TaxTMI 
TaxTMI 
TaxTMI 
2019 (7) TMI 2070
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....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 part of an international conspiracy. Mr. Haren Pa....
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....ted 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 revealed, provisions of the Prevention of Terroris....
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..... 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 imprisonment. U/s 4 of POTA rigorous imprisonment for five years. U/s 25(1b)( a) of Arms Act five years. Acquitted for....
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....quitted 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 to conviction under section 307 read with section 120-B, IPC and section 4 read with section 3(2)(b), section 3(3) of POTA and section 25(1)(B)(a), section 27(1) of Arms Act. However, it has allowed the appeals in p....
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....e 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, A-1 reached Udaipur on 31.12.2002 and stayed at Muslim Musafarkhana. After staying for some time, he returned to Hyderabad due to paucity of fund where he again received a message from A-18 through emails directing him to reach Udaipur and contact PW-29. ....
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....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) (Exhibit 684). On 5.9.2003, the sanction of the Commission of Police, Ahmedabad, under Section 39 of the Arms Act was accorded (Exhibit 685). On 6.9.2003, Government of Gujarat accorded sanction under Section 50 of the POTA for prosecuting accused persons (Exhibit 697). On 8.9.2003, combined charge-sh....
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....o 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 on 26.3.2003 and therefore all the accused persons committed offences under section 302 IPC to read with section 120B IPC and offences under section 3(1) and 3(3) of POTA. In this regard the following points have been urged: (a) PW-55 who is an eye witness stated to have seen A-1 shooting the deceased is a reliable and truthful witness. (b) Post mo....
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....ed 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 has been submitted by the galaxy of learned senior counsel that the scene of murder does not inspire confidence. The murder of Mr. Haren Pandya has not taken place in Maruti 800 car, no gunshot residue has been found, neither any bullet has been recovered from the car. The post mortem report does not tally with the ocular evidence. First information report has not been lodged by the so-called witness PW-55 Anil Yadram Patel. He can....
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....llowed 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 convicts, communication over e-mail, seizure of documentary literature at the time of arrest, there is also evidence of providing logistical support and other various types of facilitation, providing money by cash or cheque in respect of accommodation, rent, transportation at Ahmedabad as well as at other places. Evidence is also available with respect to providing mobile phones, transportation, and providing of motorcycles, etc. On the basis ....
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....0-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 the conspiracy continues until it is broken up. The conspiracy may develop in successive stages. There may be a general plan to accomplish the common design by such means as may from time to time be found expedient. . In Yashpal Mittal vs. State of Punjab reported in [1977 (4) SCC 540], Goswami, J, speaking for a three-judge Bench analysed the legal position relating to criminal conspiracy. At pages 610-611, observed as under: "the very agreement,....
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....icipation 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 that all the accused persons were in constant touch with each other, wherein different roles were designated to every accused person in providing support to A-1 for commission of offence such as providing money, arranging weapons, arranging phones and fake SIM cards, logistics and accommodation, the identification of targets, etc. 20. In September/October 2002, A-1 (Mohmed Asgar Ali) along with other 13 boys of Andhra Pradesh was sent to Karachi, Pakistan by A-2 (Mohmed Abdul Rauf) for obtai....
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....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; and positive opinion of Dr. Mohmed Aizaz Ali, CFSL, Delhi, PW-88 regarding handwriting of A-3 (Mohmed Shafiuddin) at entry no. 8699 Exhibit 300. Mohammed Sharif Amir Mohammed (PW-31), owner of PCO situated in the basement of Muslim Musafirkhana had also proved stay of A-3 (Mohmed Shafiuddin) at Muslim Musafirkhana, Udaipur. 25. On 24.1.2003, Turk Salim Pasa Majarirule Islam (PW-49) along with A-11 (Mohmed Faruq) and A-13 (Mufti Sufiyan) went to Udaipur in Tata Indica Car (silver color) of Mohmed Mu....
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....unded 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 provided to A-1 (Mohmed Asgar Ali) by A-14 (Sohail Khan Pathan). This fact had been corroborated by Shivabhai Virabhai Rathod (PW- 53) and V. Srinivasan, Official of Hutch Company (PW-77) in their deposition and the print out of mobile no. 9825491421 is also on record as Exhibit 467. 25(e). On 1.2.2003, a Suzuki Samurai Motorcycle (Black Colour) bearing registration no. GJ-1S-S-5934 was purchased by A-10 (Parvez Khan Pathan) from Abdul Samad Abbasali (PW-54) and the delivery note was signed by A-10 (Parvez Khan Pathan) while taking....
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....ish 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 Tiwari (PW-39). At that moment his location was under the tower of Jay Chemicals, Odhav, GIDC. At 9.20 pm, A-1 (Mohmed Asgar Ali) again called A-10 (Parvez Khan Pathan) and at that point of time, his location was Vohra Marriage Hall, Char Rasta, Rakhial. Jagdish Tiwari (PW-39) was rushed to Shardaben Hospital and was treated by Dr. Hasuben Kalubhai Patel (PW-9) in casualty. Thereafter, he was shifted to the emergency of Surgery Department. A wardi regarding the incident was received at PS Bapunagar on the basis of which, Nagindas Kalidas Barot (PW-96) visited....
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....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 morning on the motorcycle and saw Haren Pandya. He noted down his car number as GJ-1AP-4606. In the night of 24.3.2003, a meeting was again held in Juni Jama Masjid, which was attended by A-4 (Kalim Ahmed), A-5 (Anas Machiswala), A-7 (Rehan Puthawala), A-8 (Mohmed Riyaz) and A-9 (Mohmed Parvez Sheikh), where A-9 (Mohmed Parvez Sheikh) was directed by A-4 (Kalim Ahmed) to point out the spot at Law Garden to A-1 (Mohmed Asgar Ali). A-1 (Mohmed Asgar Ali) was telephonically called there and taken to Law Garden by A-9 (Mohmed Parvez Sheikh), where the spot was pointed out to him where Haren Pandya parked ....
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....etween 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 Puthawala), A-8 (Mohmed Riyaz) and A-9 (Mohmed Parvez Sheikh) were arrested by Tarunkumar Amrutlal Barot, P.I. of DCB, Ahmedabad (PW-114) on suspicion of obtaining arms training at Pakistan. I-CR No. 6/03 was registered against the aforesaid accused of waging war against the State and taken into police custody for remand. A mobile phone was recovered from A-7 (Rehan Puthawala). 26(a). On 6/7.4.2003, when A-7 (Rehan Puthawala) was confronted with the contact details of his mobile phone, in which numbers were stored against the names of Mehman and Uncle, he disclosed that Mehman is killer of Haren Pandya and Uncle is ....
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....8.4.2003, 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 their email IDs, passwords and print out of emails was taken in the presence of Prakashbhai Babulal Modh (PW-16) (Exhibits 213 & 215). 26(i). On 5.5.2003, A-1 (Mohmed Asgar Ali) was identified by Anilram Yadram Patel (PW-55) during a test identification parade. 26(j) On 8.5.2003, a pistol was discovered at the instance of A-5 (Anas Machiswala) from his house. It had been proved by Exhibit 423. 26(k). On 22.5.2003, A-7 (Rehan Puthawala) and A-8 (Mohmed Riyaz) made a disclosure about the shop of Star Number from where they got prepared fake number plates bearing no. GJ-1CF-5189. Babarbhai Maljibhai Rabari (PW-34) was the punch witness of the said disclosure and had fu....
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....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 seized from PS Koth. A-10 (Parvez Khan Pathan) made a disclosure statement regarding number plates and video CDs. The number plate was discovered from roadside bushes of Tarapur Highway at the instance of A-10 (Parvez Khan Pathan) and six video CDs and other literature were discovered from the house of A-10 (Parvez Khan Pathan). A-10 (Parvez Khan Pathan) and A-11 (Mohmed Faruq) also expressed a desire to make a confessional statement before Sushilkumar S. Gupta (PW-120). These facts have been proved by Exhibits 754, 755, 513, 514 and 515. 26(v). On 15.6.2003 and 16.6.2003, confessional statements of A-11 and A-10 respectively were recorded by Vinayak Prabhakar Apte (PW-21). (Exhibits 241 and 244) 26(w). On 17.6.2003, A-4 (Kalim Ahmed), A-5 (Anas Machiswala) a....
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.... 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 that A-1 was present in Ahmedabad on 27.3.2003 and used phone No. 98254 91421 even up to the next day of the murder of the deceased. The High Court has committed gross perversity in setting aside the findings recorded by the trial court without coming to close quarters of the reasoning employed by the trial court as well as marshalling of evidence in detail, as done by the trial court. 28. On the other hand, learned counsel appearing on behalf of the accused sought to discredit the testimony and deposition of PW-55 Anil Yadram by raising various grounds to be dealt with in extenso hereinafter. Anil Yadram, PW-55 has stated that he stationed his handcart near Law Garden outside the gate of Chitty Bang, Thakorbhai Desai Hall, and Nanubhai is the owner of the Chitty Bang. He used to l....
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....en 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 found. On the other hand, it was pointed out on behalf of the CBI that blood has been recovered from the Maruti car and it was of Group B of the deceased. Thus, merely on the cover of the seat blood was not found, would not discredit the incident. As a matter of fact, it would depend upon the nature of the wound and whether the bleeding is internal and the position of the body as to how much blood would go down. Whether it will go to the seat cover or to the bottom of the car, it cannot be said to be a universal formula that whenever an incident has happened in a car, blood should be found on a particular place. Thus, an attempt to discredit the deposition of the witness on the aforesaid ground that some blood has not been recovered from the seat cover of the car by itself, cannot be said t....
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....s 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 the direction of injuries 1 to 4 which are from upward to downward and right to left. PW-55 has further stated that the legs of deceased came up and he fell on the co-driver's seat which explains injury No. 7 also which is from downward to upward and left to right. This is further corroborated by the entry hole in Pyjama which is in the rear hole of Pyjama. The position of the deceased has been confirmed by PW-85, a constable who took the body of the deceased out of the car. PW-85 has stated that legs were slightly up from knee level. The right leg was slightly more on the upward direction. 34. To discredit version of PW-55, it was submitted that there were 7 injuries and 5 bullet injuries were found. Total 5 fire-arms bullets were recovered from the body of the deceased during post mortem....
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.... 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 right side, about 1 cm above and 2 cm right to medial end of right clavicle. Blackening is seen on skin surrounding the wound. 2. About 0.8 cm diameter, punch red contused lacerated entry wound with inverted edges is present in front of right chest, about 1.2 cm right to midplane over right 2nd intercostal space. 3. About 0.8 cm diameter, punch red contused lacerated entry wound with inverted edges is present on front of right chest, 5 cm below and 1 cm left to right nipple. 4. About 0.8 cm diameter, punch red contused lacerated entry wound with inverted edges is present front of right chest, 0.5 cm below and 3 cm right to abovementioned external injury no. 3. 5. About 0.8 cm diameter, punch red contused lacerated entry wound with inverted edges is present on back of right hand, 2 cm proximal to junct....
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....e 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 of Gun Shot by Abdulla Fateh, J.B. Lipping Company." It is apparent from the aforesaid answer that wound has been referred by doctor PW-8 as a small part of the body and soft tissue. Thus, it is a communicating injury of soft tissue not piercing through or entering the wrist. It is clear that injuries 5 and 6 are communicating injuries and injury No. 1 has been caused by the same bullet. The entry and exit wounds have been seen and explained by the doctor in the aforesaid manner which has to be communicating one only caused by the same bullet. 39. It was also urged that the account of a number of injuries of the bullet is not matching with the number of injuries found. There were 7 gunshot wounds whereas 5 bullets were recovered from the body of the deceased. As already explained 5 bullet injuries were caused as suggested by ocular evidence of PW-55 and also by medical evidence ....
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.... 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 opinion, has clarified the said position during the course of his examination, though belatedly. From the very nature of the wounds found on the body of the deceased, it is clear that wounds found on the they died of gunshot of the injuries deceased, it is which is not clear seriously disputed. What is being disputed by the learned counsel is the points of entry and exit which on facts of this case, would make a very little difference since the other evidence adduced by the prosecution clearly shows that the deceased died out of gunshot injuries. Some discrepancy as to the nature of entry and exit on facts of this case would not wounds found on the they died of gunshot of the injuries deceased, it is which is not clear seriously make the prosecution case any weaker. It is more so because of the facts that the casings of the bullets which were recovered by the Investigating Officer were positively proved by th....
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....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". 46. This Court in Sukhdeep Singh v. State of Uttar Pradesh and Anr., 2010 (2) SCC 177, this Court has observed thus: "17. We find, therefore, that the very basis of the argument raised by the learned counsel on the basis of the statement of Dr. C.P. Srivastava that the injuries could not have been caused while the deceased was in a standing posture is not borne out from the cross-examination. Even otherwise, we believe that it would be impossible for any witness to give a categorical statement as to the posture that the deceased or the assailants were holding at the time when the firing incident happened. The trial court was not justified in coming to a contrary conclusion as it appears to be a case of misreading of the evidence." (emphasis supplied) 47. It was further submitted that in the police statement PW-55 has stated that Haren Pandya collapsed on the front seat then speaks of Shri Pandya having fallen on the driver's seat....
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....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 on behalf of accused on Abdul Sayeed v. State of Madhya Pradesh, 2010 (10) SCC 259 thus: "39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved." (emphasis supplied) 51. In Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, A.P., 2007 (15) SCC 465 the court observed: "52. The dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a dying declaration depends upon not only the testimony of the pe....
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....s 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 to suit medical evidence which has come on record by itself, it is sufficient to discredit him. Reliance has been placed on Shingara Singh v. State of Haryana & Anr., 2003 (12) SCC 758 in which this Court has observed: "22. In our view, the High Court has completely missed the significance of the finding recorded by the trial court. The trial court found that in the FIR as also the statements recorded under Section 161 Cr PC the witnesses had clearly mentioned that both the appellants had climbed on top of the wall and from there Shingara Singh, A-2 fired at Surinder Singh. If this version were to be accepted, the injury caused would not have been of the nature found by the Medical Officer who was clearly of the opinion, having regard to the trajectory of injuries, that the person firing the firearm was at a lower level than the victim. Therefore, with a view to bring their case in consonance with the medical evidence on record, all the three witnesses made significant changes while de....
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.... 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 police or before the committing Magistrate. It seems to us that the theory of the deceased having placed his arm on the right side of his chest has been introduced only after the doctor who was examined as the second witness in the Sessions Court stated in his examination-in-chief that if the elbow of right arm is flexed lying in front of the chest, then injuries Nos. 1 to 4 could be caused with a single firearm discharge. It would appear that this witness was examined before the Sessions Court on May 14, 1973, and PW Surjit Singh was examined on the same day after the evidence of the doctor was recorded. PWs Surjit Singh and Joginder Singh had to introduce the theory of the deceased having put his right arm on his chest to bring the occurrence in tune and in consonance with the evidence of the doctor. This was undoubtedly a belated idea because if it had been a fact there is no reason why the eyewitnesses should not have deposed to it in their statements before the police or even before the committing court. Till t....
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....rect evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. While appreciating the evidence of the witnesses, the High Court does not appear to have considered this important aspect, but readily accepted the prosecution case without noticing that the evidence of the eyewitnesses in the Court was a belated attempt to improve their testimony and bring the same in line with the doctor's evidence with a view to support an incorrect case." 56. Reliance has been placed as to inconsistency between medical and ocular evidence by Counsel for accused on State of Haryana v. Ram Singh, 2002 (2) SCC 426 in which this Court has observed: "1. While it is true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the post-mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis-à-vis the injuries appearing on the body of the deceased person and likely use of the weapon therefor and it would then be the prosecutor&....
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....f 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., (2010) 10 SCC 259 and Bhajan Singh v. State of Haryana, (2011) 7 SCC 421.]" 59. The ocular evidence to prevail has also been observed in Sunil Kundu & Anr. v. State of Jharkhand, (2013) 4 SCC 422 thus: "24. In Kapildeo Mandal v. State of Bihar, (2008) 16 SCC 99, all the eyewitnesses had categorically stated that the deceased was injured by the use of firearm, whereas the medical evidence specifically indicated that no firearm injury was found on the deceased. This Court held that while appreciating variance between medical evidence and ocular evidence, oral evidence of eyewitnesses has to get priority as medical evidence is basically opinionative. But, when the evidence of the eyewitnesses is totally inconsistent with the evidence given by the medical experts then evidence is appreciated in a different perspective by the courts. It was observed that when medical evidence specifically rules out the injury claimed to have been inflicted as per the eyewitnesses' version, then the court can draw adverse inference that the prosecution version is not trustworthy. Thi....
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....ry No. 7 much was argued. As already stated in Modi's Jurisprudence, the track of bullet may take a different course once the injury has been caused. Bullet may ricochet inside the body after causing the injury. In view of entry wound as explained in Modi's jurisprudence too much cannot be made out of the direction when the injury could have been caused in the method and manner suggested by PW-55. The High Court while appreciating injury No. 7 has not considered the fact that Haren Pandya fell down inside on adjoining seat and his left leg came up as stated by the witness. The High Court has simply proceeded on the basis that the victim was sitting on the driver's seat or was sliding on to the adjoining seat. The aforesaid material part of the statement of witness makes it clear how the injury was caused. 62. It was also urged that the mobile phone of Mr. Pandya was not investigated. In our opinion, it was not necessary at all in the facts of the case. It is not disputed that he had left the house in the morning to walk. 63. It was urged that no fingerprints were lifted from the car or from the weapon recovered afterward and shoes were not recovered. In our opinion, i....
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.... (d) Ex. 458: CFSL-biological division report: biological report would show that cotton swabs had B group blood which belonged to the deceased. (e) Ex. 451: 5 cotton swabs all indicating B group blood. (f) The evidence of Y.A. Shaikh (PW 101) who deposed that he has lifted the blood sample by a cotton swab. (g) The evidence of Satyam Patel, PW-4 (Panch Witness) who deposed that blood was seen on the seat at the relevant time which was rubbed with a small pellet of cotton which was sent to the laboratory. (h) The PM report would indicate that there was a lot of blood in the thoracic cavity to the tune of 2.2 litres. (i) Ex. 457, 458 and 169: Panchnama of the clothes would indicate that the clothes had B group blood. 68. Besides PW-85, R Sharma, Constable has also stated that at the time when deceased was taken to the hospital, there was no bleeding from his body. 69. The post mortem was conducted on 26.3.2003. Time, therefore, is stated to be 5 to 6 hours before post mortem which comes around 8 a.m. and tallies with the version of PW-55. 70. It was submitted that the FIR was not lodged by PW-55. The police control room was informed by IGP Mr. Suman. Thus, the conduct of PW-5....
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....er. We find no embellishment or material improvement in the court's statement as compared to the one recorded under section 161 Cr. P.C. The question of whether CW-1 had asked PW-55 whether he was speaking the truth and omission of that in the statement under section 161 cannot be said to be a material omission. Material facts have been stated in the statement and there is no contradiction with respect to the material facts with the statement under section 161 Cr. P.C. as to the approximation of time also nothing can be made out by the accused. 73. The argument was raised on behalf of A-1 that PW-55 did not mention in the examination-in-chief the time of the incident at around 7.30 a.m. He admitted that he does not have a watch. No one can tell the correct time. How by the aforesaid statement any benefit can be derived by the accused, passes comprehension as it is not uncommon that various persons do not keep a watch and they go by rough estimation of the time. It was not necessary to speak about the time of occurrence in the examination-in-chief nonetheless it has been brought about in the cross-examination. There is nothing to disbelieve the estimation of time made in the cr....
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.... over it to Mr. A.A. Chauhan, Police Inspector, Crime Branch. 77. In view of the identification made by the witness in the test identification parade, no dent is caused by the so-called sketch in the ocular evidence of PW-55. Considering the intricate nature of the investigation, we find that there was no undue delay in holding the T.I.P. It was held on 5.5.2003 after 20 days of the arrest of the accused. The accused had been identified in the same. Jagdish Tiwari (PW-39) also, later on, had rightly identified A-1 (Mohmed Asgar Ali) as the assailant. The decision relied upon in Subash and Shiv Shankar v. State of U.P. 1987 (3) SCC 331 wherein the test identification parade was done after 3 weeks. In the facts of the said case, the identification was disbelieved. The decision is distinguishable and turns on its own facts and circumstances. 78. It is the duty of the High Court to examine the details of the intrinsic merit of the evidence of eye-witnesses. As observed by this Court in State of U.P. v. Sahai & Ors., AIR 1981 SC 1442, PW-55 has been cross-examined repeatedly on the same question as to Maruti Fronti came from Gajjar Hall Cross Road side which he withstood. The reason e....
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....t sent to CFSL and later produced in court were pure lead bullets which could never have looked white. Therefore, these bullets could not be the ones recovered from the body at post mortem which were white metal bullets, seen by the four doctors conducting the post mortem. As a matter of fact, the doctor has clearly opined that white bullets were seized and they were sent for ballistic examination and they have been produced from the CFSL. In our opinion, it was necessary to put in the cross-examination of PW-8 the fact that the bullets which were produced in court were not the same which were recovered at the time of post mortem, which has not been done. Thus his testimony cannot be discredited on this aspect. 82. PW-75, Forensic Expert, Mr. Ashok Raj Arora, Senior Scientific Officer (Ballistics), Asstt. Chemical Examiner to Government of India has stated that 5 shots were fired from a single standard weapon. He compared the seals. The bullets were fired from a .32 revolver. IN RE: FORENSIC EVIDENCE 83. As per the doctor, the bullets were made of white metal. The Autopsy doctor (PW-8) Mr. Pratik Ravjibhai Patel however, on seeing the bullets Exhs. 18/1, 18/2, 18/3, 18/4 and 18/....
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....tics), Assistant Chemical Examiner, Government of India in his deposition has clearly stated that all the bullets are received in sealed condition from CFSL, New Delhi. He has also identified articles 18/1 to 18/5 in the seal applied on the backside of Khakhi cover which is stated to be muddamal article 18/5 which is the seal he had applied. He has stated that he has examined articles 18/1 to 18/5 of which he has given the details. He has further stated in his examination that the bullets were of blackish grey colour but the one with a jacket would have copper or aluminum colour. If the bullet is of white metal then the metal would be made of steel or aluminium but he has not seen nor examined the white coloured jacket bullet. Thus, it is clear that what has been produced in the court are the same articles which were examined by the forensic expert - (PW-75). 86. On behalf of the accused, it was submitted that the chemical test on the clothes has not been done to ascertain the nature of bullets used in the offence. The test, as well as breach face mark, have to be performed which is prescribed in the CBI Forensic Manual. The test is must to eliminate by proper evidence before conc....
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....ied in a cloth vide seizure memo (Exh. 628 dated 10.7.2003). Information memo (Exh. 639) was drawn pursuant to disclosure dated 10.07.2003. Mr. Arora (PW-75) received the parcel on 16.7.2003. In all, they recovered four .32 bore S & WL fired cartridge cases. As they were required to be compared with .32 bore revolver bearing Serial No. B 40350, the same had been received by him once again and he opined that these four .32 bore fired cartridges contained in parcel No. 22 had been fired from .32 bore revolver bearing Serial No. B 40350. He also found that though the revolver was in working condition the firing pin of the revolver was found tampered. 90. The prosecution urged that it is not the requirement of law that pellets recovered from the body be sent to the ballistic expert to determine whether they were fired from the given article or not. On the contrary, the recovery of pellets from the body clearly establishes the prosecution's case that the deceased died of the gunshot injuries. PW-8, surgeon is unaware of the difference between white metal bullets/ jacketed bullet, as white metal is a cupro-nickel or zinc but, lead bullet is grayish black and thus, the cupro zinc or ....
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...., the expert would examine breach face mark which shall have to be compared with test fired cartridges to confirm the opinion that the cartridges are fired from the said firearm. 93. The act of disclosure of the weapon and its discovery at the instance of A-1 and the bullets found in the body of Haren Pandya was sent to CFSL, New Delhi wherein it has been opined that they have been fired with the standard weapon (revolver of .32 bore), which had been recovered. 94. It was submitted by the prosecution that the same very cartridges were seized and sent to Forensic Science Laboratory as stated by Dr. Kuldeep Jayantilal Joshi (PW-20), CMO, V.S. Hospital, Dr. Anil Sharma (PW-19) and Bipinchandra Mehta (PW-70), panch witness PW-10, Y.A. Shaik (PW-101), etc. These were received by PW- 75, Mr. Arora after the Department of Biology tested it. The weapon was seized on 27.04.2003 and sent on 2nd/ 3rd May 2003 to CFSL. It is a fact that initially when the expert first examined the revolver he did not realise the fact that the firing pin of the said weapon tampered. When once again after the cartridge cases discovered at the instance of the accused (A-17) were sent for the laboratory testing,....
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....Anr. v. State of Karnataka, (1994) 2 SCC 677, this Court has observed in this regard thus: "9 ..... In our view, the High Court has lightly held that the said doctor had no occasion to see the dead body and the injuries on the person of the deceased and only from the report of the post mortem the said doctor gave an expert opinion. On the contrary, two doctors who had held the post mortem on the deceased had occasion to look and examine the injuries on the person of the deceased and they had given a clear opinion that the death was due to asphyxia and it was a case of homicidal death..... (emphasis supplied) INTERPOLATION OF SPOT MAP 100. The site map was sought to be discredited on the basis that PW- 120, I.O. of CBI gave a contradictory reply. He said that the original spot map was drawn by pencil and later on drawn in ink. It was clearly stated that at the time of re-drawing the same, later on, the name of accused Asghar Ali was mentioned as it was known by that time. No dent is caused by the said mentioning of the name of the accused and from the explanation given by PW-120, it is apparent that the name has been added later on. 101. The High Court has also doubted by pros....
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....case of any doubt, they could have been examined as defence witnesses. Jagrutiben, even if examined, would have proved the fact that deceased left for Law Garden at around 7 a.m. and he would have reached there around 7.10 a.m. No benefit can be drawn from the aforesaid aspect. No adverse inference can be drawn against prosecution due to non-examination of Jagrutiben. As estimation of time may differ and as per Jagrutiben, deceased left for Law Garden only where he used to go for a morning walk. IN RE: CALL RECORDS 103. Learned Addl. Solicitor General on behalf of the prosecution has submitted that all 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 Haren Pandya are the strong circumstantial evidence against the accused persons. The accused persons were in possession of mobile phones and were in constant touch with each other before, during and after the commission of the crime through their mobile or landline phones, as depicted in the call details records, in order to execute the conspiracy. As mobile phone No. 9825491421 was used by A-1, his lo....
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....Highway. The fake number plate was removed from the motorcycle and thrown into roadside bushes which were recovered under section 27 Evidence Act at the pointing out of A-10 in presence of PW-86 on 12.6.2003. the said motorcycle was taken into possession by PS Koth and thereafter seized by CBI on 12.6.2003 from PS Koth. Presence of A-1 at Ahmedabad is proved by the use of phone number and by PW-95. 105. With respect to the disappearance of the mobile phone of accused A-1, no such question was put to I.O., PW-120 that mobile of A-1 had disappeared from Muddamal. Neither any mobile phone nor any sim card was seized from A-1 on his arrest by one DIG Shri Behra. It is, in fact, Yusufbhai, PW-95 who is an independent witness who stayed in the same Royal Apartments as A-1 has proved that A-1 was using mobile No. 9825491421 during the relevant time. PLACE OF EYE WITNESS NOT DEPICTED IN SPOT MAP 106. With respect to not showing the presence at a particular spot of an eye-witness in the spot map, reliance has been placed by the prosecution on a decision of this Court in Tori Singh & Anr. v. State of U.P., AIR 1962 SC 399. With respect to the spot map, it has been observed that it would....
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.... to put anything more than what he had seen himself. The same view was expressed by the Calcutta High Court again in Ibra Akanda v. Emperor, AIR 1944 Cal. 339, where it was held that any information derived from witnesses during police investigation, and recorded in the index to a map, must be proved by the witnesses concerned and not by the investigating officer, and that if such information is sought to be proved by the evidence of the investigating officer, it would manifestly offend against Section 162 of the Code of Criminal Procedure." 107. In Pratap Singh & Anr. v. State of M.P., 2005 (13) SCC 624, it was held that even if the witnesses are not reflected in the site plan, that does not bar the prosecution to produce such witnesses during the trial. Since PW-55 has not been confronted with the site plan and no question had been asked to the witness, thus his ocular evidence cannot be discredited on the basis of the aforesaid omission. I.O. NOT ON SPOT 108. The High Court has also employed the reason that Police Inspector PW-101 was supposed to be investigating at 2 p.m. on 26.3.2003 at the scene of the offence. He was shown present at post mortem at 2.15 p.m. PW-101 in thi....
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....onsideration whether confessional statements have been recorded after due compliance of provisions of section 32 of POTA. The confession of the accused persons recorded under section 32 of POTA proves the involvement of each and every accused person in the criminal conspiracy. The question has been raised that whether the safeguards provided under section 32 have not been observed. 113. Section 32 of the POTA contains a non-obstante clause like notwithstanding anything in the Criminal Procedure Code or in the Indian Evidence Act and makes admissible certain confessions made to the Police Officers. However, the same is subject to the provisions of section 32 which is extracted hereunder: "32. Certain confessions made to police officers to be taken into consideration .- (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical or electronic device like cassettes, tapes or sound tracks from out of which sound or images can be re....
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....oduced and get his signature or thumb impression on it. If there is any complaint of torture by such a person, he shall be referred for medical examination to an Assistant Civil Surgeon or any officer higher in rank. (ix). The person shall be sent to judicial custody and not to police custody. 115. It was urged on behalf of the CBI that all the aforestated safeguards have been observed. The submission has been refuted by Ms. Nitya Ramakrishnan and other learned counsel appearing on behalf of the accused persons. 116. First, we examine whether the basic safeguards of section 32 have been observed or not. Dy. SP, CBI on 18.6.2003 wrote a letter to the SP, ACB, Gandhi Nagar to the effect that accused Asghar Ali has expressed his willingness to make confessional statement voluntarily. The Superintendent of Police was requested to record his statement under section 32 of POTA. After receiving the said communication, the SP, ACB, CBI has recorded that he directed the Dy. S.P. to produce the accused person before him on 18.6.2003 at 7 p.m. after handing over custody of the accused to some other officer. Following proceedings had been recorded by the S.P.: "Today on 18.6.2003, I rece....
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....ked the following questions from the accused and the answers to the questions were given by the accused. Q. Tell me your name, your father's name, your age, and address? A. My name is Asghar Ali, s/o Mohd. Wazir Ali, aged 28 years, R/o House No. 8/3/113, Darusafa Colony, Nalgonda, Hyderabad. Q. What are your educational qualifications? A. I am 10th fail. Q. What is your occupation? A. I was doing business of grocery and general stores. Q. When you were arrested and for which crime? A. I was arrested by the CBI in connection with the Jagdish Tiwari case on 12.6.2003. Q. Do you know that I am a Superintendent of Police? A. Yes, I know that. Q. Do you know why you have been produced before me? A. Yes I know I have been produced before you for recording of my confessional statement. Q. Do you wish to confess to your crime? A. Yes Sir. Q. Do you know that you are not legally bound to five the confessional statement, and if you give any such statement, it would be used as evidence against you? A. I do not know anything about this. But you have explained me and therefore I have understood it now. Q. Are you giving this confessional statement under any fear, pressure or....
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....onal statement. Q. Why are you willing to give confessional statement? A. Because I want to lessen my burden and I want to confess my crime. Q. I am once again warning you that you are not legally bound to give the confessional statement and if you give any such statement, it would be used as evidence against you? A. Yes, I know very well. Sd/-Illegible Mohd. Rauf. Sd/- Illegible 21.6.2003" 121. Thereafter his confessional statement had been recorded by the S.P. After recording the confessional statement, Asghar Ali has signed it. It has been mentioned that the confessional statement has been read over and explained to the accused. He has admitted it to be correct. The S.P. has appended a bottom note to the statement that he has informed the accused that he was not bound to give his confessional statement. If he gives it, it could be used against him. He has given it voluntarily, without any fear or pressure and it has been recorded by him, read over to the accused. It has been heard, understood and admitted to be correct by the accused and confession has been recorded whatever has been given by the accused. Following is the relevant portion of the aforesaid proceedi....
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....s improvement over the TADA Act. Therefore, TADA is no guide to understanding the same with respect to confirmation proceedings before the Magistrate. Following is the relevant portion: "156. As already noticed, POTA has absorbed into it the guidelines spelt out in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 and D.K. Basu v. State of W.B., (1997) 1 SCC 416, in order to impart an element of fairness and reasonableness into the stringent provisions of POTA in tune with the philosophy of Article 21 and allied constitutional provisions. These salutary safeguards are contained in Sections 32 and 52 of POTA. The peremptory prescriptions embodied in Section 32 of POTA are: (a) The police officer shall warn the accused that he is not bound to make the confession and if he does so, it may be used against him [vide sub-section (2)]. (b) The confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it [vide sub-section (3)]. (c) The person from whom a confession has been recorded under sub-section (1) shall be produced before the Chief Metropolitan Magistrate or Chief Judicial Magistrate along with the or....
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....udicial custody after he is produced before the CJM is the normal rule and this procedural safeguard should be given its due primacy. The CJM should be satisfied that it is absolutely necessary that the confession maker shall be restored to police custody for any special reason. Such a course of sending him back to police custody could only be done in exceptional cases after due application of mind. Most often, sending such person to judicial custody in compliance with Section 32(5) soon after the proceedings are recorded by the CJM subject to the consideration of the application by the police after a few days may not make material difference to the further investigation. The CJM has a duty to consider whether the application is only a ruse to get back the person concerned to police custody in case he disputes the confession or it is an application made bona fide in view of the need and urgency involved. We are therefore of the view that the non-compliance with the judicial custody requirement does not per se vitiate the confession, though its non-compliance should be one of the important factors that must be borne in mind in testing the confession." 125. This Court has observed t....
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....ead over the same again to the accused, in view of clear language employed in section 32(4) and (5) the duties enjoined upon the Magistrate have been duly observed. 128. Learned counsel on behalf of the accused submitted that the Magistrate did not care to open the sealed envelope containing confessions and did not read it out to the accused. In State of Maharashtra v. Bharat Chaganlal Raghani & Ors., (2001) 9 SCC 1, this Court has observed that there is no requirement of the opening of the sealed envelope by the Magistrate containing the confession and to read it out to the accused. Following observations have been made by this Court: "36. Sub-rule (5) of Rule 15 of the TADA Rules provides that the confession recorded under Section 15 of the TADA Act shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the record of confession so received to the Designated Court which may take cognizance of the offence. Rule 15 does not oblige such Magistrate either to open the envelope containing the confessional statement recorded by the polic....
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....o judicial custody. Since there was no complaint of any torture and S.P. had also recorded the fact that there was no complaint of torture or any mark of injury or violence on his body, he was sent to judicial custody. 130. The decision in Adambhai Sulemanbhai Ajmeri & Ors. v. State of Gujarat, (2014) 7 SCC 716 in which confessional statement was made after 11 months and the accused was given only 15 minutes' time to reflect- whether they wanted to make confessional statement and thereafter it was recorded, and it appears that the record of the case also did not reflect that it was read over. It does not appear that in the said case it was read over by the Superintendent of Police. Be that as it may. The requirement has been fulfilled in the instant case as the S.P. has read over and is so recorded, that he has read over and it was admitted to be correct and thereafter the accused has signed it. The original statements were recorded in the Hindi language which was known to the accused persons in their own words. 131. Relying upon Nathu v. State of Uttar Pradesh, AIR 1956 SC 56, learned counsel on behalf of accused persons submitted that prolong police custody is sufficient to....
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....ecisely followed. In the case, it cannot be said that he was subjected to prolonged police custody or he had lost the confidence that he would not be sent to judicial custody. 133. Learned counsel on behalf of accused further submitted that in view of the decision of this Court in Shivappa v. State of Karnataka, (1995) 2 SCC 76, searching inquiry should be made by the Magistrate before recording confessional statements. In the instant case, under section 32 of POTA, since there is a departure and confession is made to a senior police officer has been made admissible, the aforesaid decision based on section 164 Cr. P.C. is not attracted, even otherwise when we apply the aforesaid test laid down with respect to section 164 Cr.P.C. as in Shivappa (supra), in our opinion the S.P. under section 32(1), (2) and (3) and the concerned Magistrate under subsections 4 and 5 of section 32 have performed their duties effectively as per the law laid down by this Court in the aforesaid decision in which this Court observed: "6. From the plain language of Section 164 Cr PC and the rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused under....
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....ot be remanded to police custody." 134. The decision in Aloke Nath Dutta & Ors. v. State of West Bengal (2007) 12 SCC 230, relied on behalf of the accused is based upon section 164 Cr. P.C. which is quite different in which the confession is recorded by the Magistrate. Section 32 is a departure from the same. S.P. is authorised to remand and he has observed all the safeguards. Thus, the decision for the aforesaid reasons has no application. 135. On the strength of the Parliament attack case (supra), it was submitted that on the twin test of confession and voluntariness of truth. The confession must be corroborated in material particulars. It is inextricably linked with the truth of confession. This Court observed: "36. Then we have the case of Shankaria v. State of Rajasthan, (1978) 3 SCC 435, decided by a three-Judge Bench. Sarkaria, J., noted the twin tests to be applied to evaluate a confession: (1) whether the confession was perfectly voluntary, and (2) if so, whether it is true and trustworthy. The learned Judge pointed out that if the first test is not satisfied the question of applying the second test does not arise. Then the Court indicated one broad method by which a c....
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....resaid proposition. However, it would depend upon the nature of the case and the facts and circumstances and evidence in each case whether the confessional statement is truthful and is corroborated. That has to be seen in each case. In Parliament attack case (supra) certain observations have been made with respect to section 52(2) of POTA Act which specifically provided that the person arrested shall be informed of his right to consult a legal practitioner as soon as he is brought to the Police Station. Section 52(3) provides that information of his arrest shall be given immediately to a family member or a relative. Section 52(4) says that the person arrested shall be permitted to meet the legal practitioner representing him during the course of interrogation of the accused person. In this context the observations have been made by this Court in Parliament attack case: "182. Parliament advisedly introduced a Miranda v. Arizona, 384 US 436, ordained safeguard which was substantially reiterated in Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424, by expressly enacting in sub-sections (2) and (4) of Section 52 the obligation to inform the arrestee of his right to consult a lawyer and....
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....prepared by the police officer arresting the accused as regards the information given to the relatives. It is the prosecution case that Afzal's relative by the name of Mohd. Ghulam Bohra of Baramula was informed through phone. No witness had spoken to this effect. A perusal of the arrest memo indicates that the name of Ghulam Bohra and his phone number are noted as against the column "relatives to be informed". Afzal's arrest memo seems to have been attested by Gilani's brother who according to the prosecution, was present at the police cell. But, that does not amount to compliance with sub-section (3) because he is neither family member nor relation, nor even known to be a close friend. We are pointing out this lapse for the reason that if the relations had been informed, there was every possibility of those persons arranging a meeting with the lawyer or otherwise seeking legal advice." 137. It is not the case of the accused that they were not given the right to consult legal practitioner when they were interrogated after arrest by the police under section 52 of the Act. Section 52 of the POTA Act is extracted hereunder: "52. Arrest. - (1) Where a police officer arr....
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....bility of confessions of the co-accused as well. The omission of the words in POTA "or co- accused, abettor or conspirator" following the expression "in the trial of such person" which are the words contained in Section 15(1) of TADA does not make a material difference, according to him. It is his submission that the words "co- accused", etc. were included by the 1993 Amendment of TADA by way of abundant caution and not because the unamended section of TADA did not cover the confession of the co- accused. According to the learned Senior Counsel, the phrase "shall be admissible in the trial of such person" does not restrict the admissibility only against the maker of the confession. It extends to all those who are being tried jointly along with the maker of the confession provided they are also affected by the confession. The learned Senior Counsel highlights the crucial words "in the trial of such person" and argues that the confession would not merely be admissible against the maker but would be admissible in the trial of the maker which may be a trial jointly with the other accused persons. Our attention has been drawn to the provisions of Cr PC and POTA providing for a joint tri....
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....ned under TADA. We cannot countenance the contention that the words "co-accused", etc. were added in Section 15(1) of TADA, ex majore cautela. 50. We are, therefore, of the view that having regard to all these weighty considerations, the confession of a co-accused ought not to be brought within the sweep of Section 32(1). As a corollary, it follows that the confessions of the first and second accused in this case recorded by the police officer under Section 32(1), are of no avail against the co-accused or against each other. We also agree with the High Court that such confessions cannot be taken into consideration by the Court under Section 30 of the Evidence Act. The reason is that the confession made to a police officer or the confession made while a person is in police custody, cannot be proved against such person, not to speak of the co-accused, in view of the mandate of Sections 25 and 26 of the Evidence Act. If there is a confession which qualifies for proof in accordance with the provisions of the Evidence Act, then, of course, the said confession could be considered against the co-accused facing trial under POTA. But, that is not the case here." This Court has merely lai....
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....2(5) vis a vis any accused person. The confessions cannot be said to be inadmissible. The provisions of section 32 have been duly complied with. 142. It was also submitted on behalf of accused persons that recording of confessions was flawed. The accused were placed in seclusion and they were not informed of the time at which they would be summoned. PW-21 has admitted that none of them called him in- between. In our opinion, the time of reflection was granted which was adequate in this case and after giving an opportunity to accused whether they wanted to make a confession after being told that it may be used against them, it was the case of observance of the aforesaid principle and it is not the case that the accused had asked for legal assistance during that period and were deprived of it. The legal aspect of the effect of confession had been duly informed to the accused persons beforehand in writing so many words, and adequate time was given for reflection so as to consider the consequence of making a confession. Nothing more could have been advised by a lawyer. Thus, by not volunteering to provide aid of lawyer in view of the fact that the case, where it was not asked for duri....
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....rd confessions continuously for 37 hours. Considering the chart which has been indicated is not for 39 hours as submitted. It was submitted on behalf of the prosecution that the time taken by PW-21 is not precise and the same has been calculated on the basis of the reflection time given to the accused. PW-21 in this regard has stated thus: "227. Exh. 228 and Ex. 229 had concluded just 4 hours before. A. It is true on seeing a record that accused Rehan statement was completed at 11.25 PM on 6.6.2003 whereas what I can see from the record (E. 232) that more than 16 hours have passed and therefore it cannot be said that recording of the confessional statement of accused Parvez had commenced exactly at 4 a.m." The submission is based upon incorrect calculation and stands explained by the deposition of PW-21. The period of total recording is 20 to 22 hours and not 39 hours as attributed. 146. The argument was raised that when accused asked for a glass of water, this renders the confessional statement unworthy of credence. A police officer is not supposed to remember all these aspects and tell about them for several years and statements cannot be discredited on the ground whether t....
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....ssional statements have been recorded after the observance of due safeguards and other corroborative evidence on record are indicative of the fact that reasons for retraction, as stated, are not correct. There is no allegation that they were tortured by the police. In the absence of the same, it does not inspire confidence that they have signed on blank papers, etc. There was a general statement that they were under fear made by some of the accused persons. The fact remains that the statements have been recorded by the S.P., a high ranking officer as envisaged under section 32 which cannot be lightly discredited in the facts and circumstances of the case. 149. In Mohmed Amin & Anr. v. Central Bureau of Investigation, 2008 (15) SCC 49 this Court observed: "69. If the confessions of the appellants are scrutinised in the light of the above-enumerated factors, it becomes clear that the allegations made by them regarding coercion, threat, torture, etc. after more than one year of recording of confessions are an afterthought and products of the ingenuity of their advocates. The statements made by them under Section 313 CrPC were also the result of afterthought because no tangible reas....
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....went to Calcutta from Hyderabad. One Parvez from Calcutta promised to take them to Bangladesh. For about 1 1/2 month, they were in Bangladesh and he was in constant touch with A-2 (Mohmed Abdul Raouf). He was given the name of Afdan during his stay at Dhaka, Bangladesh. In the camp, they were trained in firearms like a pistol, gun, LMG, grenades, etc. for about a month. He also confessed that he spoke to Suleman before proceeding to Karachi for training, who was aggrieved by the atrocities committed on Muslim. He was asked to go to Udaipur by Rasul party where he would be picked up for Ahmedabad to avenge atrocity and as being native of Hyderabad, nobody would be able to recognize him at Ahmedabad and the terror could be created amongst the Hindus. 153. It was further confessed that in December 2002, he reached Udaipur and stayed at Musafirkhana in the name of Afdan Yusuf from 31.12.2002 to 5.1.2003. It was confessed by A-1 (Mohmed Asgar Ali) that he had received an email from Rasul Khan Party in which he was given the address and phone number of Usman who lived in Udaipur. After his return from Udaipur to Hyderabad, he took Rs. 2,000 - Rs. 3,000/- from A-2 (Mohmed Abdul Rauf). He....
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....a used to go for a morning walk at Law Garden and he could be killed there. 153(c). On 23.3.2003, Sohail Khan took him to Law Garden and Yunus and Parvez met them. On that day, Haren Pandya did not come to Law Garden. On 24.3.2003, he went to Jumma Masjid and where he met Anas, Rehan, and Goru. On 25.3.2003, he was given black colored loaded revolver with six bullets by Anas in the toilet of Jaliwali Masjid. Goru took him to Law Garden. He walked with Haren Pandya, but upon seeing a man in uniform, he decided not to kill Haren Pandya inside the garden and dropped the plan of killing him and came back to Shahpur with Goru. The weapon was returned to Anas Machiswala and Shahnavaz asked him to accomplish the task the next day. 153(d). Next day inside the Jaliwali Masjid, he was given loaded revolver by Anas Machinswala. It was confessed that Haren Pandya came in Maruti Fronti car at the place and parked the car at his regular place. He also confessed that he fired five bullets on Haren Pandya from the window of the driver seat and fled away on Yunus' motorbike. They went to Shahpur Mill Compound and he called up Sohail Khan and informed him that work is accomplished. He was pi....
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....s of Haren Pandya drinking water at the time of shooting. "Jaise use Gadi khadi karke pani peene ke liye botal ka dhakkan khola main gadi ki taraf ghooma aur driver ki taraf se thoda khule sheeshe se Haren Pandya par panch fire kiye." In our opinion, the non-recovery of a water bottle from the car is not at all material as it had nothing to do with the offence in question. Every material found in the car was not required to be seized. The witness PW-55 has also said that Haren Pandya drank water from the bottle. There is no contradiction as sought to be made out on behalf of the learned counsel appearing for A-1. 155. Confession of A-1 (Mohmed Asgar Ali) has been supported by various other evidence on the record like phone calls, recovery of the weapon, vehicle, hiring of rooms, etc. It was submitted that conduct of A-1 (Mohmed Asgar Ali) as stated in the confession does not inspire confidence. There is no conceivable reason for preserving cartridge case and weapons and spending time which must be precious to a murderer for escaping from the spot. It was not reasonable for the accused to preserve empty cartridges. There was the possibility of their recovery from the place of occur....
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....ere made by A-1 to A-14 in a few minutes and from distance of 15 to 17 km. calls in 45 minutes. Cell phone location also supports the ocular version and lends credence to the fact that murder had taken at the place near Law Garden. In addition, for tracking A-1 (Mohmed Asgar Ali), a landline at Nalgonda was used. It was proved that A-1 used phone No. 9825494251. In the confession also, the number has been stated. Even on the next date of the incident, the phone was used by A-1, stands established by the prosecution. 160. There is corroborative evidence of confession with respect to A-1 (Mohmed Asgar Ali), Shooter. He fired at Jagdish Tiwari and murdered Haren Pandya as stated in his confession in December 2002 after return from Pakistan. He reached Udaipur and stayed at Muslim Musafirkhana, which is corroborated by the deposition of Mohammed Jamil Nasir Mohammed, Manager, Muslim Musafirkhana (PW-30) (Exhibit 297) and has also produced guest register (Exhibit 298). Entry no. 5846 (Exhibit 298) was made in respect of stay of A-1 (Mohmed Asgar Ali) from 31.12.2002 to 5.1.2003, which was signed by A-1 (Mohmed Asgar Ali). 161. He also received a message from A-18 through email to reac....
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....ich is based entirely on confessions under POTA which were obtained after an unduly long period of police custody. It is contended that colour of conspiracy is sought to be given solely by the use of confessions. Reliance has been placed on Kehar Singh (supra), which has already been considered. Further, reliance was placed on the decision of K.R. Purushothaman v. State of Kerala, (2005) 12 SCC 631, wherein this Court observed as under: "13. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes an active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspi....
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.... contended that CBI seeks to reverse the acquittal, where High Court has rejected the confessions on the basis of law laid down by this Court. It is further submitted that reversal of an acquittal should not be done when the view taken by the High Court is a possible view and as such, no interference should be made as per the parameter laid down in State of Rajasthan v. Islam & Ors., (2011) 6 SCC 343, in which this Court observed: "16. The principle to be followed by the appellate court considering an appeal against an order of acquittal is to interfere only when there are compelling and substantial reasons to do so. Thus, in such cases, this Court would usually not interfere unless: (i) The finding is vitiated by some glaring infirmity in the appraisal of evidence. (State of U.P. v. Sahai, (1982) 1 SCC 352 at SCC paras 20-22: AIR paras 19-21.) (ii) The finding is perverse. (State of M.P. v. Bacchudas, (2007) 9 SCC 135 at SCC para 10 and State of Punjab v. Parveen Kumar, (2005) 9 SCC 769 at SCC para 9.) (iii) The order suffers from substantial errors of law and fact. (Rajesh Kumar v. Dharamvir, (1997) 4 SCC 496 at SCC para 5.) (iv) The order is based on misconception of l....
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....he weapon was recovered at the instance of A-5 (Anas Machiswala). A-4 (Kalim Ahmad Karimi) and A-5 (Anas Machiswala) visited Surat and procured two weapons from one Maulana Tahir. As per the prosecution, A-4 (Kalim Ahmad Karimi) had kept the weapons at his shop and had given the same to A-5 (Anas Machiswala) on the night of 25.3.2003 for killing Haren Pandya. 167. The prosecution has relied upon the confessional statement under Section 32 of POTA, though the A-4 (Kalim Ahmad Karimi) was in police custody from 25.4.2003 till 5.6.2003. He was sent to judicial custody up to 17.6.2003. Thereafter on 24.6.2003, he made the confession after he was given time for reflection. He admitted his signature on his confessional statement on the day on which he was produced before the Magistrate. Later on, he said that while retracting confession that his signature had been obtained forcibly. 168. It was submitted on behalf of accused that mere knowledge of plan would not constitute conspiracy as observed in K.R. Purushothaman v. State of Kerala (supra). As already observed, the conspiracy shall not be deemed to have been established on mere suspicion and surmises or inferences which are not sup....
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....sion is uncorroborated. A-4 (Kalim Ahmad Karimi) had been convicted and sentenced in POTA 12/2003 and in the present case for the charge under Section 3(3) of POTA, for the generic charge of conspiracy as also the Arms Act, these sentences he has already undergone. He has undergone the punishment for all the charges that relate to the time period prior to an alleged conspiracy to murder Haren Pandya. The High Court has rightly acquitted him from the commission of an offence under Section 120-B and 302 IPC. 172. It is apparent that though Hussainmiyan Amirmiyan Shaikh (PW-57) has turned hostile, his statement had been recorded under Section 164, Cr.PC (Exhibit 546). The confessional statement of A-14 (Sohail Khan Pathan) is supported by the recovery of motorcycles from PS Kagdapith in the presence of Bhaveshbhai Nagindas Shah (PW- 103) vide seizure memo Exhibit 628. Bhaveshbhai Nagindas Shah (PW-103) corroborates the recovery of the motorcycle from PS Kagdapith. Bhagwan Singh Samantsinh Rathod (PW-50) has also corroborated the recovery of the motorcycle from PS Koth area vide seizure memo Exhibit 356. The weapon was also recovered at the instance of A-5 (Anas Machiswala). Hence, th....
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....ction for the offence punishable under Section 3(3) of POTA and sentence has been reduced to the period already undergone by him in jail with fine of Rs. 5,000/- each, and in default of payment of fine, he shall undergo RI for 6 months. The High Court has acquitted A-4 (Kalim Ahmad Karimi) of charges under Section 120-B read with Section 302 of IPC and the charge for the offence under Section 3(1) punishable under Section 3(2)(a) of POTA. He procured vehicles and weapons and due to his active role in the conspiracy, he is liable to be convicted for commission of offence under Section 3(1) read with Section 3(3) of POTA and Section 120B read with 302 IPC as ordered by the Trial Court. IN RE: A-5 (ANAS MACHISWALA) 174. It is urged on behalf of accused that emails allegedly recovered at the instance of A-5 (Anas Machiswala) are fabricated. The relevant exhibits were not signed by the accused as is evident from the testimony of Sanjay Rameshbhai Brahmane (PW-65) the panch witness. It is further contended that call records of accused are inadmissible in view of Section 65B of Indian Evidence Act, 1872. It proves nothing against accused as they knew each other and thus their presence i....
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....at Haren Pandya would be killed next. A5 was in attendance at the meetings that took place on 17th and 18th of March, 2003 at Juni Jama Masjid. A14, A8, A7, and A4 also attended those meetings. A14 named Haren Pandya as the next target because, according to A14, Haren Pandya had perpetrated atrocities on Muslims during the communal riots apart from taking a major lead in the demolition of Paldi Masjid. A5 describes as to how the task of doing a recce of Law Garden was first assigned to A12 and, upon A12's failure, the same came to be entrusted to Parvez. The events of 23.03.03 and of 24.03.03 are also described. On 23.03.03 Haren Pandya had not turned up at Law Garden. On 24.03.03, registration No. of the Maruti Fronti Car used by Haren Pandya came to be noted at Law Garden. It is stated that after the first attempt to kill Haren Pandya was aborted, on the night of 25.03.03, number plates of the motorcycles were changed by A4 and A14. 174(e). On the morning of 26.03.2003, A5 handed over a loaded pistol to A6 and a loaded revolver to A1. After A1 undertook the task assigned to him of killing Haren Pandya, A1 along with A6 and Rehman came to Shahpur Mill Compound, where A5 was ....
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....aspects of the conspiracy were hatched and put into operation. He played a crucial role in the procurement, handling, and storage of the illegally procured arms. 7.65 mm pistol was in fact discovered and recovered at his instance. No great significance can be attached to PW-69 not supporting the prosecution. First of all, this witness was A5's first cousin. Secondly, his Section 164 CrPC statement is on record. No complaint to any authority was ever made that this statement was forcibly extracted. 179. He was, thus, rightly convicted and sentenced by the Trial Court for commission of offence under section 3(1) r/w 3(3) of POTA as well as 120B and 120B read with 302 IPC for commission of offence of murder of Haren Pandya. The same is restored. IN RE: A-6 (MOHMED YUNUS SARESHWALA) 180. It was submitted by Shri Raju Ramachandran, learned Senior Counsel on behalf of A-6 (Mohmed Yunus Sareshwala) that his presence at the Law Garden area at the time of the incident has not been established. It was submitted on behalf of A-6 (Mohmed Yunus Sareshwala) that as per prosecution he was present in the meeting dated 25.3.2003 in the Masjid. A-5 (Anas Machiswala) told him that A-6 (Mohmed ....
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....ot a new SIM card for A-6 (Mohmed Yunus Sareshwala) which was used in the mobile phone of A-8 (Mohmed Riyaz @ Goru). At 7 O'clock in the morning, he was required to take Mehman to Law Garden. In Sunrise Bungalow Society, A-5 (Anas Machiswala) and A-4 (Kalim Ahmad Karimi) changed the number plates of both the Hero Honda motorcycles and A-5 (Anas Machiswala) gave him the motorcycle bearing registration no. 1110. He went on that motorcycle at 6.30 am to Lucky Restaurant. He purchased Sandesh newspaper at Juhapura and at 6.56 am reached to Lucky restaurant and by that time A-5 (Anas Machiswala) reached there and called him at Jaliwali Masjid and in the bathroom, he was given pistol by A-5 (Anas Machiswala) and said that it was locked and loaded. Thereafter, he went along with A-1 (Mohmed Asgar Ali) to Nehru Bridge. He had worn a helmet and near the gate of Thakardas Hall, he pretended to read a newspaper. He saw A-10 (Parvez Khan Pathan) passing from the opposite side and nodded at him. He heard firing of 4 to 5 bullets. He started the motorcycle and wore the helmet. After about 1 to 11/2 minutes, Mehman approached him and set as a pillion rider. He went towards Gujarat College to ....
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....his explicit act in taking A-1 (Mohmed Asgar Ali) to Law Garden and waiting till killing of Haren Pandya under the pretext of reading newspaper and thereafter, taking A-1 (Mohmed Asgar Ali) to Shahpur Mill Compound and handing over the weapon and vehicle and completing everything with meticulous detail are all reflected in the confessional statements. 183. It is submitted on behalf of accused that sole eyewitness Anilram Yadavram Patel (PW-55) has not made any reference with regard to A- 6 (Mohmed Yunus Sareshwala) presence at the place of incident. It is further alleged that prosecution has relied on the evidence of Hemantkumar Ratilal Patel, BSNL Officer (PW-33) to ascertain the location of A-6 (Mohmed Yunus Sareshwala) based on the call details record of mobile no. 9426325774. It is alleged that A-5 (Anas Machiswala) had given three SIM cards to A-7 (Rehan Puthawala) of mobile no. 9426325765, A-8 (Mohmed Riyaz) having mobile no. 9426325774 and A-9 (Mohmed Parvez Sheikh) of mobile no. 9426325768. It is submitted that Hemantkumar Raitlal Patel, BSNL Officer (PW-33) has given the call details and location based on it of aforesaid three mobile numbers on the morning of 26.3.2003 in....
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.... had discussed at length A-1 (Mohmed Asgar Ali) had hidden two weapons given to him by the accused. Jayantibhai Vitthaldas Suthar (PW-27) had proved the landline number at the house of A-6 (Mohmed Yunus Sareshwala) at A/12, Sunrise Apartment, Juhapura, and the said fact had also been admitted by A- 6 (Mohmed Yunus Sareswala). Record of mobile phone location also revealed the incriminating circumstances as proved by the evidence. Rajendra Singh S. Chhikara (PW-110) was present at Kamar Flat when the discovery was effected. Motorbike used during the commission of the offence was handed over to Javed Abdul Rashid Khan Pathan (PW-45), who turned hostile to the case of the prosecution. He had taken A-1 (Mohmed Asgar Ali) to spot and brought him back also and carried a weapon too. Keeping in view his proximity with rest of the group and his involvement in the conspiracy to kill Haren Pandya, the conviction and sentence awarded to A-6 (Mohmed Yunus Sareswala) by the Trial Court under Section 120B read with Section 302 IPC and under section 3(1) and 3(3) of the POTA, is found to be appropriate. IN RE: A-7 (REHAN PUTHAWALA) 186. Evidence against A-7 (Rehan Puthawala) is that on 9.3.2003 h....
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.... only. He has also attended the meeting on 22.3.2003 called by Sohail Khan Pathan (A-14) and Anas Machiswala (A-5) at Old Jumma Masjid, where A-9 (Mohmed Parvez Sheikh) was directed by A-14 (Sohail Khan Pathan) to carry out recce of Law Garden as A-12 (Shahnavaz Gandhi) could not do so. He had his own mobile no. 9825398516, where he fed mobile no. 9825498241 of A-1 (Mohmed Asgar Ali) and mobile no. 9825311510 of A-5 (Anas Machiswala) as Mehman and Uncle respectively. It is also apparent that he had waited at the corner of Nehru Bridge for A-1 (Mohmed Asgar Ali) and A-6 (Mohmed Yunus Sareshwala) to come. He escorted them to Shahpur Mills Compound where A-5 (Anas Machiswala) and A-14 (Sohail Khan Pathan) were waiting for them in an autorickshaw. He also accompanied A-6 (Mohmed Yunus Sareshwala) for handing over the helmet and weapons to A-5 (Anas Machiswala) and A-6 (Mohmed Yunus Sareshwala) gave him brief detail about the killing of Haren Pandya. He also accompanied A-8 (Mohmed Riyaz @ Goru) for getting the fake number plate. His mobile phone directory gave a major lead in the investigation and his active role at every stage and overt act are visible from the evidence adduced by the....
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....hat he was provided with BSNL SIM card mobile no. 9426325765. and he was present at Nehru Bridge in the morning of 25.3.2003 and escorted A-1 (Mohmed Asgar Ali) and A-8 (Mohmed Riyaz) to Shahpur Mills Compound where A-5 (Anas Machiswala) and A-14 (Sohail Khan Pathan), were waiting for them with an autorickshaw. On 26.3.2003, he reached Nehru Bridge corner at about 7.15 am and he received a phone call from A-9 (Mohmed Parvez Sheikh) while he was on his way. On seeing A-1 (Mohmed Asgar Ali) and A-6 (Mohmed Yunus Sareshwala) on a motorcycle, he escorted them to Shahpur Mill Compound where A-5 (Anas Machiswala) and A- 14 (Sohail Khan Pathan) were waiting with an autorickshaw and returned the SIM card to A-5 (Anas Machiswala). He parked the motorcycle used by A-6 (Mohmed Yunus Sareshwala) in the parking of Anam Flats, Daryapur on 28.3.2003. After 2-3 days of the murder of Haren Pandya, on the direction of A-5 (Anas Machiswala), he along with A-8 (Mohmed Riyaz) went to Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW-52) and got prepared false number plates bearing no. 5189. This fact has been proved by Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW-52) by his deposition vide document Exhibi....
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....I and Dr. Sushilkumar S. Gupta (PW-120). The vehicle was used in killing Haren Pandya and the fake number plate was put by the accused so as to save themselves from the clutches of law and prevent identification. The guilt stand proved against the A-7 (Rehan Puthawala) as found established by the Trial Court. 193. The conviction and sentence imposed by the Trial Court on Rehan Puthawala is found to be proper under section 3(1) and 3(3) of POTA as well as section 120B r/w section 302 IPC for commission of murder of Haren Pandya. IN RE: A-8 (MOHMED RIYAZ @ GORU) 194. It is the contention of the learned counsel that there is no record or written evidence against A-8 (Mohmed Riyaz) that he has given the order for the number plate. It is also averred that alterations were made in the job workbook of Star Number Plate. There is no independent evidence linking the number plate to the offence. It is further submitted that prosecution has picked up abandoned bikes already in the local police custody and foisted the same on the accused. Each motorcycle recovered is the planted recovery and has been falsely connected to this case. It is further submitted that there is no independent eviden....
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....esides this, he also spoke of his close association with other persons, namely, Kaleem (A4), Anas (A5), Yunus (A6), Parvez (A9) Shahnawaz (A12), and Rasul Khan Party (A18 -- absconding). One specific instance of his association with Rehan (A7) came after the murder of Haren Pandya. This was in relation to changing the number plate of Hero Honda Motorcycle, which was done at the Shop of Star Number Plate. A8 had gone with A7 for this purpose. Number plate registration No. GJ-1-CA-5189 was suggested for this task by Anas (A5). Prior to changing the number plate, he was instrumental in taking Asgar Ali (A1) to Law Garden on 25.03.03. Black coloured Hero Honda motorcycle was used for this; it was provided by Anas (A5). The plan to murder Haren Pandya was aborted on that day (i.e. on 25.03.03) as the place was found to be very crowded. Next day, i.e. on 26.03.03, it was Yunus (A6) to whom the task of taking A1 to Law Garden for the murder of Haren Pandya came to be handed over. 198. By and large, A8's confessional statement is on the same lines as that of A6. Although he had complained of forcible extraction of his confessional statement by making him sign on blank papers, trial co....
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....f DW3's neighbour). Equally, he is himself unsure of the exact date. Therefore, even if, arguendo, his version was to be believed, it would still not dent the prosecution. Thus, there is nothing to suspect arrest of A-8. 202. As for the discrepancies alleged in the format of the call records, these would not go to the falsify the prosecution's case. At the time of his arrest, SIM Card was found from his pocket. Mobile Nos. 9426007240 and 9825384241 (Hutch) belonged to A8, along with mobile phone bearing IMEI No. 448478527477630). In view of the evidence on record, A-8 (Mohmed Riyaz @ Goru) had rightly been convicted and sentenced by the Trial Court for commission of offence under section 3(1) read with section 3(3) of POTA as well as under section 120B and 120B read with section 302 IPC for commission of murder of Haren Pandya. The same is restored. IN RE: A-9 (MOHMED PARVEZ SHEIKH) 203. In a nutshell, details of his training at Pakistan and return from there, together with his knowledge and role in AMTS Blasts, attack on Jagdish Tiwari (PW-39), and murder of Haren Pandya are all mentioned in the statement. A9 also provides details of the role played by others in the ent....
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....k his White Maruti Fronti Car near Children's Park. Upon not sighting their target on the morning following the meeting dated 22.03.03, A9 once again went to Law Garden on 24.03.03 on his motorbike. On this occasion, he found Haren Pandya. He also found his Maruti Fronti Car bearing registration No. GJ-1-AP-4606. What thereafter followed on 25.03.03 and on 26.03.03 is also mentioned by A9, including as to why it was that on 25.03.03 the plan to murder Haren Pandya came to be aborted. On both these days, A-9 was present in the vicinity of Law Garden, opposite H.A. College. Finally, he saw Haren Pandya being killed by A-1. A-9 saw to it that nobody followed A-1. Besides the aforesaid, A-9 also provides details of the mobile numbers used by various co-conspirators. A-7's number was 9825398156, that of A-1 was 9825498421 and A-5 had 9825311510. It was through A-7's mobile phone that Al was asked to reach Law Garden at 7 am on 23.03.03. 207. Defence mounted an attack on the entire procedure of recording confessions. Specifically, voluntary recording of A-9's confession was stated to be improbable. To this end, certain aspects of PW21's deposition were pressed into s....
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.... of the conspiracy of killing Haren Pandya. A-10 (Parvez Khan Pathan) got the knowledge of killing after a few hours. Their participation with the other accused will not amount to conspiracy. They have been punished for a general conspiracy to take revenge for atrocities against Muslims. They have been tried and punished not once but twice and spent over 8 years in custody. They were accused in the case of Jagdish Tiwari (PW-39) also. The confession attributing ex post facto knowledge of the murder of Haren Pandya is inadmissible in evidence. Their statements are not admissible under Section 32 of POTA safeguards were not observed, which aspect we have already discussed and negated. 211. On behalf of A-10 (Parvez Khan Pathan), it was submitted that he has no specific role in the murder of Haren Pandya. He made a disclosure under Section 27 of Evidence Act which lead to the recovery of some literature from his house and that he has disclosed that a motorbike was left by him on Tarapur Highway after removing number plates and rendering the bike unfit by taking out air on 4/5.4.2003. The Investigating Officer, CBI (PW-120) recovered number plate bearing no. 5189 from the bushes, thou....
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....than) in February 2003 for A-1 (Mohmed Asgar Ali), the shooter. This fact had been corroborated by Abdul Samad Abbasali (PW-54) in his deposition. He acted as an intermediary between A-1 (Mohmed Asgar Ali) and A-13 (Mufti Sufiyan). About 5-6 days before the attack on Jagdish Tiwari, he was called by A-14 (Sohail Khan Pathan) at the shop of A-4 (Kalim Ahmed) where A-14 (Sohail Khan Pathan) disclosed that as per the directions of A-13 (Mufti Sufiyan), Jagdish Tiwari was their target. He pointed out Jagdish Tiwari (PW-39) and his shop to A- 1 (Mohmed Asgar Ali) on the directions of A-14 (Sohail Khan Pathan). On 7.3.2003, he collected two weapons from A-1 (Mohmed Asgar Ali) and gave them to A-14 (Sohail Khan Pathan). 214. It is further the stand of prosecution that on 9.3.2003, A-1 (Mohmed Asgar Ali) and A-3 (Mohmed Shafiuddin) made an abortive attempt on Jagdish Tiwari (PW-39) where he along with A-11 (Mohmed Faruq) waited for them at Afzal Cold Drink in order to exchange the motorcycles with A-1 (Mohmed Asgar Ali) and A-3 (Mohd. Shafiuddin). After the attack on 11.3.2003 on Jagdish Tiwari (PW-39), A-1 (Mohmed Asgar Ali) called him twice on his mobile. After attacking Jagdish Tiwari ....
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....f those who came from outside and provided for their transportation, motorcycles, arms, and ammunition. 216. There is evidence that he has provided all the logistic support from the beginning in executing the conspiracy and had been supported by A-11 (Mohmed Faruq). On 23.4.2003, they went in TATA Sumo jeep from CBI Office, Gandhinagar and A-1 (Mohmed Asgar Ali) led them to House No. 206, Block No. 61, Old Bapunagar, Ahmedabad at Gujarat Housing Board flats where he stayed for three days and from there to Flat No. 902, A-3 Block near Dhobi ki Chawl, Rakhial where also stayed for three days and then to House No. 522, Block No. 105, Bapunagar near Momin Masjid, which is a house of A- 14 (Sohail Khan Pathan) and A-10 (Parvez Khan Pathan) and from there one Bajaj Kawasaki Boxer Motorcycle bearing registration no. GJ1BG3849 had been seized along with its RC book, for which memo Exhibit 270 was prepared and was signed by Harikishan Harpal Meena (PW-23) as well as by A-1 (Mohmed Asgar Ali). 217. Abdul Banki Abdul Bari Ansari (PW-44) had corroborated that he had rented the flat at Royal Apartment on a fixed rent of Rs. 1,400/- and Rs. 5,000/- had been deposited. In April 2003 it was vaca....
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....sponse to a letter of CBI had produced registration papers in respect of Hero Honda Splendor bearing registration no .GJ-1CJ-6692 and Suzuki Samurai owned by Anil Mehta as well as Bajaj Kawasaki Boxer having registration no. GJ- 1BG-3849 vide exhibits 278, 279 and 282. Another Hero Honda motorcycle having registration no. GJ7Q2164 was found at Tarapur Highway which originally belonged to Gaurang Kirit Gandhi and the fake number plate was got prepared from Star Number Plate as GJ- 1CF-5189. The aforesaid motorcycle was found without any number near Tarapur-Bagodara Highway at the instance of A-10 (Parvez Khan Pathan) in the presence of Sushil Kumar S. Gupta (PW-120) and Arpesh Ranchhodbhai Rathod (PW-86). It was seized by Bhagwan Singh Samantsinh Rathod (PW-50), In-charge, PSI, Koth Police Station. Thereafter, the six CDs and written material were also discovered from the residential place of A-10 (Parvez Khan Pathan) which depicted the plight of Muslims after the Godhra incident in Gujarat. The aforesaid evidence clearly proves the role of A-10 (Parvez Khan Pathan) in the conspiracy to murder Haren Pandya and he has been rightly convicted by the Trial Court under POTA and for murd....
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....the targets, request the dealers to activate the SIM in the name of any his employees and it was done in name of Sarvarmiyan Anvarmiyan Saiyed, however before 4.4.2003, not even a single call was made from the aforesaid SIM card and the same was sold to A-11 (Mohmed Faruq). He further maintained that if the company requests for activation of SIM card for achieving its target, the proof sent with the application suffice the need of the company.. Mubinuddin Pirsaabmiya Shaikh (PW-116), Manager, Bismillah Hotel has deposed that two persons in the name of Akhtarali Sabirali and Fazalbhai Ganibhai had stayed at Surat in fake names. As per the prosecution, they were A-10 (Parvez Khan Pathan) and A-11 (Mohmed Faruq). After purchasing the SIM card, A-10 (Parvez Khan Pathan) and A-11 (Mohmed Faruq) left the motorcycle at Tarapur Highway and fled away to Bharuch to Surat to Pune to Hyderabad. Their stay at Hotel Bluestar at Hyderabad was also duly proved by the prosecution. A-11 (Mohmed Faruq) has provided all sorts of logistic support in executing the conspiracy and he has played a very crucial role in the conspiracy and prosecution has also proved his alleged involvement in the crime. 221....
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....mposed under Section 3(3) of POTA. The Trial Court has convicted A-2 (Mohmed Raouf) under Section 3(3) of POTA and sentenced him to 7 years rigorous imprisonment and the High Court has also confirmed and maintained the conviction as well as the amount of fine i.e. Rs. 10,000/ -. The sentence of rigorous imprisonment has been modified to the period already undergone in jail i.e., 5 years. Against the decision of the High Court, the CBI is in appeal. The minimum sentence is 5 years under Section 3(3) of POTA and by now 8 years have passed and the accused has already undergone little more than 5 years. No case for further interference is called for as CBI did not prefer an appeal against the judgment and order of the Trial Court. The decision of the High Court as to conviction and sentence under POTA is affirmed. IN RE: A-3 (MOHMED SHAFIUDDIN) 225. With respect to A-3 (Mohmed Shafiudding), the Trial Court has recorded conviction under Section 120B read with Section 307 of IPC and has sentenced him to undergo 7 years rigorous imprisonment with fine of Rs. 3,000. He was also given benefit of doubt for all the other offences he had been charged with under the POTA as well as under the ....
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..... 232. Though, in the instant case, the trial court has found that attempt on the life of Jagdish Tiwari and the murder of Haren Pandya has been committed in the method and manner as per prosecution case. However, with regard to present accused M.J. Sheikh, it has been held that the prosecution has not been able to prove his guilt beyond the periphery of doubt. 233. As per prosecution case, he is stated to have stayed in Mumbai in the place of Mufti Sufian, the trial court has found that though his visit to Mumbai with Mufti Sufian stands proved, any conspiracy was formed at Mumbai had not been established. His statement under section 164 (1) Cr. P.C. initially was recorded as a witness that has not been taken into consideration. The polygraph test conducted on the accused was not as per the laid down safeguards to be observed by the National Human Rights Commission and was without any permission of the court. Even the statement had been held to be not good enough to fasten the guilt to enter into the conspiracy for either an attempt of murder of Mr. Jagdish Tiwari or killing of Haren Pandya. He was not with the main accused - Mohmed Asgar Ali on the date of the incident and whil....
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....Thereafter, wife of deceased Haren Pandya filed a petition, being Special Crl. Application No. 2327/2011, in the High Court of Gujarat at Ahmedabad, which was dismissed. Vide judgment and order dated 6.2.2012 passed by the High Court of Gujarat at Ahmedabad on the ground that petition filed by Mr. Vithalbhai D. Pandya, father of the deceased, had been dismissed and due to the pendency of the criminal appeals in this Court, the High Court observed that it would not be proper to reappreciate and re-evaluate the material on record. Judicial propriety and discipline oust the court from entering into the merits of the case. Since this Court was in seisin of the subject-matter to settle the issue authoritatively under plenary jurisdiction under Chapter IV of the Constitution of India. 237. The present writ petition has been filed when criminal appeals filed in this Court were already being heard for the last two months. It was not mentioned that criminal appeals were already being heard w.e.f. 1.11.2018 by this Court in which hearing was concluded on 31.1.2019. The present writ petition was listed before a Bench consisting of Hon. Sikri and Abdul Nazeer, JJ. on 8.2.2019. The Bench direc....
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.... the Outlook dated 7.11.2007 saying that he was likely to be murdered. 240. The prosecution case has been doubted by the petitioners on the various counts which have been raised in the criminal appeals. Such as he was rolling up the glass of the window of his car, there were 5 bullets found with 7 injuries. PW-55 is not a reliable witness. Family of Mufti Sufiyan was permitted to move to Pakistan despite being under the surveillance of the Gujarat Police and relocated there. The High Court has made observations that ballistic evidence does not support the ocular version. There was a difference in the bullets recovered and examined. The direction of the wound has also been adversely commented upon so as to cast doubt on ocular version. The offence has not taken place in the car. Confessions of the accused were not reliable. The investigation was tainted. Thus, prayer has been made to direct further investigation in the matter. Reliance has been placed on Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762 in which this Court observed that a fair and proper investigation has two imperatives, the investigation must be unbiased, honest, and just which is in accordance with law and secondly, th....
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....on against the same was also dismissed. Thereafter wife of deceased also filed a petition in the year 2012 in the Gujarat High Court which was also dismissed inter alia on the aforesaid grounds that judicial propriety and discipline oust the High Court from entering into merits as this Court has to reassess the evidence and the findings recorded by the Gujarat High Court in the criminal appeals. Which have been heard finally by this Court and hearing concluded on 31.1.2019. The petition is not maintainable and has been filed with an oblique motive. The statement of Azam Khan is an afterthought and did not relate to the matter in question in the case in which he has deposed. The Forum of PIL is being misused. It cannot be based on newspaper reports or reports in the magazines. For this purpose, he has relied upon Kusum Lata v. Union of India, (2006) 6 SCC 180, Rohit Pandey v. Union of India (2005) 13 SCC 702; and Holicow Pictures (Private) Ltd. v. Prem Chandra Mishra, 2007 (14) SCC 281. 243. Mr. Mehta, with respect to the evidentiary value of the report, has further submitted that the facts contained in the newspaper reports are merely hearsay and therefore not admissible in eviden....
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....ce of the counsel appearing on behalf of CPIL and one of them appearing for the accused, has also been recorded in the writ petition in the order dated 8.2.2019. A perusal of the order dated 8.2.2019 indicates that the presence of the counsel for an accused in criminal appeals has been recorded on behalf of the petitioner CPIL along with Mr. Prashant Bhushan and Mr. Rohit K Singh, advocates. Mr. Prashant Bhushan tried to explain the aforesaid position on the ground that his clerk has wrongly given the appearance of said learned counsel who is appearing on behalf of an accused person in criminal appeals. However, as admitted by Mr. Prashant Bhushan, the said counsel was associated with him in furnishing the information, documents, etc. Be that as it may. The fact is apparent that accused persons were instrumental in getting filed this writ petition for further investigation in the case. If the accused so wanted then they ought to have approached this Court by way of filing an appropriate application in the criminal appeals only and not by way of filing a PIL, that too through the CPIL. It cannot be said to be an appropriate way of filing a writ petition for further investigation, th....
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....tance of Sohrabuddin and killing of Hamid Lala by Tulsiram and Mudassar at the instance of Sohrabuddin. There is no reason for this omission in my statement recorded by CBI. I told before the CBI officer that in order to recover the money of Rajasthan Tools Company Jodhpur from Mariam Marble, I was falsely booked in an extortion case. There is no reason for the above omission in my statement before CBI....... " (emphasis supplied) 247. Azam Khan has stated that CBI recorded his statement twice in the year 2010, but he was unable to give any reason for omission in his statement recorded by the CBI. Even otherwise the statement made after more than 15 years is wholly unreliable and an afterthought and was not connected with the matter in question in which it was made. Thus, it appears to be clearly a motivated one and bundle of falsehood as he could not give any reason for omission in the previous statement in which also this issue was not involved. 248. A book by Ms. Rana Ayyub has also been relied upon in which it has been observed that Haren Pandya's case is like a volcano. "Once the truth is out, (xxx) will go home. He will be jailed." The counsel has further relied upon a....
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....elow application Ex. 898, the learned Special Court [POTA] has dismissed the said applications submitted the by applicant for reinvestigation/further investigation of the case related to the murder of the son of the applicant namely Mr. Haren Pandya. It is also required to be noted at this stage that at the time when the first application Ex. 855 was submitted by the applicant for further investigation/reinvestigation, the same was after 122 prosecution witnesses and 7 defence witnesses were already examined by the Special Court [POTA] and further statements of the accused running into 202 pages had already been recorded and the trial was at the fag end. Even when the application Ex. 898 came to be dismissed by the learned Special Court [POTA] on 26/3/2007 it was specifically observed by the learned trial court that the applicant be supplied copy of the said order urgently to enable him to approach the higher forum if he so chooses, as there is still some time before the Court shall deliver the judgment after completing the submissions of both the sides on 28/3/2007 and 4/4/2007. It is borne out from the record that the order passed below application Ex. 855 dtd. 18/12/2006 was sen....
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....8 and allowed the trial to be concluded. It also appears that even the averments made in the applications explaining the delay are too vague and/or general in nature. Even the applicant has not stated correct facts with respect to the receipt of copies of the orders passed below applications Ex. 855 and 898 and the certified copy of the closing pursis for dropping of the witnesses. 27. Still construing the 'sufficient cause' liberally, so as to advance substantial justice and with a view to see that the meritorious case is not defeated on the technical ground of delay, we have considered prima facie case on merits also. The learned senior advocate appearing on behalf of the applicant as well as learned Special Public Prosecutor appearing on behalf of the CBI have addressed the court on merits also and we have heard the learned advocates appearing on behalf of the respective parties on merits at length to appreciate the prima facie case on merits with a view to advance substantial justice and to see that the meritorious case is not defeated on the technical ground of delay. 29. It is further submitted that Jagrutiben widow of Haren Pandya was already cited as a witness i....
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....rden. She was not an eye-witness to be examined in the case. Thus, it cannot be said that the prosecution has withheld her and she would have unfolded any part story which was material to the case. 252. The SLP against the aforesaid decision in the case of Vithal Bhai of the Gujarat High Court has been dismissed by this Court on 15.7.2009. This Court condoned the delay and dismissed the SLP. Thus, the order passed by the High Court that no investigation was warranted, has attained finality. 253. Thereafter, yet another attempt had been made by the wife of the deceased though she was not entitled to file any petition after it was filed by the father of the deceased in view of prayer made before the Trial Court as father had questioned the orders passed on applications filed by her before Trial Court. Nonetheless, she filed Special Crl. Application No. 2327/2011 which was decided vide order dated 6.2.2012. The High Court of Gujarat has dismissed the petition filed by the wife and observed: "4. Mr. J.M. Panchal, learned Special 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 reit....
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....ent that the matter has attained finality. Again, in criminal appeals, we have examined the case on merits as the case relates to Haren Pandya, former Home Minister of Gujarat. In our opinion on merits in view of the material that has been placed on record including that of Azam Khan's statement and Book by Rana Ayyub, no case is made out on the basis of material placed on record so as to direct further investigation or re-investigation. There is absolutely no material for that purpose. The matter has already attained finality due to the dismissal of SLP. Even otherwise the petition has been based upon reports in the newspapers/magazines. It has been observed by this Court in Kusum Lata v. Union of India, (2006) 6 SCC 180 that newspaper reports do not constitute evidence. This Court also observed that the writ petition should be dismissed with costs so that the message goes in the right direction that a petition filed by the oblique motive does not have the approval of courts. 255. As we are deciding 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 wer....
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....be made out is that the fundamental rights of the two convicts have been violated. The two convicts could, if so minded, have raised the contention in the earlier proceedings but a third party, a total stranger to the trial commenced against the two convicts, cannot be permitted to question the correctness of the conviction recorded against them. If that were permitted any and every person could challenge convictions recorded day in and day out by courts even if the persons convicted do not desire to do so and are inclined to acquiesce in the decision. If the aggrieved party invokes the jurisdiction of this Court under Article 32 of the Constitution, that may stand on a different footing as in the case of A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602. However, we should not be understood to say that in all such cases the aggrieved party has a remedy under Article 32 of the Constitution. Unless an aggrieved party is under some disability recognised by law, it would be unsafe and hazardous 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 acc....
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.... agents as a motive or reward. The CBI had moved an application before the learned Judge, Delhi, for the issuance of a letter rogatory to the Swiss authorities for assistance in conducting an investigation, which request was conceded. An advocate, Shri Harinder Singh Chowdhary, filed a criminal revision application before the High Court of Delhi for quashing the FIR and the letter rogatory on certain grounds. Several questions of law and fact were raised in support of the challenge. The High Court came to the conclusion that the said third party litigant had no 'locus standi' to maintain the action and so also the interveners had no right to seek impleadment/intervention in the said proceeding. However, the learned Judge took suo motu cognizance of the matter and for reasons stated in his order directed issue of show cause notice to the CBI and the State why the FIR should not be quashed. On appeal, this Court came to the conclusion that the learned Judge in 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....
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....ly and minutely and the conspiracy between accused persons has been found established. There is voluminous evidence discussed in criminal appeals decided today vide separate judgment with respect to the complicity of the accused persons in the offence. It cannot be said that investigation was unfair, lopsided, botched up or misdirected in any manner whatsoever, as had been observed by the High Court in the judgment which we have set aside. It is surprising that the observations of the High Court have been heavily relied upon in spite of mentioning the fact that the appeal was pending. In all fairness, such petition ought not to have been filed by CPIL at the instance of accused, it is clearly misused of Forum of PIL. Only an application could have been preferred by the accused persons or by the petitioner or any other interested person in the criminal appeals. Even otherwise, we have not found on merits any material or ground worthy to direct further 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 inc....
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....rference in course of justice. 265. We have dealt with on merits the various submissions raised by the petitioner as to the falsity of the case of the prosecution and investigation in criminal appeals and have found that on merits the submissions raised to cast doubt on prosecution case by CPIL are baseless vide detailed discussion which we have made while dealing with the criminal appeals decided today by separate judgment in which we have reiterated the judgment of conviction recorded by the Trial Court. 266. During the course of arguments, we had put a query to Mr. Prashant Bhushan, learned counsel appearing on behalf of CPIL, how he can appear as counsel in the case filed by CPIL as he admittedly is a member of the executive committee of CPIL. In view of the rule of professional ethics framed by the Bar Council of India contained in section I of Chapter II of Part VI, Rule 8 is extracted hereunder: "8. An advocate shall not appear 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. "Executi....
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....iled bona fide. Even otherwise, the petition is bereft of merit. It raises the mainly same questions which have been dealt with in the appeal. There is no such further material so as to direct further investigation or re-investigation in the case. The matter should have rested finally as the petition filed by the family members also stands dismissed by this Court raking up of the matter, again and again, is not permissible and was wholly unwarranted in the facts and circumstances of the case. The same amounts to political vendetta. The petition is thus liable to be dismissed. CONCLUSION CRIMINAL APPEAL NOS.140, 142-146 AND 149-151 OF 2012 270. In view of the aforesaid discussion, we restore the conviction and sentence imposed by the Trial Court on A-1 (Mohmed Asgar Ali) (Criminal Appeal No. 149 of 2012), A-4 (Kalim Ahmed) (Criminal Appeal No. 142 of 2012), A-5 (Anas Machiswala) (Criminal Appeal No. 145 of 2012), A-6 (Mohmed Yunus Sareshwala) (Criminal Appeal No. 146 of 2012), A-7 (Rehan Puthawala) (Criminal Appeal No. 143 of 2012), A-8 (Mohmed Riyaz @ Goru) (Criminal Appeal No. 144 of 2012), A-9 (Mohmed Parvez Sheikh) (Criminal Appeal No. 140 of 2012), A-10 (Parvez Khan Pathan)....