SIMON AND ORS.versusSTATE OF KARNATAKA

                          SIMON AND ORS.                                  A
                                v.
                       STATE OF KARNATAKA

                          OCTOBER 16, 2003

           [Y.K. SABHARWAL AND B.N. AGRAWAL, JJ.]
                                                                          B

      Penal Code, 1860: Sections 120B, 148, 143, 307, 149 and 302:

       Terrorist and Disruptive Activities (Prevention) Act, 1987: Sections
 3, 4, 5 and 15 :                                                           C

      Arms Act, 1959-Section 25 :

        Procecution for offences u/ss. l 20B, 148, 302 and 307 lPC and
  Section 25.of Arms Act-Assault by fire arms on police party-Resulting D
  in 7 deaths and injuries to many-16 eye-witnesses to the incident-
  lndentification of 3 of the accused by 2 eye-witnesses-Accused not
  identified by complainant who was accompanying the 2 eye-witnesses-
  Name of the accused not in original but in the altered FIR-Confessional
  statement by one of the accused-Cofession made in the presence of
· Investigating officer immediately after his arrest-Confessional statement E
  of accused interpreted to Recording Officer by Investigating Officer-
  Conviction by Designated Court relying on the confessional statement of
  the accused and evidence of the 2 eye-witnesses-On appeal, held :
  Conviction of accused is not sustainable and they are entitled to benefit
  ofdoubt-Evidence oftwo eye-witnesses and the confessional statement do F
  not inspire confidence-Terrorist and Disruptive Activities (Prevention)
  Rules, 1987-Rule 15(1).

       Prosecution under Sections l 20B, 143, 302, 307, 149 /PC and
 Section 25 of Arms Act-Name of accused in FIR-No other evidence to G
 connect him to the crime-Another accused had the same name-Conviction
 by Designated Court-On appeal, Held : On the facts of the case,
 conviction not maintainable-Accused entitled to benefit of doubt.

      Prosecution u/s. 5 of TADA Act-Accused found in possession ofgun,
 gun powder and pellets-Conviction by Designated Court-On appeal, H
                                   869
    870               SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A held : Jn the facts of the case conviction not sustainable as prosecution
    failed to prove possession of gun by accused.

          Section I 5 of TADA Act-Confessional statement-Recording of-
    Requirement of amount of time given to accused to think whether he
B   wanted voluntarily to make the statement-Held: there cannot be general
    practice, in such matters-Time for thinking would depend upon facts of
    each case and likely to differ from one accused ~o another. '

         On getting information about Veerappan and his gang, police
   party, 5 in a car and 22 in a lorry proceeded. The car and lorry were
C allegedly attacked by the appellant alongwith others with bombs and
   firearms, resulting in death of 7 people and injuries to many. 76
   persons including the appellant-accused were prosecuted. There were
   16 eye-witnesses to the incident including PWs 31, 32 and 33. PW33
   had lodged the complaint on the basis of which FIR was lodged.
D Initially FIR was lodged on the day of incident itself: Thereafter
   altering the Original FIR second FIR was recorded. FIR contained the
   name of appellant No. 4. PW-33 had seen appellant No. 4 on the scene
   of incident but he did not identify him in the Court or at any other
   point of time. PWs 31 and 32 had identified appellant Nos l, 2 and 3.
E However, their names did not find place in FIR. Appellants 4 and 5
   were not identified by any of the witnesses. There was also another
   accused by the same name as that of appellant No. 4. Prosecution relied
   upon 59 confessions. The confessional statement of appellant No. 2 was
   recorded immediately after his arrest and in the presence oflnvestigating
   Officer. He was given only 5 minutes to think as to whether he
F voluntarily wanted to make the confessional statement. The Investigating
   Officer alone could understand as to what the accused was stating in
   Tamil and translated it to the Officer recording the confession in
   Kannada and again he translated the statement from Kannada to
   Tamil and read over to the appellant. There was no attempt on the part
G of the Recording Officer to arrange for an independent interpretor.
   The statement was not produced before the Magistrate on the next date
   when the accused was produced before him, but the same was filed
   later. The copy of the statement was not supplied to the appellant for
   nearly 7 years. As per PW 120, in the altered FIR, names of some of
H, the accused were collected by referring to previous FIRs.
                          SIMON v. STATE                          871
     Appellant No. 5 was prosecuted for the offence for being found A
in possession of country made gun, gun powder and pellets. The gun
was marked as M0-112. According to the testimony of PW-101 he did
not seize and pack the gun at the place of apprehension of the accused
and it was also not checked whether the gun was in working condition
and the description of the weapon was also not noted. On the contrary B
PW 23 deposed that the seized gun was M0-37; that the portion near
the trigger had been damaged; and that he did not find out whether
M0-37 could be operated. PW 120 had deposed that before procurement
of Panchas gun was taken in possession by the police; and that at the
time of appellant's arrest Panchas were not secured.
                                                                        c
     Designated Court rejected all the confessional statements except
that of appellant No. 2. 7 accused including 5 appellants were convicted.
Appellant Nos. 1, 2 and 3 were convicted for the offence u/ss. 120B,
148, 143, 307, 149 and 302 IPC, and u/s. 25 of Arms Act, 1959.
Appellant No. 4 was convicted u/ss. 143, 120B, 302, 307 and 149 IPC
and u/s. 25 of Arms Act. Appellant No. 5 was convicted for offence .;·
u/s 5 of TADA Act and u/s. 25 of Arms Act. The two other accused
were convicted u/s. 5 of TADA Act. Hence the present appeals. The two
other accused having already undergone sentence, did not prefer
appeal.                                                                   E

     Allowing the appeals, the Court

     HELD : 1.1. It is not possible to sustain the conviction of appellant
Nos. 1, 2 and 3, relying solely on the testimony of PW-31 and PW-32,
which does not inspire confidence. Thus, these appellants are entitled F
to be given the benefit of doubt. (885-H, 886-A)

       1.2. The evidence on record shows that on the day of incident
itself, PW-31 met PW-112, and disclosed to him the names of these
accused. Likewise, the names were also disclosed by PW-31 to DIG who G
has not been produced before the trial Court. Further, when PWs. 31
and 32, were talking to DIG and when PW-31 narrated the entire
incident, including the names of the persons he had 'seen, to the DIG,
PW-33 was also present as per the depositiQn of PW-31. Not only this,
the names were also disclosed to Assistant Commissioner of Police. He H
    872               SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A too was not examined. Further, the evidence of PW-31 also shows that
    at the spot and thereafter till he remained admitted in the hospital,
    PW-31 had occasion to meet Special Tax Force personnel and other
    persons associated therewith who.were told the names of the persons
    who were involved in the encounter. In the light of such overwhelming
B   evidence, it is highly doubtfurthat their names would not be disclosed
    to PW-33 and for that reason they would not find a mention in the
    F.I.R. Further, it is evident from the evidence that the attack on the
    car and the lorry was being made from a distance of about 100 ft. from
    a hillock and having regard to the topography of the area, it is highly
C   doubtful if it was possible to identify the attackers. From the testimony
    of t~e other witnesses, it appears that they could only see the profile
    of the attackers and not the attackers as such so as to conn~ct them
    with the commission of the crime. [884-G-H, 885-A-D]

          2.1. It is a strange and wholly unwarranted procedure which the
D Recording Officer was adopting as a matter of practice in recording
    confessional statem·ent of the accused. In such matters, there cannot
    and ought not be any generalization. How much time, if any, is
    required to be given to an accused to coolly think over whether he
    wanted voluntarily to make a confessional statement despite knowing
E   the consequences thereof would depend upon facts of each case and
    likely to differ from one accused to another. There cannot be any
    general practice in such matters. The practice adopted by the Recording
    Officer was, therefore, illegal. [880-E-F]

       2.2. In the present case, .the ~aker of the confession did not know
F the language of the Recording Officer and the Recording Officer did
  not know the language known to the accused. The interpretor was the
  Investigating Officer himself. It is true that under· Rule 15(1) of the
  TADA Rules, if it is not practicable to record the confession in the
  language in which such confession is made, the same can be recorded
G in the language used by the recording police officer for official
  purposes or in the language of the Designated Court. There may not
  be any illegality per se in the recording of the confession in Kannada
  language in the present case for the Recording Officer did not know _
  the language known to the accused, namely, Tamil. But, all the same,
H when such a position is noticed, it becomes the bounden duty of the
                          SIMON v. STATE                           873

recording officer, who, in terms of Section 15 of the TADA Act, has A
to be a police officer not lower in rank than a Superintendent of Police,
to make an attempt to arrange an independent interpretor. There is
no evidence that any such attempt was made. [882-C-F)

     Gurdeep Singh alias Deep v. State (Delhi Admn.), [2000) 1 SCC 498, B
distinguished.

      2.3. It is the duty of the recording officer to ensure that the
confession is made voluntarily and out of free will by the accused
without any pressure. Except omnibus statement about the general
practice which was being followed by the Recording Officer, there is C
no evidence of any question or attempt being made by the officer to
satisfy himself that the confession was being made voluntarily. This
factor becomes, on the facts and circumstances of the case, very
important since immediately after the arrest, the accused was produced
and the person actively associated with the recording of statement was D
none other than the Investigating Officer who by nature of things is
interested in the success of the prosecution case. Recording of
confessional statement is not a mechanical exercise. A duty has been
cast and considerable amount of confidence has been reposed on a
senior officer under Section 15 of the TADA Act in giving him the duty E
to record the confession and making such a confession before a police
officer admissible in evidence. It is also not in evidence that no person
other than the concerned inspector was available to act as an interpretor.
Recording Officer was aware that the accused produced before him for
recording confession was arrested a few hours prior to the recording F
of his statement. A perusal of his testimony does not show his
awareness about the requirements to be complied with before recording
of the confessional statement. It also appears that 59 confessions were
recorded in routine one after another. The witness states that within
one or two minutes of the recording of confessional statement of one
accused, the other accused used to be produced for recording of. G
confession. Having regard to these factors, it is neither possible nor safe
to base the conviction of appellant No. 2 only on the confessional
statement. That statement does not inspire any confidence. [883-D-H]

     3. Except a mention of the name of appellant No. 4 in the FIR, there H
    874               SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.
A is no other material to connect the said accused with the crime and to
    sustain his conviction. He cannot be convicted merely on account of his
    name having been mentioned in the F.I.R. Further there appear to be
    two persons by his name. Under these circumstances, the conviction and
    sentence of appellant No. 4, cannot be maintained. [877-F-G]
B        4. The prosecution has to prove by cogent evidence the possession
    of the specified arms and ammunition in a notified area. A conjoint
    reading of the testimonies of PW-23, PW 101 and PW 120shows that
    the prosecution has miserably failed to prove the possession of gun by
    appellant No. 5. There is a confusion about the weapon-whether in
C   was M0-37 or M0-112. There is also vital discrepancy as to the place
    at which the possession of the gun was taken. On the facts of the case,
    appellant No. 5 is entitled to benefit of doubt. In this view, conviction
    and sentence of appellant No. 5 is set aside. [879-A-C]

D        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
    430-432 of 2002.

         From the Judgment and Order dated 29.9.2001 of the Special
    Designated Court, Mysore in Special Case Nos. 44194, l l/97 and 3of1998.
E        Colin Gonsalves, P. Ramesh Kumar, John Vincent and Ms. Apama
    Bhat for the Appellants.

          Siddharth Dave, Sanjay R. Hegde for the Respondent.

F         The Judgment of the Court was delivered :

         The Designated Court, Mysore, under the Terrorist and Disruptive
    Activities (Prevention) Act, 1987 (for short, "the TADA Act"), trying
    Special Cases Nos. 44/94, 1l/97 and 3195), convicted and sentenced the
G   appellants in terms of the impugned judgment and order dated 29th
    September, 2001. These appeals have been filed under section 19 of the
    TADA Act by five appellants.

         Appellant No. I Simon was accused No. IO (A-IO), appellant No. 2
H   Kaliappa was accused No. 25 (A-25), appellant No. 3 Bilavendra was
                          SIMON v. STATE                            875

accused No. 27 (A-27), appellant No. 4 Shekara was accused No. 34 (A- A
34) and appellant No. 5 Rama@ Ravana was accused No. 79 (A-79) in
the cases before the Special Judge of the Designated Court at Mysore-.

     Accused Nos. l 0, 25 and 27 have been convicted for offence under
Sections 3, 4 and 5 of the TADA Act, under Sections 120(8), 148, 143, B
307, 149 and 302 l.P.C. and also under Sectfon 25 of the Arms Act. On
each of them, life imprisonment has been imposed. Accused No. 34 has
been convicted for offence under Sections 143, 120(8), 302, 307 and 149
I.P.C. and also under Section 25 of the Arms Act. He has also been ordered
to undergo life imprisonment. Accused No.79 has been convicted for
offence under Section 5 of the TADA Act besides Section 25 of the Arms C
Act and rigorous imprisonment of five years has been imposed on him.

      The case of the prosecution, in brief, is that one Kamalanaika, who
was a police informer, informed Sub-Inspector Shakil Ahmed that Veerappan
and his gang can be found in a particular place selling tusks. This was D
informed by Shakil Ahmed to Harikrishna, Superintendent of Police.
Harikrishna, along which Shakil Ahmed, informant Kamalanaika and three
other persons, started from Ramapura, then in Mysore District, on 14th
August, 1992 for the place with was intimated by the informant. The three
other persons in the car were PC Nagaraju, PW-34, Safiulla, PW-35 and E
Vrishabendra. According to the instructions ofHarikrishna, Superintendent
of Police, 22 persons followed his car in a lorry. At about 1.00 PM on 14th
August, 1992, on Ramapura Dinnahalli Road, 25 Kms. from Rampura, the
car and the lorry were attacked with bombs and firearms. The result was
that seven people - three occupants of the car and four occupants of the
lorry- died. The persons in the car who died were Superintendent of Police F
Harikrishna, PSI Shakil Ahmed and informant Kamalanaika. The four
persons in the lorry who died were Benagonda, Kallappa, Appachu and
Sundara. The prosecution examined various witnesses. Out of the three
saviors from the car, PW-34 and PW-35 were produced as prosecution
witnesses. Out of those who were in the lorry, the prosecution examined G
16 witnesses including PW-3 i Mandappa, PW-32 Haumanthappa and PW-
33 Devendrappa. PW-32 identified accused No.10 Simon, accused No. 25
Kaliappa and accused No. 27 Bilavendra when they appeared in court.
Simon was identified in court by both PW-31 and PW-32. Kaliappa and
Balavendra were identified by PW-3 l only. Accused Shekara (A-34) and H
    876                SUPREME COURT REPORTS (2003) SUPP. 4 S.C.R.

A accused Rama @ Ravana (A-79) were not identified by any of the
    witnesses. PW-33 Devendrappa is the complainant on whose complaint the
    FIR was recorded on the date of the incident itself, namely, 14th August,
    1992, at about 5.45 P.M.

B         The case was filed against 165 persons. Out of them, 76 were arrested
    and - prosecuted. The prosecution had relied upon 59 confessions
    that ·had been recorded: The trial court, however, rejected all the
    confessions except one that was made by Kaliappa (A-25). The trial court,
    on consideration of the evidence, convicted 7 accused of which 5 are in
C   appeal before us.

         Mr. Gonsalves, learned counsel for the appellants submits that the
    other two accused, namely; accused No. 36, Devojinaik, and accused No.
    115, Gulapu, have been convicted for offence punishable under Section 5
    of the TADA Act and sentenced to five years' rigorous imprisonment but
D   they had already undergone the sentence and, therefore, no appeal was
    preferred by the said two accused. The fact of their having already
    undergone the awarded sentence has been mentioned in the impugned
    judgment as well.

E        We have heard Mr. Gonsalves, learned counsel for the appellants, and
    Mr. Siddharth Dave, learned counsel for the respondent-State, and have
    gone through the material on record.

          First we take the case of the appellant Shekara (A-34). The name of
F this accused is mentioned in the F.I.R. dated 14th August, 1992. According
    to the FIR, at about 12.30 p.m. on 14th August, 1992, as per the directions
    of the Superintendent of Police, Mysore District, who was one of the heads
    in the Special Task Force constituted for nabbing Veerappan and his gang,
    the complainant boarded lorry No. KA 10-246 in civil dress. In the said
    lorry, there were other police officers/officials, as named in the FIR,
G   including PW-31 and PW-32. Harikrishna, Superintendent of Police,
    himself drove car No. KA 09-966. Harikrishna asked the lorry to follow
    the car. The car was going .ahead of the lorry. Then the car and the lorry
    were moving on Meenyam road at a distance of about 25 Kms. from
    Ramapura, firing sound was heard when the lorry was near Boodikere cross
H   which was about 1-112 Kms. behind Gajanur village. On reaching near the
                           SIMON v. STATE                             877

car, it was found that the car was found parked on the right side of the A
road and country made bombs were being hurled and repeated firing was
being made on the car. It was also noticed that firing was coming from
the direction of the left side of the hillock and from front side of the car.
The occupants in the lorry jumped down on the road side of the lorry and
returned fire on the opposite direction. Country made bombs were hurled B
on lorry as well. The exchange of fire continued for about an hour from
I p.m. to 2 p.m. Thereafter, PW-33, Devendrappa, and other named
officers went near the car and found that the Superitendent of Police and
the sub-Inspector as also other persons, as noticed hereinbefore, had died.
Number of persons were injured. Meanwhile, one bus No. TNQ 9316 C
"C.M.F." that came from Meenyam towards Ramapura was stopped by
PW-33. The injured staff and dead bodies were put in the bus. Information
of the incident was sent to the police station through wireless. Dead bodies
and the injured were handed over to the police officers near Ramapura by
PW-33 who returned to the spot along with the PSI and DSP of police
station Chamarajanagar to show them the place of incident. It is also D
noticed that at about I p.m., while going towards the spot, at a sharp curve
in the deep forest, Veerappan and his associates Arjunan, Mariyappa,
Kolande, Shekara (A-34), Govinda, Mani and many others, more than 10
to 15 members, blocked the road by boulders by stopping the traffic and
stopped the car and lorry by forming themselves in an unlawful assembly E
by hurling dangerous country made bombs over the convoy and freely
using guns by opening fire. Thus A-34, Shekara, as mentioned in the F.I.R.,
was seen by PW-33 blocking the road by boulders. PW-33 has, however,
not identified Shekara in court or at any other point of time. Except a
mention of the name of Shekara in the F.I.R., no other material has been
brought to our notice to connect the said accused with the crime and to
                                                                              F
sustain his conviction. He cannot be convicted merely on account of his
name having been mentioned in the F.l.R. Further, we may notice that there
appear to be two persons by name of Shekara as is evident from the altered
F.I.R. dated 19th March, 1993. One is mentioned there as accused No. 7
- Shekara @ Kulanoor Shekara, S/o Kandan, Kulannor, - and the other G
the present accused No. 34. Under these circumstances, the conviction and
sentence of appellant No. 4, i.e., Shekara (A-34) cannot be maintained.

    Next, we taken up the case of appellant No. 5, Rama @ Ravana
(A-79). This accused has not been convicted for the offence in relation to H
    878                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A the incident dated 14th August, 1992. He has been convicted for offence
    under Section 5 of the TADA Act for which 5 years rigorous imprisonment
    has been imposed. According to the case of the prosecution, this accused
    was found on 25th March, 1994 in a from land at Sulwadi village in
    possession of country made gun, gun powder and pellets. PW-10 l arrested
B   him along with another and seized gun and gun powder etc. The gun that
    was seized from A-79 was marked as M0-112. Mazhar has been marked
    as Exhibit P-50. According to the testimony of PW-101, he did not seize
    and pack the gun at the gun at the place of apprehension of the accused.
    He also did not check whether the gun was in working condition. At that
    time, he also did not prepare any mazhar. The accused was brought from
C   the place of apprehension which was about 13 to 14 Kms. away to the
    police station Ramapura. The description of-the weapon was also not noted.
    In contrast, PW-23 has deposed that the gun that was seized was M0-37.
    PW-23, who was a mechanic in a work shop, was summoned to lhe police
    station. In the police station, PW-23 deposed that he saw the accused
D   holding a country revolver and gun powder in a plastic cover. He has
    further deposed that a portion near the trigger had been damaged. The
    mazhar, Ext. P-50, was prepared and signed by PW-23. It was further
    di;:posed that he did not find out whether M0-37 could be operated or not.

E         Then, we have the testimony of the Investigating Officer, PW-120,
    who has deposed that by the time panchas were procured, the gun was
    taken in possession by the police. He has further deposed that there were
    houses at a short distance from where the accused was arrested but he did
    not secure panchas at the time of arrest. According to this witness, the gun
    had been taken in possession at the time of the arrest. There is no other
F   relevant evidence except the testimony of the aforesaid three witnesses.

          Though Mr. Dave, relying upon the Constitution Bench judgment of
    this Court inSanjay Dutt v. State through C.B.l Bombay (II), [1994] 5 SCC
    410, contends that the prosecution for securing conviction for offence
G   under Section 5 of the TADA Act has merely to prove possession of
    specified anns and ammunition in a notified area and has not necessarily
    to prove that the same was meant to be used for terrorist or disruptive
    activity. The Constitution Bench has opined, "No further nexus of his
    unauthorised possession of the same with any specific terrorist or disruptive
H   activity is required to be proved by the prosecution for proving the offence
                           SIMON v. STATE                            879

under Section 5 of the TADA Act". The prosecution has, however, to prove A
by cogent evidence the possession of the specified arms and ammunition
in the notified area. In the present case, a conjoint reading of the
testimonies of PW 23, PW lOl and PW-120 shows that the prosecution
has miserably failed to prove the possession of gun by accused No. 79. As
earlier noticed, there is a confusion about the weapon - whether it was MO- B
3 7 or M0-112. There is also vital discrepancy as to the
place at which the possession of the gun was taken. On the facts of the
case, the appellant No. 5 is entitled to benefit of doubt. In this view,
we set aside the conviction and sentence of appellant No. 5, Rama @
Ravana (A-79).
                                                                           c
      We now revert to the cases of the remaining three appellants, namely,
A-10, A-25 and A-27. The names of these three accused were not
mentioned in the F.l.R. that was recorded on 14th August, 1992. Their
names, however, were included in the altered F.l.R. that was registered on
19th March, 1993 by adding the offences under Sections 3, 4 and 5 of the D
TADA Act and including the names of various other accused, including
the appellants. In all 38 accused were named therein. We do not know
under what rule, regulation or law, the altered F.LR. was registered. None
was pointed out. Be that as it may, the names of these three accused find
mention only in the altered F.l.R. Accused No. lO has been identified in E
court by PWs. 31 and 32. They have deposed to have seen him on 14th
August, 1992 as members of the Veerappan gang attacking the police party.
PW-31 has also deposed to have seen A-25 and A-27 in the similar manner
at the spot

       PW-3 l, PW-32 and PW-33 were travelling together in the lorry. The F
evidence also show that in the lorry they were seated next to each other.
The testimonies of these witnesses were recorded in the year 200 l. The
conviction of these three appellants is based mainly on the testimony of
the two police personnel, PW-31 and PW-32. In the case of Kaliapa (A-
25), the confession said to have been made by him immediately after arrest G
on 24th April, 1993 has also been relied to convict him for the offences
for which he has been charged. The said confession was recorded by PW-
 l 08. Undoubtedly, in a case of this nature, where attack of the magnitude
and type reference whereof has been made hereinabove, is afflicted on the
police party, the direct evidence, if any, is likely to be of only police H
      880                 SUPREME COURT REPORTS [2003] SUPP. 4 ~.C.R.
A personnel. The presence of any one else on the spot is unlikely in a case
       of this nature. All the same, the evidence has to inspire confidence. In the
       absence thereof, conviction cannot be sustained. Before, however, we refer
     · to the evidence of PW-31 to PW-33 and some other witnesses, we would
       examine and consider the confession made by A-25.
B
           The confessional statement of A-25 was recorded by PW-108. The
     accused was arrested on 24th April, 1993 at 6.45 a.m. His confession was
     recorded on the same date at 9 a.m. The same officer, in fact, recorded as
     many as 90 confessional statements out of which 59 pertain to the instant
C    case. All other confessional statements have been rejected by the trial court.
     The com:non feature of recording of confession of almost all the accused
     is the factum of recording their statements ·almost immediately after the
     arrest.

            We have perused the testimony of PW-108. He has <leposed that he
D used to give five minutes, as a matter of practice, to any accused to think
      over on being produced before him, if after five minutes the accused still
      expressed his desire to make the confession, the officer used to proceed
      and record the statement. To say the least, it is a strange and wholly
      unwarranted procedure which the officer was adopting as a matter of
·E    practice. In such matters, there cannot and-ought not to be any generalisation.
      How much time, if any, is required to be given to an accused to coolly
      think over whether he wanted voluntarily to make a confessionali statement        ·'
      despite knowing the consequences thereof would depend upon facts of
      each case and likely to differ from one accused to another. There cannot
F     be any general practice in such matters. The practice adopted by PW-108
      was, therefore, illegal.

           Reverting now to the confessional statement in question, the record
      shows that the said statement was not produced before the Magistrate on
      the next date when the accused was produce but it was filed on 26th April,
G     1993.

           Rule 15(5) of the Terrorist and Disruptive Activities (Prevention)
      Rules, 1987 (for short, TADA Rules) requires that every confession
      recorded under Section 15 of the TADA Act shall be sent forthwith to the
H     Chief Metropolitan Magistrate or the Chief Judicial Magistrate having
                          SIMON v. STA TE                           881

jurisdiction over the area in which such confession has been recorded and A
such Magistrate shall forward the recorded confession so received to the
Designated Court which may take cognizance of the offence. It is also
apparent that even the copy of the confessional statement was not supplied
to the accused for nearly seven years. It was supplied only on 6th January,
2000. The prosecution evidence in the case commenced on 25th November, B
 1999. Before 6th January, 2000, 28 prosecution witnesses had already been
examined. The charge sheet in the case was filed on 7th April, 1994. The
confessional statement was not filed along with the charge sheet. We may
 notice the difference between the rejected confessional statements and the
confessional statement in question made by A-25. In his statement, the C
following passage appears at the end of the confession.

              "I informed Sri. Kaliappa @ Watchman Kaliappa, S/o.
        Kuppuswamy, 35 years, Nallur in Tamil that there was no
        necessity for him to make a statement, and that this statement can
        be used in evidence against him. He has given the statement D
        voluntarily. I have heard this statement personally and recorded
        it in my own hand. The statement of Kaliappa contains true and
        definite facts."

     In the confessions made by other accused which have not E
been accepted by the trial court, the statement to the aforesaid effect is
absent.

      A-25 has made a detailed confession giving the names of various
members of the gang. The confession also gives the names of many persons
who supplied money, food articles and information to Veerappan gang. F
Almost hundred names and a substanti~I number out of them with their
parentage have been mentioned in the confessional statement made by
A-25. Further, it appears that all through the recording of the said
statement, the Investigating Officer, Inspector Shri Venkataswamy, was
not only present but he alone could understand as to what the accused was G
stating in Tamil and translating it to PW-108 in Kannada language in which
that statement was recorded. Likewise, in the reverse direction, it was
translated from Kannada language to Tamil language by the said Inspector
and read over and explained to the accused Kaliappa. This is evident from
the documents itself, the relevant part whereof reads as under :           H
    882                SUPREME COURT REPORTS {2003] SUPP. 4 S.C.R.

A            "This statement of Kaliappa @ Watchman Kaliyappa, S/o.
             Kuppuswamy, Nallur, 35 years, Padiachi gounder, which was
             given in Tamil was got translated by me through Hanur Inspector
             Sri Venkataswamy into Kannada and after understanding it, I
             recorded the same.. Likewise the recorded statement was translated
B            into Tamil through Venkataswamy and it was read over and
             explained to Kaliappan who admitted to be correct and difinite
             and I am satisfied about the statement"

          The pre:>ent case thus shows that the maker of the confession did not
C know the language of the recording officer and the recording officer did
    not know the language known to the accused. The interpretor was the
    Investigating Officer himself. It is true that under Rule 15(1) of the TADA
    Rules, if it is not practicable to record the confession in the language in
    which such confession is made, the same can be recorded in the language
D   used by the recording police officer for official purposes or in the language
    of the Designated Court. The first part of Rule 15(1) mandates the
    recording of the confession invariably in the language in which it is made.
    When it is not practicable, it can be recorded in other language as
    aforementioned. There may not be any illegality per se in the recording
    of the confession in Kannada langua~ in the present case for the recording
E   officer did not know the language known to the accused, namely, Tamil.
    But, all the same, when such a position is noticed, it becomes the bounden
    duty of the recording officer, who, in terms of Section 15 of the TADA
    Act, has to be a police officer not lower in rank than a Superintendent of
    Police, to make an attempt to arrange an independent interpretor. There is
F   no evidence that any such attempt was made. We have a confessional
    statement made by an accused immediately after arrest on being given
    five minutes to think and thereafter recording the confession in
    the presence of Investigating Officer who alone knows what is stated
    by the accused as the Superintendent of Police does not know Tamil and
G   for that reason the statement is translated by the Inspector to his superior
    officer.

          Reliance has been placed by learned counsel for the State on the
    decision of this Court in the case of Gurdeep Singh alias Deep v. State
H   (Delhi Admn.), [2000] l sec 498 wherein, in paragraph 23, this Court dealt
                            SIMON v. STATE                              883

with the effect of the presence of a police personnel in the room in which A
the confessional statement was recorded by Superintendent of Police. That
was a case of a Police Constable holding the chain of the handcuffs of the
accused at the time of recording of confession. Considering the angle of
security as also the angle of keeping the accused in custody and other
factors noticed on the facts of that case, it was held by this Court that the B
presence of a constable in a room could not, in fact or in law, be construed
to be such a factor so as to hold that the confessional statement was not
made voluntarily. The said decision has no applicability to the facts and
circumstances of the present case of the presence of the Police Inspector
- Investigating Officer and the role played by him in the manner above C
stated. It is well settled that the confession has to be voluntary and all
precautions provided for in Section 15 and Rule 15 have to be strictly
adhered to.

      It is the duty of the recording officer to ensure that the confession D
is made voluntarily and out of free will by the accused without any
pressure. Except omnibus statement about the general practice which was
being followed by PW- I 08, there is no evidence of any question or attempt
being made by the officer to satisfy himself that the confession was being
made voluntarily. This factor becomes, on the facts and circumstances of
the case, very important since immediately after the arrest, the accused was E
produced and the person actively associated with the recording of statement
was none other than the Investigating Officer who by nature of things is
interested in the success of the prosecution case. Recording of confessional
statement is not a mechanical exercise. A duty has been cast and
considerable amount of confidence has been reposed on a senior officer F
under Section 15 of the TADA Act in giving him the duty to record the
confession and making such a confession before a police officer admissible
in evidence. It is also not in evidence that no person other than the
concerned inspector was available to act as an interpretor. PW-108 was
aware that the accused produced before him for recording confession was G
arrested a few hours prior to the recording of his statement. A perusal of
the testimony of PW- I 08 does not show his awareness about the requirements
to be complied with before recording of the confessional statement. It also
appears that 59 confessions were recorded in routine one after another. The
witness states that within one or two minutes of the recording of confessional H
    884                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A   statement of one accused, the other accused used to be produced for
    recording of confession. Having regard to these factors, it is neither
    possible nor safe to base the conviction of A-25 only on the confessional
    statement. That statement does not inspire any confidence. Accordingly,
    we decline to take into consideration the said document.
B
          Now we consider the main evidence, i.e. of PW-31 and PW-32 the
    basis whereof the appellants have been convicted. It may be recapitulated
    that out of sixteen eye witnesses, only two witnesses (PW-31 and PW-32)
    have named these three accused, A-10, A-25 and A-27. Regarding others
C   having not named them, learned counsel for the State, with reference to
    the testimony of PW-34, PW-35, PW-38, PW-39 and PW-40, explains that
    since these witnesses had received grievous injuries and, therefore, not
    naming of these accused by these witnesses does not throw any doubt much
    less a reasonable doubt on the case of the prosecution. But, the injuries
D   were also suffered by PW-31 and PW-32. Be that as it may, even if we
    reject the submission urged by Mr. Gonsalves on behalf of the appellants
    that the non-mention or non-identification of the accused by the other eye
    witnesses throws a doubt on the case of the prosecution in general and on
    the testimony of PW-31 and PW-32 in particular, on the facts of the case
    as we would presently notice it makes hardly any difference.
E
          We have already noticed that PW-31, PW-32 and PW-33 travelled in
    the same lorry. They were sitting next to each other. From the testimony
    of PW-3 l and PW-32, it appears that they had known these three accused
    earlier. If that is so, the non-holding of test identification parade would be
F   of no consequence. But, at the same time, if PW-31 and PW-32 had seen
    these three appellants throwing bombs and firing as part of the members
    of the Veerappan gang, they would have disclosed their names to PW-33
    and their names would have been mentioned in the F.I.R. The evidence
    on the record shows that on 14th August, 1992 itself, PW-31 met Inspector
G   Venkataswamy, PW-112, and disclosed to him the names of these accused.
    Likewise, the names were also disclosed by PW-31 to DIG Srinivasan.
    However, DIG Srinivasan has not been produced before the trial court.
    Further, when PW-31 and PW-32 were talking to DIG and when PW-31
    narrated the entire incident, inclulding the names of the persons he had
H   seen, to the DIG, PW-33 Devendrappa was also present as per the
                           SIMON v. STATE                             885

deposition of PW-31. Not only this, the names were also disclosed to A
Uttappa, Assistant Commissioner of Police. He too was not examined.
Further, the evidence of PW-31 aim shows that at the spot and thereafter
till he remained admitted in the hospital, PW-31 had occasion to meet
Special Tax Force personnel and other persons associated t_herewith who
were told the names of the persons who were involved in the encounter. B
In the light of such overwhelming evidence, it is highly doubtful that their
names would not be disclosed to PW-33 and for that reason they would
not find a mention in the F.l.R. Further, it is evident from the evidence
that the attack on the car and the lorry was being made from a distance
of about I 00 ft. from a hillock and having regard to the topography of the C
area, it is highly doubtful if it was possible to identify the attackers. From
the testimony of the other witnesses, it appears that they could only see
the profile of the attackers and not the attackers as such so as to connect
them with the commission of the crime.

     Further, from the testimony of PW-120 M.C. Mariswamy, Police
                                                                            D
Inspector of Ramapura Police Station, from 12th August, 1992 to 10th
March, 1994, it seems that in the second F.l.R. (altered F.l.R.}, the names
of some of the accused were collected by referring to previous F.I.Rs. filed
against Veerappan and others. The relevant part of the testimony of PW-
120 read :                                                                   E

         "When l took up the investigation of this case, I referred to the
         FIR filed in this case. It is true that the complainant who filed the
         first FIR is said to be an eye witness to the crime. I have not
         examined the complainant. It is true that in the FIR names and F
         No. of accused is mentioned. It is true that in the FIR names of
         7 accused persons with another 10 to 15 accused involved is
         mentioned. In the 2nd FIR submitted the names of 38 accused
         besides other is mentioned. Names of some of the accused were
         collected by referring to the previous FIRs., filed against A-I and G
         others. The names of remaining accused persons are involved
         through the information from the informants. Informants are not
         examined in this case."

     In view of the aforesaid circumstances, it is not possible to sustain H
    886                 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A the conviction of these three accused as wdl relying solely on the testimony
    of PW-3 l and PW-32 which does not inspire confidence. Thus, these
    appellants are also entitled to be given the benefit of doubt.

         For the aforesaid reasons, we set aside the impugned judgment and
B   order of the Special Judge of the Designated Court, Mysore. The conviction
    and sentence of the appellants are thus set aside. The appellants are directed
    to be released forthwith, if not required in any other case.

          The appeals are, accordingly, allowed.

    KKT.                                                       Appeals allowed.