# S.N. DUBE ETC v. N.B. BHOIR

- **Citation:** [2000] 1 S.C.R. 200
- **Court:** Supreme Court of India
- **Decided:** 2000-01-12
- **Bench:** G.T. Nanavati, S.P. Kurdckar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-n-dube-etc-v-n-b-bhoir-17103
- **Pages:** 46

## Headnote

Terrorist and Disrnptive Activities (Prevention) Act 1987, s. 15. Tmorist
and Disrnptive Activities (Prevention) Rules, Rule 15(2) and (3) and Code
of Criminal Procedure 1974, s. 164-Confessions of accused recorded by same
C police officer who was supervising investigations and without inf arming accused that the statements were being recorded under TADA-Whether
malafide--Held, on facts, no; moreover, accused made no such grievance in
their statement under s. 313 Cr.P.C.
D
Mandatory requirement that police officer must explain and give
statutory warning to accused so that confession is voluntary-Whether while
confession is recorded in two parts warnings given while recording first part
will hold good for recording the second part which is the real confession--Held, yes; the second part being in continuation of the first part both
parts have to be treated as one confe.1sional statement-Further held, the
E requirement of law was that police officer should ascertain voluntariness and
explain to accused that confession could be used against him in evidence--On
facts, there was no breach of rnle 15(2) of TADA Rules.
Police officer mixing up the certificate and memorandum required to
F be made under the mies-Statement regarding voluntariness appearing in the
body of the confession and not at the end of it-Whether the certificates and
memorandum should be in the exact words of Rule 15(3)(bj--Held, no
mandatory-Though giving of statutory warning ascertaining voluntariness
alld preparation of contemporaneous r.:cord is mandatory, the words of the
G certificate and memorandum are not-There was no violation of rnle
15(3/(b).
Whether guidelines issued by High Court for recording confessions u/s.
164 Cr.P.C. apply to those recorded u/s. 15 TADA-Held, no-Merely because
some guidelines were not followed Rule does not deprive con/ essions of their
H evidentiary value.
200
...
S.N. DUB!:<. v. N.B. BHOIR
201
...
Admissibility of confession by accused under s. 15 TADA-Held, is a A
substantive piece of evidence and can be used against a co-accused also
otherwise held to be voluntary and believable-Further held, on facts, the
con/ essions of the accused 1 to 6 were voluntary and reliable and could farm
a safe basis for convicting them.
Test Identification Parade-Witnesses identifying accused for first time
B
in court during trial three years after a"est of accused-Held, not holding
T.l.P. does diminish the evidentiary value of the identification of the accused
in court but is co"oborated by other evidence-Evidence Act 1872, s. 9.
Code of Criminal Procedure 1974, s. 173(8)- -Criminal investiga- c
tion-Case initially investigated dishonestly-Despite five empty cartridges
being recovered from spot indicating that weapon was pistol, a revolver was
seized as the weapon of offence-Two persons sent up for trial and after
obtaining bail they absconded-Trial not proceeded with-Later another
police officer re-investigating and finding that acts were of te"orist nature
attracting TADA-Trial court holding that re- investigation was done with D
oblique motive-Held, on facts, trial court e"ed in coming to such conclusio~There wert doubts about the honesty of the first investigation and
the subsequent investigation was not done with any oblique motive.
Te"orist and Dtsmptive Activities (Prevention) Act 1987, s.3(3)-Terrorist acts-<;ang warfare O"er grabbing of lmui-Confessions of A I to A ·6
E
revealing commission r;J ccrrmist acts by ga11gs lo which Chey belonged-Held,
although there was no specific evidence regarding le"orist acts, con/ essions of
A-1 toA-6 co"oborated by witnesses would prove A-I to A-6 had committed
tmorist acts attracting s. 3(3) TADA.
The gang of MP had accepted supremacy of the gang of BT and both F
the gangs were cooperating with each other in committing terrorist acts
and in carrying on the illegal activities of land grabbing. In September,
1989, it was decided between the two gangs that BT would liquidate the
-..
person whom the gang

## Text

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A
S.N. DUBE ETC.
v.
N.B. BHOIR
JANUARY 12, 2000
B
[G.T. NANAVATI AND S.P. KURDCKAR, JJ.j
Terrorist and Disrnptive Activities (Prevention) Act 1987, s. 15. Tmorist
and Disrnptive Activities (Prevention) Rules, Rule 15(2) and (3) and Code
of Criminal Procedure 1974, s. 164-Confessions of accused recorded by same
C police officer who was supervising investigations and without inf arming accused that the statements were being recorded under TADA-Whether
malafide--Held, on facts, no; moreover, accused made no such grievance in
their statement under s. 313 Cr.P.C.
D
Mandatory requirement that police officer must explain and give
statutory warning to accused so that confession is voluntary-Whether while
confession is recorded in two parts warnings given while recording first part
will hold good for recording the second part which is the real confession--Held, yes; the second part being in continuation of the first part both
parts have to be treated as one confe.1sional statement-Further held, the
E requirement of law was that police officer should ascertain voluntariness and
explain to accused that confession could be used against him in evidence--On
facts, there was no breach of rnle 15(2) of TADA Rules.
Police officer mixing up the certificate and memorandum required to
F be made under the mies-Statement regarding voluntariness appearing in the
body of the confession and not at the end of it-Whether the certificates and
memorandum should be in the exact words of Rule 15(3)(bj--Held, no
mandatory-Though giving of statutory warning ascertaining voluntariness
alld preparation of contemporaneous r.:cord is mandatory, the words of the
G certificate and memorandum are not-There was no violation of rnle
15(3/(b).
Whether guidelines issued by High Court for recording confessions u/s.
164 Cr.P.C. apply to those recorded u/s. 15 TADA-Held, no-Merely because
some guidelines were not followed Rule does not deprive con/ essions of their
H evidentiary value.
200
...
S.N. DUB!:<. v. N.B. BHOIR
201
...
Admissibility of confession by accused under s. 15 TADA-Held, is a A
substantive piece of evidence and can be used against a co-accused also
otherwise held to be voluntary and believable-Further held, on facts, the
con/ essions of the accused 1 to 6 were voluntary and reliable and could farm
a safe basis for convicting them.
Test Identification Parade-Witnesses identifying accused for first time
B
in court during trial three years after a"est of accused-Held, not holding
T.l.P. does diminish the evidentiary value of the identification of the accused
in court but is co"oborated by other evidence-Evidence Act 1872, s. 9.
Code of Criminal Procedure 1974, s. 173(8)- -Criminal investiga- c
tion-Case initially investigated dishonestly-Despite five empty cartridges
being recovered from spot indicating that weapon was pistol, a revolver was
seized as the weapon of offence-Two persons sent up for trial and after
obtaining bail they absconded-Trial not proceeded with-Later another
police officer re-investigating and finding that acts were of te"orist nature
attracting TADA-Trial court holding that re- investigation was done with D
oblique motive-Held, on facts, trial court e"ed in coming to such conclusio~There wert doubts about the honesty of the first investigation and
the subsequent investigation was not done with any oblique motive.
Te"orist and Dtsmptive Activities (Prevention) Act 1987, s.3(3)-Terrorist acts-<;ang warfare O"er grabbing of lmui-Confessions of A I to A ·6
E
revealing commission r;J ccrrmist acts by ga11gs lo which Chey belonged-Held,
although there was no specific evidence regarding le"orist acts, con/ essions of
A-1 toA-6 co"oborated by witnesses would prove A-I to A-6 had committed
tmorist acts attracting s. 3(3) TADA.
The gang of MP had accepted supremacy of the gang of BT and both F
the gangs were cooperating with each other in committing terrorist acts
and in carrying on the illegal activities of land grabbing. In September,
1989, it was decided between the two gangs that BT would liquidate the
-..
person whom the gang of MP wanted to eliminate and MP gang would do
away with SD.
G
On October 9, 1989 one of the members of the MP gang saw SD going
towards the Nalasopara railway station and after locating his position
immediately rushed to the nearby hotel belonging to MP and informed
other members of the gang including A-1. So A-1 and some other members
of the gang who were present there rushed to the platform. A-1 was armed H
202
SUPREME COURT REPORTS
(2000] 1 S.C.R.
A with a pistol. Other members of the gang were also variously armed. A-I
found SD standing near the newspaper stall and fired three shots from a
close range. SD got injured and fell down on the platform. A-1 went near
him and fired one more shot. After thus killing SD all the assailants ran
away from that place.
B
Within a very short time Police Inspector (Pl) K, who was in-charge
of Vasai Police Station, went to the house of the Dube brothers (relatives
of deceased SD), and tried to persuade them not to involve BT and then
threatened by stating that if they did, then the consequences would be
serious. The Dube brothers therefore did not lodge any complaint. lnvesC tigation was not made lionestly. Some of the empties found from the
platform were substituted or tampered with. At the instance of K and N
A-4 and A-11 were arrested as the persons responsible for the murder of
SD. A revolver was recovered at the instance of A-4 as the weapon with
which SD was killed. Those two accused were then charge- sheeted and put
D up for trial. Hearing of the said case could not proceed further as both the
accused were shown absconding aller they were released on bail. No effort
was made by the police for getting warrants issued for securing their
presence before the court.
On February 19, 1992 the police si:t-up at the Vasai police station
E and Palghar railway police station, within whose jurisdiction the gangs
were operating, had changed. DIG S of the Railways, during hb visit to·
Palghar railway police station, had an occasion to look into the investigation papers relating to the murder of SD. He became suspicious about
honesty of the investigation and identity of the real assailants. He, thereF fore, re-opened the case on a written complaint given by Dube brothers on
May 18, 1995. S forwarded it to DSP D for further enquiry. The enquiries
made by him and PI Shinde revealed that the gangs of BT and MP were
committing terrorist acts in Nalasopara and surrounding areas, they had
created a reign of terror and that SD was killed by a person belonging to
the gang of MP at the instance of BT. D, therefore, submitted a report
G under s. 173(8) of the Code of Criminal Procedure to the Sessions Court
at Thane and sought permission for re-investigation of the case. Permission was granted.
At the conclusion of the investigations, charge sheets were laid
H against the accused A-1 to A-13 for offences under ss. 120B, 201, 217, 218,
...
S.K DUBE v. N.B. SHOW.
203
302 read with ss. 149, 307 read with s. 149 of Indian Penal Code (IPC), ss. A
3, 3(3) and 3(4) of TADA Act ands. 25(1)(a) of the Arms Act. A-14 to A-17
were charged under ss. 201, 217, 218 read with s.120B IPC. Theywere also
charged under ss. 3(3) and 3(4) of the TADA Act read with s. 120B IPC.
The prosecution mainly relied on the confessions made u/s. 15 TADA
by A-1 to A-6 and recorded by Pl Shinde as well as the evidence of eye B
witnesses PWs 48 and 49. The trial Court found many faults with the
confessions and held them inadmissible in evidence. It also held that they
were not voluntarily made. It disbelieved the witnesses examined to prove
the terrorist acts 011 the ground that their evidence was too general and
vague and they were not independent and responsible members of the C
locality. The evidence of the two eye witnesses was disbelieved on the ground
that these were material improvements and contradictions in their
evidence. Identification of the accused in the court by these two eye witnesses was after a long time and no previous test identification parade was
held. For all these reasons the trial court held that the prosecution case
againstA-1 to A-13 was not proved. As regards A-14 to A-17 the trial Court D
held that the sanction given for their prosecution under s. 3(1) of TADA
was vitiated on account of non-application of mind. It also held that the
reinvestigation was done with an oblique motive. Thus the case against A-14
to A-17 was also held not proved.
The complainm•t and the State "ppealetl to this Com t.
Partly allowing the appeals, this Court
HELD: 1.1. A-1 was guilty under s. 302 I.P.C. and A-2 to A-6 under
Section 302 read with Sections 120-B and 149 l.P.C. A-1 to A-6 were also
guilty under s. 3(3) TADA Act. (245-E-F]
E
F
1.2. The confession recorded under s. 15 TADA Act was a substantive
piece of evidence and could be used against a co- accused also otherwise
held to be admissible, voluntary and believable. In the instant case, the
confessions of A-1 to A-6 were voluntarily made, true and reliable and G
received independent corroborration on material points from evidence of
two eye witnesses as well as that of PWs 1 to 5. The confession could form
Ii safe basis for convicting A-1 to A-6. [232-G; 240-G-H]
Kartar Singh v. State of Punjab, [1994] 2 SCC 568; State v. Nalini and
Kalpnath Rai v. State, (1997] 8 SCC 732, referred to.
H
204
SUPREME COGRT REPORTS
(20GO) l S.C.R.
A
1.3. There was no illegality or impropriety in Pl Shinde recording
the confessions even though he was supervising the investigation. Shinde
had clearly stated in his evidence that ~e had made attempts to find out
if any other Superintendent of Police was available for recording the
confessions and as others had declined to oblige him he had no other
B option but to record them. 233-E-F]
1.4. Shinde had committed no breach of Rule 15(2) while recording
the confessions of the accused. The requirement of law was that before
recording the confession the police officer should ascertain by putting
questions to the maker of it that he was making the confession voluntarily
C and he should also explain to him that he is not bound to make the
confession and that if he makes it that can be sued against him as evidence.
(236-C; 235-G-H]
1.5. Neither s. 15 TADA nor Rule 15 contemplated recording the
confession in two parts. The second part being in continuation of the first
D part, both parts had to be treated as one confessional statement (235-D; I<']
1.6. The contention that when the confession is recorded in two parts,
only the second part can be regarded as the confession and while recording
the second part the police officer should give the statutory warning and
then ascertain if the person concerned b making it voluntarily, could not
E be accepted. (235-G]
1.7. The trial court was wrong in holding that there was a breach of
Rule 15 (3)(b) and therefore, the confessions were inadmissible and bad.
Though giving of the statutory warning ascertaining voluntariness of the
confession and preparation of a contemporaneous record in presence of
F the person making the confession were mandatory requirements of that
rule, the form and the words of the certificate and memorandum were not
mandatory. What were the mandatory requirements of a provision could
not be decided by overlooking the object of the provision. [238-E; 237-B-C]
G
1.8. The sanctity of the confession did not get adversely affected
merely because the certificate and memorandum were not separately written but were mixed up or because different words conveying the same thing·
was used by the recording officer. (237-EJ
1.9. The rules or the guidelines framed by the Bombay High Court for
H recording a confession by a Magistrate under Section 164 Cr.P.C. did not by
S.N. DUBE v. N.R BHOIR
205
themselves apply to recording 1Jf a confession under s. 15 of the TADA Act. A
Merely because some of those guidelines were not followed while recording
the confession or on the ground that it is not in conformity with s. 15(2) of
the TADA Act and Rule 15 of the TADA Rules did not deprive them of their
evidentiary value. The police officer recording a confession under s. 15 was
really not bound to follow any other procedure. [239-G-H]
2. The infirmity of not holding· the test identification parade did
diminish the evidentiary value of the identification of the accused by the
witness. But it stood corroborated by the evidence of another eye witness
and also by the confessions of A-1 to A-4. [226-F]
State of Maharashtra v. Sukhdev Singh, AIR (1992) SC 210 and State
v. V.C. Shukla, AIR (1980) SC 1382, referred to.
3.1. A-1 to A-6 are guilty under Section 3 (3) of the TADA Act as well.
B
c
Although the evidence of the witnesses, except that of P.W. 19 was not
specific and by itself could not be regarded as sufficient to prove terrorist D
acts but they provided sufficient corroboration to the admissions made by
A-1 to A-6 in their confessional statements that the gangs of BT and MP
had created terror in the areas of their operation. Relying upon those
confessions and the evidence of these witnesses a finding that A-1 to A-6
were engaged in committing terrorist acts, could be recorded. [244-E-H]
E
3.2. Apart from the confession statements of the co-accused there
was no other independent evidence to show the involvement of A-14 to A-17
as alleged. Although the confessions did create a strong suspicion that
A-14 to A-17 were maintaining good relations with BT and A-8 and that
they had possibly helped BT and MP in screening the real offenders, it F
would not be safe to convict them only on the basis of the confessions of
the co- accused. [245-B-D]
4.1. The circumstances do create a doubt regarding honesty of the
first investigation. The subsequent investigation made by the police after G
September 1992 was not done with any oblique motive. [221-C]
4.2. The trial Judge was wrong in holding that there was no material
for entertaining any doubt and re-opening the investigation and that it had
been done so with some oblique motive. The complaint does indicate that
the investigation made till then was not honest. Dube brothers, in the H
206
SUPREME COURT REPORTS
(200011 S.C.R.
A position in which they were placed at that time, could not have specifically
alleged that the previous investigation was dishonest. From the fact that
in the application made to the Court for permission to re-investigate it was
not stated that the previous investigation was not honest, no inference of
oblique motive could have been legitimately inferred. [215-C-E]
B
4.3. Tbe trial Court grievously erred in holding that TADA was wrongly invoked. The complaint made by Dube brothers and inquiries made by D
and his ofticers disclosed some of the illegal activities committed by the
gangs of BT and MP and the terror created by them in Nalasopara and
surrounding areas. It was on the basis of the examination of several witC nesses and gathering material that he was satisfied that the accused had
committed offences punishable under the TADA Act. [216-B-C; E]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
678 of l 997 Etc.
D
From the Judgment and Order dak.d 16.5.97 of the Designated
Court, Pune in Terrorist Sessions Case No. 32 of 1993 with T.S.C. No. 1 of
1996.
Sushi! Kumar, LU. Shah, Raiendra Singh, S.R Chitnis, Bhim Rao
E Naik, \-JS Ganc:sh, B.S. Kntwal, .A .S. Nambiar. R.K Jain, R.D. O.dkar,
" B.M. Naik, V."i. G"npuk, LS. Arun"chat•m, Sanjay Jill.;";, Atul "iharnoa,
U.U. Lalit, S.S. Shindt:, D.M. Nargoikar, T.A. Khan, P. Parmcshwaran,
Manoj God, Shrikant Shivade, G.B. Sathe, Brij Bhushan, Ms. Hemantika
Wahi, Ms. Sumita Hazarika, P.N. Gupta, Rajeev Sharma, Kishan Datta,
T.C. Sharma, Ajay Sharma, Ms. Neclam Sharma, Rupesh Kumar, P.N.
F Parekh, Rahul Roy, D.K. Garg, A.K. Gupta, Ms. Rekha Palli, '.'lischal
Niraj, Manoj Mohite, Ms. Lata Krishnamurthy, P.N. Gupta, S.M. Garg,
Kishan Dutta, R.P. Wadhwani and S.M. Jadhay for the appearing parties.
G
The Judgment of the Court was delivered by
G.T. NANAVATI, J. 1. One Suresh Dube was shot dead on a platform
of Nalasopara (a suburb of Bombay) Railway Station in broad day light.
Many persons saw it and many knew who were the murderers. Because of
the terror of the gangs involv.:d none except two persons, one accompanying the deceased and the other who was at that time polishing shoes of that
H person, have come forward to give evidence against the murderers. One
,
'
_!
/
S.N. DLBE v. N.B. BHOIR(O.T. NANAVATI,J.]
207
Mukesh Ratilal Shah (P.W.13), who was injured by one of the bullets fired A
at that time; has thought it fit not to name the person who had fired the
shot. Initial dishonest investigation by the police, on account of close nexus
between those gangs and some of the police officers of the area where the
said gangs were operating, not only delayed the prosecution of the real
culprits but also weakened it considerably. On these allegations 17 persons
(thirteen belonging to the two gangs and four police officers) were tried in
the Court of the Judge, Designated Court, Pune in Terrorist Sessions Case
No. 32 of 1993 and Terrorist Sessions Case No. l of 1996 (amalgamated
with original TSC No. 32/1993), for the murder of Suresh and for commis·
sion of terrorist acts and other offences. The Trial Court did not consider
B
it safe to convict them on the basis of the prosecution evidence and, C
therefore, acquitted them of all the charges. Shyam Sunder Dube, brother
of Suresh Dube, feeling aggrieved by the acquittal has filed Criminal
Appeal No. 678 of 1997. The State of Maharashtra has also filed Criminal
Appeal Nos. 709-710 of 1997.
2. The prosecution case is as follows :
D
(a) Nalasopara is a suburb of the City of Bombay. Formerly it was a
small and a quite place but with the expansion of the city of Bombay it also
started growing. Development of lands and construction of buildings became a lucratiw business. That abo led to illegal activity of land gnibbing, E
compulsory sales and forcibly taking of posse&sion of lands. Those illegal
activities were carried on by the gangs of Pendhari, Suresh Dube and Bhai
Thakur since 1980. In 1984 Manik Patil's gang also started operating in
Nalasopara area. Bhai Thakur's gang was operating from Virar, a nearby
suburb and the last station for the suburban trains running bt:tween F
Churchgate (Mumbai) and Virar. Often there were conflicts and fights
between these gangs and because of that one Ram Naresh Chourasiya was
murdered in 1984 and Bharat Pendhari was murdered in 1989. Dubt1
brothers having made money stopped that illegal activity one or two years
prior to the date of the incident, but continued to carry on the business of
land development and construction of buildings. One of the Dube brothers, G
Dr. Om Prakash Dube (P.W.l) had opened a Nursing Home on the first
floor of their building called 'Dube Estates'. Naresh (P.W. 3) was doing
business of building materials. Another brother Jai Prakash (P. W.4) was
looking after their Pandava Hotel. Shyam Sunder Dube arrd Suresh Dube
continued to look after land development and building activity. All the H
208
SUPREME COURT REPORTS
[2000] l S.C.R.
A brothi::rs were residing on the second floor of 'Dube Estates'.
(b) Dube brothers had agreed to purchasi:: one land bearing Survey
No. 110 of Village Achok and some othn lands of nearby placi::s. Bhai
Thakur wanted thos<.: lands and had forcibly taken possession of them. Bhai
Thakur wanted Dube brother~ to transfor Survey No. 110 of Achole to him
B and for that reason had called Suresh Dube at his office in Virar a few
days prior to 9.l0.1'189. As the relations bi::tween Bhai Thakur's gang and
Dube brothers wen.: inimical Surcsh Dube was not allowed to go alone to
Bhai Thakur's offiCl". Dr. Om Prakash had accompanied him. In his offici::
Bhai Thakur, his brother Hitendra Thakur and other associates were
C present. They had told Suresh Dube to part with that land and also to pay
'haftas' to Bhai Thakur if be and his 'irothcrs wanted to ri::main in
Nalasopara and carry on the land development and building construction
activity. Suresh Dubi:: was even threatened and warned that if he did not
comply with that demand and took any other action, then the members of
D his family shall have to perform 'aarti' of his photo within a short time.
Because of this threat Suresh Dube was not moving out of his house since
then. As there was no response from Suri::sh Dube Bhai Thakur and his
associates decided to finish him. On 8.10.1989 a warning was given to him
on telephone that ii hi:: did not transfer that land to Bhai Thakur be would
be finished. On that day at night one Srikand Pandey, who was working
E with Bhai Thakur anJ had soml." contact wirh Surcsh, wc11t to the house of
S urcsh and tricJ to cunvincc him lhat if he·. wankd to ri:;mam alive it was
advisable for him to give up the land and go away to his native place. On
account of this serious threat Suresh and '.!is brothers had decided that
Surcsh should leaVt: Nalasopara and stay at his native place till there was
F danger of his life.
(c) Since a few days prior to 9.10.1989 Amarnath Tripathi (P.W. 48),
brother-in-law of Suresh, had come to Nalasopara and was staying with
them. He had to go to Vilay Parle (another suburb of Bombay) to see a
boy in connection with marriage of his brother's daughter. Suresh also
G wanted to go in that direction for purchasing a ticket for going to his native
place Gorakhpur, in Uttar Pradesh. Both of them, therefore, left their
house for going to Nalasopara Railway Station at about 10.15 A.M. They
reached the station within about two minutes time. There were many
passengers on the platform. As the train by which they wanted to go
H towards Churchgate (Mumb<ti) side was running late Suresh purchased a
\
\
I
\
( '
S.N.Dl:BE v. N.B. BHUIR [G.T.NANAVATI,J.j
209
newspaper from a stall on the platform and started reading it. Amarnath A
Tripathi went to a shoe polish wala, who was sitting near that stall, for
gt:tting his shoes polished.
( d) The gang of Xlanik Patil had accepted supermacy of the gang of
Bhai Thakur and both the gangs wer.e cooperating with each otht:r in
committing terrorist acts and in carrying on the illegal activities of land
grabbing and forcibly purchasing of lands. In September 1989, it was
decided between the two gangs that Bhai Thakur would liquidatt: the
person whom the gang of Manik Patil wanted to elirninatt: and that Manik
Patil's gang would do away with Suresh Dube. Bhai Thakur's gang had
already dont: their job hut Manik Patil's gang was not able to finish Suresh.
Bhai Thakur was, then:fore, very angry with Manik Patil's gang and b.ad
B
c
sent messages that the work should be finished as early as possible. The
members of Manik Patil's gang were, therefore, keeping a watch over the
house of Suresh Dube. On 9.10.1989 one of the members of the gang saw
Suresh going towards the railway station and after locating his position D
immediately rushed to the nearby hotel belonging to Manik Patil and
informed other members of the gang including Narendra Bhoir (A· 1) about
the presence of Suresh on platform No. 2. So Narendra Bhoir and some
other members of the gang who wen: present there rushed to the platform ...
Narendra was armed with a pistol. Other members of the gang were also
variously armed. Narendra found Suresh standing near the newspaper stall
and then fired three shots from a close range. Suresh got injured and foll
down on the platform. Narendra went near him and fired one more shot.
One of the shots fired by Narendra also caused an injury to Mukesh (P.W.
13). After thus killing Suresh all those assailants ran away from that place.
( e) Someone known to Dube brothers immediately ran to their house
and informed Shyam Sunder that Suresh was shot dead on the railway
platform. One of the two persons who had also accompanied Amarnath to
E
F
the railway station went back and informed Naresh (P.W.3) about the
incident. Shyam Sunder along with his brothers rushed to the platform and
brought back his brother to their house with tht: help of others. Dr. Om G
Prakash, Dr. Ajmera and Dr. Bindwani, who were present in the Nursing
Home found Sure~h dead.
(f) Within a very short time Pl Kukdolkar, who was in-charge of
Vasai Police Station, went to the house of Dube brothers, and first talked H
210
SUPREME COURT REPORTS
(2000] I S.C.R.
A to Dr. Dube (P.W.1) and tried to persuade him not to involve Bhai Thakur
and then threati::ned him by stating that if he involved Bhai Thakur, then
the consequence~ would be serious for him. Thereafter, PSI Padekar,
attached to Palghar Railway Police Station had gone to the house of Dube
brothers and made enquiries about the inddt:nt. Because of the threat
B given by Pl Kukdolkar and also because they knew that the police was
protecting and helping the gang of Bhai Thakur they did not lodge any
complaint. A complaint (Ext. 615) was prepared by PSI Padtkar in present
of PI Kukdolkar on the basis of what was stated by Shyam Sunder (P .W .2)
and his signature was taken thereon. Police Inspectors Kukdolkar and
Nimbalkar often used to visit the house of Dube brothers and threaten
C them not to disclose the name of Bhai Thakur as he was a strong man and
whoever complained against him was kilkd by him. Investigation W"dS not
made honestly. Some of the empties found from the platform were substituted or tampered with. At the instance of Police Inspectors Kurdolkar
and Nimbalkar and Bhai Thakur, Patric {A-4) and Anant Shankar Patil
D (A-11) were arrested as the persons responsible for the murder of Suresh.
A revolver was recovered at the instance of A-4 as the weapon with which
Suresh was killed. Those two accused were then charge-sheeted and put
up for trial before the Sessions Court, Thane in Sessions Case No. 88/91.
Hearing of the said case could not proceed further as both the accused
were shown absconding after they were released on bail and no effort was
E made by the police for getting warrants issued for securing their presence
before the court.
(g) On Ft:bruary 19, 1992 the police set up at the Vasai police station
and Palghar railway police station, within whose jurisdiction those gangs
p were operating, had changed. DIG Suradkar (P.W. 75) of the Railways,
during his visit to Palghar railway police station, had an occasion to look
into the investigation papers relating to the murder of Suresh. He became
suspicious about honesty of the investigation and identity of the real
assailants. He, therefore, sent Shyam Sunder Dube to know the truth. In
G view of the attitude of the police till then Shyam Sunder did not personally
go but sent his mother Bhagwati (P.W.5) and Dr. Ritu, wife of Dr. Om
Prakash Dube. They complained to him about the dishonest investigation
made by PSI Padekar and Pl Berge and the role played by Pis Kukdolkar
and Nimbalkar. On being assured by Suradkar that proper investigation
will be made, a written complaint (ext. 237) was then given by Dube
H brothers on 18.5.1992. Suradkar forwarded it to DSP Deshmukh for further
~
I
)
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S.N. DUBE v. N.B. BHOIR [GT NANAVATJ,J.J
211
enquiry. The enquiries made by him and PI Shinde reve.aled that the gangs A
of Bhai Thakur and Manik Patil were committing terrorist acts in
• , Nalasopara and surrounding areas, they had created a reign of terror and
that Suresh was killed by a person bdonging to tho:: gang of Manik Patil at
the instance of Bhai Thakur. Deshmukh, therefore, submitted a n:port
under Section 173(8) of the Code of Criminal Procedure to the Sessions
Court at Thane and sought permission for re-investigation of the case.
Permission was granted. Further investigation made by Mr Deshmukh and
his officers revealed existence of the gangs of Bhai Thakur, Bharat
Pendhari, Surcsh Dube and Manik Patil. It also revealed that Bhai Thakur's
brothers Hitendra Thakur (A-9) and Deepak Thakur, Prashant Rajaram
Tandd (A-8), Istiyak Mukhtyar Khan (A-13) and some others were members of the Bhai Thakur's gang. It also revealed that terrorist acts were
committed by the gangs of Bhai Thakur i;md Manik Patil and that those
B
c
two gangs were responsible for the murder of Suresh Dub.:. During the
investigation by Deshmukh A-1 discovered a pistol from which he had fired
shots at Suresh. A-1 to A-8 and A-11 also made confessions about the D
terrorist acts committed by the two gangs, the motive for committing
murder of Suresh Dube, the mannet in which it was committed and how
accused "los. 14 to 17 had helped Bhai Thakur in concealing real offenders.
3. PI Desai (PW 90), who took over the investigation afkr superannuation of Deshmukh on 30.6.1993, submitted a chargcshcet to the Designated Court on 27.8.1993 against A-1 to A-11 and deceased accused
Narayan Gauda. Thereafter, supplementary charge- sheets were filed
against A-12 to A-17 on different dates. The Designated Court, however,
took cognizance against A-1 to A-13 only as no sanction to prosecute A-14
to A-17 was obtained under the TADA Act. Their case was, therefore,
forwarded to the Sessions Court at Thane. Later on sanction was obtained
to prosecute those police officers also under the TADA Act and their case
was amalgamated with the original T.S.C. No. 32/1993 and the charge was
suitably amended.
E
F
4. The charge against A-1 to Al3 was that between January 1984 G
and December 1989, they had entered into continued criminal conspiracy
to commit terrorist acts by use and/or show of criminal force, fin: arms and
other lethal weapons to extort money, to illegally grab lands bdonging to
others and to create terror amongst the people to achieve the objects of
thdr conspiracy. It was also alleged that in pursuance of the said objects H
212
SUPREME COURT REPORTS
[2000] 1 S.C.R.
A they had committt:d various illegal and terrorist acts, the last of which was
the murder of Surcsh Dube and causing hurt to Mukesh Shah. A-1 was
specifically charged for the murder of Suresh Dube and causing injuries to
Mukcsh Shah. Accused Nos. 1- 5, 11, 12, 13, deceased accused Narayan
and absconding accused Sanjay were also charged for having committed
B the murder of Sun:sh in prosecution of the object of their unlawful assembly. It was alleged against A-14 to A-17 that as a part of the criminal
conspiracy they had caused evidence of commission of those offences to
disappear and by that dishonest investigation they had tried to screen the
real offenders from legal punishment. A-1 to A-13 were also charged for
commission of offences punishable under Sections 120B, 201, 217, 218, 302
C read with Sections 149, 307 read withs. 149 of Indian Penal Code, Sections
3, 3(3) and 3(4) of TADA Act and Section 25(1)(a) of the Arms Act. A-14
to A-17 were charged under Sections 201, 217, 218 read with Section 120B
of the Indian Penal Code. They were also charged under Sections 3(3) and
3(4) of the TADA Act read with Section l20B of the Indian Penal Code.
D
5. All the accused pleaded not guilty to the charge and their defence
was of total denial. A-14 had raised the defence that on the day of the
incident he had gone to Bareilley in connection with investigation of a theft
case and had returned to Palghar on 12.l0. l989. A-15 had also raised the
defence that he was at the Vasai police station till 11.00 A.M. on the date
E of the incident and had reached the place of offence after about 11.30 A.M.
He had merely taken steps for keeping 'bandobast' and was not involved
with the investigation of the case.
6. The prosecution, in order to prove its case regarding existence of
F the two gangs of Bhai Thakur and Manik Patil and th.: terrorist acts
committed by them and the help rendered to them by the police, had
examined Om Prakash (P.WJ), Shyam Sundar (P.W. 2), Naresh (P.W.3),
Pushpa Pondhari (P.W. 19), Sitaram Yadan (P.W. 25), Balararn (P.W.34),
Kanhiya Lal Mishra (P.W.35), Jafar (P.W.40), Waman (P.W.41), Sakharam
(P.W.42), Jagganath (P.W.45), Mohammad (P.W.52), Subhash (P.W.67),
G Rubab (P.W.68), Madhukar (P.W.69), Ramkishan (P.W.70), Vasant
(P.W.90), Naaz Asif Patel (P.W.97) and the police officers connected with
the subsequent investigation as witnesses. Tht: prosecution had also heavily
relied upon the confossions stated to have bi:en made by A-1 to A- 8 and
A-11. In order to prove the murder of Surcsh Dube the prosecution had
H mainly relied upon thi: evidi:nce of the two eye witnesses Amarnath
\
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S.N. DlBE v. N.B. BHOIR '.G.T. NAN'AVATI,J.J
213
Tripathi (P.W. 48) and Om Prakash Brahamania (P.W. 49). Evidence was A
also lt:d to prove that the investigation made by the police prior to Septembt:r 1992 was not honest. Evidenct: rt:garding discovery of pistol by A-1
and the evidt:ncc of a Ballistic Expert and medical officers and other
formal witnes>t:s was also lt:d.
7. The Trial Court found many faults with the confessions and also
held tht.:m inadmissible in evidence. It also held that they were not voluntarily made. The trial Court disbelievt:d the witnesses examined to prove
the terrorist acts on the ground that their evidence was too general and
vagut: and they were not independent and responsible members of the
locality. The evid1.:nce of two eye witnesses was dis-bdieved on the ground
that there were material improvements and contradictions in their evidence
and their version was also not believable. Identification of the accused in
the court by these two eye witnesses was not believed because it was after
a long time and no previous test identification parade was held. For all
these reasons it further held that the prosecution case against A-1 to A-13
was not proved. As regards A-14 to A-17 the Trial Court held that the
sanction given for their prosecution undt:r Section 3(1) of the TADA Act
was vitiated on account of non-application of mind. It also held that the
reinwstigation was done with an oblique motive as most of the terrorist
activities fell outside the jurisdiction of the railway police and yet they were
investigated by them and the regular police having jurisdiction over the
areas was not associated with it. Thus the case against A-14 to A-17 was
also held not proved.
B
c
D
E
8. Whether tht: earlier investigation was dishonest or the subsequent
re-investigation by Deshmukh and his officers was done with some oblique F
motiw will have to be considt:red first as acceptability of the evidence of
tht witnesses and the confessions would depend upon the answer to that
question. If the tarfo::r investigation was honest as held by the learned trial
J udgc, tht:n the contradictions and improvements found in the evidence of
tht two eyt: witnesscs will assume importance. But if the earlitr investigation is found to be not honest, then the major ground on which the evidence G
of tht eye witntsses has bt:en disbt:lieved will disappt:ar. If we confirm the
finding of the learned trial Judge that the rt-investigation was madt: with
some obliqut motiw then that would certainly affect evidentiary value of
tht: confessions. Tht: Trial Court hdd tht: investigation by Mr. Deshmukh
and his otlicers motivakd for the following reasons : ( 1) in the application H
214
SL:PREME COURT REPORTS
(20COJ l.S.C.R.
A (Ext. 237) made for re-investigation it was not stated that the earlier
investigation was faulty and that A-4 and A-11 were wrongly shown as
murderers of Suresh Dube. (2) There was no material before Deshmukh
on the basis of which he could have stakd that the earlier invt:stigation was
faulty and for that reason no good ground was mentiom:d in the application
B for re-investigation. (3) there was no reason for Debhmukh to take possession of the Mudemmal articles on the wry day on which application for
re-investigation was made as there was no material before him to show that
an unconnected weapon was seized by the earlier investigating officer. ( 4)
After obtaining the sealed packet of Muddamal empties and bullets from
the court for getting them examined by a ballistic expert he first opened it
C and then again r~sealed it for no reaMJD except for tampering with the
Mudammal articles, particularly the thrt;i;; bullets recovered from the body
of Suresh Dube. (5) even though there was no material before Deshmukh
on the basis of which he could have lawfully invoked the provisions of
TADA on 28.9.1992 very probably he did so with a view to defoat the
D anticipatory bail application filed by some of the accused. ( 6) Even though
in the first FIR Shyam Sunder Dube [P.W. 2) had stated that he was
suspecting none for the murdt:r of his brother, the entirt; theory got
changed during the subst:quent re-inwstigation.
9. Suradakar (P.W.75) who took ever as DIG, Railways, Bombay in
E August 1991 had been to Palghar Railway Police Station in February 1992.
While examining case papers rdating to the murder of Suresh Dube he felt
some doubt about the investigation. Therefore, he had dirc::cted his subordinate officers to send a message to Shyam Sunder Dube to meet him.
Pursuant thereto Bhagwati (P.W.5) and Dr. Rijuta Dube (P.W. 37) had
F met him within about 8 to 10 days. Suradkar has deposed that they had
orally complained to him about the honesty of the police officers who had
investigated the case. On his assurance t'.1at he would look into the matter
and take appropriate action they again 'Ile! him after .. bout 15 days and
gave further details regarding the murdt:r of Suresh. He had, therefore,
advist:d them to give a complaint in writing and pursuant thereto a comG plaint (Ext. 237) dakd 185. 1992 was given to him This part of his evidence
has ahnost rt:mained unchallenged . in cross-examination. Only suggestion
made to the witntcss was that afkr Dub1:• had met him he got the investigation of the ca;e re-opened in order to help Dube brothers. No material
has been brought on n;cord tu inler that Suradakar was in any manner
H interested in Dubes or had any other n::asun to help Dubes by falsely
SX Dt:BE v. N.B. BHOIR [G.T. NANAVATI, J.j
215
i.nvolving Bhai Thakur or Manik Patil or their men. The doubt felt by him A
regarding honesty of the inwstigation was justified because even though
five empties wen; recovered from the place of offoncc a revolver was seized
as the weapon of offence. A police officer ewn with littie 1;;xperience would
have rt:alised that the murder was committt:d not by using a rt:volvi.:r but
with a pistol. The !t:arned trial Judge was, therefore, wrong in holding that
there was no material bdore Suradakar for entertaining any doubt and
re-opening the investigation and that he had done so with some oblique
motive.
8
lO. The Trial Court was also not right in holding that Suradakar got
re-investigation done with some oblique motive because in the complaint C
(Ext. 237) it was not specifically statt:d that the investigation made by the
police officers ti!! then was not honest. The complaint does indicate that
the investigation made till then was not honest. It should have been
appreciated that Dube brothers, in the position in which they were placed
at that time, could nut have specifically alleged that the previous investiga· D
tion was dis-honest. So also from the fact that in the application made to
, the Court for permission to re-investigate it was not stated that the previous
investigation was not honest, no inference of oblique motive could have
been !egitimately inferred. The application did refer to the complaint made
by Dube brothers. Without further investigation no charge of dis-honesty
could have been levelled against the police officers associated with earlier E
inwstigation at that stage. Therefore, Deshmukh could not have mentioned
in the application that permission to re-investigate was sought as the
previous investigation was not honest.
11.