tada court mumbai judgement abu salem case

8/9/2019 TADA Court Mumbai Judgement Abu Salem Case

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Judgment in TADA Spl 1 25th February, 2015Case No 01 o! 200"

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


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)


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)


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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Judgment in TADA Spl # 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $ 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl " 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl % 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl & 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl ' 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 1# 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 1$ 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 1" 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 1% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 1& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 1' 25th February, 2015Case No 01 o! 200"

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.

21




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

22




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

23




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

24




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

25




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

27




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

28




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

29



Judgment in TADA Spl #0 25th February, 2015Case No 01 o! 200"


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

31





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

32




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

33



Judgment in TADA Spl ## 25th February, 2015Case No 01 o! 200"

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

34



Judgment in TADA Spl #$ 25th February, 2015Case No 01 o! 200"

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

35




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-

36



Judgment in TADA Spl #" 25th February, 2015Case No 01 o! 200"

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

37



Judgment in TADA Spl #% 25th February, 2015Case No 01 o! 200"

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.

38



Judgment in TADA Spl #& 25th February, 2015Case No 01 o! 200"

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

39



Judgment in TADA Spl #' 25th February, 2015Case No 01 o! 200"

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.

40



Judgment in TADA Spl $0 25th February, 2015Case No 01 o! 200"

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

41




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

42




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

43



Judgment in TADA Spl $# 25th February, 2015Case No 01 o! 200"

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.

44



Judgment in TADA Spl $$ 25th February, 2015Case No 01 o! 200"

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.

45




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,

46



Judgment in TADA Spl $" 25th February, 2015Case No 01 o! 200"

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

47



Judgment in TADA Spl $& 25th February, 2015Case No 01 o! 200"

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

49



Judgment in TADA Spl $' 25th February, 2015Case No 01 o! 200"

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

50




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

51




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

52




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

53




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

54




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

55




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

56




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,

57




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

58




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

59




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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Judgment in TADA Spl "1 25th February, 2015Case No 01 o! 200"

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

62




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

63



Judgment in TADA Spl "# 25th February, 2015Case No 01 o! 200"

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

64



Judgment in TADA Spl "$ 25th February, 2015Case No 01 o! 200"

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

65




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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Judgment in TADA Spl "% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl "& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl "' 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl %0 25th February, 2015Case No 01 o! 200"

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

71




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

72




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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Judgment in TADA Spl %# 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl %$ 25th February, 2015Case No 01 o! 200"

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

75




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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Judgment in TADA Spl %" 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl %% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl %& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl %' 25th February, 2015Case No 01 o! 200"

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

81




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

82




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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Judgment in TADA Spl &# 25th February, 2015Case No 01 o! 200"

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

91




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

95




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

100




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

101




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

102




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

125




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

129




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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Judgment in TADA Spl 1#0 25th February, 2015Case No 01 o! 200"

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

131




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

132




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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Judgment in TADA Spl 1## 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 1#$ 25th February, 2015Case No 01 o! 200"

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

135




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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Judgment in TADA Spl 1#" 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 1#% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 1#& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 1#' 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 1$0 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 1$" 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 1$' 25th February, 2015Case No 01 o! 200"

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

150




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

152




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,

153




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.

154




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

155




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',

156




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

157




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,

158




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

159




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

200




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

201




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

215




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

219




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

220




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

221




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);

222




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.

223




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.

224




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

225




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.


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

226




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

227




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

228




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

229




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.

230




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

231




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

232




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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Judgment in TADA Spl 2## 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 2#$ 25th February, 2015Case No 01 o! 200"

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

235




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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Judgment in TADA Spl 2#" 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 2#% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 2#& 25th February, 2015Case No 01 o! 200"

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.


Cases 254 (not cited at bar), this cannot go to the root of the matter and

vitiate the entire proceeding.

239




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

241




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

242




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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Judgment in TADA Spl 2$$ 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 2$" 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 2$% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 2$& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 2$' 25th February, 2015Case No 01 o! 200"

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.

250




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

251




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

252




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

253




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.

254




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

255




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

256




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

257




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,

258




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

259




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

260




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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Judgment in TADA Spl 2"# 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 2"$ 25th February, 2015Case No 01 o! 200"

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.

265




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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Judgment in TADA Spl 2"& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 2"' 25th February, 2015Case No 01 o! 200"

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.

270




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

271




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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Judgment in TADA Spl 2%# 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 2%$ 25th February, 2015Case No 01 o! 200"

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

275




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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Judgment in TADA Spl 2%" 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 2%% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 2%& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 2%' 25th February, 2015Case No 01 o! 200"

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

280




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

281




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

282




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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Judgment in TADA Spl 2&# 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl 2&$ 25th February, 2015Case No 01 o! 200"

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

285




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.

290




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

291




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

292




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

295




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

300




(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

301




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

302




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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Judgment in TADA Spl #0$ 25th February, 2015Case No 01 o! 200"

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

305




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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Judgment in TADA Spl #0" 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #0% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #0& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #0' 25th February, 2015Case No 01 o! 200"

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

310




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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Judgment in TADA Spl #1# 25th February, 2015Case No 01 o! 200"

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

316




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

317




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

319




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

321




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

322




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

323




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

324




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

325




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

326




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.

327




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

331




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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Judgment in TADA Spl ### 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl ##$ 25th February, 2015Case No 01 o! 200"

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

335




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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Judgment in TADA Spl ##" 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl ##% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl ##& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl ##' 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #$0 25th February, 2015Case No 01 o! 200"

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

341




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

342




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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Judgment in TADA Spl #$# 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #$$ 25th February, 2015Case No 01 o! 200"

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

345




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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Judgment in TADA Spl #$" 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #$% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #$& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #$' 25th February, 2015Case No 01 o! 200"

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.

350




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

351




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

352




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

353




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

354




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

355




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

356




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

357




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

358




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

359




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

361




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

362




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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Judgment in TADA Spl #"# 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #"$ 25th February, 2015Case No 01 o! 200"

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

365




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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Judgment in TADA Spl #"% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #"& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #"' 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #%0 25th February, 2015Case No 01 o! 200"

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

371




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

372




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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Judgment in TADA Spl #%# 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #%$ 25th February, 2015Case No 01 o! 200"

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

375




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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Judgment in TADA Spl #%" 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #%% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #%& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #%' 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #&0 25th February, 2015Case No 01 o! 200"

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

381




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

382




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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Judgment in TADA Spl #&# 25th February, 2015Case No 01 o! 200"

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

385




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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Judgment in TADA Spl #&" 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #&% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #&& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #&' 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #'0 25th February, 2015Case No 01 o! 200"

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.

391




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.

392




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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Judgment in TADA Spl #'# 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #'$ 25th February, 2015Case No 01 o! 200"

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

395




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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Judgment in TADA Spl #'" 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #'% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #'& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl #'' 25th February, 2015Case No 01 o! 200"

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.

400




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

401




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

402




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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Judgment in TADA Spl $0$ 25th February, 2015Case No 01 o! 200"

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

405




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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Judgment in TADA Spl $0" 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $0% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $0& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $0' 25th February, 2015Case No 01 o! 200"

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.

410




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

411




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

412




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

413




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

414




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

415




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.

416




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,

417




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

418




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

419




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.

421




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

423




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

424




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

425




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

426




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

427




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

428




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

429




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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Judgment in TADA Spl $#0 25th February, 2015Case No 01 o! 200"

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

431




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

432




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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Judgment in TADA Spl $## 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $#$ 25th February, 2015Case No 01 o! 200"

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

435




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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Judgment in TADA Spl $#" 25th February, 2015Case No 01 o! 200"

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

437



Judgment in TADA Spl $#% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $#& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $#' 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $$0 25th February, 2015Case No 01 o! 200"

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

441




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

442




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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Judgment in TADA Spl $$# 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $$$ 25th February, 2015Case No 01 o! 200"

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

445




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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Judgment in TADA Spl $$" 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $$% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $$& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $$' 25th February, 2015Case No 01 o! 200"

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

450




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

451




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

452




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

453




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

454




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

455




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

456




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

457




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

458




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

459




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

461




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

462




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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Judgment in TADA Spl $"# 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $"$ 25th February, 2015Case No 01 o! 200"

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

465




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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Judgment in TADA Spl $"" 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $"% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $"& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $"' 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $%0 25th February, 2015Case No 01 o! 200"

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.

471




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

472




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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Judgment in TADA Spl $%# 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $%$ 25th February, 2015Case No 01 o! 200"

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

475




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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Judgment in TADA Spl $%" 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $%% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $%& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $%' 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $&1 25th February, 2015Case No 01 o! 200"

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.

482




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

483



Judgment in TADA Spl $&# 25th February, 2015Case No 01 o! 200"

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



Judgment in TADA Spl $&$ 25th February, 2015Case No 01 o! 200"

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

485




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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Judgment in TADA Spl $&" 25th February, 2015Case No 01 o! 200"

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,

487



Judgment in TADA Spl $&% 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $&& 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $&' 25th February, 2015Case No 01 o! 200"

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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Judgment in TADA Spl $'0 25th February, 2015Case No 01 o! 200"

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

491




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

492




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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Judgment in TADA Spl $'# 25th February, 2015Case No 01 o! 200"

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.


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.


for the offence punishable u/sec. 3 sub-section (2) sub-clause (ii) of the

494



Judgment in TADA Spl $'$ 25th February, 2015Case No 01 o! 200"



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.


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.


for the offence punishable u/sec. 3 sub-section (5) of the Terrorist And


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

495




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.


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.


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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Judgment in TADA Spl $'" 25th February, 2015Case No 01 o! 200"


convicted for the offence punishable u/sec. 3 sub-section (3) of the




of payment of fine, he has further to undergo Rigorous Imprisonment of

One Year.


convicted for the offence punishable u/sec. 3 sub-section (5) of the





One Year.


convicted for the offences punishable u/sec. 5 of the Terrorist And


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


six months.

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Judgment in TADA Spl $'% 25th February, 2015Case No 01 o! 200"


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.



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.











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Judgment in TADA Spl $'& 25th February, 2015Case No 01 o! 200"



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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Judgment in TADA Spl $'' 25th February, 2015Case No 01 o! 200"

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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tada court mumbai judgement abu salem case

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