2019 (7) TMI 2070 - SC - Indian Laws

Common conspiracy to commit terrorist acts and murder proven; convictions under POTA ss.3(1),3(3), s.120-B and s.302 IPC upheld

CENTRAL BUREAU OF INVESTIGATION & ANR. Versus MOHD. PARVEZ ABDUL KAYUUM ETC.

SC upheld that a common larger conspiracy to commit terrorist acts and murder was proved and that several accused played distinct, overt roles. Forensic ... Common larger conspiracy - committing terrorists acts as well as murder of Mr. Haren Pandya, ex-Home Minister for the State of Gujarat - whether the sentence imposed by the trial court under section 3(3) was proper or the sentence reduced by the High Court on appeal by accused. Whether the criminal conspiracy in order to commit the murder of Mr. Haren Pandya, to strike terror in a section of people has been proved, as such the accused has committed the offence under section 3 of POTA? - HELD THAT:- In the matter of Yakub Abdul Razak Memon vs. State of Maharashtra [2013 (3) TMI 622 - SUPREME COURT], where a large number of accused were involved in a criminal conspiracy having played a distinct role, this Court held that where an accused allegedly transported weapons to the training centre, carried trainees, the question arises; whether this amounted to overt acts contributing to common object of the conspiracy. What is to be seen is that such an act formed a crucial part of the chain leading to creating terror, engaging in violence, or waging a war against State. The knowledge of the murder or attack on the victim in particular therefore was not a sine qua non. The conclusion of the High Court is only right to the extent that injury Nos. 5 and 6 could not be said to be entry and exit wounds. They were rather communicating wounds caused in the process of causing injury No. 1. The conclusion to the contrary averred by the High Court as to independent injuries is absolutely incorrect. Testimony of PW-55 cannot be said to be falsified on the basis of aforesaid medical evidence. Whether bullets are same as recovered in post mortem? - HELD THAT:- The bullet sent to CFSL and later produced in court were pure lead bullets which could never have looked white. Therefore, these bullets could not be the ones recovered from the body at post mortem which were white metal bullets, seen by the four doctors conducting the post mortem. As a matter of fact, the doctor has clearly opined that white bullets were seized and they were sent for ballistic examination and they have been produced from the CFSL. In our opinion, it was necessary to put in the cross-examination of PW-8 the fact that the bullets which were produced in court were not the same which were recovered at the time of post mortem, which has not been done. Thus his testimony cannot be discredited on this aspect. Forensic evidence - HELD THAT:- The evidence of DW-8 also makes it clear that breach face alone is sufficient to confirm the opinion if they are found to be repetitive and also of repetitive character of the striations which are due to an individual firearm can be related to a particular firearm. In this case, while ignoring the difference caused by tampering of the firing pin found the second time, the basic striation marks remain the same which is individual for every revolver and is not to be found in any other such weapon. Thus, the evidence is conclusive to prove that the revolver in question was used in firing the bullets recovered from the body of the deceased Haren Pandya. The medical evidence, thus, supports the version of PW-55. Interpolation of spot map - HELD THAT:- The site map was sought to be discredited on the basis that PW- 120, I.O. of CBI gave a contradictory reply. He said that the original spot map was drawn by pencil and later on drawn in ink. It was clearly stated that at the time of re-drawing the same, later on, the name of accused Asghar Ali was mentioned as it was known by that time. No dent is caused by the said mentioning of the name of the accused and from the explanation given by PW-120, it is apparent that the name has been added later on - The High Court ought to have taken note of the statement in what circumstances name came to be added later on. It was clearly a mistake as admitted by the witness. Non-examination of wife of Haren Pandya - HELD THAT:- No dent is caused as Jagrutiben and other persons were not the eye- witnesses. In case of any doubt, they could have been examined as defence witnesses. Jagrutiben, even if examined, would have proved the fact that deceased left for Law Garden at around 7 a.m. and he would have reached there around 7.10 a.m. No benefit can be drawn from the aforesaid aspect. No adverse inference can be drawn against prosecution due to non-examination of Jagrutiben. As estimation of time may differ and as per Jagrutiben, deceased left for Law Garden only where he used to go for a morning walk. The conviction and sentence imposed by the Trial Court on A-1, A-4, A-5, A-6, A-7, A-8, A-9, A-10 and A-11 under Section 3(1) and 3(3) of POTA and 120-B and Section 302 read with Section 120-B IPC as ordered by the Trial Court - Appeal disposed off. 1. ISSUES PRESENTED AND CONSIDERED p. Whether the prosecution proved a common criminal conspiracy to commit terrorist acts and targeted killings forming offences under the Prevention of Terrorism Act (POTA) and section 120-B IPC. p. Whether the confessional statements recorded under section 32 of POTA were recorded in accordance with statutory safeguards and admissible and reliable for conviction; and what degree and kind of corroboration is required. p. Whether ocular testimony of an independent eyewitness as to the killing is corroborated or contradicted by medical, ballistic and forensic evidence, and how inconsistencies (if any) should be treated. p. Whether recoveries (firearms, cartridges, vehicles, SIMs, cyber-records) and their forensic linkage to injuries/bullets satisfy chain-of-custody and individualisation principles sufficient to sustain conviction. p. Admissibility and probative value of call detail records (CDRs), tower-location evidence and computer/e-mail printouts as circumstantial corroboration of presence, planning and post-offence communications. p. Whether alleged interpolation of site map, non-examination of certain non-eyewitness family members, and gaps in investigation vitiate conviction such that appellate interference (setting aside trial court conviction) was warranted. p. Whether a public interest petition seeking re-investigation, based on post-trial newspaper reports, new statements and published material, justified ordering a fresh investigation. p. Ancillary sentencing issue: appellate scope where State/CBI did not appeal certain acquittals and whether reduction/modification of sentence was appropriate. 2. ISSUE-WISE DETAILED ANALYSIS ISSUE: Proof of a larger criminal conspiracy to commit terrorist acts (POTA §§3(1), 3(3), 4 and s.120-B IPC) Legal framework: Criminal conspiracy under s.120-B IPC is a distinct offence requiring agreement/common design; POTA penalises conspiracy to commit acts of terrorism (ss.3(1)-3(4)). Principles recognise that conspirators may play distinct roles and liability extends to overt acts in furtherance of the common object. Precedent treatment: Court applied established authorities interpreting conspiracy (including that conspirators need not know all details) and relied upon decisions upholding liability for distinct contributory acts (e.g., transport, training) when forming link in chain (citing prior law on conspiracy and terrorism jurisprudence). Interpretation and reasoning: Trial evidence (meetings at mosques, direction by an absconding cleric, training abroad, recruitment, logistics, weapons procurement, meetings to assign targets, and interlinked violent incidents) was held to form an integrated conspiracy. The Court analysed contemporaneous communications, meetings, recoveries and confessions to conclude unity of purpose and multiple overt acts forming one conspiracy. Evidence of related violent incidents (tiffin-box blasts; attempt on another leader) was treated as part of the same series. Ratio vs. Obiter: Ratio - where several accused performed complementary roles (training, transport, logistics, reconnaissance, arming, execution), criminal conspiracy under POTA and s.120-B IPC is made out even if some conspirators did not know every detail. Obiter - observations on international dimensions and political motive. Conclusions: The Court found the conspiracy proved beyond reasonable doubt as per the combined circumstantial and direct material, restoring trial court convictions on conspiracy counts for the accused whose appeals were before it. ISSUE: Admissibility, voluntariness and corroboration of confessions under section 32 of POTA Legal framework: Section 32 POTA makes confessions to senior police officers admissible subject to safeguards (warning, written explanation, seclusion/reflection, recording in accused's language, production before CJM/CMM within 48 hours, magistrate inquiry, medical exam if torture alleged, judicial custody ordinarily). Precedent treatment: Court relied on Parliament-attack and Kartar Singh line of authorities interpreting s.32 POTA and distinguishing TADA; emphasised twin tests: voluntariness and truth/corroboration; held confessions of co-accused are not automatically admissible against others under s.32 unless they otherwise qualify under ordinary evidence rules. Interpretation and reasoning: The Court examined the recorded procedure (requisition by investigating officer, cautions, period of reflection, magistrate's questioning, absence of complaints of torture, production to judicial custody), noting compliance in pith and substance. It reviewed allegations of coercion, timing of custody, delays, and rejection of post-hoc retractions as afterthoughts. The Court applied the twin-tests: found confessions voluntary (no medical evidence of torture; procedural steps followed) and corroborated in material particulars by independent evidence (recoveries, CDRs, eyewitness identification, forensics). It rejected overly formalistic demands (e.g., magistrate re-reading sealed statements) where statutory text and precedent do not require it. Ratio vs. Obiter: Ratio - confessions under s.32 POTA recorded by a Superintendent, after statutory safeguards and with material corroboration, are admissible and may form the basis of conviction; confession of one accused is not per se admissible against co-accused. Obiter - guidance on reconciliation of s.32 with practical investigation exigencies. Conclusions: The Court held s.32 safeguards were respected and confessions (where corroborated by material particulars) were admissible and reliable for conviction; retractions were held to be afterthoughts lacking credible foundation. ISSUE: Ocular eyewitness evidence versus medical/ballistic/forensic evidence (consistency, contradictions and proper approach) Legal framework: Ocular testimony generally has primacy but must be tested against medical and forensic evidence; where medical/ballistic evidence 'completely rules out' ocular testimony the latter must yield; otherwise ocular testimony prevails, especially when corroborated by other material. Precedent treatment: The Court surveyed authorities (including cases where medical evidence contradicts ocular testimony and where ocular evidence prevails despite gaps) and reiterated the established rule that medical evidence is corroborative, not conclusive, unless it wholly improbabilises the ocular account. Interpretation and reasoning: The Court undertook granular comparison: eyewitness account of a market-vendor-witness (presence, actions, identification) was tested against post-mortem (wounds description - communicating wounds, internal/external bleeding), ballistic expert's findings linking bullets to seized revolver, blood/serology, and position of body. The Court explained medical phenomena (bullet re-entry, communicating wounds, internal haemorrhage) to reconcile seeming mismatches (7 wounds vs. 5 bullets; blood quantity/distribution; window opening). It found medical and ballistic evidence corroborated, not contradicted, the ocular testimony, and rejected High Court's technical discounting of the eyewitness based on minor discrepancies (time estimates, clothing colour, seat blood quantity, site map drafting irregularities). Ratio vs. Obiter: Ratio - where medical and ballistic evidence can be explained consistently with ocular testimony (by accepted medico-legal principles), ocular evidence may be preferred and relied upon; minor discrepancies do not automatically vitiate reliability. Obiter - extended discussion on bullet trajectories and re-entry phenomena. Conclusions: Eyewitness identification and narration were held reliable when taken with forensic corroboration; the Court restored trial court findings rejecting the High Court's acquittal founded on alleged medical/forensic inconsistencies. ISSUE: Recoveries, chain of custody and ballistic individualisation Legal framework: Recovery at accused's instance admissible under s.27 Evidence Act; forensic individualisation relies on striation/breach-face marks to match bullets/cartridges to specific firearm, subject to preservation of chain and seals. Precedent treatment: Court applied established ballistic identification principles (individual characteristics/striations) and case law on admissibility/weight when firing-pin tampering exists but gross striations persist. Interpretation and reasoning: The Court reviewed seizure memos, sealing, CFSL transfers, and testimony of ballistic expert confirming fired bullets were from the seized revolver (.32 revolver); addressed firing-pin tampering and noted that remaining striation/breach face marks still permitted identification. It rejected defence arguments about colour/metal composition and lack of certain tests (copper test) as insufficient to displace the established chain and expert opinion; preservation of seals and documented transfer were found adequate. Ratio vs. Obiter: Ratio - where chain of custody is demonstrably preserved and ballistic expert evidence identifies bullets/cartridges with sufficient correspondence of individual characteristics, recoveries sustain evidentiary weight even if some tests were not performed. Obiter - remarks on scope of expert re-examination in tampering scenarios. Conclusions: Recoveries and forensic linkage were held reliable and materially corroborative of confessions and ocular evidence. ISSUE: Call detail records, tower-location evidence and cyber/e-mail printouts as circumstantial corroboration Legal framework: CDRs and electronic records admissible subject to foundational proof (authentication of telecom records, business-records exceptions, Section 65B where applicable); tower-location provides circumstantial presence evidence. Precedent treatment: Court treated CDRs as strong circumstantial material when properly authenticated and explained; e-mail/printed records and cyber-seizures corroborated mobility, contacts and planning. Interpretation and reasoning: The Court accepted testimony of telecom officers and CDRs showing accused mobile locations near incident site, contemporaneous calls between conspirators after the act, issuance and use patterns of SIMs, and cyber-records/visitor registers corroborating travel and stay. Defence technical objections under Section 65B were considered but Court found adequate foundational testimony and corroboration by independent witnesses. Ratio vs. Obiter: Ratio - properly authenticated CDR and electronic evidence constitute strong circumstantial proof of presence and coordination; lack of handset recovery is not fatal when other corroborative matrix exists. Obiter - caution on precise timing inferences from CDRs. Conclusions: CDRs and electronic records substantially corroborated presence, planning and post-offence communication and buttressed conspiracy findings. ISSUE: Alleged defects (interpolation of site map, non-examination of family members, delayed FIR, sketch discrepancies) and appellate interference on acquittal Legal framework: Appellate restraint in appeals against acquittal - interference only for perverse findings, glaring infirmity, or legal error; non-production of certain witnesses or minor documentary lapses do not mandate acquittal when evidence as a whole proves guilt. Precedent treatment: Court applied standards for reviewing appellate interference and for weighing omissions/non-examinations (site map prepared by police is not substantive testimony under s.162 CrPC). Interpretation and reasoning: Court found alleged interpolations explained (pencil-to-ink tracing; name added later as clerical matter), non-examination of non-eyewitness family members immaterial, delay in lodging explained by scene circumstances; deemed High Court's approach hyper-technical and insufficient to dislodge trial court factual findings supported by cogent corroboration. Ratio vs. Obiter: Ratio - minor procedural inconsistencies do not justify overturning a conviction when the cumulative evidence supports guilt; appellate court may reverse an acquittal only for compelling reasons. Obiter - admonition against hyper-technical dissection of corroborative testimonial matrix. Conclusions: Trial court's detailed appreciation was preferred; High Court's acquittal reversed where it adopted an over-technical stance failing to engage with totality of corroboration. ISSUE: Writ petition for further investigation based on media reports and post-trial statements Legal framework: Extraordinary remedies for re-investigation reserved for cases showing material deficiency, fresh credible material not previously available, or manifest failure of investigation; public interest litigants must act bona fide and not for ulterior motive. Precedent treatment: Court applied authorities limiting PIL use to bona fide matters and noting that newspaper reports/hearsay do not constitute adequate basis for ordering re-investigation. Interpretation and reasoning: Court examined new material (post-trial witness statement, book excerpts, media reports), found them either hearsay, unreliable, unrelated to the prosecuted matter, or possibly motivated. It also censured apparent collaboration between some petitioners and accused counsel, treated the petition as improperly filed and refused to order re-investigation absent credible new material. Ratio vs. Obiter: Ratio - re-investigation will not be ordered on the basis of uncorroborated media reports or belated hearsay; PILs must be bona fide and not vehicles for accused-driven collateral attacks. Obiter - strong admonition on professional ethics where counsel in executive body of petitioner participated. Conclusions: Writ petition dismissed; no warrant for fresh probe. SENTENCING/FINAL DISPOSITION p. Where appellate challenge did not lie (no appeal by prosecuting agency against certain acquittals or outcomes), the Court declined to interfere; where convictions were restored, sentences of trial court were reinstated as per findings above; where sentences already served or modified by High Court for some accused, no further interference warranted.