TaxTMI 
TaxTMI 
TaxTMI 
2001 (7) TMI 1281
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....orld, 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 positio....
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....de (hereinafter referred to as "the IPC"), 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 (hereinafter referred to as "the TADA Act") for having committed the murder of one Pradeep Jain, a young businessman, on 7.3.1995 in the commercial capital of India, i.e., Mumbai at about 7.30-8.00 p.m. and also attempting to murder the other brother, Sunil Jain. The deceased was murdered and his brother injured in furtherance of the conspiracy hatched by the respondents with other absconding accused. The crime was committed in the office of the company of the Jain Brothers, known as "Kamla Constructions". The accused persons, namely, Salim Abdul Salim (A8), Abu Salem (A9), Rajesh Igwe (A10), Sunil Nair (A11), Udai Pawar (A12) and Sanjay Kadam (A13) were declared absconders and have not faced the trial yet. Bharat Chaganlal Raghani Respondent No.1 (A1)is a Solicitor, Rajan Robert Fernandes, respondent No.2 (A2) and Shaukatali Jamal Mistry @ Chauhan, respondent No.4 (A4) are the brokers, Subbedarsingh Ramdas Si....
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....ect to the disposal of the property referred to as the property (B) which ultimated resulted in the commission of the crime of murder. A3 claiming to be the owner of the property, referred to as Property (B) wanted to dispose of it to Labh Constructions of Ahmedabad for which an Agreement Exhibit 93 was executed on 1.11.1994. A3 claimed that he and Matbadal Yadav had purchased the landed property from Dastur Narayan Ramchander and Lawrence Winston Misquetta. He referred to various agreements allegedly executed by Matabadal Yadav and his heirs and represented to the Labh Constructions that in the premises mentioned in the agreement Exhibit 93, he had a right in the property which he wanted to transfer on the terms and conditions specified therein. The property was agreed to be sold for the lumpsum price of ₹ 10.93 crores to be paid to A3 in the manner specified in clauses (a), (b) and (c) of Condition No.1 of the Agreement. Condition Nos.3 and 4 of the Agreement provided: "3. Upon the said certificate under Chapter XX-C of the Income Tax Act having been obtained, the purchaser shall deposit with the Vendor's Advocates & Solicitors Messrs. Haridas & Co. the said sum o....
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....rious meetings are shown to have been held in the office of A1. In those meetings, A1 is alleged to have told the Jain Brothers that there was no substance in their documents. In one of the meetings A4, allegedly belonging to the gang of Dawood Ibrahim, threatened Jain Brothers that unless they signed the deeds prepared by A1, they would not be allowed to leave the office alive. Such threats are stated to have been given in the presence of A1, who despite protest from the deceased, did not take any action against anyone nor did he dis- associate himself from the said accused. Anand Bhat (PW14), another solicitor was initially engaged by Labh Constructions for the purposes of getting the deal completed with A3. In October, 1994 Anand Bhat is stated to have received a document Exhibit 78 purporting to be a draft agreement prepared by Haridas & Company, the firm of solicitors of A1. By letter (Exhibit 79), Labh Constructions directed the solicitor firm of PW14 to hand over a sum of ₹ 45 lakhs to the solicitor firm of A1. PW14 went to the office of A1 and personally handed over the cheque of ₹ 45 lakhs. It is in the evidence that sometime in August, 1994 A4 visited the off....
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....that they had no time to meet the Jains. When Pradeep Jain stated that he was not interested in getting the money, A4 threatened by saying that if he did not accept the money and surrender the rights, the said money would be treated as "Supari" for the murder of Jain Brothers (Supari is a marathi word which stands for beetleput and in common parlance it has gained the meaning of money for contract killing). In all the six meetings which were held in the office of A1, the Jain Brothers were insisted to take decision quickly for surrendering their rights. As the Jain Brothers did not give up their claims at any cost, the transaction in favour of Labh Construction did not materialise. The immediate loser on account of delay was A3. A2, A3 and A4 are stated to be having maintained a regular liaison with Abu Salem (A9), known to be the right hand man of Dawood Ibrahim. The said A9 was contacted by A2, A3 and A4 on telephone Nos.226670, 242939 at Dubai. One day in the second week of February, 1994 at about 10 p.m. telephone bell rang in the house of Pradeep Jain. When Jyoti Pradeep Jain (PW23), the widow of the deceased picked up the telephone, the caller told her that he was ....
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.... by the Deputy Commissioner of Police on 21st August, 1995 and 28th August, 1995 in exercise of powers vested in him under Section 15 of TADA Act. A4, while in custody of the police, made disclosure statements pointing out a number of communication centres from where he made telephone calls to Abu Salem on various occasions. Consequently, the police collected bills Exhibits 200, 203, 204, 205, 206 and 207 from those communication centres. Exhibit 200 indicated that a call was made on 7.3.1995 on telephone No.226670 of Dubai at about 5.35 p.m. On 12.4.1995 A4 pointed out certain other communication centres, in consequence of which Bills Exhibits 210, 211, 212 were collected. Dr.Ashok Shinde who conducted the post mortem on the body of the deceased noticed in all 29 fire arm wounds of entry and exit altogether. In his post-mortem notes Exhibit 122, the Doctor stated that the cause of death was due to fire arm injuries. The injury certificate in respect of Sunil Jain (PW15) is Exhibit 124 which indicates that there a gun wound on the anterior and posterior aspect of the right arm. After the framing of charges for the offences as noticed earlier, all the six accused persons, facing t....
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....was falsely implicated. A3 also admitted the geneological tree of the Yadav Family and claimed that Koldongri property was not the joint family property of the four Yadav Brothers. He claimed that all the documents referable to him Exhibits 107, 108, 109, 110, 111, 112, 113, 114, 116, 131 and 138 were the genuine documents. He claimed his interest in the property as of right and not on the basis of fake documents. He admitted the fact of Kamla Constructions having purchased the portion of the property marked "A" in Exhibit 49 and construction of two buildings thereon. He denied of having knowledge about the documents executed by Yadav Brothers in favour of Kamla Constructions. He admitted the receipt of ₹ 5 lakhs from Haridas & Company of A1. He also admitted that the draft of documents Exhibits 76 and 77 were prepared by A1. He denied of having any knowledge about the activities of underworld don Dawood Ibrahim and his aides. He denied of having ever visited the office of Kamla Constructions. According to him Ashok Jain and Rakesh Jain had come to his shop and from there they took him to the office of A1 where they handed over some documents to the said accused. No....
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....PW32), Jyoti Pradeep Jain (PW33), Ramashankar R. Yadav (PW34), Ramroop B. Yadav (PW35), H.C. Waman J. Bagul (PW36), PSI Satish M. Gadhve (PW37), DCP Kausha K. Pathak (PW38), Suhel M.S. Buddha (PW39), Jayant K. Kher (PW40), SEM Satyaprakash Sarda (PW41), H.C. Rajaram S. Patil (PW42), API Yeshwant R. Nerkar (PW43), Arundhati A. Walawalkar (PW44), Ashok Jain (PW45), PI Jadhav (PW46), Vishwajit Bhusane (PW47), ACP Anil Talade (PW48), Jt.Commissioner of Police (PW49), besides hundreds of documents which were legally proved and exhibited at the trial. Prosecution also relied upon confessional statements of Subhash Bind A5 and Sekhar Kadam A6. A5 and A6 produced four witnesses in their defence. Namdeo (DW) is the father of A6 who has stated that on 3.7.1995 at about 3.30 a.m. the DCM officers of the CID entered in his house and took away A6 in a white Ambassador Car telling that the said accused will be released in the morning after his elder son returns. Ramjeevan Yadav (DW2) stated that on 3.7.1995 at about 8.00 a.m. A6 along with some officers came to the house of A5 . They had tethered the hands of A5 by rope and took him away in the car. Anil Kumar Singh (DW4) who is a Press Reporter....
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....peaking from the office of Bharat Raghani. (10) Accused No.4 Shaukatali about 8-10 days prior to the date of offence asked PW12 Abdul Kadir Shaikh, that he would advise his friend Pradeep Jain that "Pradeep Jain balbacchewala aadmi hai, usne gali Diya hai, usko bolo mafi maang lo, baat khatam ho jayegi." These words he had uttered after telephoning the witness that Pradeep Jain had abused Abu Salem. Accused No.3, a day or two thereafter, again inquired with this witness as to whether he had spoken about the same to Pradeep Jain. The witness avoided to tell the truth telling that he did not meet Pradeep Jain and he should not talk on that matter again to him. Still a day or two thereafter, Shaukatali telephoned him and inquired with him as to whether he had any discussions with Pradeep Jain and then he told him that he should not contact him again on that count and saying so, he disconnected the phone. (11) On 27.2.95, as is seen from the statement of PW30 Kirti Shrivastav, accused No.4 Shaukatali and one other person were seen talking Pradeep Jain and in that Pradeep Jain told accused No.4 Shaukatali "Mai who sab nahi Janata, mere to film business hai, aap log mere....
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....racy to kill Pradeep Jain or to attempt to kill Sunil Jain. thus looking to all these circumstances, it appears to the judicial mind that these circumstances fall short in concluding that there existed a conspiracy to kill Pradeep Jain and attempt to kill PW15 Sunil Jain". The Court further held: "Had the witnesses of all the communication centres also identified the accused telling that they had visited their communication centres and they had contacted on the particular number at Dubai, then in that event, this would have been an additional circumstance against the accused. Then in that event, this would have been an additional circumstance against the accused. the confessional statements had they been believed by the court, would have been sufficient to hold that the particular number was used for contacting Abu Salem at Dubai." 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 ....
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....f this Court in Mr.Sharafathussain Abdulrahaman Shaikh & Ors. vs. State of Gujarat & Anr. [1996 (4) Crimes 244 (SC)] the Court held that "absence of the certificate below the confessional statement will not make the confessional statement ipso facto a piece of paper worth throwing in the dustbin. The officer can very well appear in the witness box and satisfy the court that the confessional statement was voluntarily made....". The trial court further held that "looking to the statement of DSP it appears that the confessional statements have been made voluntarily by the accused". Rule 15 of the TADA Rules provide: "15. Recording of confession made to police officers. --(1) A confession made by a person before a police officer and recorded by such police officer under Section 15 of the Act shall invariably be recorded in the language in which such confession is made and if that is not practicable, in the language used by such police officer for official purposes or in the language of the Designated Court and it shall form part of the record. (2) The confession so recorded shall be shown, read or played back to the person concerned and if he does not underst....
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....g 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....
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....alent rank, should investigate any office punishable under this Act of 1987. This is necessary in view of the drastic provisions of this Act. More so when the Prevention of Corruption Act, 1988 under Section 17 and the Immoral Traffic Act, 1956 under Section 13, authorise only a police officer of a specified rank to investigate the offences under those specified Acts. (5) The police officer if he is seeking the custody of any person for pre-indictment or pre-trial interrogation from the judicial custody, must file an affidavit sworn by him explaining the reason not only for such custody but also for the delay, if any, in seeking the police custody; (6) In case, the person, taken for interrogation, on receipt of the statutory warning that he is not bound to make a confession and that if he does so, the said statement may be used against him as evidence, asserts his right to silence, the police officer must respect his right of assertion without making any compulsion to give statement of disclousre;" Guideline (3) mandated the concerned Magistrate to scrupulously record the statement if any made by the accused so produced and get his signature. In the event of any complaint ....
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.....8.95, how could the DCP telephone the ACP to collect the packets containing the said confessional statements on 27.8.95 in the evening?" It has come in the evidence of PW38 that the statements of the accused were recorded on 21st August, 1995 and on 28th August, 1995. On the first date, i.e. 21st August, 1995 PW38 had put certain questions to the accused to ascertain as to whether they were making the voluntary statement or such statement was being made under the influence of the police. Despite the fact that the accused persons told PW38 that they were making statements of their own free will, were not under the influence of the police, had not been threatened or lured to make the confessional statements nor assured to be released after making the confessional statements and not bound to make the statement, the accused had replied that they wanted to admit everything, PW38 informed the accused, "I will not record your statement inspite of your willingness to do so. You are being given time till 28th August, 1995 to think over it. Do you understand this??. the DCP then recorded that accused were being given time till 28th August, 1995 to finally make their mind. He reco....
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....nk refer to the name of "Kushal Kumar Pathak, IPS and dates of 21st August, 1995 and 28th August, 1995". Referring to such bold letters in darker ink and some space in typing, the trial court held, "great room of doubt is created in the mind of the court that the confessional statements Exhibits 147 and 148 are ante dated statements". To a question: "You referred to the writing reading 'Kaushalkumar Pathak' and writing reading 'Bhalwankar A.N.' and the writing reading '21' and the writing '11.45' and the writing '923/Upa' and the writing '8.8.1995' and the writing 'Vilas Madhukar Dabhokar' and the writing 'Bhalwankar A.N.' in Ex.147 on page one and the writing '28.8.95' on page No.2 and the writing '28.8.95' and '28.8.95' on page 3 and the writing on the same line in Ex.148 and the further writing '28.8.95' '21' on page 1 of Ex.149 and similar writing on Ex.150 and tell the court as to whether those appears to be the blanks filled up subsequently?", the witness (PW38) replied that there were no blanks filled in, but the typist might have pressed the ....
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....confessional statement, when appeared in the Court did not testify about his such satisfaction or belief. That is not the position in the present case where PW38 has categorically stated that "I was satisfied that he was voluntarily making the confessional statement. Still I give him time to think over the matter. I also warned him that he will be called again on 28th August, 1995 for recording the confessional statement.... From the question I had put and the replies which he had given, I was convinced that the accused is giving the statement voluntarily." 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. In his confessional statement Subhash Bind (A5) had stated that at the time of murder of Pradeep Jain, he along with Rajesh Igwe (A10), Sunil Nair (A11), Udai Pawar (A12), Sekhar Kadam (A6) and Sanjay Kadam (A13) were present at the place of occurrence. He was friendly with Udai Pawar (A12), Sekhar Kadam(A13), Rajesh Igwe (A10), Sunil Nair (A11), and Sa....
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....him to the office at the point of revolver and Udai Pawar and Sekhar Kadam were supposed to be on the main gate to ensure that none else entered the premises. Sanjay Kadam was to stand on the road to keep a watch outside. On 7.3.1995 in the evening Subhash Bind (A5), along with Rajesh Igwe (A10), Sunil Nair (A11), Udai Pawar (A12), Sekhar Kadam (A6) and Sanjay Kadam (A13) assembled on the ground behind the house of Sunial Nair at Motilal Nagar No.1. He took revolver .38. Sekhar Kadam had a small pistol of 7.65 bore whereas Udai Pawar had a small pisto of .32 bore. A5 had brought one 9 mm revolver and .38 bore revolver in a plastic bag. 9 mm pistol was taken by Rajesh Igwe and .38 bore revolver was taken by Sunil Nair. All the weapons were filled with live cartridges. After the distribution of weapons behind the house of Sunil Nair, all the aforesaid accused persons travelled by bus route No.252 to the house of Pradeep Jain at about 1930 hours. They stood at some distance in front of the bunglow and kept a watch. At about 8 or 8.15 p.m., the watchman of Pradeep Jain came out with the kids. While he was going in, the small kids ran inside. When watchman was walking towards the gate, ....
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....al, learned Senior counsel appearing for A1 drew our attention to the statement of Sunil Jain (PW15) wherein he had stated "I do not remember if I stated before the police that Shaukatali visited our office 15 times before Diwali". He had stated in his examination-in-chief that in the fourth meeting held in the office of A1 which was attened by the witnesses Ashok Jain, Pradeep Jain, A1, A2, A3, A4 and four-five other persons, the accused persons had threatened Jain Brothers that without signing the document they will not reach the downstairs alive. In cross-examination he reiterated that, "I had stated before the police that when we were sitting in the chair the persons on the side of the accused who were sitting on the other chairs at times got up and took the posture to indicate that they were likely to use force, Pradeep told Raghani then that you are a famous solicitor and such things should not happen in your office I gathered an impression that accd No.1 Raghani had gone through the documents still he did not open his mouth when other threatened us in the meeting, in that meeting they all threatened us that without signing the documents if we dare to go downst....
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....the Oxford Dictionary means to affirm to the contrary. Section 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross-examination Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police officer - in the sense we have indicated - and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co- exist, it may be said that one contradicts the other. It is broadly contended that a statement includes all omissions which are material and are such as a witness is expected to say in the normal course. This contention ignores the intention of the legislature expressed in S.162 of the Code and the nature of the non-evidentiary value of such a statement, except for the limited purpose of contradiction. Unrecorded statement is completely excluded. But recorded one is used for a specified purpose. The record of a statement, however, perfunctory, is assumed to give a sufficient guarantee to t....
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....on. Disbelieving the portion of the statement relating to the threats given by the said accused to the Jain Brothers, the prosecution has placed on record sufficient evidence to show that Shaukatali A4 had been visiting the Jain Brothers and compelling them to complete the transaction by executing the release deeds in favour of A3. 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 determin....
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....d in the charge but if the offence under Section 306 IPC is made out in the evidence, it is permissible for the court to convict the accused for the latter offence. The only safeguard provided is that the alteration of the charge and conviction for a minor offence should not cause failure of justice to the accused person. 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 c....
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....cused, 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 t....
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.... 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....
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.....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. W....
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.... 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 t....