Holding

Confessional statements made under Section 15 of the TADA Act, when voluntarily given and substantially complying with the statutory requirements, are admissible and sufficient to convict the accused of murder, and Section 222 CrPC permits conviction for the lesser offence of extortion.

Summary

The State of Maharashtra appealed the acquittal of B.C. Raghani (A1), Subhash Bind (A5) and Shekhar Kadam (A6) in a contract‑killing case involving the murder of businessman Pradeep Jain. The prosecution’s case hinged on confessional statements of A5 and A6 recorded by a DCP under Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, and on the recovery of weapons. The trial court excluded the confessions on technical grounds and dismissed the weapon‑recovery evidence, granting the accused the benefit of doubt. The Supreme Court held that the confessions were voluntarily made, complied with the substantive requirements of TADA and its Rules, and were therefore admissible and sufficient to sustain convictions for murder, while also convicting A3 of extortion under Section 384 IPC pursuant to Section 222 of the CrPC. The Court substituted the death sentence with life imprisonment and upheld the acquittals of A1 and A2 on the murder charge.

Issues considered

The admissibility of confessional statements recorded under Section 15 of the TADA Act and Rule 15(5) of the TADA Rules despite alleged procedural lapses.
Whether a retracted confession, if voluntarily made, can be used as substantive evidence against the maker and co‑accused.
The correctness of the trial court’s exclusion of the weapon‑recovery evidence on the basis of alleged contradictions.
The applicability of Section 222 of the Code of Criminal Procedure to convict an accused of a minor offence (extortion) when the major offence is not proved.
The appropriateness of awarding the death penalty versus life imprisonment in the present facts.

Legislation cited

Arms Act, 1959s. 27, s. 5
Code of Criminal Procedure, 1973s. 222
Indian Penal Code, 1860s. 114, s. 120B, s. 23, s. 302, s. 307, s. 384
TADA Rules, 1987s. Rule 15(5)
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 3(2), s. 3(3), s. 3(5), s. 5, s. 6

Subjects

TADAconfessional statementadmissibilitymurderextortionSection 222 CrPCdeath penaltyorganized crimeweapon recoveryconspiracy

Judgment

·}

)(
~
....._

)-

A STATE OF MAHARASHTRA
v. ,._
BHARAT CHAGANLAL RAGHANA AND ORS. -~

JULY 11,2001

B [K.T. THOMAS AND R.P. SETHI, JJ.]

Terrorist and Disruptive Activities (Prevention) Act, 1987 : Sections
3(2), 3(3). 3(5), 5 and 6.

C Terrorist and Disruptive Activities (Prevention) Rules, 1987 Rule
I 5(5).

Indian Penal Code, 1860 : Sections : 302, 307, 120-B and 384

Code of Criminal Procedure, 1973 : Section 222
D
Contract killing-Murder-Accused-Confession-Rule 15(5)-
Procedure for recording confession-Compliance with-Confession
voluntarily made and legally recorded-Confession also stood corroborated
on facts-Rejection of such a confession held not valid-Confession held
sufficient to hold the accused guilty ofhatching the con;piracy for commission
E of offences with which charged--Death penalty-Substituted by life
imprisonment-Held on facts not rarest of rare cases.

lnvestigation~eiwre-Factum of recove1y-Rejection of-Ground-
. Contradiction because of subsequent statement of accused-Held not valid.
F Criminal trial-Accused-Charged with offence-But facts proved that
he committed a minor dffence-He can be convicted of such a minor offence
though not charged.
I

Crime-Crime by underworld--'Organised crime' -'Professional Crime'
G -Need to curb emphasised.
-"I

Wordv and Phrases :

'Contradiction '-Connotation of

The Respondents, alongwith other co-accused, were charged under
H 840
STATE OF MAH/\l{/\SllTR/\ 1·. B.C. RAGH/\NA 841

sections 1208, 23, 114 of the Indian Penal Code, 1860. They were also A
charged under section 3 read with section 25(1-B) (a), Section 5 read with
section 27 of the Arms Act, 1959 and Sections 3(2) (i), 3(2), (ii), 3(3), 3(5)
and sections 5 and 6 of the Terrorists and Disruptive Activities (Prevention)
Act, 1987. Prosecution story disclosed that it was a case of mercenary killing
by hired goons. The accused persons pressurised and coerced a business man
and his brother to sell his property and on their refusal the business man B
was murdered and his brother injured in the attack. By the intended
transaction of property immediate beneficiary was A-3 who engaged the
services of A-4 a broker for completion of the deal. To prove its case the
prosecution relied upon oral testimony of various witnesses. However, the
epicentre of all the prosecution evidence was the confessional statements of C
A-5 and A-6 which was recorded by a DCP (PW 38) in exercise of his power
under Section 15 of the TADA Act. Their confessional statements stood
corroborated. Recovery of weapons was also made from the accused persons.

The Trial Court gave benefit of doubt to the accused persons. The
confessional statements were not relied upon and excluded from the evidence D
by the Trial Court on the grounds that (1) the Magistrate (PW 44) before
whom the accused were directed to be produced alongwith original statements
of confession in terms of Rule 15(5) of the Rules framed under the TADA
,! Act had failed to inquire from the accused as to whether they had made
voluntary statements before police officer and to record the replies of the
accused; (ii) that as the ACP (PW 48) had received a call on 27th August, E
1995 to carry the confessional statements to •.• ..: Magistrate its recording on
28th August, 1995 was highly improbable, and that there were interpolations
. in the original confessional statements recorded by DCP (PW 38). The Trial
Court also held that factum of recovery of weapons was not proved as there
was contradiction in it because of a subsequent confessional statement of the F
accused. Against the judgment of the High Court appeal was preferred before
this Court.

Disposing of the appeal, the Court

HELD. 1. The trial court committed a mistake oflaw in not relying upon G
the confessional statements of AS and A6 to ascertain their involvement in
the commission of crime with which they were charged. Confessional
statements having been made voluntarily and legally recorded, which generally
stood corroborated, were sufficient to hold that the aforesaid persons were
guilty of hatching the conspiracy for com mission of offences with which they
were charged. The Designated Judge has also erred in holding that the H
x
842 SUPREME COURT REPORTS [2001] 3 S.C.R.
STATE OF MAI IARt\Sl-lTRA r_ 13.C. R!\GI IANA 843

15 of the TADA Act. There is no hesitation to come to the conclusion that the A
confessional statements were strictly in accordance with the mandate of the
-\''
TADA Act as interpreted by this Court from time to time.
1865-B-C; 865-G; 868-C-EI

Mr. Sharafathussain Abdul Rahaman Shaikh & Ors v. State of Gujarat
& Anr., 11996) 4 Crimes 244 SC, Explained and distinguished. B
Kartar Singh v. State of Punjab 11994) 3 SCC 569 and S. N. Dube v.
N.B. Bhoir & Ors.. 120001 2 SCC 254, referred to.

State v. Nalini, 11999) 5 SCC 253 and Kalpnath Rai v. State, 1199718
sec 732, cited.
c
4. The confessional statements were recorded in Marathi language in
Devnagri script. The statements were typed wherein some names and dates
have been shown in bold letters. However, the use of bold letters does not make
the confession doubtful justifying the conclusion that there had been
interpolations. The bold letters are intended to highlight the importa~ce of D
the names and words. In his evidence PW 38 replied that there were no blanks
filed in, but the typist might have pressed the fingers hard so that those
writings appeared a bit darker. He categorically denied that the confessional
statements were already typed by leaving the places blank and subsequently
his office did the job of only filling the blanks under his directions.1867-C-G I

5. Referring to the investigating officer - ACP (PW 48), the Designated
E
Court wrongly held that the confessional statements could not have been made
on 28th August, 1995 -as the said witness had stated to have received
telephones message from DCP on 27th August, 1995 directing him that
arrangements should be made for carrying the packets to Metropolitan
Ma~istrate containing the confessional statements recorded by him. It is clear F
from the evidence of PW 38 that the statements of the accused were recorded
on 21st August, 1995 and on 28th August, 1995. It is further clear that PW
38 knew that the accused had to make a statement on 28th August, 1995
whether confessing the crime or retracting from making the confessional
statement. In order to ensure that the statements to be recorded on 28th G
August, 1995 are immediately sent to the concerned Magistrate, PW 38
appears to have directed on 27th August, 1995 in the evening to ACP (PW
48) that arrangements should be made on the next date for carrying the
packets containing the confessional statements to the Metropolitan
Magistrate. Consequently, it cannot be said that the confessional statements
were not made on 28th August, 1995 particularly when the accused had not H
844 SUPREME COURT REPORTS [2001] 3 S.C.R.

A taken a stand that any statements of theirs was recorded on 27th August,
1995. Therefore, the trial court rejected the confessional statements of AS
and A6 by adopting a hypertechnical approach on the basis of its imaginative
thoughts without having regard to the actual .evidence led in the case.
186S-H; 866-A-HJ

B 6. There is no denial of the fact that the judicial confessions made are
usually retracted. Retracted confessions are good confessions if held to have
been made voluntarily and in accordance with the provisions of law, as AS and
A6 are proved to have rriade. Corroboration of the confessional statement is
I
not a rule of law but a rule of prudence. Whether in a given case corroboration J_
C is sufficient would depend upon the facts and circumstances of that case. In
order to sustain a conviction on the basis of a confessional statement, it is
sufficient that there .is general corroboration. In this case looking at the record
inclu~ing the testimony of witnesses and the documents produced,' there is
sufficient general corroboration of the confessional statements made by AS
and A6. 1876-C-D; 878-D-E)
D
7. The trial court adopted a technical approach in appreciating the
factum of recovery of weapons and wrongly held that the evidence relating to
the seizure has to be totally kept aside. The panch witnesses have fully proved
the panchnamas._ If the prosecution had successfully proved the panchanamas, -~

E it was not proper for the court to fish out a contradiction regarding the
recovery and seizure of the weapons on the ground of subsequent confessional
statement of the accused. If in a statement recorded after about two months
the accused tried to mislead the court by making a different statement
regarding the recovery of the weapon of offence, no credit of it should have
been given to him. The Court was only concerned with the corroboration of
F the factum of recovery mentioned in the confessional statements. }fthe weapons
had actually been recovered, no fault can be found with the confessional
statements on account of alleged contradiction. The statement of A6 relating
to recovery of weapons from the ·house of AS could not have been made a basis
for holding that there existed contradiction which persuaded the court not to
G believe the recoveries as a piece of corroborative evidence. Much has been
made out from the display of seized weapons at the Press Conference held by
the police after the arrest of the accused. The seized weapons were shown in
the office of Cl D crime in the same building where the office of the Joint
Commissioner of Police, who held the press conference, is also located. There
was no cause or occasion for the court to disbelieve the testimony of the Joint
H Commissioner of Police. Holding that the only seized weapons were shown to
ST/\ TE OF M/\H/\R/\SI ITRA v. 13.C. RAGHANJ\ 845

the press, the trial court committed a mistake and it has unnecessarily tried A
to make a mou':ltain out of mole on such a frivolous ground.
1879-A-H; 880-A-EI

8. The word "contradiction" is ofa wide connotation which takes within
its ambit all material omissions and under the circumstances of the case a
court can decide whether there is one such omission as to amount B
contradiction. 1872-C-DI

Tahsildar Singh & Anr. v. State of U.P., AIR 119S9J SC 1012, referred
-r to.
9. There is no substance in the submission that AS and A6 were not C
properly identified in the test identification parade. In view of the finding that
·their confessional statements were made voluntarily,and legally admissible
in evidence, there is no much significance of the identification parade.
(880-G)

to. AS and A6 are convicted for the offences under Sections 302, 307 D
read with Sections 1208, 23, 114 of the Indian Penal Code, Section 3 read
with Sections 25(1-B) (a), Section S read with Section 27 of the Arms Act.
Sections 3 (2) (i), 3(2) (ii), 3(3), 3(S), S and 6 of the Terrorist an,d Disruptive
Activities (Prevention) Act, 1987. However, being mislead youth\ they do ~ot
deserve the maximum penalty imposable under law and the case is not the
rarest of the rare cases warranting death sentence. They are, therefore, E
sentenced to life imprisonment. (881-B-C)

11. Sub-section (2) of section 222 of the Code of Criminal Procedure,
provides that when a person is charged with an offence and facts are proved
which reduce it to a minor offence, he may be convicted of a minor offence,
>- although he is not charged with it. It is established by the prosecution that by F
the intended transaction of property deal the immediate beneficiary was A3.
A3 is proved to have forged documents for the purposes of completing the
sale for which he procured the legal services of respondent No.I. He is also
proved to have got the services of A4, a broker for completion of the deal. A4
helped him in the transaction. The prosecution has placed on record sufficient G .
evidences to show that A4 had been visiting the deceased and her Brother
and compelling them to complete the transaction by executing the release deeds
in favour of A3. On the basis of this evidence A3 cannot be held to be a party
to the conspiracy of killing or for the com mission of other offences under
the TADA Act but it is equally true that his involvement in the transaction
having been proved needs the determination of the nature of offence committed H
846 SUPREME COURT REPORTS [200 I] 3 S.C.R.

A by him. A3 was charged for offence by resorting to extortion. The offence of
extortion is a lesser offence which, under the circumstances of the case, was
so connected with the main transaction that no failure of justice can be caused
if A3 is convicted and sentenced for the said offence. The prosecution failed
to prove so far as the major offence is concerned but succeeded in showing
the commission of the minor offence punishable under Section 384 read with
B Section 34 IPC. A3 intentionally put deceased and his brother in fear of injury
and availing the services of A4 dishonestly induced them in fear to deliver
their valuable property. Therefore, A3 though not as a conspirator but sharing
common intention with A4 committed the offence of extortion. He is guilty of
offence of extortion, punishable under Section 384 read with Section 34 IPC.
C 1874-H; 873-F-H; 874-B; 875-F-H; 876-AJ

Shamnasheb M. Multani v. State of Karnataka, 12001 J 2 SCC 577 and
lakhjit Singh v. State of Pzmjab, f1994J Supp. 1 SCC 173, referred to.

12. In the absence of any threat or any other circumstance indicating
D the intention of Al, A2, and A3 to kill deceased and his brother it would not
be safe to hold them guilty of murder on shaky and unreliable evidence. No
overt and covert act in this regard is attributed to A2. Al is shown to have not
observed the professional norms by calling the deceased and his brother in
his office to facilitate the execution of release deeds in unprofessional way
but cannot be described to be criminal warranting a conviction under any
E provisions of the IPC or TADA. Therefore, Al and A2 were not involved in
the commission of the crime for which they were charged or any other crime
of lesser effect. There is no need of returning a finding against A4 who is
stated to have died in a police encounter, unless his complicity is required for
the purpose of determining the guilt of any other accused. 1873-C-EJ

F 13. Nowadays a woeful situation is prevalent in the society where writs·
of the organised criminal gangs run which affect the peaceful and innocent
citizens of the country. This world of gangsters, popularly known as the
\underworld\, comprises of various gangs headed by notorious dons for whom,
the only valuable thing in life is 'wealth' and the useless thing, the 'life' of
G others. Deaths are sold by these dons at their asking price and purchased by
those who resort to have immediate results for their enrichment with the
deflation of their otherwise inflated money bags. Mumbai, (with its erstwhile
name Bombay) known as the commercial capital of the country, is at the top
where such crimes arc committed cve11' now and then. Such on going activities
of the underworld arc problems faced not only in Mumbai and this country
H but all over the globe. Generally known abroad as 'organised crime' has been
STATE OF MAH/\R/\SllTRA v. B.C. RAGl-IANA fSETHI, J.l 847
found to be a subject of fascination in popular culture and a major criminal A
justice concern in the .Western World. Such organised crime pose various
problems to th~ world community concerned to combat and fight it out.
1847-E-H; 848-El

14. In Europe, the terms 'organised crime' and 'professional crime' are
largely interchangeable. The eruption of organised crime in India is of recent B
origin and is at the initial stage. It is the need of the hour to control such
criminal activities which tempt the persons involved to amass huge profit Such
crimes have not only a legal facet but has a social and economic aspect which
is required to be felt and dealt with by all concerned including the judiciary,
the executive, the politicians, the social reformers, intelligentia and the law
enforcing agency. 1848-Fl C
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 628
of 1998.
From the Judgment and Order dated 25/28/29/30/31.7.97, 1/2/4 and 5.8.97
of the Designated Court Brihan Mumbai in Tada Special Case No. 22of1995. D
V.S. Katwal, U.U. Lalit, S.S. Shinde, S.V. Deshpande, Ms Aparajita Singh,
Sushil Kr. Karanjakar, A. Venkatesh, Vishawajit Singh, N.M. Sakhardande
)" (AC), R.C. Kohli (N. P.), Meenakshi Sakhardande for V. D. Khanna, Bhaskar
and Y. Kulkarni for the appearing parties.
The Judgment of the Court was delivered by E
SETHI, J. Under the heaps of voluminous record in the form of various
paper books spread over thousands of pages lies the hidden story relating
to the new 'merchants of death and destruction', upon dissection, when
peeped into, it reflects the woeful situation prevalent in the society where
writs of the organised criminal gangs run which affect the peaceful and F
innocent citizens of the country. This world of gangsters, popularly known
as the 'underworld', comprises of various gangs headed by notorious done
for whom, the only valuable thing in the life if 'wealth' and the useless thing,
the 'life' of others. Deaths are sold by these dons at their asking price and
purchased by those who resort to have immediate results for their enrichment
with the deflation of their otherwise inflated money bags. To this underworld, G
the unemployed, thoughtess and objected youths are attracted and the bosses
of the gangsters leave no stone unturned to utilize the services of such
frustraie and misled youth for the commission of crimes, to further their evil
designs Contract killings by employing mercenary killers, after receipts of
consid ration known as 'supari' are the orders of the day, particularly in H
848 SUPREME COURT REPORTS [200 I] 3·s.C.R.

A commercial cities of the country where the race for getting enriched overnight
is going on at jet speed.

Mumbai, (with its erstv,,:hile nam·e Bomb~y) known as the commercial
I
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
B particularly with respect to disputes relating to property is reported to have
created settle centres of unusual trade where private courts are held by the
gangsters and disputes are solved according to the will of those who can pay
as per demand of the criminal dons. It is said that the unaccounted
accumulation of black money in the hands of a few have encouraged the
gangsters to widen the scope of their activities. Because of the money and·
C muscle power, they are in a position of procuring highly sophisticated weapons.
Such gangs collect money rrom various businessmen, land developers, persons
carrying on the illegal_,activities in gambling dens, drug traffickers, etc. Such
collected money is termed as "protection money" which in Marathi referred
to as "Khandani" (Khandani is a Marathi word which relates to long past
D. history where the rulers used to collect Khandani from their subjects). A
fee1ing is prevalent in the city that it is not the State alone which can protect
the life and property of the rich and influential, but it is the criminals who
render protection to such people for the consideration of the "protection
money" recei~ed by thetn ..

E Such on going activities of the underworld-are problems faced not only
in Mumbai and this country but all over the globe. Generally known abroad
as 'organised crime' has been found to be 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
F to combat and fight it out.

In Europe, the terms 'organised crime' and 'professional crime' are
largely interchangeable. As compared to American standards, the European
criminal organisations are small-scale and short-lived. Such crimes are defined
as; involving a system of specifically defined relationships with mutual
G obligation and privileges and association of a small group of criminal for the
execution of the intended crime. The eruption of organised crime in India is
of recent origin and is at the initial stage. It is the need of the hour to control
such criminal activities which tempt the persons involved to amass huge
profit. Such crimes have not only a legal fact but has a social and economic
aspect which is required to be felt and dealt with by all concerned including
H the judiciary, the executive, the politicians, the social reformers, interlligentia
STATE OF f\1AllARASllTRA v. B.C. RAGllANA [SETHI, J.] 849
and the law enforcing agency. A
This appeal relates to a case of one such mercenary killing by hired
goons at the behest of criminal dons operating from aboard but rendering
their services of criminal actions in this country on payment of huge amounts.

In this case the respondents herein were charged of having committed
offences punishable under Sections 302, 307 read with Sections 120B, 23, 114 B
of the Indian Penal Code (hereinafter referred to an "the IPC"), Section 3 read
with Sections 25(1-B)(a), Section 5 read with Section 27 of the Arms Act,
Sections 3(2)(i), 3(2)(ii), 3(3), 3(5), 5 and 6 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (hereinafter referred to as "the TADA Act")
for having committed the murder of one Pradeep Jain, a young businessman, C
on 7.3.1995 in the commercial capital of India. i.e., Mumbai at about 7.30-8.00
p.m. and also attempting to murder the other brother, Sunil Jain. The deceased
was murdered and his brother injured in furtherance of the conspiracy hatched
by the respondents with other absconding accused. The crime was committed
in the office of the company of the Jain Brothers, known as "Kamla
Constructions". The accused persons, namely. Salim Abdul Salim (A8), Abu D
Salem (A9), Rajesh Igwe (A I 0), Sun ii Nair (A 11 ), Udai Pawar (A 12) and Sanjay
Kadam (Al3) were declared absconders and have not faced the trial yet.
)' Bharat Chaganlal Raghani Respondent No. I (A I) is a Solicitor, Rajan
Robert Fernandes, respondent No. 2 (A2) and Shaukatali Jamal Mistry @
Chauhan, respondent No. 4 (A4) are the brokers, Subbedarsingh Ramadas E
Singh Yadav, respondent No. 3 (A3), is the alleged purchaser and ultimate
beneficiary of the intended sale of property.
The mercenary ~illers are stated to be belonging to the gang of a
notorious gangster by name Dawood Ibrahim. It may be noticed, at this
stages, that A4 who faced the trial had since died in a police encounter. p
'-· Similarly A8, A I 0, A 12andA13 are stated to have been killed in the encounters
with the police during the years 1995-96. A 7, A9andA11 are still absconding.
In the commission of the crime the respondents are alleged to have used
sophisticated weapons such as AK rifles, revolvers and pistols. Seventeen
bullets are stated to have been pumped into the body of Pradeep Jain, the
deceased. er
-- Pradeep Jain was eliminated by the hired gangsters and Sunil Jain
attempted to be killed for their fault of not succumbing to the pressure of
parting with their landed property, situated at Koldongir in Andheri (East),
Mumbai of which they were owners in possession. This property originally
belonged to one Matabadal Yadav who had four sons, namely, Garib, Kal!u. H
850 SUPREME COURT REPORTS [2001] 3 S.C.R.

A Ballu, Jayanand. Fekuram was the grandson of Mun nan. Jagannath, Dudhnath,
Baijnath and Lal Chand were the sons of Kallu. Ramadhar, Ramnan and
Ramkewal were the sons of Ballu. Mulai, Bhola and Laltaprasad were the sons
of Jayanandan. The said landed property comprised of three categories shown
as A, B & C in the sketch plan (Exhibit 49 at page 380, Vol. II of the
paperbook). The property (A) measured 5000 sq. yards was purchased by
B Kam la Constructions, the company of the deceased Pradeep Jain, from the
successors and heirs of Matabadal Yadav vide Agreement of Sale dated 21st
December, 1979 where they had constructed two multi-storeyed buildings.
The Property (8) is the land which the Kamla Constructions had procured
from all the 13 Yadavs vide Agreements executed between the years 1981-82.
C Such Agreements of Sale have been proved by the prosecution and exhibited
at the trial as Exhibits SOA, 52A, 54A, 56A, 58A, 60A, 62A, 64A and 66A.
Separate agreements were executed by Ramroop, Lal Chand, Baijnath and
Dudhnath on 18.2.1986 for which they received the earnest money vide
receipt Exhibit 69A. Property (C) is the subject matter of an Agreement to Sell
executed by Fekuram Yadav in favour of Kamla Constructions vide Exhibit
D 69A executed on 20th October, 1986. It is admitted that the disputes arose
with respect to the disposal of the property referred to as the property (B)
which ultimatly resulted in the commission of the crime of murder.

A3 claiming to be the owner of the property, referred to as Property (B)
E wanted to dispose of it to Labh Constructions of Ahmedabad for which an
Agreement Exhibit 93 was executed on 1.11.1994. A3 claimed that he and
Matbadal Yadav had purchased the landed property from Dastur Narayan
Ramchander and Lawrence Winston Misquetta. He referred to various
agreements allegedly executed by Matabadal Yadav and his heirs and
represented to the Labh Constructions that in the premises mentioned in the
F agreement Exhibit 93, he had a right in the l?roperty which he wan_ted to
transfer 011 the terms and conditions specified therein. The property was
agreed to be sold for the lumpsum price of Rs. I 0. 93 crores to be paid to A3
in the manner specified in clauses (a), (b) and (c) of Condition No. I of the
Agreement. Condition Nos. 3 and 4 .of the Agreement provided :

G "3. Upon the said certificate under Chapter XX-C of the Income Tax
Act having been obtained, the purchaser shall deposit with the
Vendor's Advocates & S~licitors Messrs. Haridas & Co. the said sum
of Rs. 3,80,00,000 as set out in Clause I (b) herein above, giving an
authority to the kendor to utilise the said amount firstly only for the
H purpose of getting the said tenants/occupants/the tenants of the
STATE OF MAHJ\R/\SHTRA v. B.C. RAGHANA I SETI II, .1.J 851

khillas as well as the structures and godowns vacated from the A
respective premises let out to or occupied by them and to obtain
release, transfer, or assignment of the claim of the said Mis. Kam la
Construction in respect of the said property more particularly described
in the Second Schedule hereunder written as hereinafter provided on
such terms and conditions as the Vendor may deem fit The Vendor
covenants that as long as the tenants/occupants do not vacant and B
surrender their respective title and interest in the said premises situated
in the said property, the Vendor shall not utilise any amount from out
of this amount for his purpose.

4. The Vendor shall remove all such tenants within period of one
month from the date of the purchaser depositing the said amount as C
aforesaid. The Vendor further declares that one Messrs. Kamla
Construction is claiming to be the purchasers of the said property and
the Vendor shall also settle the claim of the said Messrs. Kamla
Constructions at his own costs by obtaining from them release and/
or assignment and/or transfer of their right title and interest in the said D
property more particularly described in the Second Schedule hereunder
written before the payment of the amount under clause I (b) above is
paid to the vendor, the vendor shall also discharge all the liabilities
or to ensure the same as arising cut of the said agreements entered
into between he said owners of the said property and the vendors."
E
The aforesaid agreement is stated to have been prepared by A I who
is the partner of the Solicitors Firm known as Haridas & Company. As earlier
noticed, according to the terms of the Agreement, A3 had taken the
responsibility to settle the claim of Kamla Constructions at his cost by
obtaining release deeds.
F
Criminal conspiracy is alleged to have been hatched for the purposes
of getting the release deeds executed by the Jain Brothers of Kamla
Constructions by resort to persuasion, threat, duress and ultimately killing.
In furtherance of the conspiracy, A I is alleged to have prepared the desired
release deeds. The Jain Brothers are stated to have been pressurised to sign G

.. the aforesaid release deeds for which various meetings are shown to have
been held in the office of A I. In those meetings, A I is alleged to have told
the Jain Brothers that there was no substance in their documents. In one of
J"1 the meeting A4, allegedly belonging to the gang of Dawood Ibrahim, threatened
Jain Brothers that unless they signed the deeds prepared by A I, they would
not be allowed to leave the office alive. Such threats are stated to have been ·H
852 SUPREME COURT REPORTS [2001] 3 S.C.R.

A given in the presence of A 1, who despite protest from the deceased, did not
take any action against anyone nor did he disassociate himself from the said
accused.

Anand Bhat (PW14), another solicitor was initially engaged by Labh
Constructions for the purposes of getting the deal completed with A3. In
B October, 1994 Anand Bhat is stated to have received a document Exhibit 78
purpotiing to be a draft agreement prepared by Haridas & Company, the firm
of solicitors of A 1. By letter (Exhibit 79), Labh Constructions directed the
solicitor firm of PW14 to hand over a sum of Rs. 45 lakhs to the solicitor firm
of A I. PW 14 went to the office of A I and personally handed over the cheque
C of Rs. 45 lakhs.

It is in the evidence that sometime in August, I 994 A4 visited the office
of Jain Brothers situated in Brijkamal Building, where he met Ashok Jain (PW
45) and informed him that a builder from Ahmedabad (Labh Constructions)
had purchased the old Koldongri property and their firm, namely Kamla
D Constructions should give up that property. When Ashok Jain told A4 that
he and his brothers were in possession of title deeds and not prepared to give
up the property, the said accused told Ashok Jain that the purchaser party
had connections with the underworld and if the Jains did not surrender their
rights in the property, the consequences would be very bad. In October, 1994,
E Ashok Jain (PW 45), Suresh Jain (PW13), Pradeep Jain, the deceased and
Sunil Jain (PW45) attended the office of A I where A2, A3, A4 and some other
persons were also present. The Jain Brothers handed over their title documents
to A I and asked him to go through the papers.

A4 continued to meet the Jains in the office of Kamla Constructions
F besides giving telephonic calls every now and then. A I sometimes thereafter
telephoned Ashok Jain (PW45) asking him that the Jain Brothers should visit
his office to discuss over the matter. Consequently a second meeting was
held in the office of A I which was attended by Ashok Jain (PW45), Pradeep
Jain, the deceased, Sun ii Jain (PWI 5) from the side of Kam la Constructions
..
G and A I, A2, A3 and A4 represented the other side in the meeting. It is alleged
that when Al told the Jains that "your documents are not having any
substance," the arguments followed. A4 used abusive language and warned
the Jain Brothers that they were wasting everybody's time and their such dilly
....._.(
.

dalling tactics would not succeed. Pradeep Jain is stated to have reacted very
sharply to the threats given by A4 and told A 1 "You are a solicitor of well
H repute and how can you tolerate this Hangama in your office". It is further
STATE OF l'vl/\IIJ\RJ\SllTR/\ v. 13.C. RAGHANA [SETI-II, .I.] 853

alleged that A4 threatened the Jain Brothers that they should accept the A
amount being given to them or else ultimately lose their lives. In the third
..., meeting held in November, 1994 attended by Jain Brothers and A I to A4 an
intimation was given to the partners of Kam la Constructions that A I had
received the money from intended purchasers for being paid to them. The
insistence of Jain Brothers to know the name of the intending purchasers :ind
their desire to meet them was retorded by A I telling that the party was so B
big that they had no time to meet the Jains. When Pradeep Jain stated that
he was not interested in getting the money, A4 threatened by saying that if
he did not accept the money and surrender the rights, the said money would
L
I be treated as "Supari" for the murder of Jain Brothers (Supari is a marathi
word which stands for beetle put and in common parlance it has gained the C
meaning of money for contract killing). In all the six meetings which were held
in the office of A I, the Jain Brothers were insisted to take decision quickly
for surrendering their rights. As the Jain Brothers did not give up their claims
at any cost, the transaction in favour of Labh Construction did not materialise.
The immediate loser on account of delay was A3.
D
A2, A3 and A4 are stated to be having maintained a regular liaison with
Abu Salem (A9), known to be the right hand man of Dawood Ibrahim. The
said A9 was contacted by A2, A3 and A4 on telephone Nos. 226670, 242939
at Dubai.

E
One day in the second week of February, 1994 at about 10 p.m. telephone
bell rang in the house of Pradeep Jain, when Jyoti Pradeep Jain (PW23), the
widow of the deceased picked up the telephone, the caller told her that he
was Abu Salem and was speaking from Dubai. As he wanted to speak to
Pradeep Jain, Jyoti Pradeep .Jain handed over the receiver to her husband.
Pradeep Jain was heard telling Abu Salem that he, along with his brothers F
were legal occupants of the land and could not be removed there from. When
Pradeep Jain appeared upset, his wife inquired for the cause. Pradeep Jain told
her that the person calling from Dubai had told him to sign the documents
which had been kept ready in the office of A 1 or face the consequences.

On 7 .3.1995, the day of occurrence at about 8-8.15 p.m. A4 telephoned
G
the office ofKamla Constructions and inquired from Sunil Jain (PW15) as to
who all were present in the office. When told that besides PW 15, Pradeep Jain
and A nil Kumar Pillai (PW 11) were in the office, A4 asked him as to _whether
' _,,_,
everything was alright. PW 15 observed that A4 was exceedingly polite on
that day. 15 minutes thereafter two boys entered the office of Jains with H
854 SUPREME COURT REPORTS [200 I] 3 S.C.R.

A pistols in their hands. One of the two persons had caught hold of the
watchman Vishnu from his neck and the other was waiting outside the gate
of the office. The persons who had pistols in their hands and had entered ·
the office inquired, "who is Pradeep?". When Pradeep Jain replied that he was
Pradeep Jain, both the aforesaid persons showered bullets on him. They also
fired at Sunil Jain (PWI 5) and went away. During investigation the aforesaid
B two persons have been identified to be Rajesh Igwe (A IO) and Sunil Nair
(A 12). As already noticed, A 10 has died in an encounter with the police on
27. I 1.1995 and Sun ii Nair (A 12) is absconding. The person who stood outside
the cabin of the deceased has been identified to be Subhash Bind (A5). After
tlie shots had been fired at and the accused walked away, the witnesses
C found both the brothers in the pool of blood. Anil Kumar Pillai (PWI I)
thereafter rang the Police Control Room from the cabin of the deceased and
informed about the incident. Ashok Jain (PW45) who was in the bunglow
upstairs also reached on the spot. PW! I, PWl5, PW45 and Watchman Vishnu
put Pradeep Jain in the car and took him to the Cooper Hospital, where
Pradeep Jain was declared brought dead. However Sunil Jain, injured was
D admitted in the hospital as Indoor Patient.

After registration of the case and during investigation, after their arrest,
AS and A6, made confessional statements which were recorded by the Deputy
Comm issio11er of Police on 21st August, 1995 and 28th August, 1995 in
exercise of powers vested in him under Section 15 of TADA Act.
E
A4, while in custody of the police, made disclosure statements pointing
out a number of communication centres from where he made telephone calls
to Abu Salem on various occasions. Consequently, the police collected bills
Exhibits 200, 203, 204, 205, 206 and 207 from those communication centres.
Exhibit 200 indicated that a call was made on 7.3.1995 on telephone No. 226670
F
of Dubai at about 5.35 p.m. On 12.4.1995 A4 pointed out certain other
communication centres, in consequence of which Bills Exhibits 2 IO, 211 212
were collected.

Dr. Ashok Shinde who conducted the post mortem on the body of the
G deceased noticed in all 29 fire arm wounds of entry and exit altogether. In his
post-mortem notes Exhibit 122, the Doctor stated that the cause of death was
due to fire arm injuries. The injury certificate in respect of Sunil Jain (PWI 5)
is Exhibit 124 which indicates that there a gun wound on the anterior and
posterior aspect of the right arm. -.......,..

H After the fra-;-hing of charges for the offences as noticed earlier, all the
STATE or MAl-IJ\RASHTRA \I_ 13.C. RAGHANA [SETI-II, .I.] 855
six accused persons, facing the trial, denied the charges and claimed to be A
tried. A 1 admitted the genealogical tree of the Yadavs and claimed that
~-
Koldongri property was not a joint family property ofYadav Brothers, namely,
Garib, Kallu, Ballu and Jayanandan. According to him the property belonged
to Ballu Yadav alone during his lifetime and after his death had devol·1ed
upon his sons, namely, Ramdhar, Ramkeval and Ramroop. He denied of having
seen the draft documents in favour of A3. He admitted to have seen some B
documents executed in favour of Kamla Constructions, such as Agreement
Exhibit 50, copy of the conveyance executed by Bhola Yadav, Exhibit 56 and
copy of the conveyance executed by Laltaprasad Exhibit 58. He also submitted
.l
~
that copies of the proceedings in the City Civil Court being Suit N?. 260 of
1987 were shown to him. He denied his knowledge about other documents c
allegedly executed by Yadavs in favour of Kam la Constructions. He admitted
that Anand Bhat (PWl4) had agreed to pay Rs. 5 lakhs to A3. He admitted
the preparation of drafts of Exhibits 76 and 77. He also admitted that a cheque
of Rs. 45 lakhs was deposited with him by Wadia Gandhi & Company. He
denied of having any contact with Dawood Ibrahim whom he described as
notorious underworld don responsible for continuing with criminal activities D
in the city of Bombay through his hirelings. He also knew that Anees Ibrahim,
the brother of Dawood Ibrahim and Abu Salem (A9) were helping Dawood in
collecting money by extortion through their hirelings. He admitted the holding
./ of six meetings but denied that A4 had ever attended any meeting.
E
A2 admitted that Kamla Constructions had purchased some property
out of Koldongri property but denied his knowledge about the area of that
property. He admitted of having attended the meetings with Bharat Shah (A I)
and Subedarsingh (A3) for negotiation of a deal with Labh Constructions. He
denied that A3 insisted in any meeting for payment of Rs. 50 lakhs as initial
payment. According to him he had read in the newspapers about the activities F
>-- of the notorious underworld don Dawood Ibrahim and had no knowledge
about his associates. He admitted having attended only one meeting in the
office of A I. He denied his contacts with A4 whom he claimed to have seen
for the first time in police custody. He denied of having any knowledge about
.... the occurrence of 7.3.1995 and submitted that he was falsely implicated . Q,
A3 also admitted the genealogical tree of the Yadav Family and claimed
that Koldongri property was not the joint family property of the four Yadav
Brothers. He claimed that all the documents referable to him Exhibits I 07. 108,
~,,..,,.

109. IIO, 111, 112, 113, 114, 116, 131and138werethegenuinedocuments.He
claimed his interest in the property as of right and not on the basis of fake H
856 SUPREME COURT REPORTS [2001) 3 S.C.R.
t'
A documents. He admitted the fact of Kamla Constructions having purchased
the portion of the property marked "A" in Exhibit 49 and construction of two
.
>-

buildings thereon. He denied of having knowledge about the documents ... ,)I
'-""
executed by Yadav Brothers in favour of Kamla Constructions. He admitted
the receipt of Rs. 5 lakhs from Haridas & Company of Al. He also admitted
that the draft of documents Exhibits 76 and 77 were prepared by A 1. He
B denied of having any knowledge about the activities of underworld d<?n
Dawood Ibrahim and his aides. He denied of having ever visited the office
of Kam la Constructions. According to him Ashok Jain and Rakesh Jain had
come to his shop and from there they took him to the office of A 1 where they
handed over some documents to the said accused. No threat is stated to have
C been given to .Jain Brothers in the office of A 1.

A4 denied to have threatened the Jain Brothers any time either on
phone or in any meeting held in the office of A 1. He denied of having
telephoned the Bridgekamal Bungalow on 7.3.1995. He had no knowledge
about the seizure of weapons from A5 and A6. According to him he is not
D concerned with the crime and had unnecessarily been involved in the crime.

AS Subhash Bind and A6 Shekhar Kadam denied of having any
knowledge about the Koldongri property. They did not have any knowledge
about the meetings held in the office of Wadia Gandhi & Company or Haridas
& Company. They claimed that they had no knowledge about the happenings
E of Kamla Constructions on 7.3.1995. They denied the seizure of any weapon
from them. They ~lso denied the confessionalstatements made before Kausha
K. Pathak (PW38). They however, admitted that they were produced before
Arundhati A. Walawalkar (PW44), Metropolitan Magistrate on 28th August,
1995 but submitted that they have 110 knowledge of envelopes containing
F their confessional statements. They stated that PW44 did not question them
about the voluntary character of the confessional statements. As regards the
Identification Parade, A5 submitted that in the Parade he was identified by
one person about whom he complained to the SEM that the said person had
accompanied PSI Buddha in the past to the office of Crime Branch at Sandra .
where he was shown to him. ..,
G To prove its case, the prosecution relied upon oral testimony ofNarendra
Gurudas (PWl), Abdul Jabbar Mohammad (PW2), Nairn Baig, (PW3), S.K.
Naseeruddin (PW4), Jameel Ismail (PW5), Nileeh Mukund Lal (PW6), Rajendra
P. Barde (PW7), Arbind B. Dave (PW8), Manohar Narayan Bane (PW9),
.Jayantilal Devichand Gundeja (PWJO), Anil Kumar R. Pillai (PWI I), Abdul K.
H Sheikh (PW12), Suresh Kumar B. Jain (PWl3), Anand S. Bh?tt (PW14), Sunil
ST/\TE OF MAHARASllTRA v. B.C. RAGHANJ\ !SETHI, .I.] 857

Kumar B. Jain (PW 15), Chandravadan B. Shastri (PW 16), Jayprakash J. A
j.-· Mangatani (PW 17), Bharatbhai C. Shah (PW 18), Suresh P. Bhole (PW 19),
Shriniwas R. Naik (PW20), Sadanand R. Valvalkar (PW2 I), Avinash Chandra
S. Dube (PW22), Rahul P. Ambegaokar (PW23), Janardhan R. Kandke (PW24),
Dr. Ashok G. Shinde (PW25), Dr. Prashant V. Patil (PW26), Arvind A. Tamhane
(PW27), Latta Prasad J. Yadav (PW28), Subhash Chand R. Yadav (PW29), Kirti
M. Shrivastava (PW30), Ramkeval 8. Yadav (PW3 I), Baijnath Kallu Yadav B
(PW32), Jyoti Pradeep Jain (PW33), Ramashankar R. Yadav (PW34), Ramroop
B. Yadav (PW35), H.C. Waman J. Bagu! (PW36), PSI Satish M. Gadhve (PW37),
~ DCP Kausha K. Pathak (PW38), Suhel M.S. Buddha (PW39), Jayant K. Kher
(PW40), SEM Satyaprakash Sarda (PW4 I), H.C. Rajaram S. Patil (PW42), AP!
Yeshwant R. Nerkar (PW43), Arundhati A. Walawalkar (PW44), Ashok Jain c
(PW45), Pl Jadhav (PW46), Vishwajit Bhusane (PW47), ACP Anil Talade
(PW48), Jt. Comissioner of Police (PW49), besides hundreds of documents
which were legally proved and exhibited at the trial. Prosecution also relied
upon confessional statements of Subhash Bind A5 and Sekhar Kadam. A6.

A5 and A6 produced four witnesses in their defence. Namdeo (DW) is D
the father of A6 who has stated that on 3.7.1995 at about 3.30 a.m. the DCM
officers of the CID entered in his house and took away A6 in a white
Ambassador Car telling that the said accused will be released in the morning
after his elder son returns. Ramjeevan Yadav (DW2) stated that on 3.7.1995
at about 8.00 a.m. A6 along with some officers came to the house of A5. They
had tethered the hands of A5 by rope and took him away in the car. Anil E
Kumar Singh (DW4) who is a Press Reporter for Times of India stated about
a press conference which was addressed by Joint Commissioner of Police Shri
R.S. Sharma. He proved the report Exhibit 271 which was published in Times
of India on 4.7.1995. Hewmant (DW5) stated he had taken the photograph
)-·
Exhibit 271 which was published in the Times of India dated 4.7.1995. F
After discussing the prosecution evidence in detail, the trial court held
that the following circumstances had been proved by the prosecution :

(I) The Koldongri property is a substantially big land which will
fetch the value of much more than Rs. I0 crores.
G
(2) The accused No. 3 Subedarsingh Yadav on 30.9.80 prepared the
fake documents, namely, Exhibits I07, I08, I09, 110, 111, 112, 113,
114, 116, 131and138.

(3) Accused No. 3 Subhedarsingh is closely connected with accused
No. 2 Rajan Fernandes in the sense that through Rajan Fernandes H
858 SUPREME COURT REPORTS [200 I] 3 S.C.R.

A alone, he approached PWJ6 Chandravadan Shastri. and thereaJter,
the link was established with Lab Constructions.

(4) Accused No. 3. Subhedarsingh is also having connection with
accused No. 4 ShaukatalL In the meeting at Rizvi Park which
took place in November, 1992, he was present alongwith the
B close assocfate Abu Salem and Riyaz Siddiqui.

(5) Accused No. I Bharat Raghani cannot be said to be a stranger
... to the criminals from Dubai in the sense that he had the occasion
to meet Lal it Dholakia and Riyaz Siddique at Dubai on or about
22.4.92 (the passport at Ex. 209 states that he lived in Dubai in
c the period bet"Veen 22.4.92 to 24.4.92).

(6) Accused No. 4 Shaukatali visited the office of Karola
Constructions from time to time from September 1994 onwards
and forced the Jain Brothers to attend the meetings at. the office
of Bharat Raghani by posing that the purchaser party was a big
D party. They had links with the underworld ;md they should give
up their share in the property.
(7) The contracts were regularly maintained from various
communication centres by telephoning Dubai on T. Nos. 226670
and 242939.
E (8) In the meetings which were held in the office of accused No. I
Bharat Raghani under his very nose, accused No. 3 Subedarsingh
and accused No. 4 Shaukatali threatened the Jain Brothers asking
them to sign the documents.

(9) The women folk in the house of Jai Brothers were threatened on -:
F
phone and the caller used to tell sometimes that he was Shaukatali
and sometimes that he was Bharat Raghani and they were
speaking from the office.of Bharat Raghani.
(10) Accused No. 4 Shukatali about 8-10 days prior to the date of
offence asked PW,1_2.Abdul Kadir Shaikh, that the would advise
G his friend Pradeep Jain that "Pradeep Jain balbacchewala aadmi
hai, usne gali Diya hai, usko bo.lo mafi maang lo, baat khatam ho
jayegi." These words he had uttered after telephoning the witness
Y-·
that Pradeep Jain had abused Abu Salem. Accused No. 3. a day
or two thereafter, again inquired with this witness as to whether
H he had spoken about the same to Pradeep Jain. The witness
I

STATE OF MAHARASHTRA v. 13.C. RAGllANA [SETlll, .I.] 859

avoided to tell the truth telling that he did not meet Pradeep Jain A
and he should not talk on that matter again to him. Still a day
or ~wo thereafter, Shaukatali telephoned him and inquired with
him as to whether he had any discussions with Pradeep Jain and
then he told him that he should not contact him again no that
count and saying so, he disconnected the phone.
B
(11) On 27.2.95, as is seen from the statement of PW30 Kirti Shrivastav,
accused No. 4 Shaukatali and one other person were seen talking
Pradeep Jain and in that Pradeep Jain told accused No. 4
.. Shaukatali "Mai who sab nahi Janata, mere to film businesk hai,
aap log mere pichhe kyon pade hai?" and later on, Shaukatali
said to Pradeep Jain while going that "Pradeepbhai Sambhalke C
rahena baadme muze bolana mat."
(12) Accused No. 4 Shaukatali telephone PW 15 Jain abouf 15-20
i
minutes prior to the incident on 7.3.95 in the office and ,inquired
with him "sab Kuch tik hai kya"? He was exceedingly polite for
the first time on that day. He also questioned as to who all were D
present in the office and when the witness replied that he himself
Pradeep Jain and Anil Kumar were there, then he made the
query, "Sab Kuch tik hai kya?"
(13) Accused No. 4 on that day, at about midnight went to the house
of PW9 Manohar Bane and telling that he will phone up his wife E
and return soon, went out and came back and slept at his place.
(14) On the next day, after reading the news item at the Churchgate
station, he went to the DCP, DCB CID office and surrendered
before the police. This circumstance of accused No. 4 Shaukatali
surrounding himself to the police was submitted to be a F
circumstance in favour of the accused by Shri Pashbola. There
appears to be some substance in what Shri Pasbola says. But
at the same time, the human mind has got unfathomable depth
and if accused No. 4 Shaukatali felt that the investigation is
likely to lay a hand on him, he may think of reporting to the G
police on his own and create a circumstance in his favour."

The trial court thereafter posed a question to itself: "If all these
circumstances are taken up together do they lead up to say that accused Nos.
I to 4 had conspired to commit the murder of Pradeep Nos. 1 to 4 had
conspired to commit the murder of Pradeep Jain and attempt the murder of H
860 SUPREME COURT REPORTS [200 I] 3 S.C.R.

A PW 15 Sun ii Jain? Are these circumstances in any way sufficient to say that
accused Nos. I to 4 contacted Abu Salem (A9) and ma_naged the cqntract -..t
killing"? After negating the voluntary nature of confessions and conceding
a doubt in establishment of contracts at Dubai, the trial court concluded :

"By excluding the evidence in the form of the telephone bills, then
B what remains in the case is that accused Nos. I to 4 threatened the
Jain Brothers and exe1ied unusual pressure on them to come to the
terms and to sign the documents. This circumstances coupled with
the previous and subsequent conduct of accused No. 3 Shatikatali
may appear to be a very strong circumstance, but does this
circumstance leads us for recording a finding ofproofofthe conspiracy
c to kill Pradeep Jain or to attempt to kill Sunil Jain, thus looking to all
these circumstances, it appears to the judicial mind that these
circumstanr::es fall short in concluding that there existed a conspiracy
to kill Pradeep Jain and attempt to kill PWI 5 Sunil Jain".
The Court further held'.:
D
"Had the witnesses_ of all the communication centres also identified
the accused telling that they had visited their communication centres
and they had contacted on the particular number at Dubai, then in that
event, this would have been an additional circumstances against the
accused. Then in that event, this would have been an additional
E circumstance against the accused, the confessional statements had
they been believed by the court, would have been sufficient to hold
that the particular number was used for contacting Abu Salem at
Dubai."

F It was found that prosecution had created a su~picion in the mind of the court --<
about the probability of A I, A2 and A3 managing through A4 to get in touch
with Abu Salem A9 who ordered the killing but observing thaf suspicion,
however strong cannot take the place of proof, the trial couii concluded for
giving the benefit of doubt to the accused vide the judgment impugned in
this appeal filed under Section I 9 of the Constitution of India.
G
We have heard the learned counsel appearing for the parties at length
and the appeal being a statutory appeal have critically examined the evidence
of the prosecution witnesses, the effect of the documents produced and
proved and the legality of the confessional statements made by AS and A6.

H It is not disputed that epicenter of all the prosecution evidence are the
STATE OF MAHARASHTRA v. B.C. RAGHANA [SETHI • .I.] · 861

confessional statements of A5 and A6 recorded by DCP Kaushal K. Pathak A
(PW38). The confessional statement of A5 Exhibit 147 (pages I 720-1722, Vol.
VII of the paperbook, Exhibit I .+9 (pages I 726-1732, Vol. VII ofthe-paperbook,
Exhibit 148 (pages I 723-1725, Vol. VII of the paperbook, Exhibit I 50 (pages
1733-1739, Vol. Vil of the paperbook) were recorded in exercise of the pow~rs
conferred upon the Police Officer under Section 15 of the TADA Act. The
confessional statements were not relied upon and excluded from the evidence B
by the trial court on the grounds that (i) the Magistrate, before whom the
accused were directed to be produced along with original statements of
confession in terms of Rule I 5(5) of the rules framed under the TADA Act
(hereinafter referred to as "TADA Rules"), had failed to inquire from the
accused as to whether they had made voluntary statements before the police C
officer and to record the replies of the accused; (ii) that as PW48 had received
a call on 27th August, 1995 to carry the confessional statements to the
Magistrate, its recording on 28th August, 1995 was highly improbable; and
(iii) that there were interpolations in the original confessional statements
recorded by PW38.
D
Before dealing with the ground which prevailed upon Designated Trial
Judge to exclude the confessional statements, it is necessary to note some
of the observations of the trial Judge regarding the confessional statements.
In para 76 of his judgme1.t (page 2 I 4 of the Paperbook) after referring to
Exhibits 14 7 to 150, the Judge observed :
E
"By looking to the questions, it appears that by putting certain
questions to these accused the officer did ascertain that the accused
persons very voluntarily confessing the guilt.. .. "

Despite noticing the omission of the certificate, below the confessional
statements as per requirement of Rule 15(3) of the TADA Rules and relying F
upon the judgment of this Court in Mr. Sharafathussaln Abdulrahaman
Shaikh & Ors. v. Sate of Gujarat & Anr., (1996) 4 Crimes 244 SC the Court
held that "absence of the certificate below the confessional statement will not
make the confessional statement ipso facto a piece of paper worth throwing
in the-----dustbin. The officer can very well appear in the witness box and satisfy G
the court that the confessional statement was voluntarily made ...... ". The trial
court further held that "looking to the statement of DSP it appears that the
confessional statements have been made voluntarily by the accused".
Rule 15 of the TADA Rules provide:
"15. Recording qf confession made to police ofjicers--{_i) A confession H
862 SUPREME COURT REPORTS (200 I] 3 S.C.R.

A made by a person before a police officer and recorded by such police
officer under Section l 5 of the Act shall invariably be recorded in the
language in which such confession is made and if that is not
practicable, in the language used by such police officer for official
purposes or in the language of the Designated Court and it shall form
part of the record.
B
(2) The confession so recorded shall be ~hown, read or played back
to the person concerned and if he does. not understand the language
in which it is recorded, it shall be interpreted to him in a language
which he understands and he shall be at liberty to explain or add to
his confession.
c
(3) The confession shall, if it is in writing, be-

(a) signed by the person who makes the confession; and

(b) by the police officer who shall also certify under his own hand
D 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 to the following
effect:

E "I have explained to (name) that he is not bound to make a
ponfession and that, if he does so, any confession he may make may
lbe used.as evidence against him and I believe that this confession
was voluntarily made. It was taken in my presence and hearing and
recorded by me and was read over to the person making it and
admitted by him to be correct, and it contains a full and true account
F
of the statement made by him.
Sd/- Police Officer."

(4) Where the confession is recorded on any mechanical device, the
memorandum referred to in sub-rule (3) in so far as it is applicable and
a declaration made by the person making the confession that the said
G
confession recorded on the mechanical device has been correctly
recorded in his presence shall also be recorded in the mechanical
device at the end of the confession.
r-
(5) Every confession recorded under the said Section 15 shall be sent
H forthwith to the Chief Metropolitan Magistrate or the Chief Judicial
STATE OF MAHARASHTRA v. B.C. RAGHANA (SETHI, .I.I 863
I
Magistrate having jurisdiction over the area in which such confession A
has been recorded and such Magistrate shall forward the recorded
confession so received to the Designated Court which may take
cognizance of the offence."

Sub-rule (5) of Rule 15 of the TADA Rules provides that the confession
recorded under Section 15 of the TADA Act shall be sent forthwith to the B
Chief Metropolitan Magistrate or the Chief Magistrate having jurisdiction
over the area in which such confession has been recorded and such Magistrate
shall forward the record of confession so received to the Designated Court
...
) which may take cognizance of the offence. Rule 15 does not oblige such
Magistrate either to open the envelop containing the confessional statement C
recorded by the police officer or to satisfy himself regarding the voluntary
nature of the confession. The Magistrate, at the most, can record the statement
of the accused if made regarding alleged harassment, torture or the like. If the
Magistrate, referred to in Sub-rule (5) of Rule 15 has to ascertain the voluntary
nature of the confessional statement, the purpose of Section 15 authorising
a police oftker to record the confessional statement shall stand frustrated. ItP
was, therefore, not correct on the part of the Designated Judge to hold, "it
was obligatory on the part of the Magistrate to question the accused as to
whether they had made the said statements voluntarily or otherwise and that
ought to have been formed as a part of the record of the confessional
statements which were sent to her". The Designated Judge has also erred in E
holding that the Magistrate had not discharged the duties which were cast
on her properly. The observations, "Had she recorded a memorandum below
the confessional statements that she had questioned the accused about the
averments in the said statements and she vouched the said confessional
statements to be voluntary and correct" then in that event, the confessional
statements would have inspired the confidence of the court to believe that F
they are free from any of the influences. The Magistrate is not expected to
take the position of a superior postman in the sense, receive the confessional
statements and forward the same to the TADA Court by putting it in another
envelope. The moment she receives the confessional statement, it should
occur to her as to why they are sent to her? What is she required to do with G
them? Had the Magistrate been meticulous, it would have occurred to her that
she is required to question the accused as to whether they have really
confessed in the manner recorded in the statement and in that event, in
---< normal course, she would not have forgotten to make a memorandum below
the confessional statements. Her writing to this effect below the confessional
statements would have been of great assistance to the cause of justice" are, H
I
864 SUPREME COURT REPORTS [2001]3 S.C.R.

A therefore, uncalled for.

In Kartar Singh v. State of Punjab, [ 1994] 3 SCC 569 a Constitution
Bench of this Court laid down the following guidelines to ensure that the ---<
confession obtained in the pre-indictment interrogation by a police officer
, was not tainted with any voice but was in the strict conformity with the well
:B · recognised and established aesthetic principles of fundamental fairness :
"(I) The confessional should be recorded in a free atmosphere in the
.same language in which the person is examined and as narrated by
him·
·' ...
(2) The person from whom a confession has been recorded under
c Section 15( I) of the Act, should be produced before the Chief
Metropolitan Magistrate or the Chief Judicial Magistrate to whom the
confession is required to be sent under Rule 15(5) along with the
original statement of confession, written or recorded on mechanical
device without unreasonable delay;
D (3) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate
should scrupulously record the statement, if any, made by the accused
so produced and get his signature and in case of any complaint of
torture, the .perso11 should be directed to be produced for medical
examination before a Medical Officer not lower in rank than of an
E Assistant Civil Surgeon;

(4) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, no pol ice officer below the rank of an Assistant
Commissioner of Police in the Metropolitan cities and elsewhere of a
Deputy Superintendent of Police or a police officer of equivalent rank,
F should investigate any office punishable under this Act of 1987. ,_
This is necessary in view of the drastic provisions of this Act. ---<
More so when the Prevention of Corruption Act, 1988 under Section
17 and the Immoral Traffic Act, 1956 under Section 13, authorise only
a police officer of a specified rank to investigate the offences under
those specified Acts.
G
(5) The police officer if he is seeking the custody of any person for
pre-indictment or pre-trial interrogation from the judicial custody, must
file an affidavit shown by him explaining the reason not only for such
custody but also for the delay, if any, in seeking the police custody;

H (6) In case, the person, taken for interrogation, on receipt of the
STATE OF MAHARASHTRA v. B.C. RAGl-IANA [SETI-II, .I.] 865
statutory warning that he is not bound to make a confession and that A
if he does so, the said statement may be used against him as evidence,
y-
asserts his right to silence, the police officer must respect his right
of assertion without making any compulsion to give statement of
disclosure;"

Guideline (3) mandated the concerned Magistrate to scrupulously record :B
the 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 the Assistant Civil Surgeon. (Emphasis supplied). No duty is cast upon
~
concerned Magistrate to record the confessional statement afresh or himself/
herself ascertain the nature of and the circumstance under which the
c
confessional statement was made unless a complaint is made by the accused
regarding torture, etc.

Smt. Arundhati A. Walawalkar (PW44) in her statement recorded by the
trial court on 17.4.1997 (page 1910, Vol. VII of the paperbook) stated that A5 D
and A6 were brought to her for remand along with two separate envelopes
allegedly consisting of their confessional statements. She deposed that it was
the usual practice to put question to the accused when they are produced
1 for remand asking them if they had any grievance. If the accused made any
grievance, the same used to be made a part of the remand order. She further
stated, "in this case the accused did not make any such grievance and,
E
therefore, the remand report does not mention that they have got any
grievance ...... ! was aware that the confessional statements are to be sent to
the Designated Cou_rt after verifying from the aced. whether the confessional
statements are voluntary or it was extracted by using pressure or coercion.
The Magistrate's task was to ascertain this fact and accordingly I did so and F
~
send the same to the Designated Court".

Therefore, in view of the provisions as contained in Section 15 of the
TADA Act, Rule 15 of the TADA Rules and law laid down oy this Court in
Kartar Singh 's case (supra) the Designated Judge committed a mistake of law
in not relying upon the confession on the ground that PW44 had not given
G
a separate certificate and had not herself inquired about the voluntary nature·
of the confessional statement.
·-nf
1 Similarly, referring to the investigating officer ACP Anil Talpade (PW48),
the Designated Court wrongly held that the confessional statements could H
866 SUPREME COURT REPORTS [2001] 3 S.C.R.

A not have been made on 28th August, 1995 as the said witness had stated to
have received telephone message from DCP on 27th August, 1995 directing
him that the arrangements should be made for carrying the packets to "'<
Metropolitan Magistrate containing the confessional statements recorded by
him. The trial Court observed :

B "If the confessional statements were recorded on 28.8.95, how could
the DCP telephone the ACP to collect the packets containing the said
confessional statements on 27.8.95 in the evening?"

It has come in the evidence of PW38 that the statements of the accused
C were recorded on 21st August, 1995 and on 28th August, 1995. On the first
dated, i.e. 21st August, 1995 PW38 had put certain questions to the accused
to ascertain as to whether they were making the voluntary statement or such
statement was being made under the influence of the police. Despite the fact
that the accused persons told PW38 that they were making statements of their
own free will, were not under the influence of the police, had not been
D threatened or lured to make the confessional statements nor assured to be
released after making the confessional statements and not bound to make the
statement, the accused had replied that they wanted to admit everything,
PW38 informed the accused, "I will not record your statement inspite of your
willingness to do so. You are being given time till 28th August, 1995 to think
E over it. Do you understand this? The DCP then recorded that accused were
being given time till 28th August, 1995 to finally make their mind. He recorded:
"I told to produce the accused again on 28.8.1995". It is. therefore, clear that
PW38 knew that the accused had to make a statement on 28th August, 1995
whether confessing the crime or retracting from makin/$ the confessional
statement. In order to ensure that the statements to be recorded on 28th
F August, 1995 are immediately sent to the concerned Magistrate, PW 38
appears to have directed on 27th August, 1995 in the evening to ACP Anil
Talpade (PW48) that arrangements should be made on the next date for
carrying the packets containing the confessional statements to the Metropolitan·
Magistrate. In view of the statement of PW38 it cannot be said that the
G confessional statements were not made on 28th August, 1995 particularly
when the accused had not taken a stand that any statements of theirs was
recorded on 27th August, 1995. The learned trial court rejected the confessional
statements of A5 and A6 by adopting a hypertechnical approach on the basis
of its imaginative thoughts without having regard to the actual evidence led •
in the case particularly ignoring the statement of PW48 who, in his statement
H recorded on 5.5.1998, had specifically stated :
STATE OF MAHARASHTRA v. 13.C. RAGHANA [SETHI, .I.] 867

"My office is housed on the first floor of Santacruz P. Stn. On 28.8.95 A
at about I 0/10.30 a.m. I received the telephone from the DCP Zone-
'r- X telling that the confessional statements were recorded and I should
make arrangements to collect the sealed packets and to take the
accused in the custody. Accordingly I directed PI Bhalwankar to do
the needful. In the evening PI Bhalwankar met me and told me that
he had taken the sealed pockets and handed them over to the 44th B
Court Andheri. He also told me that the accused were also produced
before the court and the Crime Branch Officer took the accused in
their custody from the court."
T
The other ground for rejecting the confessional statement, as noticed
by the Designated Judge, is alleged interpolations in confessional statements.
t
It may be noticed that the confessional statements were recorded in Marathi
language in Devnagri Script. The statements were typed wherein some names
and dates have been shown in bold letters. The use of bold letters does not
make the confession doubtful justifying the conclusion that there had been
interpolations. The bold letters are intended to highlight the importance of the b
names and words. The bold letters in darker ink refer to the name of"Kaushal
Kumar P~thak, IPC and dates of 21st August, 1995 and 28th August, 1995".
Referring to such bold letters in darker ink and some space in typing, the trial
J court held, "great room of doubt is created in the mind of the court that the
confessional statements Exhibits 147 and 148 are ante dated statements". To
a question: "You referred to the writing reading 'Kaushal Kumar Pathak' and
E
writing reading 'Bhalwankar A.N.' and the writing reading '21' and the writing
'l l.45' and the writing '923/Upa' and the writing '8.8.1995' and the writing
'Vilas Madhukar Dabhakar' and the writing 'Bhalwankar A.N.' in Ex. 147 on
page one and the writing '28.8.95.' on page No. 2 and the writing '28.8.95' and
___..._____ '28.8.95' on page 3 and the writing on the same line in Ex. 148 and the further F
writing '28.8.95' '21' on page I of Ex. 149 and similar writing on Ex. 150 and
tell the court as to whether those appears to be the blanks filled up
subsequently", the witness (PW38) replied that there were no blanks filled in,
but the typist might have pressed the fingers hard so that those writings
appeared a bit darker. The witness categorically stated that : "It is not true
to say that the confessional statements were already typed by leaving the
G
_. above stated places blank and subsequently my office did the job of only
filling the blanks under my directions and in reality none of the accused have
~<
confessed the guilt before me as alleged by me and that it is only a record
created to suit the purpose of the prosecution. I deny the averments that the
aforesaid figures are not in alignment with the other writings. It is not true H
868 SUPREME COURT REPORTS [2001] 3 S.C.R.

A to say that the said aforesaid words and figures are not from the same
typewriter on which the other matters were typed and that the said interpolation ·
has been carried out by using a different typewriter". In view of specific ~
denial and there being no evidence to the contrary, . the trial court committed
a mistake of law in not relying upon the confessional statements of AS and
A6 which were otherwise held by him to be voluntarily made.
B
Appearing for the aforesaid accused person Mr. Bhaskar Y. Kulkerni and
Mr. R.C. Kohli contended that as the mandate of Rule l S(3) of the TADA
Rules has not been complied with because PW38 had not made a memorandum
at the end of the confession in the form specified therein, the confessional
C statements cannot be held admissible in ~vidence and relied upon as a piece
of evidence against the accused persons. It is true that PW38 has not
recorded the memorandum as desired by Sub-rule (3) of Rule IS of the T Af)A
Rules but it is equally true that except for the aforesaid memorandum, PW 38
has complied with all the mandatory provisions of Section IS of the TADA
Act. He has also proved to have followed the guidelines laid down by this
D Court in Kartar Singh 's case (supra). From the questions put by PW38 to the
accused, the trial court was satisfied and we do not have any hesitation to
hold that the confessional statements Exhibits 147 to l SO, were made by AS
and A6 voluntarily, without any threat, inducement or pressure and strictly
in accordance with the mandate of the TADA Act as interpreted by this Court
E from time to time.

The reliance of the learned cou1isel on Sharafathussain 's case (supra)
is misplaced, as rightly pointed out by the trial court. In that case, admittedly,
in none of the four confessions any memorandum was appended and PW6
who recorded the confessional statement, when appeared in the Court did not
F testify about his such satisfaction or belief. That is not the position in the
present case where PW38 has categorically stated that "I was satisfied that
he was voluntarily making the confessional statement. Still I give him time to
think over the matter. I also warned him that he will be called again on 28th
August, 1995 for recording the confessional statement.. .. From the question I
G had put and the replies which he had given, I was convinced that the accused
is giving the statement voluntarily."

The confessional statements of A5 and A6, Exhibits 147 to I SO are,
therefore, held to have been voluntarily made and legally recorded which are
admissible in evidence and can be used against all or some of the accused
H in the light of other evidence produced in the case.
STATE OF MAHARASHTRA v. B.C. RAG HANA [SETHI, .I.] 869

In his confessional statement Subhash Bind (A5) had stated that at the A
time of murder of Pradeep Jain, he along with Rajesh Igwe (A I 0), Sun ii Nair
'r (A 11), Udai Pawar (A 12), Sekhar Kadam (A6) and Sanjay Kadam (Al3) were
present at the place of occurrence. He was friendly with Udai Pawar (Al2),
Sekhar Kadam (Al3), Rajesh Igwe (A 10), Sunil Nair (Al I), and Sanjay Kadam
(A 13). Udai Pawar (A 12) was working in Rubi Mills, Dadar but that work did
not soothe his criminal nature. He along with Sekhar Kadam (A6) and Sanjay B
Kadam (A 13) were earlier arrested in 1991-92 in connection with threatening
an.d murdering at Dongriwali in which he was released on bail. Since the
~ accused was jobless and could not get a job, he was persuaded by accused
Sekhar Kadam and Sanjay Kadam to work with them for which he would be
highly rewarded. When asked about the nature of the work, he was told that c
he wou}d have to do fighting, kidnapping and murder, etc. He came to know
the connections of the other accused persons with Dawood Ibrahim. Under
the directions of Udai Pawar (A 12), he and Sunil Nair (A 11) had opened firing
at the owner of Hamco Steel Centre, Andheri on 31st October, 1994. On
7 .3 .1995 the said accused Rajesh Igwe (A I 0), Sunil Nair (A 11 ), Udai Pawar
(A 12), Sekhar Kadam (A6) and Sanjay Kadam (A 13) had all fired at Pradeep D
Jain. He along with others had also kidnapped one Harish Bhatia of Kandiwoli.
Udai Pawar was having contacts with Abu Salem (A9) and Anees Ibrahim of
1 Dawood Ibrahim gang in Dubai over the phone where he used to call frequently.
The accused used to get Rs. 500 to Rs. 700 per week besides Rs. 5,000 to
10,000 after every firing. He had learnt to handle revolver, pistol loading, etc. E
when he was in the Army attachment camp of NCC. Rajesh Igwe (AlO), after
calling on telephone numbers 009714226670 and 009714242939 at Dubai told
him that "Bhai" had ordered to murder Pradeep Jain. By "Bhai", he meant Abu
Salem (A9). He was further told that Rajesh Igwe (A 10) and Suni Nair (A 11)
would stand in front of Mithibai College at a time when a person would come
and show the house of Pradeep Jain. Rajesh Igwe (A 10) had told Sekhar F
Kadam (A6) that Pradeep Jain was causing obstruction in a land transaction
whereas his other two brothers were ready and when Bhai· (A9) contacted
Pradeep Jain, he talked to him rudely which invited the wrath of Bhai to order
his murder. They had kept the watch on the house of Pradeep Jain for one
week. Rajesh Igwe (A I 0) had made a plan to attack Pradeep Jain. As per plan
(}
Rajesh Igwe (A 10) and Sunil Nair (A 11) were to inquire from the watchman
of the building as to whether Pradeep Jain was in the office or not. The
_,.,... moment watchman said yes, both of them were to take him to the office at
the point of revolver and Udai Pawar and Sekhar Kadam were supposed to
be on the main gate to ensure that none else entered the premises. Sanjay
Kadam was to stand on the road to keep a watch outside. On 7 .3. 1995 in the H
870 SUPREME COURT REPORTS (2001] 3 S.C.R.

A evening Subhash Bind (A5), along with Rajesh Igwe (A 10), Sunil Nair (A 11),
Udai Pawar (A 12), Sekhar Kadam (A6) and Sanjay Kadam (A 13) assembled on
the ground behind the house of Sunil Nair at Motilal Nagar No. 1. He took
revolver 38. Sekhar Kadam had a small pistol of7.65 bore whereas Udai Pawar
had a small pistol of .32 bore. A5 had brought one 9 mm revolver and .38 bore·
B revolver in a plastic bag. 9 mm pistol was taken by Rajesh Igwe and .38 bore
revolver was taken by Sunil Nair. All the weapons were filled with live
cartridges. After the distribution of weapons behind the house of Sun ii Nair,
all the aforesaid accused persons travelled by bus route No. 252 to the house
of Pradeep Jain at about 1930 house. They stood at some distance in front
of the bungalow and kept a watch. At about 8 or 8.15 p.m., the watchman of
C Pradeep Jain came out with the kids. While he was going in, the small kids
ran inside. When watchman was walking towards the gate, Rajesh Igwe (A I 0)
caught hold of him and took him inside with the assistance of Sunil Nair
(A I I). Sekhar Kadam and Udai Pawar closed the gates. Rajesh Igwe (A IO) and
Sekhar Kadam (A6) entered through the glass door along with the watchman
D and A5 st?od outside the glass door. He heard the sound of firing whereafter
Rajesh Igwe and Sunil Nair and the other accused came out and starting
running. They came to the Rickshaw stand from where they left for Andheri.
He was paid Rs. 10,000 for this attack by Rajesh Igwe (A I 0). He confessed
that he along, with Shashikant Yadav had brought the weapons from Bhendi
Bazar. He gave tbe details of how the weapons were earlier supplied to them.
E He further confessed that whenever he needed money, he ·used to contact
Bhai, i.e. A9 over the telephone who would tell him to go to Jogeshwari or
Sandra, Mahim, Haji Ali, Bhendi Bazar, etc. where a person used to come and
give him the requisite money .

. To the same effect is the confessional statement of A6.
F
Both the accused persons have not disclosed about their connections
with A 1, A2, A3 and A4. There is no other evidence on record to show that
any of the accused, namely, A7, A8, A9, A12, Al3 were known or had met
A 1, A2, and A3 at any point of time before 7.3.1995. The cause of murder,
G as disclosed in confessional statements, is refusal of Pradeep Jain to part with .
the property and alleged misbehaviour of talking rudely to Abu Salem (A9).
In the absence of any evidence of A 1, A2 and A3 having secured the services
of A9, it cannot be said beyond all reasonable doubts that they were parties
to the conspiracy for the crime of murder of Pradeep Jain or for the commission
of the offences under TA DA Act. A3 is shown to have harassed and coerced
H the Jain Brothers through A4 to sign the release deeds with respect to
STATE'OF MAHARASHTRA v. 13.C. RAGllANA [SETHI, J.) 871

prop\'!rty (B) in their possession. To connect A I to A4 with the other accused A
persons for the commission of main offence, the prosecution has relied upon
an important circumstance, namely, the threats given by A4 to Jain Brothers
in the office of A 1. If the aforesaid circumstance of giving threats of being
eliminated in case they did not sign the release deeds is accepted, it may be
possible to hold that A 1 to A4 are also involved in the conspiracy with the B
other accused, the object of which was to cause the death of Pradeep Jain
and injuries to Sun ii Jain (PW 15).

Shri Kotwal, learned Senior counsel appearing for A 1 drew our attention
1 to the statement of Sun ii Jain (PWI 5) wherein he had stated "I do not
remember if I stated before the police that Shaukatali visited our office 15 C
times before Diwali". He had stated in his examination-in-chief that in the
fourth meeting held in the office of A 1 which was attended by the witnesses
Ashok Jain, Pradeep Jain, A I, A2, A3, A4 and four-five other persons, the
accused persons had threatened Jain Brothers that without signing the
document they will not reach the downstairs alive. In cross-examination hb
reiterated that, "I had stated before the police that when we were sitting in D
the chair the person on the side of the accused who were sitting on the other
chairs at times got up and took the posture to indicate that they were likely
to use force, Pradeep,told Raghani then that you are a famous solicitor and
such things should not happen in your office I gathered an impression that
aced No. 1 Raghani had gone through the documents still he did not open E
his mouth when other threatened us in the meeting, in that meeting they all
threatened us that without signing the documents if we dare to go downstairs
we will not go to downstairs, we told them that there were lots up of investors,
they told us we should sign the documents". When confronted with the
statement recorded under Section 161 of the Criminal Procedure Code, the
r witness stated "I cannot state the reason if it is not so written in my statement F
~.'
(
before the police". ACP Anil Talpade (PW48) who is investigating officer of
the case and had recorded the statement under Section 161 Cr.P.C. in his
cross-examination before the court submitted:

"PW 15 Su nil Jain did not tell before police that aced. No. 4 Shaukatali G
came to his office to tell that he should surrender his right in Koldongri
property. PW15 Sunil Jain did not state before me that in the meeting
ofDiwali 94 he was told to attend the office of Bharat Raghani. PW15
Sunil Kumar did not state before the police that his brother Suresh
attended the first meeting. PW 15 Sun ii Jain did not state before me
that his office of Raghani. PW 15 Sun ii Jain did not state before me H
872 SUPREME COURT REPORTS [2001] 3 S.C.R.

A that when they were sitting in the chair the persons on the side of
the aced who were sitting on the other chair at times got up and took
the posture to indicate that they were likely to use force, Pradeep told
Raghani then that you are a famous solicitor and such things should
not happened in your office, he gathered an impression that aced no.
Raghani had gone through the documents still he did not open his
B mouth. When meeting they all threatened them that without signing
the documents if they dared to go downstairs they will not go
downstairs."

In the light of the statement of PW48, it cannot be said that Sun ii Jain
C (PW 15) had made a statement with respect to the threats allegedly given by
A4. Had it been true, such an important aspect of the case could not be lost
sight of. Failure to mention such an important circumstance cannot be held
to be merely an omission. Such an omission would amount to contradiction.
The word "contradiction" is of a wide connotation which takes within its
ambit all material omission·s and under the circumstances of the case a court
D can decide whether there is one such omission as to amount contradiction.
This Court in Tahsildar Singh & Anr. v. State of U.P., AIR (1959) SC 1012,
held:

" 'Contradict' according to the Oxford Dictionary means to affirm to
the contrary. Section 145 of the Evidence Act indicates the manner in
E which contradiction is brought out. The cross-examination Counsel
shall put the part or parts of the statement which affirms the contrary
to what is stated in evidence. This indicates that there is something
in writing which can be set against another statement made in evidence.
If the statement before the police officer - in the sense we have
indicated - and the statement in the evidence before the Court are so
F inconsistent or irreconcilable with each other that both of them cannot
co-exist, it may be said that one contradicts the other.

It is broadly contended that a statement includes all omissions which
are material and are such as a witness is expected to say in the normal
course. This contention ignores the intention of the legislature
G expressed in S. 162 of the Code and the nature of the non-evidentiary
value of such a statement, except for the limited purpose of
contradiction. Unrecorded statement is completely excluded. But
recorded one is used for a specified purpose. The record of a statement,
however, perfunctory, is assumed to give a sufficient guarantee to the
H correctness of the statement made, but if words not recorded are
ST/\TE OF Mt\11/\RASHTR/\ 1·. 13.C. RMlllANA ISETHI, .I.I 873

brought. in by some fiction, the objection of the section would be A
defeated. By that process, if a part of a statement is recorded, what
was not stated could go in on the sly in the name of contradiction,
whereas if the entire statement was not recorded, it would be excluded ..
By doing so, we would be circumventing the section by ignoring the
only safegl'ard imposed by the legislature, viz., that the statement
should have been recorded." B

It appears that after the death of his brother Sun ii Jain (PW 15), upon'
his belief, tried to implicate A I to A3 in the case of murder of his brother. In.
the absence of any threat or any other circumstance indicating the intention
of A I, A2 and A3 to kill any of the Jain Brothers, it would not be safe to hold C
them guilty of murder on such a shaky and unreliable evidence to that extent.
It may further be noticed that no avert and covert act in this regard is ,
attributed to A2. A I is shown to have not observed the professional norms
by calling the Jain Brothers i.n his office to facilitate the execution of release
deeds in favour of his client A3. Such a course of conduct may be
unprofessional but cannot be described to be criminal warranting a conviction D
under any provisions of the !PC or TADA. We· are, therefore, satisfied that
A I and A2 were not involved in the commission of the crime for which they
were charged or any other crime of lesser effect. There is no need ofreturning
a finding against A4 who was also a broker and is stated is stated to have
died in a police encounter, unless his complicity is required for the purpose E
of determining the guilt of any other accused.

It is established by the pr'osecution that by the intended transaction of
property deal in favour of Labh Constructions, the immediate beneficiary was
A3 and ultimate beneficiary Labh Constructions. Subedarsingh A3 is proved
>: to have forged documents Exhibits 107, 108, 109, 110, 111, 112, 113, 114, 116, F
131 and 138 for the purposes of completing the sale with the Labh
Constructions for which he procured the legal services of respondent No. I.
He is also proved to have. got the services of Shaukatali A4, a broker for
completion of the deal. Even though there is no evidence that A3 contacted
or knew any of the Accused Nos. A5 to A 13, yet it has come on record that G
Shaukatali A4 helped him in the transaction. Disbelieving the portion of the
statement relating to the threats given by the said accused to the Jain
Brothers, the prosecution has placed on record sufficient evidence to show
~,...[ that Shaukatali A4 had been visiting the Jain Brothers and compelling them
to complete the transaction by executing the released deeds in favour of A3.
On appreciation of evidence, the trial cou11 reached a conclusion that A3 was H
874 SUPREME COURT REPORTS [200 I] 3 S.C.R.

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

Learned counsel appearing for respondent No. 3 submitted that. as his
client has not been charged for any other minor offence, he cannot be
convicted for the same. We are not impressed with such an arguments.
Section 222 of the Code of Criminal Procedure provides :
D
"222. When offence proved included in offence charged.-( I) When
a person is charged with an offence consisting of several particulars,
·a combination of some only of which constitutes a complete minor
offence, and ·such combination is proved, but the remaining particulars
are not proved, he may be convicted of the minor offence, though he
E was not charged with it.

(2) When a person is charged ..yith an offence and facts are proved
which ·reduce it'to a minor offence, he may be convicted of the minor
offence, although he is not charged with it.
F (3) When a person is charged with an offence, he may be convicted
of an attempt to commit such offence although the attempt is not
separately charged.

(4) Nothing in this section shall be deemed to authorise a conviction
G of any minor offence where the conditions requisite for the initiation
of proceedings in respect of that minor offence have not been
satisfied."

Sub-section (2) of Section 222 of the Code provides that when a person
is charged with an offence and facts are proved which reduce it to a minor
H offence. he may be convicted of a min or offence, although he is ilot charged
ST/\TI: OF MAIL'\Ri\SllTR/\ 1·. 13.C. Ri\CIH/\N;\ JSI:TIII, .1.J 875

with it. This Court in Shamnsaheb fl.1. J\.111/tani v. Stale of Karna/aka, [200 I] A
2 sec 577 dealt with the scope of sub-section (2) of Section 222 of the Code
and held :

"What is meant by a 'minor offence' for the purpose of Section 222
of the Code? Although the said expression is not defined in the Code
it can be discerned from the context that the test of minor offence is B
not merely that the prescribed punishment is less than the major
offence. The two illustrations provided in the section would bring the
above point home well. Only if the two offences are cognate offence,
wherein the main ingredients are common, the one punishable amohg
them with a lesser sentence can be regarded as min or offence vis-a~ C
vis the other offence."

In lakhjit Singh v. State of Punjab, [ 1994] Supp. I SCC 173 this Court
held that if the prosecution failed to establish the offence under Section 302
IPC which alone was included in the charge but if the offence under Section
306 IPC is made out in the evidence, it is permissible for the court to convkt D
the accused for the latter offence. The only safeguard provided is that the
alteration of the charge and conviction for a minor offence should not cause
failure of justice to the accused person.

In this case the prosecution has alleged that for completing the
transaction of selling the property to Labh Constructions, A3 procured the E
services of A4 who is shown to have put the Jain Brothers in fear of injury
with the object of dishonestly inducing them to deliver their valuable property
to Labh Constructions by execution of release deeds, which were for the
immediate benefit of A3. In other words A3 was charged for the offence of
murder by resorting to extortion. The offence of extortion is a lesser offence
which, under the circumstances of the case, was so connected with t.he main F
transaction that no failure of justice can be caused if A3 is convicted and
sentenced for the said offence. The offence with which A3 was charged
consisted of several particulars, the combination of some of those particulars
constitute a complete min or offence of extortion. It cannot be disputed that
the offence of extortion in the context of the facts of the case has all tht G
ingredients connected with the major offence. Respondent No. 3 was charged
for an offence consisting of several particulars which the prosecution failed
to prove so far as the major offence is concerned but succeeded in showing
- -(
the commission of the minor offence punishable under Section 384 read with
Section 34 lPC as it is proved that A3 intentionally put .lain Brothers in fear
of injury and availing the services of A4 dishonestly induced them in fear to H
x
876 SUPREME COURT REPORTS [200 I] 3 S.C.R.

A deliver their valuable property in favour of Labh Constructions with whom A3
had agreed to get the release deeds with respect to the property executed by
Jain Brothers. A3 though not as a conspirator but sharing common intention
with A4 committed the offence of extortion. We have, thereofore, no hesitation
to hold him guilty of offence of extortion, punishable under Section 384 read
· with Section 34 IPC.
B
Learned counsel appearing for A5 and A6 submitted that despite holding
the confessional statements Exhibits 147 to 150 being admissible, their clients
cannot be convicted and sentenced for the offences charged because the
confessions have been retracted and there is no corroboration of their contents.
C There is no denial of t11~ fact that the judicial confessions made are usually
retracted. Retracted confessions are good confessions if held to have been
made voluntarily and .in accordance with the provisions of law, as A5 and A6
are proved to have ma~e. Corroboration of the confessional statement is not
a rule o(law, bu~ a rule of prudence. Whether in a given case corroboration
is sufficient 1~9uld depend upon the facts and circumstances of that case. In
D order to susta(~' a conviction on the basis of a confessional statement, it is
sufficient that there is its general corroboration. Dealing with the scope of
Section 15 of the TADA Act and referring to its earlier judgments this Court
in SN. Dube v. N.B. Bhoir & Ors., [2000] 2 SCC 254 held that confession
of the accused recorded under Section 15 of TADA Act is a substantive piece
E of evidence which can be used even against the co-accused if held to be
inadmissible voluntarily and believable. Explaining the position of law the
Court held :

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

"having regard to the legal competence of the legislature to ,
....
make the law prescribing a different mode of proof, the meaningful
G
purpose and object of the legislation, the gravity of terrorism
unleashed by the terrorists and disruptionists endangering not
only the sovereignty and integrity of the country but also the
normal life of the citizens, and the reluctance of even the victims
as well as the public in coming forward, at the risk of their life,
H to give evidence."
STATE OF MAHARASHTRA v. B.C. RAGHANA [SETHI, J.] 877

and held that the .·impugned section cannot be said to be suffering A
from any vice of constitutionality. Section 15 is thus an important
departure from the ordinary law and must receive that interpretation
which would achieve the object of that provision and not frustrate or
truncate it. Interpreting the said provision this Court in State v. Na/in[
[1999] 5 sec 253 (popularly known as the Rajiv Gandhi murder case) B
has held that a confession recorded under Section 15 of the TADA
Act is to be considered as a substantive piece of evidence not only
against the maker of it but also against its co-accused. There was a
difference of opinion amongst the three learned judges who 'decided
that case regarding the evidentiary value of such a confession against
the co-accused if tried in the same case. W~dhwa J. obseryed that C
what weight should be attached to such a confession is a matter of
discretion of the court and as a matter or prudence the court may look
for some corroboration before relying upon such confession against
the co-accused. Quadri J, held that the rule of prudence would require
that the court should examine the same with great care and it should···
not be relied upon unless it is corroborated generally by other evidence D
on record. Thomas, J. held that (SCC p. 309 para 99):
"Thus the established position which gained for a very long
time is that while a confession is substantive evidence against
its maker it cannot be used as substantive evidence against
another person even if the latter is a co-accused, but it can be E
used as a piece of corroborative material to support other
substantive evidence."

Relying upon the decision of this Court in Kalpnath Rai v. State,
[ 1997] 8 SCC 732 it was submitted by the learned counsel for the
respondents that even a confession made admissible under Section- 15 F
. of the TADA Act can be used as against the co-accused only in the
same manner and subject to the same conditions as stipulated under
Section 30 of the Evidence Act. An observation to the same effect is
to be found in para 75 of the judgment. In fact no such point f(fll for
decision in that case and it appears to be a passing observation only. G ·
In view of the decision of this Court in Nalini Case the said observation
can now be regarded as the correct position of law. The correct legal
position is that a confession recorded under Section 15 of the TADA
Act is a substantive piece of evidence and can be used against a co-
accused also otherwise held to be admissible, voluntary and
believable." H
878 SUPREME COURT REPORTS [200 I] 3 S.C.R.

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

·"We fail to appreciate how any departure from the form or the words
can adversely affect the object of the provision or the person making
B. the confession so long as the cou11 is able to conclude that the
requirements have been substantially complied with. No public purpose
is likely to be achieved by holding that the certificate and memorandum
should be in the same form and also in the same terms as are to be
found ii1 Rule l S(3)(b ). We fail to appreciate how the sanctity of the
confession would get adversely affected merely because the ce1tificate
c and the memorandum are not separately written but are mixed up or
because different words conveying the same thing as is required are
used by the recording officer. We hold that the trial court committed
an error of law in holding. that because the certificates and
memorandums are not in the same form and words they must be
D regarded as inadmissible."

Looking at the record of the case including the testimony of witnesses
and the documents produced, we find sufficient general corroboration of the
confessional statements made by AS. and. A6. It is proved that they were
associates of Dawood Ibrahim and Abu Salem (A9) and were continuously
E in touch with them on telephone for the purposes of getting directions and
receiving remuneration. They wt:re seen at and near the place of occurrence
on 7.3. l 99S. They had brought weapons of offence and distributed to other
accused. Recoveries of the weapons were made from them which were seized
in the presence of witnesses as is evident from the Panchanamas. They were
identified by the witnesses at the test identification parade. Their other
F associates in crime have either been killed or absconding. The cause which
provoked Abu Salem (A9) to kill Pradeep Jain stai1ds corroborated by the
testimony of Jyoti Pradeep Jain (PW23), widow of the deceased. What more
corroboration was required in such a case has not been pointed out by the
learned counsel appearing for AS and A6.
G " of th.e prosecution, learned counsel appearing for
To weaken the case
AS and A6 relied upon the finding of the trial court holding that the recoveries
made from the aforesaid accused persons were n.ot proved. In reply to question
No. 7 AS had stated that h<7 had produced two .38 revolver, one 9 mm pistol
and one AK S6 assault rifle and the cartridges which he had kept in his house
H and handed over to the police. The trial court found that as the weapons were
STATE OF MAllARASllTRA 1' . 13.C . RAGllANA LSETHI, .I .] 879

seized from the person of the accused when they were on the road, there A
existed contradiction, riaking the recoveries doubtful. Another circumstance
which weighed with the trial court to disbelieve the factum of recovery was
the Press Conference held by the police wherein the weapons seized from the
accused are stated to have been shown. Referring to those two circumstances,
the trial court held :
B
"Therefore, by considering the aforesaid two circumstances .that is,

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

We are of the opinion that the trial court adopted a technical approach D
in appreciating the factum of recovery of weapons and wrongly held that,
"the evidence relating to the seizure will have to be totally kept aside". In the
Panchnama dated 3.7.1995, (Exhibit 119 at page 1758 to 1760 of the paperbook),
signed by the panch witnesses it is stated that the panchas were called by
the police on road in front of Room No. 1469, Chawl No. 184 and the recoveries E
effected. The panch witnesses have fully proved the panchanamas. If in a
statement recorded after about two months the accused tried to mislead the
court by making a different statement regarding the recovery of the weapon
of offence, no credit of it should have been given to him. If the prosecution
had successfully proved the panchanamas, it was not proper for the court to
fish out a contradiction regarding the recovery and seizure of the weapons F
on the ground of subsequent confessional statement of the accused recorded
on 28th August, 1995. The Court was only concerned with the corroboration
of the factum of recovery mentioned in the confessional statements. If the
weapons had actually been recovered, no fault can be found with the
confessional statements on account of alleged contradiction. We are further G
of the view that a perusal of the confissional statement of A5 did not disclose
that he had stated anywhere that the weapons were actually recovered from
his house. What he had stated in his confessional statement was that the
weapons which he had kept in his house were produced and handed over to
the police which the prosecution fully proved by Panchanama Exhibit l 19.
The statement of A6 relating to the recovery of weapons from the house of H
880 SUPREME COURT REPORTS [200 I] 3 S.C.R.

A AS could not have been made a basis for holding that there existed
contradiction which persuaded the court not to believe the recoveries as a
piece of corroborative evidence. Much has been made out from the display
of seized weapons at the Press Conference held by the police after the arrest
of the accused. Such an information is based upon the press reports published
in the newspapers. The Joint Commissioner of Police who held the press
B conference stated that if any good work is done with a good detection
. relating to crime, occurrence of which had been earlier reported in the press
or the accused of serious offence or the shooters in the case as may be
arrested then to enhance the image of the police in the public. a wide publicity
is usually given for which press conferences are held. He presided over the
C press conference on 3. 7. I 99S and as he had got information from the DCP
about the seizure of weapons. He stated that he directed those officers to
produce one AK S6 assault rifle and smaller weapons which were to be
displayed in the press conference. According to him such weapons were
· available with the Special Operation Squad Branch. According to him similar
weapons like the weapons seized from the accused were displayed in the
D press conference. When a question was put to him as to whether there was
any hitch in displaying the seized articles and showing the same to the press
persons, he replied that normally there was no hitch and in that particular case
because of the lack of time to the DCP he might not have been able to bring
the seized Weapons. The seized weapons were shown in the office· of CID
E Crime in the same building where the office of the Joint Commissioner of
Police is also located. There was no cause of occasion for the court to
disbelieve the testimony of the Joint Commissioner of Police .. Holding that the
only seized weapons were shown to the press, the trial court committed a
mistake and it has unnecessarily tried to make a mountain out of mole on such
a frivolous ground.
F
Similarly there is no substance in the submission made on behalf of AS
and A6 that they were no(properly identified in the test identification parade.
After holding the confessional statements of1"AS and A6 to be voluntarily
made and legally admissible in evidence, there is no much significance of the
G identification parade.

We, therefore, hold that the trial court committed a mistake of law i_n not
relying upon the confessional statements of AS and A6 to ascertain their
involvement in the commission of crime with which they were charged.
Confessional statements having been proved to ~e voluntarily made and
--
H legal!Y recorded, which generally stood corroborated, were sufficient to hold
STJ\TE OF MAl-IARASllTRA L 13.C. RAGHANA LSETHI. J.] 881

that the aforesaid persons were guilty of hatching the conspiracy with A7 to A
A13 for commission of offence with which they were charged. Setting aside
the judgment of the trial coutt to that extent we convict AS and A6 for the
offences under Sections 302, 307 read with Sections 1208, 23, 114 of the India
Penal Code, Section 3 read with Sections 2S (l-B) (a), Section S read with
Section 27 of the Arms Act, Sections 3(2){i), 3(2)(ii), 3(3), 3(S), 5 and 6 of the
Terrorist and Disruptive Activities (Prevention) Act, 1987. We are, however. B
of the opinion that being mislead youth they do not deserve the maximum
penalty imposable under law and the case is not the rarest of the/are cases
warranting death sentence. Subhash Bind (AS) and Shekhar Kada~1 (A6) ar~a,
therefore, sentenced to life imprisonment for the major offenc~ of murder,
punishable under Section 302 read with Section 1208 of the !PC. We do not C
award separated sentences to the aforesaid accused persons for the other
offences committed by them ..

Under the circumstances of the case, the appeal is partly allowed by
setting aside the ju9gment of the trial court by which A3, AS an~ A6 Wtfre
acquitted. Holding A3 guilty for the commission of the offence p·unishable D
under Section 384 read with Section 34 of the IPC we convict him for the same.
He is sentenced to rigorous imprisonment for two years with fine of Rs. S,000.
In case of default in the payment of fine, the said accused shall undergo
further imprisonment of six months. AS and A6 are convicted for the offences
under Sections 302, 307 read with Sections 1208, 23, 114 of the Indian Penal E
Code, Section 3 read with Sections 2S(l-8)(a), Section S read with Section p
of the Arms Act, Section 3(2){i), 3(2)(ii), 3(3) 3(S), Sand 6 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987, and sentenced to life imprisonment
for the major offence. We do not award them separate sent.ences for the other
offences. A3, AS and A6 are directed to surrender to serve the remaining part
of their sentences. The judgment of the trial court so far as Al, A2 are F
concerned, is upheld and their acquittal maintained.

TN.A. . Appeal partly allowed.