibrahim to finish Jain Brothers—Pradeep Jain murdered and his brother Sunil Jain injured—13 persons tried by Designated Court—7 were absconding—Out of them 4 killed in encounter—Six were arrested—A1 a solicitor A2 and A4 were brokers, A3 was purchaser, A5 and A6 Associates of Dawood Ibrahim—A4 dying in encounter—All acquitted by Designated Court, giving benefit of doubt—Appeal against to Supreme Court by State—Statutory appeal—Nature and scope of underworld ‘organised crime’ commented upon. (Paras 20 to 30)

       Held : It was found that prosecution had created a suspicion in the mind of the court about the probability of A1, A2 and A3 managing through A4 to get in touch with Abu Salem A9 who ordered the killing but observing that suspicion, however strong cannot take the place of proof, the trial court concluded for giving the benefit of doubt to the accused vide the judgment impugned in this appeal filed under Section 19 of the Constitution of India. We have heard the learned counsel appearing for the parties at length and the appeal being a statutory appeal have critically examined the evidence of the prosecution witnesses, the effect of the documents produced and proved and the legality of the confessional statements made by A5 and A6. (Paras 30 and 31)

       Held as prelude under the heaps of voluminous record in the form of various paper books spread 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 run which affect the peaceful and innocent citizens of the country. This world of gangsters, popularly known as the ‘underworld’, comprises of various gangs headed by notorious dons for whom, the only valuable thing in the 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 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 consideration known as ‘supari’ are the orders 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 settle 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 of a few have 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 businessmen, land developers, persons carrying on the illegal activities in gambling dens, drug traffickers, etc. Such collected money is termed as ‘‘protection money’’ which in Marathi referred to as Khandani (Khandani is a Marathi word which relates to 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, but it is the criminals who render protection to such people for the consideration of the ‘‘protection money’’ received by them. Such on going 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’ 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. In Europe, the terms ‘organised crime’ and ‘professional crime’ are largely interchangeable. As compared to American standards, the European criminal organisations are small-scale and short-lived. Such crimes are defined as; involving a system of specifically defined relationships with mutual obligation and privileges and association of a small group of criminals for the execution of the intended crime. The eruption of organised crime in India is of recent origin and is at the initial stage. It is the need of the hour to control such criminal activities which tempt the persons involved to amass huge profit. Such crimes have not only a legal facet but has a social and economic aspect which is required to be felt and dealt with by all concerned including the judiciary, the executive, the politicians, the social reformers, intelligentia and the law enforcing agency. This appeal relates to a case of one such mercenary killing by hired goons at the behest of criminal dons operating from abroad but rendering their services of criminal actions in this country on payment of huge amounts. (Paras 1 to 5)

       (ii) TADA (Prevention) Act, 1987—Section 15—TADA Rules—Rule 15(5)—Confessional statements of A5 and A6 by DCP (PW 38) recorded in exercise of powers under TADA Act and Rules—Not relied upon and excluded by trial Court—Whether according to Law? (No)—Case law referred.

       Held : Sub-rule (5) of Rule 15 of the TADA Rules provides that the confession recorded under Section 15 of the TADA Act shall be sent forthwith to the Chief Matropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the record of confession so received to the Designated Court which may take cognizance of the offence. Rule 15 does not oblige such Magistrate either to open the envelop 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. 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. It was, therefore, not correct on the part of the Designated Judge to hold, "it was obligatory on the part of the Magistrate to question the accused as to whether they had made the said statements voluntarily or otherwise and that ought to have been formed as a part of the record of the confessional statements which were sent to her". The Designated Judge has also erred in holding that the Magistrate had not discharged the duties which were cast on her properly. The observations, "Had she recorded a memorandum below the confessional statements that she had questioned the accused about the averments in the said statements and she would the said confessional statements to be voluntary and correct, then in that event, the confessional statements would have inspired the confidence of the court to believe that they are free from any of the influences. The Magistrate is not expected to take the position of a superior postman in the sense, receive the confessional statements and forward the same to the tada Court by putting it in another envelope. The moment she receives the confessional statement, it should occur to her as to why they are sent to her? What is she required to do with them? Had the Magistrate been meticulous, it would have occurred to her that she is required to question the accused as to whether they have really confessed in the manner recorded in the statement and in that event, in normal course, she would not have forgotten to make a memorandum below the confessional statements. Her writing to this effect below the confessional statements would have been of great assistance to the cause of justice" are, therefore, uncalled for. (Para 36)

       Therefore, in view of the provisions as contained in Section 15 of the TADA Act, Rule 15 of the TADA Rules and law laid down by this Court in Kartar Singh’s case (supra), the Designated Judge committed a mistake of law in not relying upon the confession on the ground that PW 44 had not given a separate certificate and had not herself inquired about the voluntary nature of the confessional statement. (Para 40)

       In view of specific denial and there being no evidence to the contrary, the trial court committed a mistake of law in not relying upon the confessional statements of A5 and A6 which were otherwise held by him to be voluntarily made. (Para 43)

       Held thus the confessional statements of A5 and A6, Exhibits 147 to 150 are, therefore, held to have been voluntarily made and legally recorded which are admissible in evidence and can be used against all or some of the accused in the light of other evidence produced in the case. (Para 46)

       (iii) Indian Penal Code and TADA—Offences under—A1 and 2 acquitted—Appeal against—Whether acquittal needs interference? (No)—A4 dying—No need of recording finding against him.

       Held : It appears that after the death of his brother Sunil Jain (PW15), upon his belief, tried to implicate A1 to A3 in the case of murder of his brother. In the absence of any threat or any other circumstance indicating the intention of A 1, A2 and A3 to kill any of the Jain Brothers, it would not be safe to hold them guilty of murder on such a shaky and unreliable evidence to that extent. It may further be noticed that no overt and covert act in this regard is attributed to A2. A1 is shown to have not observed the professional norms by calling the Jain Brothers in his office to facilitate the execution of release deeds in favour of his client A3. Such a course of conduct may be unprofessional but cannot be described to be criminal warranting a conviction under any provisions of the IPC or TADA. We are, therefore, satisfied that A1 and A2 were not involved in the commission of the crime for which they were charged or any other crime of lesser effect. There is no need of returning a finding against A4 who was also a broker and is stated to have died in a police encounter, unless his complicity is required for the purpose of determining the guilt of any other accused. (Para 52)

       (iv) Indian Penal Code, 1860—Sections 384 r/w 34—Offence of extortion—Cr.P.C. 1973—Section 222—When offence proved included in offence charged—A3 owner of Labh Construction hiring services of gangsters for completing his property purchase against Jain Brothers owners of Kamla Construction—Acquitted by trial Court—Whether correct? (No).

       Held : On appreciation of evidence, the trial court reached a conclusion that A3 was having connection with A4 who visited the office of Kamla Constructions from time to time from September, 1994 onwards and forced the Jain Brothers to attend the meetings at the office of Bharat Raghani (A1), the womenfolk in the house of Jain Brothers were threatened on phone and the caller used to tell sometimes that he was Shaukatali. A4 telephoned in the office of Jain Brothers 15-20 minutes prior to the incident and surrendered himself to the police after registration of the case. It is true that on the basis of such conclusions Subedarsingh (A3) cannot be held to be a party to the conspiracy of killing Pradeep Jain or for the commission of other offences under the TADA Act but it is equally true that his involvement in the transaction having been proved needs the determination of the nature of offence committed by him. (Para 53)

       In this case the prosecution has alleged that for completing the transaction of selling the property to Labh Constructions, A3 procured the services of A4 who is shown to have put the Jain Brothers in fear of injury with the object of dishonestly inducing them to deliver their valuable property to Labh Constructions by execution of release deeds, which were for the immediate benefit of A3. In other words A3 was charged for the offence of murder by resorting to extortion. The offence of extortion is a lesser offence which, under the circumstances of the case, was so connected with the main transaction that no failure of justice can be caused if A3 is convicted and sentenced for the said offence. The offence with which A3 was charged consisted of several particulars, the combination of some of those particulars constitute a complete minor offence of extortion. It cannot be disputed that the offence of extortion in the context of the facts of the case has all the ingredients connected with the major offence. Respondent No.3 was charged for an offence consisting of several particulars which the prosecution failed to prove so far as the major offence is concerned but succeeded in showing the commission of the minor offence punishable under Section 384 read with Section 34 IPC as it is proved that A3 intentionally put Jain Brothers in fear of injury and availing the services of A4 dishonestly induced them in fear to deliver their valuable property in favour of Labh Constructions with whom A3 had agreed to get the release deeds with respect to the property executed by Jain Brothers. A3 though not as a conspirator but sharing common intention with A4 committed the offence of extortion. We have, therefore, no hesitation to hold him guilty of offence of extortion, punishable under Section 384 read with Section 34 IPC. (Para 57)

       (v) Indian Penal Code, 1860—Sections 302, 307 r/w 120B, 23, 114—Arms Act, 1959—Sections 32 r/w Section 25(1B)(a), Section 5 r/w Section 27—Tada (Prevention) Act, 1987 Sections 3(2)(i), 3(2)(ii), 3(3), 3(5), 5 and 6—Offences under—A5 and A6—Confessions—Other evidence of recovery of weapons and proper identification against A5 and A6 whether sufficient to convict them for their offences? (Yes)—Sentenced to life imprisonment—Appeal allowed in part accordingly.

       Held : Learned counsel appearing for A5 and A6 submitted that despite holding the confessional statements Exhibits 147 to 150 being admissible, their clients cannot be convicted and sentenced for the offences charged because the confessions have been retracted and there is no corroboration of their contents. There is no denial of the fact that the judicial confessions made are usually retracted. Retracted confessions are good confessions if held to have been made voluntarily and in accordance with the provisions of law, as A5 and A6 are proved to have made. Corroboration of the confessional statement is not a rule of law but a rule of prudence. Whether in a given case corroboration is sufficient would depend upon the facts and circumstances of that case. In order to sustain a conviction on the basis of a confessional statement, it is sufficient that there is its general corroboration. Dealing with the scope of Section 15 of the TADA Act and referring to its earlier judgments this Court in S.N. Dube v. N.B. Bhoir & Ors. [2000(2) SCC 254] = 2000(1) Supreme 163 held that confession of the accused recorded under Section 15 of TADA Act is a substantive piece of evidence which can be used even against the co-accused if held to be inadmissible voluntarily and believable. Explaining the position of law the Court held:

       "Section 15 of the TADA Act makes certain confessions made to police officers admissible in the trial of such persons or co-accused, abettor or conspirator for an offence under the Act or rules made thereunder. This Court considering its constitutionality in Kartar Singh v. State of Punjab [1994 (3) SCC 569] observed at (SCC p.680, para 253) that:

       "having regard to the legal competence of the legislature to make the law prescribing a different mode of proof, the meaningful purpose and object of the legislation, the gravity of terrorism unleashed by the terrorists and disruptionists endangering not only the sovereignty and integrity of the country but also the normal life of the citizens, and the reluctance of even the victims as well as the public in coming forward, at the risk of their life, to give evidence."

       and held that the impugned section cannot be said to be suffering from any vice of constitutionality. Section 15 is thus an important departure from the ordinary law and must receive that interpretation which would achieve the object of that provision and not frustrate or truncate it. Interpreting the said provision this Court in State v. Nalini [1999(5) SCC 253] (popularly known as the Rajiv Gandhi murder case), has held that a confession recorded under Section 15 of the TADA Act is to be considered as a substantive piece of evidence not only against the maker of it but also against its co-accused. There was a difference of opinion amongst the three learned Judges who decided that case regarding the evidentiary value of such a confession against the co-accused if tried in the same case. Wadhwa, J. observed that what weight should be attached to such a confession is a matter of discretion of the court and as a matter or prudence the court may look for some corroboration before relying upon such confession against the co-accused. Quadri J. held that the rule of prudence would require that the court should examine the same with great care and it should not be relied upon unless it is corroborated generally by other evidence on record. Thomas, J. held that: (SCC p.309 para 99):

       "Thus the established position which gained for a very long time is that while a confession is substantive evidence against its maker it cannot be used as substantive evidence against another person even if the latter is a co-accused, but it can be used as a piece of corroborative material to support other substantive evidence."

       Relying upon the decision of this Court in Kalpnath Rai v. State [1997(8) SCC 732] it was submitted by the learned counsel for the respondents that even a confession made admissible under Section 15 of the TADA Act can be used as against the co-accused only in the same manner and subject to the same conditions as stipulated under Section 30 of the Evidence Act. An observation to the same effect is to be found in para 75 of the judgment. In fact no such point fell for decision in that case and it appears to be a passing observation only. In view of the decision of this Court in Nalini case the said observation can now be regarded as the correct position of law. The correct legal position is that a confession recorded under Section 15 of the TADA Act is a substantive piece of evidence and can be used against a co-accused also otherwise held to be admissible, voluntary and believable."

       In that case also the trial Judge had held the confession inadmissible on the ground of having been recorded in breach of Rules 15(2) & (3) of the TADA Rules. In the facts and circumstances of that case the court held that:

       "We fail to appreciate how any departure from the form or the words can adversely affect the object of the provision or the person making the confession so long as the court is able to conclude that the requirements have been substantially complied with. No public purpose is likely to be achieved by holding that the certificate and memorandum should be in the same form and also in the same terms as are to be found in Rule 15(3)(b). We fail to appreciate how the sanctity of the confession would get adversely affected merely because the certificate and the memorandum are not separately written but are mixed up or because different words conveying the same thing as is required are used by the recording officer. We hold that the trial court committed an error of law in holding that because the certificates and memorandums are not in the same form and words they must be regarded as inadmissible."

       Looking at the record of the case including the testimony of witnesses and the documents produced, we find sufficient general corroboration of the confessional statements made by A5 and A6. It is proved that they were associates of Dawood Ibrahim and Abu Salem (A9) and were continuously in touch with them on telephone for the purposes of getting directions and receiving remuneration. They were seen at and near the place of occurrence on 7.3.1995. They had brought weapons of offence and distributed to other accused. Recoveries of the weapons were made from them which were seized in the presence of witnesses as is evident from the Panchanamas. They were identified by the witnesses at the test identification parade. Their other associates in crime have either been killed or absconding. The cause which provoked Abu Salem (A9) to kill Pradeep Jain stands corroborated by the testimony of Jyoti Pradeep Jain (PW23), widow of the deceased. What more corroboration was required in such a case has not been pointed out by the learned counsel appearing for A5 and A6. To weaken the case of the prosecution, learned counsel appearing for A5 and A6 relied upon the finding of the trial court holding that the recoveries made from the aforesaid accused persons were not proved. In reply to question No. 7, A5 had stated that he had produced two .38 revolver, one 9 mm pistol and one AK 56 assault rifle and the cartridges which he had kept in his house and handed over to the police. The trial court, found that as the weapons were seized from the person of the accused when they were on the road, there existed contradiction, making the recoveries doubtful. Another circumstance which weighed with the trial court to disbelieve the factum of recovery was the Press Conference held by the police wherein the weapons seized from the accused are stated to have been shown. Referring to those two circumstances, the trial court held:

       "Therefore, by considering the aforesaid two circumstances that is, the press conference and the narration made by the accused in the confessional statements, even it any one circumstance is to be accepted, to be nearer to the truth or in other words, if it is accepted in the sense that the possibility of the said circumstance being true is not ruled out, the only way out is to say that the seizure of the weapons as alleged by the prosecution is not at all free from doubt. Therefore, the evidence relating to the seizure will have to be totally kept aside when we consider the aspect of criminal conspiracy."

       We are of the opinion that the trial court adopted a technical approach in appreciating the factum of recovery of weapons and wrongly held that, "the evidence relating to the seizure will have to be totally kept aside". In the Panchnama dated 3.7.1995, (Exhibit 119 at page 1758 to 1760 of the paperbook), signed by the panch witnesses it is stated that the panchas were called by the police on road in front of Room No. 1469, Chawl No. 184 and the recoveries effected. The panch witnesses have fully proved the panchanamas. If in a statement recorded after about two months the accused tried to mislead the court by making a different statement regarding the recovery of the weapon of offence, no credit of it should have been given to him. If the prosecution had successfully proved the panchanamas, it was not proper for the court to fish out a contradiction regarding the recovery and seizure of the weapons on the ground of subsequent confessional statement of the accused recorded on 28th August, 1995. The Court was only concerned with the corroboration of the factum of recovery mentioned in the confessional statements. If the weapons had actually been recovered, no fault can be found with the confessional statements on account of alleged contradiction. We are further of the view that a perusal of the confessional statement of A5 did not disclose that he had stated anywhere that the weapons were actually recovered from his house. What he had stated in his confessional statement was that the weapons which he had kept in his house were produced and handed over to the police which the prosecution fully proved by Panchanama Exhibit 119. The statement of A6 relating to the recovery of weapons from the house of A5 could not have been made a basis for holding that there existed contradiction which persuaded the court not to believe the recoveries as a piece of corroborative evidence. Much has been made out from the display of seized weapons at the Press Conference held by the police after the arrest of the accused. Such an information is based upon the press reports published in the newspapers. The Joint Commissioner of Police who held the press conference stated that if any good work is done with a good detection relating to crime, occurrence of which had been earlier reported in the press or the accused of serious offence or the shooters in the case as may be arrested then to enhance the image of the police in the public, a wide publicity is usually given for which press conferences are held. He presided over the press conference on 3.7. 1995 and as he had got information from the DCP about the seizure of weapons. He stated that he directed those officers to produce one AK 56 assault rifle and smaller weapons winch were to be displayed in the press conference. According to him such weapons were available with the Special Operation Squad Branch. According to him similar weapons like the weapons seized from the accused were displayed in the press conference. When a question was put to him as to whether there was any hitch in displaying the seized articles and showing the same to the press persons, he replied that normally there was no hitch and in that particular case because of the lack of time to the DCP he might not have been able to bring the seized weapons. The seized weapons were shown in the office of CID Crime in the same building where the office of the Joint Commissioner of Police is also located. There was no cause or occasion for the court to disbelieve the testimony of the Joint Commissioner of Police. Holding that the only seized weapons were shown to the press, the trial court committed a mistake and it has unnecessarily tried to make a mountain out of mole on such a frivolous ground. Similarly there is no substance in the submission made on behalf of A5 and A6 that they were not properly identified in the test identification parade. After holding the confessional statements of A5 and A6 to be voluntarily made and legally admissible in evidence, there is no much significance of the identification parade. We, therefore, hold that the trial court committed a mistake of law in not relying upon the confessional statements of A5 and A6 to ascertain their involvement in the commission of crime with which they were charged. Confessional statements having been proved to be voluntarily made and legally recorded, which generally stood corroborated, were sufficient to hold that the aforesaid persons were guilty of hatching the conspiracy with A7 to A13 for commission of offence with which they were charged. Setting aside the judgment of the trial court to that extent we convict A5 and A6 for the offences under Sections 302, 307 read with Sections 120B, 23, 114 of the Indian Penal Code, Section 3 read with Sections 25(1-B)(a), Section 5 read with Section 27 of the Arms Act, Sections 3(2)(i), 3(2)(ii), 3(3), 3(5), 5 and 6 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. We are, however, of the opinion that being mislead youth they do not deserve the maximum penalty imposable under law and the case is not the rarest of the rare cases warranting death sentence. Subhash Bind (A 5) and Shekhar Kadam (A6) are, therefore, sentenced to life imprisonment for the major offence of murder, punishable under Section 302 read with Section 120B of the IPC. We do not award separate sentences to the aforesaid accused persons for the other offences committed by them. Under the circumstances of the case, the appeal is partly allowed by setting aside the judgment of the trial court by which A3, A5 and A6 were acquitted. Holding A3 guilty for the commission of the offence punishable under Section 384 read with Section 34 of the IPC we convict him for the same. He is sentenced to rigorous imprisonment for two years with fine of Rs. 5,000/-. In case of default in the payment of fine, the said accused shall undergo further imprisonment of six months. A5 and A6 are convicted for the offences under Sections 302, 307 read with Sections 120B, 23, 114 of the Indian Penal Code, Section 3 read with Sections 25 (1-B) (a), Section 5 read with Section 27 of the Arms Act, Sections 3(2)(1), 3(2)(ii) , 3(3), 3(5), 5 and 6 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, and sentenced to life imprisonment for the major offences. We do not award separate sentences for the other offences. A3, A5 and A3 are directed to surrender to serve the remaining part of their sentences. The judgment of the trial court so far as A1, A2 are concerned, is upheld and their acquittal maintained. (Paras 58 to 64)