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This appeal relates to a case of one such mercenary killing by hired goons at the behest of criminal dons operating from abroad but rendering their services of criminal actions in this country on payment of huge amounts.

In this case the respondents herein were charged of having committed offences punishable under Sections 302, 307 read with Sections 120B, 23, 114 of the Indian Penal Code (hereinafter referred to as "the IPC"), Section 3 read with Sections 25(1-B)(a), Section 5 read with Section 27 of the Arms Act, Sections 3(2)(I), 3(2)(ii), 3(3), 3(5), 5 and 6 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as "the TADA Act") for having committed the murder of one Pradeep Jain, a young businessman, on 7.3.1995 in the commercial capital of India, i.e., Mumbai at about 7.30-8.00 p.m. and also attempting to murder the other brother, Sunil Jain. The deceased was murdered and his brother injured in furtherance of the conspiracy hatched by the respondents with other absconding accused. The crime was committed in the office of the company of the Jain Brothers, known as "Kamla Constructions". The accused persons, namely, Salim Abdul Salim (A8), Abu Salem (A9), Rajesh Igwe (A10), Sunil Nair (A11), Udai Pawar (A12) and Sanjay Kadam (A13) were declared absconders and have not faced the trial yet.

A2, A3 and A4 are stated to be having maintained a regular liaison with Abu Salem (A9), known to be the right hand man of Dawood Ibrahim. The said A9 was contacted by A2, A3 and A4 on telephone Nos.226670, 242939 at Dubai.

One day in the second week of February, 1994 at about 10 p.m. telephone bell rang in the house of Pradeep Jain. When Jyoti Pradeep Jain (PW23), the widow of the deceased picked up the telephone, the caller told her that he was Abu Salem and was speaking from Dubai. As he wanted to speak to Pradeep Jain, Jyoti Pradeep Jain handed over the receiver to her husband. Pradeep Jain was heard telling Abu Salem that he, along with his brothers were legal occupants of the land and could not be removed therefrom. When Pradeep Jain appeared upset, his wife inquired for the cause. Pradeep Jain told her that the person calling from Dubai had told him to sign the documents which had been kept ready in the office of A1 or face the consequences.

The reliance of the learned counsel on Sharafathussain's case(supra) is misplaced, as rightly pointed out by the trial court. In that case, admittedly, in none of the four confessions any memorandum was appended and PW6 who recorded the confessional statement, when appeared in the Court did not testify about his such satisfaction or belief. That is not the position in the present case where PW38 has categorically stated that "I was satisfied that he was voluntarily making the confessional statement. Still I give him time to think over the matter. I also warned him that he will be called again on 28th August, 1995 for recording the confessional statement.... From the question I had put and the replies which he had given, I was convinced that the accused is giving the statement voluntarily." The confessional statements of A5 and A6, Exhibits 147 to 150 are, therefore, held to have been voluntarily made and legally recorded which are admissible in evidence and can be used against all or some of the accused in the light of other evidence produced in the case. In his confessional statement Subhash Bind (A5) had stated that at the time of murder of Pradeep Jain, he along with Rajesh Igwe (A10), Sunil Nair (A11), Udai Pawar (A12), Sekhar Kadam (A6) and Sanjay Kadam (A13) were present at the place of occurrence. He was friendly with Udai Pawar (A12), Sekhar Kadam(A13), Rajesh Igwe (A10), Sunil Nair (A11), and Sanjay Kadam (A13). Udai Pawar (A12) was working in Rubi Mills, Dadar but that work did not soothe his criminal nature. He along with Sekhar Kadam (A6) and Sanjay Kadam (A13) were earlier arrested in 1991-92 in connection with threatening and murdering at Dongriwali in which he was released on bail. Since the accused was jobless and could not get a job, he was persuaded by accused Sekhar Kadam and Sanjay Kadam to work with them for which he would be highly rewarded. When asked about the nature of the work, he was told that he would have to do fighting, kidnapping and murder, etc. He came to know the connections of the other accused persons with Dawood Ibrahim. Under the directions of Udai Pawar (A12),he and Sunil Nair (A11)had opened firing at the owner of Hamco Steel Centre, Andheri on 31st October, 1994. On 7.3.1995 the said accused Rajesh Igwe (A10), Sunil Nair (A11), Udai Pawar (A12), Sekhar Kadam (A6) and Sanjay Kadam (A13) had all fired at Pradeep Jain. He along with others had also kidnapped one Harish Bhatia of Kandiwoli. Udai Pawar was having contacts with Abu Salem (A9) and Anees Ibrahim of Dawood Ibrahim gang in Dubai over the phone where he used to call frequently. The accused used to get Rs.500 to Rs.700 per week besides Rs.5,000/- to 10,000/- after every firing. He had learnt to handle revolver, pistol loading, etc. when he was in the Army attachment camp of NCC. Rajesh Igwe (A10), after calling on telephone numbers 009714226670 and 009714242939 at Dubai told him that "Bhai" had ordered to murder Pradeep Jain. By "Bhai", he meant Abu Salem (A9). He was further told that Rajesh Igwe (A10) and Suni Nair (A11) would stand in front of Mithibai College at a time when a person would come and show the house of Pradeep Jain. Rajesh Igwe (A10) had told Sekhar Kadam (A6) that Pradeep Jain was causing obstruction in a land transaction whereas his other two brothers were ready and when Bhai (A9) contacted Pradeep Jain, he talked to him rudely which invited the wrath of Bhai to order his murder. They had kept the watch on the house of Pradeep Jain for one week. Rajesh Igwe (A10) had made a plan to attack Pradeep Jain. As per plan Rajesh Igwe (A10) and Sunil Nair (A11) were to inquire from the watchman of the building as to whether Pradeep Jain was in the office or not. The moment watchman said yes, both of them were to take him to the office at the point of revolver and Udai Pawar and Sekhar Kadam were supposed to be on the main gate to ensure that none else entered the premises. Sanjay Kadam was to stand on the road to keep a watch outside. On 7.3.1995 in the evening Subhash Bind (A5), along with Rajesh Igwe (A10), Sunil Nair (A11), Udai Pawar (A12), Sekhar Kadam (A6) and Sanjay Kadam (A13) assembled on the ground behind the house of Sunial Nair at Motilal Nagar No.1. He took revolver .38. Sekhar Kadam had a small pistol of 7.65 bore whereas Udai Pawar had a small pisto of .32 bore. A5 had brought one 9 mm revolver and .38 bore revolver in a plastic bag. 9 mm pistol was taken by Rajesh Igwe and .38 bore revolver was taken by Sunil Nair. All the weapons were filled with live cartridges. After the distribution of weapons behind the house of Sunil Nair, all the aforesaid accused persons travelled by bus route No.252 to the house of Pradeep Jain at about 1930 hours. They stood at some distance in front of the bunglow and kept a watch. At about 8 or 8.15 p.m., the watchman of Pradeep Jain came out with the kids. While he was going in, the small kids ran inside. When watchman was walking towards the gate, Rajesh Igwe (A10) caught hold of him and took him inside with the assistance of Sunil Nair (A11). Sekhar Kadam and Udai Paward closed the gates. Rajesh Igwe (A10) and Sekhar Kadam (A6) entered through the glass door along with the watchman and A5 stood outside the glass door. He heard the sound of firing whereafter Rajesh Igwe and Sunil Nair and the other accused came out and starting running. They came to the Rickshaw stand from where they left for Andheri. He was paid Rs.10,000/- for this attack by Rajesh Igwe (A10). He confessed that he along with Shashikant Yadav had brought the weapons from Bhendi Bazar. He gave the details of how the weapons were earlier supplied to them. He further confessed that whenever he needed money, he used to contact Bhai, i.e. A9 over the telephone who would tell him to go to Jogeshwari or Bandra, Mahim, Haji Ali, Bhendi Bazar, etc. where a person used to come and give him the requisite money.

Looking at the record of the case including the testimony of witnesses and the documents produced, we find sufficient general corroboration of the confessional statements made by A5 and A6. It is proved that they were associates of Dawood Ibrahim and Abu Salem (A9) and were continuously in touch with them on telephone for the purposes of getting directions and receiving remuneration. They were seen at and near the place of occurrence on 7.3.1995. They had brought weapons of offence and distributed to other accused. Recoveries of the weapons were made from them which were seized in the presence of witnesses as is evident from the Panchanamas. They were identified by the witnesses at the test identification parade. Their other associates in crime have either been killed or absconding. The cause which provoked Abu Salem (A9) to kill Pradeep Jain stands corroborated by the testimony of Jyoti Pradeep Jain (PW23), widow of the deceased. What more corroboration was required in such a case has not been pointed out by the learned counsel appearing for A5 and A6.