ST ATE OF MAHARASHTRA v. SIRAZ AHMED NISAR AHMED & Ors.

1.2. Identification of respondent no. 6 by PW 7 in a test identification parade would not carry the prosecution case any further because at the time of the incident, the witness had not seen the respondent at the place of the incident. Neither any firearm was recovered from the respondent nor was any evidence led to prove the fact that he was engaged for driving the vehicle to G carry the assailants and the firearms for committing the murder as per the conspiracy hatched by the accused persons. There is no evidence on record to establish that on the relevant date he was seen driving the car. There is lack of link evidence connecting this accused with the other accused persons. Finding the accused at the place of incident might have raised strong suspicion, H -~ _., 42 SUPREME COURT REPORTS [2007] 6 S.C.R. A but there is no evidence on the record to convert the suspicion into a proof about the involvement of respondent no. 6 in committing the murder of the deceased. [Para 28] [53-D-GI

1.3. While appreciating evidence, the Court must keep in mind that the powers of observation differ from person to person. An object or thing B happened might reflect in the image of a person's mind, whereas it may go unnoticed on the part of another. While appreciating the evidence of witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence, more c particularly keeping in view of deficiencies, drawbacks and infirmities pointed out in the evidence, as a whole, and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matter not touching the core of matter in issue, hyper-technical approach by taking sentence out of context here or D there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. ,l_ [Para 33) (57-F-H; 58-A-B] ~ E

1.4. On an overall reading of the statements made by the witnesses, the evidence of recovery of a revolver and live cartridges from respondent no. S was not in any way shaken by some of the infirmities pointed out by the Designated Court. The discrepancies in the statements of the witnesses are not infirmities, but those statements are consistent with the general tenor of evidence. When the prosecution has proved conscious and exclusive possession F of the house by respondent no. 5, the statements made by the witnesses cannot be brushed aside on the ground that the prosecution has not proved the title or ownership of the flat. The prosecution has proved the seizure of the revolver and the live cartridges from respondent no. 5. Respondent no. S, having been found in possession of a revolver, is guilty of the offence under Section S of the TADA Act. As regards respondent no. 4, there is no substantive evidence G to connect him with the commission of the crime. (Paras 34, 35, 36, 37 and 38) [58-C-F; 59-A)

1.5. A confession statement to police is not admissible under the general law connected with administration of criminal justice. Under Section 15 of the TADA Act, if a confession inade by the accused to a police officer not H - ... r l STATE OF MAHARASHTRA v. S!RAZ AHMED N!SAR AHMED 43 lower than the rank of Superintendent of Police is made admissible, it would A still be a confession made to the police officer, and thus inbuilt safeguards have been provided under Section 15 of the TADA Act read with Rule 15 of the TADA Rules so as to lend credence to the confession made to the police officer, it being voluntarily and without any force or pressure and allurement or inducement. Any confession made in defiance of the safeguards provided B therein, would not be relied upon by a court. (Para 491166-B, E, F, Cl

1.6. From a bare reading of the certificate given under Rule 15(3) (b) of the TADA Rules, it is clear that it is necessary for a police officer to certify that he has explained to the accused that the accused is not bound to make a confession and if he does so, such confession may be used as evidence against C him. It is further required to be recorded that he believed that the confession was voluntarily made. He has to record that the confessional statement has been taken in his presence and hearing and recorded by him. The confessional statement should be read over to the person making it and admitted by him to be correct and it should be certified that it contains a full and true account of the statement made by the accused. The certificate, which is required to be D given by the police officer is not a mere formality, but it is for the purposes of ascertaining that the police officer has recorded the confession keeping in mind and being fully aware of the fact that the confession recorded by him is a voluntary confession and with the information available to the accused that he is not bound to make such confession and if he does so it will be used as E evidence against him. A duty is cast on the police officer who is to record the confession to bring at the relevant time these facts to the notice of the person whose confession is going to be recorded. (Para 50) 167-B-D)

1.7. In the present case, on reading the certificate, it does appear that compliance of Rule 15 (3) (b) of the TADA Rules has been done in a mechanical F manner. It does only certify that it is the satisfaction of the recording officer that the facts that the accused is not bound to make the confession and if he does so it shall be used as evidence against him, were known to the accused. However, there is no certification that the statement was recorded in the presence and hearing of the police officer; nor the statement has been admitted to be correct by the accused; and that the statement contained a full and true G account of what was stated by the accused. (Para 51) (67-E-H; 68-AI _J