tada case nagpur judgement
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1 Presented on : 19.03.1994 Decided on : 08.02.2008 Duration : 13-Y 10M 19D BEFORE JUDGE, SPECIAL COURT, DESIGNATED UNDER T.A.D.A. ACT, N A G P U R. (Presided over by Shri B.A.Shaikh) Spl.Cri.Case No. 7 / 1994. State of Maharashtra through P.S.O. Police Station Kasansur,District-Gadchiroli.. .... Versus ... 1) 2) 3) Buddhu Bitlu Gota, age about 32 years, R/o Ghotsur. Sanku Dama Potavi, aged about 30 years,Javeli Distt. Mora Manku Potavi, aged about 24 years,R/o Javeli, Tah:Etapalli,Distt. GadchiTRANSCRIPT
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Presented on : 19.03.1994 Decided on : 08.02.2008 Duration : 13-Y 10M 19D
BEFORE JUDGE, SPECIAL COURT, DESIGNATED UNDER T.A.D.A. ACT, N A G P U R.
(Presided over by Shri B.A.Shaikh)
Spl.Cri.Case No. 7 / 1994. Exh.No.______
State of Maharashtra through P.S.O. Police Station Kasansur,District-Gadchiroli.. ..... COMPLAINANT
.... Versus ...
1) Buddhu Bitlu Gota,age about 32 years, R/o Ghotsur.
2) Sanku Dama Potavi, aged about 30 years,Javeli Distt.
3) Mora Manku Potavi,aged about 24 years,R/o Javeli, Tah:Etapalli,Distt. Gadchiroli.
4) Khedu @ Chandu Ghosu Naroti,aged about 24 years, R/o Karka.
5) Pandu Irapa Hedo,aged about 33 years, R/o Karka.
6) Sadhu Mahadu Hichami,aged about 20 years, R/o Karka.
7) Mahu S/o Moda Halami,aged about 32 years, R/o Bendulwahi.
8) Madi Laltu Lakami,aged about 28 years, R/o Pimplitola.. .
9) Shishu Maharu Naroti,aged 26 years, R/o Piplitola.
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10) Bandu Pandu Gota,aged 45 years, R/o Ghotsur.
Mr.Sathainathan, Public Prosecutor for Complainant.Mr.Anthony, Advocate for the accused Nos.1 to 9,and 21.Mr.Gadling, Advocate for the Accused No.10 Bandu Pandu Gota.
OFFENCES PUNISHABLE UNDER SECTIONS 148, 364 R/W 149, 302 R/W 149 of IPC, SECTION 3 R/W 25 OF ARMS ACT
AND SECTIONS 3 AND 4 OF THE TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT,1987.
J U D G M E N T (Delivered on this 8th February,2008)
The aforesaid ten accused arrayed as accused Nos.1
to 10 have been tried for the offences punishable under sections
148, 364 r/w 149, 302 r/w 149 of Indian Penal Code, Section 3
r/w 25 of Arms Act and Sections 3 and 4 of the Terrorist and
Disruptive Activities (Prevention )Act,1987 (for short TADA Act).
2. The prosecution case in brief is as under:
The aforesaid ten accused persons and the
absconding accused namely Lingu Karya Gota, Rushi Hedo,
Mansai Rati Usandi, Bichanga Soma Naroti, Bapu Yankaji
Taidalwar, PochuYankaji Taidalwar, Zhuru Ganu Kirami, Sanku
Modi Usandi ,Samru Baju Mattani, Tirka Buklu Velda, Chandrika
Jethuram Raut, Ganesh Vijaiya Maha, Jaganna Pedapalli, Dasru
Dalsu @ Jogi Pusa Gawde, Maru @ Ravindra @ Bapu Malaiyya
Konda, Jangu @ Mura Naroti, Lalu @ Sadhu, Meena @ Minakka
@ Sammi @ Madanakka, Suwarna @ Suwarnakka @ Rambai
Durga Portata, Sarita Dalsu Gota, Rainu , Somji Ganu Korami,
Dasru Gota, Somji Ropu Naroti, Bandu Chira Gota, Sainu
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Lekami, Raju Pungati, Sarju Narioti and many other unknown
persons formed terrorist gang called as 'Naxalites'. Their
naxalites gang believed in Marxist- Leninist ideology. The said
accused committed various terrorist activities in Gadchiroli
District of Maharashtra State. One of the absconding accused
namely Rushi Hedo R/o village Ghotsur is the leader of that
terrorist gang. The aim and object of the said terrorist gang is
to establish its own Government by destabilizing present
Government by use of force and violence and to strike terror in
the people. The said gang is active in deep interior areas of
District Gadchiroli of Maharashtra State. The said gang
unlawfully holds various arms and ammunitions so as to strike
terror in the people. That gang also killed the Government
representatives and other officers in order to create terror. The
said gang is also known as 'Dalam' .
3. The deceased Dayal Tarachand Meshram was
working as Asstt. Intelligent Officer in local Crime Branch at
Jarwandi of Gadchiroli District. Tulsiram Bhuraji Durge, a police
constable bearing Buckle No.836 (PW-6) (who was abducted)
was attached to the police station Kasansur in Gadchiroli
District. The another deceased Sainu Sukru Usandi was the
secret informant of police. He was resident of village Kasansur
of District Gadchiroli.
4. The deceased Dayal Meshram received an
information that Rushi Chenga Hedo, the leader of the aforesaid
Naxalites gang along with his sister-in-law Kamal has gone to
village Pakhandur of Madhya Pradesh State and he took with
him Rs.3 lakh. On receiving that information, the deceased Dayal
Meshram, the police constable Tulsiram Durge and police secret
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informant Sainu Usandi went by a motorcycle on 19.7.1992 to
village Irapnar to search out the said gang leader namely Rushi
Chenga Hedo (absconding accused). The said village Irapnar
was situated in Madhya Pradesh State. There was weekly Bazar
day on 19.7.1992 at village Irapnar. The said three persons then
sat in the hotel of confidential witness cited as witness No.22 in
the charge-sheet.
5. At that time one unknown supporter of naxalites
gang came into that hotel and he took with him police informant
Sainu Usandi (deceased). Thereafter within 5 to 10 minutes the
accused No.4 Khedu @ chandu Ghosu Naroti, No.5 Pandu Irpa
Hedo, No.6 Sadhu Madhu Hichami along with the aforesaid
some of the absconding accused came into that hotel. They
started making enquiry with deceased Dayal Meshram and
Tulsiram Durge. They told them that they are called by their
party. Said two persons avoided to go with them and therefore
the said accused persons assaulted both of them and forcibly
took them into the forest area. Thereafter the other accused
also joined the aforesaid accused persons who abducted both
the aforesaid police officials namely Dayal Meshram and
Tulsiram Durge along with police informant Sainu Usandi in that
forest area.
6. The police informant namely Sainu Usandi and the
aforesaid two police officials namely Dayal Meshram and
Tulsiram Durge were taken by all the aforesaid accused and
absconding accused from place to place in the forest area of
villages of Maharashtra State namely Pendulwahi and Karrem.
The accused persons also tied their hands and assaulted them
from time to time and also served them food at different places.
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On 21.7.1992 all the accused persons held a meeting at 9 A.M.
It was decided by them that one of the police official namely
Tulsiram Durge be taken to the secretary of their group called as
Bhupati . Therefore the absconding accused Mansai Rati Usandi
and one of the accused No.6 Sadhu Mahadu Hichami and
another absconding accused handed over Tulsiram Durge to
another absconding accused Somji Roku Naroti. Then Tulsiram
Durge was moved by the accused No.8 Madi Lalsu Lakami, No.9
Sishu Maharu Naroti and three other absconding accused in
forest area from 23.7.1992 to 27.7.1992.
7. As per direction of absconding accused Rushi Potavi
Hedo, the deceased Dayal Meshram and Sainu Usandi were
forcibly taken by accused No.1 Buddhu Bitlu Gota, No.2 Sanku
Dama Potavi, No.3 Mora Manku Usandi, No.4 Khedu Moda
Halami and some of the other absconding accused to other areas
of the forest. Thereupon the accused No.2 Sanku Dama Potavi
caused the deceased Dayal Meshram to fall down. The
absconding accused Zharu Ganu Korami caught hold his legs.
The another absconding accused namely Chandrika Jetu Raut
then slit the neck of deceased Dayal Meshram by means of a
dagger and killed him on the spot. The aforesaid accused then
put the dead body of deceased Dayal Meshram in a pit and
covered it by stones. Like-wise the aforesaid accused killed
deceased Sainu Usandi by cutting his neck by means of dagger.
His dead body was also put in a pit and stones were placed on it.
8. When police received information about abduction of
the aforesaid two police officials and police informant, search
was started by police, Due to the exhaustive search made by
police the aforesaid accused were pressurised. As a result of
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thereof they released one of the abducted police official namely
Tulsiram Durge on 27.7.1992. The accused persons thus
abducted the aforesaid three persons and out of them they killed
two persons in order to strike terror in the minds of Government
functionaries and they also created terror in the minds of the
general people under the threat of guns.
9. On 31.7.1992 police of police station Kasansur
arrested the accused No.1 Buddhu Bitlu Gota and absconding
accused Lingu Karya Gota on suspicion. They made confessional
statements before police and panchas on 31.7.1992 about killing
of the deceased Dayal Meshram and Sainu Usandi in deep forest
area of village Karrem of Maharashtra State and burying them at
that place. The separate memorandum of their said confessional
statements came to be recorded and they led police party and
panchas into deep forest area of village Karrem and discovered
the dead bodies of deceased Dayal Meshram and Sainu Usandi
which were put in a pits covered by stones. The said dead
bodies after seizure, were sent for post mortem examination to
the Medical Officer,Etapalli on 1.8.1992. On post mortem
examination, Medical officer opined about their cause of death
as cardio respiratory due to asphyxia due to trachial injury.
10. FIR was registered on 1.8.1992 at Kasansur police
station of Sub-Division Etapalli,District Gadchiroli (Maharashtra
State) on the report of Y.S.Ambadkar, Police Sub-Inspector
attached to Kasansur police station in respect of the aforesaid
incident. Crime No.11/1992 was given to the said crime which
was registered for the offences punishable under sections 302,
201 and 364 of IPC.
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11. During investigation statement of the sole eye
witness namely Tulsiram Bhuraji Durge (PW-6) was recorded by
police. The clothes of the deceased Dayal Meshram and Sainu
Usandi were seized after their post mortem examination. During
search operation, the forest areas were raided by the police
party and in those raids, in all 20 accused were arrested by
police during that search operation. The accused No.2 Sanku
Dama Potavi and No.3 Mora Manku Usandi were arrested on
7.8.1992. The accused No.4 Khedu @ Chandu Ghosu Naroti was
arrested on 11.8.1992. The accused No.5 Pandu Irpa Hedo was
arrested on 18.9.1992. The accused No.6 Sadhu Mahadu
Hichami was arrested on 19.10.1993. The accused No.7 Mahu
Moda Halami was arrested on 25.11.1993. The accused No.8
Madi Lalsu Lakami and accused No.9 Shishu Maharu were
arrested on 28.2.1994. The accused No.10 Bandu Pandu Gota
was arrested on 20.2.1997. The remaining twelve accused were
also arrested on different dates but they subsequently
absconded after they were released on bail.
12. During course of investigation the plain soil as well
as soil mixed with blood were seized from the place of incident
on 31.7.1992. One gun called as Bharmar was discovered at the
instance of accused Rushi Pati Hedo (absconding), which was
seized on 10.8.1992. Another gun, cartridges and hand made
grenades were also discovered at the instance of absconding
accused Mansai Rati Usandi which were seized on 13.8.1992.
One telephone diary and Rs.70/- were also seized from the
possession of absconding accused Rati Usandi. The absconding
accused Somji Ganu Korami had handed over some clothes used
by naxalites to Barsu Hedo for preserving them. They were
seized by police from Deorao Barsu, the son of Barsu Hedo on
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6.9.1992. Similar other clothes were handed over by accused
No.10 Bandu Gota to Chandu Atram which were seized by police
from Chandu Atram on 6.9.1992. Discovery of 12 bore gun was
made at the instance of absconding accused Tirka Buklu Velda
which was seized on 18.9.1992. Discovery of another gun was
also made at the instance of accused No.5 Pandu Irpa Hedo
which was seized on 18.9.1992.
13. The seized bombs were diffused on 29.9.1993 by
Bomb Detection and Destruction Squad,Nagpur. The substance
removed from those bombs was preserved for examination. The
seized soil and clothes were sent to chemical analyser,Nagpur
for examination and report. Reports about the said examination
were received after their examination. The seized guns and the
cartridges were sent to Ballistic expert,Mumbai for examination.
He issued certificate after examination. The substance removed
from the diffused bombs was sent to chemical analyser for
examination. He issued certificate after that examination.
14. On 4.8.1992 the investigating officer (PW-12)
received permission for application of the provisions of TADA Act
to the present Crime No.11/1992. As per the request of the said
investigating officer, the Taluka Executive Magistrate,Etapalli
(PW-8) held test identification parade for identification of 15
arrested accused persons by the sole eye witness Tulsiram
Durge (PW-6) on 14.10.1992 in presence of panch witnesses.
Each of the said 15 accused were caused to stand up in row of
six dummies and the said witness Tulsiram Durge was called for
identification in presence of panchas. The said witness
identified each of 15 accused persons at the time of each
identification parade as the same persons who along with other
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accused had kidnapped him from Irapnar Bazar and later joined
the party who kidnapped Dayal Meshram. The memorandum
and chart were prepared in respect of each of the said
identification parade by the said Taluka Executive Magistrate.
15. On 8.10.1993 a proposal was sent by the
investigating officer (PW-13) to Director General of
Police,Maharashtra State,Mumbai through superintendent of
Police,Gadchiroli requesting him to grant sanction for filing the
charge-sheet before the Court under the provisions of TADA Act.
The arrested accused No.6 Sadhu Mahadu Hichami expressed
his willingness to give confessional statement and therefore
Mr.S.K.Jaiswal, the Superintendent of Police,Gadchiroli recorded
his confessional statement. The arrested accused No.7 Mahu
Moda Halami was ready to give confessional statement and
therefore his confessional statement was recorded by PW-10
Shantaram Waghmare, Asstt. Superintendent of Police,Aheri.
The another accused No.5 Pandu Irpa Hedo showed his
willingness for giving his confessional statement. Accordingly
his confessional statement was recorded by PW-9 Ravindra
Kedari, the Addl.Superintendent of Police,Aheri. So also the
arrested accused No.1 Buddhu Bitlu Gota showed his
willingness for giving confessional statement. Accordingly his
confessional statement was recorded by PW-9 Ravindra Kedari.
The another absconding accused Karya Gota showed his
willingness for giving confessional statement. Accordingly his
confessional statement was recorded by Mr.R.M.Kedari (PW-9).
So also the confessional statement of absconding accused Ramji
@ Tirka Bablu Velda was recorded by Mr.R.M.Kedari as per the
willingness given by the said accused. The confessional
statement of another co-accused Mansai Rati Usandi
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(absconding) was also recorded by Mr.R.M.Kedari as per the
willingness given by him. The said accused persons in their
respective respective confessional statements admitted their
respective guilt.
16. The sanction order for filing the charge-sheet under
the provisions of TADA Act was received by the investigating
officer (PW-13) Namdeo Chavan. Therefore on completion of
investigation, the said investigating officer forwarded charge-
sheet to this Court against the accused persons for the offences
punishable under sections, 364, 302, 201, 109 r/w 34 of Indian
Penal Code, 3 r/w 25 of Arms Act, 3 and 4 of the Explosive
Substances Act and 3 and 4 of TADA Act.
17. During the pendency of the trial, except the accused
No.1 Buddhu Bitlue Gota and No.5 Pandu Gota, the rests of the
accused were granted bail. However most of the accused who
were granted bail, were absconded and though efforts were
made to secure their presence, they could not be arrested and
produced before the Court. Therefore my learned predecessor
Mr.R.V.Deshmukh passed an order below Ex.126 on 19.4.2005 of
under -trial prisoners and thereby splitted the case of those
absconding accused in order to avoid the protraction of the trial
against the aforesaid under -trial prisoners.
18. My aforesaid learned predecessor Mr.R.V.Deshmukh
framed charge against the accused Mahu Moda Halami and
Bandu Pandu Gota at Ex.129, against the accused Khedu @
Chandu Naroti and Sadhu Mahadu Hichami and Pandu Irapa
Hedo at Ex.132, against accused Madi Lalsu Lakami and
Bichanga Soma Naroti at at Ex.137, Shishu Mahadu Naroti at
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Ex.142 and Sanku Dama Potavi and Samru Baju Matami at
Ex.145. Thereafter when I resumed the charge of this Court, I
framed charge against the accused Buddhu Gota at Ex.188 and
accused Mora Manku Potavi at Ex.341. The aforesaid charges
were framed for the offences punishable under sections 368, 302
4/w 149 of I.P.C, Section 3 r/w 25 of Arms Act and Sections 3
and 4 of TADA Act. They were read over and explained to each
of the accused in vernacular. They pleaded not guilty and
claimed to be tried. After above charge was framed, two
accused namely Samru Baju Mattami and Bichanga Soma Naroti
absconded. Hence their case was separated as per order passed
below Ex.1 on 13.4.2007. The defence of accused persons
appear to be of total denial. They adduced no defence evidence.
19. Following points arise for my determination. My
findings are also recorded against them for the reasons to
follow:
Points Findings
1. Whether the prosecution has proved that on or about 19.7.1992or in between 19.7.1992 and 27.7.1992 in the forest area of village Karrem, the deceased Dayal Tarachand Meshram, an Asstt. Intelligent Officer met with homicidal death?. ... Yes
2. Whether the prosecution has further proved that on or about 19.7.1992 or in between 19.7.1992 and 27.7.1992 in forest area of village Karrem, the deceased police informant namely Sainu Sukru Usandi met with homicidal death? ..... Yes
3. Whether the prosecution has further proved that on or about 19.7.1992 in between 19.7.1992 and 27.7.1992 at about 2 P.M. to 2.30 P.M. the aforesaid accused persons Nos.1
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to 10 viz.Buddhu Bitlu Gota, Sanku Dama Potavi,Mora Manku Potavi, Khedu @ Chandu Naroti,Pandu Irapa Hedo, Sadhu Mahadu Hichami,Mahu Moda Halami, Madi Laltu Lakami, Shishu Maharu Naroti and Bandu Pandu Gota along with the other absconding accused formed an unlawful assembly at the forest areas of villages namely Ghotsur, Karrem and Pendulwahi and did in prosecution of the common object of said assembly viz.abducting Tulsiram Durge, Dayal Meshram and Sainu Usandi and intentionally causing their death and committed offence of rioting and at that time they were armed with deadly weapons namely guns? .. Proved against
the accused Nos. 1,2,4,5,6,8 and 10 only.
4. Whether the prosecution has further proved that on or about 19.7.2007 at 2 p.m.to 2.30 p.m. or in between 19.7.1992 and and 27.7.1992 at village Irapnar the aforesaid accused Nos.1 to 10 along with the other absconding accused were the members of unlawful assembly and in prosecution of the aforesaid common object of committing murder of the aforesaid three persons namely Tulsiram Durge, Dayal Meshram and Sainu Usandi, they abducted them in order that they may be murdered? .... Proved against
accused Nos.1,2,4 5,6,8 and 10 only.
5. Whether the prosecution has further proved that on or about 19.7.1992or in between 19.7.1992 and 27.7.1992 the aforesaid accused Nos.1 to 10 along with the other absconding accused persons were the members of unlawful assembly and in prosecution of the aforesaidcommon object of which one of the member intentionally caused the death of deceased Dayal Tarachand Meshram and Sainu Usandi and committed
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the offence of murder of which the aforesaid accused Nos.1 to 10 knew to be likely to be committed in prosecution of the aforesaid common object of their unlawful assembly? .... Proved against the
accused Nos.1,2,4, 5,6,8 and 10 only.
6. Whether the prosecution has further proved that on or about 19.7.1992 or in between 19.7.1992 and 27.7.1992 in forest areas of villages namely Ghotsur,Karrem and Pendulwahi, the aforesaid accused Nos.1 to 10 were armed with guns and cartridges without license? .... Does not
survive for want of sanction.
7. Whether the prosecution has further proved that on or about 19.7.1992 or in between 19.7.1992 and 27.7.1992 the aforesaid accused Nos.1 to 10 along with the other absconding accused intentionally caused the death of deceased Dayal Meshram, Sainu Usandi and thereby committed the offence of murder with weapons so as to strike terror in the minds of people or with intention to overawe the Government? .... Does not
survive for want for want of valid sanction.
9. Whether the prosecution has further proved that on or about 19.7.1992 or in between 19.7.1992 and 27.7.1992 in the forest areas of villages Ghotsur, Karrem and Pendulwahi the aforesaid accused Nos.1 to 10 along with the absconding accused committed disruptiveactivities by committing murder intentionally causing death of deceased Dayal Meshramand Sainu Usandi with intention to
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disrupt sovereignty and territorial integrity of India? ..... Does not
survive for want of valid sanction.
10. What offence if any is proved against the aforesaid accused Nos.1 to 10?.. Offences
punishable U/ss.148, 302 r/w 149,364 r/w 149 are proved against accused Nos.1,2,4,5,6,8 and 10 only.
11. What order?... As per final order below.
REASONSAs to Point Nos.1 and 2:
20. At the outset, it is worthy to note that the accused
have not challenged the homicidal death of the two deceased
persons namely Dayal Tarachand Meshram and Sainu Sukru
Usandi. The learned defence Counsels admitted the post
mortem examination reports Exs.276 and 278 prepared and
submitted by medical officer after examination of the dead
bodies of the aforesaid two persons. They further admitted the
sketch map Ex.279 of the place of the incident from where the
dead bodies of the aforesaid two deceased persons were
recovered. They further admitted the death certificates Ex.280
and 281 issued by the Secretary of Gram Panchayat,Karrem in
respect of the death of the aforesaid two persons. The aforesaid
defence Counsels admitted the aforesaid documents in
pursuance of the notice Ex.264 served upon them by the learned
Public Prosecutor, Mr.P.K.Sathainathan vide Section 294 of
Cr.P.C.
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21. The medical officer in the aforesaid two post mortem
reports Ex.276 and 278 opined about the probable cause of
death of the aforesaid two persons as cardio respiratory arrest
due to Asphyxia due to trachial injury. He found ante mortem
injury as trachea was cut completely.
The dead bodies of both the aforesaid persons were
found in deep forest area as covered under the stones.
Identification of those dead bodies as of Dayal Meshram and
Sainu Usandi is also not challenged by the defence Counsels.
The dead body of deceased Dayal Meshram was identified by a
police officer namely PW-5 Nitaram Umare under whom the
deceased had worked. The dead body of deceased Sainu Usandi
was identified by a police constable Prakash Tichkule as seen
from inquest panchnama Ex.172 prepared by police about the
dead body of said deceased Sainu Usandi.
22. The recovery of the dead bodies of the aforesaid two
persons from the deep forest area has also been proved by
independent panch witness PW-3 Bandu Pandharu Korami . He
deposed that in his presence those dead bodies were recovered
by police and inquest panchnamas Ex.169 and 172 were
prepared by police and signed by him in respect of those dead
bodies of Dayal Meshram and Sainu Usandi.
23. The PW-5 Nitaram Umare, the Asstt.Commissioner of
Police in his evidence at Ex.193 has also deposed that dead body
of deceased Dayal Meshram was discovered as shown by
accused Buddhu and another dead body was discovered as
shown by absconding accused Lingu Gota in the deep forest
area.
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24. As per evidence of the sole eye witness PW-6
Tulsiram Bhuraji Durge, he and the aforesaid two deceased
persons namely Dayal Meshram and Sainu Usandi were
kidnapped by group of naxalites from the hotel of village Irapnar
and thereafter he was separated by those groups from both the
deceased persons. The defence Counsels have not challenged
the abduction of PW-6 Tulsiram Durge, deceased Dayal Meshram
and Sainu Usandi from the hotel of village Irapnar and later on
release of Tulsiram Durge only and killing of deceased Dayal
Meshram and Sainu Usandi in forest area. The dead bodies of
said two persons were discovered after their abduction. PW-6
Tulsiram Durge has given the names of persons who abducted
him and the deceased persons in his evidence and he identified
some of the accused persons before this Court also as the
persons who abducted him and other two persons. The question
about reliability of his evidence about identification of the said
accused will be considered in later part of this judgment.
However I find that from the aforesaid unchallenged evidence, it
is established by the prosecution that deceased Dayal Meshram
and Sainu Usandi met with homicidal death due to slitting of
their neck by sharp cutting weapons on or in between 19.7.1992
and 27.7.1992 in forest of village Karrem. Therefore the
aforesaid point Nos.1 and 2 are decided in affirmative.
As to rest of the Points:
25. In order to establish the nexus in between the
aforesaid accused Nos.1 to 10 and the homicidal death of
deceased Dayal Meshram and Sainu Usandi, the prosecution
examined following witnesses.
1) PW-1 Sainath Ramchandra Surguniwar (Ex.160)
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(panch witness).
2) PW-2 Raiji Manglu Madavi(Ex.161) (Panch witness).
3) PW-3 Bandu Pandharu Korami (Ex.167) (Panchwitness).
4) PW-4 Sannyasi Kazu Istam (Ex.180) (Panch witness).
5) PW-5 Nitaram Zinarao Umare (Ex.193) (Investigating Officer).
6) PW-6 Tulsiram Bhuraji Durge (Ex. 198 ) (Eye witness).
7) PW-7 Chandu Antu Atram (Ex.200) (Witness about handing over all bundles of clothes of naxalites by accused Pandu Gota to him and later on their discovery).
8) PW-8 Pravin Devidas Badkilwar (Ex.231) (Taluka Executive Magistrate who held identification parade regarding 15 accused persons).
9) PW-9 Ravindra Mahadeorao Kedari (Ex.232-A)(Addl.Superintendent of Police who recorded alleged confessional statements of accused No.5Pandu Irpa Hedo and No.1 Buddhu Bitlu Gota.
10) PW-10 Shantaram Dhondiram Waghmare (Ex.239) (Addl.Superintendent of Police who recorded alleged confessional statement of accused No.7 Mahu Moda Halami.
11) PW-11 Subhodkumar Jaiswal (Ex.250) (Who recorded the alleged confessional statement of accused Sadhu Mahadu Hichami).
12) PW-12 Chandrakant Gangaram Kumbhar (Ex. 255 (Investigating Officer).
13) PW-13 Namdeo Nyano Chavan (Ex.272)(Investigating officer).
14) PW-14 Vikas Navnath Dhakne (Ex.331) (Police officerwho obtained true copy of sanction order Ex.332from the office of Director General of Police,Mumbai)
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26. The learned Public Prosecutor, Mr.P.K.Sathainathan
submitted that the sole testimony of eye witness namely PW-6
Tulsiram Durge is very clear, cogent, natural and probable so as
to establish the nexus in between homicidal death of deceased
Dayal Meshram and Sainu Usandi and the accused persons who
are facing trial before this Court. He further submitted that the
theory of 'last seen' is also applicable in the present case when
as per the evidence of aforesaid eye witness PW-6 Tulsiram
Durge, the accused had lastly taken away deceased Dayal
Meshram and Sainu Usandi after abduction by separating them
from him. Thus Mr.P.K.Sathainathan submitted that after that
separation the dead bodies of the said two deceased persons
were found in the same forest area.
27. Mr.P.K.Sathainathan, the learned Public Prosecutor
further submitted that it is now for the defence to show as to
how the said two deceased persons died after their abduction by
them. He further submitted that PW-6 Tulsiram Durge (eye
witness) during the test identification parade also identified all
the accused persons. He also submitted that the PW-8 Pravin
Badkilwar, the Taluka Executive Magistrate has duly held test
identification parade and proved memorandums with charts
prepared by him during that parade. He also submitted that
before this Court also PW-6 Tulsiram Durge (eye witness)
identified seven accused persons to be the same who abducted
him and other two deceased persons and moved them in deep
forest area from place to place. He thus submitted that the
identification of accused by the said witness therefore cannot be
doubted.
19
28. Mr.P.K.Sathainathan, the learned Public Prosecutor
further submitted that the prosecution has proved that the
accused namely No.5 Pandu Irpa Hedo, No.7 Mahu Moda
Halami, No.6 Sadhu Mahadu Hichami and No.1 Buddhu Gota
have made their voluntarily confessional statements before the
respective competent police officers and that those confessions
also support the oral evidence of PW-6 Tulsiram Durge ( eye
witness) regarding the direct incident. He has also relied upon
the observations made by the Hon'ble Supreme Court in the
cases as regards the value of prosecution evidence and aforesaid
confessional statements, which will be discussed in latter course
of this judgment.
29. The learned Public Prosecutor thus submitted that
the prosecution evidence is sufficient, cogent and reliable to
hold that the accused persons initially abducted PW-6 Tulsiram
Durge (eye witness), Dayal Meshram and deceased Sainu
Usandi from the hotel of Irapnar in order to kill them and then
moved them from place to place in deep forest areas and
thereafter intentionally caused the death of deceased Dayal
Meshram and Sainu Usandi and released Tulsiram Durge due to
the pressure of police.
30. On the other hand Mr.Anthony, the learned defence
Counsel appearing for the accused Nos.1 to 9 except accused
No.10 Bandu Pandu Gota submitted that out of arrested 22
accused persons, only ten are facing trial before this Court and
rests are absconding and that almost all the panch witnesses
have not supported the prosecution case and turned hostile. He
further submitted that the evidence of PW-6 Tulsiram Durge (eye
20
witness) is not cogent and reliable about correct identity of the
accused persons as he identified seven accused before this Court
after about 15 years of the incident and that during those 15
years the physical appearance of those accused persons has
been totally changed. He further submitted that test
identification parade was also held after three months of the
arrest of the accused persons. He also submitted that on single
day within a short time no such identification parade for 15
accused is probable as claimed by PW-8 Pravin Badkilwar. He
further submitted that initially Crime No.93/92 was registered in
Madhya Pradesh State, but none of the accused came to be
arrested by police of Madhya Pradesh State. He further
submitted that Ambadkar who lodged the FIR 256 is not
examined by the prosecution. He thus submitted that the owner
of the hotel of Irapnar is not examined in support of evidence of
PW-6 Tulsiram Durge. He also submitted that the panch
witnesses of the alleged test identification parade are also not
examined by the prosecution. He further submitted that the
alleged confessional statements of the accused persons cannot
be relied upon as they are not recorded in the respective mother
tongue of the accused persons and that the provisions of Section
15 of TADA Act are not followed by the investigating officer
regarding those statements. Thus Mr.Anthony , the learned
defence Counsel submitted that the prosecution has failed to
establish the nexus in between the homicidal death of Dayal
Meshram and Sainu Usandi and the accused persons.
31. Another learned Counsel Mr.Gadling appearing for
the accused No.10 Banu Pandu Gota submitted that the alleged
test identification parade was held by PW-8 Pravin Badkilwar in
a very casual manner and without following the rules. He further
21
submitted that common dummies were used for 15 accused
persons at the time of said identification parade which is also
against the rules. He also submitted that there are serious
omissions and contradictions in the evidence of PW-6 Tulsiram
Durge as regards the direct incident and hence his evidence is
not trustworthy. He also submitted that the seized arms were
not produced before the Court for identification. He also
submitted that accused were not produced before the Chief
Judicial Magistrate as provided under rule 15 of TADA Rules
1987. He thus submitted that the confessional statements
cannot be said to be made voluntarily and therefore they cannot
be relied upon. He relied upon the observations made in the
cases by the Hon'ble Supreme Court, which will be discussed in
latter course of this judgment.
32. After carefully going through the prosecution
evidence, it is seen that the prosecution has relied upon the
following evidence.
1) The sole eye witness PW-6 Tulsiram Bhuraji Durge.2) Test identification parade.3) The alleged confessional statements made by the
accused persons namely Buddhu Bitlue Gota(Ex.233-A and 234-A), Pandu Irpa Hedo (235-A and 236-A, Mahu Moda Halami (Ex.241 and 242) andSadhu Mahadu Hichami (Ex.252 and 253).
4) Recovery of the alleged incriminating articlesfrom the respective accused.
33. Beginning with the oral evidence of PW-6 Tulsiram
Durge (Ex.198) (eye witness), it is seen that during his evidence
he fully supported the prosecution story as regards the direct
incident. He has given details of his joining at police station
Kasansur going with deceased persons namely Dayal Meshram
22
and Sainu Usandi to Irapar, abduction of himself and the said
two deceased persons by the group of Naxalites and then moving
of all of them in deep forest area from place to place by those
persons and then his separation from the said two deceased
persons by the said group and as to how they were assaulted by
members of said group and how they were served food and lastly
how he was released. The said details are given by him about all
activities right from the date 19.7.1992 to the date 28.7.1992.
His evidence is very material and hence it is necessary to
reproduce his evidence in his own words. It is as follow:
On 15.12.1988 I was recruited in police department at Gadchiroli. I was posted at Kasansur police station in the
year 1991. The incident took place on 19.7.1992.
At that time Dayal Meshram was working as Intelligent
Officer. On 18.7.1992, I along with Dayal Meshram
went from Kasanpur to Jarabandi. We halted there at
night. On 19.7.1992 I along with Dayal Meshram
and informer Sainu Usandi went from Jarabandi to
Bande. On the same day we all went from Bande to
Irapnar. We had received an information that a
person by name Rushi Hedo had collected money
and that he ran away towards Chattisgarh. Therefore
we wanted to apprehend him. I got down from the
motorcycle when the hotel of Irapnar was ahead
at a distance of 100 ft. Sainu and Dayal Meshram
went ahead by motorcycle. I told them to sit in the
hotel of Irapnar. I took round on foot in the bazar
of Irapnar. Thereafter I went to the hotel of Irapnar
where Dayal Meshram and Sainu were sitting. I saw
there Dayal Meshram as sitting alone. Dayal
Meshram told me that two to three persons wearing
23
plain clothes had come there and they have taken
away Sainu. Dayal Meshram said that he was not
knowing the persons, who were in plain dress. We
sat there waiting the arrival of Sainu Usandi. We
waited there for half an hour to one hour. At that
time about 10 persons came into that hotel in plain
clothes. About 5 to 6 persons were seen outside that
hotel. Those five to six persons called us and asked
us as to what is our names and place of residence. Dayal
Meshram said that he is a contractor and he has
come from Etapalli. Those persons asked me as to
whether I am Durge of Kasansur. I replied in
affirmative. Those persons told Dayal Meshram
that he was telling lie. Dayal Meshram again said
that he is a contractor. Those persons were annoyed.
Those persons told Dayal Meshram that he belonged
to CID and that he was telling lie. Thereafter the
persons who were in the hotel gave push to me and
Dayal Meshram. At that time one of the persons out
of the persons who were in plain dress in the hotel,
dealt a blow with a stick on the head of Dayal
Meshram. Therefore Dayal sustained injury on his
head and the blood was oozing through that injury.
Thereafter two persons held one hand of Dayal
Meshram and other two persons held another hand
of Dayal Meshram. One person caught hold my
one hand and another person caught hold my
another hand. Thereafter 15 to 20 persons took
both of us towards northern side of the hotel in a
forest area upto the distance of 100 ft. to 200 ft.
At that place we saw Sainu as sitting below a tree.
His both hands were seen as tied behind his back.
24
4 to 5 persons were found near by him.
Sainu Usandi after seeing us there, wept
very much. Hands of myself and those of Dayal
Meshram were tied by towel behind our back. At
that time I was wearing Jean pant and shirt. At
that time there were plain clothes of thin lining
on the person of Sainu. Dayal Meshram was wearing
plain shirt and full pant at that time. There was a
river by name Bande at a distance of 2 to 2 ½ Kms.
From that place, half of 15 to 20 persons went
away into the forest area and remaining 7 to
8 persons took me and Dayal Meshram and Sainu
Usandi at the back of Bandi river. They caused
us to sit there for half an hour. Those half of the
persons who had gone into the forest area came
near us after wearing clothes of dark green colour.
Bag and rifles were with them. They were also
holding Muzzle loader (Bharmar) and 12 bore.
We had reached at the river at about 3 to 3.30 p.m.
We halted there for one to one and half hour. Those
persons checked we all. Those persons assaulted
we three persons by means of wooden handle (butt)
of gun. Water was flowing through that river to its
full extent. There was rivulet (nala) by the side of
that river. Those persons took us through that
rivulet ahead.
I can identify today by face the persons who
had caughthold me, Sainu Usandi and Dayal Meshram
and had taken us into the forest area. In all 9 accused
are present today before the Court. They are sitting
25
in one row in the box meant for accused. I can
identify them after going near them. (The witness
after going near all the accused persons, identified
seven accused persons out of nine accused persons.
Those seven accused persons to whom the witness
identified are caused to stand up and they stood up).
I have now identified in all seven accused before the
Court. I can give only the names of three accused
persons out of those accused persons. The names
of those 3 accused persons are Buddhu,
Bandu and Pandu. I can not give the
names of remaining four accused persons
to whom I have identified. The seven accused to
whom I have identified today are the same persons
who had caught hold me, Sainu Usandi and Dayal
Meshram and taken away us. (The remaining four
accused persons to whom the witness identified
but whose names are not given by the witness are
Khedu @ Chandu Ghosu Naroti, Sadhu, Mahadu
Hichami, Madi Lalsu Lakami and Sanku Dama Potavi).
The other persons who were with the said seven
accused persons are not present before the Court.
We three persons were taken away by those
persons beyond the rivulet inside the forest area.
We were kept by them in the forest area for the
whole night. Those persons served food to us. Some
men and women of the village had brought that
food. Those persons after serving food to us took
us upto the distance of 2 km. on foot in the forest
area. They kept us for the whole night at that place
in the forest.
26
On the following morning accused Buddhu,
accused Bichanga, wife of accused Bichanga and
one another woman brought food for we three
persons. I, Dayal Meshram and Sainu Usandi
together ate that food. Thereafter at about 9 a.m.
accused Pandu and accused Tirka Velda came
there. Accused Pandu had left the forest in the
morning and he came back there at 9 a.m.
Thereafter the seven accused persons to whom I
have identified today and other seven to eight
accused persons took me, Sainu Usandi and Dayal
Meshram ahead in forest area upto distance of 5
to 6 Kilometer. At that place there was the area
hillock. Out of the accused persons who had taken
us to that place, some were holding guns called
Bharmar (muzzle loading), some were holding .12
bore guns and some were holding sticks and some
were not holding any arms. Accused Rushi Pati Hedo
was holding .12 bore gun, accused Mansai Rati
Usandi was holding .12 bore gun. I do not know
the names of accused, who were holding guns namely
Bharmar.
After we passed the distance of 5 to 6 Km.,
those persons caused us to remove clothes from
we three persons. They tied hands of we three
persons behind our back. They told us to leave
the employment in police department. They asked
us as to who is the informant. They asked us as to
who caught hold Buddhu Atla and who assaulted
him. They threatened us by saying that we should
27
tell the truth, otherwise they would kill our parents.
After making that enquiry, those persons assaulted
us severely by means of sticks. Those persons
then untied our hands and gave us our clothes for
wearing them. We wore our shirts. Those persons
then took us ahead in the forest area. At that place
there was a big stone and it was an open place. We
three persons and the persons who brought us there,
as such all slept over that stone. We all during that
night had eaten food at the same place.
On the next day i.e. on 21.7.1992 at 9 a.m.
those persons spoke to each other that we three
persons should be taken to Dalam. Those persons
then separated from me, Dayal Meshram and Sainu
Usandi. Those persons asked me as to whether any
person belonging to other Dalam is of my acquaintance.
They then told me that they would take me to
Bhupati, a leader of one Dalam. Thereafter the
accused Mansai Usandi, Pandu Hedo and one boy
said that they would take me to Bhupati and saying
so they took away me. While going away I said that
I have to meet Dayal Meshram and Sainu Usandi.
Those persons did not allow me to meet them.
Thereafter I, Mansai Usandi, Pandu Hedo and one
boy as such four persons went ahead up to 5 to 6
kilormeter distance in the forest area. Dayal Meshram
and Sainu Usandi stayed at the same place along
with 10 to 15 persons. The two accused persons namely
Rushi Pati Hedo and Tirka Buklu Velda were
amongst those 10 to 15 persons who were with Sainu
Usandi and Dayal Meshram.
28
I was taken by three persons namely Mansai
Usandi, Pandu Hedo and one boy ahead into the
forest area. There was hut into that forest. There
somebody brought food for us. We ate there food.
Then those three persons took me to a field which
was adjoining to the forest area. There was one
hut in that field. I and those three persons slept
in that hut.
On 22.7.1992, Mansai, Pandu and one
unidentified person as such three persons took me
on foot ahead in forest area. There was one field
adjoining to that forest. There was one hut in that
field. I and those three persons slept in that hut.
On 23.7.1992 those three persons were taking me
through the forest area. We took meal in the forest
at noon time. Thereafter 3 to 4 persons met us in
the forest. We learnt from those 3 to 4 persons that
police have apprehended some persons of two
villages namely Karka and Shewari. The persons who
were with me, shifted me to the members of other
party. The persons who were with me told me to
write down two letters to my officer to the effect that
the persons who have been apprehended be set free.
Accordingly I wrote such two letters. I handed over
those letters to the persons of the village who had
come there.
The members of another party made me to
move in the forest till 27.7.1992. Those persons
brought me near the river bank at 4 to 5 p.m. Mansai
29
Usandi and his some associates met me there. Mansai
Usandi told me that ''my superior officer had come to
village Shewari and had said that I would be set free
and that those 8 persons who were apprehended
would be also set free'' and that for that purpose
Supdt. Of Police and I.G. called meeting in the
village. Thereafter Mansai Usandi and his associates
detained me in the forest. We took halt during
night in the hut of the forest.
On 28.7.1992 Mansai Usandi in the morning
went into the village. Thereafter one or two hours
Mansai Usandi brought 4 to 5 respectable persons of
the village. Those persons of village made enquiry
with me. Those persons told me that the persons
who apprehended me at Irapnar had put blame on
the people of village in that respect. Those persons
told me that the name of the persons who apprehended
me at Irapnar was Bichanga Naroti. Those persons
told me to give writing to the effect that I was not
assaulted and that the persons of the village who
were apprehended were to be set free and that
thereupon they would release me. As per their say,
I wrote such a letter. On the same day in the evening,
I was set free.
I was abducted so as to kill because I was
supplying information about naxalites and I was
causing to apprehend those Naxalites. I was called
at Etapalli when identification parade was held in
presence of Talula Magistrate. At that time I had
identified 7 to 8 persons who had apprehended me
30
and caused me to move in the forest. The accused
Khedu @ Chandu Naroti and Pandu
Irpa Hedo are the two accused out of
those persons. Separate identification parade was
taken for each of the accused.
35. The aforesaid eye witness PW-6 Tulsiram Durge in
his cross-examination deposed that after he was released, he
took treatment in hospital for 5 days and during those five days
his senior police officers were paying visit to him. In his cross-
examination he denied the suggestion of learned defence
Counsels that the accused persons who were in police custody in
other crimes were shown as accused by Kumbhar(I.O.) in his
statement and therefore on that basis he has given names of
those accused in his evidence. He denied the suggestion of the
learned defence Counsels that no identification parade was held
in his presence. He also deposed that he was admitted in
hospital on 30.7.1992 and he was discharged from hospital on
7.8.1992. He also deposed that as he was taking treatment in
hospital police did not record his statement so that he should not
feel any difficulty. He deposed that his statement was recorded
on 7.8.1992 after he was discharged from hospital. He also
deposed that his further statement was recorded on 14.10.1992.
PW-6 Tulsiram Durge in his further cross-examination by learned
defence Counsels deposed that he does not remember as to
whether accused Sadhu, Madi, Khedu, Mahu and Shishu were
present or not at the time of place of identification parade. In
his further cross-examination he also deposed that in his
statement dated 7.8.1992 and 14.10.1992 before police he did
not state the names of accused Buddhu, Bandu, Khedu. Sadhu,
Madi and Sanku as at that time he did not know those accused
31
by their names and that he learnt the name of the accused
Sadhu at the time of identification parade. He also deposed that
he learnt the name of accused Bandu after 10 to 12 days of
identification parade. In his further cross-examination he denied
the suggestion of the learned defence counsels that when he had
come to the Court earlier, police told him the names of those
accused persons.
36. The prosecution has examined PW-9 Pravin
Badkilwar, Taluka Executive Magistrate who conducted test
identification parade for identification of 15 accused persons by
the aforesaid witness PW-6 Tulsiram Durge. He was working as
Tahsildar at Etapalli in the year 1992. He deposed that he was
also vested with the powers of an Executive Magistrate. He also
deposed that the Judicial Magistrate Ist Class, Sironcha had
given him direction to hold identification parade and therefore
he conducted that identification parade on 13.10.1992 and
14.10.1992. According to his evidence, he conducted in all 15
test identification parade for each of the accused separately out
of 15 accused persons for identification by witness Tulsiram
Bhuraji Durge. He deposed that he conducted test identification
parade in Tahsil office at Etapalli and all accused were caused to
sit in one room and all witnesses were caused to sit in another
room. His further evidence is material and therefore reproduced
below.
''Two panchas were present at the place of
identification parade. Nobody belonging to police was
present at the place of identification parade. I held
identification parade in meeting hall of Tahsil office.
32
Initially I and both the panchas were present in that
hall. I sent one panch and called in that meeting hall
one of the accused. Thereafter as per my instruction
one of the employee of my office called six persons
who were of the age group and height of the accused
No.1, in the meeting hall. I caused those six persons
to stand in one row. I asked accused no.1 to stand
up amongst those six persons. Thereafter said accused
stood in between the said persons. Then I called
through one panch, a witness namely Tulsiram Bhuraji
Durge. The said witness identified the accused
after touching him by hand. The said accused
gave his own name as Buddhu Gota. The said witness
said that the said was present at the place of
separation in Pendulwahi forest on 21.7.1992. I
prepared a memorandum about identification of
accused by the witness. I also prepared a chart
along with it. I am now shown one memorandum.
It bears my signature. It also bears signatures of
both panchas. Its contents are correct. It is at
Ex.209. The chart which is attached to that
memorandum also bears my signature.''
''As per the above procedure, I called each of
the accused one after another through the panch
33
witnesses and I also called each time six persons
of age group and height of said accused and thereafter
I asked the witness to identify the accused each time.
The witness identified each of accused. As per said
procedure the aforesaid witness identified all those 15
accused persons. I prepared memorandum and
chart each time about identification of each of the
accused by the aforesaid witness each time. All the
15 accused were identified by only one witness. I
prepared in all 15 memorandums along with chart.
The 15 memorandums along with chart which are
are now shown to me are the same. All those
memorandums and chart bear my signature. The
contents of all them are correct. Those memorandums
which are annexed with chart are at Ex.209 to 223.''
37. In his cross-examination the said witness PW-9)
deposed that he had no idea about appearance of the accused till
the date of identification parade and that he does not know at
whose instance the witness had come to the place of
identification parade. He further deposed that he completed the
proceeding of test identification parade relating to each and
every accused within five minutes. He also deposed that
employee of his office at one time had called all the persons
having appearance like that of the accused and caused them to
sit in Tahsil office. He in his cross-examination deposed that
34
there were in all 4 to 5 rooms in the building of that Tahsil office
and there was one room out of them, which was used as his
chamber and that there was one meeting hall and other three
other rooms for the staff in that building. He further deposed
that staff members were sitting in the meeting hall. The meeting
hall was of the size of 40 ft. x 30 ft. He denied the suggestion of
the learned defence counsels that he did not conduct the test
identification parade in Tahsil office and that false documents
were prepared by him.
38. It is seen from the aforesaid memorandums prepared
by PW-8 Pravin Badkilwar which at Exs.209 to 223 about test
identification parade that the aforesaid witness Tulsiram
Bhuraji Durge (PW-6) has identified in all 15 accused persons
and out of them the accused who are present and facing the trial
are accused No.1 Buddhu Bitlu Gota, No.2 Sanku Dama Potavi,
No.3 Mora Manku Potavi, No.4 Khedu @ Chandu Ghosu Naroti
and No.5 Pandu Irapa Hedo. However before this Court during
evidence PW-6 Tulsiram Bhuraji Durge has identified the
accused No.1 Buddhu Bitlu Gota, No.2 Sanku Dama Potavi, No.4
Khedu @ Chandu Ghosu Naroti, No.5 Pandu Irapa Hedo, No.6
Sadhu Mahadu Hichami, No.8 Madi Laltu Lakami and No.10
Bandu Pandu Gota, out of ten accused persons who are present
and facing trial before this Court. Thus the said PW-6 Tulsiram
Durge has not identified the accused No.7 Mahu Moda Halami
and No.3 Mora Manku Potavi and No.9 Shushu Maharu Naroti
before this Court. No test identification parade was held in
respect of the identification of the accused No.9 Shishu Maharu
Naroti. Therefore for want of identification accused No.9 Shishu
Maharu Naroti is entitled to get the benefit of doubt and like-
35
wise accused No.3 Mora Manku Potavi and accused No.7 Mahu
Moda Halami are also entitled to get the benefit of doubt.
Though the accused No.3 Mora Potavi was identified during test
identification parade, he was not identified before the court by
PW-6 Tulsiram Durge.
39. Mr.Gadling, the learned defence counsel has relied
upon the observations made in the case of Rakesh Harilal
Kahar..Vs.. State of Maharashtra (2006 ALL MR (Cri)3062
by the Hon'ble Bombay Court. The following observations are
made in it.
''It is obligatory for Special Executive Executive Officer to ask the witness as to whether he had opportunity to see the suspect or his photograph prior to the parade. That is the requirement stipulated in the High Court Criminal Manual and it is mandatory to be observed. On this reasoning,the test identification parade conducted in the present case will have to be discarded.''
In the instant case the evidence of Taluka Executive
Magistrate PW-8 Pravin Badkilwar is silent as to whether he had
asked the sole witness PW-6 Tulsiram Durge that he had
opportunity to see the suspect or their photographs prior to the
parade. The memorandums Ex.209 to 223 prepared about the
said identification parade are also silent as regards the aforesaid
query. Therefore it cannot be presumed that such query is made
by the said Taluka Executive Magistrate to the witness Tulsiram
Durge. Therefore applying the aforesaid case law to the present
case, the test identification parade will have to be discarded.
36
40. The test identification parade about each of the
accused was conducted within 5 to 10 minutes, however on that
sole ground the said test identification parade cannot be
discarded. Moreover dummies who were called to stand with
the accused at the time of identification parade were unknown
persons. They were called by the employee of Tahsil office
where PW-8 Pravin Badkilwar was working. It is not known from
where those dummies were called. On this ground also the test
identification parade is liable to be discarded.
41. In the instant case also admittedly the deceased
Dayal Meshram and Sainu Usandi along with PW-6 Tulsiram
Durge were abducted by the group of 22 or more persons from
the hotel of Irapnar and that subsequently the dead bodies of
deceased Dayal Meshram and Sainu Usandi were recovered and
as observed above met with homicidal death. The PW-6
Tulsiram Durge in his aforesaid evidence has deposed as noted
above that out of nine accused persons present before the court
in all seven accused were those who had caught hold him, Sainu
usandi and Dayal Meshram and then taken away them. He had
given the names of three accused Buddhu, Bandu and Pandu out
of seven accused persons and he did not know the names of
remaining four accused persons whose names are found as
Khedu @Chandu Ghosu Naroti, Sadhu Mahadu Hichami, Madi
Lalsu Lakami and Sanku Dama Potavi. The aforesaid seven
accused are arrayed in the present judgment as accused
Nos.1,2,4,5,6,8 and 10. I have found that the test identification
parade is to be discarded for the reasons given above. Now the
question as to whether the sole testimony of PW-6 Tulsiram
Durge as regards identification of the seven accused before this
Court is sufficient and reliable. In this context useful reference
37
may be made to the observations made by the Hon'ble Supreme
Court in the case of State of Haryana ..Vs.. Dayalsingh and
others (AIR 2001 Supreme Court 1188).
'' In that case there was delay in holding test identification parade. Their evidence and cross-examination showed that they gained enduring impress of identity of accused during incident. There was delay in trial. The said two injured eye witnesses had identified the accused before the Court after seven or eight years. The Hon'ble Supreme Court held that it would not affect the evidence of said witness.The Hon'ble Supreme Court further held that no interference is called for any conviction of accused on the basis of their testimony and that the fact Tehsildar who conducted parade and Police Officer who recorded confessional statement of accused failed to identify the accused in the Court would not be material.
The following observations are also made in the said
case by the Hon'ble Supreme Court.
''The purpose of test identification is to have corroboration to the evidence of the eye-witnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. Further, where reasons for gaining an enduring impress of the identity on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion –what is present day social environment infested by terrorism is really unimportant. In such cases, not holding of identification parade is not fatal to the prosecution.''
It has also been observed by the Hon'ble Supreme
38
Court in the said case that --
''The delay in trial by Designated Judge for one reason or the other and thereafter identification of the accused in the Court after seven or eight years would not affect the evidence of these two witnesses and that the incident took place in a house of M.L.A.situated in the city, at evening time between 8.00 to 8.30 p.m. (in the month of April) and not dead at night, where there may be difficulty of seeing the faces of the accused.''
The following observations are also made in the said case.
''In the instant case it is true that the two injured eye-witnesses have lost their son,daughter-in-law and son of brother in-law and that it was extraordinary experience for them to be assaulted by terrorists. But, it would be difficult to hold that at that time,they had lost their power or perception.Theoretically in some cases the emotional balance of the victim or eye-witness is so disturbed by his extraordinary experience that his powers of perception become distorted and his identification is untrustworthyit may be true that for that purpose, the evidence of the witness is required to be appreciated with extra care and caution. But,where evidence is cogent, consistent and without any motive, it is no use to imagine and magnify theoretical possibilities with regard to the state of mind of the witnesses and with regard to their power of memorizing the identity of the assailants. Power of perception and memorising differs from man to man and also depends upon situation. It also depends upon capacity to recapitulate what has been seen earlier. But that would depend upon the strength or trustworthiness of the witnesses who have identified the accused in the CourtFurther the identification of the accused in the Court was out of 14 persons. That itself would lend credence to identification by the
39
said witnesses.''
In my view the aforesaid case law is applicable to the
present case. The PW-6 Tulsiram Durge witnessed the incident
as noted above directly from the date 19.7.1992 to the date
27.7.1992 during the day time. The aforesaid seven accused
identified by him before this Court were observed by him for
such a long period of 9 days. The said accused were in the
company of said witness PW-6 Tulsiram Durge for a considerable
period. They had held talk with the said witness from time to
time during that period. The said witness had taken food with
some of them from time to time. It does not appear that the said
witness had lost his emotional balance during the said lengthy
period of 9 days when he was in the company of the aforesaid
persons at different places in the forest area. He is a Police
Constable and he was working from the year 1988 in Police
Department. He had completed service of about 4 years in that
department on the date of the incident. His capacity to
recapitulate what has happened at the time of the incident
cannot be doubted under these facts and circumstances.
Moreover his identification of aforesaid seven accused before
this Court during his evidence after 15 years of the incident
cannot doubted when said accused were quite grown up at the
time of said incident and said witness (PW-6) observed their
faces during several days during period of his abduction.
42. The PW-6 Tulsiram Durge as noted above was cross-
examined by the learned defence Counsels appearing for all the
accused at length, but to my mind his testimony reproduced
above in detail is not shaken. He has given the reasons about
killing to the effect that he was supplying information about
40
naxalites and so also causing to apprehend those naxalites. He
has also given explanation about his late recording of statement
by police to the effect that he was admitted in hospital and
taking treatment and police did not record his statement so as to
avoid complications about his mental health.
It is seen from the evidence of PW-6 Tulsiram that he
was forcibly moved for a period of 9 days by accused persons
from place to place after abduction from forest area of Madhya
Pradesh State. It is further seen that said witness and aforesaid
two deceased persons were taken in forest areas of Maharashtra
State and they said two deceased persons were killed in forest of
Maharashtra State. Thus the main offence of murder took place
within the jurisdiction of Kasansur police station of Maharashtra
State. Initially F.I.R. f Crime No.93/92 Ex.276 was promptly
registered on 20.7.1992 at police station Pakhanjur of Madhya
Pradesh State and on its transfer to Kasansur police station
separate crime No.11/92 vide Ex.256 came to be registered at
Kasanpur police station on 1.8.1992.
43. The prosecution has also relied upon the evidence
regarding discovery made by these respective accused relating
to the incriminating articles. However the panch witnesses PW-
1 Sainath Ramchandra Surganiwar (Ex.160), PW-2 Raijee
Manglu Madavi (Ex.161), PW-3 Bandu Pandharu Korami
(Ex.167) and PW-4 Sannyasi Kazu Istam (Ex.180) have not
supported the prosecution case as regards discovery made by
the accused persons regarding incriminating articles. The PW-1
Sainath denied that in his presence police seized one gun, 10
cartridges 2 crude bombs as discovered by accused Mansai
Usandi.. He also denied that in his presence police seized one 12
bore gun as discovered by accused Ramji. He also denied that
41
accused Pandu discovered one muzzle loading gun from his field
and it was seized by police in his presence. He also denied that
in his presence police seized clothes of two deceased persons.
44. The PW-2 Raijee in his evidence denied that the
accused Mansai discovered one bag containing 10 cartridges,
one hand-grenade, one crude bomb and identity card of one
police constable Tulsiram and that police seized those articles.
45. PW-3 Bandu in his evidence denied that accused
Buddhu discovered the dead body of deceased Dayal Meshram
which was buried under stones in forest area. He admitted his
signature appearing on the panchnama Ex.168 about seizure of
that dead body. He simply admitted that the said dead body was
found in the forest and its inquest panchnama Ex.169 was
prepared and that said dead body was of Dayal Meshram. He
(PW-3) admitted in his evidence that dead body of a boy was
discovered as shown by absconding accused Lingu Karya Gota
and it was seized as per panchnama Ex.170. He proved the
inquest panchnama at Ex.172 which was prepared relating to
the dead bodey of that boy namely Sainu Usandi. He therefore
deposed nothing against the aforesaid accused persons who are
facing trial before this Court.
46. The PW-4 Sannyasi in his evidence denied that at the
instance of absconding accused Rushi Chenka Hedo police
discovered a gun which was seized in his presence.
47. The aforesaid four witnesses were declared hostile
by the learned Public Prosecutor and after permission was
granted for cross-examination, they were also cross-examined by
42
the learned Public Prosecutor. However in their evidence
nothing has come on record against the aforesaid ten accused
persons who are facing trial. Therefore their evidence as against
the accused persons are of no consequence.
48. The PW-7 Chandu Antu Atram has also not supported
the prosecution case and he was declared hostile by the learned
Public Prosecutor and was also cross-examined by the learned
Public Prosecutor after permission was granted by this Court.
He denied that the accused No.10 Banu Pandu Gota had handed
over one bundle for preserving in the house and keeping it
buried under the earth and that therefore he dug a pit and kept
that bundle in that pit and put soil on it. He deposed in his
further evidence that his father produced a bundle when Head
constable came there. He also deposed that his father has died.
Therefore the evidence of PW-7 Chandu Atram is of no
consequence.
Therefore the evidence of the aforesaid five
witnesses (PW-1 to PW-4 and PW-7) is of no assistance to the
prosecution to establish the nexus in between the accused
persons and the homicidal death of deceased Dayal Meshram
and Sainu Usandi.
49. It is further seen that the prosecution has examined
three superior police officers namely PW-9 Ravindra
Mahadeorao Kedari (Ex.232), PW-10 Shantaram Dhondiram
Waghmare (Ex.239) and PW-11 Subodhkumar Shivshankar
Jaiswal (Ex.250) to prove the confessional statements made by
four accused persons. However the learned defence Counsels
have challenged those confessional statements on the ground
that they are not made voluntarily and proper sanction was not
43
obtained for applying the provisions of TADA Act and filing
charge-sheet before the Court under TADA Act against the
accused persons. They thus submitted that those confessions
cannot be taken into consideration so as to convict the accused
persons. They have relied upon the observations made in the
following cases.
1) State of Rajasthan ..Vs.. Mahendra Singh and others
(1995 Cri.L.J. 3640).
It has been observed in it by the Hon'ble Supreme Court that when the finding was given by the Designated Court that confessions were pre-recorded without complying with mandatory provisions of Section 15 of TADA Act are not reliable and not corroborated by independent evidence and there was no evidence showing that accused committed terrorist act and then acquittal of the accused is liable to be confirmed.
2) Shararat Hussain Abdul Rahaman ..Vs.. State of Gujarat and Another (1996) II Supreme Court Cases 62.
In that case the police officer recording confession under section 15 (2) of TADA Act r/w Rule 15(3)(b) of Rules did not give any certificate of his satisfaction or belief about the voluntariness of confessions after the same were recorded and he did not certify about his such satisfaction or belief while being examined as a witness, his confession cannot be used against the accused persons.
3) Bharatbhai @ Jimi Premchandbhai ..Vs.. State of State of Gujarat (2002) (10) SRJ 35).
In that case there was no memorandum as required under Rule 15 and there was no contemporaneous record to show the satisfaction of recording officer after writing of confession and that the confession was made voluntarily. Therefore the Hon'ble Supreme Court held that
44
confession statements are inadmissible and cannot made basis of upholding the conviction--Once confessional statements are excluded the conviction cannot be sustained under TADA Act.
4) State of Maharashtra ..Vs.. Siraj Ahmed Nisar Ahmed & others (2007) Vol.5 Supreme Court Cases 161).
In that case the compliance of Rule 15(3)(b) of TADA Rules was done in a mechanical manner and accused was not produced before the Chief Judicial Magistrate as required under Rule 15(5) and hence the Hon'ble Supreme Court held that trial Court did not commit any error in rejecting the confessional statement of the accused.
5) Hitendra Vishnu Thakur and others ..Vs.. State of Maharashtra (1994 Supreme Court Cases (Cri) 1087)
It has been held in it by the Hon'ble Supreme Court that the essential conditions for invoking Section 3(1) of TADA Act are (1) the criminal activity must be committed with the requisite intention or motive contemplated by Section 3(1), (ii) weapons mentioned in Section 3(1) must have been used and (iii) which has caused or is likely to result in the offences mentioned in Section 3(1) of TADA Act.
6) Babubhai Parmar ..Vs.. State of Gujarat (AIR 2007Supreme Court 420).
In that case two confessions were recorded one after another in quick succession. First succession was recorded in just 15 minutes. No legal aid provided to accused. The confessional statement was inconsistent with the prosecution case. There was no material to establish the guilt and therefore the Hon'ble Supreme Court observed that conviction cannotbe based on confession.
7) Sahib Singh .. Vs.. State of Haryana (1997(3) Crimes 114 (SC).
45
It has been observed in it that a confession has to be made voluntarily and truthful. In that case confession of appellant showed that a dead person came to appellant demanding money for job of killing deceased. The Hon'ble Supreme Court held that such a confessional statement was not truthful and was part of Hallucination and could not be acted upon.
The learned defence Counsels have relied upon the
observations made in the following case laws in support of their
submission that the offences described under TADA Act cannot
be established against the accused persons as the required
sanction for prosecution under that Act is not proved by the
prosecution.
1) Jagannath Maruti Tekade ..Vs.. State of Maharashtra(1991 Mh.L.J. 976, Bombay High Court.).
It has been held in it that sanction order must pass the requisite test of legality and that if there is no application of mind, the sanction order is vitiated. It has been further observed in it that Court will have to take the judicial notice of that fact that in the Government set-up, the orders are often times drafted out by a department and put up to an authority for signature and, therefore it would be extremely dangerous to conclude even if the sanction order is correctly or perfectly drafted, that the authority who signed it must have applied his mind in the absence of his deposing before the Court that he had in fact done so.
2) Yashwant Pingle ..Vs.. State of Maharashtra (C.B.I.)(1999 Cri.L.J. 1270, Bombay High Court).
In that case the evidence showed that investigating agency had not forwarded evidence collected to Sanctioning Authority and therefore the Hon'ble Bombay High Court held that sanction is not valid.
46
3) Koshy Jphn Mathew ..Vs.. State of Maharashtra(2008 ALL MR (Cri.) 219, Bombay Nagpur Bench).
It has been held in it that if it can be shown that sanctioning authority was unable to apply its independent mind for whatever reason order will be bad because authority was compelled to act mechanically to grant sanction. In that case the accused was 70 years old and therefore the Hon'ble High Court held that the remand of the matter for fresh sanction would not be proper.
4) Rambhai Gadhvi and Others ..Vs.. State of Gujarat(1997 (3) Crimes 154 (SC).
In that case the DGP who granted sanction had before him the copy of FIR and an application containing some skeleton facts. The sanction order showed total non-application of mind.Therefore the Hon'ble Supreme Court held that it being not result of a serious consideration,sanction could not be treated as one under Section 20A(2) of TADA Act. The Hon'ble Supreme Court held that conviction is unsustainable for want of valid sanction for prosecution under section 20A (2) of TADA Act.
The learned defence Counsels in support of their
submission submitted that permission for application of TADA
Act cannot be granted by means of wireless message as granted
in the present case. He relied upon the following case law, in
support of his said submission.
1) Judah..Vs..Shrojbashini Bose and Another, AIR Vol.32 1945 Privy Council 174.
It has been held in it that the contents of telegram are not evidence of the facts stated in it.
50. It is clear from the aforesaid case laws that when a
47
confession is made under section 15 of TADA Act and it is found
that the said confession has been made voluntarily and truthfully
then it can be exclusively relied on for conviction of the offences
under TADA Act and no corroboration is necessary in such a
case. It is also clear that confessional statement recorded under
Section 15 of TADA Act is also a substantive evidence against
the makers co-accused.
51. In the instant case the prosecution has examined the
following three police officers who recorded alleged confessional
statements. The PW-9 Ravindra Kedari, who was
Addl.Superintendent of Police,Aheri deposed that he recorded
confessional statement of accused Buddhu Bitlu Gota and
accused Pandu Irapa Hedo. He proved the confessional
statement of Buddhu at Ex.234-A and confessional statement of
Pandu at Ex.235-A. PW-10 Shantaram Dhondiram Waghmare
was working as Addl.Superintendent of Police,Aheri. He
recorded the confessional statement of accused Mahu Moda
Halami. He proved those statements at Ex.240,241 and 242. The
PW-11 Subodhkumar Jaiswal deposed that when he was working
as Superintendent of Police,Gadchiroli, he recorded confessional
statement of Sadhu Mahadu Hichami. He proved those
statements at Ex.252 and 253.
52. I have carefully gone through the aforesaid
confessional statements of the aforesaid four accused persons.
It is seen that in those confessional statements except the
accused No.7 Mahu Moda Halami, the rest of the aforesaid
threeaccused namely Buddhu Bitlu Gota, Pandu Irapa Hedo and
Sadhu Mahadu Hichami have clearly admitted about their
involvement in commission of the crime of the present case and
48
also admitted about involvement of the other co-accused in the
said crime.
The aforesaid three witnesses PW-9 Ravindra Kedari,
PW-10 Shantaram Waghmare and PW-11 Subodhkumar Jaiswal
in their respective evidence have given all the details as to how
they put several questions to the aforesaid accused persons in
order to ascertain as to whether those accused are ready to
make confession voluntarily. When they were satisfied that the
said accused desired to make confession statement to them, they
had given time of 24 hours for reflection and after 24 hours they
were again produced before them on the given dates. They also
deposed that again several questions were put to the said
accused for knowing as to whether the said accused wanted to
make voluntary confession. On their said satisfaction, they
recorded their confessions. All those questions put to the
respective accused and answers given by them to those
questions have been recorded in their respective statements.
The confession of accused Buddhu Bitlu Gota, Pandu Irapa Hedo
and Sadhu Mahadu Hichami were recorded in Hindi language.
The confession of accused Mahu Moda Halami was recorded in
Marathi language. The learned defence counsels submitted that
said accused did not know either Hindi or Marathi and they
knew only Madiya and Gondi language and therefore the
aforesaid confessions were not recorded in their own language,
they cannot be said to be voluntary. The accused have retracted
all those confessions during the trial and during their respective
statements under section 313(1)(b) of Cr.P.C. when those
confessions were put to them. They said that they are false.
53. The aforesaid confessional statements show the
49
required certificate appended to them as given by the aforesaid
three police officers who were competent to record those
confessions under section 15 of TADA Act and Rules 15 of TADA
Rules. Moreover the evidence of aforesaid three police officers
(PW-9,PW-10 and PW-11) is cogent and reliable to hold that they
observed all the mandatory provisions as provided under Section
15 of TADA Act and Rule 15 of TADA Rules while recording
those confessions
54. Moreover the contention of the learned defence
Counsels that confessions were not recorded in the language of
accused cannot be accepted because accused have not brought
any material on record to show that those confessions were
recorded in the languages which were not known to them or not
in the language which is known to them. The accused in their
respective statements under section 313(1)(b) of Cr.P.C. have
also not stated that those confessional statements were not
recorded in their own language. Therefore I find that the
contention raised by the learned defence Counsels that those
confessions are not given voluntarily cannot be accepted.
55. However it is seen that Section 21A of TADA Act has
made provisions as to when this Court can take cognizance of
the offences described under TADA Act. It reads as follows:
''Section 21A – (1) Notwithstanding anything contained in the Code, no information about commission of an offence under this Act shall be recorded by the police without prior approval of the District Superintendent of Police.
(2) No Court shall take cognizance of any offence under this Act without the previous sanction of the Inspector-General of Police,or as the case may be, the Commissioner of
50
Police.
In the instant case the prosecution has simply relied
upon the wireless messages produced at Exs.261 and 262 to
show that the permission has been granted vide Section 21A(1)
of the TADA Act. As per the said documents Ex.261 and 262, a
wireless message was issued from Superintendent of Police of
Gadchiroli for application of the provisions of TADA Act to the
Crime No.11/1992 which is registered for the offences
punishable under sections 302 and 364 of I.P.C. The said
wireless message was given to the Sub-Divisional Officer of
Etapalli. However it is seen that the Superintendent of Police
who issued that wireless message is not examined before this
Court to prove that after perusing the material collected during
investigation the said permission has been granted. The said
documents Ex.261 and 262 are proved by the investigating
officer PW-12 Chandrakant Gangaram Kumbhar during his
evidence who received the same during investigation. No
explanation is given by the prosecution as to why the original
document under which the said permission has been granted
vide Section 21A(1) of TADA Act is not produced before this
Court and the Superintendent of Police,Gadchiroli who granted
that permission is not examined. Therefore under the eyes of
law the wireless message received vide Exs.261 and 262 by
which the permission granted was conveyed cannot be said to be
legal and valid documents.
56. The another material aspect of the present case is
that the original sanction order granted under section 21A(2) of
TADA Act is not produced by the prosecution. Only its xerox
copy is produced on record at Ex.332 as obtained by Police Sub-
51
Inspector,PW-14 Vikas Dhakne (Ex.331). The said witness in his
evidence (Ex.331) deposed that as per direction given to him by
Superintendent of Police,Gadchiroli, he had gone to the office of
Director General of Police,Mumbai on 22.10.2007 and obtained
true copy of that sanction order and handed over to the Public
Prosecutor. He proved that ture copy of the sanction order at
Ex.332. The prosecution has not examined the authority who
issued sanction order. As per true copy of sanction order
(Ex.332), the said sanction order was issued by Mr.S.V.Barokar,
Director General and Inspector General of Police, Maharashtra
State,Mumbai on 18.2.1994. The prosecution has not examined
the said S.V.Barokar for the reasons best known to it. Therefore
it can be said that the said sanction order Ex.332 is not duly
proved by the prosecution.
57. There is no material to show that there was
application of mind when the aforesaid sanction order Ex.332
was issued by the aforesaid authority. The Hon'ble Bombay
High Court in the aforesaid case of Jagannath Tekade ..Vs..
State of Maharashtra (1991 Mh.L.J. 976) has observed that
when prosecution is unable to establish that the sanctioning
authority had applied its mind, the sanction order is vitiated
rendering the prosecution void ab initio. It is further observed
that Court will have to take judicial notice of the fact that in the
Government set-up, the orders are often times drafted out by a
department and put up to an authority for signature and,
therefore, it would be extremely dangerous to conclude even if
the sanction order is correctly or perfectly drafted, that the
authority who signed it must have applied its mind in the
absence of his deposing before the Court that he had in fact
done so.
52
Applying the aforesaid case law to the present case, I
hold that as the prosecution has not examined the sanctioning
authority namely S.V.Barokar, the Director General and
Inspector General of Police,Mumbai for the reasons best known
to it, the said sanction order Ex.332 cannot be relied upon and
hence the prosecution of the accused under the provisions of
TADA Act can be said to be void ab initio. Thus after considering
the material placed before me and applying the case law to the
present case, I hold that for want of proper sanction under
section Section 21A (1) and (2) of TADA Act, the accused cannot
be convicted for the offences punishable under sections 3 and 4
of TADA Act.
58. In this context useful reference may be made to the
observations made by the Hon'ble Supreme Court in the case
Gurprit Singh @ Bittu ..Vs.. State of Punjab (2004
Supreme Court Cases (Cri.) 466. The following observations
are made in it.
''The confessional statement recorded during the investigation in a TADA case cannot be used for convicting the accused for offences punishable under the Penal Code, when offences against such accused under TADA have failed.''
Thus in the instant case also the offences against the
accused persons under TADA Act cannot be established and
therefore the aforesaid confessions of the four accused persons
which are proved on record by PW-9 Ravindra Kedari, PW-10
Shantaram Waghmare and PW-11 Subodhkumar Jaiswal cannot
be used for conviction of the accused for the offences under
Indian Penal Code. Therefore I hold that the said confessional
statements of the accused persons namely Buddhu Bitlu Gota,
53
Pandu Irapa Hedo , Sadhu Mahadu Hichami and Mahu Moda
Halami is of no assistance to the prosecution in the present case.
The said accused are arrayed in this judgment as accused
Nos.1,5,6 and 7 respectively.
59. The prosecution has also relied upon the oral
evidence of investigating officer PW-5 Nitaram Umare and PW-
12 Chandrakant Kumbhar to show the discovery of the
incriminating articles made by the respective accused persons.
As per the evidence of PW-5 Nitaram Umare, after the
information was received by police that Dayal Meshram, Sainu
Usandi and one police informant were abducted, their search
was launched and that accused Buddhu Gota (accused No.1 and
Lingu Gota(absconding) made confessional statements at
Kasanpur police station that they have committed murder of
Dayal Meshram and the informant and their bodies are lying in
the forest of Karrem. He also deposed that therefore he along
with Dy.S.P. Kumbhar and said accused Buddhu and Lingu and
other police staff went to the forest of Karrem where accused
Buddhu showed the place where dead body was covered under
the stones and that said dead body was taken out and he
identified it from its clothes and shoes as of Dayal Meshram, the
Intelligent Officer of Etapalli Taluka. He also deposed that
another dead body was found at some distance of that place
which was shown by absconding accused Lingu Gota.
60. The aforesaid witness PW-5 Nitaram Umare has not
prepared any panchnama but he had simply accompanied the
police party and the accused. His going with the police party
cannot be doubted when he was attached to the office of
Gadchiroli as an Asstt.Commissioner of Police, C.I.D. Intelligent
54
at the time of making of that discovery. However as he has not
signed the document about the said discovery his evidence about
said discovery at the instance of accused Buddhu Gota and
absconding accused Lingu Gota is very risky to be relied upon.
The PW-12 Chandrakant Kumbhar, investigating officer was
attached to Etapalli Sub-Division as a Sub-Divisional Police
officer. He deposed that after the crime was registered vide FIR
Ex.256 at Karrem police station, he arrested in all 15 accused
persons. He also deposed that he seized from four accused
persons,four 12 bore guns, two hand-grenades, 10 live
cartridges and identity card of abducted person namely
Tulsiram, a police constable . He also seized uniforms and cash
of Rs.40,000/-. He also deposed that 18.9.1992 accused Pandu
Irapa Hedo (accused no.5) made confessional statement before
him and two panchas as per memorandum Ex.258 and
discovered a gun from the field which was seized by him vide
seizure panchnama Ex.259.
61. The aforesaid guns, hand-grenades, cartridges and
identity card were not produced before the Court for
identification by said PW-12 Chandrakant Kumbhar at the time
of his evidence. Moreover except the accused Pandu Irapa Hedo,
the rest of the four accused are absconding from whom it is
alleged that the aforesaid arms and ammunitions were seized.
Therefore the aforesaid oral evidence of PW-12 Chandrakant
Kumbhar about the recovery of said arms and ammunitions is of
no consequence.
62. The evidence of PW-12 Chandrakant Kumbhar about
recovery of guns on information given by accused Pandu Irapa
Hedo is also not supported by production of said guns before this
55
Court. Moreover his said evidence is also not supported by
panch witnesses. Hence his said evidence is not sufficient to
hold that accused Pandu Irapa Hedo discovered any such gun.
63. P.W.12 Chandrakant Kumbhar also deposed that he
seized the clothes of the deceased Dayal Meshram and Sainu
Usandi as per panchnama Ex.260 at Kasansur police station .
The said seizure is not disputed by the accused persons.
64. The PW-12 Chandrakant Kumbhar also took steps for
holding identification parade of 15 accused persons and for that
he had obtained permission from the Court of Judicial
Magistrate Ist Class, Sironcha on 9.10.1992 as per order Ex.263.
I have found above that the said identification parade is to be
discarded for the reasons given above.
65. The learned Public Prosecutor has relied upon the
observations made in the following case.
1) Ramesh Vithalrao Thakre and another ...Vs.. State
of Maharashtra (AIR 1995 Supreme Court 1453).
In that case the Hon'ble Supreme Court observed that mere fact that Pws.3,6,8 and 10who are the panch witnesses and witnesses to the alleged disclosure statements, turned hostile, would not in any way affect the credibility of PW-1 and PW-2 or detract from their reliability.
In the instant case the evidence of PW-12
Chandrakant Kumbhar is not supported by the production of the
seized articles and therefore his evidence is not found
acceptable in that respect. Therefore the aforesaid case law is
not applicable to the present case.
56
66. The learned Public prosecutor has also relied upon
the following observations made by the Hon'ble Supreme Court
in the case Aher Raja Khima..Vs.. State of Sdaurashtra(AIR
1956 S.C. 217).
In that case it has been held that confession cannot be used against the accused personunless the court is satisfied that it was voluntary and while the Court is considering this question, the question whether it is trueor false does not arise.
The aforesaid case law is not applicable to the
present case as I have found that the prosecution has not proved
the issuance of valid sanction for application of TADA Act and
filing of charge-sheet under TADA Act before this Court.
The learned Public Prosecutor has also relied upon
the observations in the case Ramji Duda Makwana ..Vs.. The
State of Maharashtra (1994 Cri.L.J. 1987, Bombay High
Court).
In that case it was found that panch witnesses gave false evidence. Therefore the Hon'ble Bombay High Court held that trial Courts should take appropriate action including prosecution for perjury and action should also be taken against accused and other persons who have indulged in or abetted such corrupt practice.
In the instant case it is seen that the seized property
was not produced before the court about recovery in presence of
panchas and hence the recovery of said property in presence of
panchas is not believed and hence the said case law is not
applicable to the present case.
67. The learned defence Counsels have also relied upon
57
the observations made in the following cases.
1) Jasbir Singh ..Vs.. State of Punjab (AIR 1988 Supreme Court 1660).
In that case the property after seizure was not sealed and the identity of the weapons and cartridges seized was not established by the prosecution before the Court and therefore conviction was set aside.
2) Sahib Singh ..Vs.. State of Punjab (1996) II Supreme Court Cases 685.
In that case there was failure of the prosecution to join independent witnesses of locality who were available about recovery of revolver and six live cartridges. It has been held in it that absence of evidence to indicate with whom the revolver was after its seizure till it was sent to the Arms Expert, accused is entitled to the benefit of doubt.
3) Khudeswar Dutta ..Vs.. State of Assam (1998) 4 Supreme Court Cases 492).
It has been observed by the Hon'ble Supreme Court that mere knowledge of the accused that incriminating articles were kept at certain place does not amount to conscious possession.
In the instant case also the recovery of guns and
other arms and ammunitions has not been proved by the
prosecution as noted above by adducing cogent evidence.
The Hon'ble Supreme Court in the case of Sucha
Singh ..Vs.. State of Punjab (2001 (2) Crimes 69 (SC) has
made the following observations.
''We have seriously bestowed our consideration to the arguments addressed by the learned senior counsel. We only reiterate the legal principle adumbrated in State of West
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Bengal ..V.. Mir Mohammad Omar, 2000(8)SCC 382 that when more persons than one have abducted the victim, who was latter murdered, it is within the legal province of the court to justifiably draw a presumption depending on the factual situation, that all the abductors are responsible for the murder.Section 34 of the IPC could be invoked for theaid to that end, unless any particular abductor satisfies the Court with his explanation as to what else he did with the victim subsequently,i.e. whether he left his associates en-route or whether he dissuaded others from doing the extreme act etc. etc.''
68. In my view the aforesaid case law is fully applicable
to the present case. In the instant case I have found that the
oral evidence of Tulsiram Durge an eye witness is sufficient,
natural, cogent and probable to hold that the accused persons
namely Buddhu Bitlue Gota (No.1), accused Sanku Dama Potavi
(accusedNo.2), Khedu @ Chandu Ghosu Naroti (accused No.4),
accused Pandu Irapa Hedo (No.5), accused Sadhu Mahadu
Hichami (No.6), accused Madi Laltu Lakami (No.8) and accused
Bandu Pandu Gota (No.10) had abducted the said witness
Gulsiram Durge, the deceased Dayal Meshram and Sainu Usandi
on 19.7.1992 and taken them into deep forest area from place to
place and that other accused had also assisted them who are
now absconding after said abduction. Moreover theory of ''last
seen'' is also applicable to the present case as said seven
accused were lastly seen in company of said deceased two
persons.
69. The dead bodies of the aforesaid two persons namely
Dasyal Meshram and Sainu Usandi have been recovered after
the said witness Tulsiram Durge was released from the forest
area by the aforesaid accused persons. I have found that both
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the said persons have met with homicidal death as discussed
above. Therefore from the above discussed facts and
circumstances a presumption can be drawn justifiably that all
the aforesaid abductors (accused) are responsible for the murder
of those two persons namely Dayal Meshram and Sainu Usandi.
The accused persons have not explained before this Court as to
whether they had left the association of other accused persons
en-route or they had dissuaded others from doing the extreme
act i.e. committing murder of those two persons namely Dayal
Meshram and Sasinu Usandi. Therefore I hold that the said
accused persons are to be convicted for the offences punishable
under sections 302 r/w 149 of Indian Penal Code. The aforesaid
accused Nos.1,2,4,5,6,8 and 10 namely Buddhu Bitlu Gota,
Sasnku Dama Potavi, Khedu @Chandu Ghosu Naroti, Pandu
Irapa Hedo, Sadhu Mahadu Hichami, Madi Laltu Lakami and
Bandu Pandu Gota are also required to be convicted for the
offences punishable under sections 364 r/w 149 of I.P.C. as the
prosecution has proved from the aforesaid evidence that the
said accused persons had abducted the witness Tulsiram Durge
with intent to commit his murder.
70. The accused are also charged for the offences
punishable under section 3 r/w 25 of Arms Act. However the
prosecution has not obtained previous sanction of the District
Magistrate as provided under section 39 of Arms Act. It provides
that no prosecution shall be instituted against any person in
respect of the offence under section 3 of the said Act without
previous sanction of the District Magistrate. Thus I hold that as
in the instant case when no such previous sanction is obtained
the accused cannot be convicted for the offence punishable
under section 3 r/w 25 of Arms Act.
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71. Moreover it is also proved from the aforesaid
prosecution evidence that the aforesaid seven accused were
armed with deadly weapons namely guns and that at that time
they had formed unlawful assembly with the object of
committing abduction of the eye witness Tulsiram Durge,
deceased Dayal Meshram and Sainu Usandi and to commit their
murder and that in furtherance of their said common object they
with the help of other absconding accused abducted the said
persons and at that time they were armed with deadly weapons
namely guns and that they subsequently in prosecution of the
aforesaid common object intentionally caused the death of said
two deceased persons namely Dayal Meshram and Sasinu
Usandi by cutting their necks. Therefore I hold that the
prosecution has proved beyond reasonable doubt the offences
punishable under sections 148, 364 r/w 149 and 302 r/w 149 of
IPC against the accused No.1 Buddhu Bitlu Gota, accused No.2
Sanku Dama Potavi, accused No.4 Khedu @ Chandu Ghosu
Naroti, accused No.5 Pandu Irapa Hedo, accused No.6 Sadhu
Mahadu Hichami, accused No.8 Madi Laltu Lakami and accused
No.10 Bandu Pandu Gota. In the result, the aforesaid point
Nos.3 to 9 are decided accordingly. I also hold that the
prosecution has failed to prove beyond reasonable doubt any of
the offence against the accused No.3 Mora Manku Potavi,
accused No.7 mahu Moda Halami and accused No.9 Shishu
Maharu Naroti and therefore they are entitled to the benefit of
doubt and they deserve to be acquitted. I also hold that all the
accused deserve to be acquitted for the offences punishable
under sections 3 and 4 of TADA Act and Section 3 r/w 25 of Arms
Act for the reasons given above.
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72. In the result of the aforesaid findings, I proceed to
hear the aforesaid seven accused persons who are found guilty
for the aforesaid offences. I have now heard the accused No.1
Buddhu Bitlu Gota on the point of sentence in person. He
submitted that he has got 3 minor sons and a wife who are
depending on his income and hence lenient view may be taken. I
have heard the accused No.2 Sanku Dama Potavi in person. He
submitted that he has got 2 daughters, 2 sons and a wife and all
of them are depending on him and hence lenient may be taken.
I have heard the accused No.4 Khedu @ Chandu Ghosu Naroti.
He submitted that he has got 2 sons, 1 daughter and a wife. All
of them are depending on him and hence lenient view may be
taken. I have heard accused No.5 Pandu Irapa Hedo. He has
submitted that he has got 3 daughters, 1 son and a wife and all
of them are depending on him and hence lenient view may be
taken. I have heard the accused No.6 Sadhu Mahadu Hichami.
He submitted that he has got 2 sons, 2 daughters and a wife and
all of them are depending on him and hence lenient may be
taken. I have heard the accused No.8 Madi Laltu Lakami in
person. He submitted that he has got one daughter and a wife
and hence lenient view may be taken. I have heard the accused
No.10 Bandu Pandu Gota in person. He submitted that he has
got one son, one daughter and a wife and all of them are
depending on him and hence lenient view may be taken.
73. I have also heard Mr.Anthony, the learned Advocate
appearing for accused Buddhu Gota, Sanku Potavi, Khedu
Ghosu Naroti, Pandu Hedo, Sadhu Hichami and Madi Lakami on
the point of sentence. Mr.Anthony submitted that more than 17
years have been passed since the date of incident and all the
said accused are poor villagers and Adivasis and there are no
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prior conviction recorded against them till this date. He further
submitted that the accused persons have already undergone in
jail for sufficient long time in this case and also another
connected cases and from last 17 years they are attending
Courts. He thus submitted that lenient view may be taken.
74. I have heard Mr.Gadling, the learned Advocate
appearing for accused No.10 Bandu Pandu Gota on the point of
sentence. He submitted that lenient view may be taken in view
of the aforesaid submission made by Mr.Anthony Advocate
which is applicable to the case of his accused.
75. I have heard Mr.P.K.Sathainathan, the learned Public
Prosecutor. He submitted that this is the most brutal form of
murder with pre-meditation and of a police officer on duty and a
police informant. He thus submitted that the intention was to
create terror in the society and the capital sentence should be
awarded in this case. He further submitted that this is the rarest
of the rare case for awarding capital sentence as the murder has
been committed to settle issues with the established
Government.
76. I have thus heard the aforesaid seven accused in
person, their respective Advocates and the learned Public
Prosecutor. All the accused are poor and they are coming from
remote villages and the incident took place in the year 1992.
The accused are attending the courts from long time. I have
considered all the facts and circumstances under which the
aforesaid offences are committed by the accused persons. In my
considered view this is not the rarest and rare case for awarding
capital sentence. Therefore I am not inclined to award capital
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sentence for the offences punishable under sections 302 r/w 149.
In my view minimum sentence which is provided under section
302 of IPC is to be awarded i.e. life imprisonment and fine of
Rs.1000/-. I also hold that for the offence punishable under
section 364 r/w 149 of IPC, rigorous imprisonment for a period
of 7 years and fine of Rs.1000/- each is to be imposed. I also
hold that for the offence punishable under section 148 of IPC,
rigorous imprisonment for one year and fine of Rs.1000/- is to be
awarded. Hence I proceed to pass the following order.
ORDER
1. The accused No.1 Buddhu Bitlu Gota, accused No.2
Sanku Dama Potavi, accused No.4 Khedu @ Chandu Ghosu
Naroti, accused No.5 Pandu Irapa Hedo, accused No.6 Sadhu
Mahadu Hichami, accused No.8 Madi Laltu Lakami and accused
No.10 Bandu Pandu Gota are hereby convicted for the offences
punishable under sections 302 r/w 149, Section 364 r/w 149,
Section 148 of Indian Penal Code. They are sentenced to suffer
rigorous imprisonment for life and to pay fine of Rs.1000/- each
and in default of payment of fine to suffer rigorous imprisonment
for 6 months for the offence punishable under section 302 r/w
149 of Indian Penal Code. They are further sentenced to suffer
rigorous imprisonment for period of 7 years and to pay a fine of
Rs.1000/- each and in default of payment of fine to suffer
rigorous imprisonment for 6 months for the offence punishable
under section 364 r/w149 of Indian Penal Code. They are
further sentenced to suffer rigorous imprisonment for one year
and to pay a fine of Rs.1000/- each and in default of payment of
fine to suffer rigorous imprisonment for 6 months for the
offence punishable under section 148 of Indian Penal Code.
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2. The substantive sentences awarded in this case shall
run concurrently. The accused No.1 Buddhu Bitlu Gota was in
jail from 31.7.1992 to 28.6.1994 and 30.11.2006 to till this date
i.e. 8.2.2008. The accused No.2 Sanku Dama Potavi was in jail
from 7.8.1992 to 8.3.1994 and from 15.12.2007 to till this date
i.e. 8.2.2008. The accused No.4 Khedu @ Chandu Ghosu Naroti
was in jail from 11.8.1992 to 22.9.1994 and from 15.12.2007 to
till this date i.e. 8.2.2008. The accused No.5 Pandu Irapa Hedo
was in jail from 18.9.1992 to 27.9.1995 and from 15.12.2007 to
till this date i.e. 8.2.2008. The accused No.6 Sadhu Mahadu
Hichami was in jail from 19.10.1993 to 10,4,1997. The accused
No.8 Madi Laltu Lakami was in jail from 28.2.1994 to 27.3.1997.
The accused No.10 Bandu Pandu Gota is in jail from 20.2.1997
to till this date i.e. 8.2.2008. The aforesaid period of detention
undergone by the aforesaid accused in jail during the pendency
of this case shall be set off from the substantive sentences
awarded against them. in this case.
3. The prosecution is at liberty to file separate charge-
sheet against the absconding accused whenever they are found
and arrested in the present crime. The seized property will be
required if the separate case is filed against the absconding
accused and therefore the seized property shall be returned to
the concerned police station Kasansur after the appeal period is
over and if the appeal is preferred against the judgment of
conviction and sentence then the disposal of the seized property
shall abide decision in the said appeal.
4. The aforesaid accused Nos.1 to 10 are hereby
acquitted of the offences punishable under sections 3 and 4 of
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the Terrorist and Disruptive Activities (Prevention)Act,1987 and
under Section 3 r/w 25 of Arms Act. The accused No.3 Mora
Manku Potavi, accused No.7 Mahu Moda Halami and accused
No.9 Shishu Maharu Naroti are hereby acquitted of the offences
punishable under sections 302 r/w 149, Section 364 r/w 149 and
Section 148 of Indian Penal Code. Their bail bonds are
cancelled.
5. Accused No.6 Sadhu Mahadu Hichami and accused
No.8 Madi Laltu Lakami who are presently on bail shall
surrender to their bail bonds.
Dt. 8.2.2008 (B.A.Shaikh) Judge,Spl.Court,designated under TADA Act, Nagpur.