Arun Kumar, A.K.Mathur, JJ. - (1.) This is a statutory appeal to this Court against the judgment of the designated court, special Judge in T.A.D.A. (P) Act, v. Ith Additional Sessions Judge, Nagpur. By the impugned judgment, the designated court convicted eight persons under Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short "the T.A.D.A. Act") Section 398 of the Indian Penal Code (for short "I.P.C."). Section 307 read with Section 34, I.P.C. and Section 3 read with Section 25 of the Arms Act. Different sentences were awarded under different heads of convictions. For our purpose, it is sufficient to say that all the convicted accused persons were awarded sentences of life imprisonment and fine. Five convicted accused persons have filed the present appeal.
(2.) Briefly, the facts are that on 10.2.1992, at about 1.30 a.m. there was an attack on the Sub-Police Station, Laheri. This police station falls in a Naxalite-affected area. Head Constable Purushottam was on duty along with Constable Laxman at the police station. They heard barking of dogs. They came out and when they went near the tin shed where arms and ammunition were stored, some unknown Naxalities started firing. Both the policemen immediately took position and fired in return. They also sounded alert so that other policemen could come and join them. In the meantime, the Naxalities started firing from all sides. The policemen took positions on all four sides and started counterfiring in return. This firing from both sides went on up to 3.00 a.m. It is said that the policemen fired about 103 rounds from .303 rifles, 5 rounds from carbine and Stengun. Due to the counterfiring from the police, the Naxalities who were about 22 to 25 in number and were firing from a distance of about 150 to 200 feet, escaped in the darkness of the night. Head Constable Purshottam lodged a complaint at 5.00 a.m. in the morning about the incident. According to him, the attack on the police station was with intention to commit dacoity of arms and ammunition and to kill the policemen. On the basis of the complaint an F.I.R. was registered. The entire affected area was inspected in the presence of two panches. It was found that there were marks and holes of bullets fired on tin sheets and trees which were at the height of about 4 to 10 feet from the ground. Some casings of bullets were also found. A spot panchnama was drawn on the basis of the inspection. Some statements of the witnesses were recorded and investigation was handed over to P.S.I. Gaikwad. Sanction was obtained from Superintendent of Police, Gadchiroli to investigate the case under Sections 3 and 4 of the T.A.D.A. Act and from the District Magistrate, Gadchiroli to investigate under Section 3 read with Section 25 of the Arms Act. During investigation, statements of several witnesses were recorded and some of the accused persons were arrested. Out of the arrested accused persons, accused No. 8 Kopa Narango Mahaka led to the discovery of a weapon called bharmar (muzzle-loading gun) which was seized. During the investigation, it also emerged that accused No. 1, namely, Kishore alias Prakash Lalsay Sedmek wanted to make a confessional statement. His confessional statement was recorded by Shri S. S. Barwe, S.P., Gadchiroli. The entire case hinges on the said confessional statement of accused No. 1. For prosecutions under the T.A.D.A. Act, confessional statements have been put under a separate pedestal. Section 15 of the T.A.D.A. Act which deals with confessions opens with a non-obstante clause as per which, the provisions of the Code of Criminal Procedure and the Evidence Act have been excluded while dealing with confessions under that section. The parameters for recording a confession under Section 15 of the T.A.D.A. Act are given in the said section. Rules have been framed for purposes of the Act which are called the Terrorist and Disruptive Activities (Prevention) Rules, 1987 (for short, "the T.A.D.A. Rules"). Rule 15 of the T.A.D.A. Rules contains certain guidelines in relation to recording of confessions under Section 15 of the T.A.D.A. Act. Both the provisions are reproduced as under : Section 15 of the T.A.D.A. Act 15. Certain confessions made to the police officers to be taken into 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 or co-accused, abettor or conspirator for an offence under this Act or Rules made thereunder : Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused. (2) The police officer shall, before recording any confession under Sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. Rule 15 of T.A.D.A. Rules 15. Recording of confession made to police officers.--(1) A confession made by a person before a police officer and recorded by such police officer under Section 15 of the Act shall invariably be recorded in the language in which such confession is made and if that is not practicable, in the language used by such Police Officer for official purposes or in the language of the designated court and it shall form part of the record. (2) The confession so recorded shall be shown, read or played back to 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. Sd. Police Officer (4) Where the confession is recorded on any mechanical device, the memorandum referred to in Sub-rule (3) insofar as it is applicable and a declaration made by the person making the confession that the said confession recorded on the mechanical device has been correctly recorded in his presence shall also be recorded in the mechanical device at the end of the confession. (5) Every confession recorded under the said Section 15 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.
(3.) Learned Counsel for the Appellant was unable to dispute the fact that the fate of this entire case hinges on the confessional statement of accused No. 1, namely, Kishore alias Prakash Lalsay Sedmek. According to the learned Counsel for the Appellants, the provisions of Section 15 of the T.A.D.A. Act and Rule 15 of the T.A.D.A. Rules have not been complied with while recording the confession. The requirements for recording confessions which emerge from these provisions are : (i) the confession is to be made before a police officer who should not be lower in rank than a Superintendent of Police ; (ii) it should be recorded in handwriting or on any mechanical device, etc. which can reproduce the recording ; (iii) the co-accused, abettor or conspirator should be charged and tried in the same case together with the accused making the confession ; (iv) the police officer shall before recording the confession explain to the person making it that he is not bound to make the confession and that if he makes it, it can be used as evidence against him ; and (v) the police officer should satisfy himself that the confession is being made voluntarily. ;