TaxTMI 
TaxTMI 
2014 (5) TMI 1161
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....reinafter 'POTA') as per list in para 2 below, for the attack on the Akshardham temple in Gandhinagar between the afternoon of 24.09.2002 and early morning of 25.09.2002, wherein 33 people were killed and more than 85 people were injured. 2. The following list outlines the charges against each of the accused and the conviction and sentences meted out to them by the Special Court (POTA), Ahmedabad, and upheld by the High Court of Gujarat. Accused No. 1 is not in appeal before us. The Appellant Nos. 1-5 before us will hereinafter be referred to as per their position as accused i.e. A-2 to A-6. Appellant No. 4, Abdullamiya Yasinmiya Kadri (A-5) has already undergone 7 years out of the 10 years of sentence awarded by the learned Judge, Special Court (POTA) and by order dated 03.12.2010, this Court directed him "to be released to the satisfaction of the trial court." The following list outlines the charges, conviction and sentences awarded to each of the accused-Appellants. All the accused persons had been charged with offences under the following sections by the learned Judge, Special Court (POTA): 1. Section 120B of the Indian Penal Code. 2. Section 120....
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.... read with Section 5 of POTA-Rigorous imprisonment for 10 years and a fine of Rs. 5,000/- and in case of default, simple imprisonment for 1 year. * Section 22(2)(a) and (b) of POTA-Rigorous imprisonment for 10 years and fine of Rs. 20,000/- and in case of default, simple imprisonment for 1 year. * Section 120B Indian Penal Code read with Section 4 of Explosive Substances Act-Rigorous imprisonment for 10 years and fine of Rs. 10,000/- and in case of default, simple imprisonment for 2 years. * Section 120B Indian Penal Code read with Sections 3 and 6 of Explosive Substances Act-life imprisonment and fine of Rs. 20,000/-. * Section 120B Indian Penal Code read with Section 302 Indian Penal Code-Death penalty (hanging by neck till death) and fine of Rs. 25,000/-. * Section 120B Indian Penal Code read with Section 307 Indian Penal Code-life imprisonment and fine of Rs. 20,000/- and in case of default, simple imprisonment for 1 year. * Section 120B Indian Penal Code read with Section 27 of Arms Act-Rigorous imprisonment for 7 years and fine of Rs. 10,000/- and in case of default of fine, simple imprisonment for 1 year. * The a....
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....al Code read with Section 27 of Arms Act, Rigorous imprisonment for 7 years and a fine of Rs. 10,000/-, and in case of default, simple imprisonment for 1 year. * The accused was acquitted of the rest of the charges. Abdul Qaiyum Muftisaab Mohmed Bhai (hereinafter 'A-4') * Gave shelter to the fidayeens. * Wrote the two Urdu letters recovered from the fidayeens, which spoke of instigating violence and atrocities and communal riots. Convicted and sentenced under: * Section 3(3) of POTA-Life imprisonment and a fine of Rs. 10,000/- and in default of payment, simple imprisonment for 2 years. * Section 3(3) read with Section 5 of POTA-Rigorous imprisonment for 10 years and a fine of Rs. 5,000/- in default of payment of fine, simple imprisonment for 1 year. * Section 120B Indian Penal Code read with Section 4 of Explosive Substances Act-Rigorous imprisonment for 10 years and a fine of Rs. 10,000/- in default of payment of fine, simple imprisonment for 2 years. * Section 120B Indian Penal Code read with Sections 3 and 6 of Explosive Substances Act-life imprisonment and a fine of Rs. 20,000/-, in default....
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....00/- in default of payment of fine, the same shall be recovered in accordance with law. * Section 3(3) read with Section 5 of POTA, Rigorous imprisonment for 10 years and fine of Rs. 5,000/- in default of payment, simple imprisonment for 1 year. * Section 120B Indian Penal Code read with Sections 3 an 6 of Explosive Substances Act-life imprisonment and a fine of Rs. 20,000/-, in default of payment of fine to recover the amount in accordance with law. * Section 120B Indian Penal Code read with Section 4 of Explosive Substances Act-Rigorous imprisonment for 10 years and a fine of Rs. 10,000/- in default of payment of fine, simple imprisonment for 2 years. * Section 120B Indian Penal Code read with Section 302 Indian Penal Code-Death penalty (hanging by neck till death) and a fine of Rs. 25,000/- in default of payment of fine to recover the amount in accordance with law. * Section 120B Indian Penal Code read with Section 307 Indian Penal Code-life imprisonment and fine of Rs. 20,000/- in default of payment of fine, simple imprisonment for 1 year. * Section 120B Indian Penal Code read with Section 25(1AA) of Arms Act-rigorous impris....
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....lace of offence to return the fire. Ambulances were called and other police forces were also urgently called at the place. The team led by Mr. V.B. Rabari-Inspector General of Police, Mr. R.B. Brahambhatt-Deputy Superintendent of Police, Gandhinagar and four other special reserve police commandos climbed on the roof. By that time, the terrorists (fidayeens) once again started firing. A fierce gun battle ensued, and there was also a bomb blast. 6. In the meantime, a team of National Security Guard (NSG) commandos was summoned from New Delhi. They arrived by a chartered flight and took control at about 12.00 at midnight. After understanding the topography of the area, they began the counter attack against the fidayeens. Exchange of firing continued and lasted for nearly 5 hours which went on into the wee hours of 25.9.2002. Eventually both of them were killed in the early morning hours as they succumbed to the injuries received in the said operation. It is the further case of the prosecution that a large quantity of fire arms and explosive substances were carried by the two fidayeens. Some of the explosives were seized along with other articles from the premises. The attack result....
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....with a few others, as they had become spiteful after the incidents of riots which had taken place in the state of Gujarat after the Godhra train burning incident in 2002. Subsequently, A-6 was also taken into custody and arrested by the Gujarat police on 12.09.2003 from the State of Jammu and Kashmir. It is also the case of the prosecution that after investigation, the matter was concluded and the charge sheet was filed against all the six accused persons by the Crime Branch, after obtaining necessary sanction from the State Government for the purpose of taking cognizance of the offence in compliance with Section 50 of POTA. In the said charge sheet, 26 persons were shown as absconding accused. The five accused persons, who were arrested on 29.08.2003, remained in the police custody, which had been sought from the Judicial Magistrate, Gandhinagar on 29.08.2003. Provisions of POTA were invoked by the police on 30.08.2003. The chargesheet was filed before the designated Court constituted Under Section 23 of POTA, on 25.11.2003. It is further the case of the prosecution that the chargesheet was filed by the Investigating Officer after obtaining necessary sanction order as requir....
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....akistan and Saudi Arabia. The Indian Muslims residing in Saudi Arabia were instigated to retaliate for the incidents which happened during the months of March and April, 2002 and were enticed to fund the terrorist attack. The Fidayeens were recruited by the said masterminds who traveled to Ahmedabad by train from Kashmir via Bareilly and they were provided with rifles, hand grenades, gun-powder and other weapons. The said accused persons joined them in providing necessary hide-outs in the city of Ahmedabad and also provided them transport to go in and around the city of Ahmedabad and helped them in selecting the place and time for carrying out the attack. The accused persons also helped in giving them last rites of namaaz for their well being (Hifazat). 15. The High Court further held that a criminal conspiracy was hatched to strike terror amongst the Hindus in the State of Gujarat. The accused persons and the absconding accused, were in connivance, had gathered the Indian Muslims working in the towns of Jiddah, Shiffa and Riyadh of Saudi Arabia at the residence of A-3. A-1, A-3 and A-5 and the absconding accused Nos. 3 to 5 and 12 to 22, who at the instance of the ISI of Pakist....
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....d witnesses, production of clothes of injured PSI-Digvijaysinh Chudasama and injured witness, the splinters of hand grenades and bullets recovered from the injured and these are proved by the panchnama Exs. 553, 106, 121, 107, 596, 108,597, 109, 110, 111 and 160. Also, the reference of recovery of the disputed signature of witness-Abdul Wahid (PW-56) in the entry register of Hotel G. Royal Lodge, Naampalli, Hyderabad and the collection of his specimen signature collected under Panchnama (Ex. 583) is proved by Panch-Manubhai Chhaganlal Thakker (PW-101: Ex. 581) and collection of the natural signature of the witness Abdul Wahid (PW-56) under Panchnama (Ex. 684) is proved by the investigating officer ACP Singhal (PW-126: Ex. 679). Reference was made to the Panchnama (Ex. 682) proved by Panch-Dipakshinh Ghanshyamsinh Chudasama (PW-62: Ex. 344) regarding seizure of Auto-rickshaw No. GRW-3861 wherein the fidayeens visited various places and the route they had taken in Auto-rickshaw on 22.09.2002 and the route to Akshardham Temple on 24.09.2002, was traced by A-2. Reference was also made of the house of Abbas (the brother of A-2) in which fidayeens and Ayub (absconding accused No. 23) wer....
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.... was made to the recovery of muddamal-ambassador Car No. KMT-413 from the compound of SOG Camp, Srinagar, J & K. The existence/disclosure of concealed cavity under the rear seat of the car in Panchnama (Ex. 671), is proved by the Police Inspector-Shabirahmed (PW-123: Ex. 670) and the Assistant Sub-Inspector Gulammohamad Dar (PW-124: Ex. 673). Reference was made of the disputed handwriting of Yusufbhai Valibhai Gandhi (PW-57) from entry No. 81 dated 23.09.2002 and his natural handwriting from entry Nos. 224, 225 and 226 of 24.05.2003 and 26.05.2003 from the passenger register of Gulshan Guest House in Panchnama (Exs. 317 and 319) which have been proved by the Panch-Poonambhai Narshibhai Parmar (PW-54: Ex. 318) and Panch-Ashok Sahadevbhai Kahaar (PW-53: Ex. 316) respectively. The Panch-Poonambhai Narshibhai has also proved recovery of the disputed signature of A-6, from column No. 13 of the aforesaid entry No. 81. The collection of specimen handwriting of Yusuf Gandhi (PW-57) in Panchnama (Ex. 321) is proved by Panch-Sajubha Adarji Thakore (PW-55: Ex. 320). The High Court has made further reference that A-6 identified STD booths used by him during his stay in Ahmedabad on 23.09.2002 ....
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....Section 120-A of Indian Penal Code which constitutes the offence of criminal conspiracy, held that the acts subsequent to achieving an object of criminal conspiracy may tend to prove that a particular accused person was a party to the conspiracy. Conspiracy is hatched in private or in secrecy and it is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused persons. Further, reference was also made to the judgment in the case of State of W.B. v. Mir Mohammad Omar and Ors. (2000) 8 SCC 382, wherein it was held that the courts should bear in mind the time constraints on the police officers in the present system, the ill equipped machinery they have to cope with and the traditional apathy of respectable persons towards them. The High Court also relied upon the case of Rotash v. State of Rajasthan (2006) 12 SCC 64, wherein this Court held that the investigation was not foolproof but that defective investigation would not lead to total rejection of the prosecution case. Further, reference of State of M.P. v. Mansingh (2003) 10 SCC 414 in the....
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.... Gujarat, working at Riyadh used to meet at the residence of A-3 and also admitted that one Karim Annan Moulvi (absconding accused No. 20), who was a native of Pakistan, also used to attend the meetings. He also stated that he used to collect funds in the name of Islam and was connected with Pakistani Jihadi group "Sippa-e-Saheba" and had also become a member of "Jaish-e-Mohammed". The High Court also stated that the confessional statement made by him is supported by the evidence of Abdul Raheman Panara (PW-51: Ex. 314) 25. In paragraph 19 of the impugned judgment, the Division Bench of the High Court examined the admissibility of the confessional statements made by A-1, A-2, A-3, A-4 and A-6 and their probative value and held that the confessional statements were made by the accused persons Under Section 32 of POTA before Sanjay Gadhvi, Deputy Commissioner of Police (Zone-IV) (PW-78: Ex. 452), Ahmedabad, who had been examined by the prosecution. He had deposed before the Special Court (POTA) about the manner in which the confessional statements of the accused persons were recorded. He also identified and proved their confessional statements (marked as Exs. 454, 456, 458, 460 an....
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....r Padhya CJM (PW-99: Ex. 568) who had recorded the statement of A-1 and A-3 on the request of PW-78, DCP on 18.09.2003, i.e. a day after their confessional statements were recorded. A-2 and A-4 made their confessional statements before PW-78 on 24.09.2003 and were sent to PW-99 on 25.09.2003. A-6 made his confessional statement on 05.10.2003 and was sent to PW-99 on 06.10.2003. PW-99 had stated before the Special Court (POTA) that accused persons had stated before him that they were not ill treated by the police. Their statements were read over to them. With regard to cross examination of PW-99, he admitted that he had not inquired from the accused persons as to how long they were in the police custody nor did he send them to judicial custody after recording their statements. He deposed that he did not think it necessary to send the accused persons to the judicial custody. He has also admitted that he had not recorded a specific statement that the accused persons had made confessional statement of their own volition. 30. The High Court considered the evidence of PW-99 and came to the conclusion that the procedural safeguards provided Under Section 32 of POTA have been followed b....
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....re arrested long before the official date recorded and that they were tortured by the police to make the confessional statements. The aforesaid evidence of DW-3 referred to A-2 and A-3. The High Court referred to all the defence witnesses, except DW-3 to hold that none of the aforesaid evidence remotely supports the defence version that A-2 and A-3 were arrested long before 29.08.2003, i.e. the dates of arrest as mentioned in their arrest memos. The High Court held that the evidence of the doctors also does not prove the police atrocities allegedly committed upon the accused persons during the period they were in the police custody. All the six accused persons, in their retraction statements, complained of having been beaten up by ACP Singhal (PW-126), V.D. Vanar and R.I. Patel, because of which they could not stand up on their feet. On denying their complicity in the Akshardham attack, they were threatened of being encountered. Each accused persons said that every day they were called either by Singhal, V.D. Vanar or by R.I. Patel and were forced to admit their complicity in the Akshardham attack. On 05.11.2003, the accused persons were produced before the Special Court (POTA) fro....
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....ises of Akshardham temple itself under Panchnama (Ex. 440), signed by the Police Officer Shri Prakashchandra Mehra (PW-105: Exh. 592). The evidence and the opinion (Exh. 511) of the handwriting expert J.J. Patel (PW-89: Exh. 507) was relied upon to prove that the said letters were written by A-4. 34. The argument advanced by the learned Counsel for the accused persons regarding the subsequent planting of letters was rejected by the High Court, stating that if this argument was to be accepted, then the aforesaid evidence adduced by the prosecution has to be disbelieved and it has to be held that the police had such presence of mind that in the: milieu of the aftermath of the terrorist attack, the police thought of creating the evidence, found out a person who knew Urdu, got them to write the write-ups in handwriting that would match the handwriting of accused No. 4, Abdul Kayyum, made Lt. Col Lamba and Brig. Raj Sitapathi their accomplices and that the two officers of the NSG readily agreed to be the accomplices. SO did the panch witness, Vinod Kumar(PW-74) and Dilip Sinh (PW-1). This possibility is too far-fetched to believe. The High Court therefore held that ....
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....submitted that the learned Counsel for A-6, Ms. Kamini Jaiswal placed reliance on the case of Ramanath Gadhvi v. State of Gujarat (1997) 7 SCC 744 qua the sanction Under Section 20-A(2) of TADA, which has been declared per incuriam by a 5 Judge Bench in the case of Prakash Bhutto v. State of Gujarat (2005) 2 SCC 409 and therefore the judgment has no relevance. Confessions of A-1, A-2, A-3, A-4 and A-6 are valid: 37. The learned senior Counsel contended that the procedure for recording of the confessions as Under Section 32 of POTA was scrupulously followed. The accused persons did not make any complaints of beatings or ill treatment by the police when produced before the CJM for remand on different dates. When the complaints were made later, a medical examination was carried out in which none of the complaints were found to be true. The learned senior Counsel also submitted that the confessional statements of A-2 and A-4 were recorded on 24-09-2003, that of A-3 on 17-09-2003 and that of A-6 on 05-10-2003. A-5 did not make any confession at all. The retraction to these confessional statements came around five weeks later. He contended that it is clear that these retractions ar....
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....No. KMT 413, in a secret cavity made underneath the back seat, and thereafter he carried the weapons, concealed in the bedding in the train and accompanied the fidayeens to Ahmedabad. The Navgam Police Station at Jammu & Kashmir had arrested A-6 in offence registered in FIR: CR No. 130 of 2003, and it was during the interrogation in the above said offence that he had disclosed his involvement in the Akshardham attack. A fax message was received by the Gujarat ATS from the IGP Kashmir regarding the same on 31.08.2003. The investigation was conducted by PW-126 who was the then ACP and was authorized to do so as per Section 51 of POTA. A team was formed under the proper authorization for collecting materials from different places during investigation. I.K. Chauhan (PW-125) was asked to go for inquiry to Jammu & Kashmir. It was submitted that there were many other evidences, other than his confessional statement, including the testimony of Yusuf Gandhi, owner of Gulshan Guest House, (PW-57) who had stated before the Special Court (POTA) that A-6 stayed there, and also the panchnama of the ambassador car KMT 413 (Ex. 671). Delay in cracking the case. 41. The learned senior C....
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....e represented by learned senior Counsel, Mr. K.T.S. Tulsi and thereafter A-3 and A-5, who are represented by learned senior Counsel, Mr. Amarendra Sharan. Subsequently, the contentions urged on behalf of A-6 who is represented by learned Counsel, Ms. Kamini Jaiswal will be dealt with. The contentions will be dealt with topic wise. That the Sanction required Under Section 50 of POTA was not obtained in a proper manner. 46. Section 50 of POTA provides that "no court shall take cognizance of any offence under the Act without the previous sanction of the Central Government or as the case may be by the State Government." The prosecution has relied on the testimony of Kuldeep Chand Kapoor (PW-88) to prove that the sanction was granted in accordance with the law. It was contended by the learned Counsel for A-6 that the perusal of the statement of PW-88 would show that all the documents pertaining to the investigation were not placed before the sanctioning authority and it was only on the approval of the Minister that the sanction was granted. The sanction was granted without due application of mind. Thus the said sanction is not a proper previous sanction, on the basis of which t....
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....by the accused. Remanding the accused persons to judicial custody has been considered as the most significant safeguard and protection against torture by police, which was thrown to the wind by the CJM, thereby he had violated the fundamental rights guaranteed to the accused persons Under Articles 20(3) and 21 of the Constitution. It was further contended by the learned senior Counsel that there was a failure on the part of the courts below in not considering the evidence of doctors who work in Government Hospitals and who deposed in the case on behalf of the accused persons that A-2 to A-6 had complained of having received severe beating by the police prior to recording the confessional statements. The said evidence is clear from the depositions of DW-2(Ex. 731), DW-4(Ex. 736), DW-5(Ex. 737) and DW-7(Ex. 744). From the evidence of DW-2, it is revealed that the X-ray plates and case papers of A-4 were found missing and from the aforesaid evidence, the only conclusion that can be drawn is that once the accused persons had complained of having received severe beatings by the police prior to their making of their confessional statements, the credibility of such confessions became doub....
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.... to be set aside as they have relied solely upon the confessional statements made by the accused persons while upholding their conviction. The courts below had gravely erred in not considering the very important legal aspect of the matter, that a trial court cannot begin by examining the confessional statements of the accused persons to convict them. It was contended that it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of other evidence, only then, the court must turn to the confessions in order to be assured as to the conclusion of guilt, which the judicial mind is about to reach, based on the said other evidence. In support of the aforesaid legal submissions he had placed reliance upon the judgment of this Court in the case of Haricharan Kurmi v. State of Bihar (1964) 6 SCR 623 and the Navjot Sandhu case (supra). 50. Further elaborating their submissions, the learned senior Counsel urged that the confession of an accused person has been regarded by this Court as fragile and feeble evidence which can only be used to support other evidence. In support of this contention he relied upon the judg....
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.... to buttress the said submission, he placed reliance upon the judgment of this Court in the case of Mrinal Das v. State of Tripura (2011) 9 SCC 479. In support of the said submission, he had further placed reliance upon the judgment of this Court in the case of Bhiva Doulu Patil v. State of Maharashtra AIR 1963 SC 599. Further elaborating his submission in this regard, he placed reliance upon another judgment of this Court in the case of Mohd. Husain Umar Kochra v. K.S. Dalipsinghji (1969) 3 SCC 429, wherein this Court had further stated with regard to the combined effect of Sections 133 and 114, Illustration (b) of the Indian Evidence Act, 1872 and held that corroboration must connect the accused persons with the crime. 53. The learned senior Counsel relied upon the case of Sarwan Singh v. State of Punjab AIR 1957 SC 637, wherein this Court has laid down the legal principle that the courts are naturally reluctant to act on such tainted evidence unless it is corroborated and that independent corroboration should support the main story disclosed by the approver apart from a finding that the approver is a reliable witness. The accomplice evidence should satisfy a double test, i....
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....atory as he had stated that no work was assigned to him. Therefore, such statement can neither be considered to be reliable nor worthy of acceptance without corroboration in material particulars from independent sources. In view of the test laid down by this Court in a catena of judgments referred to supra, upon which strong reliance had been placed by the learned Counsel based on the presumption contained in illustration (b) of Section 114 read with Section 133 of the Indian Evidence Act, it was submitted that provisions of the Evidence Act are of no avail to the prosecution case. Letters purportedly recovered from the pockets of the fidayeens cannot be relied upon: 57. Both the learned senior Counsel, Mr. K.T.S. Tulsi and Mr. A. Sharan contended that it was not possible to believe that the letters were recovered from the pockets of the two fidayeens, mainly on the evidence from the post mortem of the dead bodies of the fidayeens which showed that the bodies had 46 and 60 external injuries, respectively, due to multiple bullet shots and the panchnama of the clothes of the assailants clearly demonstrated that their clothes were full of blood and mud and therefore, it was high....
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....ts of accomplices and confessional statements of the accused persons. 60. The learned senior Counsel, Mr. A. Sharan had submitted that the preliminary investigation of the case was initially carried out by the police from 27.09.2002 and thereafter, the investigation was handed over to the ATS on 03.10.2002. After the matter was investigated for a year, it was transferred to the Crime Branch on 28.08.2003 and surprisingly, on the very next day i.e., 29.08.2003, all the accused persons, except A-6 were arrested and on 30.08.2003, the provisions of POTA were invoked by the Crime Branch against them. 61. It was further contended by him that this made the prosecution story highly improbable and the fact that the accused persons were apprehended a year after the incident made the conduct of the prosecution highly doubtful and totally unreliable. It was further contended by him that it is a well settled principle of law that there should not be an inordinate delay in the recording of the statements of the accomplices by the police. PW-50, PW-51, PW-52 and PW-56 had stated in their depositions that their statements were recorded around the 7th or 8th month of 2003. Thus, this inor....
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.... accused persons, and that it was on the failure of the prosecution to establish such connection, that they had been subsequently roped in. 63. Further, it was contended that even from the confessional statement of A-6, wherein he had narrated as to how the two fidayeens were brought from Jammu & Kashmir to Gujarat, there was no mention of A-1 to A-5. Therefore, the prosecution had failed to establish the connection between A-6 and A-2, A-4, A-3 and A-5 and this important aspect of the matter had not been considered at all by the courts below while recording the finding of guilt against the accused persons and the same cannot be allowed to sustain. Defence Witnesses to be given same weightage as prosecution witnesses. 64. The learned senior Counsel also contended that the courts below should have given same weightage to the evidence of the defence witnesses as that of the prosecution witnesses and in support of this contention, he placed reliance upon the cases of Munshi Prasad v. State of Bihar (2002) 1 SCC 351, I.C.D.S. Ltd. v. Beena Shabeer and Anr. (2002) 2 SCC 426 and State of Uttar Pradesh v. Babu Ram (2000) 4 SCC 515. Suppression of material witness draws an adve....
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....20B and 153A of Ranbir Penal Code (RPC) and Sections 7 and 27 of the Arms Act. It was also the case of the prosecution that a fax message was sent by the IGP Kashmir to ATS, Gujarat on 31.08.2003, and that pursuant to the receipt of the fax, the Transfer Warrant was sought from the Special Designated Court (POTA), Ahmedabad and on that basis, the Application for Remand was made to the Chief Judicial Magistrate, Badgaum. A-6 was brought to Ahmedabad on 12.09.2003 and was arrested by the Gujarat police in CR No. 314 of 2002 at 9:30 P.M. Confessional statement of A-6 is not admissible against him. 69. It was further submitted that the entire case of the prosecution rested solely on the alleged confession of A-6 which was recorded on 05.10.2003 (Exs. 461-462), while he was in police custody. It had been submitted that there were several violations of the mandatory requirements of Section 32 of POTA while recording his confessional statement. Learned senior Counsel Mr. K.T.S. Tulsi, appearing on behalf of A-2 and A-4 and Mr. A. Sharan learned senior Counsel appearing on behalf of A-3 and A-5 had also advanced arguments in detail as to how the confessional statements of the accused....
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....ed out only by the officer of the rank of Deputy Superintendent of Police or a police officer of an equivalent rank. It was argued that the investigation in the present case was mostly carried out by the officer of the rank of a Police Inspector. The POTA, unlike Code of Criminal Procedure does not contain any provision where the powers of the I.O. could be delegated to any other person. Thus, it was contented that any investigation, if carried out by any officer below the rank of ACP is illegal and evidence, if any, collected during such investigation could not be looked at. Findings of this Court: 72. We have heard the rival factual and legal contentions raised at length for a number of days and perused in detail the written submissions on record produced by the learned Counsel representing both the parties. We have also perused the material objects and evidence on record available with this Court in connection with this case. The following points that would arise in these appeals for the purpose of adjudication of the appeals by this Court are: 1. Whether sanction given by the Gujarat State Government dated 21.11.2003 in this case is in compliance with Section 50 ....
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....ing needs. I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact: Do these "laws" which have been called in question offend a still greater law before which even they must bow? (Emphasis laid by this Court) POTA was repealed in 2004. Yet, the trials, its implementation has entailed, are continuing till date. POTA was repealed for the gross violation of human rights it caused to the accused persons due to abuse of power by the police. This is an important aspect to be kept in mind while deciding this case and hence, it was pertinent to mention this in the beginning to say that we are wary of the abuse the provisions of this Act might bring. And we are conscious of it. Answer to point No. 1 74. It was contended by Ms. Kamini Jaiswal, the learned Counsel for A-6 that a perusal of the statement of PW-88 would show that not all documents pertaining to the investigation were placed before the sanctioning authority and that it was only on the approval of the Home Minister of the Sta....
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....52 of POTA had been complied with completely. There were no papers suggesting compliance of Section 52 of POTA in the bunch of papers sent to me. According to me, those papers were not relevant for my purpose as compliance was to be observed by the I.O. and I was not investigating the case. I do not agree that the entire Investigation had not been done by the competent officer of the level of ACP. I do not agree to the suggestion that neither Minister nor I applied mind while granting sanction nor officer below also applied mind for such a grant. (Emphasis laid by this Court) PW-88, in his deposition had stated that PW-126 had forwarded to him the relevant documents as aforementioned for the purpose of deciding whether it was a fit case for granting sanction Under Section 50 of POTA. He had reiterated in his deposition that he had perused all these documents, especially Patrak-A, which contained the details of the two Urdu letters and the opinion of the handwriting expert from the FSL and Patrak B, the contents of which were not mentioned in his statement, and also the details of the arrest of the accused persons. But glaringly, PW-88 had stated in his....
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.... a valid sanction is sine qua non for enabling the prosecuting agency to approach the court in order to enable the court to take cognizance of the offence under TADA as disclosed in the report. The corollary is that, if there was no valid sanction the Designated Court gets no jurisdiction to try a case against any person mentioned in the report as the court is forbidden from taking cognizance of the offence without such sanction. If the Designated Court has taken cognizance of the offence without a valid sanction, such action is without jurisdiction and any proceedings adopted thereunder will also be without jurisdiction. 9. In this case the prosecution relies on Ext. 63, an order issued by the Director General of Police, Ahmedabad, on 3-9-1993, as the sanction Under Section 20-A(2) of TADA. We are reproducing Ext. 63 below: Sr. No. J-1/1909/1/Khambalia 55/93 Director General of Police, Dated 3-9-1993 Gujarat State, Ahmedabad. Perused: (1) FIR in respect of offence Registered No. 55/93 at Khambalia Police Section 25(1)(b)(a)(b) of Arms Act and Sections 3, 4 and 5 of the TADA. (2) Application sent by DSP Jamnagar vide his l....
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....he reason for our saying so is that though there is no record a fax message of Deputy Director General of Police also, which is dated 18-3-1995, the sanction/consent order has mentioned above the fax message of the DSP only. Now, no doubt the message of the DSP is quite exhaustive, as would appear from that message which has been quoted above in full, we are inclined to think that before agreeing to the use of harsh provisions of TADA against the Appellants, the Government ought to have taken some steps to satisfy itself whether what had been stated by the DSP was borne out by the records, which apparently had not been called for in the present case, as the sanction/consent was given post-haste on 18-3-1995, i.e., the very next day of the message of the DSP. It seems the DSP emphasised the political angle in the first two paragraphs of his message. The dispute or motive stated was that the Darbars were annoyed because they were refused loan and not because of any political rivalry. In the third paragraph there is reference to statements of accused after arrest which would ordinarily be inadmissible in evidence. Reference to avoid incident of the past does not provide any nexus. The....
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.... independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution. (Emphasis laid by this Court) 77. However, the present case does not show that the sanctioning authority had applied its mind to the satisfaction as to whether the present case required granting of sanction. The prosecution had failed to prove that the sanction was granted by the government either on the basis of an informed decision or on the basis of an independent analysis of fact on consultation with the Investigating Officer. This would go to show clear non-application of mind by the Home Minister in granting sanction. Therefore, the sanction is void on the ground of non-application of mind and is not a legal and valid sanction Under Section 50 of POTA. Answer to Point No. 2 78. To begin with, the provisions for recording confessional statements can be found in Code of Criminal Procedure Under Section 164 which reads as: 164. Recording of confessions ....
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....wer to administer oath to the person whose statement is so recorded. (6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried. However, caution against the use of confession statements made by accused persons before the police, is specifically provided in Section 162 of the Code of Criminal Procedure, which reads as: 162. Statements to police not to be signed: Use of statements in evidence. (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved,....
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....on shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it. (4) The person from whom a confession has been recorded Under Sub-section (1), shall be produced before the Court of a Chief Metropolitan Magistrate or the Court of a Chief Judicial Magistrate along with the original statement of confession, written or recorded on mechanical or electronic device within forty-eight hours. (5) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate, shall, record the statement, if any, made by the person so produced and get his signature or thumb impression and if there is any complaint of torture, such person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than an Assistant Civil Surgeon and thereafter, he shall be sent to judicial custody. Since this Act makes a departure from the established criminal jurisprudence as well as the provisions of the Constitution, the constitutionality of the Act came to be challenged before this Court in the case of Peoples Union of Civil Liberties v. Union of India (2004) 9 SCC 580. The Cour....
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....64-83 of SCC). While enacting this Section Parliament has taken into account all the guidelines, which were suggested by this Court in Kartar Singh case. Main allegation of the Petitioners is that there is no need to empower the police to record confession since the accused has to be produced before the Magistrate within forty-eight hours in which case the Magistrate himself could record the statement or confession. In the context of terrorism the need for making such a provision so as to enable Police officers to record the confession was explained and upheld by this Court in Kartar Singh case (p. 680 para 253 of SCC). We need not go into that question at this stage. If the recording of confession by police is found to be necessary by Parliament and if it is in tune with the scheme of law, then an additional safeguard Under Sections 32(4) and (5) is a fortiori legal. In our considered opinion the provision that requires producing such a person before the Magistrate is an additional safeguard. It gives that person an opportunity to rethink over his confession. Moreover, the Magistrate's responsibility to record the statement and the enquiry about the torture and provision for s....
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....ntended that the statutory mandates had been complied with by the police. We have perused the evidence on record in this aspect. We have found stark discrepancies in the manner in which the statements of the accomplices and those of the accused persons were recorded. While the statements of the accomplices in the present case, namely-PW-50, PW-51 and PW-52 were preceded by written records of cautions in the same document, the confessional statements of the accused persons do not show such caution. On the other hand, the intimation by the DCP Sanjaykumar Gadhvi (PW-78) appeared on a separate documents marked as separate Exhibits from the confessions. The same are as follows: For A-2-Adambhai Sulaimanbhai Ajmeri Intimation letter given by DCP prior to confession-Ex. 457 Confessional Statement-Ex. 458 For A-3-Mohammad Salim Mohammad Hanif Sheikh Intimation letter given by DCP prior to confession-Ex. 453 Confessional Statement-Ex. 454 For A-4-Abdul Kayum Intimation letter given by DCP prior to confession-Ex. 459 Confessional Statement-Ex. 460 ....
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....n is to be recorded. Rule 15 extracted above would show that confession shall be in writing and signed by the person who makes the confession. The police officer 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 and the pro forma of such certificate also is appended to Rule 15. 17. Ext. PAA does not contain such a certificate having been given by PW 34. It is true that PW 34 had put certain questions to the accused as to whether he was aware that the statement which he wants to make could be used against him and on the basis of the same he will be sentenced. The officer also asked him whether there is any pressure, fear on him and he answered in the negative. However, PW 34 did not give the certificate at the end of the confession. The certificate should have specifically stated that he had explained to the person making the confession that he was not bound to make the confession and, if he does so, the confession he may make may be used against him and t....
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....d the accused about how many days of his remand are left. I had not told him that he will not be sent to police custody again. In the case of Mohammad Ajmal Mohammad Amir Kasab Alias Abu Mujahid v. State of Maharashtra (2012) 9 SCC 1, the accused was willing to make confessional statement while he was in police custody. Yet, his confession was deferred on the ground that he shall be sent to judicial custody after the confession was made before the CJM and this would hinder the investigation procedure. However, in the present case, presenting the accused persons before the CJM for half an hour was a mere formality to show compliance with the provisions of Sections 32(4) and 32(5) of POTA since they were sent back to police custody immediately after being presented before the CJM. 83. In the present case, the CJM (PW-99: Ex. 568), during cross examination went on to record that: .. I did not make inquiry with any police officers with regard to the said confessions. I had not asked the two accused produced before me as to whether they need any lawyer or not. I had not taken the said accused persons in my custody. It is true that I did not issue any warrant for the....
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....s speaking fearlessly and whatever facts were stated by him, its point were clear. There was no sign of fear in his expression and he was not crying. I have not made any note at any place with regards to the fact stated by me to the accused persons that their case is with Crime Branch and I am not associated with Crime Branch in any way. I have also not made note about having stated to the accused that I am Deputy Superintendent of different area. It is true that I have not noted the fact separately regarding which I have stated in my deposition that for the purpose that he can re-think about giving statement voluntarily, I had called my office boy and had got him seated in adjacent office of my PA and had asked to have water and think over with peaceful mind for 10-15 minutes and then come back to my office. It is true that I have not made any note with regards to the fact that "After 15 minutes, he had again come to my office and had stated that he had thought with peaceful mind about his good and bad, thereby on the basis of feeling regret felt by him, and that he in fact desires to make his statement". It is true that there is no note regarding the fact that I had read....
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....able reflection time was given to the accused persons before making the confessional statements, though the prosecution claimed to have given them 15 minutes as reflection period. We will examine this aspect of the matter herein. It is pertinent to mention here that the two exhibits referred to supra, namely, the letter of intimation and the statements of confession, in the case of each of the accused persons, are of the same day. It has been contended by the learned senior Counsel of the accused persons that not enough time was given to them to reflect on the incident before making confessional statements. They were given a token amount of time i.e., 15 minutes to think and reflect and thereafter the recording of confessional statements began, which fact is on record as per the statement of PW-78, who recorded their confessional statements. While it has been laid down by this Court that the amount of time to be given for reflection before confession depends on the facts and circumstances of the case, it is imperative to bear in mind that in the present case, the accused persons were making confessions after a period almost 11 months after the incident. Hence, a mere period of 1....
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....nt on administering the statutory warning to the accused forms a belief that the accused should be granted some time to think over the matter, it becomes obligatory on him to grant reasonable time for the purpose to the accused. In other words, the cooling time that is granted has to be reasonable. What time should be granted would of course depend upon the facts and circumstances of each case. At the same time, however, when the time to think over is granted that cannot be a mere farce for the sake of granting time. In a given case, depending on facts, the recording officer without granting any time may straight away proceed to record the confessional statement but if he thinks it appropriate to grant time, it cannot be a mechanical exercise for completing a formality. 12. In Sarwan Singh Rattan Singh v. State of Punjab where a Magistrate granted about half an hour to the accused to think over and soon thereafter recorded the confessional statement, this Court reiterated that when an accused is produced before the Magistrate by the investigating officer, it is of utmost importance that the mind of the accused person should be completely freed from any possible influence o....
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....m before his statement is recorded. In our opinion, in the circumstances of this case it is impossible to accept the view that enough time was given to the accused to think over the matter." 20. In the facts and circumstances of the present case the grant of half an hour to the accused to think over before recording their confessional statement cannot be held to be a reasonable period. We do not think that is safe to base conviction on such confessional statements. Further, on the facts of the present case, conviction cannot be maintained on the sole testimony of two police officials. It may also be noticed that although PW-6 Chander Bhan, Armourer, was examined by the prosecution to prove that the weapons were in working conditions, no effort was made to prove that the ammunition or the empties matched the weapons. (Emphasis laid by this Court) Therefore, in the given facts and circumstances on record and based on the legal principles laid down by this Court, we are of the opinion that enough time was not given to the accused persons to record their confessional statements, particularly in the present case since they were making confessions after 11 months of ....
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....rticularly because of the grave consequences which follow such statements, which might result in deprivation of life and personal liberty of the person, which is a fundamental right guaranteed by the Constitution that can be taken away only by following the procedure established by law. Therefore, it is incumbent upon the CJM to strictly and scrupulously follow all the statutory procedural safeguards provided for Under Section 32 of POTA. 88. Further, the other statutory mandate Under Section 32 of POTA is that the person making the confessional statement shall be produced for medical examination and thereafter, be sent to judicial custody after the CJM records the statement of the accused person. The question which then arises for our consideration is whether this mandate is operative only if the accused makes a complaint of torture before the CJM or whether the CJM is duty bound to send the accused persons to judicial custody as a statutory requirement after recording the statement. It had been contended by the learned senior Counsel on behalf of the accused persons that they were subjected to physical torture by the police before the confessional statements were recorded and ....
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.... it known to the maker that he was not legally bound to make the confession and on getting a positive response from him that he voluntarily made the confession without any threat or violence, the ACMM recorded the statement to that effect and drew up necessary proceedings vide Exts.PW63/5 and PW63/6. It is pointed out that the accused, having had the opportunity to protest or complain against the behavior of police in extracting the confession, did not say a single word denying the factum of making the confession or any other relevant circumstances impinging on the correctness of the confession. It is further pointed out that Afzal and the other accused were also got medically examined by the police and the Doctor found no traces of physical violence. It is therefore submitted that the steps required to be taken Under Sub-sections (4)&(5) were taken. However, the learned Counsel for the State could not dispute the fact that the accused Afzal was not sent to judicial custody thereafter, but, on the request of the I.O. PW80, the ACMM sent back Afzal to police custody. Such remand was ordered by the ACMM pursuant to an application made by PW80 that the presence of Afzal in police cust....
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.... the face of Section 32(5) of POTA. Compelling circumstances to bypass the requirement of judicial custody are not apparent from the record. 89. Apart from Section 32 of POTA, Section 52 also lays down certain guidelines which are to be strictly adhered to while recording the confessional statements of an accused person Under Section 32. On this issue, it was held in Navjot Sandhu case (supra) as under: 158. These provisions of Section 32, which are conceived in the interest of the accused, will go a long way to screen and exclude confessions, which appear to be involuntary. The requirements and safeguards laid down in Sub-sections (2) to (5) are an integral part of the scheme providing for admissibility of confession made to the police officer. The breach of any one of these requirements would have a vital bearing on the admissibility and evidentiary value of the confession recorded Under Section 32(1) and may even inflict a fatal blow on such confession. We have another set of procedural safeguards laid down in Section 52 of POTA which are modelled on the guidelines envisaged by D.K. Basu (2003) 10 SCC 414 Section 52 runs as under: 52. (1) Where a polic....
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....te the constitutional protection underlying Article 20(3). It was held that even the investigation at the police level is embraced by Article 20(3) and this is what precisely Section 161(2) means. The interpretation so placed on Article 20(3) and Section 161, in the words of the learned Judge, brings us nearer to the Miranda mantle of exclusion which extends the right against self-incrimination, to police examination and custodial interrogation and takes in suspects as much as regular accused persons (SCC p. 435, para 22). The observations in M.P. Sharma v. Satish Chandra (SCR p. 1088) to the effect that: the protection afforded to an accused insofar as it is related to the phrase 'to be a witness' is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him" were cited with approval in Nandini Satpathy case (SCC p. 448, para 43). 90. Therefore, we are of the opinion that neither the police officer recording the confessional statements nor the CJM followed the statutory mandates laid down in POTA Under Sections 32 and 52 while recording the confessional statements o....
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.... unconfirmed testimony of the accomplice and the inclusion by the accomplice of an innocent person is defeated. This rule of caution or prudence has become so ingrained in the consideration of accomplice evidence as to have almost the standing of a rule of law. 9. The argument here is that the cautionary rule applies, whether there be one accomplice or more and that the confessing co-accused cannot be placed higher than an accomplice. Therefore, unless there is some evidence besides these implicating the accused in some material respect, conviction cannot stand. Reliance is placed in this connection upon the observations of the Judicial Committee in Bhuboni Sahu v. Emperor a case in which a conviction was founded upon the evidence of an accomplice supported only by the confession of a co-accused. The Judicial Committee acquitting the accused observed: Their Lordships whilst not doubting that such a conviction is justified in law Under Section 133, Evidence Act, and whilst appreciating that the coincidence of a number of confessions of co-accused all implicating the particular accused given independently, and without an opportunity of previous concert, might be ent....
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....er there that Lashkar-e-Toiba is having huge fund but is not having network and Jaish-e-Mohammed does not have fund but is having manpower as well as it is having network, and hence, both these groups will work together, therefore you just give donation. On that night many persons gave donation, donation of about 12 to 13 thousand Riyals was given. We were taken to the program by Rashidbhai Ajmeri and Salimbhai because we did not know those people. Those people were new for us. Similar program was also organized after riots in Gujarat. At that time at least 400 people had gathered and all were from Gujarat. Good amount of donation was gathered in it also. And thus by doing such small meetings, they used to gather money. After some time, people got fed up and used to say that you are not doing anything and are just utilizing the money. We used to give money to Salimbhai Sheikh who was with us, and he used to give this money to Faradullah Ghauri, and he used to send this money to India through charge responsibility (Hawala). He used to send this money through Majid Vora Patel and Iqbal Vora Patel who are basically from Bharuch. Thereafter, during about three months of riots ....
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....nor did he say to us about what he did with the money. I had given maximum of 500 Riyal to Salimbhai, it is Rs. 5000/-. Besides me, there were my other friends who also used to meet at Salimbhai's place on every Thursday. Except me, all other used to ask Salimbhai about what he did with the money. Salimbhai used to say that this money has been collected for taking revenge. Since he didn't say anything everybody had stopped giving money. I don't know if this money was utilized for running relief camps. ..The meetings which held during nights, the said meetings held in big halls and party plots of Riyadh. Salimbhai used to take us in these meetings, and therefore, we used to go, he had said you will have to come and therefore we had attended two or three meetings. It was not like that I have to go wherever Salimbhai asked to, because he was doing his business and I was doing job. Further, on cross examination by learned Counsel of A-2 and A-4 before the Special Court (POTA), PW-50 deposed as under: I know Rashid Ajmeri since two years of incidence. Rashid Ajmeri was at Saudi Arabia in year 2002. Name of the brother of Rashid Ajmeri is Adam. I....
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....r Darwaja on my scooter, and Nasir Doman had also come along on his scooter. From STD/ISD booth named Kohinoor Telecom, Adam had dialed number at Saudi Arabia and firstly he had done all the talk in Arabic language, and thereafter to give us assurance, he had talked in Hindi language and asked to exchange greetings with the people involved with me in work. By saying this, Adam handed over the receiver to me . I was asked from the other side in Gujarati, 'brother, what you need,'. Prior to this, Adam had asked me to demand for Rs. 20 Lac for the work. Therefore, on my say that it would take Rs. 20 lac for the work, I was asked from the other side to give the phone to Adambhai. And Adam had done some talk in Arabic language. We could not understand the said language. In the last week of May 2002, Nashir had called me to his house by sending message through someone. And when I went, Nashir, Adam and Adam's brother Ahmed was present. Adam had given me Rs. 5000/- and had said to me that guests are going to come and you have to arrange for their lodging. And he had also given Rs. 5000/- to Nashir and he said to buy two mobile phones from it and give it to Rehman, and had s....
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....d on. And since the phone was continuously switched off, he has made story about the guests having returned from Kheda, just to reprimand me. But I did not come to know if the guests may have come up to Kheda or not. After about a week or 10 days, Adam met me at Dariapur and had said to me that the carnage persons have returned back after coming to Bareja-Narole as contact could not be made. Therefore, there is no meaning keeping the mobile phone with you. By having said this, he has asked us to return both the mobile phones, and therefore I had replied that there is my card inserted in the mobile phone with me and I will return it to you after I get another instrument for me, and I will return the other one by getting it back from my friend, so Adam had said to give both the mobile phones to Nashir and thereby he had left .. During this time, Liyakat of Juhapura who had gone outstation for marriage ceremony had returned, and he met me at the corner of Madhno Mohallo at Dariapur. He had said to me that now the guests are not going to come. Possession of the said house is to be handed back to Sohrabkhan after returning mattresses, barrels and table fans. The rent for it is ....
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....Court) Finally, we are extracting the relevant excerpt from the statement made by PW-52 (Ex. 315). The excerpt from his statement reads as under: When the relief camp for Muslims had started at Dariapur Bawahir Hall, at that time Muslim youths of our area used to gather over there. All used to sit and talk. Abdul Rehman Panara was the organizer of the camp. Since he had business by name of Panara Garments, I knew him. The main administrators of the camp were Mufti Abdul Qaiyum and Maulvi Abdullah. Nasirbhai Doman who used to visit camp is cable operator of our area, and I know him. I know Adambhai since last election of Municipality because he used to take interest in politics by Congress Party. I knew brother of Adambhai named Ahmedbhai of Dariapur, and therefore, I started knowing Adambhai. In the beginning of April 2002, once Adam had called me on my mobile phone during noon time. I had gone to Chaarwad Bawahir Hall and Nasir, Adam and Abdul Rehman were present over there. At that time, Adam Bhai had said that Muslims have been oppressed here. And therefore, carnage for taking its revenge is to be done. He said that "my brother Rashid is in Saudi. And Salim ....
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....ement. My friends are in garage profession. After I came to know regarding this carnage, I was not afraid at any time that I may be implicated in this carnage. Witness himself states that I don't know anything about it so why should I be afraid? I was suddenly called at Crime Branch on 6.9.2003. It is true that next day, on 7th, my statement was recorded. It is not true that I was kept for one month at Crime Branch. I have never met any body after this. I had not talked with any one of them. It is true that there was no activity in the relief camp at Bawahir Hall. It is true that I don't know anything about if there was any daily note in register for entry/exit in Bawahir Hall. It is true that I have stated in examination in chief that no work was assigned to me. It is true that when I was informed during cross examination about my statement having been recorded on 7.9.2003, at that time I got idea about the date, month and year. Question: Had you understood at the respective time that confession of the offences is being written? Answer: No, I have not committed any offence at any time, then how such confession can be written. I don't remember if....
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....al. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based. (Emphasis laid by this Court) A perusal of the evidence of all the three accomplices in the present case shows that all of them intended to absolve themselves of the liability for the conspiracy with respect to the attack on Akshardham, going as far to mention that they were not involved in the incident and only the accused persons knew about the intricate details of the chain of events that ultimately led to the execution of their plan of 'carnage'. Even then, if, we were to presume that the accomplices have implicated themselves by mentioning that they were aware about some incident which was about to happen and thus, were part of the criminal conspiracy, the evidence of the accomplices fail the second test, in that it fails to prove the guilt of the accused persons beyond reasonable doubt. All the three accomplices mentioned about the plan of 'carnage' which the accused persons had plan....
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.... relief camps in Gujarat, he was not able to answer for what purpose exactly the money was collected. Therefore, at the most, even if his evidence is taken to be true for the sake of argument, some suspicion, if at all, can be cast on the involvement of A-3 in some sort of illegal activity at the most. But culpability of a person in as grievous an offence as this, cannot be premised on mere suspicion without knowledge of the nature of the illegal activity. 94. Next, with respect to PW-51, the evidence is not reliable because of two reasons. Firstly, according to his evidence, it was reported to him by A-2 that the fidayeens had arrived from Hyderabad which contradicts the claim of the prosecution. Secondly, A-2 did not state anything beyond the alleged arrival of the fidayeens which cannot be connected to the event of attack on Akshardham beyond reasonable doubt. It again, merely arouses suspicion about the involvement of A-2 and the passive approval of A-4 and A-5 in the incident. Even with respect to PW-52, other than the fact that he mentioned about A-2 telling him that they are planning a 'carnage' and that some 'guests' have arrived, no other detail was p....
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....d, as has been done by the courts below. Moreover, it is a settled principle of law that the confessional statements of accomplices form a very weak form of evidence, to prove the culpability of the accused persons if the guilt of the accused cannot be proved, independent of the statements of the accomplices. Therefore, the same cannot be used to corroborate the confessional statements of an accused. Instead, there should be independent evidence to corroborate the evidence of the accomplice to establish the culpability of the accused. In this regard, we intend to rely upon the three Judge bench decision of this Court as early as 1952 which still holds its field. In the case of Kashmira Singh v. State of Madhya Pradesh AIR 1952 SC 159, this Court held as under: 8. Gurubachan's confession has played an important part in implicating the Appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. The King: 76 Ind App 147 at p.155: It does not indeed come within the....
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....e Privy Council observe in Bhuboni Sahu v. The King 76 Ind. App. 147 at p.157: The tendency is include the innocent with the guilty is peculiarly prevalent in India, as judge have noted on innumerable occasions, and it is very difficult for the court to guard against the danger The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates such accused. 12 We do not doubt that a rickshaw was used because rickshaw tracks were discovered by the well long before anybody had suggested that a rickshaw had been used. But we find it difficult to resist the inference that this witness was an accomplice so far as the disposal of the body was concerned. Consequently, he is in much the same category so far as credibility is concerned. That brings us at once to the rule that save in exceptional circumstances one accomplice cannot be used to corroborate another; nor can he be used to corroborate a person who though not an accomplice is no more reliable than one. We have therefore either to seek corroboration of a kind which will implicate the Appellant apart from the confession or f....
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....2009) 8 SCC 383 as under: 21. It stands accepted that the statements of PW 3 and PW 6 were recorded only on 31-1-1998. The investigating officer did not assign any reason as to why so much delay was caused in recording their statements. A panchnama in regard to the scene of offence was conducted. PW 6 was admittedly not present at that time. The statements of PW 3 and PW 6 were recorded Under Section 164 of the Code of Criminal Procedure much before their recording of their statements Under Section 161 thereof. 22. In Ganesh Bhavan Patel v. State of Maharashtra this Court held: 47. All the infirmities and flaws pointed out by the trial court assumed importance, when considered in the light of the all-pervading circumstance that there was inordinate delay in recording Ravji's statement (on the basis of which the 'FIR' was registered) and further delay in recording the statements of Welji, Pramila and Kuvarbai. This circumstance, looming large in the background, inevitably leads to the conclusion, that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady setting, highly redolent of doubt and ....
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.... himself states that I was kept blind folded (by tying strip on eyes) and therefore, I don't know. I was questioned about identification of accused No. 2 and 5. I do not know after how many days these accused persons were brought when I was taken by the Crime Branch personnel because I could not make out about dates and days. It is true that I was released after two months by the crime branch and remand of the accused had completed prior to the time when I was released. It is true that when I was taken to the magistrate, I was told that this confession could be used against me in the Court ..It is true that the statement written by the Magistrate Sir was written from the statement at Crime Branch. During cross examination by the Special Public Prosecutor, Shri H.M. Dhruva, he stated thus: I was taken to Crime Branch in seventh or Eighth month of the year 2003. I was confined continuously for two months and was not allowed to go anywhere. Application was not submitted by any of my relative in this regards. My relative had not filed any case with regards to my wrongful confinement nor was any application filed. After I got released 2 months later, I have not submitted....
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.... point in favour of the Appellants. Answer to point No. 4 98. The two Urdu letters were mentioned for the first time in the list of Muddammal articles (Ex. 524) collected from the fidayeens by Major Lamba (PW-91) and handed over to PW-126 by Panchnama drawn up for the same(Ex. 440). In the same, the mention of the two Urdu letters comes as under: (7). Two white papers upon the same some writing have been made in Urdu language estimated price of the same can be assumed at Rs. 0.00 Further, the receipt voucher of articles recovered from the body of the fidayeens and handed over to the I.O. by PW-91 (Ex. 524) merely makes a mention of 'handwritten letters in Urdu'. PW-91, in his deposition before the Special Court (POTA) (Ex. 522), had made the following statement: Thereafter, we had carried out search of entire area of Akshardham and all explosives those were not exploded, we had destroyed all of them at the same place. Thereafter, I handed over two dead bodies, two AK 47/56 Rifles, chocolates, one live hand grenade, two chits found from dead body, and other articles by preparing its separate list to D.S.P. Shri G.L. Singhal. I am shown ....
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....d over the same in Akshardham temple itself. They were checking as per list of Exhibit 524 and they had prepared voucher thereof and in that manner they had seized the articles. The Maulvi was called in Akshardham temple itself. He came during period of 8:00 AM to 9:00 AM. I don't remember certain time. I cannot give his name. His signature is not obtained at any place. When we had seized the articles of Exhibit 524 from the terrorists, at that time no police officers were present, because, that premises was in our possession. I don't know as to where Shri Singhal kept all those items after I handed over to him. I don't know the Urdu language. It is true that for showing that both these chits were seized by us, there is no other evidence with me to show except the signature of Brigadier Sitapati. It is true that there is no date therein. It is not the same as were seized at the relevant time. Witness willingly states that, these are these chits, which had been seized from the dead body by me. It is not true that, Brigadier Sitapati has not made any signature in my presence. (Emphasis laid by this Court) The learned senior Counsel on behalf of the accused per....
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....the police are naturally deprived of an opportunity of effective cross-examination and it will be difficult to give any credence to a statement which was given for the first time in court after about a year of the occurrence. We cannot, therefore, agree that the High Court was right in accepting the evidence of this witness as lending assurance to the testimony of other witnesses on the basis of which alone perhaps the High Court felt unsafe to convict the accused. The legal principle laid down by this Court in the aforementioned case renders the case of the prosecution with respect to the recovery of the alleged letters from the dead bodies of the fidayeens, fatal. We however, intend to further examine the contents of the letters (Ex. 658) to determine if they are the same letters which were alleged to be recovered from the pockets of the trousers of the fidayeens. It is pertinent here to examine the deposition of PW-121(Ex. 657), the translator of the Urdu letters before the Special Court (POTA). The translation of his statement from Gujarati to English, as per the documents submitted on behalf of the accused persons, reads as under: I know Urdu, Arabic and Persian la....
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.... in Urdu language. I translated Arabic language to Urdu language into Gujarati language. There was a writer appointed by Shri Tolia. I stated and he typed them. My statement was taken by the police on the day I did the translation. 100. We are therefore, not inclined to accept any of the contradictory versions of either of the parties. It is pertinent to mention here that the poor translation of the documents from Gujarati language to English submitted by both the parties have majorly inconvenienced us. Therefore, instead of relying on either of the versions, particularly the aspect of the statement of the translator, since the same has been majorly contested before us, we intend to closely consider the other relevant evidence on this aspect which is brought to our notice. The excerpts of the translation of letter marked as Ex. 775 read as under: Tehrik-e-Kassas, Gujarat Hind. .. Now each young boy of Tehreek-e-Kassas will take revenge of the Muslims. Muslims of Gujarat come and by joining steps with young boys of Tehrik-e-Kassas, we should rebuild our mosques and take revenge of killings of Muslims. .  ....
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....papers were seized by any other officer before me. It is true that panchnama of dead bodies of two terrorists which I stated to have been done, its videography was done. I presently don't remember as to who had done the said videography. After getting the videography done, I have not received it cassettes or CD, because immediately thereafter investigation was handed over to another officer. It is true that my statement which is recorded by P.S.I. Shri Padheriya has no clear mention about Urdu papers. The order to hand over the investigation to Shri Tolia was not of Shri Singhal, but of Shri Brahmbhatt. He further stated during the examination by the Judge of the Special Court (POTA): I am being shown signature of Brig. Raj Sitapati from the time when both the papers of Mark-P were produced before me, I don't remember about the same presently and I cannot identify the said signature. It has not happened that any Maulvi (Muslim priest) was called before me, and the said papers were got translated. He also stated during the cross examination by the learned Counsel for A-2 and A-4: I have not recorded any statement ....
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....night at late hours, in my office of Zankar sound by closing shutter, I and Maulvi Abdulla made discussion and I wrote two chits in Urdu in my handwriting wherein we wrote that "violence on Muslims in Gujarat due to which feeling of revenge is spread in Muslims, now blood of Hindus, police will come out and now Shiv Sena, VHP and temple will be burnt and due to that Muslims will get relief and called upon all Muslims to take revenge by shaking shoulders, and if you want to live, live with pride and if you want to die, then die with pride. This gift of massacre is for Advani and Modi .by saying to give both these chits and pen to fidayins on next day, I had given it to Maulvi Abdullah we performed two rakat fazal namaz, and as I called upon both fidayins to state their real names to make prayer for success of massacre, their safety and if they are died then they are going to heaven, doctor-2 stated his real name as Hafiz Yasir res. Lahore, Pakistan and Doctor-3 (Ashraf) stated his real name as Mohammed Faruk residence Ravalpindi, Pakistan and for their prayer we all five persons performed two rakat nafal namaz and gave hug to each other. At that time Maulvi Abdullah had given one....
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....d natural writings are similar. All these writings are written freely with speed showing natural variation among themselves. They agree in the writing habits such as movements, slants, spacing, relative size and proportion of characters, line quality, alignment of characters; manner of accommodation etc. They also show similarities in the execution of various commencing, terminal and connecting strokes. However, during cross examination by the learned Counsel on behalf of A-2 and A-4 while deposing before the court, he has stated as under: Question: Hand writing science is not a perfect science. Answer: It is also not imperfect science. It can be called developing science. Question: What basic knowledge of Urdu you have? Answer: The Urdu language is written from right to left, the said fact as well as the fact that the complete word is written in combination that initial, medial and final. Also, wherever there is double pronunciation like in bachcha, kachcha then letter like little 'W' like English is made. I have studied 'Kaaf', 'Gaaf', 'Nukta', 'Hamja', 'Tasdid', 'full- st....
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....l Government Laboratory, and the photocopies of the documents were sent to the Government Examiner of Questioned Documents(in short 'GEQD'), Ministry of Home Affairs, Hyderabad for the preliminary examination. Accordingly, Assistant Government Examiner, Shri A.K. Singh and Shri R.K. Jain, the senior most GEQD of the Central government had arrived at the FSL of Gujarat. It was further stated by PW-89 that the officers from Hyderabad had worked independently and prepared their opinion. Accordingly, PW-89 formed a final opinion based upon the opinion of the aforesaid officers (Ex. 511). The senior most officer, Mr. R.K. Jain, sent certificate via fax on 14.09.2003 in which he had stated that he was in consent with the opinion of PW-89. However, objection was raised by the Counsel for the accused persons at the Special Court (POTA) for taking this certificate on record, since this document of certificate was never given to the defence in the charge sheet papers, or at any time thereafter. Moreover, the prosecution had also submitted that even they were unaware of the existence of this document, and this knowledge had come before them only during the course of recording of the d....
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....jarat Police, on their requisition, for investigation in the present case which was registered vide FIR 314 of 2002. In this regard, we shall examine the statements of Police Inspector Shabbir Ahmed (PW-123), Sub-Inspector, Gulam Mahammed (PW-124) who are from the Jammu & Kashmir Police and Ibrahim Chauhan, Police Inspector of Crime Branch, Ahmedabad (PW-125). 109. The statement of PW- 123 is extracted as under: the car was seized in our police station limit. The car was seized in September 2003. I do not remember exact date. There may be letters of seizing car in our police station. I did not seize the car, but investigating officer of the case did it. The car was seized by Gulam Mohammad Dar. I do not know if there were documents of the car. It is true that this car was seized by our police station and then by the Gujarat Police by Exhibit 671. During this course, I saw papers of seizure. The witness himself states that the papers would have been given to Gujarat Police, but I am not sure in this regard, but our case papers are those papers. It is true that we seized the car on the basis of suspect for investigation. I do not know the condition of the car when we seiz....
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....hop from which the car was allegedly recovered belongs to A-6. Therefore, we cannot see how the car can be linked to A-6 in the absence of any independent evidence other than his confessional statement which had been subsequently retracted. 111. It is also of the utmost importance for us to mention the statement of PW-125, Ibrahim Chauhan, Crime Branch, Ahmedabad regarding the seizure of the car since it is reflective of how casually and with what impunity the investigation has been conducted in the instant case by the investigating officer. PW-125, who was a part of the investigation of this case in Kashmir, and who was also responsible for escorting A-2, A-4 and A-5 to Srinagar, Kashmir, states as under: After knowing the facts of seizing car in the case 130/ 2003, I had no occasion to ask for papers regarding vehicle seized, because I was engaged in other works. It is in my view that panchnama regarding seizure of car No. KMT- 413 existed earlier to panchnama of Exhibit 671. I have not seen panchnama. (Emphasis laid by this Court) (translation extracted from the Additional documents submitted on behalf of the State of Gujarat) He again went on re....
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....ters that neither the two letters produced before the Special Court (POTA) nor the procedure by which the ambassador car was seized by the Gujarat police, inspires confidence in our minds to show that these are genuine evidence to implicate the accused persons in the offence. The only other material evidence on record on the basis of which the prosecution had argued the involvement of the accused persons, are the confessional statements given by A-1, A-2, A-3, A-4 and A-6 before the Gujarat police Under Section 32 of POTA. We have already mentioned that the confessional statements had not been recorded as per the strict statutory mandate provided for Under Section 32 of POTA, which made their confessional statements inadmissible as evidence. However, we also intend to record certain other reasons as to why the conviction and sentencing of the accused persons by the Special Court (POTA), which was upheld by the High Court in the appeals and reference order, is liable to be set aside. 113. We cannot lose sight of the fact that the confessional statements of the accused persons were recorded by the DCP, PW-78 in extremely suspicious circumstances. We have already held that the proc....
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....nfession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence." In Bhuboni Sahu v. The King 76 Ind App 147 at p.155 AIR 1949 PC 257 at p.260) the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that, a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. It would be noticed that as a result o....
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....d persons which were retracted and this aspect of the matter was required to be considered by the courts below while recording the findings on the charges framed against the accused persons. The retraction of the confessional statements of the accused persons A-2, A3, A-4 and A-6 and that of PW-51 revealed that they were tortured by the police to extract their confessional statements. Therefore, the confessional statements of A-2, A-3, A-4 and A-6 cannot be relied upon for this reason also i.e. they have been retracted vide Exs. 779 (A-2), 780 (A-4), 33 (A-3) and 32 (A-6). A-2 had retracted his confessional statement vide Ex. 779, wherein he had detailed the account of how he was detained on the charge of 'auto rickshaw theft' and was brought to the Crime Branch, Ahmedabad and forced to confess regarding the crime of attack on the Akshardham temple. He had stated that he was put to intense physical and psychological torture and the police threatened him and his family members with the motive of eliciting a confession out of him which he stated to be 'false' as he is not guilty of the same and had been falsely charged. Relevant portions of the retraction statement(Ex....
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....le came and told me that superior sahib was calling. I had no strength to walk or stand. I was caught and taken to Vanzara Saheb office. All four officers were present there. They told me to agree the crime, otherwise I shall be encountered. But I did not believe. Then they brutally beat me. There was bleeding in back portion .They gave me currents. Then I told them, sir, have mercy on me. I am not culprit. Pardon me. Please don't make me criminal wrongly. I do not know anything in this regard. They threatened me to harass me and my family members. Even though I have not committed any crime, they wanted to agree Akshardham crime. (Emphasis laid by this Court) (translation extracted from the Additional documents submitted on behalf of the State of Gujarat) A-2 further stated: One day Singhal Saheb called me to office and asked me to do as we say. I know that you are a good congress worker. The relief materials received from congress at the time of godhra episode were distributed among Muslims and poor persons as said by congress leader you contested as an independent candidate in 1998. We know that congress candidate was defeated and BJP candidate w....
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.... be taken to the Court. "If you complain, you shall not be kept alive. You might not be knowing what we can do. We can take out prisoner from the Central Jail and encounter him, while you are with us. Latif was in jail. We brought him out and killed. What can you do against us." I was not allowed to speak anything in the Court I was taken on 23-9-2003 with strips on my eyes. I was told that Doctor had come for my treatment I was given two injections on my right hand .On the next day I told them that I have many difficulties on account of your injections. Then Vanar Saheb and Patel Saheb told me that our work is over and I am not required now. On 25-9-03, Vanar Saheb, Singhal Saheb and other officers seated me in a jeep and took me to old high court. Singhal Saheb and vanar Saheb informed me that here in big judge. You should sign where he says, otherwise you know what we can do. Here court is ours, Govt. is ours, polices is ours and judge sahib is also ours. I was taken to judge sahib room. There were some written papers. I do not know what was written in it. Without allowing me to read anything judge sahib and crime branch officers took my signatures thereon .. Singhal, Vanar a....
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....sented a story of Akshardham before me and asked me to repeat that story before senior officer and confess it. I refused and so mental and physical torture was effected on me. I was beaten with a stick everyday on my backside, feet and palms. They used to beat me so badly that I fell down on the floor. Sometimes, lips were attached on my hand fingers and current was given to me. Pins were pierced below the nails of my finger tips. Such inhuman torture wad done on me for about ten days from 17/8/03 to 29/8/03. I was illegally kept in the Crime Branch office and tortured and threatened ..Later on 29-8-03, Friday at 3.00 pm noon, on officer (whose name I learnt later) PI RI Patel called my father and me too. My and fathers signatures were taken on some papers. Neither do I or my father know what was written on those papers. But we were helpless and had to sign them. At about 3-4 o clock many photographers came and made me cover my face with a bukha (cloth) and clicked photographs. That day at about 10.00 pm night Singhal Saheb called me and told me that I was arrested in Akshardham case. He told me that I would be presented in the court the next day .I was presented in court the ne....
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.... started owning loudly. Due to his humanitarian approach, I gained confidence and told him that I was innocent and knew nothing about Akshardham. They answered me that they would not let injustice happen to innocent as they had arrested the person involved in this scandal . .Later on 9-9-03 I was brought again to Ahmedabad I was brought to Crime Branch on 14-9-03, Vanar Saheb called me he was writing something on some papers Then he gave those papers to me(which he was writing). He asked me to read those papers. In them, I was accused of crime and falsely trapped in Akshardham case by these officers. After reading, I pleaded and requested Vanar saying that I was innocent and such allegations must not be charged on me .He asked me to read those papers in same way and confess in front of live camera, as they had written my role in those papers. At about 10.00 pm they compelled me to tell the false story in front of video camera .I used to forgot and make mistakes in telling the written story. At this PI Vanar used to sign me and remind me .He also made the camera close and abused me and reminded me the untrue story in this way by beating and threatening me they made me revea....
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....confession are on the face of them false, the confession may be acted upon as it stands and without any corroboration. But the view taken by this Court on more occasions than one is that as a matter of prudence and caution which has sanctified itself into a rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated one of the latest cases being 'Balbir Singh v. State of Punjab AIR 1957 SC 216 (C), but it does not necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated nor is it essential that the corroboration must come from facts and circumstances discovered after the confession was made. It would be sufficient, in our opinion, that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession. In this connection it would be profitable to contrast a retracted confession with the evidence of an approver or an accomplice. Though Under Section 133 of the Evidence Act a conviction is not illegal merely because it proceeds on the uncorroborated testimo....
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....this corresponds to their complaints of pain 'under the feet'. 117. Further, A-5 also made a statement as per Ex. 778 that he was tortured in police custody and that he had no role in the conspiracy to attack the Akshardham temple and he was being framed in the case. The statements of retraction also referred to the repeated entreaties by accused persons before the Special Court (POTA) as well as by A-2, A-4 and A-5, before the DIG of Police at Jammu and Kashmir, Mr. K Rajendra Kumar to transfer the case to the CBI for an independent investigation and enquiry. 118. Further, A-6 had also retracted his confessional statement (Ex. 32), wherein he had also alleged severe torture and beating by the Srinagar police as well as the Crime Branch, Ahmedabad and he alleged that he was arrested at Nagpur and sent to Srinagar and a compulsory confession had been extracted from him in order to implicate him in the crime. 119. Further, with respect to the two Urdu letters, which were purportedly written by A-4, upon which the prosecution placed such an unflinching reliance in order to establish a link between the fidayeens and the accused persons, has already been answered by us ....
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....n - a stronger suspicion than that which is attached to the confession of an approver who leads evidence to the court. (Emphasis laid by this Court) 121. Thus, for the above reason also, the confessional statements of the accused persons cannot be relied upon and the case of the prosecution fails. Accordingly, we hold that there is no independent evidence on record to prove the guilt of the accused persons beyond reasonable doubt in the face of the retractions and grave allegations of torture and violation of human rights of the accused persons against the police. We accordingly answer this point in favour of the Appellants. Answer to point No. 8 122. The accused persons have been found guilty of the offence of criminal conspiracy by both the courts below. It was contended before us by the learned senior Counsel for the prosecution that the accused persons in the instant case are guilty of criminal conspiracy and though the accused persons did not know each other, it is not a prerequisite for establishing the offence of criminal conspiracy provided Under Section 120-A of Indian Penal Code. On the other hand, it was contended by the learned senior Counsel for the a....
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.... two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement. (Emphasis laid by this Court) 123. The ingredients necessary to establish the offence of criminal conspiracy have been discussed by a three Judge bench of this Court in the case of Ram Narayan Popli and Ors. v. Central Bureau of Investigation (2003) 3 SCC 641 in a portion of the below para, as under: 342. ....The elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessari....
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....t they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements: (1) agreement; (2) between two or more persons by whom the agreement is affected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished..... 124. In the present case, the prosecution had relied upon the information contained in the confessional statements of the accused persons in order to set up the plea that the offence of criminal conspiracy had been committed by each one of them. A careful examination of this information will reveal that this claim of the prosecution does not hold water. 125. To punish an accused Under Section 120B of the Indian Penal Code, it is essential to establish that there was some common object to be achieved and that there was an agreement by the accused persons to achieve that object i.e. there was a 'meeting of minds'. In the present case, it cannot be said that the conspiracy was hatched by the accused persons in furtherance of some common object. The common object, according to the case of the prosecution was....
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....ther conspirator. But that is not the case here. It is not the case here that the knowledge of the conspirators is limited to their role. Each accused claims to have complete knowledge of the conspiracy, while contradicting the other's version of the same events to constitute the act of criminal conspiracy. 128. Therefore, the confessional statements of the accused persons and the accomplices do not complement each other to form a chain of events leading to the offence. Rather, the depositions of the prosecution witnesses were contradictory and disrupt the chain of events and turn it into a confusing story with many discrepancies, defeating the roles of each of the accused persons which have been allegedly performed by them. Also, none of the events of the alleged criminal conspiracy was supported by independent evidence that inspires confidence in our minds to uphold the conviction and sentences meted out to the accused persons. 129. Hence, we hold that the prosecution has failed to prove beyond reasonable doubt, the guilt against the accused persons, for the offence of criminal conspiracy Under Section 120B of the Indian Penal Code. We, therefore answer this point in fa....
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.... perceived to have been perpetuated. But in any view of the matter there is no jurisdictional lock which cannot be opened in the face of grave injustice... (Emphasis laid by this Court) Further, this Court has explained the circumstances in which it can interfere with the findings of the fact recorded by the courts below. In the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217, it was held by this Court that: 5. .......Such a concurrent finding of fact cannot be reopened in an appeal by special leave unless it is established: (1) that the finding is based on no evidence or (2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissible evidence, which evidence, if excluded from vision, would negate the prosecution case or substantially discredit or impair it or (4) some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or wrongly discarded.... More recently, in the case of Ganga Kumar Shrivastav v. State of Bihar: (2005) 6 SCC 211 it was stated....
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....at various stages, right from the investigation level to the granting of sanction by the state government to prosecute the accused persons under POTA, the conviction and awarding of sentence to the accused persons by the Special Court (POTA) and confirmation of the same by the High Court. We, being the apex court cannot afford to sit with folded hands when such gross violation of fundamental rights and basic human rights of the citizens of this country were presented before us. The investigation process post Akshardham attack happened as under: * The incidence of Akshardham happened in the intervening nights between 24.09.2002 and 25.09.2002. An FIR was registered by PW-126 on 25.09.2002. * According to the instruction of Superintendent of Police, the investigation of the complaint was handed over to Police Inspector Shri V.R. Tolia (PW-113). * The investigation was then handed over to the Anti Terrorist Squad on 03.10.2002. * The investigation was thereafter handed over to the Crime Branch which was assigned to PW-126 on 28.08.2003 at 6:30 p.m. * The statement of PW-50 was taken at 8 p.m., on the same night....
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....an ordinary care'. Firstly, the Special Court (POTA) accepted the justification made by the prosecution in sending the accused persons to police custody after being produced before the CJM on the ground that there was no complaint made by them. Secondly, the courts below held that the fact that A-1 to A-5 did not know A-6, does not disprove the theory of criminal conspiracy, rather it displays the extreme caution with which the conspiracy was hatched. We are unable to bring ourselves to agree with this reasoning of the courts below, as in the instant case, not only did A-1 to A-5 not know A-6 and vice versa, but also A-2, A-4 and A-6 had narrated different versions of the same story, each of which contradicted the other and was actually fatal to the case of the prosecution. The courts below mechanically and without applying their mind, discarded this contention of the learned Counsel on behalf of the accused persons. Thirdly, the two Urdu letters purported to have been recovered from the pockets of the trousers of the fidayeens (Ex. 658), did not have even a drop of blood, mud or perforation by the bullets, whereas on physical examination of the trousers by us, which are ....
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....ere released on bail at about 5 o' clock in the evening on the relevant day. .... The persons who were taken from Dariyapur Kalupur under POTA were- Maulvi Ahmed, Maulvi Abdulla, Mufti Kayum and many such people. All these people were taken before eight to nine days of the rally. In Cross Examination by Special P.P. Shri H.M. Dhruv for the state, DW-3 states as under: ....... I had given the names of the boys who were arrested under POTA to Nazneenben. Boys were talking in Mohalla. Maulvi Ahmed resides in Kalupur. It takes five to seven minutes if we go to Kalupur on foot from my house which is situated at Dariyapur. Maulvi Abdullah resides at Baluchawad Moti Haveli in Kalupur area. Mufti Kayum resides in Dariyapur and his house is situated at a distance of two to three minutes from my house. It is true that there may not be any occasion for me to visit houses of these people, only we meet on the way. It is true that Nazneen Ben told for arranging the rally in respect of their arrest under POTA. It is true that boys were saying that Maulvi Abdulla, Mufti Kayum and Maulvi Ahmed had been taken away by arresting them under POTA. It is not true t....
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....e itself -- what more is expected of the defence case: a doubt or a certainty -- jurisprudentially a doubt would be enough: when such a suggestion has been made the prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence. Rejection of the defence case only by reason thereof is far too strict and rigid a requirement for the defence to meet -- it is the prosecutor's duty to prove beyond all reasonable doubts and not the defence to prove its innocence -- this itself is a circumstance, which cannot but be termed to be suspicious in nature. (Emphasis laid by this Court) Also, in the case of State of U.P. v. Babu Ram (2000) 4 SCC 515, this Court held as under: 21. Shri N.P. Midha, learned Counsel for the Respondent submitted written submissions over and above the oral arguments addressed by him. One of the contentions adverted to by the learned Counsel is pertaining to the evidence of the defence witness (DW 1 Moharam Ali). Counsel contended that if the evidence of DW 1 Moharam Ali can be believed it is sufficient to shake the basic structure of the prosecution evidence. Shri N.P. Midha invited our ....
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....ings of fact of the Special Court (POTA) and the High Court are not only erroneous in fact but also suffers from error in law. Answer to point No. 10 136. On the basis of the issues we have already answered above based on the facts and evidence on record and on the basis of the legal principles laid down by this Court, we are convinced that accused persons are innocent with respect to the charges leveled against them. We are of the view that the judgment and order of the Special Court (POTA) in POTA case No. 16 of 2003 dated 01.07.2006 and the impugned judgment and order dated 01.06.2010 of the High Court of Gujarat at Ahmedabad in Criminal Confirmation Case No. 2 of 2006 along with Criminal Appeal Nos. 1675 of 2006 and 1328 of 2006 are liable to be set aside. Consequently, the sentences of death awarded to A-2, A-4 and A-6, life imprisonment awarded to A-3, 10 years of Rigorous Imprisonment awarded to A-5 are set aside. Since we are acquitting all the accused in appeal before us for the reasons mentioned in this judgment and also, since A-1 was convicted and sentenced on the basis of the same evidence which we have already rejected, we also acquit A-1 who is not in appeal be....