TaxTMI 
TaxTMI 
2019 (7) TMI 2070
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....rashant Bhushan, AOR, Mr. Aniruddha P. Mayee, AOR, Mr. A. Rajarajan, Adv., Mr. Sanjeev Kr. Choudhary, Adv., Ms. Deepanwita Priyanka, Adv., Ms. Vishakha, Adv. JUDGMENT ARUN MISHRA, J. 1. The facts, in short, envisage that initially two separate cases were registered by local Police relating to the murder of Mr. Haren Pandya, ex-Home Minister for the State of Gujarat on 26.3.2003 and an attempt on the life of Mr. Jagdish Tiwari, a Viswa Hindu Parishad (VHP) leader of Ahmedabad on 11.3.2003. The case of murder was initially registered on the basis of a complaint brought by Mr. Janak Singh Parmar, vide FIR bearing I-C.R. No. 272/2003 at Ellisbridge Police Station, Ahmedabad, on 26.3.2003. After two days, the Government of Gujarat appointed the CBI to investigate the matter on 28.3.2003. Later on the case of attempt to murder of Mr. Jagdish Tiwari was also handed over to CBI and it was registered on 2.6.2003. 2. The evidence collected during the investigation in the cases revealed that both the incidents were part of the same transaction and in pursuance of a well-designed common conspiracy, they were committed. The motive was to spread terror amongst the Hindus. It was a pa....
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....ad. They were trained in Pakistan and were motivated to work in Gujarat and create terror. Asghar Ali wanted to commit big terror act and wanted to shift ultimately to Pakistan. He acted as per the advice of Rasul Khan and Mufti Sufiyan and went to Udaipur from where he reached Ahmedabad. Asghar Ali (A1) motivated his friend Mohmed Shafiuddin, a resident of Nalgonda, Andhra Pradesh to join him at Ahmedabad. Conspirators decided to finish Mr. Jagdish Tiwari in the first instance who allegedly played a leading role during the post-Godhra riots. It was decided that Asghar Ali and his friend Mohmed Shafiuddin with the necessary logistic support given by other conspirators, shall attack Mr. Jagdish Tiwari on 11.3.2003. 4. A few days after the incident on 11.3.2003 a meeting was arranged which was attended by Mufti Sufiyan and others to eliminate Mr. Haren Pandya and it was conveyed to other conspirators by Sohail Khan on 17/18.3.2003 the minute aspects of the execution of the plan were finalised resulting into execution of the same by Asghar Ali (A1) on 26.3.2003 with the support of other accused persons at 7.30 a.m. opposite Law Garden. During the investigation as the conspiracy was....
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....uf [A-2] Convicted u/s 3(3) of POTA. Sentence of rigorous imprisonment of 7 years. Conviction confirmed and maintained, fine upheld, rigorous imprisonment of modifies and reduced to the period already undergone by him in jail. 5 years Mohmed Shafiuddin [A-3] Convicted u/s 120-B r/w 307 of IPC. Sentence of rigorous imprisonment of seven years. Conviction u/s 120-B r/w 307 of IPC confirmed. Completed the sentence period Kalim Ahmed @ Kami Mulla [A-4] Convicted u/s 3(1) r/w 3(3) of POTA as well as u/s 120-B of IPC and u/s 120-B r/w 302 IPC and u/s 120-B r/w 307 of IPC. Sentence of life imprisonment. Acquitted for punishment u/s 120-B r/w 302 of IPC and u/s 3(1) punishable u/s 3(2) (a) of POTA. Conviction u/s 3(3) of POTA confirmed and maintained and the imprisonment is modified and reduced to the period undergone by him in jail. Undergoing life imprisonment in another case (Tiffin-box blast case) Anas Machiswala [A-5] Convicted u/s 3(1) read with 3(3) of POTA as well as u/s 120-B of IPC and u/s 120-B r/w 302 IPC and u/s 120-B r/w 307 of IPC. Also convicted u/s 4 r/w s.3 (3) of POTA and u/s 25(1b)(a) of Arms Act. Sentence of life impri....
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....z Khan Pathan [A-10] Convicted u/s 3(1) read with 3(3) of POTA as well as u/s 120-B of IPC and u/s 120-B r/w 302 IPC and u/s 120-B r/w 307 of IPC. Sentence of life imprisonment Acquitted for punishment u/s 120-B r/w 302 of IPC and u/s 3(1) punishable u/s 3(2) (a) of POTA. Conviction u/s 3(3) of POTA confirmed and maintained and the imprisonment is modified and reduced to the period already undergone in jail. 8 years without parole Mohmed Faruq [A-11] Convicted u/s 3(1) read with 3(3) of POTA as well as u/s 120-B of IPC and u/s 120-B r/w 302 IPC and u/s 120-B r/w 307 of IPC. Sentence of life imprisonment Acquitted for punishment u/s 120-B r/w 302 of IPC and u/s 3(1) punishable u/s 3(2) (a) of POTA. Conviction u/s 3(3) of POTA confirmed and maintained and the imprisonment is modified and reduced to the period already undergone in jail. 8 years Without parole Shahnavaz Gandhi [A-12] Convicted u/s 3(1) 3(3) of POTA. Sentence of Rigorous imprisonment for five years. Conviction and sentence u/s 3(3) of POTA is confirmed and maintained. Completed the sentence period. 6. The High Court on appeal has dismissed the appeal with respect....
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....d material has been duly recovered during the investigation. (ii) In furtherance of criminal conspiracy on 29.5.2002, tiffin box bombs were planted in crowded buses destined for Hindu localities by A-4, A-5 with the assistance of Mohd. Yunus, Abdul Rahim Sarshewala (A-5), Rehan Abdul Maji Puthawala (A-7), Mohd. Riaz (A-8), Mohd. Parvel Abdul Qayum Sheikh (A-9), Shahnawaj Gandhi (A-12) and others. Accordingly, POTA Case No. 7 & 9 were registered and pertinently, A-4 and A-5 have been convicted by the High Court in the aforesaid case and they are undergoing life imprisonment in the aforesaid matter. (iii) In September-October, 2002 accused Rasool Khan Party (A-18-absconding), a wanted criminal of Ahmedabad while living in Hyderabad from 1994 till 2002 came in touch with Mohd. Abdul Rauf (A-2) and instigated him to send Muslim boys to Pakistan for training in arms. A-2 accordingly selected 14 boys which include Asghar Ali (A-1), a notorious criminal in about 10 cases in Hyderabad and they were sent to Pakistan for arms training. (iv) In November 2002, A-5, A-14, and A-12 were sent to Pakistan via Mumbai and Dubai. (v) After returning from Pakistan, ....
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....n, an FIR was registered by PW-101 at Ellisbridge Police Station. Police patrol jeep came around 10.40 a.m. followed by the arrival of PW-101 from Navrangpura Police Station. The deceased Haren Pandya was immediately taken to the nearby V.S. Hospital. Simultaneously, PW-1 lodged a complaint with PW-101 regarding the murder of Haren Pandya. At 11.30 a.m. the same was registered at Ellisbridge PS. The inquest was prepared by PW-101 followed by post mortem of deceased by a panel of 4 doctors held between 2.15 p.m. and 4.50 p.m. on the same day. Inquest of the crime scene was prepared by PW-101 and statement of eye-witness PW-55 was also recorded the same day. 10. After transfer of investigation to the CBI on 28.3.2003, the accused persons were arrested and their confessional statements were recorded under section 32 of POTA from which as per the prosecution are the modus operandi and criminal conspiracy is amply proved. 11. On 2/3.9.2003, a letter was written to the Commissioner of Police, Ahmedabad for according sanction under Section 39 of the Arms Act in respect of A-1 (Mohmed Asghar Ali), A-3 (Mohmed Shafiuddin), A-5 (Anas Machiswala) and A-6 (Mohmed Yunus Sareshwala) (Exhib....
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....dence. (v) Subsequent retraction of confessional statements by the accused persons is of no consequence. (vi) Tiffin box blast in POTA Case Nos. 7 & 9 of 2003 and the conviction of A-4 & A-5 in the said POTA case, not only proves their criminal antecedents but it is also a material event in the chain of events with respect to criminal conspiracy to create terror among Hindus by violent means. (vii) Attack on Sh. Jagdish Tiwari (PW-39) by A-1 using a firearm along with A-3 in conspiracy with the other accused persons, whose conviction under section 307 read with 120-B have also been upheld by the High Court forms part of the same chain of criminal conspiracy to create terror in the community of Hindus. (viii) Call records of the accused persons during the entire period of conspiracy and the tower location of the phones of the accused persons near the Law Garden on the day of the murder of the deceased is a piece of strong circumstantial evidence against the accused persons. (B) It was further urged that the prosecution by leading cogent evidence proved that in pursuance of the said criminal conspiracy, A-1 (Asghar Ali) committed murder of the deceased o....
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....s deposition is reproduced hereinbelow: "3. On the next day of the murder of Mr. Haren Pandya, Vishwa Hindu Parishad has called for band, I and my brother as per the direction of my parents were doing scooter coloring work at Chandlodiya. I was going to call my brother that does not go on work at that time Afdan met me on the stairs, he asked me that where are you going? I told him reason at that time he has stated that you make calls from his mobile. Therefore, I made a call from his mobile to Babubhai Dhobi who is staying near my brother and we have a good relationship with him and informed him about Salimbhai. Phone Number of Babubhai Dhobi is 7525518. I do not know the mobile No. of Afdan. Due to so many time has been passed perhaps I cannot identify Afdan and his friends. Although I will try. I can identify Afdan. At this stage, the witness has identified the accused no. 1 Mr. Asgar Ali Afdan." Learned Solicitor General submitted that there is gross perversity in the impugned judgment of the High Court which is against the evidence adduced as well as the settled principles of law. SUBMISSIONS ON BEHALF OF ACCUSED 13. On behalf of the accused persons, it....
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.... has withheld evidence. There is tampering with the same, and interpolation has been made in spot map, rendering the prosecution case unreliable and improbable. The vital flaws in the prosecution should lead to the benefit of the doubt to the accused. There are irreconcilable inconsistencies in the prosecution case. Several vital objects have not been produced by the CBI. The forensic evidence belies the ocular evidence. The course followed by the High Court is legally sound and cannot be disturbed in the case of acquittal. Even if two views are possible, the one adopted by the High Court cannot be interfered with in an appeal against acquittal. IN RE: FACTS AS TO INVESTIGATION AND LARGER CONSPIRACY TO CREATE TERROR 15. The evidence has been adduced in the case as to the conspiracy which leads to the attempt to murder of Mr. Jagdish Tiwari, PW-39 and thereafter fatal attack on Haren Pandya, accused are associated with it up to the murder and finally to the escape of the assailants after the murder. The evidence evinces training in Pakistan, the various meetings at Masjids, etc. of various accused persons from time to time. There is evidence of confessional statements of convi....
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....o murder Jagdish Tiwari, PW-39. Thus, they committed offence under section 3(1) of POTA. The Central Pota Review Committee has upheld the invocation of the provisions of POTA. The High Court has also upheld the conviction of the accused persons under section 3(3) and section 4 of POTA and has erred in acquitting the accused persons under section 3(1) and 3(2)(a) of POTA. Mr. Tushar Mehta learned Solicitor General has submitted that section 120-B of IPC defines a criminal conspiracy as a distinct offence. He has relied on as to criminal conspiracy by Dr. Sri Hari Singh Gour in his well-known 'Commentary on Penal Law of India', (Vol. 2, 11th Edn. Page 1138) summed up the legal position in the following words: "In order to constitute a single general conspiracy, there must be a common design. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished. The evil scheme may be promoted by a few, some may drop out and some may join at a later stage, but th....
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....ed Court observed as under: "2485. As the Respondent has been awarded sufficient punishment under different heads of Sections 3(3) and 6 TADA, and the said offences themselves are a part of the conspiracy, and the learned Designated Court has divided the conspiracy into various components, considering the present case, where the accused were either involved in participating in the various conspiratorial meetings, receiving training in the handling of arms, their active participation in the throwing of bombs or parking of vehicles fitted with explosives, or where the accused persons participated only in the landing and transportation of contraband, but were not aware of the contents of the said contraband, and further, another category, where the accused had knowledge of the contents of the contraband, but did not participate either in the conspiratorial meetings held, or in any actual incident of any terrorist activity, and has awarded different punishments accordingly, we do not see any cogent reason to allow the said appeal. The appeal is hence, dismissed." (emphasis supplied) Relying upon the aforesaid principles of law in the present case, it is submitted t....
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....d by Mohammed Jamil Nasir Mohammed (PW-30) and Dr. Mohmed Aizaz Ali (PW-88) and Exhibit 253, which is the confessional statement of A-1 (Mohmed Asgar Ali). 23. For 2-3 days, he stayed at the residence of Usman Khan Nawab Khan (PW-29), which had been corroborated by Usman Khan Nawab Khan (PW-29) in Court also. During the stay of A-1 (Mohmed Asgar Ali) at Udaipur, he used to visit Netsavy Cyber Café situated at Chetak Circle, Udaipur for operating emails. While in Udaipur, A-1 (Mohmed Asgar Ali) telephonically contacted A-3 (Mohmed Shafiuddin) and provided him the Landline Number of Usman Khan Nawab Khan (PW- 29) and mobile number 9426039937 of A-14 (Sohail Khan Pathan) and asked him to come to Ahmedabad. The same had been proved by Exhibit 250 i.e., confessional statement of A-3 (Mohmed Shafiuddin). 24. On 23.1.2003, A-3 (Mohmed Shafiuddin) reached Udaipur and stayed at Muslim Musafirkhana for a day. It had been proved by Exhibit 300 i.e., visitor register showing entry no. 8699 made in respect of stay of A-3 (Mohmed Shafiuddin); Exhibit 297 i.e., deposition of Mohammed Jamil Nasir Mohammed (PW-30), Manager of Muslim Musafirkhana regarding stay of A-3 (Mohmed Shafiuddin....
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....awabhai Yusufbhai Shaikh (PW-66) and Mohmed Jalis Ahmed Rajput (PW-68) in their deposition made in the Court. 25(c). Between January and February 2003, A-1 (Mohmed Asgar Ali) and A-3 (Mohmed Shafiuddin) were moved to Flat No. 401, Royal Apartment, Rakhial by A-10 (Parvez Khan Pathan) and A-11 (Mohmed Farooq). The said flat was owned by Abdul Banki Abdul Bari Ansari (PW-44 - hostile witness) and an advance of Rs. 5,000/- was paid to him by A-10 (Parvez Khan Pathan). When the said flat was vacated Rs. 3,500/- was refunded by Abdul Banki Abdul Bari Ansari (PW-44) to A-10 (Parvez Khan Pathan) through cheque no. 17296 drawn on Gujarat Industrial Coop. Bank, which was encashed by A-10 (Parvez Khan Pathan). The stay of A-1 (Mohmed Asgar Ali) and A-3 (Mohmed Shafiuddin) had been proved by Yusufbhai Idubhai Pathan, (PW-95 - occupant of neighbouring flat). Exhibit 209 i.e., a notebook of the Royal Apartment had also proved that an entry had been made by Mushtaq Yusufbhai Mansoori (PW-59) regarding the stay of A-1 (Mohmed Asgar Ali) at Royal Apartment. 25(d). On 31.1.2003, a mobile no. 9825491421 was procured by using Voter ID of Shivabhai Virabhai Rathod (PW-53) and was pro....
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.... Asgar Ali) and A-3 (Mohmed Shafiuddin) followed Jagdish Tiwari (PW-39), who was on his motorcycle and when he took U-turn for his flat, A-1 (Mohmed Asgar Ali) tried to fire a shot from his pistol, but the bullet did not come out. 25(h). On the very next day i.e., 11.3.2003 at about 9.15 pm, A-1 (Mohmed Asgar Ali) and A-3 (Mohmed Shafiuddin) went to the shop of Jagdish Tiwari (PW-39) and A-3 (Mohd. Shafiuddin) asked for a strip of the sorbitrate tablet. While he was taking out the medicine, A-1 (Mohmed Asgar Ali) fired a shot from his pistol at Jagdish Tiwari (PW- 39), but the bullet hit on his metal buckle of belt and after ricocheting entered in his body near navel portion. The weapon of A-1 (Mohmed Asgar Ali) got jammed and in the process of clearing the blockage, two live cartridges fell at the shop. Two more bullets were fired on Jagdish Tiwari (PW-39), but he hid behind a pillar and fridge. The identity of A-1 (Mohmed Asgar Ali) and A-3 (Mohmed Shafiuddin) had been proved by Exhibit 329 i.e., the deposition of Jagdish Tiwari (PW-39) - injured eye-witness. At 9.16 pm, A-1 (Mohmed Asgar Ali) informed A-10 (Parvez Khan Pathan) on his mobile about the attack on Jagdish T....
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....ohail Khan Pathan) disclosed their next target i.e., Haren Pandya. A-12 (Shahnavaz Gandhi) was directed by A-14 (Sohail Khan Pathan) to carry out a recce of Law Garden in order to ascertain movements of Haren Pandya and his car number. 25(m). In a meeting held on 22.3.2003 at Juni Jama Masjid attended by A-4 (Kalim Ahmed), A-5 (Anas Machiswala), A-7 (Rehan Puthawala), A-8 (Mohmed Riyaz), A-12 (Shahnavaz Gandhi) and A-14 (Sohail Khan Pathan), A-9 (Mohmed Parvez Sheikh) was assigned the task to carry out the recce of Law Garden as A-12 (Shahnavaz Gandhi) had failed to do so. 25(n). On 23.3.2003 at 7.00 am, A-9 (Mohmed Parvez Sheikh) called A-1 (Mohmed Asgar Ali) from the mobile phone of A-7 (Rehan Puthawala) and asked him to come to Law Garden in order to familiarize with the topography. It had been proved by Exhibit 467 i.e., CDR of mobile no. 9825491421 used by A-1 (Mohmed Asgar Ali) during the commission of the crime. A-6 (Mohmed Yunus Sareshwala) and A-9 (Mohmed Parvez Sheikh) visited the Law Garden where A-1 (Mohmed Asgar Ali) also came but they could not locate Haren Pandya. 25(o). On 24.3.2003, A-9 (Mohmed Parvez Sheikh) visited the Law Garden again in the mo....
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....sent to PS Navrangpura and PS Ellis Bridge by City Control Room to reach Law Garden. Haren Pandya was evacuated to B.S. Hospital by police officials of P.S. Navrangpura. A complaint was lodged by Janaksingh Khusalsinh Parmar (PW-1) with Yusuf Miya Ahmed Miyan Shaikh, P.I., PS Ellis Bridge (PW-101) regarding the murder of Haren Pandya. At 11.30 am, I-CR No. 272/02 was registered at PS Ellis Bridge regarding the killing of Haren Pandya. Inquest panchnama was prepared by Yusuf Miya Ahmed Miyan Shaikh, P.I., P.S. Ellis Bridge (PW-101) between 1.00 pm to 2.00 pm. Post-mortem examination of Haren Pandya was conducted between 2.15 pm to 4.50 pm. Panchnama of the crime scene was prepared by Yusuf Miya Ahmed Miyan Shaikh, P.I., PS Ellis Bridge (PW-101) between 2.30 pm to 3.30 pm. A notification was issued under Section 6 of the DSPE Act for investigation by CBI in the murder of Haren Pandya. Statement of Anilram Yadram Patel (PW-55) was recorded. On 28.3.2003, the investigation was taken up by CBI and records of FIR No. 272/03 were seized from PS Ellis Bridge. 26. Further investigation also unearthed and supported the conspiracy. On 3.4.2003, A-6 (Mohmed Yunus Sareshwala), A-7 (Rehan Put....
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....a Pradesh by Udham Sinh Ramkaran Sinh Solanki (PW-108) and was remanded to transit custody till 29.4.2003 by the Judicial Magistrate. These facts had been proved by Exhibits 274, 356, 645, 646, 647 and 648. 26(f). On 26.4.2003, a revolver No. B-40350 Webley & Scott and one pistol No. EE-0330 was discovered at the instance of A-1 (Mohmed Asgar Ali) in the presence of Srinathsinh Shambhausinh (PW-13) from Flat No. 4-B, Kamar Flats, Shahapur, Ahmedabad. This fact had been proved by Exhibit 196. RC Book of Suzuki Samurai Motorcycle No. GJ-1SS-5934 was recovered during a search of the said flat. It had been proved by Exhibits 197 and 198. 26(g). On 28.4.2003, A-1 (Mohmed Asgar Ali) disclosed of having used various cyber cafes at Ahmedabad and Udaipur. Two hard disks from Modern Cyber Café, Ahmedabad and one hard disk each from Mittal Cyber Café and Net Savy Cyber Café, Udaipur were seized. The same had been proved to vide Exhibits 601, 336, 410 and 576. On 29.4.2003, a hard disk of Cyber Space Café, Ahmedabad was also seized (Exhibit 762). 26(h). On 30.4.2003, A-1 (Mohmed Asgar Ali) and A-2 (Mohmed Abdul Rauf) had disclosed about th....
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....ohmed Shafiuddin) during a test identification parade. Statements of Jagdish Tiwari (PW-39), Javed Abdul Rashidkhan Pathan (PW-45) and Faridkhan Majidkhan (PW-74) were recorded. A-7 (Rehan Puthawala) also made a confessional statement, which was recorded by Vinayak Prabhakar Apte (PW-21). The same had been proved by Exhibits 203, 366, 557, 558 and 229. 26(r). On 7.6.2003, confessional statements of A-6 (Mohmed Yunus Sareshwala) and A-9 (Mohmed Parvez Sheikh) were recorded by Vinayak Prabhakar Apte (PW-21). The same had been proved by Exhibits 232 and 235. 26(s). On 8.6.2003, Vinayak Prabhakar Apte (PW-21) recorded the confessional statement of A-8 (Mohmed Riyaz) (Exhibit 238). 26(t). On 11.6.2003, POTA was invoked in RC.5(S)/2003-SCU. I i.e., case of Jagdish Tiwari and an intimation was sent to Principal Sessions Judge, Ahmedabad, and Chief Metropolitan Magistrate, Ahmedabad (Exhibits 750 and 751). 26(u). On 12.6.2003, A-1 (Mohmed Asgar Ali), A-2 (Mohmed Abdul Rauf) and A-3 (Mohmed Shafiuddin) were arrested on the basis of transfer warrant in case no. RC.5(S)/2003-SCU.I and remanded to police custody till 21.6.2003. Hero Honda Motorcycle was seiz....
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....-55, owner of Chitty Bang CW-1 who has confirmed that PW-55 used to keep his hand cart in the Chitty Bang compound with his permission and used to sleep there at night. The version of PW-55 has also been corroborated by medical evidence and by other independent evidence. His disposition has been corroborated by medical as well as ballistic expert, PWs .- 8, 15, 55, 101 and 120 with respect to the position of the accused and the bullet injury suffered by the deceased. The Post Mortem examination was conducted by 4 doctors. Dr. Pratik Patel (PW-8) has proved 7 gunshots caused by 5 bullets. Forensic and biological reports prove the death of the deceased inside the car. The weapon used by A-1 at the time of the commission of the offence was duly recovered from same flat. Ballistic expert PW-75 has deposed that the bullets recovered from the body of the deceased were fired from the same revolver which was recovered at the instance of A-1. Commission of offence vis-à-vis PW-39, Jagdish Tiwari has attained finality as that has not been questioned by accused persons by filing appeals, which also proves the presence of A-1 and A-3 at Ahmedabad during the relevant period. PW-95 proves....
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....n they reached Nanubhai's place. He informed Nanubhai that Haren Bhai Pandya has been killed by 4 to 5 rounds of firing at the place where he used to keep his larry. Nanubhai told that after having tea he will reach Law Garden. They went back to Law Garden, the police had arrived, Haren Pandya was taken in a jeep to V.N. Hospital. The police officer came in civil dress and asked him features of the assaulter. The witness explained him in the same manner as he has deposed in the court. The CBI had prepared the map. He has affixed his thumb impression and Kanhaiya has signed it. 29. It was submitted on behalf of the accused persons that the case of gun firing set up by the witness PW-55 is not correct as in Maruti 800 car, no gunshot residue (GSR) has been found and no bullet has been recovered from the car. It is not in dispute that the bullets were recovered from the body as such they were not found in the car. Learned counsel for A-1 submitted that from the seat no blood was found though on Kurta and Pyjama and underwear there were blood stains. The High Court has observed that there was profuse bleeding, as such from the driver's seat cover blood ought to have been fou....
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....oo much to expect a person to state how much rolling of the glass of windows had been done at the time of firing. Even if the witness had stated so, that would be merely his guesswork. When a person is rolling the glass up, it is possible that he might have been fired the shot when the window was quite wide open and when he was in the process of rolling it up. The person in order to save himself from the firing would also try to roll up the glass with speed then also gunshot firing can be made in the process. Thus the argument raised that there was a tiny opening of 3 inches when the shots were fired, is against the normal course of human conduct to make such statement and the way in which the incident has taken place it cannot be said with precision how much rolling of the glass of windows was done before firing took place and how much rolling was done after suffering some shots or in the process of firing. It can only be said that he was in the process of rolling the glass up when the firing took place. 33. PW-55 has demonstrated the position of the deceased inside the car in his deposition. With respect to shooting from the driver's side glass is corroborated medically by....
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.... coherent and succinct nature of the medical and forensic evidence with ballistics bolsters the case of the prosecution and unambiguously establishes that murder was committed by A-1. Injury Nos. 2 to 4 were direct shots to the chest; injury Nos. 1, 5 and 6 were caused by the same bullet, injury No. 1 was on the neck, injury No. 5 on the right-hand metallic bone and injury No. 6 at back of the hand, injury Nos. 5 and 6 are communicating injuries and thereafter injury No. 1 has been caused in the neck by the same bullet. Statement of PW-8, Dr. Pratik Patel has been relied upon who has stated that the same bullet has caused gunshot injuries 5 and 6. The doctor has opined that if the hand is reflexly kept in front of face or neck region on the right side that back of hand if facing the opposite side of the victim, the bullet may re-enter from external injury No. 1. 36. Now we advert to whether medical evidence belies the version of PW-55. In the post mortem report D-160 dated 26.3.2003 of Haren Pandya following injuries have been noted: "1. About 0.8 cm diameter, punch red contused lacerated entry wound with inverted edges is present on the lower part of front of neck on r....
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....ry Nos. 5 and 6. 37. The conclusion of the High Court is only right to the extent that injury Nos. 5 and 6 could not be said to be entry and exit wounds. They were rather communicating wounds caused in the process of causing injury No. 1. The conclusion to the contrary averred by the High Court as to independent injuries is absolutely incorrect. Testimony of PW-55 cannot be said to be falsified on the basis of aforesaid medical evidence. There is no inconsistency with respect to the aforesaid aspect in the medical version and the ocular version of PW55. 38. PW-8, Dr. Pratik Patel, Autopsy Surgeon has further stated in answer to question No. 73. "Question no. 73: what would be the exception and what is the authority of considering the exception? Answer: If first entry and exit are through the small part of the body and soft tissue and side of the re-entry are in the close proximity of the exit wound of the first entry wound then there may be features of the entry wound on the re- entry wound. I can also show some statements in support of my reply. There is a book on Medico legal statements in support of my reply. There is a book on Medicolegal investigation o....
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.... and 6 leading to injury No. 1 that was the re-entry wound. Whether injury No. 1 was original or re-entry, he has referred to post mortem report to opine that injury Nos. 5 and 6 are communicating injuries. 43. The High Court as well confused as to the number of injuries on the basis of 7 wounds and 5 number of bullets fired. In case of such communicating injuries, it is not necessary that the bullet should enter any part of the body while reaching to the last injury, it may cause scratch or touched the small part of the body or soft tissue as has been done in the instant case. It has happened in the instant case. With respect to the significance of such a medical version, this Court in Rachhpal Singh and Anr. vs. State of Punjab, AIR 2002 SC 2710, has observed thus: "8. A perusal of the evidence of the doctor shows that there is some discrepancy in his evidence in regard to the nature of the injury on the deceased as to whether the edges of the wound were averted or inverted. But this, in our opinion, is not fatal to the case of the prosecution. The doctor while admitting that there was some such confusion in his evidence as well as the post mortem report, in our opini....
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....cted by the tissues that its course is very irregular, also when the bullet wobbles." (emphasis supplied) Though it has been observed that in some cases it is difficult to determine a direction but in the instant case considering the fact that the injuries are only on the right side which is on driver's side, 3 wounds were caused on the chest and injury Nos. 1, 5 and 6 were caused by the same bullet obviously fired from the driver's side window only as is apparent from the direction of communicating injuries also. There is no inconsistency in ocular and medical evidence in the instant case. 45. It was submitted on behalf of the learned counsel appearing for the accused that PW-55 has contradicted himself on the position of Haren Pandya's body inside the car. In his examination-in-chief he makes an improvement "pug upar thayi gay ahata" and that he had fallen on his back "vasa na taraf ". This is an improvement to counter PW-8's forensic opinion that the weapon would have to be below the scrotum. On this count of improvement alone, PW-55 should be discredited. He has not said that in his CBI statement or to the police that "Pug upar thayi gay ahata". ....
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.... an eye witness. In view of the evidence on record, the statement made by PW-55, the direction of causing of injury No. 7 is fully explained and an eye witness cannot be said to state all these details with mathematical precision. Question is whether he is otherwise reliable and whether other evidence corroborates him. Corroborating evidence is available in abundance. 49. As to the precise distance inch-wise position at the time of firing, there is no witness who can give an exact description as suggested in a lengthy cross-examination. Lengthy cross-examination on this line was wholly uncalled for and wholly unnecessary and witness is not supposed to furnish all such details with precision. Though the witness has withstood the test of cross-examination also. 50. The deposition of PW-55 was sought to be further discredited on the ground that when feet came up, he could not refer to the position of knees with reference to the steering. The witness is not supposed to give all these minute details. It is not a case where medical evidence completely improbabilises the ocular evidence only on that case the ocular evidence has to be discarded not otherwise. Reliance has been placed....
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....er witnessing the assaults. They have not given any explanation as to what they did after witnessing the assault on the deceased. Additionally, the unexplained delay of more than one day in lodging the FIR casts serious doubt on the truthfulness of the prosecution version. The mere delay in lodging the FIR may not prove fatal in all cases. But on the circumstances of the present case, certainly, it is one of the factors which corrodes credibility of the prosecution version. Finally, the medical evidence was at total variance with the ocular evidence. Though ocular evidence has to be given importance over medical evidence, where the medical evidence totally improbabilises the ocular version that can be taken to be a factor to affect credibility of the prosecution version. The view taken by the High Court is a possible view. The appeal being one against acquittal, we do not consider this to be a fit case where any interference is called for. The appeal fails and is dismissed." (emphasis supplied) 53. In this case, it cannot be said that ocular evidence is belied by the medical evidence. It was also submitted on behalf of the accused that when the eye witness made an improvement....
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....placed by learned counsel for the accused on Ram Narain Singh v. State of Punjab, 1975 (4) SCC 497 in which this Court has observed: "2. ........We might also mention here that the definite case of the prosecution before the Sessions Judge was that while the shot was fired at the deceased Teja Singh by Ram Narain Singh he had kept the right hand flexed on his chest. It was thus stated by the eyewitnesses that at the time of firing, the deceased had put his right hand on his chest. These two additions or embellishments appear to us to have been necessitated in order to bring the evidence of the eyewitnesses in consonance with the evidence of the doctor as also that of the ballistic expert, and we shall deal with this aspect of the matter a little later .... XXX XXX XXX 6. .......This particular posture was undoubtedly a most conspicuous fact which could not have been missed by the witness if it was really there. In these circumstances, therefore, we should have expected this fact to be mentioned in the FIR but it is conspicuously absent from the FIR, nor was this fact mentioned by either Surjit Singh or his brother Joginder Singh in their statements before the p....
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....has been placed on Ram Narain Singh (supra) in which this Court has observed: "14. Where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. In Mohinder Singh v. State, AIR 1953 SC 415, this Court observed in similar circumstances as follows: "In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle." It is obvious that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it woul....
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.... with the ocular evidence and we can safely say that to that extent, it corroborated the direct evidence proffered by the eyewitnesses. We hold that there is no material discrepancy in the medical and ocular evidence and there is no reason to interfere with the judgments of the courts below on this ground. In any event, it has been consistently held by this Court that the evidentiary value of medical evidence is only corroborative and not conclusive and, hence, in case of a conflict between oral evidence and medical evidence, the former is to be preferred unless the medical evidence completely rules out the oral evidence. [See Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174, Mani Ram v. State of Rajasthan, (1993) Supp. 3 SCC 18, State of U.P. v. Krishna Gopal, (1988) 4 SCC 302, State of Haryana v. Bhagirath, (1999) 5 SCC 96, Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, (2003) 9 SCC 322, Thaman Kumar v. State (UT of Chandigarh), (2003) 6 SCC 380, Krishnan v. State, (2003) 7 SCC 56, Khambam Raja Reddy v. Public Prosecutor, (2006) 11 SCC 239, State of U.P. v. Dinesh, (2009) 11 SCC 566, State of U.P. v. Hari Chand, (2009) 13 SCC 542, Abdul Sayeed v. State of M.P., ....
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....d the deliberate lapses of the investigating officer as well as the post-mortem report prepared by Dr. C.N. Tewari. The consistent statement of the eyewitnesses which were fully supported and corroborated by other witnesses, and the investigation of the crime, including recovery of lathis, inquest report, recovery of the pagri of one of the accused from the place of occurrence, immediate lodging of FIR and the deceased succumbing to his injuries within a very short time, establish the case of the prosecution beyond reasonable doubt. These lapses on the part of PW 3 [doctor] and PW 6 [investigating officer] are a deliberate attempt on their part to prepare reports and documents in a designedly defective manner which would have prejudiced the case of the prosecution and resulted in the acquittal of the accused, but for the correct approach of the trial court to do justice and ensure that the guilty did not go scot-free. The evidence of the eyewitness which was reliable and worthy of credence has justifiably been relied upon by the court."" (emphasis supplied) 61. With respect to track of bullet for injury No. 7 much was argued. As already stated in Modi's Jurisprudence, the....
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.... there is internal haemorrhage there would not be much blood outside. The volume of the blood on the spot would depend upon the type of injuries. Out of 7 bullet injuries, 6 were internal wounds, and on the fore-arm where minimum or less blood is possible, it was external. In answer to question No. 111, the doctor has stated. 67. The High Court has mostly proceeded on the basis that there should have been more blood found in the Maruti car. As already discussed, it would depend upon the injury whether it was internal bleeding and how a person is lying, it can also spill on the clothes and fact remains blood has also been recovered from the Maruti car. It is not necessary for how much quantity it should have been recovered. It was found on mobile phone also and keys as observed by the High Court. Following facts supports that the incident has taken place as suggested by PW-55. (a) Ex. 160: Panchnama of the place of offence would show that blood was found. (b) Ex. 774: report of the mobile FSL would show that blood was found on the spot. (c) Ex. 547: opinion of serology goes to indicate that human blood was found. (d) Ex. 458: CFSL-biological division report: biologica....
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....t could not be said from the deposition of PW-55 that he had received the information of the incident, in fact, he has given a vivid description as eye witness noted PW-55 or CW-1 had no ill-will or malice against the accused. It does not make any difference whether Nanubhai CW-1 was examined as a court witness or as a prosecution witness. Once a witness has been examined, his evidentiary value has to be considered in accordance with the law. Once he has been examined no question to draw any adverse inference against the prosecution arises. 72. It was submitted that CW-1 had attempted to shrink the timeline by stating that PW-55 came at around 9.15 a.m. instead of 9.45 a.m. On a rough estimate of time, no adverse inference can be drawn as to the correctness of the version by the aforesaid witness. Estimation of time may differ by some margin when a statement is made in court after years together. Merely by the fact that CW-1 asked PW-55 twice whether he had seen the incident, he said 'yes' he had seen the incident twice. That does not cause any dent in the prosecution case and does not render the statement of PW-55 doubtful in any manner. We find no embellishment or mate....
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....oned by him are not even reflected in the sketch. PW-55's deposition cannot be discredited or tainted in any manner by faulty preparation of sketch. Even otherwise the evidence of sketch is not of much significance. Sometime the sketch may not tally with the version given by a witness. 76. The High Court is moved by sketch Ex. 620 which was drawn. PW-55 denied any knowledge of such a sketch. The sketch was not put to PW-55 in the cross-examination and to obtain his explanation whether it tallied with the assailant. In the absence of cross- examination of PW-55 on this aspect, the defence cannot take any advantage of a discrepancy, if any. I.O. PW-120 has stated that Ex. 620 was prepared in the absence of PW-55, Anil Yadram Patel. It was drawn only on the basis of his statement recorded under section 161 Cr. PC the way in which sketch was drawn it cannot be considered reliable and trustworthy sketch. In the circumstances, sketch in the reference of the accused ought not to have weighed with the High Court because it was prepared in the absence of PW-55. PW-101 has stated that he got the sketch map prepared on the basis of the description and handed over it to Mr. A.A. Chauhan....
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....entification of the colour of the kurta and memory may also fade after several years and there is not much difference between red and brown. It is a minor discrepancy which has weighed with the High Court whereas it ought to have been ignored. IN RE: WHETHER BULLETS ARE THE SAME AS RECOVERED IN POST MORTEM 80. It was also submitted on behalf of A-1 that bullet recovered was not sent for ballistic examination and bullets produced in court differ in colour and the state of deformation recorded during post mortem. However, it is clear that it was not put to the doctor that the bullets which were produced in the court, were not the same which he has recovered. 81. It was further submitted on behalf of the accused that the colour depends on whether it is a pure lead bullet or a bullet with a lead core covered by a jacket of zinc. A pure lead bullet is used in a revolver, a jacketed bullet with a lead core is used in a pistol. A pure lead bullet will never look white. Its colour will always be greyish black. If pure lead bullets caused the wounds on Haren Pandya's body, they would have been greyish black even when removed at the time of post mortem. The bullet sent to CFSL a....
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....ullets to police inspector Y.A. Sheikh (PW-101) in the presence of panch-witness, Falgun Pandya (PW-2). Further, evidence of (PW-101), Y.A. Sheikh indicates that he has handed over five bullets recovered from the body of Haren Pandya to PW-107 who during the course of the investigation had handed over the same to PW120 on 28.3.2003. The evidence further discloses that PW-120, Dy. S.P., Mr. Gupta forwarded the said five bullets vide letter dated 4.4.2001 in the sealed condition to V.S.G.H./EBAB/Forensic Medicine through Director, CFSL, New Delhi vide letter dated 25.4.2004. Exh. 442 is the document of receipts by which five bullets were sent to Central Forensic Science Laboratory, New Delhi with seal intact and specimen. Exh. 458 points out that blood found on the five bullets, kurta pyjama and lifted from the car was of 'B' Group. Thus, it is apparent that the seals have been found intact and there is positive evidence of the custody of the appellants. Thus, it is far-fetched and intentional for the defence to contend that bullets have been changed. There is no room to entertain the said submission. 85. PW-75, Mr. Ashok Raj Arora, Senior Scientific Officer, (Ballistics),....
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....iwla Stove at Kamar Flat in Shahpur. The aforesaid articles seized vide memo Exhibit 196 were sealed on the same day i.e. on 27.4.2003 and sent to CFSL, New Delhi along with the clothes of Mohmed Asgar Ali (A-1). PW-75 received a list of the material objects along with forwarding letter (Exh. 443) along with .32 bore revolver bearing serial No. B 40350, six .32 bore 'Scot & Webley' cartridges and 7.65 mm pistol bearing serial No.EE 0330, seven 7.65 mm pistol cartridges and one 7.65 mm empty magazine bearing serial no. 3497 and clothes of the accused A-1. 88. On the basis of the examination carried out by forensic examiner, it was opined that five .32 bore fired bullets received by him on 25.4.2003 had been fired from .32 bore revolver bearing serial No. B 40350 and not from any other firearm, even of the same make, caliber or bore on the ground that every firearm has its own individual characteristics marks. 89. Mr. Gupta (PW-120) in his deposition has stated that Mohd. Yousuf Maniyari, accused, who has been detained has made a statement that five empty cartridge cases were given to him by absconding accused Mufti Sufiyan on 3.4.2003. They were recovered from his shop....
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....ion due to extraneous marks which cannot be called individual characteristic explaining the same. It was the wrong non-committal reply. The trial court in the circumstances has referred to individual characteristics on the point and relied on "An Introduction of Tool Marks", Firearms under the heading of "Individual Characteristics" by John E. Davis, the Author observed as to the striation marks thus: "The "Individual Characteristics" on a fired bullet are those features which distinguish it from bullets fired through all other bores. Practically speaking, the term applies to those minute striae along the land and groove impressions which are produced by, and are characteristic of irregularities within a given bore. Bullets are finally identified with a specific weapon on the basis of these striae." 92. It is apparent that every fired bullet has individual characteristics in the form of minute striae along with the land and groove impression. The bullets are finally identified with the specific weapons on the basis of these striae. DW-8 has also stated that in 95 % of the cases, filing in marks alone permit identification of the firearm, but in the event of any tamperin....
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....not to be found in any other such weapon. Thus, the evidence is conclusive to prove that the revolver in question was used in firing the bullets recovered from the body of the deceased Haren Pandya. The medical evidence, thus, supports the version of PW-55. 98. PW-8 who prepared the post mortem report has been discarded while relying upon the version of defence witness DW-6 who stated injuries 5 and 6 as communicating injuries. This Court in Tanviben Pankajkumar Divetia v. State of Gujarat, (1997) 7 SCC 156 has observed that the autopsy doctor's report cannot be discarded lightly as he had seen the injuries. In Tanviben Pankajkumar Divetia (supra) at para 35, this Court held as: "35 ..... We may also indicate here that the doctor who had held the post mortem examination had occasion to see the injuries of the deceased quite closely. In the absence of any convincing evidence that the doctor holding post mortem examination had deliberately given a wrong report, his evidence is not liable to be discarded and in our view, in the facts of the case, the opinion of the doctor holding post mortem examination is to be preferred to the expert opinion of Dr. Shariff." (emph....
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....ritten after erasing would have been falsely written by Vijayvirsinh. So it was removed/erased, but I do not agree with the view that Asagarali has written it. Question: After writing the name of Asagarali in Note-3 and Exh- 387, you have erased it? Answer: I do not agree with that view. It is not true and I do not agree with this view that on 29/3/03, we knew that we would book Asagarali in this case. He is to be implicated, and his name was written and later when it was realized that it was the document dated 29/3/03, his name was spoken out." The High Court ought to have taken note of the aforesaid statement in what circumstances name came to be added later on. It was clearly a mistake as admitted by the witness. NON-EXAMINATION OF JAGRUTIBEN, W/O. HAREN PANDYA 102. It was submitted on behalf of the accused that Ms. Jagrutiben, wife of Haren Pandya should have been examined so as to prove that the offence took place at about 7.30 a.m. as she has stated in the statement under Section 161 Cr. P.C. that deceased left house at around 7.00 a.m. Some of the friends of deceased and P.A. etc. later on reached the spot they have not been examined. In o....
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....e first week of February 2003 for his movements in Ahmedabad. (ii) After the commission of a crime, the motorcycle was handed over by A-10 to PW-45 while fleeing from Ahmedabad on 4.4.2003 and thereafter PW-45 parked the same in the parking of Kalupur Railway Station from where the same was recovered by CBI in presence of PW-24 on the night intervening 24/25.4.2003. (iii) In December 2002, on the directions of A-13, PW-57 (hostile witness but statement under section 164 Cr. PC arranged 3 stolen motor Hero Honda motorcycles and handed over the same to A-4. Thereafter, A4 retained one with him and handed over one each to A-14 and A-5. Later on, these motorcycles were used in the commission of a crime on 11.3.2003, 25.3.2003 and 26.3.2003. (iv) One of the stolen motorcycles was handed over by A-10 to PW-45 on 3/4.4.2003 while fleeing from Ahmedabad. PW-45 parked the same in Apsara Aradhna Theatre and later on brought by PS Kagdapeeth from where it was seized by CBI on the pointing of PW-45 on 25.4.2003. (v) A fake number plate bearing No. GJ-ICH-5189 was got prepared by A-7 and A-8 from PW-52. This number plate was put on the second Hero Honda motor....
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....was obviously not an eyewitness to the incident. He could only have put it there after taking the statements of the eyewitnesses. The marking of the spot on the sketch-map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub- Inspector saw himself at the spot; but any mark put on the sketch- map based on the statements made by the witnesses to the Sub- Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation. We may in this connection refer to Bhagirathi Chowdhury v. King-Emperor, AIR 1926 Cal. 550, where it was observed that placing of maps before the jury containing statements of witnesses or of information re....
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....stol, and cartridges. PW-76 has deposed as to the motorcycle. In our opinion, it was not for the police to explain as to who had put two locks on the flat as submitted by the accused. That no adverse inference can be drawn for failure to explain putting of 2 locks. In no case, locks can be attributed to CBI. 111. The High Court has observed that in view of the concession granted by the counsel for the appellants, voluminous records and number of controversies about each piece of evidence, it was not necessary to be dealt with and each and every argument of learned counsel for both the sides. It could not be said to be the proper approach of the High Court. The High Court ought to have examined the entire background as to what facts and circumstances prevailed and whether the chain was complete to make out the case of conspiracy. It was absolutely necessary so as to find out the conspiracy. The acquittal recorded by the High Court was wholly uncalled for and is based on basically a wrong approach. It was incumbent upon the High Court to come a close quarter of reasoning employed by the trial Court and assessment of the evidence of the witnesses done by the trial court with great ....
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....ief 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." 114. Following safeguards are provided in the provisions contained in section 32 of the Act: (i). Confession to be made by the person before a Police Officer not lower in rank than a Superintendent of Police. (ii). It has to be recorded either in writing or on any mechanical or electronic device like cassettes, tapes or soundtracks. (iii). The Police Officer before recording confession has to appraise the accused in writing that he is not bound to make a confession and in case he makes it, the same may be used against him. (iv). That accused shall not be compelled to make any confession. (v). The confession shall be recorded in an atmosphere free from threat or inducement. (vi). Confession to recorded in the same languag....
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....atement under Section 32 of the Prevention of Terrorism Act, 2002 (POTA) in connection with Case No. CBI RC.5(S)/2003- SIU.I/SIC.I/CBI/New Delhi (Jagdish Tiwari case)." 118. After the ASI who produced him was asked to go out of the room when he went away, only the S.P. and accused remained inside the room. The S.P. had again put certain questions and apprised him all the details of the case and also ascertained from him whether he wanted to make a confessional statement. Accused was told that he was not legally bound to make such a statement. In case any such statement was made, the same may be used as evidence against him. He was also asked whether he was under any fear, pressure or greed or was beaten, tortured physically and mentally by anyone. He agreed to give a statement and denied to be under any fear, pressure or greed or beaten up or tortured in any manner. He was told that he was not legally bound to give the confessional statement. The S.P. had also recorded a finding that there was no physical injury, mark of violence on his person. The S.P. ordered in writing for keeping the accused Mohd. Asghar Ali for the purpose of his reflection in order to make up his mind whet....
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....fessional statement and if he gives any such statement, it would be used as evidence against him. I examined the person of accused and found no apparent or visible injury on his person or any mark of violence. I ordered for keeping the accused Mohd. Asghar Ali alone for the purpose of reflection in order to further make up his mind whether he actually wants to make his confessional statement or not. I further instructed that no one be allowed to meet him during the period of reflection. Sd/- Illegible Mohd. Asghar Ali Sd/- Illegible Vinayak P. Apte Superintendent of Police CBI/ACB, Gandhi Nagar" 120. After 65 hours lapsed, after the accused was given warning, he was directed to be produced before the S.P. who has recorded that during his period of reflection, no person was allowed to meet him. Once again warning was given. He was asked why he wanted to give a confessional statement. He was told the consequence of confessional statement once again that it could be used against him to which he answered that he knew it very well. Following is the note prepared by the S.P.: "Now more than 65 hours have passed since accused was given warning and....
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....nd explained to the accused and the entire confession statement has been heard, understood and admitted to be correct by the accused. The same confession statement has been recorded whatever has been given by the accused. Sd/- 21.6.03 Vinayak P. Apte Supt. Of Police CBI/ACB Gandhinagar Accused Asghar Ali has been handed over to Dr. S.K. Gupta, Dy. S.P, SIC-I, CBI, New Delhi Camp Gandhi Nagar today on 21.6.2003 at 3.00 PM. Sd/- 21.6.03 Vinayak P. Apte Supt. Of Police CBI/ACB Gandhinagar" In view of the aforesaid, it is apparent that the provisions of section 32(1), (2) and (3) of POTA have been complied with. 122. On 21.6.2003 the accused was produced before the Special Magistrate for CBI, Ahmedabad. An application was also filed under section 32(4) of the POTA for producing accused. It was mentioned that the confessional statement has been made by the accused voluntarily without fear, threat or inducement while recorded by the SP, CBI, ACP. The Magistrate has asked the accused whether he was ill-treated or tortured by the CBI while in custody recording confessional statement to which he replied in the negative. He further sta....
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....t, the fulfilment of such mandate is inherent in the process of recording a confession by a statutory authority. What is necessarily implicit is, perhaps, made explicit. But the notable safeguards which were lacking in TADA are to be found in sub- sections (4) and (5). 157. The lofty purpose behind the mandate that the maker of the confession shall be sent to judicial custody by the CJM before whom he is produced is to provide an atmosphere in which he would feel free to make a complaint against the police if he so wishes. The feeling that he will be free from the shackles of police custody after production in court will minimise, if not remove, the fear psychosis by which he may be gripped. The various safeguards enshrined in Section 32 are meant to be strictly observed as they relate to personal liberty of an individual. However, we add a caveat here. The strict enforcement of the provision as to judicial remand and the invalidation of the confession merely on the ground of its non-compliance may present some practical difficulties at times. Situations may arise that even after the confession is made by a person in custody, police custody may still be required for the pu....
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....rsons have been sent to judicial custody and the provisions of section 32 have been complied with in pith and substance. 126. It was also submitted on behalf of accused persons the strength of the Parliament attack case that the Magistrate should have read out the confession or at least gist of the same for compliance of provisions of section 32(5). The magistrate should also assure the accused beforehand that he can be sent to judicial custody and thereafter it is not enough that he ends up sending him to judicial custody. The statement of the accused is read over by the S.P. and if the same is admitted to be correct, thereafter he had put his signatures. Section 32(4) requires that the person whose confession has been recorded to be produced before the Magistrate along with an ordinary statement of confession within 48 hours. The Magistrate shall record the statement, if any, made by the person so produced and get his signatures or thumb impression. If there is any complaint of torture then medical examination has to be ordered and there after he shall be sent to judicial custody. 127. When we read order sheets, it is apparent that the Magistrate has recorded the statement ....
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....t was obligatory on the part of the Magistrate to question the accused as to whether they had made the said statements voluntarily or otherwise and that ought to have been formed as a part of the record of the confessional statements which were sent to her". The Designated Judge has also erred in holding that the Magistrate had not discharged the duties which were cast on her properly. The observations: "Had she recorded a memorandum below the confessional statements that she had questioned the accused about the averments in the said statements and she considered the said confessional statements to be voluntary and correct, then in that event, the confessional statements would have inspired the confidence of the court to believe that they are free from any of the influences. The Magistrate is not expected to take the position of a superior postman in the sense, receive the confessional statements and forward the same to the TADA Court by putting them in another envelope. The moment she receives the confessional statements; it should occur to her as to why they are sent to her? What is she required to do with them? Had the Magistrate been meticulous, it would have ....
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....t of police custody would depend upon the facts of each case. What is the impact of police custody on the confessional statement has to be considered also in view of the fact whether the accused were given sufficient time to think over which was given in the instant case. They had legal assistance also as they had communicated with advocates also after they were arrested and then the S.P. explained in writing to them the consequences of making such a statement. S.P. ensured that they were not under any fear or greed etc. and that they were not tortured. Thereafter confessional statement had been made. Sufficient time for reflection had also been given. Thus, no benefit can be derived from the aforesaid decision. 132. Learned counsel appearing on behalf of A-1 has pointed out that he remained in police custody from 17.4.2003 to 23.5.2003. Thereafter he was sent for judicial remand and again taken on police remand on 12.6.2003. After his confession in another POTA case, A-1 was remanded back to police custody from 16.5.2003 to 23.5.2003. Thus, A-1 had lost the confidence to speak out during his 10 minutes' production before the Magistrate and was not sure that he may be sent t....
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....the confession of an accused that it would not be safe to act upon the same. Full and adequate compliance not merely in form but in essence with the provisions of Section 164 Cr PC and the rules framed by the High Court is imperative and its non-compliance goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of an accused. In case the Magistrate discovers on such enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is asked to make his statement and should assure himself that during the time of reflection, he is completely out of police influence. An accused should particularly be asked the reason why he wants to make a statement which would surely go against his self-interes....
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.... 37. In Parmananda Pegu v. State of Assam, (2004) 7 SCC 779, this Court while adverting to the expression "corroboration of material particulars" used in Pyare Lal Bhargava v. State of Rajasthan, 1963 Supp. (1) SCR 689, clarified the position thus: (SCC p. 790, para 20) "By the use of the expression 'corroboration of material particulars', the Court has not laid down any proposition contrary to what has been clarified in Subramania Goundan v. State of Madras, 1958 SCR 428, as regards the extent of corroboration required. The above expression does not imply that there should be meticulous examination of the entire material particulars. It is enough that there is broad corroboration in conformity with the general trend of the confession, as pointed out in Subramania Goundan case." The analysis of the legal position in paras 18 and 19 is also worth noting: (SCC p. 788) "18. Having thus reached a finding as to the voluntary nature of a confession, the truth of the confession should then be tested by the court. The fact that the confession has been made voluntarily, free from threat and inducement, can be regarded as presumptive evidence of its truth.....
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....t that a person in custody in connection with the POTA offences is supposed to know the fasciculus of the provisions of POTA regarding the confessions and the procedural safeguards available to him. The presumption should be otherwise. The lawyer's presence and advice, apart from providing psychological support to the arrestee, would help him understand the implications of making a confessional statement before the police officer and also enable him to become aware of other rights such as the right to remain in judicial custody after being produced before the Magistrate. The very fact that he will not be under the fetters of police custody after he is produced before the CJM pursuant to Section 32(4) would make him feel free to represent to the CJM about the police conduct or the treatment meted out to him. The haunting fear of again landing himself into police custody soon after appearance before the CJM would be an inhibiting factor against speaking anything adverse to the police. That is the reason why the judicial custody provision has been introduced in sub-section (5) of Section 32. The same objective seems to be at the back of sub-section (3) of Section 164 Cr PC, though....
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....lephone or by any other means and this fact shall be recorded by the police officer under the signature of the person arrested. (4) The person arrested shall be permitted to meet the legal practitioner representing him during the course of interrogation of the accused person: Provided that nothing in this subsection shall entitle the legal practitioner to remain present throughout the period of interrogation." The observations made by this Court in Parliament attack case carry the case no further as the accused were having the legal assistance after their arrest and they were never deprived of the same, and it is not their case they had asked for lawyer's assistance during the period of reflection before confessing and they were denied the same. 138. In the Parliament Attack case, the observation has been made by this Court in the light of the submission that the confession cannot be truly judged from the standpoint of probabilities and natural course of human conduct, though this Court has commented that they were plausible and persuasive. 139. The learned counsel appearing on behalf of accused has submitted that confession of a co-accused made....
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....oes it follow that the confession made by one accused is equally admissible against others, in the absence of specific words? The answer, in our view, should be in the negative. On a plain reading of Section 32(1), the confession made by an accused before a police officer shall be admissible against the maker of the confession in the course of his trial. It may be a joint trial along with some other accused; but, we cannot stretch the language of the section so as to bring the confession of the co-accused within the fold of admissibility. Such stretching of the language of law is not at all warranted especially in the case of a law which visits a person with serious penal consequences [vide the observations of Ahmadi, J. (as he then was) in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76, SCC at p. 86, which were cited with approval in Kartar Singh case. We would expect a more explicit and transparent wording to be employed in the section to rope in the confession of the co-accused within the net of admissibility on a par with the confession of the maker. An evidentiary rule of such importance and grave consequence to the accused could not have been ....
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.... It is relevant and admissible against the maker of it. 140. On the other hand, learned Solicitor General has relied upon the decision in Kehar Singh v. State (Delhi Administration), (1988) 3 SCC 609, wherein this Court observed as under: "278. From an analysis of the section, it will be seen that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co-conspirator. Once such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy but also for proving that the other person was a party to it. It is true that the observations of Subba Rao, J., in Sardar Sardul Singh Caveeshar v. State of Maharashtra, (1964) 2 SCR 378 lend support to the contention that the admissibility of evidence as be....
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....ng from Articles 21, 22(3) and 20(3) of the Constitution of India. As already mentioned that they were assisted by lawyers also in the main case when remand etc. was sought. The submission that PW-21 has stated that police custody has no relevance upon the voluntary nature of confession, which is as per counsel is against the settled jurisprudence, is also untenable for the reason that section 32 makes a voluntary confession to a police officer admissible. 143. It was also submitted on behalf of accused persons that the use of words like "suraksha", "prabandh", "poorva" 'netritva' 'anusar' 'hatya' "sampark", etc., which are highly Sanskritised words would never occur spontaneously to a Muslim of A-1's background from the Deccan/Hyderabad region. "Spontaneously to a Muslim like the background of A-1 who hails from Hyderabad", and to other accused persons, the submission is not tenable. It would depend on several factors. Firstly, the aforesaid words cannot be said to be Sanskritised. Secondly, it would depend upon the educational background of a Muslim in which he has been brought up. Merely by the fact that A-1 happens to be a Muslim, it cannot be sai....
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....eikh, A-9, in hospital at 10 a.m. A-9 was required produced before the Magistrate on 9.6.2003 i.e. within 48 hours as required under section 32 of POTA. Neither he stated so in the written retraction of confessional statement that he was at the time in the hospital when the confessional statement is said to have been recorded. It was necessary to discredit the recording of confession by PW-21 to put it in the cross-examination and to seek his explanation. Cross-examination is not a matter of procedure but a matter of substance as held in Maroti Bansi Teli v. Badhabai w/o Tukaram Kunbi, AIR 1945 Nagpur 60, Karnidan Sarda v. Sailąja Kanta Mitra, AIR 1940 Patna 683, A.E.G. Carapiet v. A.Y. Derderian, AIR 61 Cal. 359, and Jai Shankar Prasad vs. State of Bihar, AIR 1963 SC 1906. 148. With respect to retraction of the confessions by all the accused persons on the same day after a month, it is apparent from the reasons recorded by the court that they have given different reasons for retraction. The court has individually heard each and every accused. A-1 has stated that his signatures had been obtained on the blank papers. A-2 has stated that was a fact that under fear of encounte....
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....court did not commit any error by relying upon the confessions of Appellants A-4 to A-8 and A-10 and we do not find any valid ground to discard the confessions of Appellants A-4 to A-8 and A-10." Since there was no mal-treatment, no manifest complaint of torture, confession appears to be voluntary and all the accused persons were sent to judicial custody. Subsequent retraction of confession is of no consequence, the same is an afterthought. 150. It was urged by learned Additional Solicitor General appearing on behalf of CBI that A-4 and A-5 stand convicted in tiffin bomb case dated 29.5.2002 in which tiffin bombs were planted in buses going towards Hindu localities and the trial court has also convicted A-1 along with A-3 in conspiracy with other accused persons under section 307 read with section 120B IPC and section 3(3) of POTA Act. Same forms part of the chain of criminal conspiracy to create terror in the community of Hindus which has led to the murder of Haren Pandya. The associated case also provides a link and part of the conspiracy to finish the Hindu leaders and to take revenge of post- Godhra incidents. PW-39 has also identified accused A-1 and A-3 in the TIP proce....
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....uk and thereafter to Sohail Khan's place from where he was taken to Lokhandwali Chawl, Bapunagar. He contacted A-3 (Mohmed Shafiuddin) and gave the address of Musafirkhana and also called him to Ahmedabad. He was provided with the mobile number of Sohail Khan i.e., 9426034937 and also intimated Sohail Khan about this friend. He went along with Sohail Khan and Parvez and brought Shafi to Hotel Garden near Ahmedabad Railway Station. Thereafter, A-1 and Shafi were taken to M.B. Flats and from there to Royal Apartment to Sundaramnagar. He was given a mobile phone with SIM card no. 9825498421 and also one Suzuki Samurai motorcycle. He was in touch with Suleman (Rasul Party) through Modern Cyber Café. In March 2003, A-10 and A-11 went to meet him. Sohail Khan name BJP Leader Jagdish Tiwari to be their first target as he led the mob during the riots. Parvez showed him the shop of Jagdish Tiwari. 153(a). On 9.3.2003, A-1 (Mohmed Asgar Ali) and A-3 (Mohmed Shafiuddin) went to the place of Jagdish Tiwari to target him, but Jagdish Tiwari did not pass through the said route. On 10.3.2003, they followed Jagdish Tiwari, but they could not kill Jagdish Tiwari. They accordingl....
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.... three days. Due to safety purpose, Sohail Khan asked him to vacate Royal Apartment. His task was appreciated by Anas Machiswala, Sohail Khan, and Mufti Sufiyan. He was asked to stay at Sikandar's place at Kanodar village, but he refused to keep him and he had stayed at Kanodar Masjid. Later, he was moved to Flat No. 4-B, behind Shahpur Police Station. 153(e). Next day Sohail Khan called A-1 (Mohmed Asgar Ali) near Juhapura, Afzal Masjid. He received a call from Mohd. Ayub who was called at the hotel. His stay arrangement was made at Silver Flat No. 2, where Dr. Harun used to stay and A-1 (Mohmed Asgar Ali) also stayed there for about a week. He continued to chat with his friends at Cyber Space Cafe at Afzal Mosque. It is stated that he was extremely annoyed with the maltreatment meted out to him after killing Haren Pandya, on writing to Rauf, he urged him that he should intimate Suleman at Pakistan that fact but the next day he did not receive any message and therefore, the next day he chose to go to Hyderabad. On 7.4.2003 when Ayub brought food for him, he requested him to drop him at Railway Station, got the ticket for himself for Mumbai. He himself was very perplex....
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.... the evidence. 156. On behalf of accused A-1 (Mohmed Asgar Ali), it was submitted that CBI case is that A-9 had called A-7 at 7.18 a.m. on 26.3.2003 to say that A-1 has not arrived at Law Garden. At 7.33 a.m., A-1 had called A-14 from some kilometers away from Law Garden after the murder. At 8.17 a.m., A-1 again called A-14 from some 15-17 km. away. It was further submitted that there is no evidence to show that these were phones used by A-7 and A-9 or A-1 or to show the nature of the conversation save the confessions. Even the cell location of one of those numbers is missing. It was also submitted that taking this theory at face value it means that A-1 did not reach the spot before 7.19 a.m. Also, he must necessarily have left the spot before 7.29 a.m. because it would take 4-5 minutes to reach the spot from which the call at 7.33 a.m. was made. The time band for the murder is thus between 7.19 a.m. and 7.28 a.m. at the outer limit going by CBI case, it is even less if the confession is taken into account for that says that A-1 wanted a few minutes before Mr. Pandya arrived. 157. After the incident, A-1 (Mohmed Asghar Ali) called A-14 Sohail's Mobile No. 9426039937 from ....
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....Entry no. 8682 (Exhibit 299) was made in the visitor register regarding his stay. Thereafter, he stayed with Usman Khan Nawab Khan (PW-29) at his house for 2-3 days and went to Chetak Circle and used a computer in the computer centre. It had been corroborated by Usman Khan Nawab Khan (PW- 29) in his deposition. He also procured a stolen bike of Hero Honda, this fact had been corroborated by PW-57 (hostile witness) in this deposition. He met Salim Pasha and on 23.1.2003, A-3 (Mohmed Shafiuddin) reached Udaipur and stayed at Muslim Musafirkhana for a day. This fact had been corroborated by Dr. Mohmed Aizaz Ali, Principal Scientific Officer (Document) CFSL, New Delhi vide report (Exhibit 524) and he had also given a positive opinion with respect to Entry No. 8699 (Exhibit 300) made in the visitor register for a stay of A-3 (Mohmed Shafiuddin). After reaching Ahmedabad, A-1 (Mohmed Asgar Ali) was accommodated in a room at Lokhandwalichali, Bapunagar owned by Mushtaq Ahmad Munir (PW-63), which had been proved by Mushtaq Ahmad Munir (PW-63) in his deposition (Exhibit 652). He had also confessed that after firing on Jagdish Tiwari (PW- 39), he called A-14 (Sohail Khan Pathan) on mobile no....
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....stablished by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting an offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between 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." 164. Learned Senior Counsel has further relied upon the decision of Central Bureau of Investigation, Hyderabad v. K. Narayana Rao, (2012) 9 SCC 512, in which this Court opined thus: "24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illega....
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.... adopted an erroneous approach resulting in miscarriage of justice. (State of T.N. v. Suresh, (1998) 2 SCC 372 at SCC paras 31 and 32; State of M.P. v. Paltan Mallah, (2005) 3 SCC 169 at SCC para 8.) (vi) Acquittal is based on irrelevant grounds. (Arunachalam v. P.S.R. Sadhanantham, (1979) 2 SCC 297 at SCC para 4.) (vii) The High Court has completely misdirected itself in reversing the order of conviction by the trial court. (Gauri Shanker Sharma v. State of U.P., (1990) Supp. SCC 656) (viii) The judgment is tainted with serious legal infirmities. (State of Maharashtra v. Narsingrao Gangaram Pimple, (1984) 1 SCC 446 at SCC para 45: AIR para 45.) 17. In reversing an acquittal, this Court keeps in mind that presumption of innocence in favour of the accused is fortified by an order of acquittal and if the view of the High Court is reasonable and founded on materials on record, this Court should not interfere. However, if this Court is of the opinion that the acquittal is not based on a reasonable view, then it may review the entire material and there will be no limitation on this Court's jurisdiction under Article 136 to come to a just decision ....
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.... Kehar Singh (supra). It was further submitted that Hussainmiyan Amirmiyan Shaikh (PW-57) on the instructions of A-4 (Kalim Ahmad Karimi), has stolen three motorcycles and given them to A-4 (Kalim Ahmad Karimi). Hussainmiyan Amirmiyan Shaikh (PW-57) has turned hostile and has stated that he had not made any statement on 11.4.2003 regarding stealing of motorcycles. He further stated that he had not given any statement in the crime branch and only his signatures were taken on written paper before the Magistrate. He has denied his statement under Section 164 Cr.PC also. He has submitted that signatures were given under coercion. The statement under Section 164 Cr.PC is not a substantive piece of evidence and needs corroboration as held in the State of Delhi v. Shri Ram Lohia, AIR 1960 SC 490. 170. It was also submitted on behalf of A-4 (Kalim Ahmad Karimi) that prosecution has relied on the deposition of Javed Abdul Rashid Khan Pathan (PW-45) who had purportedly disposed of two motorcycles after the incident. He had also stated that he was forced to give the statement. He has denied that motorcycle recovered from Apsara Cinema was seized in his presence and he has also denied that ....
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....is apparent that A-4 (Kalim Ahmad Karimi) was a close associate of A-13 (Mufti Sufiyan) and has worked as a link between A-13 (Mufti Sufiyan) and the rest of accomplices. He received three motorcycles which were stolen in 2002 and kept on the directions of A-13 (Mufti Sufiyan) one motorcycle with him and handed over the other two to A-5 (Anas Machiswala) and A-14 (Sohail Khan Pathan). It is also apparent that he has procured two weapons from Surat in February 2002. After shooting incident of Jagdish Tiwari on 11.3.2003, he had attended meetings dated 17/18.3.2003, 22.3.2003, 24.3.2003 and 25.3.2003, where modalities to murder Haren Pandya were chalked out. He kept the weapon received on 17/18.3.2003 from A-5 (Anas Machiswala) and A-13 (Mufti Sufiyan) in his shop. On 24.3.2003, he handed over three weapons which were kept at his shop to A-5 (Anas Machiswala). On 25.3.2003, he received back those weapons from A-5 (Anas Machiswala) after a failed attempt on Haren Pandya. Later in the night, he again handed over weapons to A-5 (Anas Machiswala) as Haren Pandya was to be killed on the next day. 173. It is also apparent that he was instrumental in changing the number of plates of the ....
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....ly not computer-generated owing to the random order of dates and missing pieces of information and in terms of Section 65B of the Indian Evidence Act, 1872, the records cannot be said to be reproduced from the original computer. Thus, the requirements under Sections 65A and 65B of the Indian Evidence Act, 1872 are not met. 174(a). As far as the confessional statement of Anas Maschiswala (A5) is concerned, the procedural safeguard of giving 24 hour reflection time was duly adhered to. All cautions were given to him. Voluntariness was ascertained. No signs of any physical injuries were found upon examination, neither was he threatened in any manner. 174(b). It comes forth in A5's confession that it was Mufti Sufiyan (A13) who had instigated one and all to take revenge of the 2002 riots. He (A5) describes his role of instigating other boys for the Tiffin Box Bombs. A5 describes the arms training that he underwent in Pakistan. He also names others who had also obtained training at Pakistan. After the training, he stayed at Karachi, where he was constantly in touch with Sohail Khan (A14 -- absconding), who in turn was very friendly with Rasool Party (A18 -- abscond....
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....t A1 refused to give either of the firearms but handed over five empty cartridges. 175. Evidence of PW-21, PW-120, PW-122, and PW-91 show due compliance of all procedures, including confirmation proceedings. PW- 108 arrested A5 from Andhra Pradesh. He was arrested along with A4 and A12. Disclosure, discovery, and seizure of both the pistol and the e-mail printouts are supported by PW-65 (panch witness). The pistol was discovered at the instance of A5 in the presence of this witness. Email-id and password were given by A5. Printouts of the emails were taken out in the presence of this witness. This witness supported all documentary evidence in relation to the above. Exhibit 685 is the sanction accorded by PW-115 to prosecute several accused including A5 under the Arms Act. Other accused are A1, A3, and A6. This sanction under Section 39, Arms Act was accorded by PW-115, being the In-Charge Police Commissioner of Ahmedabad City at the relevant time. Vide notification dated 28.02.02, State of Gujarat had been declared to be a notified area under the POTA. Mere possession of a firearm in a notified area is an offence as per Section 4 of the POTA. 176. PW-87 opined as to matters c....
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.... a motorcycle for killing Haren Pandya. A-5 (Anas Machiswala) also provided him black coloured Hero Honda motorcycle for the purpose and mobile instrument of A-8 (Mohmed Riyaz) having SIM card. Discovery has been made on the basis of disclosure memo under Section 27 of the Evidence Act furnished by A-1 (Mohmed AsgarAli) regarding pistol and it is recovered in the presence of SrinathSinh ShambhauSinh (PW-13). CDR call records of mobile no. 9426325774 has been placed on record. 181. Disclosure memo Exhibit 196 of the pistol and its seizure vide Exhibit 195 have been proved on record. The confessional statement of A-6 (Mohmed Yunus Sareshwala) disclosed that he was given 72 hours to reflect upon the aspect of his confession. He stated of his having taken the training at Pakistan with Parvez and Goru. After giving details of his role in AMTS blasts on 29.5.2002, they also purchased country-made revolver from money given by A-5 (Anas Machiswala). Masak told them to create terror amongst the people by killing the leaders. He was informed that 15-20 guests were to come to Ahmedabad and A-4 (Kalim Ahmad Karimi) had to make arrangement for all of them. On 9.3.2003, A-5 (Anas Machiswala) ....
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....o Shahabuddin Dargah to Shahpur Mill Compound, where they met A-14 (Sohail Khan Pathan) and A-7 (Rehan Puthawala), who was waiting in an autorickshaw. A-6 (Mohmed Yunus Sareshwala) went with A-7 (Rehan Puthawala) on his motorcycle after changing two autorickshaws. He went to his residence at Juhapura. He was very happy to know about the death of Haren Pandya. 182. His confessional statement has been corroborated by Alpesh Ranchhodbhai Patel (PW-11), SrinathSinh ShambhauSinh (PW-13), Manojkumar Baldevbhai (PW-17), Hemantkumar Ratilal Patel (PW-33) and Rajendra Singh S. Chhikara (PW-110). They are the witnesses to the recoveries of SIM cards. Alpesh Ranchhodbhai Patel (PW-11) and Manojkumar Baldevbhai (PW-17) are the witnesses relating to BSNL SIM cards, which were used by the accused persons during the conspiracy of murder of Haren Pandya, to remain in touch with each other. At the instance of A-1 (Mohmed Asgar Ali) 7.5 mm pistol bearing no. EE330 was discovered from Flat No. 4/B, Kamar Flats from Batiwala Stove and Srinathsinh Shambhausinh (PW-13) was the witness to the said discovery. Jayantibhai Vitthaldas Suthar (PW-27) has proved the landline of the house of Mohmed Yunus Sar....
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....26.3.2003: i. A-9 (Mohmed Parvez Sheikh) contacted A-7 (Rehan Puthawala) twice at 7:18:35 and 7:18:43. As per him, the 167 location of A-9 was Law Garden and that of A-7 was Nehru Bridge. ii. At 7:34:43 another call was made by A-9 (Mohmed Parvez Sheikh) to A-7 (Rehan Puthawala), but their location could not be traced due to technical lag. It is further submitted that there was no call either made or received by A-6 (Mohmed Yunus Sareswala) on that date between 7.00 am to 8.30 am. Hence, A-6 (Mohmed Yunus Sareswala) presence has not been conclusively established at the place of incident. 184. It is also submitted that the CDR produced by Hemantkumar Raitlal Patel, BSNL Officer (PW-33) is in typed format and in any case, it is inadmissible under Section 65B of the Evidence Act. It is further submitted that there is no evidence to show that A-6 (Mohmed Yunus Sareswala) had taken A-1 (Mohmed Asgar Ali) to Shahpur Mill Compound after the murder of Haren Pandya. With regard to recovery of pistol carried by A-6 (Mohmed Yunus Sareswala), it is contended that it was not recovered at the instance of A-6 (Mohmed Yunus Sareswala), but from the purported disclosure made....
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.... with A-5 (Anas Machiswala), A-8 (Mohmed Riyaz), A-9 (Mohmed Parvez Sheikh), A-12 (Shahnawaz Gandhi) and A-14 (Sohail Khan Pathan), where A-14 (Sohail Khan Pathan) disclosed that Jagdish Tiwari (PW-39) would be their target due to his role in riots and task will be accomplished by Mehman (A-1 - Mohmed Asgar Ali) who has come from Hyderabad. On 17/18.3.2003, he attended meeting at Juni Jama Masjid where A-14 (Sohail Khan Pathan) disclosed that Haren Pandya would be their next target and A-1 (Mohmed Asgar Ali) would execute the killing. He also attended the meeting held on 22.3.2003 at Juni Jama Masjid where A- 14 (Sohail Khan Pathan) assigned the task of a recce of Haren Pandya at Law Garden to A-12 (Shahnawaz Gandhi). On 23.3.2003 at about 7.00 am, A-9 (Mohmed Parvez Sheikh) called A-1 (Mohmed Asgar Ali) using his mobile in which A-5 (Anas Machiswala) had stored the numbers of A-1 (Mohmed Asgar Ali) and A-5 (Anas Machiswala) as Mama and Uncle respectively. On 24.3.2003, he was present in the meeting at Juni Jama Masjid where A-1 (Mohmed Asgar Ali) was called by A-4 (Kalim Ahmed) by making a phone call. On the directions of A-14 (Sohail Khan Pathan), A-9 (Mohmed Parvez Sheikh) took ....
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....arent that A-7 (Rehan Puthawala) is a close friend of A-10 (Parvez Khan Pathan), A-12 (Shahnavaz Gandhi) and A-8 (Mohmed Riyaz). He has given his confessional statement to Vinayak Prabhakar Apte (PW-21) and the same had been confirmed by Dahyabhai Mathurbhai Patel (PW-91). Though Hussainmiyan Amirmiyan Shaikh (PW-57) has not supported his own statement, yet he has stated that he was known to A-4 (Kalim Ahmed Karimi) through A-13 (Mufti Sufiyan) and also knowing all the accused including A-7 (Rehan Puthawala). Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW-52) the owner of "Star Number Plate" shop has categorically stated about A-8 (Mohmed Riyaz @ Goru) and A-7 (Rehan Puthawala) having approached for number plate and also taken the delivery and at the end of May 2003, they had shown his shop to CBI Officer from where the number plate was got prepared. The motorcycle having fake registration no. GJ-1-CH-5189 originally belonged to Gaurang Gandhi. This motorcycle was stolen and the original owner Gaurang Gandhi had made a request not to transfer the stolen vehicle in the name of any other person. As stated earlier, the fake number plate was discovered from the bushes near Tarapur Highw....
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....Rabari (PW-34) vide document Exhibit 311. 191. It was submitted on behalf of accused by Shri Raju Ramachandran, learned Senior Counsel that there was no necessity to escort A-6 (Mohmed Yunus Sareshwala), who is a local resident of Ahmedabad. The CDR (Exhibit 310) has failed to show the location of the number which was being used by A-7 (Rehan Puthawala) on 26.3.2003 and the CDR was inadmissible in evidence. The allegation against the accused was far from the truth and also baseless. The evidence of Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW-52) is fraught with infirmities. There is a doubt as to whether A-7 (Rehan Puthawala) approached him for a false number plate of the motorcycle. The receipt produced contains no name and he has erased Splendor and written Yamaha against the entry of number 5189, whereas it is his original case that he was asked to prepare a number plate for Yamaha which was later changed to Splendor. The job book is recovered on 22.5.2003 whereas he has not stated that CBI has come to his shop before 23.5.2003. The statement is typed on a computer, but there is no computer at the shop of Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW-52) and he has not been....
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....connection of motorcycle recovered by PS Koth, which CBI claimed to be connected with number plate 5189, with the offence. The discrepancies as to the presence or absence of a number plate on the motorcycle in the panchnama and in the testimony of Sushilkumar S. Gupta (PW-120) creates suspicion. It is further urged that on account of broadcast in May 2003, the CBI came to know about the motorcycle being at PS Koth. This broadcast indicates that CBI was aware of the motorcycle in the month of May itself and the recovery of the motorcycle from PS Koth on 12.6.2003 was choreographed to suit the case of the prosecution. Despite Court's directions, no broadcast documents have been produced. It is stated that motorcycle having number plate 8973 was recovered from the parking of Apsara Cinema by Kagdapeeth PS on 9/10.4.2003 and it was seized by CBI on 25.4.2003. However, Javed Abdul Rashidkhan Pathan (PW-45) denies being shown the motorcycle at Kagdapeeth PS and also states that CBI did not seize it in his presence. It is also contended that original owner Ashokbhai Ambalal Shah (PW-36) of the above motorcycle has deposed that from 24.12.2002 i.e., the day he filed a complaint of thef....
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....attach much importance to this in view of his late retraction which was held to be on legal advice, with no prior complaint having been made to any judicial officer and all safeguards of Section 32, POTA had been duly observed by the S.P. 199. PW-21, PW-120, and PW-91 prove contemporaneous record of the requisition, the preliminary questioning, the caution which was administered and the confirmation procedure under Section 32 (4) of the POTA, in regard to the confessional statement of A-8. Additionally, all witnesses examined to prove A-7's guilt are examined to prove A-9's complicity as well. Corroborative evidence also comes forth from PW- 11, PW-17, PW-21, PW-45, PW-52, PW-60, PW-77, PW-91, PW-114, PW-117, and PW-120. Depositions of PW-119 and PW-33 (working as Sub-Divisional Engineer and Divisional Engineer, respectively at BSNL, Ahmedabad) are in relation to cell phone records. 200. On 25.03.03 A8 drove A1 to Law Garden. Haren Pandya was to be murdered on that day as per the conspired planning. This mission had to be aborted on 25.03.03. For 26.03.03 (i.e. the day Haren Pandya was actually murdered) A-8's task of taking A-1 to Law Garden was assigned to A-6. ....
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....ire sequence of conspiracy. 60 hours of reflection time was given to him. The requisition was given on 04.06.03. The statement was recorded on 07.06.03. Willingness was again verified after recording the statement. A9 put his signatures to it. His custody was handed over to PW-120 at 4.50 pm. The next day being Sunday, he was produced before PW-91 at 10.35 am on 09.06.03. No grievance was raised against police. No complaint was made of any physical or mental ill-treatment at the hands of police. His subsequent warrant of judicial remand is Ex. 324. 204. He went for training at Pakistan via Indo-Bangla Border. A4 had told him that even those who did not have passports were also to go there. A9 states that although Rehan (A-7) could not make it, for his (A-7's) parents were visiting from the USA, Anas (A-5), Shahnawaz (A- 12), Sohail Khan (A-14), and Yunus (A-6) had all gone for training at Pakistan. Two coded messages are also mentioned to have been sent, one each on behalf of A-18 and A-18's wife; the former was sent for A4, the latter in the form of a letter for A-8 and A6. 205. A-9 was present in the meeting at Jaliwalli Masjid on 09.03.03. He states that attendees ....
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....d into service. Accused had been sent for a medical check-up as part of compliance of the guidelines in D.K. Basu's Case. PW-21 had mentioned that about 12 hours and 50 minutes were taken to record A-9's confessional statement. There was no interruption of any kind while recording the confession. Recording started at around 4 am; ended at 4.30 pm. A-9 was produced at the Civil Hospital for medical check-up on 07.06.03. Medical papers (Ex. 773) show his presence along with other accused. Mr. I.C. Sharma of CBI had taken A-7, A-8, A-9, A-10, and A-11 for medical examination around 10 am. With aforesaid as the position, defence contention was that there could have been no uninterrupted recording of the statement. Thus, PW-21 perjured himself. A confessional statement is hence rendered, suspect. 208. There is no substance in the aforesaid defence arguments. The defence did not ask for a recall of PW-21 to cross-examine him as to aforesaid aspects. Even if medical papers were produced late, nothing prevented the defence from asking for his recall. It cannot thus be concluded that PW-21 perjured himself. In fact, PW-21 was duty- bound to refer the accused persons for medical c....
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....m the bushes, though, he discovered no bike, he went into nearby Koth Police Station, whereupon he learned that in May 2003, the Koth Police Station had found an abandoned bike on the Tarapur Highway. 212. On behalf of the accused, it was submitted that the bike could not have been driven by Bhagwan Singh Samantsinh Rathod (PW-50), PSI Koth Police Station stated that on 5.4.2003. It was further submitted that tires were deflated and flung down. It could not have been brought to the police station. The Koth Police Station had broadcast this news in May 2003 and that is how CBI came to know about it. The statement of Bhagwan Singh Samantsinh Rathod (PW- 50) has also been adversely commented upon that looking at the front of the motorcycle there was one white color number plate, but no number was written on it. On 3.5.2003, when the motorcycle was seized, it was in standing position, hence he brought it to the police station and broadcast as to the motorcycle in every police station as it was found unclaimed. The disclosure statement refers to the number of the plate being removed and thrown away. 213. As per prosecution case, A-10 (Parvez Khan Pathan) is the real brother of A-1....
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....ttacking Jagdish Tiwari (PW-39), they visited his house and changed clothes. He along with A-11 (Mohmed Faruq) dropped them at Royal Apartments. 215. It is further the case of the prosecution against A-10 (Parvez Khan Pathan) that after 3-4 days of the attack on Jagdish Tiwari (PW- 39), on the directions of A-14 (Sohail Khan Pathan), he dropped A-3 (Mohmed Shafiuddin) at ST Bus Stand for going to Jaipur. On 1.4.2003, he was informed by A-14 (Sohail Khan Pathan) that Flat No. 401 at Royal Apartment has been vacated. On 3.4.2003, he went to Abdul Banki Abdul Bari Ansari (PW-44) and collected a cheque for Rs. 3,500/- out of the advance amount paid. Thereafter, on the instructions of A-14 (Sohail Khan Pathan), he handed over Suzuki Samurai and Hero Honda motorcycles to Javed Abdul Rashidkhan Pathan (PW-45) and asked him to keep them in some parking place. This fact had been corroborated by Javed Abdul Rashidkhan Pathan (PW-45) in his deposition (Exhibit 558). After 4.4.2003, he along with A-11 (Mohmed Faruq) fled from Ahmedabad on Hero Honda motorcycle which they abandoned at Tarapore highway after removing its number plate. Thereafter, he went to Bharuch and stayed in false names o....
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....ted. In April 2003 it was vacated and after deducting the amount of rent, he had refunded Rs. 3,400/- to A- 10 (Parvez Khan Pathan) through cheque issued favouring A-10 (Parvez Khan Pathan) drawn on Gujarat Industrial Cooperative Bank from Saving Bank Account No. 2244 and the same had been encashed by A-10 (Parvez Khan Pathan). This fact had been proved by Satyendra Sriramayan Pandey (PW-105), Sub-Inspector, CBI who had seized the said cheque book and also obtained the bank details of aforesaid account no. 2244 from the Shantikumar Narmadashankar Pandya (PW-37), Branch Manager of Gujarat Industrial Cooperative Bank, was also categorical about A-10 (Parvez Khan Pathan) having withdrawn the amount giving the details of denomination of the currency notes given to him on 3.4.2003. The handwriting on the cheque was also proved to be that of A-10 (Parvez Khan Pathan). Suzuki Samurai black coloured motorcycle bearing no. GJ-1-SS-5934 was found at the instance of Javed Abdul Rasidkhan Pathan (PW-45). Abdul Samad Abbasali (PW-54), owner of Silver Auto Consultant, dealing in sale and purchase of second-hand two-wheelers, on 28.1.2003 purchased the aforementioned motorcycle from Sanjab Akhtar....
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....rial Court under POTA and for murder of Haren Pandya. IN RE: A-11 (MOHMED FARUQ) 219. It is contended by Shri Shadan Farasat, learned counsel on behalf of A-11 (Mohmed Faruq) that there is no evidence against A-11 (Mohmed Faruq) other than confession. It is alleged that he has accompanied A-10 (Parvez Khan Pathan) when the bike was abandoned at Tarapur Highway. There is no evidence to support it. The other allegation against him is that he accompanied a group of people who drove A-1 (Mohmed Asgar Ali) to Ahmedabad from Udaipur in February 2003 and that by itself is not an offence as it is the prosecution case that the plan to murder Haren Pandya was hatched only on 18.5.2003. He has undergone the sentence for general conspiracy including the conspiracy of the attack on Jagdish Tiwari (PW-39). It is contended that there is no evidence to link him to the murder of Haren Pandya and hence, his acquittal must be upheld. 220. It is the case of prosecution and evidence discloses that A-11 (Mohmed Faruq) was a close associate of A-14 (Sohail Khan Pathan) and a friend of A-10 (Parvez Khan Pathan). He was under the influence of Mutfi Sufiyan and through him, he came in contact with ....
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....s alleged involvement in the crime. 221. There is supporting evidence of Usman Khan Nawab Khan (PW-29) (Exhibit 295), Turk Salim Pasa Majarirule Islam (PW-49) (Exhibit 365), Tawabhai Yusufbhai Shaikh (PW-66) (Exhibit 429) and Mohmed Jalis Ahmed Rajput (PW-68) (Exhibit 431). 222. It was urged on behalf of accused persons that FIR of such incident registered belatedly is doubtful. The submissions though attractive have no legs to stand. It is apparent that car was parked at Chitty Bang near Law Garden and the glasses of the car of Haren Pandya were dark and rolled up considerably and in the process of firing he fell down on the side seat. Obviously, in order to save himself, he tried to lie down and bullets were fired at him constantly one after the other by A-1 (Mohmed Asgar Ali). In the process, his legs came up. As the glasses were dark, obviously it was not possible for others to take note of the fact that Haren Pandya was lying killed in the vehicle. The eye witness - Anil Yadram Patel (PW-55) has gone to inform the owner of Chitty Bang and by the time he could come back, police had arrived at the spot and were taking Haren Pandya to Hospital. This explains the so-called d....
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....been charged with under the POTA as well as under the IPC. The High Court has also maintained and upheld conviction and sentence awarded to him by the Trial Court. As no appeal was preferred by CBI against the decision of the Trial Court against A-3 (Mohmed Shafiuddin), no case for further interference is made out. IN RE: A-12 (SHAHNAVAZ GANDHI) 226. With respect to A-12 (Shahnavaz Gandhi), he was convicted only under Section 3(3) of POTA and was sentenced by the Trial Court to undergo 5 years rigorous imprisonment. The High Court has confirmed and maintained the conviction and sentence awarded under Section 3(3) of POTA. 227. No appeal was preferred by CBI against the acquittal A-2 (Mohmed Abdul Raouf), A-3 (Mohmed Shafiuddin) and A-12 (Shahnavaz Gandhi) and since they have completed the sentence fully awarded to them by the Trial Court as modified by the High Court in the case of A-2 (Mohmed Abdul Raouf), no further interference is required to be made as against them in the judgment of conviction and sentence imposed and it need not be discussed elaborately as no appeal was preferred against the decision of the Trial Court by CBI. IN RE: CRIMINAL APPEAL NO .... ... /2....
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....h the main accused - Mohmed Asgar Ali on the date of the incident and while he was running from place to place after committing murder of Haren Pandya, he is said to have stayed for three days in the accommodation which was taken from the accused M.J. Sheikh at the instance of the Mufti Sufian. No role has been shown of the accused in the conspiracy leading to the attempt of murder of Mr. Jagdish Tiwari and killing of Haren Pandya. Maybe subsequent stay at the house that too when the house has been obtained by Mufti Sufian and since the accused M.J. Sheikh was close to Mufti Sufian he has taken his car to bring the A-1 to the accommodation cannot make him conspirator in the murder of Haren Pandya since it was a subsequent event. The phone calls made to Mufti Sufian by the accused are not significant since the witness was known to Mufti Sufian and he handed him Rs. 15,000 to Rs. 20,000 for visit to Haj which amount was paid back, as such it has been inferred by the trial court that the same is not the case for funding for creating terror. Apart from that, after tiffin bomb accident the conspiracy was hatched to kill Jagdish Tiwari and Haren Pandya to which the accused was not a part....
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.... a Bench consisting of Hon. Sikri and Abdul Nazeer, JJ. on 8.2.2019. The Bench directed the listing of the case before the same Bench which had heard the criminal appeals on merits, after obtaining orders from Hon. the Chief Justice of India. Thereafter, this matter had been listed before this Court and has been heard and is being decided with the criminal appeal. 238. The writ petition has been filed on the ground that the High Court has held that investigation done is botched up and misdirected. Statement of Mohd. Azam Khan had been recorded on 3.11.2018 in a criminal trial who was produced as a prosecution witness in the trial of fake encounter of Sohrabuddin Sheikh, his wife Kausarbi and his associate Tulsiram Prajapati. In the case, accused persons were acquitted. Azam Khan has stated that Sohrabudin had told him that the contract to kill Haren Pandya had been given to him by IPS Officer G.D. Vanzara and that Sohrabuddin's associate Tulsiram Prajapati along with one Naeem Khan and Shahid Rampuri murdered Haren Pandya. Azam Khan's statement has been placed on record as Annexure P-1 on the basis whereof a news report had been carried out by the Indian Express on 5.11.....
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....gation must be unbiased, honest, and just which is in accordance with law and secondly, the entire emphasis has to be to bring out the truth of the case before the competent jurisdiction. In Manohar Lal Sharma v. Principal Secretary & Ors., (2014) 2 SCC 532, the Court observed that the aim of the investigation is ultimately to search for the truth and bring the offender to book. The CBI has not acted as per the provisions contained in the Manual at para 6.11.5, Chapter VI. The CBI is required to take into consideration as per para 8.22 of Chapter VIII of the Manual the press reports regarding allegations relating to the significant matter in the media. In spite of acquittal by the High Court, the CBI has not taken the steps as envisaged in para 23.20 of CBI Manual. It is likely that G.D. Vanzara was involved in the conspiracy to kill Haren Pandya and there is the possibility of the complicity of political figures. Azam Khan's testimony reveals that he had provided information 8 years before to the CBI. The CBI has not acted upon it. Haren Pandya's father and wife were not having the benefit of the information available now. The conduct of the investigating agency in the ins....
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....cts contained in the newspaper reports are merely hearsay and therefore not admissible in evidence. He has relied upon Laxmi Raj Shetty v. State of Tamil Nadu (1988) 3 SCC 319. He has further relied upon Rajiv Ranjan Singh 'Lalan' (VIII) v. Union of India (2006) 6 SCC 613 to contend that such PILs. would hamper the course of justice in a criminal case and are not maintainable. A PIL cannot be filed for personal gains or private profit or political motives or any oblique consideration. A person must act bona fide and should have sufficient interest in the proceeding alone has locus standi to file a PIL. Unnecessary interference given in a case may sometime damage the prosecution case and at times may cause prejudice to the accused also. Reliance has been placed on Gulzar Ahmed Azmi v. Union of India (2012) 10 SCC 731, and Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349. Mr. Mehta has also relied upon a recent decision of this Court in Tehseen Poonawasla v. Union of India, (2018) 6 SCC 72, to submit that the instant case is nothing but misuse of PIL by the petitioners. 244. As the writ petition has been filed on 22.1.2014 when this Court was finally hearing th....
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..... It cannot be said to be an appropriate way of filing a writ petition for further investigation, the motive is oblique, improper and against discipline, especially when the criminal appeals were being heard finally and this Court was in seisin of the matter and judgment has been reserved ultimately on 31.1.2019. At the relevant time when the petition was filed, obviously the petitioner CPIL was well aware of the hearing of criminal appeals and that fact has not been stated in the writ petition that criminal appeals were being heard on merits for the last several months w.e.f. 1.11.2018. It is shocking and surprising that the accused have resorted to the aforesaid method of getting filed the petition in guise of the PIL by supplying the documents to CPIL in their self-interest and virtually attacking the case of the prosecution on the same grounds and whatever new material has been filed, we will discuss the value of the same hereafter. 246. Statement of Mohd. Azam Khan who was examined as a witness in Sessions Case No. 177/2013 etc. has been relied on, it was stated by him that Sohrabuddin told him that Shahid Rampuri, Naeem Khan and he got a contract to kill Haren Pandya and t....
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....ke a volcano. "Once the truth is out, (xxx) will go home. He will be jailed." The counsel has further relied upon an article in the Outlook based upon the statement of Mr. Vithal Pandya, father of Haren Pandya. It appears from that he entertained a doubt as to the actual killer, but with no material against anybody. The Book by Rana Ayyub is of no utility. It is based upon surmises, conjectures, and suppositions and has no evidentiary value. The opinion of a person is not in the realm of the evidence. There is a likelihood of the same being politically motivated, cannot be ruled out. The way in which the things have moved in Gujarat post- Godhra incident, such allegations and counter-allegations are not uncommon and had been raised a number of times and have been found to be untenable and afterthought. 249. Coming to the allegations made by the family of the deceased, by father of Haren Pandya, Mr. Vithal Pandya and Ms. Jagruti Ben, wife of the deceased, the matter has been dealt with on merits by Gujarat High Court in the petition which was filed on behalf of Mr. Vithal Bhai Pandya. A Division Bench of the High Court of Gujarat has considered the matter in extensive details. It....
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....3/2007 and 4/4/2007. It is borne out from the record that the order passed below application Ex. 855 dtd. 18/12/2006 was sent to the applicant on 22/12/2006 and the copy of the order passed blow application Ex. 898 dtd. 26/3/2007 was received by the applicant on the very day i.e. on 26/3/2007. In the order dtd. 26/3/2007, it was specifically observed by the learned Special Jude that the applicant shall also be provided legal aid service to approach the Hon'ble High Court if he so desires. Still, the applicant did not challenge the aforesaid two orders immediately. It appears that the submissions/arguments of both the sides were heard on 28/3/2007 and 4/4/2007. Thereafter, final judgment and order of conviction convicting the accused persons is passed by the learned Special Court [POTA] on 25/6/2007 and all the aforesaid orders came to be challenged by the applicant in the month of November 2007. Thus, it appears that the applicant has either not taken the matter very seriously in challenging the aforesaid orders passed below application Ex. 855 and 898 immediately and/or within a reasonable time and allowed the trial to be proceeded and concluded. It is also required to be note....
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....ted on the technical ground of delay. 29. It is further submitted that Jagrutiben widow of Haren Pandya was already cited as a witness in the charge sheet, still, she was not examined as a witness and she was dropped as a witness. It is submitted that if she would have been examined as a witness, the truth might have come out. It is submitted that even Jagrutiben in her interview published in 'Tahelka' on 19/8/2006 apprehended that she would not be examined as a witness and it has come true." 250. The High Court has further observed that non-examination of Jagrutiben is no ground for further investigation. The High Court has also observed that in the interview published in 'Tehelka' on 19.8.2006, it is clearly admitted by Ms. Jagrutiben that she has no proof/material with respect to political rivalry. Only on allegation of political rivalry, further investigation or re-investigation cannot be ordered. The I.O. has stated that during the investigation he did not get any material with respect to political rivalry on the basis of the vague statement of Mr. Vithalbhai Pandya, father of deceased, further investigation was not possible to be ordered against po....
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....cial Public Prosecutor appearing for the State of Gujarat has, relying upon the affidavit dated 4.2.2012 filed on behalf of the State of Gujarat, virtually reiterated, apart from reappreciation of evidence, the factum about pendency of SLPs arising out of the judgment and order dated 29.8.2011 rendered by this Hon'ble Court in Crl. Appeal No. 975 of 2007 and allied appeals. It is further submitted that similar petition and prayer made earlier by the father-in-law of the petitioner for further investigation/re-investigation below Exh. 855 and Exh. 898 in Special Case [POTA] No. 10 of 2003 came to be rejected by the Designated Trial Court and further Criminal Appeal Nos. 17 of 2008, 18 of 2008 and 1324 of 2007 preferred along with delay condonation application before this Court also came to be rejected by a Division Bench after condoning the delay as per C.A.V. Judgment dated 16.6.2008 and, therefore, in such a scenario, when the subject matter is pending before the Apex Court in Petition(s) for Special Leave to Appeal (Crl) No(s) 9785- 9796/2011 and Petition(s) for Special Leave to Appeal (Crl) No(s) 9797-9808/2011, in all propriety and judicial discipline, it is desirable that ....
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.... the criminal appeals along with the order, we have dealt with veracity of prosecution case and fairness of investigation in our opinion the observations made by the High Court were not only uncalled for but based on incorrect appreciation of medical/forensic evidence and ignoring material evidence on record. 256. In Rohit Pandey v. Union of India, (2005) 13 SCC 702, the writ petition was filed on the basis of newspaper reports by a young lawyer. The petition was filed on 12.2.2004. This Court observed that ordinarily we would have dismissed such a misconceived petition with exemplary costs but considering that the petitioner is a young advocate, costs of Rs. 1,000 was imposed. 257. In Holicow Pictures (Put.) Ltd. v. Prem Chandra Mishra, (2007) 14 SCC 281, it was noticed that the petitions are based on newspaper reports without any attempt to verify their authenticity. 258. In Laxmi Raj Shetty v. State of Tamil Nadu, (1988) 3 SCC 319, this Court has observed that it is well settled that a statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in absence of the maker of the statement appearing in court and deposing to have percei....
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.... to allow any third party to question the decision against him. Take for example a case where a person accused under Section 302, IPC is convicted for a lesser offence under Section 324, IPC. The accused is quite satisfied with the decision but a third party questions it under Article 32 and succeeds. The conviction is set aside and a fresh trial commenced ends up in the conviction of the accused under Section 302, IPC. The person to suffer for the unilateral act of the third party would be the accused! Many such situations can be pointed out to emphasise the hazard involved if such third party's unsolicited action is entertained. Cases which have ended in conviction by the apex court after a full gamut of litigation are not comparable with preventive detention cases where a friend or next of kin is permitted to seek a writ of habeas corpus. We are, therefore, satisfied that neither under the provisions of the Code nor under any other statute is a third party stranger permitted to question the correctness of the conviction and sentence imposed by the Court after a regular trial. On first principles, we find it difficult to accept Mr. Sodhi's contention that such a public in....
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.... the High Court was right in holding that the advocate litigant, as well as the interveners, had no 'locus standi'. The relevant observations found in paragraph 45 of the judgment read as under: (SCC p. 329, para 45) "Even if there are million questions of law to be deeply gone into and examined in a criminal case of this nature registered against specified accused persons, it is for them and them alone to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants." (emphasis supplied) In that case, besides the advocate litigant, certain political parties like the Janata Dal, the CPI (Marxist), the Indian Congress (Socialist) and one Dr. P. Nalla Thampy Thera also approached this Court questioning the High Court's rejection of their request for impleadment/intervention. It was in this context that this Court was required to examine the question whether third parties had any 'locus standi' in criminal proceedings and answered the same as stated above. This decision clearly negatives the submission made by Mr....
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....ther investigation or re-investigation in the case. The observations made by the High Court in the judgment which we have set aside were based on lopsided approach without consideration of the entire evidence on record and on the wholly incorrect appreciation of the evidence which was clearly perverse. 264. Reliance has also been placed on Bandhua Mukti Morcha v. Union of India & Ors., AIR 1984 SC 802 wherein this Court has observed that where a person or class of persons whose fundamental right is violated but who cannot approach the Court on account of poverty or disability or socially or economically disadvantaged position, and in such a case, any member of the public acting bona fide, can move the court for relief under Article 32 and a fortiorari, also under Article 226 so that the fundamental rights may become meaningful not only for the rich and the well to do but also for the large masses of people who are living a life of want and destitution and who are by reason of lack of awareness, assertiveness, and resources unable to seek judicial redress. Court can and must allow any member of the public acting bona fide to espouse the cause of such person or class of persons fo....
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....ppear in or before any court or tribunal or any other authority for or against an organisation or an institution, society or corporation if he is a member of the Executive Committee of such organisation or institution or society or corporation. "Executive Committee", by whatever name it may be called, shall include any Committee or body of persons which, for the time being, is vested with the general management of the affairs of the organisation or institution, society or corporation: Provided that this rule shall not apply to such a member appearing as amicus curiae or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association." 267. Rule 8 makes an exception only if such a member is appearing as an amicus curiae or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association. There is no exception to a body like CPIL. Mr. Prashant Bhushan learned counsel has stated that he had questioned the vires of Rule 8 by way of filing a writ petition in the High Court. In order to save vires of aforesaid Rule 8, the statement was made in the Court by the Bar Council that they are going to amend the rules, however, he submitted that ....