Simon And Others v. State Of Karnataka .

Judgment

1. The Designated Court, Mysore, under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short “the TADA Act”), trying Special Cases Nos. 44 of 1994, 11 of 1997 and 3 of 1998, convicted and sentenced the appellants in terms of the impugned judgment and order dated 29-9-2001. These appeals have been filed under Section 19 of the TADA Act by the five appellants.

2. Appellant 1 Simon was Accused 10 (A-10), Appellant 2 Kaliappa was Accused 25 (A-25), Appellant 3 Bilavendra was Accused 27 (A-27), Appellant 4 Shekara was Accused 34 (A-34) and Appellant 5 Rama @ Ravana was Accused 79 (A-79) in the cases before the Special Judge of the Designated Court at Mysore.

3. Accused 10, 25 and 27 have been convicted for offence under Sections 3, 4 and 5 of the TADA Act, under Sections 120-B, 148, 143, 307, 149 and 302 IPC and also under Section 25 of the Arms Act. On each of them, life imprisonment has been imposed. Accused 34 has been convicted for offence under Sections 143, 120-B, 302, 307 and 149 IPC and also under Section 25 of the Arms Act. He has also been ordered to undergo life imprisonment. Accused 79 has been convicted for offence under Section 5 of the TADA Act besides Section 25 of the Arms Act and rigorous imprisonment of five years has been imposed on him.

4. The case of the prosecution, in brief, is that one Kamalanaika, who was a police informer, informed Sub-Inspector Shakil Ahmed that Veerappan and his gang can be found in a particular place selling tusks. This was informed by Shakil Ahmed to Harikrishna, Superintendent of Police. Harikrishna, along with Shakil Ahmed, informant Kamalanaika and three other persons, started from Ramapura, then in Mysore district, on 14-8-1992 for the place which was intimated by the informant. The three other persons in the car were PC Nagaraju, PW 34, Safiulla, PW 35 and Vrishabendra. According to the instructions of Harikrishna, Superintendent of Police, 22 persons followed his car in a lorry. At about 1.00 p.m on 14-8-1992, on Ramapura-Dinnahalli Road, 25 km from Ramapura, the car and the lorry were attacked with bombs and firearms. The result was that seven people — three occupants of the car and four occupants of the lorry — died. The persons in the car who died were Superintendent of Police Harikrishna, PSI Shakil Ahmed and informant Kamalanaika. The four persons in the lorry who died were Benagonda, Kallappa, Appachu and Sundara. The prosecution examined various witnesses. Out of the three survivors from the car, PW 34 and PW 35 were produced as prosecution witnesses. Out of those who were in the lorry, the prosecution examined 16 witnesses including PW 31 Mandappa, PW 32 Haumanthappa and PW 33 Devendrappa. PW 32 identified Accused 10 Simon, Accused 25 Kaliappa and Accused 27 Bilavendra when they appeared in court. Simon was identified in court by both PW 31 and PW 32. Kaliappa and Bilavendra were identified by PW 31 only. Accused Shekara (A-34) and accused Rama @ Ravana (A-79) were not identified by any of the witnesses. PW 33 Devendrappa is the complainant on whose complaint the FIR was recorded on the date of the incident itself, namely, 14-8-1992 at about 5.45 p.m

5. The case was filed against 165 persons. Out of them, 76 were arrested and prosecuted. The prosecution had relied upon 59 confessions that had been recorded. The trial court, however, rejected all the confessions except one that was made by Kaliappa (A-25). The trial court, on consideration of the evidence, convicted 7 accused of which 5 are in appeal before us.

6. Mr Gonsalves, learned counsel for the appellants submits that the other two accused, namely, Accused 36 Devojinaik and Accused 115 Gulapu, have been convicted for offence punishable under Section 5 of the TADA Act and sentenced to five years' rigorous imprisonment but they had already undergone the sentence and, therefore, no appeal was preferred by the said two accused. The fact of their having already undergone the awarded sentence has been mentioned in the impugned judgment as well.

7. We have heard Mr Gonsalves, learned counsel for the appellants and Mr Siddharth Dave, learned counsel for the respondent State, and have gone through the material on record.

8. First we take the case of the appellant Shekara (A-34). The name of this accused is mentioned in the FIR dated 14-8-1992. According to the FIR, at about 12.30 p.m on 14-8-1992, as per the directions of the Superintendent of Police, Mysore district, who was one of the Heads in the Special Task Force constituted for nabbing Veerappan and his gang, the complainant boarded Lorry No. KA 10-246 in civil dress. In the said lorry, there were other police officers/officials, as named in the FIR, including PW 31 and PW 32. Harikrishna, Superintendent of Police, himself drove Car No. KA 09-966. Harikrishna asked the lorry to follow the car. The car was going ahead of the lorry. When the car and the lorry were moving on Meenyam Road at a distance of about 25 km from Ramapura, firing sound was heard when the lorry was near Boodikere Crossing which was about 1 1/2 km behind Gajanur village. On reaching near the car, it was found that the car was found parked on the right side of the road and country-made bombs were being hurled and repeated firing was being made on the car. It was also noticed that firing was coming from the direction of the left side of the hillock and from the front side of the car. The occupants in the lorry jumped down on the road side of the lorry and returned fire in the opposite direction. Country-made bombs were hurled on the lorry as well. Exchange of fire continued for about an hour from 1 p.m to 2 p.m Thereafter, PW 33 Devendrappa and other named officers went near the car and found that the Superintendent of Police and the Sub-Inspector as also other persons, as noticed hereinbefore, had died. A number of persons were injured. Meanwhile, one Bus No. TNQ 9316 “C.M.F” that came from Meenyam towards Ramapura was stopped by PW 33. The injured staff and dead bodies were put in the bus. Information of the incident was sent to the police station through wireless. Dead bodies and the injured were handed over to the police officers near Ramapura by PW 33 who returned to the spot along with the PSI and DSP of Police Station Chamarajanagar to show them the place of incident. It is also noticed that at about 1 p.m, while going towards the spot, at a sharp curve in the deep forest, Veerappan and his associates Arjunan, Mariyappa, Kolande, Shekara (A-34), Govinda, Mani and many others, more than 10 to 15 members, blocked the road by boulders for stopping the traffic and stopped the car and the lorry by forming themselves into an unlawful assembly by hurling dangerous country-made bombs over the convoy and freely using guns by opening fire. Thus A-34 Shekara, as mentioned in the FIR, was seen by PW 33 blocking the road by boulders. PW 33 has, however, not identified Shekara in court or at any other point of time. Except a mention of the name of Shekara in the FIR, no other material has been brought to our notice to connect the said accused with the crime and to sustain his conviction. He cannot be convicted merely on account of his name having been mentioned in the FIR. Further, we may notice that there appear to be two persons by the name of Shekara as is evident from the altered FIR dated 19-3-1993. One is mentioned there as Accused 7 Shekara @ Kulanoor Shekara, s/o Kandan Kulanoor and the other, the present Accused 34. Under these circumstances, the conviction and sentence of Appellant 4 i.e Shekara (A-34) cannot be maintained.

9. Next, we take up the case of Appellant 5 Rama @ Ravana (A-79). This accused has not been convicted for the offence in relation to the incident dated 14-8-1992. He has been convicted for offence under Section 5 of the TADA Act for which 5 years' rigorous imprisonment has been imposed. According to the case of the prosecution, this accused was found on 25-3-1994 in a farm land at Sulwadi village in possession of country-made gun, gunpowder and pellets. PW 101 arrested him along with another and seized a gun and gunpowder etc. The gun that was seized from A-79 was marked as MO 112. Mahazar has been marked as Exhibit P-50. According to the testimony of PW 101, he did not seize and pack the gun at the place of apprehension of the accused. He also did not check whether the gun was in a working condition. At that time, he also did not prepare any mahazar. The accused was brought from the place of apprehension which was about 13 to 14 km away to Police Station Ramapura. The description of the weapon was also not noted. In contrast, PW 23 has deposed that the gun that was seized was MO 37. PW 23, who was a mechanic in a workshop, was summoned to the police station. In the police station, PW 23 deposed that he saw the accused holding a country-made revolver and gunpowder in a plastic cover. He has further deposed that a portion near the trigger had been damaged. The mahazar, Ext. P-50, was prepared and signed by PW 23. It was further deposed that he did not find out whether MO 37 could be operated or not.

10. Then we have the testimony of the investigating officer PW 120, who has deposed that by the time panchas were procured, the gun was taken in possession by the police. He has further deposed that there were houses at a short distance from where the accused was arrested but he did not secure panchas at the time of arrest. According to this witness, the gun had been taken in possession at the time of the arrest. There is no other relevant evidence except the testimony of the aforesaid three witnesses.

11. Though Mr Dave, relying upon the Constitution Bench judgment of this Court in Sanjay Dutt v. State through CBI (II) (1994) 5 SCC 410 contends that the prosecution for securing conviction for offence under Section 5 of the TADA Act has merely to prove possession of specified arms and ammunition in a notified area and has not necessarily to prove that the same was meant to be used for terrorist or disruptive activity. The Constitution Bench has opined:

“No further nexus of his unauthorised possession of the same with any specific terrorist or disruptive activity is required to be proved by the prosecution for proving the offence under Section 5 of the TADA Act.”

The prosecution has, however, to prove by cogent evidence the possession of the specified arms and ammunition in a notified area. In the present case, a conjoint reading of the testimonies of PW 23, PW 101 and PW 120 shows that the prosecution has miserably failed to prove the possession of the gun by Accused 79. As earlier noticed, there is a confusion about the weapon, whether it was MO 37 or MO 112. There is also vital discrepancy as to the place at which the possession of the gun was taken. On the facts of the case, Appellant 5 is entitled to benefit of doubt. In this view, we set aside the conviction and sentence of Appellant 5 Rama @ Ravana (A-79).

12. We now revert to the cases of the remaining three appellants, namely, A-10, A-25 and A-27. The names of these three accused were not mentioned in the FIR that was recorded on 14-8-1992. Their names, however, were included in the altered FIR that was registered on 19-3-1993 by adding the offences under Sections 3, 4 and 5 of the TADA Act and including the names of various other accused, including the appellants. In all, 38 accused were named therein. We do not know under what rule, regulation or law, the altered FIR was registered. None was pointed out. Be that as it may, the names of these three accused find mention only in the altered FIR. Accused 10 has been identified in court by PWs 31 and 32. They have deposed to have seen him on 14-8-1992 as a member of the Veerappan gang attacking the police party. PW 31 has also deposed to have seen A-25 and A-27 in similar manner at the spot.

13. PW 31, PW 32 and PW 33 were travelling together in the lorry. The evidence also shows that in the lorry they were seated next to each other. The testimonies of these witnesses were recorded in the year 2001. The conviction of these three appellants is based mainly on the testimony of the two police personnel, PW 31 and PW 32. In the case of Kaliappa (A-25), the confession said to have been made by him immediately after the arrest on 24-4-1993 has also been relied on to convict him for the offences for which he has been charged. The said confession was recorded by PW 108. Undoubtedly, in a case of this nature, where attack of the magnitude and type, reference whereof has been made hereinabove, is afflicted on the police party, the direct evidence, if any, is likely to be of only police personnel. The presence of anyone else on the spot is unlikely in a case of this nature. All the same, the evidence has to inspire confidence. In the absence thereof, conviction cannot be sustained. Before, however, we refer to the evidence of PW 31 to PW 33 and some other witnesses, we would examine and consider the confession made by A-25.

14. The confessional statement of A-25 was recorded by PW 108. The accused was arrested on 24-4-1993 at 6.45 a.m His confession was recorded on the same date at 9 a.m The same officer, in fact, recorded as many as 90 confessional statements out of which 59 pertain to the instant case. All other confessional statements have been rejected by the trial court. The common feature of recording of confession of almost all the accused is the factum of recording their statements almost immediately after the arrest.

15. We have perused the testimony of PW 108. He has deposed that he used to give five minutes, as a matter of practice, to any accused to think over on being produced before him and, if after five minutes the accused still expressed his desire to make the confession, the officer used to proceed and record the statement. To say the least, it is a strange and wholly unwarranted procedure which the officer was adopting as a matter of practice. In such matters, there cannot and ought not to be any generalisation. How much time, if any, is required to be given to an accused to coolly think over whether he wanted to voluntarily make a confessional statement despite knowing the consequences thereof would depend upon the facts of each case and is likely to differ from one accused to another. There cannot be any general practice in such matters. The practice adopted by PW 108 was, therefore, illegal.

16. Reverting now to the confessional statement in question, the record shows that the said statement was not produced before the Magistrate on the next date when the accused was produced but it was filed on 26-4-1993.

17. Rule 15(5) of the Terrorist and Disruptive Activities (Prevention) Rules, 1987 (for short the TADA Rules) requires that every confession recorded under Section 15 of the TADA Act shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Designated Court which may take cognizance of the offence. It is also apparent that even the copy of the confessional statement was not supplied to the accused for nearly seven years. It was supplied only on 6-1-2000. The prosecution evidence in the case commenced on 25-11-1999. Before 6-1-2000, 28 prosecution witnesses had already been examined. The charge-sheet in the case was filed on 7-4-1994. The confessional statement was not filed along with the charge-sheet. We may notice the difference between the rejected confessional statements and the confessional statement in question made by A-25. In his statement, the following passage appears at the end of the confession:

“I informed Shri Kaliappa @ Watchman Kaliappa, s/o Kuppuswamy, 35 years, Nallur in Tamil that there was no necessity for him to make a statement, and that this statement can be used in evidence against him. He has given the statement voluntarily. I have heard this statement personally and recorded it in my own hand. The statement of Kaliappa contains true and definite facts.”

18. In the confessions made by other accused which have not been accepted by the trial court, the statement to the aforesaid effect is absent.

19. A-25 has made a detailed confession giving the names of various members of the gang. The confession also gives the names of many persons who supplied money, food articles and information to the Veerappan gang. Almost hundred names and a substantial number out of them with their parentage have been mentioned in the confessional statement made by A-25. Further, it appears that all through the recording of the said statement, the investigating officer, Inspector Shri Venkataswamy, was not only present but he alone could understand as to what the accused was stating in Tamil and translating it to PW 108 in Kannada language in which that statement was recorded. Likewise, in the reverse direction, it was translated from Kannada language to Tamil language by the said Inspector and read over and explained to the accused Kaliappa. This is evident from the documents itself, the relevant part whereof reads as under:

“This statement of Kaliappa @ Watchman Kaliappa, s/o Kuppuswamy, 35 years, Nallur, Padiachi Gounder, which was given in Tamil was got translated by me through Hanur Inspector Shri Venkataswamy into Kannada and after understanding it, I recorded the same. Likewise, the recorded statement was translated into Tamil through Venkataswamy and it was read over and explained to Kaliappa who admitted it to be correct and definite and I am satisfied about the statement.”

20. The present case thus shows that the maker of the confession did not know the language of the recording officer and the recording officer did not know the language known to the accused. The interpreter was the investigating officer himself. It is true that under Rule 15(1) of the TADA Rules, if it is not practicable to record the confession in the language in which such confession is made, the same can be recorded in the language used by the recording police officer for official purposes or in the language of the Designated Court. The first part of Rule 15(1) mandates the recording of the confession invariably in the language in which it is made. When it is not practicable, it can be recorded in another language as aforementioned. There may not be any illegality, per se, in the recording of the confession in Kannada language in the present case for the recording officer did not know the language known to the accused, namely, Tamil. But, all the same, when such a position is noticed, it becomes the bounden duty of the recording officer, who, in terms of Section 15 of the TADA Act, has to be a police officer not lower in rank than a Superintendent of Police, to make an attempt to arrange an independent interpreter. There is no evidence that any such attempt was made. We have a confessional statement made by an accused immediately after arrest on being given five minutes to think and thereafter recording the confession in the presence of the investigating officer who alone knows what is stated by the accused as the Superintendent of Police does not know Tamil and for that reason the statement is translated by the Inspector to his superior officer.

21. Reliance has been placed by the learned counsel for the State on the decision of this Court in the case of Gurdeep Singh v. State (Delhi Admn.) (2000) 1 SCC 498 wherein, in paragraph 23, this Court dealt with the effect of the presence of a police personnel in the room in which the confessional statement was recorded by the Superintendent of Police. That was a case of a Police Constable holding the chain of the handcuffs of the accused at the time of recording of confession. Considering the angle of security as also the angle of keeping the accused in custody and other factors noticed on the facts of that case, it was held by this Court that the presence of a constable in a room could not, in fact or in law, be construed to be such a factor so as to hold that the confessional statement was not made voluntarily. The said decision has no applicability to the facts and circumstances of the present case of the presence of the Police Inspector, investigating officer and the role played by him in the manner abovestated. It is well settled that the confession has to be voluntary and all precautions provided for in Section 15 and Rule 15 have to be strictly adhered to.

22. It is the duty of the recording officer to ensure that the confession is made voluntarily and out of free will by the accused without any pressure. Except the omnibus statement about the general practice which was being followed by PW 108, there is no evidence of any question or attempt being made by the officer to satisfy himself that the confession was being made voluntarily. This factor becomes, on the facts and circumstances of the case, very important since immediately after the arrest, the accused was produced and the person actively associated with the recording of statement was none other than the investigating officer who by nature of things is interested in the success of the prosecution case. Recording of confessional statement is not a mechanical exercise. A duty has been cast and considerable amount of confidence has been reposed in a senior officer under Section 15 of the TADA Act in giving him the duty to record the confession and making such a confession before a police officer admissible in evidence. It is also not in evidence that no person other than the Inspector concerned was available to act as an interpreter. PW 108 was aware that the accused produced before him for recording confession was arrested a few hours prior to the recording of his statement. A perusal of the testimony of PW 108 does not show his awareness about the requirements to be complied with before recording of the confessional statement. It also appears that 59 confessions were recorded in routine one after another. The witness states that within one or two minutes of the recording of confessional statement of one accused, the other accused used to be produced for recording of confession. Having regard to these factors, it is neither possible nor safe to base the conviction of A-25 only on the confessional statement. That statement does not inspire any confidence. Accordingly, we decline to take into consideration the said document.

23. Now we consider the main evidence i.e of PW 31 and PW 32, on the basis whereof the appellants have been convicted. It may be recapitulated that out of sixteen eyewitnesses, only two witnesses (PW 31 and PW 32) have named these three accused, A-10, A-25 and A-27. Regarding others having not named them, the learned counsel for the State, with reference to the testimony of PW 34, PW 35, PW 38, PW 39 and PW 40, explains that since these witnesses had received grievous injuries and, therefore, not naming of these accused by these witnesses does not throw any doubt much less a reasonable doubt on the case of the prosecution. But, the injuries were also suffered by PW 31 and PW 32. Be that as it may, even if we reject the submission urged by Mr Gonsalves on behalf of the appellants that the non-mention or non-identification of the accused by the other eyewitnesses throws a doubt on the case of the prosecution in general and on the testimony of PW 31 and PW 32 in particular, on the facts of the case, as we would presently notice, it makes hardly any difference.

24. We have already noticed that PW 31, PW 32 and PW 33 travelled in the same lorry. They were sitting next to each other. From the testimony of PW 31 and PW 32, it appears that they had known these three accused earlier. If that is so, the non-holding of test identification parade would be of no consequence. But, at the same time, if PW 31 and PW 32 had seen these three appellants throwing bombs and firing as part of the members of the Veerappan gang, they would have disclosed their names to PW 33 and their names would have been mentioned in the FIR. The evidence on the record shows that on 14-8-1992 itself, PW 31 met Inspector Venkataswamy, PW 112, and disclosed to him the names of these accused. Likewise, the names were also disclosed by PW 31 to DIG Srinivasan. However, DIG Srinivasan has not been produced before the trial court. Further, when PW 31 and PW 32 were talking to DIG and when PW 31 narrated the entire incident, including the names of the persons he had seen, to the DIG, PW 33 Devendrappa was also present as per the deposition of PW 31. Not only this, the names were also disclosed to Uttappa, Assistant Commissioner of Police. He too was not examined. Further, the evidence of PW 31 also shows that at the spot and thereafter till he remained admitted in the hospital, PW 31 had occasion to meet the Special Task Force personnel and other persons associated therewith who were told the names of the persons who were involved in the encounter. In the light of such overwhelming evidence, it is highly doubtful that their names would not be disclosed to PW 33 and for that reason they would not find a mention in the FIR. Further, it is evident from the evidence that the attack on the car and the lorry was being made from a distance of about 100 ft from a hillock and having regard to the topography of the area, it is highly doubtful if it was possible to identify the attackers. From the testimony of the other witnesses, it appears that they could only see the profile of the attackers and not the attackers as such so as to connect them with the commission of the crime.

25. Further, from the testimony of PW 120 M.C Mariswamy, Police Inspector of Ramapura Police Station, from 12-8-1992 to 10-3-1994, it seems that in the second FIR (altered FIR), the names of some of the accused were collected by referring to previous FIRs filed against Veerappan and others. The relevant part of the testimony of PW 120 reads:

“When I took up the investigation of this case, I referred to the FIR filed in this case. It is true that the complainant who filed the first FIR is said to be an eyewitness to the crime. I have not examined the complainant. It is true that in the FIR names and number of accused is mentioned. It is true that in the FIR names of 7 accused persons with another 10 to 15 accused involved is mentioned. In the second FIR submitted, the names of 38 accused besides others is mentioned. Names of some of the accused were collected by referring to the previous FIRs filed against A-1 and others. The names of the remaining accused persons are involved through the information from the informants. Informants are not examined in this case.”

26. In view of the aforesaid circumstances, it is not possible to sustain the conviction of these three accused as well relying solely on the testimony of PW 31 and PW 32 which does not inspire confidence. Thus, these appellants are also entitled to be given the benefit of doubt.

27. For the aforesaid reasons, we set aside the impugned judgment and order of the Special Judge of the Designated Court, Mysore. The conviction and sentence of the appellants are thus set aside. The appellants are directed to be released forthwith, if not required in any other case.

28. The appeals are, accordingly, allowed.