# B JAYAWANf DATIATR.AY SURYARAO v. STATE OF MAHARASHTRA NOVEMBER 5, 200 l - **Citation:** [2001] Supp. 5 S.C.R. 54 - **Court:** Supreme Court of India - **Decided:** 2001 - **Case number:** Criminal Appeal No. 975 of 2000 - **Bench:** M.B. Shah, R.P. Sethi - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/b-jayawanf-datiatr-ay-suryarao-v-state-of-maharashtra-november-5-200-l-18319 - **Pages:** 51 ## Headnote Terrorists and Disruptive Activities (Prevention) Act, 1987 (TADA) · Indian Penal Code, 1860/Artils Act, 1959-Sections 3(2)(i), (ii), (3), (4) 5 and 6/Sections 212, 1208, . 302 307 r/w Section 34/Section 27-Prosecution C under-Prime accused ident(fied by injured eye-witness-Confessional statemenTs by accused corroborated by confessional statements of other accused anti by statements of prosecution witnesses-Conviction and sentence of death by tlesignated Court- Plea that convic:tion under TADA not just{fi.ed since rhe case was of a gang rivalry-On appec1l, conviction co~firmed-However death D E sentence converted to life imprisonment~Whether act was committed with intent to strike terror would depend on the .facts of each case-The intent can be inferred .from the manner and mode of commission of the act and its aftereffect including .fear psychMis-Jn the circumstances of the case it can be inferred that crime was committed w strike terror. Section 15 of 1987 Act-Cm!fessional statement-Evidentiary value, Reliability and admissibility of-Held, it is a substantive evidence and can be relied upon in the trial-Minor irregularities in rhe statement would not make it inadmissible in evidence. Section 20A(2) of 1987 Act-Sanction .for prosecution-Sanction granted F qfter considering relevant materials- Hence, no~ illegal or erroneous. G Sentencing-Death sentence-Converted to life imprisonment-However, in view of heinous act, accused not entitled to any commutation or premature release-Code of Criminal Procedure, 1973-Section 433A-Prisoners Act, 1900. 24 accused including the appellants Al, A6 and A 7 were alleged to have committed murder of one p!'isoner undergoing treatment in a hospital and two policemen who were on his guard duty and of having committed attempt of murder of PWs ll, 54, 9 and 42 and two others in the H hospital. 54 JAYAWANTDATIATRAY SURYARAO v. STATE 55 Accused 1, 2, 3, 4, 6, 7, 8, 9 and 10 were tried by the designated Court A for their offences under Terrorists and Disruptive Activities (Prevention) Ad, 1987, Indian Penal Code, 1860 and Arms Act, 1959. Other accused were absconding or shot-dead. The prosecution case was that the shootout in the hospital was by the members of one gang to kiD the deceased· prisoner, a member of rival gang. Prosecution relied on confessional state· ments of accused-appellants. A2 Who was President of Municipal Council, had confessed that be bad used his official vehicle on 12.9.1992 accompa· nied by body-guard and driven by PW 17 for movement of A7, and again on 14.9.92 due to threat of A7; and that out offear he torn off two pages of logbook regarding entry of his movement on 12.9.1992 and instructed PW B c 17 to re-write the logbook; and that when the police started making inquiries, he sent PW 17 out of city as advised by A7. A6 the prime accused confessed his involvement in the crime including the crimes com· mitted previously, that in the hospital he had asked another co-accused to return back without firing; and that he retaliated after being tired by someone; and that he had contacted A 7 to make arrangements to take one D injured accused to hospital after the incident. However, he did not confess of having fi~d at the deceased or the injured. A7 confessed that he had called the vehicle of A2 at the advice of A6 and he was informed about the shoot-out incident by A6. Prosecution also relied on evidence ofPWs 9, 12, 17, 25, 26,37 and 42. PW9 posted on guard duty of the prisoner, who had got injured in the incident, identified A6 as having fired gun shots and the discription of A6 given by him was corroborated by evidence of PWs 12, 26 and 42. Evidence of PWs 12 and 26, the body-guards of A2 and of PWs 17, 25 and 37 corroborated the version of A2 with regard to the movement of the vehicles. During trial designated court observed that PW 42, PSI who was on duty on the day of incident, resigned from his job, suffered mental depres· sion and W9rried about the safety of his family ev ## Text _Characters 0–39,977 of 126,981. This is a partial read: ask again with offset=39977 for what follows._ A . B JAYAWANf DATIATR.AY SURYARAO v. STATE OF MAHARASHTRA NOVEMBER 5, 200 l [M.B. SHAH AND R.P. SETHI, JJ.] Terrorists and Disruptive Activities (Prevention) Act, 1987 (TADA) · Indian Penal Code, 1860/Artils Act, 1959-Sections 3(2)(i), (ii), (3), (4) 5 and 6/Sections 212, 1208, . 302 307 r/w Section 34/Section 27-Prosecution C under-Prime accused ident(fied by injured eye-witness-Confessional statemenTs by accused corroborated by confessional statements of other accused anti by statements of prosecution witnesses-Conviction and sentence of death by tlesignated Court- Plea that convic:tion under TADA not just{fi.ed since rhe case was of a gang rivalry-On appec1l, conviction co~firmed-However death D E sentence converted to life imprisonment~Whether act was committed with intent to strike terror would depend on the .facts of each case-The intent can be inferred .from the manner and mode of commission of the act and its aftereffect including .fear psychMis-Jn the circumstances of the case it can be inferred that crime was committed w strike terror. Section 15 of 1987 Act-Cm!fessional statement-Evidentiary value, Reliability and admissibility of-Held, it is a substantive evidence and can be relied upon in the trial-Minor irregularities in rhe statement would not make it inadmissible in evidence. Section 20A(2) of 1987 Act-Sanction .for prosecution-Sanction granted F qfter considering relevant materials- Hence, no~ illegal or erroneous. G Sentencing-Death sentence-Converted to life imprisonment-However, in view of heinous act, accused not entitled to any commutation or premature release-Code of Criminal Procedure, 1973-Section 433A-Prisoners Act, 1900. 24 accused including the appellants Al, A6 and A 7 were alleged to have committed murder of one p!'isoner undergoing treatment in a hospital and two policemen who were on his guard duty and of having committed attempt of murder of PWs ll, 54, 9 and 42 and two others in the H hospital. 54 JAYAWANTDATIATRAY SURYARAO v. STATE 55 Accused 1, 2, 3, 4, 6, 7, 8, 9 and 10 were tried by the designated Court A for their offences under Terrorists and Disruptive Activities (Prevention) Ad, 1987, Indian Penal Code, 1860 and Arms Act, 1959. Other accused were absconding or shot-dead. The prosecution case was that the shootout in the hospital was by the members of one gang to kiD the deceased· prisoner, a member of rival gang. Prosecution relied on confessional state· ments of accused-appellants. A2 Who was President of Municipal Council, had confessed that be bad used his official vehicle on 12.9.1992 accompa· nied by body-guard and driven by PW 17 for movement of A7, and again on 14.9.92 due to threat of A7; and that out offear he torn off two pages of logbook regarding entry of his movement on 12.9.1992 and instructed PW B c 17 to re-write the logbook; and that when the police started making inquiries, he sent PW 17 out of city as advised by A7. A6 the prime accused confessed his involvement in the crime including the crimes com· mitted previously, that in the hospital he had asked another co-accused to return back without firing; and that he retaliated after being tired by someone; and that he had contacted A 7 to make arrangements to take one D injured accused to hospital after the incident. However, he did not confess of having fi~d at the deceased or the injured. A7 confessed that he had called the vehicle of A2 at the advice of A6 and he was informed about the shoot-out incident by A6. Prosecution also relied on evidence ofPWs 9, 12, 17, 25, 26,37 and 42. PW9 posted on guard duty of the prisoner, who had got injured in the incident, identified A6 as having fired gun shots and the discription of A6 given by him was corroborated by evidence of PWs 12, 26 and 42. Evidence of PWs 12 and 26, the body-guards of A2 and of PWs 17, 25 and 37 corroborated the version of A2 with regard to the movement of the vehicles. During trial designated court observed that PW 42, PSI who was on duty on the day of incident, resigned from his job, suffered mental depres· sion and W9rried about the safety of his family even after 7 years of the incident; and a retired Army Officer deposing before the Court started weeping in the witness box. The Court relying on the confessional state· ments of the accused and the evidence of prosecution witnesses convicted E F G A6 under Sections 3(2)(i) and (ii), (3), 5 and 6 of TADA Act and under Sections 120B, 302, 307 read with Section 34 IPC and under Section 27 of Arms Act, 1959 and sentenced him to death. A2- and A 7 were convicted under Section 3(4) of TADA Act and under Section 212 of IPC and were sentenced to 7 years and 10 years rigorous imprisonment respectively. H A B c 56 SUPREME COURT REPORTS [2001} SUPP. 5 S.C.R. Accused 1, 3, 4, 8, 9 and 10 were acquitted. Appellants-accused filed the present appeals against their conviction and State filed appeal against acquittal of other accused. Appellants con· tended that their conviction was not justified as identification of A6 was doubtful; that provisions of TADA were not applicable since the case was one of the gang rivalry; that confessional statements were not admissible in. evidence as the same were not true, voluntary and reliable; and that sanction for prosecution under TADA was without application of mind. A2 contended that his sentence could be reduced to the sentence already undergone, since he had undergone more than 6 years of imprisonment and because he had participated in the offence out of threat. Dismissing the appeals, the Court HELD : 1.1. Designated Court was fully justified in convicting A2, A6 and A7. Confessional statements of A2, A6 and A7 were corroborated D by the confessional statements of other accused and by the evidence of PW 12 and PW 26. There is no reason to disbelieve the evidence of PW 9 who himself was an injured witness and who was police constable on duty in the ward for the deceased prisoner. He got bullet injury at the relevant time. There is no reason to disbelieve the identification of A6 by him. DescripE F G H tion given by him gets full corroboration from evidence of PW 12, PW 26, and PW 42 PSI. Evidence of PW 25, PW 17 and that of PW 37 corrobo· rates the version of A2 with regard to movement of car on 12th and 14th September, 1992 as well as asking PW 17, driver to go out of city as directed by A 7 because police was making enquiry about movement of car. The evidence with regard to logbook and tearing of two pages also reveals guilty consciousness of A-2. [86-E-H; 87-A-D] 1.2. There is no reason to doubt identification by PW 9 as he was the police constable who was present in the room; he was injured he saw accused No. 6 coming in the room thrice and firing indiscriminately. In case when the evidence is cogent, consistent and without any motive, it is no use to theoretically imagine that as the witness has seen the accused for few minutes it would be difficult for him to identify. It always depends upon one's capacity to recapitulate what he has seen earlier. Power of perception and memorising differs from man to man and also depends upon situation. Finally, appreciation of such evidence would depend upon the strength and trustworthiness of witnesses. [96-A-B] JAYAWANT DATTA TRAY SURYARAO v. STATE 57 Rameshwar Singh v. State of J & K, AIR (1972) SC 102; Suraj Pal v. State of Haryana, [1995] 2 SCC 64 and Daya Singh v. State of Haryana, [2001] 3 sec 468, referred to. 2.1. Designated Court has rightly tried and convicted the accused for the offences punishable under the TADA. That act cannot be termed as simple act of gang rivalry. It is true that it.is difficult to define terrorism in precise terms. Whether the criminal violent act was committed with intent to strike terror in people or section of people would always depend upon facts of each case. For finding out the intention of the accused, there would hardly be any case where there could be direct evidence. It is to be inferred from the manner and mode adopted while committing the act and its aftereffect including fear psychosis. [97-G-H; 98-A] 2.2. From the circumstances in the present case, irresistible inference can be drawn that crime was committed to create terror and also to take revenge. Such act creates terror in the minds of the people or section of the people so that the targeted persons would succumb to the dictates or extortion because offear for survival. In the present case, the PSI who was on duty resigned from his job, suffered mental depression, spent sleepless nights and worried about the safety of his family after lapse of seven years of incident. A retired army officer deposing before the court appeared to be scared and started weeping in the witness box. Effect of fear psychosis also can be seen from the statement of A2 that he was compelled to use his official vehicle along with police constable for the movement of the accused. In such cases, it would hardly be possible to get e\·idence of eyewitnesses. [98-A-D] 3.1. Confessional statement before the police officer under Section 15 of TADA Act is substantive evidence and it can be relied upon in the trial of such person or co-accused, abettor or conspirator for an offence punishable under the Act or the rules. The police officer before recording the confession has to observe the requirement of sub-section (2) of Section A B c D E F 15. Irregularities here and there would not make such confessional stateG ment inadmissible in evidence. If the Legislature in its wisdom has provided after considering the situation prevailing in the society that such confessional statement can be used as evidence, it would not be just, reasonable and prudent to water down the scheme of the Act on the assumption that the said statement was recorded under duress or was not H A B c D E F G H 58 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R. recorded truJy by the concerned officer in whom faith is reposed. It is true that there may be some cases whert>. the power is misused by the concerned authority. But contention can be raised in almost all cases and it would be for the Court to decide to what extent the said statement is to be used. Ideal goal may be ~ confessional statement is made by the accused as repentance for his crime, but for achieving such ideal goal there must be altogether different atmosphere in the society. Hence, unless a foolproof method is evolved by the society or such atmosphere is created, there is no alternative, but to implement the law as it is. [98-E-H; 99-A] 3.2. Confessional statement in the present case is admissible in evidence and is substantive evidence. It also could be relied upon for connecting the co-accused with the crime. Minor irregularity would not vitiate it evidentiary value. It cannot be said that the confessional statement becomes doubtful and inadmissible in evidence because there was delay in sending it to the Chief Judicial Magistrate and it was not sent forthwith as required under Rule 15 of the TADA Rules. As per Rule 15 what is mandatory is that the confessional statement should be forwarded to the Designated Court, which may take cognizance of the offence. Such violation of the Rule cannot be held to be incurable illegality. It also cannot be said that confessional statements of other acquitted accused cannot be relied upon for connecting the accused with the crime. [93-D-E] Lal Singh v. State of Gujarat and Am:, [2001] 3 SCC 221 and State v. Nalini and Ors., [1999] 5 SCC 253, relied on. Warriyam Singh and Ors. v. State of U.P., [1995] 6 SCC 458, referred to. 4. Sanction to prosecute under TADA granted by the competent authority cannot be said to be in any way illegal or erroneous since the sanction orders were exhaustive and relevant materials were referred to. [99-B] 5.1. Sentence of A-2 could not be reduced to sentence already undergone in view of the fact that he had already undergone 6 years of imprisonment and that he had assisted the culprits under threat. May be that A-2 is a political leader or that there may be some threat or compulsion in using his official vehicle for moving the accused from one place to another, but that would hardly be a ground for reducing the sentence. As a responsible citizen, he ought to have informed the concerned police a~thorities. It is - -- JAYAWANTDAITATRAY SURYARAO v. STATE 59 difficult to hold that police would not have given necessary assistance to A· . A 2 who was President of Bhiwandi Municipal Corporation. The citizens are not supposed to help the criminals on the assumption that in case of need police would not come to their rescue and should succumb to illegal demands of the gangsters. [99-H; 100-A·C] 5.2. Considering the overwhelming evidence against A-7, particularly the evidence of PW-26 and the activities carried out by A-7 as confessed by him, it cannot be said that the sentence imposed is in any way excessive or discriminatory. From the role played by A-7, it is clear that he was vitally involved. [100-D·F] 5.3. Considering the confessional statement as a whole coupled with the other evidence and the terror created by the accused, the conviction of accused No. 6 is confirmed but the sentence is modified from death penalty to imprisonment for life-till rest of life. In view of the heinous act of terrorB c ism and brutal murder of two police constables who were on duty to guard D the deceased even though it is held that this would not be a fit case for imposing death sentence, it is directed that accused would not be entitled to any commutation or pre-mature release under Section 433-A of Criminal Procedure Code, 1973 Prisoners Act, Jail Manual or any other statute and the rules made for the purpose of commutation and remissions. [103-F ·G] Subhaslz Chander v. Krishan La! and Ors., [2001] 4 SCC 458; State of M.P. v. Ratan Singh, [1976] 3 SCC 470; Shri Bhagwan v. Stale of Rajasthan, [2001] 6 SCC 296; Sohan Lal v. Asha Ram and Ors., [1981] 1 SCC 106 and Zahid Hussein and Ors. v. State of W.B. and Anr., [2001] 3 SCC 750, relied on. 6. Considering the evidence brought on record, the Designated Court rightly acquitted A-I, A-3, A-4, A-8~ A-9 and A-10. The Court has rightly held that confessional statement~ without there being sufficient corrobOrative evidence would not be sufficient for convicting the accused for the offences for which they are charged. [104-B-C] CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 975 of 2000. E F G From the Judgment and Order dated 7.8.2000 of the Designated Court, H 60 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R. A Bombay in TADA S.C. No. 31 of 1993. B c D E F G H WITH Crl. A. Nos.956, 966, 1101 of 2000 and Death Reference Case No. 1 of 2000. Altaf Ahmad, Additional Solicitor General, Sushi! Kumar, Niteen Pradhan, Dr. Rajeev B. Masokdar, K.L. Taneja, Sudeep Pasbola, Sushil Karanjkar, G.B. Sathe, Ravi P. Wadhwani, Sanjay Jain, Narender Kr. Chaudhary, V.B. Joshi, S.S. Shinde, Ms. Rohini Salian, S.V. Deshpande, Arun K. Sinha, N.M. Sakhardande, Ms. Meenakshi Sakhardande, Ms. S.D. Khot and Ms. Ruby Singh Ahuja for the appearing parties. The Judgment of the Court was delivered by SHAH, J. These appeals have been filed against the judgment and order dated 7.8.2000 passed in TADA Special Case No.3! of 1993 passed by the Designated Court for Greater Bombay at Bombay. By the impugned judgment and order, out of 24 accused, the Designated Court convicted A-6 Subhashsingh Shobhnathsingh Thakur, A-2 Jaywant Dattatraya Suryarao and A-7 ShamkishoShamsharma Garikapatti for the various offences as under: - "I. A-6 Subhashsingh Shobhnathsingh Thakur- (a) under Section 3(2)(i) of TADA (P) Act and is sentenced to death and to pay a fine of Rs.500, in default of payment of fine to undergo rigorous imprisonment for one month more; (b) under Section 120-B fPC and is sentenced to death; (c) under Section 3{2)(ii) of the TADA (P) Act and is sentenced to suffer imprisonment for life and to pay a fine of Rs.500, in default of payment of fine to undergo rigorous imprisonment for one month more; (d) under Section 3(3) of the TADA (P) Act and is sentenced to suffer imprisonment for life and w pay a fine of Rs.500, in default of payment of fine to undergo rigorous imprisonment for one month more; (e) under Section 5 of the TADA (P) Act and is sentenced to JAYAWANT DAITATRAY SURYARAO v. STATE [SHAH, J.] 61 suffer imprisonment for a term of 10 years and to pay a fine A of Rs .I 00, in default of payment of fine to undergo rigorous imprisonment for one month more; (f) under Section 6 of the TADA (P) Act and is sentenced to suffer imprisonment for 10 years and to pay a fine of Rs.lOO, in default of payment of fine to undergo rigorous B i~p.prisonment for one month more; (g) under Section 302 of Indian Penal Code for causing the death of Shailesh Shankar Haldankar and is sentenced to death and to pay a fine of Rs.500 only, in default of c payment of fine to undergo rigorous imprisonment for one month more; (h) under Section 302 of Indian Penal Code for causing the death of Police Head Constable C.G. Javsen, B.No.l8005 and is sentenced to death and to pay a fine of Rs.500 only, D in default of payment of fine to undergo rigorous imprisonment for one month more; (i) under Section 302 of Indian Penal Code for causing the death of Police Constable K.B. Bhanawat, Buckle No.22579 and is sentenced to death and to pay a fine of Rs.500 only, E in default of payment of fine to undergo rigorous imprisonment for one month more; (j) under Section 307 read with 34 of Indian Penal Code for attempting to commit the murder of PW9 Police Constable F Vijay Krishna Nagare, PW42 PSI K.G. Thakur, PWll Shankar Ganpat Sawani, PW54 Shankar Ramchandra Jadhav and is sentenced to suffer imprisonment for life; (k) under Section 27 of the Arms Act and is sentenced to death; - 2. A-2 Jayawant Dattatray Suryarao-- G (a) under Section 3(4) of the TADA (P) Act and is sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.500, in default of payment of fine to undergo rigorous imprisonment for one month; H A B c D E F G H 62 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R. {b) under Section 212 of IPC and is sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.SOO, in default of payment of fine to undergo rigorous imprisonment for one month; 3. A-7 Shamkislwr Shamsharma Garilwpatti- (a) under section 3(4) of the TADA (P) Act and is sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.500 only, in default of payment of fine to undergo rigorous imprisonment for one month; (b) under Section 212 of Indian Penal Code and is sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.500, in default of payment of fine to undergo rigorous imprisonment for one month." A-1 Jahur !smile Faki, A-3 Mehaboobi Aziz Khan, A-4 Anil Amarnath Sharma, A-8 Ahmed Mohmed Yasin Mansoori, A-9 Jaiprakashsingh Shivcharansingh @ Dacchisingh and A-10 Prasad Ramakant Khade were acquitted for the offences for which they were charged. For A-ll to 24, it has been stated that some were shot dead during the trial and some were absconding. Therefore, the trial of the accused, present in the court, was separated. Against the said judgment and order- (a) A-2, Jayawant Dattatray Suryarao has preferred Criminal Appeal No.975 of 2000; (b) A-6 Subhashsingh Shobhnathsingh Thakur has preferred Criminal Appeal No.966 of 2000; and as he was sentenced to d~ath, there is Death Reference Case No.1 of 2000. (c) A-7 Shamkishor Shamsharma Garikapatti has preferred Criminal Appeal No.956 of 2000. (d) The State has preferred Criminal Appeal No.llO 1 of 2000 against the acquittal of A-1 Jahur lsmile Faki, A-3 Mehaboobi Aziz Khan, A-4 Anil Amamath Sharma, A-8 Ahmed Mohmed Yasin - \ -- ~- JAYAWANT DAITATRAY SURYARAO v. STATE [SHAH, J.} 63 Mansoori, A-9 Jaiprakashsingh Shivcharansingh@ Bacchisingh A and A-10 Prasad Ramakant Khade. It is the prosecution version that on 12.9.1992 at about 03:20 hours the incident of shoot out took place in J.J. Hospital Campus at Mumbai, which is a Government Hospital having occupancy of 1500 beds. It is alleged that having made preparation, such as. procuring sophisticated weapons like AK-47 rifles, pistols, revolvers, dynamites and hand-grenades and by firing the shots through the said weapons, accused have committed murder of (1) Prisoner Shailesh Shankar Ha!dankar, who was undergoing treatment in Ward No.18 in the said hospital; (2) Police Head Constable Chaintaman Gajanan Javsen; and (3) Police Constable Kawalsingh Baddu Bhanawat. The two policemen were on guard duty of prisoner Shailesh Shankar Haldankar. It is also alleged that B c they attempted to commit murder of six other persons including PWll Shankar Ganapat Sawant - a patient undergoing treatment in ward no.18, Yunus Mohamed Dadarkar - a relative of a patient, PW54 Shankar Ramchandra Jadhav-watchman on duty, PW9 Constable on guard duty, Vijay Krishna Nagare, D PW42 PSI Thakur, the Police Officer on duty to exercise the supervision over the guard and a staff nurse Smt. Chandrakala Vi thai Vinde, who was on duty. Thus, it is alleged that all the accused have committed the offence punishable under Sections 120-B of IPC read with 3(2}(i), 3(2)(ii), 3(3}, 3(4), 5 and 6 of Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the 'TADA') and Section 302 read with section 34, in the alternative section 302 read with section 114. in the alternative read with Sections 149, 307 read with section 34, in the alternative section 307 read with section 114, in the alternative section 307 read with section 149 of the Indian Penal Code and Section 27 read with section 5 of the Arms Act. It is the prosecution case that in Mumbai City, criminal gangs operate and they commit organized crime and recover large sum from industrialists, businessmen, professionals, hoteliers etc. as "khandani" (protection money). It is also stated that sister of Dawood Ibrahim (a gangster) had married one Ibrahim Parkar who was man of confidence of Dawood Ibrahim. Ibrahim Parkar was shot dead at his residence on 26.7.1992 in Nagpada locality and an offence, under Crime No.589/93, under Section 302 IPC was registered in that connection. Deceased Shailesh Haldankar was suspected to have pointed him out. It is also alleged that the said Shailesh Haldankar was a person belonging to the gang of Arun Gawali, the arch rival of Dawood Ibrahim. On the night between 30.8.1992 and 31.8.1992 Shailesh Haldankar, Bipin Shere, Raju Batata and E F G H 64 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R. A Santosh Patil had fired shots at one Masukh Rawat in the Kumbharwada locality and therefore the offence (at Crime No.460/92) under Section 307 IPC was registered against them and as such Shailesh Haldankar, Bipin Shere and Raju Batata ·were wanted accused in that crime. On 2.9.1992 at about 8.00 a.m. or so, Shailesh Haldankar and Bipin Shere and their associate Raju Batata (now B deceased) were noticed by some one in Kumbharawada locality and the police was informed. On information, police party chased them and noticing police party, they tried to scare away the police by brandishing the weapons i.e. the swords and choppers. Somehow or the other, the police succeeded in overpowering Shailesh Haldankar and Bipin Shere. Third person Raju Batata managed c to escape in the melee. At the same time, number of persons who had gathered there, on seeing the commotion man-handled Shailesh Haldankar and Bipin Shere. The police successfully persuaded the members of the public to maintain peace and thereafter Shailesh Haldankar and Bipin Shere were removed to J.J. Hospital for treatment of injuries sustained by them. They were transferred to J.J. Hospital and kept in Ward No.18 on the third floor. A guard D comprising of one head constable and two constables was posted on duty to prevent the escape of the prisoners. It is the prosecution version that on 12.9.1992 at about 2.00 a.m. PW42 PSI Thakur had gone for guard duty check at the J.J. Hospital. After checking E guard of Bipin Shere, he went to ward no.18 to check the guard of the prisoner Shailesh Haldankar. In the said ward, Shailesh Haldankar and other patient (PWlO) Siddiq Ahmed Amin were sleeping on cots. Police Constable Nagare (PW9) was sitting on the stool between the cots. Head constable Javsen and PC Bhanawat were sitting on the very same cot on which Shailesh Haldankar F was lying. Shailesh Haldankar was handcuffed. PSI Thakur went inside the cabin and sat on the said cot. It is alleged that all the accused came from the room of absconding accused Nazir Jariwala by two fiat cars. Accused no.8 Ahmed Mansoori and deceased Sunil Sawant went ahead on scooter. They were followed by cars. G The blue car was in front and· was occupied by accused no.6 Subhashsingh and others. Other car was occupied by other accused. Both the cars entered through the western side gate of J.J. Hospital. Some accused took their position near the staircase and accused no.6 and others went upstairs. It is alleged that accused no.6 made a show by catching the collar of absconding accused Ravi H Sorte and played a hoax that he was the police man who had caught the - ., - - JAY A WANT DAITATRAY SURYARAO v. STATE [SHAH, J.} 65 cr-iminal by uttering the words "saale tumhare baki satthi dikhao". PW54 A Shankar Ramchandra Jadhav, a watchman on·duty, who was standing near the staircase in the main building in front of the lift at the ground, after noticing the weapons in the hands of accused, suspected that probably they might be the policemen. However, when he attempted to go ahead to make an enquiry, A-10 Khade caught him and threatened him that he should not move and at B the same time accused no.9 Bacchisingh hit him by the revolver butt on his face. It is stated that PW54 Shankar Jadhav fell down in semi-conscious state and re-gained consciousness later on when he was taken to casualty ward. PW6 Police Constable Anant More, an unarmed constable attached to Police Head Quarter, Thane, on 12.9.1992, was on guard duty in Ward No.18 C of J.J. Hospital because one of the accused, who was lodged in Kalyan Prison was admitted in that ward for treatment. His duty hours were from 3.00 a.m. to 6.00 a.m., he noticed three persons duly armed entering the said ward at about 3.40 a.m. Two of them were having AK-47 rifles. He rushed to the southern side wall of the ward. There was a door in that wall and the shots D were being fired at that door itself and, therefore, he could not fire from his weapon in retaliation. The prisoner whom they were guarding had taken shelter underneath the cot. He went in left side room, wherein another prisoner was admitted, who was being guarded by a guard from Mumbai and noticed that the accused and two policemen were lying in the pool of blood E on the ground in the said room. His statement was recorded by Byculla Police Station Staff. It is also stated that the staff nurse Ms. Chandrakala Vithal Vinde was on duty in ward no.l8. After the accused entered the said ward, all of a sudden PW42 PSI Thakur heard the words "hands up, do not move, else we will kill you". At that time, PW9 PC Nagare attempted to close the door but it was not fully closed. Further, PSI Thakur heard four rounds having been fired on the door which was sought to be closed and noticed that a person was standing outside the door at a distance of 1-1/2 or 2 feets. It is stated that PSI Thakur fired from the revolver and· also 1saw one person having weapon like AK-47. He went out froin the 'Sdiitileh'l :side F of the cabin. At that time, deceased Shailesh was uttering ::'release mdtth~ L§i have come to kill me". PW9 PC Nagare and the other -constables1be~ifuiie alert. PSI Thakur went out through the southern door of cabin .an