Full Judgment Text
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PETITIONER:
SURESH BUDHARMAL KALANI @ {A[[I LA;AMO
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT: 15/09/1998
BENCH:
M.K.MUKHERJEE, SYED SHAH MOHAMMED QUADRI
ACT:
HEADNOTE:
JUDGMENT:
JUDGMENT
M.K.Mumherjee. J.
Leave granted in both the petitions.
2.Suresh Budharmal Kalani @ Puppu Kalani and Dr. Aken
Kumar Gajendra Rai Desai, the appellants in these two
appeals, figure as accused (besides others) in TADA Special
Case No. 31 of 1993, pending before the Designated Court,
Brihan Mumbai constituted under The Terrorists and
Disruptive Activities (P) Act, 1987 (TADA for short). The
case arises out of an incident of rioting, murder and other
cognate offences that took place on September 12, 1992 at
J.J. Hospital, Bombay. According to the prosecution case, on
that day at or about 3.45 P.M. a group of persons armed with
automatic fire arms, such as pistols, AK 47 assault rifles,
stormed into Ward No. 18 of the hospital and opened fire
upon Shailesh Haldankar, who was an accused in Crime No.
542/92 of V.P.Road Police Station and admitted there due to
injuries earlier sustained. The indiscriminate firing by the
miscreants resulted in the death of Haldankar and two
policemen on guard duty and injuries to five others. Shri
K.G.Thakur, Sub-Inspector of police attached to V.P.Road
Police Station, who was then on duty at the hospital
returned the fire causing injuries to some of the miscreants
including one Shrikant Rai @ Pradhan. The miscreants,
however, managed to escape carrying with them the injured
associates in a car. It is the further prosecution case that
the incident was the outcome of a conspiracy hatched by
Dawood Ibrahim, a notorious gangster, and his men to avenge
the murder of his brother-in-law, Ibrahim Ismail Parkar, who
was eliminated by the members of his rival gang led by Arun
Gowli of which Haldankar was a member.
3.Over the incident, a case was registered on a report
lodged by Shri Thakur and on completion of investigation,
charge sheet was submitted by the police after obtaining
requisite sanction under Section 20A(2) of TADA to prosecute
the appellants and others. On that charge sheet cognizance
was taken by the Designated Court; and on consideration of
the documents referred to under Section 173 (2) Cr.P.C. and,
after hearing the parties, it passed orders for framing
charges under Section 3 (3) of TADA and 120B I>P>C> against
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Kalani and under Section 3 (4) of TADA and 212 I.P.C.
against Dr. Desai. Assailing the above orders, the
appellants have filed these appeals.
4.The gravamen of the charges to be framed against
Kalani is that he hatched a criminal conspiracy to murder
Haldankar and thereby abetted the commission of his murder.
The above accusation is based on the following facts and
circumstances :-
i)a meeting was held on September 2, 1992 in a holiday
resort belonging to Kalani where the decision to kill
Haldankar was taken;
ii)soon after the murder, Kalani had a telephonic talk
with one of the accused persons regarding the arrangement to
be made to remove injured Shrikant Rai in his car; and
iii)on September 13, 1992, Kalani threatened Jayawant
Suryarao, (one of the accused) that in case he disclosed the
removal of Shrikant Rai in his (Kalani’s) car he and his
family members would be liquidated.
To prove the above facts and circumstances, the
prosecution seeks to rely upon:-
i)the evidence of Smt. Priti, wife of accused Jayawant
Suryarao, and Shri Himmat Rawal;
ii)confessional statement of Dr. Bansal; and
iii)confessional statement of Jayawant Suryarao;
respectively.
5.On perusal of the statements of the above mentioned
two witnesses recorded under Section 161 Cr. P.C. we find
that they did not speak of any conspiracy, much less of a
conspiracy to commit the murder in question. Their
statements only disclose that on September 2, 1992 Kalani
had a meeting with accused Jayawant Suryarao, the President
of Bhiwandi Nizampura Municipal Council, and others in his
holiday resort over a no confidence motion that was to be
brought against the latter. It is pertinent to mention here
that it is not the prosecution case that the murder of
Haldankar was even remotely connected with the above no
confidence motion. On the contrary, as noticed earlier, it
is its positive case that the murder was the outcome of a
gang rivalry. From the impugned order we find that the
Designated Court, after having held that the discussion in
the meeting was only over the no confidence motion observed
’that there is every possibility that they also must have
discussed the planning above the killing of Shailesh
Haldankar’. The above observation is to say the least,
wholly unjustified. A presumption can be drawn only from
facts - and not from other presumptions - by a process of
probable and logical reasoning. The Designated Court could
not have, there ore, drawn the presumption of a conspiracy
to kill Haldankar as the statements of the two witnesses do
not afford, by any stretch of imagination, any foundation
for the same.
6.Thus said, we may turn our attention to the
confession made by Dr. Bansal and Jayawant Suryarao. Under
Section 30 of the Evidence Act a confession of an accused is
relevant and admissible against a co-accused if both are
jointly facing trial for the same offence. Since, admittedly
Dr. Bansal has been discharged from the case and would not
be facing trial with Kalani his confession cannot be used
against Kalani. The impugned order shows that the Designated
Court was fully aware of the above legal position but,
surprisingly enough, it still decided to rely upon the
confession on the specious ground that the prosecution was
not in any way precluded from examining Dr. Bansal as a
witness in the trial for establishing the facts disclosed in
his confession. This again, was a perverse approach of the
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Designated Court while dealing with the question of farming
charges. At that stage the court is required to confine its
attention to only those materials collected during
investigation which can be legally translated into evidence
and not upon further evidence (dehors those materials) that
the prosecution may, adduce in the trial, which would
commence only after the charges are framed and the accused
denies the charges. The Designated Court was, therefore not
at all justified in taking into consideration the
confessional statement of Dr. Bansal for framing charges
against Kalani.
7.So far as the confession of Jayawant Suryarao is
concerned, the same (if voluntary and true) can undoubtedly
be brought on record under Section 30 of the Evidence Act to
use it also against Kalani but then the question is what
would be its evidentiary value against the latter. The
question was succinctly answered by this Court in Kashmira
Singh V. State of Madhya Pradesh (1952 SCR 526) with the
following words :
"The proper way to approach a case of this kind is
first, to marshal the evidence against the accused
excluding the confession altogether from
consideration and see whether, if it is believed,
a conviction could safely be based on it. If it is
capable of belief independently of the confession,
then of course it is not necessary to call the
confession in aid. But cases may arise where the
judge is not prepared to act on the other evidence
as it sands even though if believed, it would be
sufficient to sustain a conviction. In aid the
confession and use it to lend assurance to the
other evidence and thus fortify himself in
believing what without the aid of the confession
he would not be prepared to accept."
The view so expressed has been consistently followed by this
Court. Judged in the light of the above principle the
confession of Suryarao cannot called in aid to frame charges
against Kalani in absence of any other evidence to do so.
8.That brings us to the case of Dr. Desai, the other
appellant. According to the prosecution case the injured
accused Shrikant Rai was taken to the house of Dr. Desai by
Shanti Lal Patil, Jagdish Chand and Hasmukh Bhai, three of
the accused persons, for treatment. They told Dr. Desai
that he (Shrikant) had sustained bullet injury in the stomach
due to accidental firing from the licensed revolver of Shanti
Lal. Dr. Desai told them that the injured could not be
admitted in a Government hospital as it was a medico-legal
case. They however, insisted that Shrikant should be treated
in a private hospital and all expenses thereof would be paid
by them. Dr. Desai then contacted one Dr. Kamble over
phone and requested him to operate upon the patient.
Accordingly, Shrikant was taken by the above three accused
persons to Dr. Kamble who operated upon him. The
prosecution alleges that knowing full well that it was a
medicolegal case Dr. Desai entertained Shrikant and arranged
for his operation by Dr. Kamble at his private hospital and
thereby helped Shrikant to abscond after he recuperated.
9.To prove the above accusation and, for that matter,
to substantiate the charges under Sections 3(4) of TADA and
212 I.P.C. to be framed against Dr. Desai, the prosecution
intends to rely lupon the alleged confessional statement of
Dr. Desai himself and three of the co-accused, namely Dr.
Kamble, Jagdish Chand and Hasmukh Bhai. The relevant portion
of the statement of Dr. Desai reads as under :
"On 12.9.1992 at about II p.m. Jagdish along with
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one person, whom he introduced to me as Hasmukh
Patel, Sarpanch of Dumas, called at my residence.
Jagdish informed me that Hasmukh’s elder brother
owns a from at Silvasa and he is also a building
contractor. Jagdish further informed me that on
the same evening they had a party on the farm
house, when accidently a shot was fired from the
weapon and one of them was injured and he may
require an operation. He further told me that they
tried to contract a surgeon at Silvasa, but he was
not available and they are bringing the injured to
Surat for treatment and requested me to help them.
I suggested to them to get the injured admitted in
Govt. Hospital, Surat, when Jagdish told me that
those people wanted the injured to be treated in a
private hospital and were willing to pay any
charges for the treatment. Jagdish also told me
that they were prepared for the worst. I also came
to know through Jagdish that the injured had an
jinury over the abdomen. At about 12 midnight on
12.9.92, I contacted Dr. Kamble that the party was
ready to pay any charges, as he thought fit, for
the operation. I also told Dr. Kamble that the
patient was not before me and enquired whether he
was ready to operate such a case. For a while Dr.
Kamble thought about it and asked me to send the
patient to his hospital at Gopipura. Dr. Kamble
then informed me that he would intimate his staff
at the hospital about the arrival of the injured
and ask them to be ready. I then informed Jagdish
to take the injured to Dr. Kamble’s hospital.
Thereafter, Jagdish and Hasmukh went away."
10A bare perusal of the above statement makes it
abundantly clear that it is self exculpatory and hence
inadmissible in evidence as ’ confession’. Once it is left
out of consideration - as it should be - the confessional
statements of the other three accused, for what they are
worth, cannot be made - in absence of any other material to
connect Dr. Desai with the accusation levelled against him a
basis for impugned charges in view of the law laid down in
Kashmira singh (supra).
11.On the conclusion as above, we allow these appeals and
quash the charges framed against the two appellants. They are
discharged from their respective bail bonds.