AI Drafter 
TaxTMI 
TaxTMI 
2008 (11) TMI 750
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....abad (hereinafter referred to as `trial Court') whereby they were acquitted of charges under Section 3 and 5 of The Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short `the Act') but were held guilty of different offences under the Indian Penal Code (for short `IPC') and sentenced to life imprisonment. Appellant Nos.A-5 and A-8 were also convicted under Section 27 of the Arms Act, 1959 and sentenced to three years rigorous imprisonment and a fine of Rs. 3,000/- and in default to undergo rigorous imprisonment for a further period of six months. They were also convicted under Section 135 of the Bombay Police Act. 2. Background facts (i) On 3.8.1992, Hansraj Trivedi, an alleged supplier of illicit liquor and eight others were gunned down at Radhika Gymkhana Club, Ahmedabad. Although the Police registered Criminal Case No. 254 of 1992 in connection with that incident but effective steps were not taken to arrest Abdul Latif and his gang members, who were perceived as the culprits. There was public outcry against the police inaction. This compelled the concerned officers to intensify their efforts to arrest the accused. In the wake of this develo....
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....e, Ahmedabad, the CBI filed charge-sheet under Section 3(1), 3(3) and (5) of the Act, Section 120B read with Section 302 IPC, Section 302 read with Sections 34 IPC, Section 302 read with Section 114 IPC, Section 302 IPC and Section 27 of the Arms Act. The case was committed to Designated Court and was numbered as TADA Case No. 176 of 1993. Subsequently, two more charge-sheets were submitted and the same were numbered as TADA Cases No. 25 of 1996 and 32 of 1996. All the cases were consolidated and were tried together. (iv) The charges were framed on 2.7.1998 against 11 accused. All of them pleaded not guilty. The prosecution examined 124 witnesses and produced 147 documents, which were duly exhibited. Thereafter, statements of the accused were recorded under Section 313 of Code of Criminal Procedure (Cr.P.C.). They alleged that the police has foisted false cases against them to avoid embarrassment for having failed to solve the mystery surrounding the murder of Rauf Valiullah and that confessions were extracted from them by using coercion and threats. 3. After analyzing the evidence produced by the prosecution and considering the confessions made by the appellants except....
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....nfessions, which the learned Presiding Officer failed to do and argued that the appellants could not have been convicted by relying on confessions ignoring that the same were not voluntary. Learned Counsel extensively referred to the statements made by the appellants under Section 313 Cr.P.C. to show that they were subjected to physical torture for the purpose of extracting confession and submitted that the same should have been rejected by the trial Court because, (i) All the appellants were brought from Ahmedabad to Delhi within 24 hours of their arrest and they were compelled to make confessions without giving them adequate time to ponder over the consequences. (ii) The appellants were throughout kept in the custody of Shri O.P. Chatwal, Deputy Superintendent of Police and Investigating Officer (for short `the Investigating Officer') and were deprived of the legal assistance. (iii) The appellants were produced before Shri A.K. Majumdar, PW- 104 and Shri Harbhajan Ram, PW-103 (both Superintendent of Police, CBI) for the purpose of recording their confessions despite the fact that they were directly supervising the investigation and were in a positio....
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....or convicting them on the charge of murder. 6. Shri Vimal Chandra S. Dave, counsel appearing for appellant Nos.A- 4 and A-10 argued that the confessions of the appellants are liable to be rejected because both Shri A.K. Majumdar and Shri Harbhajan Ram, Superintendents of Police, CBI, who were actively supervising the investigation, had successfully tutored the minds of the appellants and induced them to make confessions. Shri Dave submitted that all the accused were kept in the custody of the Investigating Officer for 10 days before their confessions were recorded but this aspect has been ignored by the trial Court while deciding the issue of voluntary character of the confessions. Shri Dave pointed out that appellant No. A-10 retracted his confession on 25.7.1996 itself when he was produced before Chief Judicial Magistrate, Delhi and argued that the trial Court committed serious illegality by relying upon the retracted confession. Dr. Sushil Gupta argued that there is no evidence to link accused with the conspiracy allegedly hatched by Rasool Party and the learned Trial Judge committed serious error by convicting them. In support of their arguments learned Counsel relied upon t....
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....for declaring the confessions to be non-voluntary. Shri Sharan then referred to the judgment of the Constitution Bench in Prakash Kumar v. State of Gujarat 2005CriLJ929 and argued that the conviction of the appellants under Section 302 read with Section 120B IPC cannot be faulted on the ground that they were acquitted of the charge under the Act. In the end, he argued that para 2 of the guidelines laid down by this Court in Kartar Singh's case which requires that the person who makes confession under Section 15(1) of the Act should be produced before the Chief Metropolitan Magistrate or Chief Judicial Magistrate to whom the confession is required to be sent under Rule 15(5) of the Rules along with original statement of confession, is not attracted in the present case because confessions of the appellants except appellant No. A-10 were recorded prior to 11.3.1994 i.e. the date of judgment and insofar as appellant No. A-10 is concerned, he was produced before the Chief Judicial Magistrate, Delhi on the date his confession was recorded i.e. 25.7.1996. 8. We have given serious thought to the entire matter. Section 15 of the Act, as amended by Act No. 43 of 1993 and Rule 15....
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....orandum at the end of the confession to the following effect: I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. Sd/- Police Officer (4) Where the confession is recorded on any mechanical device, the memorandum referred to in Sub-rule (3) in so far as it is applicable and a declaration made by the person making the confession that the said confession recorded on the mechanical device has been correctly recorded in his presence shall also be recorded in the mechanical device at the end of the confession. (5) Every confession recorded under the said Section 15 shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession s....
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....t if he does so, the said statement may be used against him as evidence, asserts his right to silence, the police officer must respect his right of assertion without making any compulsion to give a statement of disclosure. 10. Although the Constitution Bench observed that the Central Government may take note of the guidelines and incorporate them by appropriate amendments in the Act and the Rules, necessary amendments have not been carried out so far. 11. The question whether a confession recorded under Section 15 of the Act can be used for convicting an accused for an offence under other enactments like IPC despite his acquittal of the charge framed under the Act, was considered and answered in negative by a two-Judges Bench in Bilal Ahmad Kaloo v. State of A.P. 1997CriLJ4091 . The same view was reiterated in Rambhai Nathabhai Gadhvi v. State of Gujarat 1997CriLJ4806 and Gurprit Singh v. State of Punjab 2002CriLJ2978 . However, in Nalini's case, a three-Judges Bench held that if a person is tried simultaneously for offences under the Act along with other enactments his acquittal in respect of an offence under the Act is not sufficient to discard the confessio....
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....Act being the admissibility of the confession recorded under Section 15 of the Act in the trial of a person or co-accused, abettor or conspirator charged and tried in the same case together with the accused, as provided under Section 12 of the Act. 35. Section 12(1) as quoted above authorises the Designated Court to try offences under TADA along with another offence with which the accused may be charged under CrPC at the same trial. The only embargo imposed on the exercise of the power is that the offence under TADA is connected with any other offence being tried together. Further, Section 12(2) provides that the Designated Court may convict the accused person of offence under that Act or any rule made thereunder or under any other law and pass any sentence authorised under that Act or the Rules or under any other law, as the case may be for the punishment thereof, if in the course of any trial under TADA the accused persons are found to have committed any offence either under that Act or any rule or under any other law. 36. The legislative intendment underlying Sections 12(1) and (2) is clearly discernible, to empower the Designated Court to try and convict the a....
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....n against others as well as himself. But 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 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. Their Lordships think that the view which has prevailed in most of the High Courts in India, namely that the confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction, is correct. (emphasis supplied) 17. The same view was reiterated in Raja Khima'....
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....f a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars. CASES UNDER TADA 19. While enacting the Act, the legislature designedly made a departure from the provisions of the Cr.P.C. and 1872 Act and declared that confession made by a person before a police officer of the rank of Superintendent of Police or above, shall be admissible in the trial of such person as also the co-accused, abettor or conspirator for an offence under the Act or rules made thereunder. In order to ensure that this provision is not misused for extracting confession from a person accused of committing an offence under the Act, the legislature also specified certain safeguards in Sub-section (2) of Section 15 of the Act and Rule 15 of the Rules. In Gurdeep Singh's case, this Court interpreted the provisions of Section 15 of the Act in contra-distinction to Section 25 of the 1872 Act and held: 15. The legislature ....
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....y evidence and not corroborative. When the legislature enacts that the Evidence Act would not apply, it would mean all the provisions of the Evidence Act including Section 30. By judicial interpretation or judicial rigmarole, as we may put it, the court cannot again bring into operation Section 30 of the Evidence Act and any such attempt would not appear to be quite warranted. Reference was made to a few decisions on the question of interpretation of Sections 3 and 30 of the Evidence Act, foremost being that of the Privy Council in Bhuboni Sahu v. R. and though we note this decision, it would not be applicable because of the view which we have taken on the exclusion of Section 30 of the Evidence Act." In his concurring judgment Quadri, J. highlighted the distinction between Section 30 of the 1872 Act on the one hand and Section 15 of the Act on the other hand and observed that while under the former, the Court is given discretion to take into consideration the confession against the maker as well as against those who are being tried jointly for the same offence, the latter provision mandates that confession of an accused recorded thereunder shall be admissible in the trial of th....
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....trial of such person or co-accused, abettor or conspirator" in Section 15 which is different from the language employed in Section 30 of the Evidence Act which says that the court may take into consideration such confession as against such other person as well as against the person who makes such confession. It has to be presumed that Parliament was aware of the interpretation placed by the courts including the Privy Council and the Supreme Court on Section 30 of the Evidence Act but chose to frame Section 15 differently obviously intending to avoid the meaning given to the phrase "the court may take into consideration such confession as against such other person ..." used in Section 30 of the Evidence Act. On the language of Section 15(1), it is clear that the intention of Parliament is to make the confession of an accused substantive evidence both against the accused as well as the co-accused. 21. In S.N. Dube v. N.B. Bhoir and Ors. 2000CriLJ830 , the Court referred to the judgment of the Constitution Bench in Kartar Singh's case and observed that Section 15 is an important departure from the ordinary law and must receive that interpretation which would achieve the o....
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....0 would not be applicable. 23. In Jayawant Dattatraya Suryarao's case, the Court reiterated the rule that if conditions embodied in Section 15 of the Act and Rule 15 of the Rules for recording confession of a person by a police officer are complied with, then such statement is admissible in evidence not only against the maker but also against co-accused, abettor or conspirator. The Court then observed that "irregularities here and there would not make such confessional statement inadmissible in evidence. If the legislature in its wisdom has provided after considering the situation prevailing in the society that such confessional statement can be used in evidence, it would not be just reasonable and prudent to water down the scheme of the Act on the assumption that the said statement was recorded under duress or was not recorded truly by the officer concerned in whom faith is reposed." 24. In Devender Pal Singh's case majority of three-Judges Bench made a reference to Gurdeep Singh's case, Nalini's case and held that whenever an accused challenges the voluntary character of his confession recorded under Section 15(1) of the Act, the initial burden is on the pro....
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....(5) of Rule 15 of the TADA Rules which contemplates a confessional statement being sent to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate who, in turn, will have to send the same to the Designated Court is not mandatory and is only directory. However, the court considering the case of direct transmission of the confessional statement to the Designated Court should satisfy itself on facts of each case whether such direct transmission of the confessional statement in the facts of the case creates any doubt as to the genuineness of the said confessional statement. [Emphasis supplied] 26. In Abdulvahab Abdul Majid Shaikh's case, this Court rejected the argument raised on behalf of the appellant that the confession made by him cannot be treated as voluntary because the same had been retracted and observed: ...The police officer was empowered to record the confessional and in law such a confession is made admissible under the provisions of the TADA Act. The mere fact that A-9 Musakhan @ Babakhan retracted subsequently is not a valid ground to reject the confession. The crucial question is whether at the time when the accused was giving the statement....
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....ankaria's case, Aloke Nath's case and Ajit Singh's case on which reliance has been placed by the learned Counsel for the appellants do not have any direct bearing on these appeals. In Raja Khima's case, the offence is said to have been committed during the night of 18/19th May, 1952. The appellant was arrested on 20th May. On the next day he was sent for recording confession but the Magistrate recorded the confession on 3rd June. The Magistrate, who recorded the confession and was examined as PW 21, stated that he gave 10 days time to the appellant for reflection. By making a statement in writing before the committing court, he stated that while in jail, the police had coerced him to make confessional statement. He was frightened that if he would not confess the crime, the police will beat him and, therefore, he made false confession as per the dictates of the police. A similar statement was made by him under Section 342 Cr.P.C. 1898, which is equivalent to Section 313 Cr.P.C. This Court discarded the confession by making the following observations: The appellant was sent to a Magistrate at 8 p.m. on the 21st for the recording of a confession but the Mag....
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....o discovery of incriminating articles. On 30th November, he was sent to Magistrate to record his confessional statement. According to Magistrate, Mr. Grover, the accused was produced before him at about 2.30 pm. He gave him half an hour time to think. Thereafter, the confessional statement was recorded. This Court noted that the appellant was taken before the Magistrate by the Sub-Inspector who remained standing in the verandah outside the Magistrate's office, soon after the statement the Sub-Inspector went to the Magistrate's room and also that even though there were injuries on the person of the appellant, the Magistrate did not inquire about the same and held: There can be no doubt that, when an accused person 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 of the police and the effective way of securing such freedom from fear to the accused person is to send him to jail custody and give him adequate time to consider whether he should make a confession at all. It would naturally be difficult to lay down any hard and fast rule as t....
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....police, for recording the confession of the accused. Even then, the Magistrate postponed the recording of the confession till the following day, obviously because he wanted to give the appellant one day more in judicial custody to ponder over the matter free from Police influence. On June 14, notwithstanding the fact that the accused Shankaria was in judicial custody from the evening of June 12 after the preliminary questioning, the Magistrate allowed 15 minutes more to him for reflection. Thus considered, Shankaria had, as a matter of fact, about 38 or 40 hours in judicial custody, immediately preceding the confession and this was rightly considered sufficient to secure freedom from fear or influence of the police to him (Shankaria). 31. Aloke Nath Dutta's case was not arising out of prosecution under the Act. The argument of the counsel for the appellant which found favour with this Court was that the confession had not been recorded in accordance with law and in any case, in the absence of any corroborative evidence, the confession of a co-accused could not be made basis for conviction. 32. In Ajit Singh's case, the Court referred to the judgments in Kartar Singh&#....
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.... know about this case? Q.5 Are you making this confession voluntarily or making this confession under any fear, coercion and allurement? A. I am making this confession on my own and voluntarily without any fear, coercion or allurement. Q.6 It is not necessary for you to make a confession. If you make a confession, then it can be used against you? A. I am very well aware that it is not necessary for me to make a confession and that this confession can be used against me. But inspite of this I wish to make this confession voluntarily. Thereafter, Shri A.K. Majumdar recorded the following note: From the above questions and answers, I am satisfied that the accused Mohd. Farukh Allah Rakha Sheikh is making his confession voluntarily. However, I give him more time till 30.5.1993 again to think over whether he wants to make the confession. 35. On 30.5.1993, appellant No. A-4 was again produced before Shri Majumdar, who repeated the question whether he was desirous of making confession. In turn appellant No. A-4 reiterated that he was making confession voluntarily. Shri Majumdar then recorded his satisfaction that the accused was ready to ....
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....Pahlwan and continued to roam in Baroda, Bombay, Poona, Gulbarga and Hyderabad before being arrested. 37. Appellant Nos.A-7, Mohd. Amin and A-8 Iqbal Hussain were produced before Shri A.K. Majumdar on 28.5.1993. In response to the preliminary questions being put to them, both the appellants replied that they were aware that they were not bound to make confessions and that the same could be used against them. The appellants also declared that they were making confessions voluntarily without any fear, coercion or allurement. Both were again produced before Shri A.K. Majumdar on 30.5.1993. After asking them whether they had given thought about making confessions and getting reply that they wish to make confessions voluntarily, the concerned officer recorded their statements. 38. In his detailed statement, appellant No. A-7 disclosed the background in which he joined the business of spurious country liquor and came in contact with Latif and Gang, Rasool Khan @ Rasool Party and his associates including Sajid Ali (appellant No. A-6), Gulal (appellant No. A- 11) and Mohd. Pehalwan alias Mohd. Umar Majid Pathan (appellant No. A- 5) and the hideout of Rasool Khan alias Party at Baluch....
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....his Rasool said Azam and Sajid knows the route. Thereafter when we came out of the Mujahid Ki Pole, we saw that the car of Rauf Valiullah had left from there. Thereafter all three of us left from there on the scooter and reached Lal Darwaja via Relief Road. I was driving the scooter and Sajid and Azam were sitting behind me. One procession of Hindus was passing from Lal Darwaja and therefore I could not go towards Ellis Bridge and thereafter I took Nehru Bridge route as told by Sajid and reached near the Government flats at Navrangpura. As soon as I turned my scooter on right side road, I saw that car of Rauf Valiullah was standing inside the compound of the flat. Upon this Sajid asked me not to stop the scooter and told me to keep moving the scooter. From there we went to Nehru Bridge and from there reached Baluchawad.... ...It was a Friday on 9.10.1992. As soon as I reached my house at 1.30 p.m., after reading Namaj of Jumma, Gulal came to my house and told me that Rasool is calling me. At that time I was having Scooter No. 2797 belonging to Farukh Baba. Both of us went to Rasool in Baluchawad on the said scooter. Rasool told me to go with Iqbal alias Lala Dhobi. I cam t....
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....ter was covered, therefore, I immediately turned my scooter and parked my scooter in a deserted lonely place and removed the bandages pasted on the number plates of scooter and thereafter went to Rasool in Baluchawad in my scooter.... ...After reaching the den of Rasool I found that Rasool, Mohd. Pahalwan and Sajid were already there. Scooter of Sajid was parked at some distance. All of them were very happy. Rasool said work has been executed and thereafter shook hands with me. Thereafter I came back from there and after some distance I met Iqbal Dhobi and he asked me about Rasool and I told him that he is in his den.... ...Suddenly Azam came there on scooter No. 515 which belonged to Rasool. Azam hurriedly said Rauf Valiullah has been killed. He also said S.P. Anarwala has perhaps seen him and his scooter at the spot. Upon this Rasool asked Gulal to immediately remove scooter from there. Gulal asked me to take away the scooter. But I refused him. Thereafter both of them left from there on Scooter No. 2797 and I dropped Iqbal near his house. After some time Gulal came to me on the Scooter of Rasool and asked me to keep the scooter. I refused to do so and thereafte....
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....hobi Kasambhai Shaikh (appellant No. A-8) narrated how he was acquainted with Rasool Khan @ Rasool Party and Rauf Valiullah. He then stated that on 9.10.1992, he was called by Rasool Party through Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh (appellant No. A-7) who came on scooter No. GJ-1C-2797 belonging to Mohmed Faruk @ Faruk Baba Alla Rakha Shaikh (appellant No. A-4) and how he was given revolver loaded with six bullets by Rasool Khan with instructions to murder Rauf Valiullah. Appellant No. A-8 also gave out that Rasool Khan had also sent Sajidali and Mohmed Pahelwan for murdering Rauf Valiullah and that he was to shoot only if the Mohmed Pahelwan failed in his attempt. The relevant portions of his statement read as under: 9.10.1992 was a Friday. At about 1.30 p.m. after I had read my Namaj, Mohd. Amin alias Choteli who is an employee of the Company came to me on Scooter No. 2797 of Farukh Baba and told me that Rasool Khan alias Party is calling me. I went to Rasool Khan in the Press in Baluchawad along with Choteli on the scooter. So far I remember Gulal was also present there along with Rasool Khan. Rasool Khan gave a revolver to me which was loaded with 6 bullets.....
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....ter some time Amin Choteli met me on the scooter No. 2797 and asked me whether I have met Rasool there. Choteli told me that Rasool is in his den. Thereafter I went to the den of Rasool along with Choteli on the scooter. Rasool was present in his den (Press). Sajid, Mohd. Pahalwan and Gulal were also there. I returned back the revolver of Rasool. Rasool told us that the work has been executed and asked us to leave. Rasool asked Mohd. Pahalwan to change his shirt. Thereafter I came out of the Press. Suddenly I saw that Azam Khan who is an accomplice of Rasool came there on a white colour Bajaj Scooter No. 515 and said Rauf Valiullah has been eliminated. He further told that Police has seen him and his scooter. Although Rasool told Gulal to give the Scooter No. 515 to Choteli, but Choteli refused to take it. Thereafter both left from there on brownish colour scooter No. 2797. Choteli dropped me near my house. Thereafter I remained inside my house. I did not see Rasool party thereafter.... Since my name had appeared in this murder, therefore, I stopped sleeping in my house and started sleeping on the roofs of other persons. After some days, I came to Bangalore on a train alon....
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....he fled on the scooter along with the boy and came to Kakoriwala Ki Pole, where Rasool Party and his gang members were sitting. The relevant portions of his statement read as under: It was Friday the 9th October, 1992 when Rauf Valiullah was murdered. After talking my bath etc., I was standing on the corner of the lane below my house at about 10.30 a.m. in the morning. One boy working in the opposite shop came to me and told me that there is a phone call for me.... When I attended the phone, I came to know that it was the phone call of Rasool. Rasool after wishing me good day, asked me what I am doing. I told him that I have just taken my bath. He asked me whether I have any vehicle with me. I replied that I have my own motor cycle. Rasool told me to go to Rosy Cinema hall in Sarangpur and meet Gulal there.... Gulal met me outside Rosy Cinema. When I reached near him, he asked me to park my motor cycle nearby on one side and thereafter took me to the office of a transport company nearby.... ...After about 5-10 minutes, Rasool called on the said telephone. Firstly Gulal attended the said phone and thereafter Gulal gave the receiver to me. Rasool Khan asked me wheth....
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....h me. Actually at that time two things were striking in my mind i.e. firstly that perhaps we will return back without executing anything and secondly that whether I drive the scooter or shoot the person, my involvement is sure. In fact, I wanted to repay obligations done by Rasool upon me. We remaining sitting there for 1 and = hours. The said boy, whose name I came to know later on was Sajid, was wearing a plan Zero number eye glass.... When more than 1 and = hours passed and we kept waiting, then at about 2.30 p.m. Sajid suddenly told me that they are coming. I saw that two persons, one having beard and other wearing a white Kurta Pyjama were going towards Maruti Car parked there in front and suddenly I crossed the road and walked towards Maruti car. Person with beard opened the door of driver side and sat inside and the person wearing white kurta-pyjama walked behind the car and reached the left side door of the car and put something in his mouth. By that time, I had reached very near to him and immediately on reaching there I took out the revolver which I had tucked in the belt of my pant below my shirt and fired three rounds continuously on the head of the person wear....
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.... explained Azam to execute the work. He also told me that he will bear all the expenses of scooter and goods. Both of us were told to keep a watch on that man from next day.... On the next day at about 9.30-10.00 a.m., I took my scooter and went to the house of Azam in Mujahid Ki Pole. Mujahid is living on the upper floor of house. After some time, Azam came prepared and gave me a steel knives made of Japan. This knife was covered. He kept on knife with him. Both of us concealed our knives in the pants below our shirts. Thereafter we came out of Mujahid Ki Pole and went to Peer Mohammad Shah Dargah Trust on Relief Road. I was driving the scooter. Azam told me that he has been keeping a watch on this person since many days and the said person was coming trust. Azam went inside to search for that man and after some time came out of the Trust. He told me that the person for whom we are searching, is not there.... On the next day, I along with Azam again went out on my scooter for keeping a watch. Azam again gave the knife to me. First of all we went to the Trust where Azam went inside and thereafter we went to Congress Bhawan and when we found that the car is not the....
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.... i.e. on 9.10.1992 it was Friday. Like before, after 10 a.m. we again went out on Scooter No. 9655 for keeping a watch. First of all we went to Trust and Azam went inside the Trust. One can easily the office of Trust if he enters the Trust. After some time Azam came back and asked me to move to Congress Bhawan. When we reached Congress Bhawan, we did not find the car of Rauf Valiullah there and then we went to tea vendor outside house of Rauf Valiullah and took tea and read newspaper there.... When we were passing in front of his house, we saw one blue colour Maruti car standing outside the house. Azam said - perhaps Rauf Valiullah has come out of the house.... After some time i.e. at about 11-11.30 we saw the same blue colour maruti car coming out of the house of Rauf Valiullah. A bearded person was driving the car and Rauf Valiullah was sitting on the side of the driver in the front seat. Azam asked me to chase the car. I immediately started my scooter and chased the car. The car after taking under bridge route, stopped in the parking on the road outside one 7-8 storey building. I took my scooter on one side and parked it there. We saw that the bearded man was wearing shirt pant ....
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....otel told Rasool Khan that murder was committed within the time when he had gone to cover the number plan and came back after covering the number plate. After some time Azam too came there on Scooter No. 515. Azam immediately on coming said that Rauf Valiullah has been eliminated i.e. killed. Police has already reached there and also said that the police has seen his scooter. Upon this Rasool asked Gulal to immediately remove away the scooter from there.... 41. Appellant No. A-10 was produced before Shri Harbhajan Ram on 24.7.1996. In reply to the first question put to him, appellant No. A-10 gave out that he was arrested by ATS from Dani Limra, Ahmedabad on 13.6.1996 and on that very day he was taken into custody by CBI. In reply to another question, appellant No. A-10 stated that he was aware of the fact that he was not bound to give statement and that he was voluntarily making confession after having thought about it. Thereafter, Shri Harbhajan Ram recorded satisfaction about the voluntary character of the statement made by appellant No. A-10 expressing his desire to confess his role in the crime. Appellant No. A-10 was again produced before Shri Harbhajan Ram on 25.7.1996. H....
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....uilding, then Mohd. Umar alias Mohd. Fighter came there on a black colour bullet motor cycle No. GAC-6005 and gave me his motor cycle and asked me to take the motor cycle to Rasool party. I took the Motor Cycle and went to the den of Rasool Party at Baluchawad and handed over the said Motor Cycle to Rasool Party. Rasool Party gave me his Scooter No. 515 and asked me to go back again to Madhuban Building. I took the scooter. But instead of going to Madhuban Building, I went to my house. After taking my meal, when I left my house, I found that there was rampant fear and panic amongst general public and everyone was discussing murder of Raufwaliullah. I immediately went to the den of Rasool Party on the aforesaid scooter. Sajid Ali alias Danny, Mohd. Umar alias Mohd. Fighter, Amin Choteli, Gulal and Lalio Dhobi were also present there. I told Rasool Party that Raufwaliullah has been eliminated i.e. killed and handed over the scooter to Rasool Party. Rasool Party asked me to go home and instructed me not to discuss/talk with anyone about murder of Raufwaliullah.... In June, 1993, after arrest of Mohd. Fighter by the Police, I went to Bombay for some days to avoid my arrest and....
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....ransit warrant granted by the competent court at Ahmedabad. Therefore, the Investigating Officers were bound to keep their custody till the end of the period specified in the transit warrant and they could not have transferred the custody of the accused to any other person. It was during the period of their custody with the Investigating Officers that appellant Nos.A-4 to A-8 and A-10 and some other accused, with whose cases we are not concerned, expressed desire to confess their role in the commission of crime. Accordingly, they were produced before two Superintendents of Police, CBI and their confessions were recorded in accordance with the provisions of Section 15 of the Act and Rule 15 of the Rules. At the cost of repetition, it deserves to be mentioned that before recording confession, each of the appellants was told by the concerned officers that he is not bound to make confession and that if he does so, it may be used as evidence against him. The concerned officers also recorded their satisfaction in writing that the accused was making confession voluntarily. The statements of the confessing appellants were recorded in a room where no one except the concerned Superintendents....
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....vention of and for coping with terrorists and disruptive activities. In fact the earlier TADA Act of 1985 was repealed to bring in the present Act to strengthen the prosecution to bring to book those involved under it without their filtering out, by bringing in more stringent measures under it. In this background, we do not find the handcuffing of the appellant or another policeman being present in the room with the chain of his handcuffs or armed guards present outside the room to be such as to constitute (sic conclude) that the appellant's confessional statement was not made voluntarily. In Lal Singh's case the Court held: In view of the settled legal position, it is not possible to accept the contention of learned Senior Counsel Mr. Sushil Kumar that as the accused were in police custody, the confessional statements are either inadmissible in evidence or are not reliable. Custodial interrogation in such cases is permissible under the law to meet grave situation arisen out of terrorism unleashed by terrorist activities by persons residing within or outside the country. In S.N. Dube's case, the Court observed: In this case there is nothing on re....
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....nd that the same can be used against him and that there was no threat, coercion or allurement for making confession. (iv) When appellant No. A-10 was produced before Chief Metropolitan Magistrate, Delhi on 25.7.1996, he did state that he has not made any confessional statement but did not utter a word about any threat, coercion, inducement or allurement by Shri Harbhajan Ram (PW-103) for making confession. (v) At the end of period specified in transit warrants, all the confessing appellants were produced before the concerned Magistrate at Ahmedabad with an application for their remand to judicial custody. None of them made any grievance of ill treatment, torture (physical or mental), inducement or allurement by the Investigating Officers or supervising officers or claimed that he had made confession under any other type of compulsion. Even when they were in judicial custody, none of the appellants made a grievance that he was tortured, threatened or coerced by the Investigating Officers or supervising officers or that any allurement was given to him to make confession. (vi) All the confessing appellants were facing trial in number of other cases [this is ....
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....ded by the stenographers at verbatim and each one of them appended signatures after satisfying that the same was correctly recorded. In reply to the suggestion made to him in cross-examination that the accused had been subjected to torture, PW-104 categorically stated that none of the accused was ill-treated by him or any other officer/official. The defense had made suggestion about the nature and extent of supervision exercised by PW 104 but it was not put to them that either instructed the Investigating Officers to torture the accused and forced them to confess their guilt. In this view of the matter, the confessions of appellant Nos.A-4 to A-8 and A-10 cannot be held inadmissible on the premise that before recording of confessions they were in police custody and the statements were recorded by the officers supervising the investigation. 49. Likewise, there is no substance in the argument of the learned Counsel that the confessions of the appellant Nos.A-4 to A-8 and A-10 should be discarded because the same had been retracted on the first available opportunity. As mentioned above, the only statement made by appellant No. A-10 before Chief Metropolitan Magistrate, Delhi on 25.....
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....n No. 169 put to him under Section 313 Cr.P.C., appellant No. A-7 stated that he was subjected to torture and was compelled to sign on blank papers. A similar statement was made by appellant No. A-8 in reply to question No. 170. This is clearly contradicted by statement contained in para (vi) of SLP (Crl.) No. 1582 of 1995, wherein it was stated that the appellants were made to sign on the statements recorded under the dictates of the police officer. 51. If the confessions of the appellants are scrutinized in the light of the above enumerated factors, it becomes clear that the allegations made by them regarding coercion, threat, torture, etc. after more than one year of recording of confessions are after thought and products of ingenuity of their advocates. The statements made by them under Section 313 Cr.P.C. were also the result of after thought because no tangible reason has been put forward by the defense as to why the appellant Nos.A-4 to A-8 did not retract from their confessions when they were produced before the Magistrate at Ahmedabad and thereafter despite the fact that they had access to legal assistance in more than one way. Therefore, we hold that the trial Court di....
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....he culpability of those others when they are associated with the object of the conspiracy. 54. In Nalini's case the Court analyzed various decisions on the subject and held: In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out, cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pu....
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....ool Khan @ Rasool Party. In their confessions, Abdul Khurdush Abdul Ganikhan Shaikh, appellant Nos.A-4, A-7 and A-8 have given details of the activities of Abdul Latif and gang, Rasool Party and his associates, their nexus in the supply of illicit liquor, the meeting organized by Abdul Latif which was attended by members of the company, Rasool Party and associates and the decision taken in that meeting to eliminate Rauf Valiullah, who was considered as an impediment in the surrender of unimportant members of Abdul Latif gang in connection with Radhika Gymkhana murder case. In his statement, PW-28, Pradeep @ Nautamal Dave has spoken about the papers prepared by Rauf Valiullah regarding political situation of the State of Gujarat and his decision to go to Delhi to submit the same to the high command. In his confession, appellant No. A-4 disclosed how he joined illegal business of liquor of Abdul Latif, whose gang was known as company. He then stated that Abdul Latif and gang purchased a new scooter bearing No. GJ-1C-2797 for him in 1989, colour of which was, later on, changed. He has also spoken about the meeting held at the residence of Abdul Latif, the decision taken to eliminate R....
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.... own motorcycle which was handed over to appellant No. A-10 and then he sat on the scooter which was with appellant No. A-6. He has also given minute details of Rauf Valiullah coming out of Madhuban building along with PW 28, his firing three shots at Rauf Valiullah in succession and then escaping with appellant No. A-6 on his scooter. Appellant Nos.A-4 to A-8 and A-10 have also given complete account of their going out of Ahmedabad, staying at different places before return to Ahmedabad and arrest by the police. It is thus clear that in their confessions, appellant Nos.A-4 to A-8 and A-10 have not only disclosed their acquaintance with Abdul Latif and gang and/or Rasool Party and his associates, but given the details of conspiracy hatched by Abdul Latif and gang to eliminate Rauf Valiullah, assignment of this task to Rasool Party, specific instructions given by Rasool Party to them and their individual roles in keeping track on the movement of Rauf Valiullah, pursuing him at different places with a view to kill him, as also the actual murder of Rauf Valiullah on 9.10.1992. Each of the confessing appellant has candidly acknowledged that he acted as per the instructions and directio....
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....er cases registered against appellant No. A-4, 3 cases against appellant No. A-5, 1 case against appellant No. A-6, 18 cases against appellant No. A-7, 3 cases against appellant No. A-8, 1 case against appellant No. A-10 and 3 cases against appellant No. A-11. PW 35, Rajni Kant Ganpat Patel, who was employed as peon in Dairy Den India Private Ltd. having office at Madhuban building has stated that on 9.10.1992 he had seen appellant No. A-5 who fled after shooting Rauf Valiullah while the latter was about to sit in the car of PW 28. He has stated that appellant No. A-5, Mohd. Fighter fled away from the spot on the scooter driven by appellant No. A-6. He also identified appellant Nos.A-5 and A-6 in the Test Identification Parade. PW 28, Pradeep Nautamal Dave @ Baka Bhai is the complainant and the eye witness. He gave detailed account of his coming with Rauf Valiullah to the office of Dairy Den India Private Ltd. situated in Madhuban building, handing over of memorandum for the purpose of typing and shooting of Rauf Valiullah while he was sitting on the car. In the Test Identification Parade held on 19.8.1993, he identified appellant No. A-6. PW 29, Raju Bhai Nayak, who was working as....