# ST ATE OF MAHARASHTRA v. SIRAZ AHMED NISAR AHMED AND ORS

- **Citation:** [2007] 6 S.C.R. 40
- **Court:** Supreme Court of India
- **Decided:** 2007-05-07
- **Case number:** Criminal Appeal No. 166 of 1999
- **Bench:** S.B. Sinha, P.P. Naolekar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/st-ate-of-maharashtra-v-siraz-ahmed-nisar-ahmed-and-ors-22983
- **Pages:** 29

## Headnote

Penal Code, 1860: Sections 120-B, 143, 147, 148, 149, 302, 307, 370,
392, 397, 468 & 471-Arms Act, 1959-Sections 3, 7, 25, & 27 read with
~.
c
Arms Rules, 1962-Terrorist and Disruptive Activities (Prevention) Act, 1987Rule 15-Criminal conspiracy and murder of deceased by firing upon them
with firearms-Firearms ceased from certain accused-Confession made by
one of the accused before police officer under TADA Rules-Charge-sheet
filed against the accused for various offences before Designated CourtDesignated Courts acquitted the accused of all the charges except some of
D them under the Arms Act for possession of arms-Correctness of-Held, on
evidence on record, the prosecution failed to connect the accused with
criminal conspiracy and commission of murder of the deceased-Safeguards
provided for recording the confession under the TADA Rules has not been
,;..
followed and hence, confession statement of the accused, is inadmissible in
E
evidence-Conviction of some accused under the Arms Act for possession of
arms upheld.
According to the prosecution, respondents and five others hatched a
criminal conspiracy to murder the deceased, a politician, under the
instructions of their leader residing outside the country. The accused persons
F arranged vehicles, firearms, ammunitions etc. to execute the plan. On the
day of the incident, the accused waited outside the house of the deceased with
their weapons in their car. As soon as the deceased came out of his house in
his car with his bodyguard, the accused fired at the car of the deceased
,.
resulting in death of the deceased along with his bodyguard. Two passersby
also got injured in the incident. All the accused were arrested by the police.
G The vehicles and weapons used in the crime were seized. According to the
prosecution, arms were seized from the possession of respondents 1, 2 and 3
which were brought for the commission of the crime; respondent no. 4 was
alleged to have harboured one of the assailants after the commission of the
murder of the deceased; respondent no. 5 was alleged to have been present at
H
40
STA TE OF MAHARASHTRA v. SIRAZ AHMED NISAR AHMED
41
l
the spot with the car to help the assailants to commit the crime; respondent A
no. 6 was alleged to have driven the car carrying the assailants and weapons
to the palce of murder; and respondent no. 7 helped to purchase the car for
the crime. A Test Identification Parade was conducted and six prosecution
witnesses identified two accused who were present at the scene of the crime.
The prosecution filed a charge-sheet for commission of the offences B
punishable under Sections 120-B, 143, 147, 148, 149, 302, 302 r/w 120-B,
302 r/w 149, 307 r/w 120-B, 307 r/w 149, 392, 392 r/w 120-B, 392 r/w 149,
,l
397 r/w 120-B, 397 r/w 149, 379, 379 r/w 149, 379 r/w 120-B, 468, 468
r/w 120-B, 468 r/w 149, 471, 471 r/w 120-B, 471 r/w 149 IPC and under
Section 3 r/w 25, 7 r/w 27 (2 and 3) of the Arms Act, 1959 and under Sections c
3 (2) (i) (ii), 3(3), 3(5), 5 and 6 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (f ADA Act) before a Designated Court. The Designated
Court acquitted all the accused including the respondents from all the charges.
The Designated Court convicted respondent nos. 1, 2 and 3 for possession of
arms specified in Schedule 1 to the Arms Rules, 1962 in a notified area under
section 5 of the TADA Act and under section 3 r/w section 25 and section 7 D
r/w section 27 of the Arms Act.
.........
Disposing of the appeal, the Court
HELD: 1.1. Apart from the evidence ofrespondent nos. 1, 2 and 3 having
been in possession of the firearms, there is no other evidence on record to E
connect these accused with the conspiracy of committing the murder of the
deceased. There is no evidence brought on record by the prosecution to prove
that these very arms had been brought from outside the city. There is no
evidence to show that any of the arms found in possession of these accused
was used in commission of the crime. (Pa

## Text

_Characters 0–39,821 of 77,928. This is a partial read: ask again with offset=39821 for what follows._

A
ST ATE OF MAHARASHTRA
r
v.
SIRAZ AHMED NISAR AHMED AND ORS.
MAY 7, 2007
B
[S.B. SINHA AND P.P. NAOLEKAR, JJ.]
Penal Code, 1860: Sections 120-B, 143, 147, 148, 149, 302, 307, 370,
392, 397, 468 & 471-Arms Act, 1959-Sections 3, 7, 25, & 27 read with
~.
c
Arms Rules, 1962-Terrorist and Disruptive Activities (Prevention) Act, 1987Rule 15-Criminal conspiracy and murder of deceased by firing upon them
with firearms-Firearms ceased from certain accused-Confession made by
one of the accused before police officer under TADA Rules-Charge-sheet
filed against the accused for various offences before Designated CourtDesignated Courts acquitted the accused of all the charges except some of
D them under the Arms Act for possession of arms-Correctness of-Held, on
evidence on record, the prosecution failed to connect the accused with
criminal conspiracy and commission of murder of the deceased-Safeguards
provided for recording the confession under the TADA Rules has not been
,;..
followed and hence, confession statement of the accused, is inadmissible in
E
evidence-Conviction of some accused under the Arms Act for possession of
arms upheld.
According to the prosecution, respondents and five others hatched a
criminal conspiracy to murder the deceased, a politician, under the
instructions of their leader residing outside the country. The accused persons
F arranged vehicles, firearms, ammunitions etc. to execute the plan. On the
day of the incident, the accused waited outside the house of the deceased with
their weapons in their car. As soon as the deceased came out of his house in
his car with his bodyguard, the accused fired at the car of the deceased
,.
resulting in death of the deceased along with his bodyguard. Two passersby
also got injured in the incident. All the accused were arrested by the police.
G The vehicles and weapons used in the crime were seized. According to the
prosecution, arms were seized from the possession of respondents 1, 2 and 3
which were brought for the commission of the crime; respondent no. 4 was
alleged to have harboured one of the assailants after the commission of the
murder of the deceased; respondent no. 5 was alleged to have been present at
H
40
STA TE OF MAHARASHTRA v. SIRAZ AHMED NISAR AHMED
41
l
the spot with the car to help the assailants to commit the crime; respondent A
no. 6 was alleged to have driven the car carrying the assailants and weapons
to the palce of murder; and respondent no. 7 helped to purchase the car for
the crime. A Test Identification Parade was conducted and six prosecution
witnesses identified two accused who were present at the scene of the crime.
The prosecution filed a charge-sheet for commission of the offences B
punishable under Sections 120-B, 143, 147, 148, 149, 302, 302 r/w 120-B,
302 r/w 149, 307 r/w 120-B, 307 r/w 149, 392, 392 r/w 120-B, 392 r/w 149,
,l
397 r/w 120-B, 397 r/w 149, 379, 379 r/w 149, 379 r/w 120-B, 468, 468
r/w 120-B, 468 r/w 149, 471, 471 r/w 120-B, 471 r/w 149 IPC and under
Section 3 r/w 25, 7 r/w 27 (2 and 3) of the Arms Act, 1959 and under Sections c
3 (2) (i) (ii), 3(3), 3(5), 5 and 6 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (f ADA Act) before a Designated Court. The Designated
Court acquitted all the accused including the respondents from all the charges.
The Designated Court convicted respondent nos. 1, 2 and 3 for possession of
arms specified in Schedule 1 to the Arms Rules, 1962 in a notified area under
section 5 of the TADA Act and under section 3 r/w section 25 and section 7 D
r/w section 27 of the Arms Act.
.........
Disposing of the appeal, the Court
HELD: 1.1. Apart from the evidence ofrespondent nos. 1, 2 and 3 having
been in possession of the firearms, there is no other evidence on record to E
connect these accused with the conspiracy of committing the murder of the
deceased. There is no evidence brought on record by the prosecution to prove
that these very arms had been brought from outside the city. There is no
evidence to show that any of the arms found in possession of these accused
was used in commission of the crime. (Para 251 (51-E-Fl
F
-~
1.2. Identification of respondent no. 6 by PW 7 in a test identification
parade would not carry the prosecution case any further because at the time
of the incident, the witness had not seen the respondent at the place of the
incident. Neither any firearm was recovered from the respondent nor was any
evidence led to prove the fact that he was engaged for driving the vehicle to G
carry the assailants and the firearms for committing the murder as per the
conspiracy hatched by the accused persons. There is no evidence on record
to establish that on the relevant date he was seen driving the car. There is
_.,
lack of link evidence connecting this accused with the other accused persons.
Finding the accused at the place of incident might have raised strong suspicion,
H
42
SUPREME COURT REPORTS
[2007] 6 S.C.R.
A but there is no evidence on the record to convert the suspicion into a proof
about the involvement of respondent no. 6 in committing the murder of the
deceased. [Para 28] [53-D-GI
1.3. While appreciating evidence, the Court must keep in mind that the
powers of observation differ from person to person. An object or thing
B happened might reflect in the image of a person's mind, whereas it may go
unnoticed on the part of another. While appreciating the evidence of witness,
the approach must be whether the evidence of the witness read as a whole
appears to have a ring of truth. Once that impression is formed, it is
,l_
undoubtedly necessary for the court to scrutinize the evidence, more
c particularly keeping in view of deficiencies, drawbacks and infirmities pointed
out in the evidence, as a whole, and evaluate them to find out whether it is
against the general tenor of the evidence given by the witnesses and whether
the earlier evaluation of the evidence is shaken as to render it unworthy of
belief. Minor discrepancies on trivial matter not touching the core of matter
in issue, hyper-technical approach by taking sentence out of context here or
D there from the evidence, attaching importance to some technical error
committed by the investigating officer not going to the root of the matter, would
not ordinarily permit rejection of the evidence as a whole.
[Para 33) (57-F-H; 58-A-B]
~
E
1.4. On an overall reading of the statements made by the witnesses, the
evidence of recovery of a revolver and live cartridges from respondent no. S
was not in any way shaken by some of the infirmities pointed out by the
Designated Court. The discrepancies in the statements of the witnesses are
not infirmities, but those statements are consistent with the general tenor of
evidence. When the prosecution has proved conscious and exclusive possession
-
F of the house by respondent no. 5, the statements made by the witnesses cannot
be brushed aside on the ground that the prosecution has not proved the title
or ownership of the flat. The prosecution has proved the seizure of the revolver
r
and the live cartridges from respondent no. 5. Respondent no. S, having been
...
found in possession of a revolver, is guilty of the offence under Section S of
the TADA Act. As regards respondent no. 4, there is no substantive evidence
G to connect him with the commission of the crime.
(Paras 34, 35, 36, 37 and 38) [58-C-F; 59-A)
1.5. A confession statement to police is not admissible under the general
law connected with administration of criminal justice. Under Section 15 of
H
the TADA Act, if a confession inade by the accused to a police officer not
l
_J
STATE OF MAHARASHTRA v. S!RAZ AHMED N!SAR AHMED
43
lower than the rank of Superintendent of Police is made admissible, it would A
still be a confession made to the police officer, and thus inbuilt safeguards
have been provided under Section 15 of the TADA Act read with Rule 15 of
the TADA Rules so as to lend credence to the confession made to the police
officer, it being voluntarily and without any force or pressure and allurement
or inducement. Any confession made in defiance of the safeguards provided B
therein, would not be relied upon by a court. (Para 491166-B, E, F, Cl
1.6. From a bare reading of the certificate given under Rule 15(3) (b) of
the TADA Rules, it is clear that it is necessary for a police officer to certify
that he has explained to the accused that the accused is not bound to make a
confession and if he does so, such confession may be used as evidence against C
him. It is further required to be recorded that he believed that the confession
was voluntarily made. He has to record that the confessional statement has
been taken in his presence and hearing and recorded by him. The confessional
statement should be read over to the person making it and admitted by him to
be correct and it should be certified that it contains a full and true account of
the statement made by the accused. The certificate, which is required to be D
given by the police officer is not a mere formality, but it is for the purposes
of ascertaining that the police officer has recorded the confession keeping in
mind and being fully aware of the fact that the confession recorded by him is
a voluntary confession and with the information available to the accused that
he is not bound to make such confession and if he does so it will be used as E
evidence against him. A duty is cast on the police officer who is to record the
confession to bring at the relevant time these facts to the notice of the person
whose confession is going to be recorded. (Para 50) 167-B-D)
1.7. In the present case, on reading the certificate, it does appear that
compliance of Rule 15 (3) (b) of the TADA Rules has been done in a mechanical F
manner. It does only certify that it is the satisfaction of the recording officer
that the facts that the accused is not bound to make the confession and if he
does so it shall be used as evidence against him, were known to the accused.
However, there is no certification that the statement was recorded in the
presence and hearing of the police officer; nor the statement has been admitted
to be correct by the accused; and that the statement contained a full and true G
account of what was stated by the accused. (Para 51) (67-E-H; 68-AI
Kartar Singh v. State of Punjab, (1994) 3 SCC 569 (CB); Ayub v. State
of Uttar Pradesh, (2002) 3 SCC 510; Simon & Ors. v. State of Karnataka,
[2004) 1 SCC 74; S. N. Dube v. N B. Bhoir & Ors., [2000) 2 SCC 254; Hardeep H
44
SUPREME COURT REPORTS
(2007] 6 S.C.R.
..
A Singh Soha/ & Ors. v. State of Punjab through CBL (2004) 11 SCC 612 and
,,--
Lal Singh v. State of Gujarat & Anr., (2001) 3 SCC 221, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 166 of
1999.
B
From the Final Judgment and Order dated 5.10.1998 of the Addi Judge.
Designated Court for Greater Bombay in TADA Special Case No. I 0 of 1995.
V.N. Raghupathy (for Ravindra Keshavrao Adsure) for the Appellant.
Chinmoy Khaladkar (for Vishwajit Singh and S.K. Nandy) for the
c Respondents.
The Judgment of the Court was delivered by
P.P. NAOLEKAR, J. I. The State of Maharashtra has preferred this
appeal under the provisions of Section 19 of the Terrorist and Disruptive
D Activities (Prevention) Act, 1987 (hereinafter referred to as "TADA Act")
challenging the judgment and order dated 5.10.1995 passed by the Additional
Judge, Designated Court for Greater Bombay in TADA Special Case No. I 0 of
1995.
2. Twelve persons, as accused nos. 1-12, were charged and prosecuted
E for the offences punishable under Sections 120-B, 143, 147, 148, 149, 302, 302
r/w 120-8, 302 r/w 149, 307 r/w 120-8, 307 r/w 149, 392, 392 r/w 120-8, 392 r/
w 149, 397 r/w 120-B, 397 r/w 149, 379, 379 r/w 149, 379 r/w 120-8, 468, 468
r/w 120-8, 468 r/w 149, 471, 471r/w120-B, 471r/w149 of the Indian Penal
Code, 1860 (for short "IPC") and under Section 3 r/w 25, 7 r/w 27 (2 and 3)
F of the Arms Act, 1959 and under Sections 3(2) (i) (ii), 3(3), 3(5), 5 and 6 of
the TADA Act by the Designated Court: During the trial before the Designated
Court, accused no. 2, viz., Feroz Abdullah Sarguru alias Feroz Konkani escaped
from the lawful authority of the police while the trial was still in process and
as he was not arrested thereafter the Designated Court neither considered any
evidence nor recorded any finding against the absconding accused. The
G Designated Court held that there was insufficient evidence against the 11
accused persons for the offences they were charged with and they were
acquitted, except accused no. 3 Rizwan Mohammad and accused nos. 4-6/
originallyrespondent nos. 3-5/respondent Nos. 1-3 (in the amended cause
title) for the offences punishable under Section 5 of the TADA Act and
:......
~
sentenced them to rigorous imprisonment for five years with a fine of Rs.
,.
H
STATE OF MAHARASHTRA"· SIRAZ AHMED NISAR AHMED [P.P. NAOLEKAR, J.] 45
2,000/- each, in default of which rigorous imprisonment for another six months A
was imposed. All these four accused persons were also found guilty for the
offences punishable under Section 3 r/w Section 25 and Section 7 r/w Section
27 of the Arms Act. But, in view of the sentence awarded, separate sentence
was not awarded under these Sections. The State has challenged the acquittal
of 11 persons of the charges not found proved by the Designated Court. B
During the pendency of the proceedings before this Court, the appeal as
regards accused Abdullah Rahman alias Hamza, Mohd. Harun and Azim
Sardar Khan, who were originally respondent nos. I, 9 and 10 before us, was
dismissed for non-compliance of this Court's order dated 23.8.2002, with
respect to furnishing the correct and complete addresses of these respondents
for issuance of bailable warrants. Similarly, the appeal as regards Rizwan C
Mohd., who was originally respondent no.2, was dismissed on 27.2.2004 for
non-compliance of this Court's Order dated 8.2.1999 regarding issuance of
bailable warrants. Hence, we have before us respondent nos. 1, 2, 3, 4, 5, 6
and 7 who were originally respondent nos. 3, 4, 5, 6, 7, 8 and 11 whose names
are : Siraj Ahmed Nisar Ahmed Khan, Mohamed Firoz Ayub Khan, Rafiq Latif
Sheikh, Shafiq Latif Sheikh, Gumamsingh alias Chotu, Salim Karim Dingaonkar, D
Mohamed Mushraf Hussain Shiekh.
Factual Matrix
3. The factual matrix as per the prosecution's version and the evidence
led by the prosecution in the relevant background to prove the alleged E
conspiracy and the commission of the offences the accused charged for, is
as follows: That all the accused persons were members of the criminal gang
led by Chota Shakeel who was residing in Dubai and was controlling the
activities of the gang members from that place. In or around 1994, a decision
was taken by Chota Shakeel to eliminate one Ramdas Nayak who was the F
member of Mumbai Municipal Council. Accordingly, he disclosed his plan
and directed Sajid to make necessary arrangements to give effect to the plan.
Sajid approached these 12 accused persons and explained to them the
directions of their leader and assigned each one of them specific duties. It is
alleged that Sajid approached Feroz Konkani (absconding accused) and
informed him about the daily routine of Ramdas Nayak. He informed him that G
Ramdas Nayak leaves his residence in a white colour Ambassador car at
about 9 or 10 A.M. and Ramdas Nayak is provided with police protection of
one armed constable. Sajid made firearms and ammunitions available to the
accused persons and the directions had been issued to Rizwan to make
necessary arrangements for the shelter of the accused persons. Sajid had H
46
SUPREME COURT REPORTS
(2007) 6 S.C.R.
A provided a .38 revolver to Feroz Konkani. a 9 mm pistol to one Soni and
..,.
revolvers to John and Akhtar. A few days before the fateful day on which
the gruesome murder of the deceased Ramdas Nayak along with the police
constable took place, the absconding-accused Feroz with .38 revolver, Soni
with 9mm pistol, John and Akhtar with revolvers, waited outside the house
B
of the deceased to implement their plan. However, they failed that day because
the deceased had not come out of his residence till 11 A.M. Moreover, they
had some apprehension of the arms possessed by bodyguard of the deceased
and they thought that they were not adequately armed to bring into action
the plan set up by them.
.>.._
~
c
4. Sajid conveyed his apprehension to Chota Shakeel, leader of the
gang at Dubai who in tum asked him to collect sophisticated firearms from
Bharauch. They required a vehicle so as to collect those firearms at Bharauch
and finally transport them to Mumbai. Azim took Sajid to respondent no.7Mohd. Mushraf Hussain Shaikh who had a motor garage and asked him ta
arrange for the vehicle. Mushraf was aware of the activities of Chota Shakeel
D and the accused Azim and Sajid told him that they wanted to purchase a
motor car to be used in executing the murder plan of Ramdas Nayak. By way
of caution, they decided to purchase the vehicle in the name of a person who
had come to Mumbai from Kerala; accused no. I-Abdul Hamza, who hailed
,.4.
from Kerala, was also informed about the purpose for which the car was to
E be purchased. He agreed to let them buy the car on his name. A Fiat car,
bearing no. MMU-8373, was then purchased for Rs.60,000/- from Super Motor
Company. This purchase was made by Mushraf in the name of Hamza. On the
direction of Sajid, Mushraf got prepared a secret chamber in the car to carry
the weapons in the car from Bharauch and further to the place where the plan
was to be executed. A compartment was got prepared in the car so as to keep
F the arms concealed in it.
5. As per the conspiracy between the accused persons, Gumamsingh
-
alias Chotu-respondent no.5 was entrusted with the work of bringing the
arms from Bharauch. Gumamsingh along with absconding accused Feroz
Konkani took the car to Bharauch to collect the firearms from there. They
G collected various firearms including AK-56 and AK-47 rifles, ammunitions,
revolvers, pistols, etc. Since all the firearms provided to them at Bharauch
~·
could not be concealed in the secret chamber prepared in the car, they left
some of them with the intent to collect it later on from their man in Bharauch.
The absconding accused, Feroz Konkani, distributed those arms among Rizwan
).-
H and respondent nos. 1-5. Thereafter, Gumamsingh-respondent no.5, along
STATE OF MAHARASHTRA r. SIRAZ AHMED NISAR AHMED [P P NAOLEKAR, J.] 4 7
with Feroz Konkani again went to Bharauch and collected the remaining A
firearms. Sajid stole a Hero Honda motorcycle, bearing no. BLC 5288, owned
by one Pareira, who had filed a complaint of theft of his vehicle in MIDC
Police Station.
6. After all the preparations, the accused persons arranged the vehicle,
fireanns, ammunitions, etc. for the commission of murder of Ramnayak. On B
August 24, 1994 they gathered near the house of accused Rizwan. Accused
Rizwan changed the number plate of the Fiat car from MMU-8373 to 8879 by
using cello-tape. They also changed the motorcycle number. Feroz Konkani,
the absconding accused, Soni, Gurnamsingh-respondent no.5 and John kept
the firearms in the Fiat car and decided to execute the plan on the next day C
morning. It was decided that Salim Karim Dingaonkar respondent no.6 would
drive the car to the place and they asked him to take away the car to Bandra.
They also disclosed to him that the fireanns were kept in the Fiat car.
7. On the fateful day, i.e., 25.8.1994, the absconding accused Feroz
Konkani along with Salim Karim Dingaonkar-respondent no.6 drove the Fiat D
car towards the house of Ramdas Nayak at Hill Road. Sajid, Soni, Akhtar and
Hazir - all absconding persons, had also reached there and they were waiting
in the adjoining hotel. Salim Karim Dingaonkar-respondent no.6 was standing
outside the Fiat car and Feroz Konkani and Soni were waiting inside the car
with their weapons ready. When the car of Ramdas Nayak came out of his
house on the road, the absconding accused - Feroz Konkani and the other E
person Soni came out of their Fiat car with their AK-47 rifles and went
towards the car of Ramdas Nayak. Soni fired at the car of Ramdas Nayak and
Feroz Konkani followed firing, thereafter. The driver of the Ambassador car
of Ramdas Nayak came out of the car and Feroz Konkani fired bullets on the
driver. The bodyguard-police constable Tadvi opened the front side door of F
the Ambassador car and came out with a machine gun and returned the fire.
Feroz Konkani rushed towards the bodyguard and pumped several bullets on
the bodyguard. Since the firing took place during the busy hours, commotion
took place and the persons on the street started running here and there. Feroz
Konkani asked Gurnamsingh-respondent no.5 who was present at the spot
and accused John to run away. Konkani and Soni, along with their fireanns, G
sped away from the place of incident on the motorcycle. As Soni sustained
injuries, they decided to abandon the motorcycle. Thereafter, they forced a
rickshaw puller, who was passing by the road, to leave the rickshaw by
frightening him with the firearms and they took it away. Both of them kept
the rifles at the backside of the rickshaw, which were later on recovered along H
48
SUPREME COURT REPORTS
[2007] 6 S.C.R.
A with the rickshaw. The case of prosecution is that the eye-witnesses saw the
absconding accused persons Konkani and Soni when they started firing
bullets and they also saw Salim Karim Dingaonkar-respondent no.6 standing
near the Fiat car.
8. During the investigation, the police found that one retired person,
B who was passing by Bandra Medical Store, received bullet injuries on his
abdomen and he was treated at Bhabha Hospital. One salesman, namely,
Rizwan, who was also walking nearby Balaji Hotel, sustained bullet injuries
on his abdomen and was admitted in Babha Hospital. Ramdas Nayak and his
bodyguard-police constable were immediately rushed to Bhabha Hospital
C where the doctor on duty found them dead and declared them as such. The
police received infonnation that a motorcycle, bearing no. BLC 5882, is lying
on the road at the junction of road nos. 24 and 33 at Bandra (West) and later
on they found that its original number was changed.
D
Investigation and arrest
9. FIR was lodged by a police constable Gawli at the nearby Bandra
Police Station and the police had registered a case for the offences charged
against the accused persons. During the course of investigation, the police
found the abandoned Fiat car near the place of incident and they traced out
that it belonged to accused Hamza. Thereafter, the police also seized the
E motorcycle and the rickshaw along with the weapons.
F
l 0. On 17.l 0.1994, Feroz Konkani was arrested at Bangalore. At his
instance, Rizwan was arrested with fireanns on the same day. At the instance
of Rizwan, Gumamsingh-respondent no.5 was arrested on 19.10.1994. Rafiq
Latif Sheikh-respondent no.3 and Shafiq Latif Sheikh-respondent no.4 were
arrested on 19. l 0.1994. Salim Karim Dingaonkar-respondent no.6 was arrested
on 19.10.1994. Mohd. Mushraf-respondent no.7 was arrested on 28.4.1995 at
Hyderabad.
11. On 20. l 0.1994, the police requested Special Executive Magistrate
G (SEM) Mr. Karnath to arrange for Test Identification (TI) parade and introduced
Feroz Konkani-absconding accused and Salim Karim Dingaonkar-respondent
no. 6 on TI parade. Konkani was identified by six witnesses, whereas five
witnesses identified Salim Karim Dingaonkar to be a person standing near the
Fiat car at the time of incident. Thereafter on 29. I 0.1994, these accused
persons were again put for TI parade and two witnesses identified them. On
H
STATE OF MAHARASHTRA"· SCRAZ AHMED NISAR AHMED [P.P. NAOLEKAR, J.J 49
2.5.1995, again TI parade was organized wherein Harun Mohd. Hanif Shiekh A
was identified.
12. On 14.l l.1994, a preliminary statement of Rizwan was recorded by
S. Mohd. Syyad, Dy. Commissioner of Police, Special Branch-I, Crime
Investigation Department, Mumbai and he was remanded to police custody.
He was again produced for recording his confessional statement under Section B
15 of the TADA Act on 16.11.1994 and his confession was recorded by S.
Mohd. Syyad.
13. On 5.5.1995, a preliminary statement of Harun Mohd. Han if Sheikh
was recorded by T.A. Chauhan, Dy. Commissioner of Police, Parimandal-6,
Mumbai and he was again produced before him on 7.5.1995 and on that day C
his confession was recorded under Section 15 of the TADA Act.
14. On 5.5.1995 Mohd. Mushraf-respondent no.7 was produced beforr.
T.A. Chauhan, Dy. Commissioner of Mumbai Parimandal-6 and his preliminary
statement was recorded. Thereafter, he was again produced before him for D
recording his confessional statement on 8.5.1995 under Section 15 of the
TADA Act.
15. As per the prosecution's version, the motive to eliminate Ramdas
Nayak was that h'! was a leader of the BJP and was an elected Councillor of
BMC. Chota Sh:tkeel inform'!d accused persons that activities of Ramdas E
Nayak were causing hann to Muslim community and in the interest of Muslim
community, it was necessary to kill Ramdas Nayak. As per the instructions
and directions issued by the gang leader, a plan was hatched and successfully
executed. The accused-respondents were active participants in the conspiracy
of eliminating Ramdas Nayak and had actively taken part to execute the plan
set up by them by committing various acts in furtherance of their object to F
commit murder.
16. As only seven respondents are before us in the present appeal, we
shall consider the part played, as alleged by the prosecution, by these
accused persons in committing the offence(s) of which they have been charged. G
17. As per the prosecution, Siraj Ahmed Nisar Ahmed-respondent no. I
possessed anns which were brought from Gujarat for nefarious design to
commit the murder of Ramdas Nayak.
18. Mohd. Firoz Ayub Khan-respondent no.2 possessed arms which H
50
SUPREME COURT REPORTS
[2007} 6 S.C.R.
A were brought from Gujarat for committing the murder of the deceased Ramdas
Nayak. He also allowed his STD booth to be used for conveying the message
to the gang leader, Chota Shakeel by the assailants just after the act of murder.
B
19. Rafiq Latif Sheikh-respondent no.3 possessed arms which were
brought from Gujarat for committing the murder of deceased Ramdas Nayak.
20. Shafiq Latif Sheikh-respondent no.4 harboured absconding accused
Feroz Konkani after the commission of the murder of the accused.
21. Gumamsingh-respondent no.5 drove the Fiat car which was used to
bring arms from Bharauch and kept some of the anns which had been brought
C from Bharauch. He was present at the spot to help the assailants in order to
commit the crime.
D
E
F
22. Salim Karim Dingaonkar-respondent no.6, was the driver of the car
on the fateful day who took the car carrying the assailants and the anns to
the place of murder. He was present at the spot to help the assailants in
commission of crime.
.
23. Mohd. Mushraf-respondent no. 7 helped to purchase the Fiat car in
the name of Hamza. He also got a secret compartment prepared for carrying
arms.
24. As already mentioned, the Designated Court has convicted
respondent nos. I, 2 and 3 only for possessing arms specified in Columns 2
and 3 of Category I or Category III (a) of Schedule I to the Anns Rules, 1962
in a notified area under Section 5 of the TADA Act and under Anns Act, and
acquitted respondent nos. 4, 5, 6 and 7 from all charges.
25. The prosecution case is that accused-respondent no. 1 Siraj Ahmed
Nisar Ahmed Khan, accused-respondent no. 2 Mohd. Firoz Ayub Khan and
accused-respondent no. 3 Rafiq Latif Sheikh were aware of the conspiracy
hatched to kill Ramdas Nayak and they were asked to keep the weapons
brought from Bharauch. The weapons were seized from their possession. As
G per prosecution, accused Feroz Konkani gave infonnation that some fireanns
had been·kept with these accused persons and on that information the police
party proceeded to recover the firearms from them. The police was accompanied
by a Panch witness, PW-22, whose name was not disclosed as he had asked
for protection to keep his name and address concealed. The Police SubH Inspector (PW-51) deposed that on 19.10.1994 at the instance ofFeroz Konkani
STATEOFMAHARASHTRA "· SIRAZAHMEDNISARAHMED[P.P. NAOLEKAR,J.] SJ
1
they approached at a room at the first floor of a building where one garment A
factory was located in Ekta Nagar at Andheri. Feroz Konkani knocked at the
door and respondent no. 1 Siraj Ahmed Nisar Ahmed opened the door. On
being asked, he took out a gunny bag from beneath a cot and produced it
before the witnesses. They opened it and found one AK-4 7 rifle, 17 bullets
and one magazine. Panchnama was prepared and the weapons were seized.
Thereafter, Feroz Konkani took police party and the panch to a hut at the back B
side of Onkar Communication Centre in front of Copper Hospital. When
Konkani knocked at the door, respondent no. 2 Mohd. Firoz Ayub Khan
1
opened the door. Konkani asked him to produce the weapons and he took out
a gunny bag from beneath a cot. The police opened the gunny bag and found
two revolvers, two swords, three sharp edged weapons like knife or gupti and C
25 bullets, which were seized. Thereafter, Konkani took the police and the
panch to a room in a slum area at the back side of building no. 15, Park Site
at Vikhroli. Konkani got the door opened. Respondent no. 3 Rafiq Latif Sheikh
opened the door. On being asked by Konkani, he produced the weapons in
a plastic bag from the top of a cupboard. It contained one revolver and 13
bullets. A panchnama was prepared. The Designated Court has accepted the D
case set up by the prosecution as regards these accused for seizure of the
firearms and other arms from the accused-respondents and consequently
convicted them as mentioned hereinabove. Apart from this evidence of accused
having been found in possession of the firearms, the learned counsel for the
appellant did not point out any other evidence on record to connect these E
accused with the conspiracy of committing murder of Ramdas Nayak. There
is no evidence brought on record by the prosecution to prove that these very
arms had been brought from Bharauch. There is no evidence to connect the
arms found in possession of the accused with the arms which had been
alleged to have been brought from Bharauch. There is also no evidence to
show that any of the arms found in possession of these accused was used F
in commission of the crime.
26. As regards respondent no. 6-Salim Karim Dingaonkar, the case of
the prosecution is that he was engaged on the fateful day to drive the vehicle
along with the two absconding assailants; that he took them to the place of
incident on that day; and that he was present at the time of the incident. It G
is further the case of the prosecution that he left the place of incident along
with the two assailants immediately after the firing took place. To prove this
fact, the prosecution examined PW-7 whose name and address was kept
concealed. PW-7 stated that he was working as a licensee in a stall which was
situated on Hill Road in Bandra (West). On 25.8.1994 at about 9.15 a.m. he H
52
SUPREME COURT REPORTS
[2007] 6 S.C.R.
A opened the stall. The owner of the stall was also present in the stall since
9.15 a.m. At about 10.00 a.m., he heard sound like bursting of crackers and
the persons were running helter- skelter and the adjoining shops were being
closed down. On hearing the sound, he came immediately out of his stall and
saw that the car of Ramdas Nayak was coming from the road near a mango
tree which was on the right side of the stall and the car was not moving
B properly. He saw Ramdas Nayak inside the car and two persons were firing
at the car. After the firing, he saw the two assailants walking towards Bandra
railway station. He also saw firing by these two assailants towards the
bodyguard and the driver of the vehicle. The driver fell down on the back side
of the car and the bodyguard of Ramdas Nayak fell down near the driver.
C Thereafter, the two assailants started walking towards the railway station and
two more persons followed the two assailants and the persons following the
assailants were having small firearms. He described one of the persons who
followed to be in the age group of 25 to 28 years, having medium built, height
of 5 to 5112 ft. and small hair on his head. He was carrying a black colour small
firearm which had a wooden colour handle. The said witness (PW-7) identified
D respondent no. 6 to be a person who had followed the assailants immediately
after the incident. This witness further stated that he was standing near a car
which was parked in front of the Union Bank. He identified the accused in
the identification parade as well as in the dock.
E
F
27. This witness was disbelieved for the identification of the accused
to be a person standing near the car or present at the time of the incident
by the Designated Court on the reasoning that in connection with paragraph
8 of his deposition about the identification parade dated 20. l 0.1994, the SEM
Kamat (PW-33) had deposed that on 20.10.1994 Feroz Konkani and Salim
Karim Dingaonkar were identified by the witnesses and this witness for the
first time stated that he identified one of the assailants and also the other
person because the said person was standing near a Fiat car which was
stationary in front of the office of Union Bank and that this person had gone
along with the assailants. When the attention of this witness was drawn to
respondent no. 6 during his cross-examination, . he replied that during the
G identification parade he identified respondent no. 6-Salim Karim Dingaonkar
as he was standing near the Fiat car. When this witness stated that two
persons had followed the assailants, in his examination-in-chief he did not say
that one of them was standing near the Fiat car.
28. The Designated Court further found discrepancy in the evidence of
H PW-7 with regard to Fiat car and concluded that the witness claimed that
-/
STATE OF MAHARASHTRA''· SI RAZ AHMED NISAR AHMED [P.P. NAOLEKAR, J.] 53
when he returned from Bhabha Hospital and changed his clothes at his house A
and came to his shop, while he was on his way he saw the Fiat car. He further
stated that he did not see the Fiat car prior to recording of his statement in
Bandra Police Station. After the incident, the witness took Ramdas Nayak to
hospital and after return from hospital his statement was recorded by Bandra
Police and according to him prior to recording of his statement he had not
seen the Fiat car. That shows that prior to recording of his statement, he had B
not seen the accused near the Fiat car. It is, therefore, doubtful whether the
accused was present near the Fiat car at the time of commission of the crime.
There is a possibility that after the incident several persons had gathered and
PW-7 might have seen accused near the Fiat car, but at that time none of the
assailants was present at the place of incident and thus it cannot be said that C
PW-7 had seen the accused-respondent no. 6 Salim Karim Dingaonkar at the
time of the incident near the Fiat car. The Designated Court also recorded a
finding that as per this witness he had disclosed all the facts which he had
seen at the time of incident, but in his statement before the police he had not
mentioned the presence of Fiat car or the accused standing near the Fiat car.
The witness further stated that for the first time in the identification parade D
he remembered that he had seen the accused standing near the Fiat car.
Therefore, identification of accused-respondent no. 6 by this witness would
not carry the prosecution case any further because at the time of the incident
the witness had not seen the accused at the place of incident. On the basis
of the statement of this witness, the Designated Court has reached the E
conclusion that it might be that the accused was seen by this witness at the
place of incident as so many other persons who had gathered there, but the
witness could not establish his presence near the Fiat car at the time of
incident. Neither any firearm was recovered from this accused nor any evidence
was led to prove the fact that he was engaged for driving the vehicle to carry
the assailants and the firearms for committing the murder of Ramdas Nayak F
as per the conspiracy hatched by the accused persons. There is no evidence
on record to establish that on the relevant date he was seen driving the Fiat
Car. There is lack of link evidence connecting this accused with the other
accused persons. Finding the accused at the place of incident might have
raised the strong suspicion, but there is no evidence on record to convert the G
suspicion into a proof about the involvement of the accused-respondent no.
6 in committing the murder of Ramdas Nayak.
29. It is alleged by the prosecution that during the interrogation of
Rizwan, he gave information to the police that out of the weapons transported
from Bharauch to Maharashtra some of them were handed over to H
54
SUPREME COURT REPORTS
(2007] 6 S.C.R.
A Gurnamsingh-respondent no.5 and, accordingly, he took the police party to
r
the place where respondent no.5 was residing. When they reached the house
of Gurnamsingh, Rizwan asked him to produce the weapons and Gurnamsingh
took out a bundle wrapped with paper from the backside of the cupboard in
his room and produced the bundle before the police. When the bundle was
B
opened by the police, they found a revolver and some cartridges and the
same were seized. Recovery of revolver and cartridges was disbelieved by the
Designated Court on the ground that no independent witness had supported
the recovery. The prosecution has not led any evidence to prove that the
house in question, from where the recovery was made, was owned or
possessed by Gumamsingh-respondent no.5. It has come in evidence that
c one lady was present at the time of recovery of weapons inside the house
and Gumamsingh introduced her as his wife, but there is no evidence to
prove the fact that the lady present in the house was the wife of Gurnamsingh.
The house was situated in a multi-storeyed building and there were several
multi-storeyed buildings nearby from where the revolver and cartridges were
D
recovered. The recovery was made during the broad daylight. Police did not
produce any evidence to prove the fact of visit of police to the place from
where the recovery was alleged, apart from absence of independent panch
witnesses. Shivajrao Dattatray Kalekar (PW-50), a police officer deposed that
prior to completion of panchnama he had made a search of the house but
could not find any incriminating articles. When the police had recovered the
E revolver and ammunition from Gurnamsingh on disclosure statement ofRizwan
that one revolver was kept with Gumamsingh, then there was no reason for
the police to conduct the house search and, therefore, it would indicate that
the police were not relying on the information given by the accused Rizwan
but they were trying to find out the accused on their own. That apart, when
F
the police had conducted the house search then there was every possibility
that they had recovered the bundle from the back side of the cupboard. To
avoid these difficulties, Vinayak Pandurang Kadam (PW-55) deposed differently
from Shivajirao Dattatray Kalekar (PW-50) and replied that they did not search
the house at all and thus evidence about the recovery was suspicious. The
Court further held that there should have been a concrete evidence that it was
G accused Gumamsingh who was in possession of the house and the lady who
was present in the house was the wife of Gumamsingh, then it would have
been reasonable to accept the recovery.