STATE OF MAHARASHTRA v. BHARAT CHAGANLAL RAGHANA AND ORS

Citation: [2001] 3 S.C.R. 840

Court: Supreme Court of India

Bench: K.T. THOMAS, R.P. SETHI

Judgment text

·} )( ~ ..... _ )- STATE OF MAHARASHTRA ,. _ v. BHARAT CHAGANLAL RAGHANA AND ORS. -~ JULY 11,2001 [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. Terrorist and Disruptive Activities (Prevention) Rules, 1987 Rule I5(5). Indian Penal Code, 1860 : Sections : 302, 307, 120-B and 384 Code of Criminal Procedure, 1973 : Section 222 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 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. Criminal trial-Accused-Charged with offence-But facts proved that he committed a minor dffence-He can be convicted ofsuch a minor offence though not charged. I Crime-Crime by underworld--'Organised crime' -'Professional Crime' -Need to curb emphasised. -"I Wordv and Phrases : 'Contradiction'-Connotation of The Respondents, alongwith other co-accused, were charged under STATE OF MAH/\l{/\SllTR/\ 1·. B. C. RAGH/\NA 841 sections 1208, 23, 114 of the Indian Penal Code, 1860. They were also 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 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 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 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, 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 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 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 x 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 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 ofGujarat & Anr.

, 11996) 4 Crimes 244 SC, Explained and distinguished. 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. 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 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 ofonly filling the blanks under his directions. 1867-C-GI 5. Referring to the investigating officer - ACP (PW 48), the Designated 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 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 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 [2001] 3 S. C. R. 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 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_ 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) 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, -~ it was not proper for the court to fish out a contradiction regarding the recovery and seizure of the weapons on the ground ofsubsequent 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 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 ofAS 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. 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 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 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 contradiction. 1872-C-DI Tahsildar Singh & Anr. v. State ofU. P. , AIR 119S9J SC 1012, referred -r to.

9. There is no substance in the submission that AS and A6 were not properly identified in the test identification parade. In view ofthe 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 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, 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 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 . 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 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 ofjustice 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 Section 34 IPC. A3 intentionally put deceased and his brother in fear ofinjury 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 ofextortion. He is guilty of offence of extortion, punishable under Section 384 read with Section 34 IPC. 1874-H; 873-F-H; 874-B; 875-F-H; 876-AJ Shamnasheb M. Multani v. State ofKarnataka, 12001 J 2 SCC 577 and lakhjit Singh v. State ofPzmjab, f1994J Supp. 1 SCC 173, referred to. 12. In the absence of any threat or any other circumstance indicating 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 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 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 ofvarious gangs headed by notorious dons for whom, the only valuable thing in life is 'wealth' and the useless thing, the 'life' of others. Deaths are sold by these dons at their asking price and purchased by those 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 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 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 oforganised crime in India is of recent origin and is at the initial stage.

It is the need of the hour to control such criminal activities which tempt the persons involved to amass huge profit Such crimes have not only a legal facet but has a social and economic aspect which is required to be felt and dealt with by all concerned including the judiciary, the executive, the politicians, the social reformers, intelligentia and the law enforcing agency. 1848-Fl 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. 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 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 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 oftheir otherwise inflated money bags.

To this underworld, 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 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 particularly with respect to disputes relating to property is reported to have created settle centres of unusual trade where private courts are held by the gangsters and disputes are solved according to the will of those who can pay as per demand of the criminal dons.

It is said that the unaccounted accumulation of black money in the hands of a few have encouraged the gangsters to widen the scope of their activities. Because of the money and· muscle power, they are in a position of procuring highly sophisticated weapons. Such gangs collect money 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..

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 to combat and fight it out. In Europe, the terms 'organised crime' and 'professional crime' are largely interchangeable. As compared to American standards, the European criminal organisations are small-scale and short-lived. Such crimes are defined as; involving a system of specifically defined relationships with mutual obligation and privileges and association of a small group of 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 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. 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 ofcriminal 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 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, on 7. 3. 1995 in the commercial capital of India. i. e. , Mumbai at about 7. 30-8. 00 p. m. and also attempting to murder the other brother, Sunil Jain. The deceased was murdered and his brother injured in furtherance of the conspiracy hatched by the respondents with other absconding accused. The crime was committed in the office of the company of the Jain Brothers, known as "Kamla Constructions". The accused persons, namely.

Salim Abdul Salim (A8), Abu Salem (A9), Rajesh Igwe (A I0), Sunii 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 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 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 I0, A12andA13 are stated to have been killed in the encounters with the police during the years 1995-96. A7, 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. 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 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. 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 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) wanted to dispose of it to Labh Constructions of Ahmedabad for which an Agreement Exhibit 93 was executed on 1. 11. 1994. A3 claimed that he and Matbadal Yadav had purchased the landed property from Dastur Narayan Ramchander and Lawrence Winston Misquetta. He referred to various agreements allegedly executed by Matabadal Yadav and his heirs and represented to the Labh Constructions that in the premises mentioned in the agreement Exhibit 93, he had a right in the 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. I0. 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 : "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 purpose of getting the said tenants/occupants/the tenants of the STATE OF MAHJ\R/\SHTRA v. B. C. RAGHANA ISETI II, . 1. J 851 khillas as well as the structures and godowns vacated from the 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 ofthe 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 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 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 oftheir right title and interest in the said 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. " 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.

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 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 given in the presence of A1, 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 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 A1. 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 I. PW 14 went to the office of A I and personally handed over the cheque of Rs. 45 lakhs.

It is in the evidence that sometime in August, I994 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 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, Ashok Jain (PW 45), Suresh Jain (PW13), Pradeep Jain, the deceased and Sunil Jain (PW45) attended the office ofA 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 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, Sunii Jain (PWI 5) from the side of Kamla Constructions 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 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 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 AI 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 AI telling that the party was so 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 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. A2, A3 and A4 are stated to be having maintained a regular liaison with Abu Salem (A9), known to be the right hand man of Dawood Ibrahim. The said A9 was contacted by A2, A3 and A4 on telephone Nos. 226670, 242939 at Dubai. One day in the second week of February, 1994 at about 10 p. m.

telephone bell rang in the house of Pradeep Jain, when Jyoti Pradeep Jain (PW23), the widow of the deceased picked up the telephone, the caller told her that he was 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 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 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 Anil 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 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 two persons have been identified to be Rajesh Igwe (A IO) and Sunil Nair (A 12). As already noticed, A10 has died in an encounter with the police on 27. I 1. 1995 and Sunii 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 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 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 Commissio11er of Police on 21st August, 1995 and 28th August, 1995 in exercise of powers vested in him under Section 15 of TADA Act.

A4, while in custody of the police, made disclosure statements pointing out a number of communication centres from where he made telephone calls to Abu Salem on various occasions. Consequently, the police collected bills Exhibits 200, 203, 204, 205, 206 and 207 from those communication centres. Exhibit 200 indicated that a call was made on 7. 3. 1995 on telephone No. 226670 of Dubai at about 5. 35 p. m. On 12. 4. 1995 A4 pointed out certain other communication centres, in consequence of which Bills Exhibits 2 IO, 211 212 were collected. Dr. Ashok Shinde who conducted the post mortem on the body of the deceased noticed in all 29 fire arm wounds of entry and exit altogether. In his post-mortem notes Exhibit 122, the Doctor stated that the cause of death was due to fire arm injuries. The injury certificate in respect of Sunil Jain (PWI 5) is Exhibit 124 which indicates that there a gun wound on the anterior and posterior aspect of the right arm. -....... ,..

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 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 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 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 ofdrafts 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 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. 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 ofa 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 >-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 I07. 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 t' documents. He admitted the fact of Kamla Constructions having purchased . the portion of the property marked "A" in Exhibit 49 and construction of two >- ,)I buildings thereon. He denied of having knowledge about the documents ... '-"" 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 A1. He denied of having any knowledge about the activities of underworld d : to have forged documents Exhibits 107, 108, 109, 110, 111, 112, 113, 114, 116, 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 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 [200 I] 3 S. C. R. 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 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 ofoffence committed 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 : "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 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. (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 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 offence. he may be convicted of a minor 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] 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 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~ vis the other offence. " In lakhjit Singh v. State ofPunjab, [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 the accused for the latter offence. The only safeguard provided is that the alteration of the charge and conviction for a minor offence should not cause failure of justice to the accused person.

In this case the prosecution has alleged that for completing the transaction of selling the property to Labh Constructions, A3 procured the services of A4 who is shown to have put the Jain Brothers in fear of injury with the object of dishonestly inducing them to deliver their valuable property to Labh Constructions by execution of release deeds, which were for the immediate benefit of A3. In other words A3 was charged for the offence of murder by resorting to extortion. The offence of extortion is a lesser offence which, under the circumstances of the case, was so connected with t. he main transaction that no failure of justice can be caused if A3 is convicted and sentenced for the said offence. The offence with which A3 was charged consisted of several particulars, the combination of some of those particulars constitute a complete minor offence of extortion.

It cannot be disputed that the offence of extortion in the context of the facts of the case has all tht 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 x 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.

Learned counsel appearing for A5 and A6 submitted that despite holding the confessional statements Exhibits 147 to 150 being admissible, their clients cannot be convicted and sentenced for the offences charged because the confessions have been retracted and there is no corroboration of their contents. There is no denial of 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 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 of evidence which can be used even against the co-accused if held to be inadmissible voluntarily and believable. Explaining the position of law the Court held : "Section 15 of the TADA Act makes certain confessions made to police officers admissible in the trial of such persons or co-accused, abettor or conspirator for an offence under the Act or· rules made thereunder. This Court considering its constitutionality in Kartar Singh v. State ofPzmjab, [1994] 3 SCC 569 observed at (SCC p. 680, para 253) that : "having regard to the legal competence of the legislature to , ....

make the law prescribing a different mode of proof, the meaningful purpose and object of the legislation, the gravity of terrorism unleashed by the terrorists and disruptionists endangering not only the sovereignty and integrity of the country but also the normal life of the citizens, and the reluctance of even the victims as well as the public in coming forward, at the risk of their life, to give evidence. " STATE OF MAHARASHTRA v. B. C. RAGHANA [SETHI, J. ] 877 and held that the . ·impugned section cannot be said to be suffering from any vice of constitutionality. Section 15 is thus an important departure from the ordinary law and must receive that interpretation which would achieve the object of that provision and not frustrate or truncate it. Interpreting the said provision this Court in State v.

Na/in[ [1999] 5 sec 253 (popularly known as the Rajiv Gandhi murder case) has held that a confession recorded under Section 15 of the TADA Act is to be considered as a substantive piece of evidence not only against the maker of it but also against its co-accused. There was 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 what weight should be attached to such a confession is a matter of discretion ofthe court and as a matter or prudence the court may look for some corroboration before relying upon such confession against the co-accused. Quadri J, held that the rule of prudence would require that the court should examine the same with great care and it should··· not be relied upon unless it is corroborated generally by other evidence on record. Thomas, J. held that (SCC p.

309 para 99): "Thus the established position which gained for a very long time is that while a confession is substantive evidence against its maker it cannot be used as substantive evidence against another person even if the latter is a co-accused, but it can be used as a piece of corroborative material to support other substantive evidence. " Relying upon the decision of this Court in Kalpnath Rai v. State, [ 1997] 8 SCC 732 it was submitted by the learned counsel for the respondents that even a confession made admissible under Section- 15 . of the TADA Act can be used as against the co-accused only in the same manner and subject to the same conditions as stipulated under Section 30 of the Evidence Act. An observation to the same effect is to be found in para 75 of the judgment. In fact no such point f(fll for decision in that case and it appears to be a passing observation only.

· In view ofthe decision ofthis 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 coaccused also otherwise held to be admissible, voluntary and believable. " In that case also the trial Judge had held the confession inadmissible on the ground of having been recorded in breach of Rules lS(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 and the memorandum are not separately written but are mixed up or because different words conveying the same thing as is required are used by the recording officer. We hold that the trial court committed an error of law in holding. that because the certificates and memorandums are not in the same form and words they must be regarded as inadmissible. " Looking at the record of the case including the testimony of witnesses and the documents produced, we find sufficient general corroboration of the confessional statements made by AS. and. A6.

It is proved that they were associates of Dawood Ibrahim and Abu Salem (A9) and were continuously in touch with them on telephone for the purposes of getting directions and receiving remuneration. They wt:re seen at and near the place of occurrence on 7. 3. l99S. They had brought weapons of offence and distributed to other accused. Recoveries ofthe weapons were made from them which were seized in the presence of witnesses as is evident from the Panchanamas. They were identified by the witnesses at the test identification parade. Their other associates in crime have either been killed or absconding. The cause which provoked Abu Salem (A9) to kill Pradeep Jain 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. " To weaken the case of th.

e prosecution, learned counsel appearing for 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 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 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 : "Therefore, by considering the aforesaid two circumstances .

that is, the press conference and the narration made by the accused in the ..... confessional statements, even it any one circumstance is to be accepted, to be nearer to the truth or in other words, if it is accepted in the sense that the possibility of the said circumstance being true is not ruled out, the only way out is to say that the seizure of the weapons as alleged by the prosecution is not at. all free 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 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 ofthe paperbook), signed by the panch witnesses it is stated that the panchas were called by the police on road in front of Room No. 1469, Chawl No.

184 and the recoveries effected. The panch witnesses have fully proved the panchanamas. If in statement recorded after about two months the accused tried to mislead the court by making a different statement regarding the recovery of the weapon of offence, no credit of it should have been given to him. If the prosecution had successfully proved the panchanamas, it was not proper for the court to fish out a contradiction regarding the recovery and seizure of the weapons on the ground of subsequent confessional statement of the accused recorded on 28th August, 1995. The Court was only concerned with the corroboration of the factum of recovery mentioned in the confessional statements. If the weapons had actually been recovered, no fault can be found with the confessional statements on account of alleged contradiction.

We are further of the view that a perusal of the 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 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 conference stated that if any good work is done with a good detection .

relating to crime, occurrence of which had been earlier reported in the press or the accused of serious offence or the shooters in the case as may be arrested then to enhance the image of the police in the public. a wide publicity is usually given for which press conferences are held. He presided over the press conference on 3. 7. I99S 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 press conference.

When a question was put to him as to whether there was any hitch in displaying the seized articles and showing the same to the press persons, he replied that normally there was no hitch and in that particular case because of the lack of time to the DCP he might not have been able to bring the seized Weapons. The seized weapons were shown in the office· of CID Crime in the same building where the office of the Joint Commissioner of Police is also located. There was no cause 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. 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 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 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 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 ofthe 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. 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 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 under Section 384 read with Section 34 ofthe 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 ofsix months. AS and A6 are convicted for the offences under Sections 302, 307 read with Sections 1208, 23, 114 of the Indian Penal Code, Section 3 read with Sections 2S(l-8)(a), Section S read with Section p ofthe Arms Act, Section 3(2){i), 3(2)(ii), 3(3) 3(S), Sand 6 ofthe 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 concerned, is upheld and their acquittal maintained. TN. A. . Appeal partly allowed.