1. Seven accused were charge sheeted for offence under S.395, 397, 398, 400, 120B IPC and S.3(4), 4 and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short "the TADA Act") as also under the provisions of the Arms Act. One of the accused, namely, Galana @ Galvendra Singh died during the pendency of the case before the Designated Court. The case was withdrawn against Accused 1 Baldev Singh and Accused 2 Dilbagh Singh. The remaining four accused were convicted by the impugned judgment of the Designated Court, Ajmer, dated 30-9-2002. Accused 3 Sakattar Singh, Accused 4 Jagga @ Jagdish Singh and Accused 5 Lalli @ Jagdeep Singh were held guilty of offence punishable under S.392 read with S.397 IPC and S.3(2)(ii) of the TADA Act. Accused 6 Tara Singh was held guilty of offence punishable under S.3(4) and 5 of the TADA Act and under the provisions of the Arms Act. All these accused were, however, acquitted of the offence under S.4 of the TADA Act. Separate sentences were awarded in respect of the offences for which they were found guilty. The sentences have been directed to run concurrently.

2. Accused Lalli @ Jagdeep Singh is the appellant in Crl. A. No. 1251 of 2002 and the remaining three are the appellants in Crl. A. No. 1313 of 2002 filed under S.19 of the TADA Act.

3. The FIR was recorded on the complaint of PW 2 Harvail Singh.

4. The case of the prosecution in brief is that while PW 2 along with his wife (PW 1) and children was watching television, three persons entered their house, one person had a rifle and two others had pistols. The intruders told them that they are from "Bhinderwala Tiger Force" and said that they wanted a sum of Rs 25 lakhs and were going to take away the son of the complainant PW 2 with them and that if the complainant shall pay the amount he can take back his son. The complainant offered to give them his jewellery and pleaded that they should leave his son and him. Despite it, one of the persons caught hold of his son from the neck. During this struggle the complainant caught hold of the rifle and the person holding the rifle fired one shot but none received any injury as the complainant pulled the nozzle of the rife to one side. The intruders then ran away from the spot taking away the box containing the jewellery. One of their accomplices was standing outside the house. The jewellery that was taken away was two chains, one mangalsutra, three bangles, two rings and one ear - top. The incident had taken place on 9-12-1991 at 9.35 p.m. The accused Lalli was arrested on 13-12-1991 and others on different dates. The prosecution, to prove the charge, examined 30 witnesses and exhibited 55 documents. The finding of guilt was based primarily on the confessional statements made by each of the appellants besides the testimony of PWs 1 and 2 and also the other occupants of the house, namely, PWs 15, 16 and 17. All the confessional statements were recorded by PW 26 who, at the relevant time, was Superintendent of Police, Bundi.

5. According to the case of the prosecution, appellant Lalli, Accused 5, had not gone inside the house. He is alleged to be standing outside so as to keep a watch. According to the prosecution, he was living in a gurudwara nearby along with his father who was a Granthi in the gurudwara. On other accused approaching him, he told that complainant PW 2 was the richest person of the area. Lalli is alleged to have taken the other appellants to the house of the complainant. Lalli was known to the complainant and his family members. Admittedly, none of the witnesses either saw Lalli or heard his voice. Further, admittedly no recovery has been made from Lalli or at his instance. The question of Lalli, therefore, being identified or not in the test identification parade is of no consequence. The sole basis of conviction of Lalli is his confessional statement recorded by PW 26. It is not the case of the prosecution that besides confessional statement there is any other evidence against Lalli. The confessional statement made by him is Ext. P 34. That was recorded by PW 26. On an application filed by Vijay Singh the investigating officer and SHO of Police Station Kotwali Bundi before PW 26 that Lalli wants to give voluntary statement with regard to the incident, Lalli was summoned and PW 26 recorded his statement Ext. P 34. The said statement was recorded on 27-12-1991. In Ext. P 34 it is recorded that it was explained to Lalli that the statement made before PW 26 could be used against him as evidence and he made the statement concerning the sequence of events completely at his own will without any pressure. S.15(2) of the TADA Act requires that the police officer shall before recording any confession under sub-s.(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 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(3), inter alia, requires the police officer recording the confessional statement to make a memorandum at the end of the confession in terms of R.15(3)(b). Admittedly, no such memorandum was prepared. We, however, need not go into that question in the present case as there is nothing to show that PW 26 complied with the provisions of sub-s.(2) of S.15 by explaining to Lalli that he is not bound to make a confession. That is neither recorded in the confessional statement Ext. P 34 nor is so deposed by PW 26 while appearing in court as a prosecution witness. S.15 is mandatory. The provisions contained therein are to be strictly complied with. When admittedly there is nothing whatsoever on record to show that S.15(2) was complied with by explaining to the maker of the confession that he is not bound to make a confession, the confession is clearly inadmissible. Since the conviction of Lalli is solely based on Ext. P 34 it cannot be sustained.

6. What we have noticed above is also fully applicable to the confessions made by Accused 3 Sakattar Singh, Accused 4 Jagga @ Jagdish Singh and Accused 6 Tara Singh (appellants in Crl. A. No. 1313 of 2002). Therefore, the confessions made by them are also not admissible. In view of this inherent infirmity we need not go into the other questions raised such as non grant of time to any of the appellants to reflect before making the statement or non compliance with other provisions of the and the Rules to show that the confessions were voluntary and truthful. In respect of two out of these three appellants, namely, Sakattar Singh and Jagga @ Jagdish Singh the prosecution though primarily based its case on their confessions but had also relied upon the recovery of weapons and identification in test identification parade. In respect of the third appellant Tara Singh, against him the allegation was of harbouring accused Sakattar Singh and Jagdish Singh and concealment of the arms and ammunition. In respect of Tara Singh the only other evidence was that of recovery of weapons. It is not the case of the prosecution that Tara Singh had gone to the house of the complainant. None has claimed to have seen him. The recovery of the alleged weapons was witnessed by PW 8 and another witness who was not examined. PW 8 was declared hostile. The other witness, for reasons unknown, was not examined. Thus, we are left with the sole testimony of Investigating Officer PW 29 Vijay Singh. We have gone through his testimony. We are unable to sustain conviction of Tara Singh solely on the basis of the testimony of PW 29 without any corroboration. That testimony does not inspire confidence.

7. In respect of Sakattar Singh and Jagdish Singh though they were identified in the test identification parade but not in court in the deposition of PWs 1, 2, 15 and 16. PW 17 had first time identified these accused in court, but he was silent on identification in the test identification parade. It may also be noticed that according to the testimony of complainant PW 2 these accused were taken inside the jail in his presence and in the presence of other witnesses before the test identification parade. They had admittedly seen them going into jail before the test identification parade. Further, weapon and empty cartridge was recovered, but no attempt was made by obtaining FSL report to match the cartridge with the recovery weapon. Under these circumstances, the conviction of these appellants also cannot be maintained.

8. For the aforesaid reasons, we set aside the impugned judgment and order dated 30-9-2002 passed by the Designated Court, Ajmer and allow the appeals, setting aside the conviction and sentence imposed on each of the appellants. They shall be set at liberty forthwith, if not required in any other case.