TMI Blog2004 (9) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... offence under Section 120-B read with Section 302 IPC. For the offence under Section 3(3) of the TADA Act, they were sentenced to undergo imprisonment for a period of five years each and to pay a fine of ₹ 2,000/- with the default sentence of six months. The allegation against these appellants was that they entered into a conspiracy with Balwinder Singh to murder Dr. Megh Raj Goel on 6.2.1992 at about 10 P.M.. Balwinder Singh shot at Dr. Megh Raj Goel and caused him fatal injuries. Dr. Megh Raj Goel died at 6.25 A.M. on 7.2.1992. According to the prosecution, Dr. Megh Raj Goyal, with his wife Dr. Suman Rani Goel, was running a Psychiatric hospital in Patiala. Both of them had completed their education in psychiatry in England and returned to India in 1989. They started Goyal Psychiatric Hospital at 34, Punjabi Bagh in Patiala and later shifted to 85, Punjabi Bagh in May, 1991. Appellant in Criminal Appeal No. 577, Dr. Surinder Singh Sandhu was already running Sandhu Nursing Home in Psychiatry since 1973 and he had almost established a monopoly in the field of treatment of psychiatric patients. When deceased Dr. Megh Raj Goel and his wife started their hospital, it gained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 382, 302 IPC and Section 4 and 5 of the TADA Act, 1987 were added. Balwinder Singh was arrested by Inspector Gurnam Singh, SHO Police Station Civil Lines, Patiala on 8.4.1992 at about 7.30 P.M. in connection with a case registered against him under Section 302 and 382 IPC and Section 25 of the Arms Act. A point thirty two bore country-made revolver with six live cartridges were recovered from him. On interrogation, Balwinder Singh made a voluntary confession and admitted having committed the murder of Dr. Megh Raj Goel. Section 4 and section 5 of the TADA Act were added to the case registered earlier and the District Suptd. of Police City Patiala, Shri Ajaib Singh recorded the confessional statement of Balwinder Singh under Section 15 of the TADA Act, 1987. Balwinder Singh was remanded to police custody from time to time and according to prosecution on 3.5.1993 Balwinder Singh was taken on transit remand to District Sangrur in connection with another case and there he escaped from the police custody on 5.5.1993 while being taken for effecting recovery of arms and ammunition, for which a case had been registered against him at Police Station Bhawanigarh in District Sangrur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iss Sawinder Kaur. He also stated that he had no social or professional dealings with the other appellant, Dr. Surinder Singh Sandhu. On the side of the defence, DW-1 and DW-2 were examined. The fact that Dr. Megh Raj Goyal died of bullet injuries at 6.25 A.M. on 7.2.1992 is not disputed. The Special Judge found the present appellants guilty of murder on the basis of the evidence of confession of Balwinder Singh @ Fauji recorded by PW-34 Sham Lal Gakhar. Apart from this confession, there is no other reliable evidence either to prove conspiracy by the appellants or their involvement in the crime. To prove the conspiracy, the prosecution relied on the testimony of PW-32 Sawinder Kaur. PW-32 is a staff nurse in the Rajindera hospital at Patiala. Appellant Dr. Sohal was an Orthopaedics doctor in that hospital. PW-32 deposed that Dr. Sohal requested her whether Balwinder Singh could be asked to meet him within two-three days. PW-32 and Balwinder Singh thereafter went to the house of Dr. Sohal. She further deposed that Dr. Sohal had some discussion with Balwinder Singh and at that time she was with the wife of Dr. Sohal whom she knew previously. PW-32 also deposed that at that time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the police station civil lines, Patiala, along with a Sub-Inspector and three Constables was on patrol duty near N.I.S. chowk, Patiala on 18.4.1993. They came to know that one taxi driver who had committed various crimes had been roaming in the city in a vehicle without registration number. In the meanwhile, one maruti car without registration number came and the same was intercepted and its driver was taken into custody. He was in possession of a point thirty two bore revolver loaded with five live cartridges. He told them that his name was Balwinder Singh. According to the prosecution he escaped from custody and was later declared as a proclaimed offender. The counsel for the appellants contended that Balwinder Singh was killed in a fake encounter by the police, for which a criminal case also is filed against some of the police officers. In any case, Balwinder was never tried along with the present appellants. The extra-judicial confession made by Balwinder Singh could have been taken into consideration only when he was tried along with the present appellants. The other item of evidence relied upon by the Special Judge is the confession of Balwinder Singh recorded by PW-34 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence. By Act No. 43 of 1993, clause (c) of Section 21 of the TADA Act was deleted and original Section 15 of the TADA Act also was amended by the very same Act, i.e. Act No. 43 of 1993. Original sub-section (1) of Section 15 of the TADA Act was as follows : 15. Certain confessions made to police officers to be taken in consideration ---(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this Section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or soundtracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or rules made thereunder : As aforesaid, by Act No. 43 of 1993, it was amended and the amended provision is as follows : 15. Certain confessions made to police officers to be taken in consideration ---(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this Section, a confession m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by other evidence. However, the majority consisting of Wadhwa and Quadri, JJ held that Section 15 of the TADA Act starts with a non obstante clause as it says that neither the Evidence Act nor the Code or Criminal Procedure will apply and this was certainly a departure from the ordinary law and when the legislature enacted that the Evidence Act would not apply, it would mean all the provisions of the Evidence Act including Section 30 and, therefore, confession recorded under Section 15 of the TADA Act is admissible against the co-accused as a substantive evidence. However, it was clarified that substantive evidence does not necessarily mean substantial evidence. It is the quality of the evidence that matters. Section 15 of the TADA Act as amended by Act 43 of 1993 clearly stipulates that the confession recorded under Section 15 of the TADA Act is admissible only if the confessor is charged and tried in the same case together with the co-accused. After the amendment of 1993, the addition of the words co-accused, abettor or conspirator and the insertion of the new 'proviso' to the effect that the co-accused, abettor or conspirator is charged or tried together with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the person concerned and if he does not understand the language in which it is recorded, it shall be interpreted to him in a language which he understands and he shall be at liberty to explain or add to his confession. (3) The confession shall, if it is in writing, be --- (a) signed by the person who makes the confession; and (b) by the police officer who shall also certify under his own hand that such confession was taken in his presence and recorded by him and that the record contains a full and true account of the confession made by the person and such police officer shall make a memorandum at the end of the confession to the following effect: I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (4) Where the confession is recorded on any mechanical device, the memorandum referred to in sub-rule (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make may be used against him and that he believed that this confession was voluntarily made and it was taken in his presence and recorded by him and was read over to the person making it and admitted by him to be correct, and it contained a full and true account of the statement made by him. This Court has in a series of decisions deprecated the practice of non- observance of this provision and held that such violation would be inadmissible. In Bharatbhai @ Jimi Premchandbhai vs. State of Gujarat (2002) 8 SCC 447, this Court held that Rule 15(3)(b) of the TADA Rules was not complied with and no memorandum as required was made. There was also no contemporaneous record to show the satisfaction of the recording officer after writing of confession that the confession was voluntarily made or read over to the accused. Thus, the confessional statement was inadmissible and cannot be made the basis for upholding the conviction. In S.N. Dube vs. N.B. Bhoir (2000) 2 SCC 254, this Court held that writing the certificate and making the memorandum under Rule 15(3)(b) to prove that the accused was explained that he was not bound to make a confession and that if he made it, it could be used ..... X X X X Extracts X X X X X X X X Extracts X X X X
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