●The case was originally filed in the Court of Sessions, Meerut, Uttar Pradesh, before being appealed to the High Court of Judicature at Allahabad and later reaching the Supreme Court ...
No Acts & Articles mentioned in this case
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2295-2296 OF 2010
Adambhai Sulemanbhai Ajmeri & Ors. …Appellants
Versus
State of Gujarat ...Respondent
WITH
CRIMINAL APPEAL NO. 45 OF 2011
J U D G M E N T
V.GOPALA GOWDA, J.
These appeals are filed by the convicted accused-
appellants as they are aggrieved by the conviction and
sentences awarded to them by the Special Court (POTA),
Crl.A.Nos.2295-2296 of 2010 - 2-
and confirmed by the High Court of Gujarat for the
offences punishable under the provisions of the Indian
Penal Code, 1860 (hereinafter ‘IPC’), the Arms Act,
1959, the Explosive Substances Act, 1908 and the
Prevention of Terrorism Act, 2002 (hereinafter ‘POTA’)
as per list in para 2 below, for the attack on the
Akshardham temple in Gandhinagar between the afternoon
of 24.09.2002 and early morning of 25.09.2002,
wherein 33 people were killed and more than 85 people
were injured.
2. The following list outlines the charges against
each of the accused and the conviction and sentences
meted out to them by the Special Court (POTA),
Ahmedabad, and upheld by the High Court of Gujarat.
Accused no.1 is not in appeal before us. The appellant
nos. 1-5 before us will hereinafter be referred to as
per their position as accused i.e A-2 to A-6.
Appellant no.4, Abdullamiya Yasinmiya Kadri (A-5) has
Crl.A.Nos.2295-2296 of 2010 - 3-
already undergone 7 years out of the 10 years of
sentence awarded by the learned Judge, Special Court
(POTA) and by order dated 03.12.2010, this Court
directed him “to be released to the satisfaction of
the trial court.” The following list outlines the
charges, conviction and sentences awarded to each of
the accused-appellants.
All the accused persons had been charged with offences
under the following sections by the learned Judge,
Special Court (POTA):
1. Section 120B of the IPC.
2. Section 120B of the IPC read with Sections 121,
123, 124A, 153A, 302 and 307 of the IPC.
3. Section 120B of the IPC read with Sections
25(1AA) 27 and 29 of the Arms Act.
4. Section 120B of the IPC read with Sections 3, 4
and 6 of the Explosive Substances Act.
5. Section 120B of the IPC read with Sections
3(1)(a) and (b), 3(3), 4, 20 and 21(2) (b) of the
POTA.
Crl.A.Nos.2295-2296 of 2010 - 4-
6. Additionally, A-2 had been charged with offence
under Section 452 of the IPC (for entering
Akshardham illegally).
7. Additionally, A-6 had been charged under Section
135(1) of the Bombay Police Act, 1951 (for
illegally possessing arms and explosives despite
notification, in force, issued by Gandhinagar
District Police Official).
The Special Court (POTA) framed the aforesaid charges
and convicted and sentenced the accused persons as per
nature of offences detailed hereunder:
Altaf Malek (hereinafter ‘A-1’)
• Gathered the Indian Muslims who had gone to Saudi
Arabia.
• Associated with banned organizations like
Lashkar-e-Toiba.
• Collected funds from Jaish-e-Mohammed.
Convicted and sentenced under:
¾ Section 22 (1) of POTA. Rigorous Imprisonment for
5 years with a fine of Rs.5,000/- and in default
of payment of fine, simple imprisonment for 6
months. He was acquitted of rest of the charges.
Crl.A.Nos.2295-2296 of 2010 - 5-
Adambhai Ajmeri (hereinafter ‘A-2’)
• Talked to locals to get idea about city, and to
get idea about lodging etc. They took him to A-4
and A-5.
• Received money through Havala.
• Meeting on 24.06.2002 with witness at G Royal
Hotel, Hyderabad. Absconding accused gave him Rs
3,500
• Picked up the two assailants (hereinafter
referred to as the ‘ fidayeens’) from the railway
station and gave them shelter.
• Moved around in an auto rickshaw and showed the
fidayeens places around the city, where strikes
could be done and also arranged for their night
stay at his brother’s place.
• Was present at Akshardham at the time of the
incident and exited when the firing started.
Convicted and sentenced under:
¾ Section 3 (3) of POTA- Life imprisonment and a
fine of Rs.10,000/- and in case of default,
simple imprisonment for 2 years.
¾ Section 3 (3) read with Section 5 of POTA-
Rigorous imprisonment for 10 years and a fine of
Rs.5,000/- and in case of default, simple
imprisonment for 1 year.
¾ Section 22 (2) (a) and (b) of POTA - Rigorous
imprisonment for 10 years and fine of Rs.20,000/-
and in case of default, simple imprisonment for 1
year.
¾ Section 120B IPC read with Section 4 of Explosive
Substances Act - Rigorous imprisonment for 10
Crl.A.Nos.2295-2296 of 2010 - 6-
years and fine of Rs.10,000/- and in case of
default, simple imprisonment for 2 years.
¾ Section 120B IPC read with Sections 3 and 6 of
Explosive Substances Act - life imprisonment and
fine of Rs.20,000/-.
¾ Section 120B IPC read with Section 302 IPC –
Death penalty (hanging by neck till death) and
fine of Rs.25,000/-.
¾ Section 120B IPC read with Section 307 IPC – life
imprisonment and fine of Rs.20,000/- and in case
of default, simple imprisonment for 1 year.
¾ Section 120B IPC read with Section 27 of Arms
Act- Rigorous imprisonment for 7 years and fine
of Rs.10,000/- and in case of default of fine,
simple imprisonment for 1 year.
¾ The accused was acquitted of the rest of the
charges.
Mohammed Salim Hanif Sheikh (hereinafter ‘A-3’)
• Gathered Indian Muslims working in Saudi Arabia
at his home and showed them instigating videos.
• Is a member of Jaish-e-Mohammed and Lashkar-e-
Toiba.
• Made instigating speeches with the intention of
endangering the unity and integrity of India.
• Became a member of Jaish-e-Mohammed and took
funding from them.
Convicted and sentenced under:
¾ Section 3 (3) of POTA- Life imprisonment and a
fine of Rs.10,000/- and in case of default,
simple imprisonment for 2 years.
Crl.A.Nos.2295-2296 of 2010 - 7-
¾ Section 3(3) read with section 5 of POTA,
Rigorous imprisonment for 10 years and a fine of
Rs.5,000/- and in case of default, simple
imprisonment for 1 year.
¾ Section 20 of POTA - Rigorous imprisonment for 5
years and fine of Rs.20,000/- and in case of
default, rigorous imprisonment for 1 year.
¾ Section 21 (2) (b) of POTA - Rigorous
imprisonment for 10 years and a fine of
Rs.10,000/- and in case of default, simple
imprisonment for 1 year.
¾ Section 22 (1) (a) of POTA - Rigorous
imprisonment for 10 years and a fine of
Rs.20,000/- and in case of default, simple
imprisonment for 2 years.
¾ Section 120B IPC read with Section 4 of Explosive
Substances Act - Rigorous imprisonment for 10
years and a fine of Rs.10,000/- and in case of
default, simple imprisonment for 2 years.
¾ Section 120B IPC read with Sections 3 and 6 of
Explosive Substances Act - life imprisonment and
fine of Rs.20,000/-.
¾ Section 120B IPC read with Section 302 IPC – life
imprisonment till his natural life (till he is
alive) and a fine of Rs.25,000/-.
¾ Section 120B IPC read with Section 307 IPC – life
imprisonment and fine of Rs.20,000/- and in case
of default, simple imprisonment for 1 year.
¾ Section 120B IPC read with Section 121A IPC
Rigorous imprisonment for 10 years and a fine of
Rs.5,000/- and in case of default, simple
imprisonment for 1 year.
¾ Section 120B IPC read with Section 153A IPC
Rigorous imprisonment for 3 years and a fine of
Rs.5,000/- and in case of default, simple
imprisonment for 6 months.
Crl.A.Nos.2295-2296 of 2010 - 8-
¾ Section 120B IPC read with Section 27 of Arms
Act, Rigorous imprisonment for 7 years and a fine
of Rs.10,000/-, and in case of default, simple
imprisonment for 1 year.
¾ The accused was acquitted of the rest of the
charges.
Abdul Qaiyum Muftisaab Mohmed Bhai (hereinafter ‘A-4’)
• Gave shelter to the fidayeens.
• Wrote the two Urdu letters recovered from the
fidayeens, which spoke of instigating violence
and atrocities and communal riots.
Convicted and sentenced under:
¾ Section 3 (3) of POTA- Life imprisonment and a
fine of Rs.10,000/- and in default of payment,
simple imprisonment for 2 years.
¾ Section 3 (3) read with section 5 of POTA -
Rigorous imprisonment for 10 years and a fine of
Rs.5,000/- in default of payment of fine, simple
imprisonment for 1 year.
¾ Section 120B IPC read with Section 4 of Explosive
Substances Act - Rigorous imprisonment for 10
years and a fine of Rs.10,000/- in default of
payment of fine, simple imprisonment for 2 years.
¾ Section 120B IPC read with Sections 3 an 6 of
Explosive Substances Act - life imprisonment and
a fine of Rs.20,000/-, in default of payment of
fine to recover the amount in accordance with
law.
¾ Section 120B IPC read with Section 302 IPC –
Death penalty (hanging by neck till death) and a
Crl.A.Nos.2295-2296 of 2010 - 9-
fine of Rs.25,000/- in default of payment of fine
to recover the amount in accordance with law.
¾ Section 120B IPC read with Section 307 IPC – life
imprisonment and fine of Rs.20,000/- in default
of payment of fine, a simple imprisonment for 1
year.
¾ Section 120B IPC read with Section 153A IPC
Rigorous imprisonment for 3 years and a fine of
Rs.5,000/- in default of payment of fine, a
simple imprisonment for 6 months.
¾ Section 120B IPC read with Section 27 IPC of Arms
Act, Rigorous imprisonment for 7 years and a fine
of Rs.10,000/-, in default of fine a simple
imprisonment for 1 year.
¾ Section 120B IPC read with Section 121A IPC
Rigorous imprisonment for 10 years and a fine of
Rs.5,000/- in default of payment of fine, a
simple imprisonment for 1 year.
¾ The accused was acquitted of the rest of the
charges.
Accused-5 Abdullamiya Yasinmiya (hereinafter ‘A-5’)
• Member of Jaish-e-Mohammed and Lashkar-e-Toiba.
• Gave shelter to the fidayeens.
• Dropped them near Kalur Railway Station, had also
put them in an ambassdor ca r to take them to the
temple.
Convicted and sentenced
¾ Section 3 (3) of POTA- Rigorous imprisonment for
10 years and a fine of Rs.10,000/- and in default
of payment, simple imprisonment for 2 years.
¾ The accused was acquitted of the rest of the
charges.
Crl.A.Nos.2295-2296 of 2010 - 10-
Accused-6 Chand Khan (hereinafter ‘A-6’)
• Met the dead terrorists, also bought an
ambassador car worth Rs 40,000 and made secret
compartment for storing weapons and explosives.
• Came from Ahmedabad to Bareilly with explosives,
moved the fidayeens in an auto, and helped to
transfer the weapons.
• Received Rs 30,000/- from Zuber (a dead
terrorist, killed in a separate encounter)
Convicted and sentenced under:
¾ Section 3 (3) of POTA- Life imprisonment and a
fine of Rs.10,000/- in default of payment of
fine, simple imprisonment for 2 years.
¾ Section 3 (1) of POTA, life imprisonment and a
fine of Rs.25,000/- in default of payment of
fine, the same shall be recovered in accordance
with law.
¾ Section 3 (3) read with Section 5 of POTA,
Rigorous imprisonment for 10 years and fine of
Rs.5,000/- in default of payment, simple
imprisonment for 1 year.
¾ Section 120B IPC read with Sections 3 an 6 of
Explosive Substances Act - life imprisonment and
a fine of Rs.20,000/-, in default of payment of
fine to recover the amount in accordance with
law.
¾ Section 120B IPC read with Section 4 of Explosive
Substances Act - Rigorous imprisonment for 10
years and a fine of Rs.10,000/- in default of
payment of fine, simple imprisonment for 2 years.
Crl.A.Nos.2295-2296 of 2010 - 11-
¾ Section 120B IPC read with Section 302 IPC –
Death penalty (hanging by neck till death) and a
fine of Rs.25,000/- in default of payment of fine
to recover the amount in accordance with law.
¾ Section 120B IPC read with Section 307 IPC – life
imprisonment and fine of Rs.20,000/- in default
of payment of fine, simple imprisonment for 1
year.
¾ Section 120B IPC read with Section 25 (1AA) of
Arms Act - rigorous imprisonment for 7 years and
a fine of Rs.10,000/-, in default of fine a
simple imprisonment for 2 years.
¾ The accused was acquitted of the rest of the
charges.
3. The aforesaid sentences imposed upon each accused
person were ordered to run concurrently. The accused
persons were allowed to set off the sentences for the
time spent in custody, wherever applicable.
Various sentences of rigorous imprisonment, life
imprisonment and death sentence as detailed in the
list above were passed against the accused persons by
the Special Court (POTA) in POTA case No. 16 of 2003
by the judgment dated 01.07.2006, which was affirmed
by the High Court of Gujarat at Ahmedabad by the
impugned judgment and order dated 01.06.2010 in
Crl.A.Nos.2295-2296 of 2010 - 12-
Criminal Confirmation Case No. 2 of 2006 along with
Criminal Appeal Nos. 1675 of 2006 and 1328 of 2006.
4. Aggrieved by the said impugned judgment and order
of the High Court of Gujarat, all the accused persons
except A-1 have appealed before this Court challenging
the correctness of their conviction and sentences
imposed upon them, urging various legal and factual
grounds in support of the questions of law raised by
them.
5. Certain relevant facts are stated herein below for
the purpose of examining the correctness of the
findings and reasons recorded by the High Court in the
impugned judgment and order while affirming the
findings and reasons recorded in the judgment and
order passed by the Special Court (POTA). The facts of
the incident leading up to the case, the arrest of the
Crl.A.Nos.2295-2296 of 2010 - 13-
accused persons and their trial and conviction are
detailed below:
On 24.09.2002 at about 4.30 p.m., two persons
armed with AK-56 rifles, hand grenades etc. entered
the precincts of the Swaminarayan Akshardham temple
situated at Gandhinagar, Gujarat from gate No.3. They
fired indiscriminately towards the children, games and
rides and started throwing hand grenades. While
continuing the attack, they reached gate No. 2 of the
temple and fired at the worshippers, devotees,
volunteers and visitors and then proceeded towards the
main building. Since the main door of the temple was
locked, they moved towards the Sachchidanand
Exhibition Hall, killing and injuring women, children
and others. Thereafter, immediately CRPF personnel,
Deputy Inspector General (DIG), Gujarat State and
other senior police officers along with SRP commandos
rushed to the place of offence to return the fire.
Ambulances were called and other police forces were
Crl.A.Nos.2295-2296 of 2010 - 14-
also urgently called at the place. The team led by
Mr. V.B. Rabari - Inspector General of Police, Mr.
R.B. Brahambhatt - Deputy Superintendent of
Police, Gandhinagar and four other special reserve
police commandos climbed on the roof. By that time,
the terrorists (fidayeens) once again started firing.
A fierce gun battle ensued, and there was also a bomb
blast.
6. In the meantime, a team of National Security Guard
(NSG) commandos was summoned from New Delhi. They
arrived by a chartered flight and took control at
about 12.00 at midnight. After understanding the
topography of the area, they began the counter attack
against the fidayeens. Exchange of firing continued
and lasted for nearly 5 hou rs which went on into the
wee hours of 25.9.2002. Eventually both of them were
killed in the early morning hours as they succumbed to
the injuries received in the said operation. It is
Crl.A.Nos.2295-2296 of 2010 - 15-
the further case of the prosecution that a large
quantity of fire arms and explosive substances were
carried by the two fidayeens. Some of the explosives
were seized along with other articles from the
premises. The attack resulted in the killing of 33
persons, including NSG commandos, personnel from the
State Commando Force and three other persons from SRP
group. Nearly 86 persons, including 23 police officers
and jawans were grievously injured. Those who were
injured or killed during the attack were removed to
Sola Civil Hospital and to Civil Hospital,
Ahmedabad.
7. A complaint was lodged by the then ACP Mr. G.L.
Singhal, (Prosecution Witness (hereinafter ‘PW’)-126)
on 24.09.2002 at the Gandhinagar Sector 21 police
station. After the possession of the temple premises
was handed over from NSG Commandos to the state
police, an FIR was registered being I
st
CR No. 314 of
Crl.A.Nos.2295-2296 of 2010 - 16-
2002 on 25.09.2002 for the offences punishable under
Sections 120-B, 302, 307, 153-A, 451 of the IPC by PW-
126. A Report under Section 157 of the Code of
Criminal Procedure (hereinafter ‘CrPC’) was also
prepared. The same was lodged against the unknown
persons aged between 20 to 25 years and the
investigation was handed over to Police Inspector Mr.
V.R. Toliya (PW-119) of the local Crime Branch,
Gandhinagar.
It is the case of the prosecution that some
articles were received from Brigadier Raj Sitapati,
Head of the NSG, which were collected from the
clothes of the dead bodies of the fidayeens, and
according to them, these articles included two letters
written in Urdu language, allegedly found in the
pocket of each one of the fidayeens.
8. The investigation of the crime continued for
sometime under the said Police Inspector and
Crl.A.Nos.2295-2296 of 2010 - 17-
thereafter, the Anti Terrorist Squad (ATS) was
directed by the Director General of police, State of
Gujarat to take over the investigation of the case.
The investigation continued but nothing fruitful came
out of the attempt of the investigating officer to
trace the accused persons who were involved in the
conspiracy and other offences committed by two
fidayeens. The investigation of the case was
transferred to ACP Singhal (PW-126) of the Crime
Branch who was the complainant in the case, on
28.08.2003 at the direction of the DGP from Mr. K.K.
Patel of ATS with 14 files, each with index.
9. On 29.08.2003 at 2 p.m., A-1 to A-5 were arrested
by PW- 126 and the matter was investigated further.
The prosecution alleged that the criminal conspiracy
was hatched at Saudi Arabia, Hyderabad, Ahmedabad and
Jammu and Kashmir by some clerics, along with a few
others, as they had become spiteful after the
Crl.A.Nos.2295-2296 of 2010 - 18-
incidents of riots which had taken place in the state
of Gujarat after the Godhra train burning incident in
2002.
Subsequently, A-6 was also taken into custody and
arrested by the Gujarat police on 12.09.2003 from the
State of Jammu and Kashmir. It is also the case of
the prosecution that after investigation, the matter
was concluded and the charge sheet was filed against
all the six accused persons by the Crime Branch, after
obtaining necessary sanction from the State Government
for the purpose of taking cognizance of the offence in
compliance with Section 50 of POTA. In the said charge
sheet, 26 persons were shown as absconding accused.
The five accused persons, who were arrested on
29.08.2003, remained in the police custody, which had
been sought from the Judicial Magistrate, Gandhinagar
on 29.08.2003. Provisions of POTA were invoked by the
police on 30.08.2003. The chargesheet was filed before
the designated Court constituted under Section 23 of
Crl.A.Nos.2295-2296 of 2010 - 19-
POTA, on 25.11.2003. It is further the case of the
prosecution that the chargesheet was filed by the
Investigating Officer after obtaining necessary
sanction order as required under Section 50 of POTA
from the government of the state of Gujarat vide
sanction order dated 21.11.2003 [Exhibit (hereinafter
‘Ex.’)498].
10. It is the case of the prosecution that the
confessional statements of the accused persons were
recorded by the Superintendent of Police, Sanjaykumar
Gadhvi (PW-78), as provided under Section 32 of
the POTA by following the mandatory procedure.
11. There were 376 witnesses shown in the
chargesheet. Out of those, 126 witnesses were examined
by the prosecution to prove the charges against the
accused persons. The prosecution witnesses were
examined on various dates and through them, various
Crl.A.Nos.2295-2296 of 2010 - 20-
Exs. namely, 117 to 679 were marked. The details of
the names of the prosecution witnesses and the dates
of examination and the marking of exhibits to them are
described in the judgment passed by the Special Court
(POTA) and the same need not be adverted to in this
judgment as it is unnecessary.
12. The Special Court (POTA) had formulated 8 points
for its consideration and answered the same in the
judgment by accepting the case of the prosecution and
passed an order of conviction against all the accused
persons and sentenced A-2, A-4 and A-6 to death, A-3
to life imprisonment, A-1 to rigorous imprisonment for
5 years and A-5 to rigorous imprisonment for 10 years.
13. A reference was made to the High Court of Gujarat
under Section 366 of the CrPC for confirmation of the
death sentence imposed upon A-2, A-4 and A-6. All the
Crl.A.Nos.2295-2296 of 2010 - 21-
accused persons appealed before the High Court against
their conviction and sentences imposed on them.
14. The Division Bench of the High Court, after
adverting to the charges framed against each one of
accused persons under the provisions of POTA,
Explosive Substances Act, Arms Act and IPC, and the
punishment imposed for each one of the offences under
the aforesaid provisions of the Acts and Code,
confirmed the order passed by the Special Court
(POTA).
Briefly stated, the High Court held that the attack
was an act of retaliation against the incidents of
communal riots which took place in the State of
Gujarat in the months of March and April, 2002 during
which several Muslim persons had lost their lives and
properties. The High Court stated:
“Therefore, the terrorist attack was
conceived by some unknown persons of foreign
origin presumably of Pakistan and Saudi
Arabia. The Indian Muslims residing in Saudi
Crl.A.Nos.2295-2296 of 2010 - 22-
Arabia were instigated to retaliate for the
incidents which happened during the months
of March and April, 2002 and were enticed to
fund the terrorist attack. The Fidayeens
were recruited by the said masterminds who
traveled to Ahmedabad by train from Kashmir
via Bareily and they were provided with
rifles, hand grenades, gun-powder and other
weapons. The said accused persons joined
them in providing necessary hide-outs in the
city of Ahmedabad and also provided them
transport to go in and around the city of
Ahmedabad and helped them in selecting the
place and time for carrying out the attack.
The accused persons also helped in giving
them last rites of namaaz for their well
being (Hifazat).”
15. The High Court further held that a criminal
conspiracy was hatched to strike terror amongst the
Hindus in the State of Gujarat. The accused persons
and the absconding accused, were in connivance, had
gathered the Indian Muslims working in the towns of
Jiddah, Shiffa and Riyadh of Saudi Arabia at the
residence of A-3. A-1, A-3 and A-5 and the absconding
accused Nos. 3 to 5 and 12 to 22, who at the instance
of the ISI of Pakistan became members of the terrorist
Crl.A.Nos.2295-2296 of 2010 - 23-
outfit “Jaish-e-Mohammad”, and collected funds for it
to spread terror in the State of Gujarat. They showed
the cassettes of the loss caused to the Muslims in the
State of Gujarat and the gruesome photos and the
videos of the dead bodies of Muslim men, women and
children, at the residence of A-3; distributed the
cassettes and made enticing statements to damage the
unity and integrity of India and to cause loss to the
person and property of Hindu people. It was also
observed by the High Court that to carry out the
criminal conspiracy, the absconding accused No. 16
visited the relief camps run at Ahmedabad during the
communal riots.
16. The statements of the injured witnesses were
examined, which is also adverted to in the impugned
judgment and the High Court stated that the casualties
are also proved by the postmortem notes Exs. 170 and
171 and by examining various doctors and prosecution
witnesses.
Crl.A.Nos.2295-2296 of 2010 - 24-
17. The High Court in the impugned judgment also noted
that there is a reference made to the injuries
sustained by the individuals which is proved by the
medical certificates and the same have been proved by
the doctors. The High Court also referred to handing
over of the list (Ex.524), recovered from the bodies
of fidayeens, including notes in Urdu, by Maj. Jaydeep
Lamba (PW-91) to PW-126 under Panchnama (Ex. 440) and
the same is proved by the Panch-Vinodkumar Valjibhai
Udhecha (PW-74.) Reference of recovery of white
coloured AD Gel pen from the scene of offence under
Panchnama (Ex.650) is proved by the Panch-Hareshbhai
Chimanlal Shah (PW-11 : Ex.649). The said pen was sent
to the Forensic Science Laboratory (in short ‘FSL’)
under Panchnama (Ex.621). The FSL report (Ex.668)
confirmed that the Urdu writings (Ex. 658) were in the
same ink as that of the muddamal pen. There was also
reference made of recovery of muddamal articles in the
afternoon of 25.9.2002 (84 in number) from the temple
Crl.A.Nos.2295-2296 of 2010 - 25-
precincts under Panchnama (Ex.396) which is proved by
panch-Prakashinh Ratansinh Waghela (PW-71 : Ex.395).
There was further reference of recovery of empty
bullet of Rifle-303, Rifle Butt No. 553, disposal of
left out hand grenades, recovery of empties from the
fire arms of the SRP Jawans, the empties produced by
I.G. Shri V.V. Rabari, production and sealing of
Dongri of the police constable, recovery of bullets
from the injured witnesses, production of clothes of
injured PSI-Digvijaysinh Chudasama and injured
witness, the splinters of hand grenades and bullets
recovered from the injured and these are proved by the
panchnama Exs. 553, 106, 121, 107, 596, 108 597, 109,
110, 111 and 160. Also, the reference of recovery of
the disputed signature of witness-Abdul Wahid (PW-56)
in the entry register of Hotel G. Royal Lodge,
Naampalli, Hyderabad and the collection of his
specimen signature collected under Panchnama (Ex.583)
is proved by Panch-Manubhai Chhaganlal Thakker (PW-
Crl.A.Nos.2295-2296 of 2010 - 26-
101:Ex.581) and collection of the natural signature of
the witness Abdul Wahid (PW-56) under Panchnama
(Ex.684) is proved by the investigating officer ACP
Singhal (PW-126 : Ex.679). Reference was made to the
Panchnama (Ex.682) proved by Panch-Dipakshinh
Ghanshyamsinh Chudasama (PW-62: Ex.344) regarding
seizure of Auto-rickshaw No. GRW-3861 wherein the
fidayeens visited various places and the route they
had taken in Auto-rickshaw on 22.09.2002 and the route
to Akshardham Temple on 24.09.2002, was traced by A-2.
Reference was also made of the house of Abbas (the
brother of A-2) in which fidayeens and Ayub
(absconding accused No. 23) were provided lodging, was
identified by A-2 under Panchnama (Ex.580) proved by
the Panch-Jignesh Arvindbhai Shrimali (PW-100
:Ex.579). There is also reference of seizure of
Panchnama (Ex.336) of the Passport and a piece of
paper containing telephone numbers, a telephone diary
and electricity bill of February, 2003 of A-2 proved
Crl.A.Nos.2295-2296 of 2010 - 27-
by the Panch-Santosh Kumar R. Pathak (PW-59 :Ex.335).
The panchnama (Ex.446) of collection of the natural
signature of A-2 is proved by the Panch-Mukeshbhai
Natwarlal Marwadi (PW-75:Ex.445) and recovery of
specimen handwriting of A-2 under Panchnama (Ex.448)
is proved by Panch-Dineshbhai Chunaji Parmar (PW-
76:Ex.447). There is also panchnama of seizure of
recovery of Railway ticket(Ex.589) from Ahmedabad to
Mumbai dated 22.04.2002, communication regarding
cancellation of ticket dated 22.04.2002, telephone
charge slips and the expense account for mattresses,
fan, petrol, food and hotel from the residence of A-2
has been proved by the Panch-Navinchandra Bechardas
Kahaar (PW-103 : Ex.585). There is also seizure of the
Accounts Diary from Mehboob-ellahi Abubakar Karim (PW-
82) to prove receipt of Rs.10,000/- and Rs.20,000/-
sent from Riyadh and paid to the A-2 under the Code
“JIHAD” under Panchnama (Ex.481), which is proved by
the Panch-Bharatbhai Babulal Parmar (PW-102 : Ex.584).
Crl.A.Nos.2295-2296 of 2010 - 28-
There is recovery of natural handwriting (Ex.613) of
A-4 from a diary identified by him, which was
recovered under Panchnama (Ex.309) and proved by the
Panch-Ashok Manaji Marwadi (PW-49 :Ex.308). Collection
of the specimen writing (Ex.698) of A-4 under
Panchnama (Ex.334) is proved by the Panch-Arvindbhai
Jehabhai Chavda (PW-58 : Ex.333).
The High Court stated that the handwriting expert
Jagdishbhai Jethabhai Patel (PW-89 : Ex.507) has
proved that the disputed writings marked A/5/A and
A/5/B (Urdu writings Ex.658) were the same as the
natural handwriting and the specimen writing of A-4.
The report (Ex.511), which is the opinion of the
handwriting expert, is also confirmed by the expert
report (Mark-T) of R.K. Jain, Directorate of Forensic
Sciences, Hyderabad and in the presence of the Panch -
Bhikhaji Bachuji Thakore (PW-6: Ex.343). Under
Panchnama (Ex.681), A-4 and A-5 identified the place
where the last namaaz was performed for the fidayeens
Crl.A.Nos.2295-2296 of 2010 - 29-
and the place where the weapons were packed. The
witness identified A-4 and A-5 in the court. Reference
was made to the recovery of muddamal-ambassador Car
No. KMT-413 from the compound of SOG Camp, Srinagar,
J&K. The existence/disclosure of concealed cavity
under the rear seat of the car in Panchnama (Ex.671),
is proved by the Police Inspector-Shabirahmed (PW-123
: Ex.670) and the Assistant Sub-Inspector Gulammohamad
Dar (PW-124 : Ex.673). Reference was made of the
disputed handwriting of Yusufbhai Valibhai Gandhi (PW-
57) from entry No.81 dated 23.09.2002 and his natural
handwriting from entry Nos. 224, 225 and 226 of
24.05.2003 and 26.05.2003 from the passenger register
of Gulshan Guest House in Panchnama (Exs.317 and 319)
which have been proved by the Panch-Poonambhai
Narshibhai Parmar (PW-54: Ex.318) and Panch-Ashok
Sahadevbhai Kahaar (PW-53: Ex.316) respectively. The
Panch-Poonambhai Narshibhai has also proved recovery
of the disputed signature of A-6, from column No.13 of
Crl.A.Nos.2295-2296 of 2010 - 30-
the aforesaid entry No.81. The collection of specimen
handwriting of Yusuf Gandhi (PW-57) in Panchnama
(Ex.321) is proved by Panch-Sajubha Adarji Thakore
(PW-55:Ex.320). The High Court has made further
reference that A-6 identified STD booths used by him
during his stay in Ahmedabad on 23.09.2002 and
24.09.2002 under Panchnama (Ex.342) proved by Panch-
Prahlad Bagadaji Marwadi (PW-60 : Ex.341). Further,
there is reference to A-6, who identified the places
visited by him, and the way to Gulshan Guest House
from Railway Station under Panchnama (Ex.591) proved
by Panch-Natwarbhai Fakirchand Kahar (PW-104 :
Ex.590). Reference is also made by the High Court of
the Taxi Driver, Rajnikant (Rajuji) Thakore, who
identified the dead bodies of the fidayeens under
Panchnama (Ex.130) which is proved by Panch-Bhupatsinh
Chandaji Waghela (PW-5 : Ex.129). The route of the
fidayeens from Kalupur Railway Station to Akshardham
gate no.3 is identified by Taxi driver Rajnikant
Crl.A.Nos.2295-2296 of 2010 - 31-
Thakore (PW-68) under Panchnama (Ex.131) proved by
Panch-Bhupatsinh Andaji Waghela (PW-5: Ex.129).
18. From paragraph 75 onwards in the impugned
judgment, the Division Bench of the High Court has
referred to the judgments of this Court. Reliance was
placed on the cases of S.N. Dube v. N.B. Bhoir & Ors.
1
and Lal Singh etc.etc. v. State of Gujarat & Anr.
2
which made reference to the confessional statement
recorded under Section 15 of Terrorist and Disruptive
Activities (Prevention) Act,1987 (hereinafter ‘TADA’),
wherein this Court rejected the contention urged on
behalf of the accused persons that the confessional
statements were inadmissible in evidence because (a)
the statements were recorded by the investigating
officer or the officers supervising the investigation
(b) the accused persons were not produced before the
judicial Magistrate immediately after recording the
1
(2000) 2 SCC 254
2
(2001) 3 SCC 221
Crl.A.Nos.2295-2296 of 2010 - 32-
confessional statements and (c) guidelines laid down
in the case of Kartar Singh v. State of Punjab
3
were
not followed. Reliance was also placed by the High
Court on the case of State of Maharashtra v. Bharat
Chaganlal Raghani & Ors.
4
, wherein this Court held the
confessional statements of the accused persons to be
admissible in evidence. The Court further held that
confessional statements having been proved to be
voluntarily made and legally recorded, can be used
against all or some of the accused persons in the
light of other evidence produced in the case.
19. The High Court referring to the broad principles
covering the law of conspiracy as laid down in the
case of State of Tamil Nadu v. Nalini & Ors.
5
, and
also referring to Section 120-A of IPC which
constitutes the offence of criminal conspiracy, held
3
(1994) 3 SCC 569
4
(2001) 9 SCC 1
5
(1999) 5 SCC 253
Crl.A.Nos.2295-2296 of 2010 - 33-
that the acts subsequent to achieving an object of
criminal conspiracy may tend to prove that a
particular accused person was a party to the
conspiracy. Conspiracy is hatched in private or in
secrecy and it is rarely possible to establish a
conspiracy by direct evidence. Usually, both the
existence of the conspiracy and its objects have to be
inferred from the circumstances and the conduct of the
accused persons.
Further, reference was also made to the judgment in
the case of State of W.B. v. Mir Mohammad Omar &
Ors.
6
, wherein it was held that the courts should bear
in mind the time constraints on the police officers in
the present system, the ill equipped machinery they
have to cope with and the traditional apathy of
respectable persons towards them.
6
(2000) 8 SCC 382
Crl.A.Nos.2295-2296 of 2010 - 34-
The High Court also relied upon the case of Rotash v.
State of Rajasthan
7
, wherein this Court held that the
investigation was not foolproof but that defective
investigation would not lead to total rejection of the
prosecution case. Further, reference of State of M.P.
v. Mansingh
8
in the case of Rotash (supra) in support
of the aforesaid proposition of law.
20. The Division Bench of the High Court also referred
to the evidence of Asfaq Abdulla Bhavnagari (PW-50:
Ex.312) who had worked at Riyadh in Saudi Arabia and
whose statement was recorded by the police, which
according to the prosecution, led to the revelation of
the entire conspiracy.
21. The High Court further placed reliance upon the
statement of Mohammed Munaf Hajimiya Shaikh (PW-52 :
Ex.315) who gave evidence against A-2, A-4 and A-5
7
(2006) 12 SCC 64
8
(2003) 10 SCC 414
Crl.A.Nos.2295-2296 of 2010 - 35-
regarding running of relief camp in the State of
Gujarat and against his brother Abdul Rashid
Sulemanbhai Ajmeri (absconding accused No. 4).
According to the witness, A-5 and A-4 advised A-2 to
go ahead with the plan and gave telephone number of
one Nasir Doman to A-2. He identified A-2, A-4 and A-5
in the court.
22. The High Court also placed reliance on the
statement of Abdul Wahid (PW-56 : Ex.325), who
admitted that on 24.04.2002 he had gone to Hyderabad
with A-2 and that they had met Khalid (absconding
accused No. 16) there. According to this witness, the
said Abdul Raheman @ Abu Talah @ Khalid had made
arrangement for their lodging at Hotel G-Royal. He
also admitted to having met Ayub (absconding accused
No.23) at Hyderabad. He further admitted the disputed
signature in the hotel register (muddamal article no.
129) and the specimen signature (muddamal article no.
Crl.A.Nos.2295-2296 of 2010 - 36-
131) as that of his own. He also identified A-2 in the
court.
23. The High Court also placed reliance on the
statement of Mehboob-e-llahi Abubakar Karimi (PW-82)
who has admitted to transfer of money through him. He
also admitted the payment made to A-2 and identified
the muddamal Diary (article no. 106) and the entries
(Ex.477) and (Ex.478) made in respect of the aforesaid
transfer of money. The High Court further placed
reliance on the statement of Sevakram Bulaki (PW-97 :
Ex.563), owner of Hotel G. Royal Lodge, Hyderabad, who
supported the prosecution version and admitted to
having allotted Room No. 322 to two persons namely
Abdul Shaikh and A.S. Shaikh who came from Ghatkopar,
Bombay on 26.04.2002. He further admitted entry
(Ex.326) made in the entry register.
24. The High Court further referred to the statement
of A-1 (Ex.456) recorded before the Deputy
Crl.A.Nos.2295-2296 of 2010 - 37-
Commissioner of Police Zone-IV, Ahmedabad under
Section 32 of POTA, who admitted that he and other
Muslims from Gujarat, working at Riyadh used to meet
at the residence of A-3 and also admitted that one
Karim Annan Moulvi (absconding accused No. 20), who
was a native of Pakistan, also used to attend the
meetings. He also stated that he used to collect funds
in the name of Islam and was connected with Pakistani
Jihadi group “Sippa-e-Saheba” and had also become a
member of “Jaish-e-Mohammed”. The High Court also
stated that the confessional statement made by him is
supported by the evidence of Abdul Raheman Panara (PW-
51:Ex.314)
25. In paragraph 19 of the impugned judgment, the
Division Bench of the High Court examined the
admissibility of the confessional statements made by
A-1, A-2, A-3, A-4 and A-6 and their probative value
and held that the confessional statements were made by
the accused persons under Section 32 of POTA before
Crl.A.Nos.2295-2296 of 2010 - 38-
Sanjay Gadhvi, Deputy Commissioner of Police (Zone-IV)
(PW-78: Ex.452), Ahmedabad, who had been examined by
the prosecution. He had deposed before the Special
Court (POTA) about the manner in which the
confessional statements of the accused persons were
recorded. He also identified and proved their
confessional statements (marked as Exs. 454, 456, 458,
460 and 462). He stated before the court that the
provisions of POTA were explained to the accused
persons before their statements were recorded, and
further stated that he had warned them that their
statements may be used against them and that they were
not bound to make such statements before him.
26. The contention of the counsel for the accused that
the aforesaid statements have been recorded
mechanically by PW-78, without following the mandatory
procedural safeguards provided under Section 32 of
POTA, was rejected by the Division Bench of the High
Court, which held that the same have been recorded
Crl.A.Nos.2295-2296 of 2010 - 39-
after following the mandatory procedural safeguards
provided under Section 32 of POTA, after careful
examination of the above provisions of Section 32. The
High Court opined that sub-sections (4) and (5) of
Section 32 do not make it mandatory for the Police
(Recording Officer) to send the accused to judicial
custody after recording his confessional statement
under Section 32 of POTA.
27. The High Court came to the conclusion that the
Chief Judicial Magistrate is obliged to send the
accused to judicial custody only in case the accused
persons complain of ill-treatment or torture by the
police. All the accused persons who made confessional
statements appeared before the CJM (PW-99), and they made no complaint against the police and they had also
admitted the statement made by them. The Division
Bench of the High Court held that the aforesaid facts
tend to prove that none of the accused persons making
Crl.A.Nos.2295-2296 of 2010 - 40-
the confessional statement had been ill treated by the
police or had been oppressed or lured to do so.
28. Therefore, the High Court has concluded at
paragraph 131 of the impugned judgment that the
prosecution had proved that the confessional
statements of all the six accused persons were
properly recorded and procedural requirements under
the statute were complied with.
The Division Bench of the High Court further recorded
the concurrent finding at para 132 of the impugned
judgment that if the statutory safeguards are properly
followed by the police officer and the CJM, and other
facts and evidence on record indicate free will of the
accused persons in making the confessional statement,
such statement is admissible in evidence and can be
relied upon as a truthful account of facts of the
crime.
Crl.A.Nos.2295-2296 of 2010 - 41-
29. The High Court further examined the evidence of
Suresh Kumar Padhya CJM (PW-99 : Ex.568) who had
recorded the statement of A-1 and A-3 on the request
of PW-78, DCP on 18.09.2003, i.e a day after their
confessional statements were recorded. A-2 and A-4
made their confessional statements before PW-78 on
24.09.2003 and were sent to PW-99 on 25.09.2003. A-6
made his confessional statement on 05.10.2003 and was
sent to PW-99 on 06.10.2003. PW-99 had stated before
the Special Court (POTA) that accused persons had
stated before him that they were not ill treated by
the police. Their statements were read over to them.
With regard to cross examination of PW-99, he admitted
that he had not inquired from the accused persons as
to how long they were in the police custody nor did he
send them to judicial custody after recording their
statements. He deposed that he did not think it
necessary to send the accused persons to the judicial
custody. He has also admitted that he had not recorded
Crl.A.Nos.2295-2296 of 2010 - 42-
a specific statement that the accused persons had made
confessional statement of their own volition.
30. The High Court considered the evidence of PW-99
and came to the conclusion that the procedural
safeguards provided under Section 32 of POTA have been
followed by PW-78 to record the statements of the
accused persons as per the guidelines issued by the
Apex Court in various judgments particularly State of
Tamil Nadu v. Nalini & Ors. (supra) and Jayawant
Dattatraya Suryarao v. State of Maharashtra
9
. The High
Court came to the conclusion that this Court in the
case of Devender Pal Singh v. State of NCT of Delhi
10
held that the initial burden is on the prosecution to
prove that all the requirements under Section 15 of
TADA and Rule 15 of TADA Rules were complied with.
Once that is done and the prosecution discharges its
burden, then it is for the accused to satisfy the
9
(2001) 10 SCC 109
10
(2002) 5 SCC 234
Crl.A.Nos.2295-2296 of 2010 - 43-
court that the confessional statement was not made
voluntarily. The High Court opined that in present
case, each accused making confessional statement was
granted time of around 15 minutes to reflect over his
decision to make confessional statement, and the High
Court stated that there is no evidence on record to
suggest that 15 minutes time was inadequate so as to
render the confessional statements inadmissible in
evidence or unreliable as none of the five accused
persons while making the confessional statement had
asked for further time. None of them had made a
complaint of inadequacy of time before PW-99 and on
the other hand, admitted the confessions made by them.
31. The High Court further stated that the contention
made by the learned counsel for the accused persons
that they were kept in police custody for around 45
days before the official date of arrest, is absolutely
unbelievable. Further, sending the accused persons to
judicial custody after recording the confessional
Crl.A.Nos.2295-2296 of 2010 - 44-
statement is a matter of prudence and not a statutory
requirement. PW-99 had made a specific note on the
writings (Exs. 453, 455, 457, 459 and 461), that each
of the accused person was asked whether he had
suffered ill-treatment at the hands of the police and
that none of them had complained of ill-treatment by
the police. The Division Bench held the confessional
statements of the accused persons to be admissible in
evidence in order to prove their guilt, relying on
various decisions of this Court.
32. After recording such findings, the defence
evidence was also examined. Defence witness
(hereinafter ‘DW’) Nos. 1 to 7 have given evidence and
the same have been adduced by the defence to support
their claim that the accused persons were arrested
long before the official date recorded and that they
were tortured by the police to make the confessional
statements. The aforesaid evidence of DW-3 referred to
A-2 and A-3. The High C ourt referred to all the
Crl.A.Nos.2295-2296 of 2010 - 45-
defence witnesses, except DW-3 to hold that none of
the aforesaid evidence remotely supports the defence
version that A-2 and A-3 were arrested long before
29.08.2003, i.e the dates of arrest as mentioned in
their arrest memos. The High Court held that the
evidence of the doctors also does not prove the police
atrocities allegedly committed upon the accused
persons during the period they were in the police
custody. All the six accused persons, in their
retraction statements, complained of having been
beaten up by ACP Singhal (PW-126), V.D. Vanar and R.I.
Patel, because of which they could not stand up on
their feet. On denying their complicity in the
Akshardham attack, they were threatened of being
encountered. Each accused persons said that every day
they were called either by Singhal, V.D. Vanar or by
R.I. Patel and were forced to admit their complicity
in the Akshardham attack. On 05.11.2003, the accused
persons were produced before the Special Court (POTA)
Crl.A.Nos.2295-2296 of 2010 - 46-
from the judicial custody. Each one of them was given
audience before the judge of the Special Court (POTA)
wherein, they all made an oral complaint of police
atrocities during the police custody and also
complained of having been in police custody for long
time. According to each accused person, he was made to
sign the confessional statement prepared by the police
under coercion and duress and had not made the same of
his own free will.
At paragraph 144 of the impugned judgment, the
Division Bench of the High Court had recorded its
finding that the aforesaid retractions are ex facie
unbelievable, without giving any reason.
33. At para 145 of the impugned judgment, the High
Court examined the evidence in respect of the letters
written in Urdu (Ex.658), which is a vital
incriminating evidence against A-4. According to the
defence, these letters were planted by the police at a
Crl.A.Nos.2295-2296 of 2010 - 47-
later stage, and they placed reliance on the evidence
of PW-42 (Ex.266), the inquest Panchnama(Ex.267) of
the bodies of the deceased fidayeens, the post mortem
notes(Ex.492 and Ex.493) and the muddamal clothes of
the fidayeens and submitted that since both of them
died of bullet wounds sustained during the counter
attack by the NSG commandos, the bodies were wounded
and soiled in blood, and their clothes were tattered
by the bullet holes and the splinters. There were
holes in the clothes of the fidayeens particularly on
the pockets of their trousers. In the aforesaid
circumstances, it is not possible that the letters
recovered allegedly from the pockets of the trousers
of the fidayeens were unsoiled and in perfect
condition, and therefore, the expert opinion (Ex.511)
is not very accurate and is not reliable. The High
Court stated that it is true that the Urdu letters
recovered from the bodies of the deceased fidayeens
were in perfect condition in spite of the multiple
Crl.A.Nos.2295-2296 of 2010 - 48-
injuries received by the fidayeens and assigned the
reason in paragraph 189 of the impugned judgment as
“But then the truth is stranger than fiction ” and that
it is not possible to disbelieve that two Urdu letters
(Exh.658) were recovered from the bodies of the
fidayeens. It was stated by the High Court that both
the letters were signed by Brig. Raj Sitapati of NSG.
The recovery of these letters is recorded in the
muddamal articles as per list (Ex.524) which were
received by ACP G.L Singhal (PW-126) in the premises
of Akshardham temple itself under Panchnama (Ex.440),
signed by the Police Officer Shri Prakashchandra Mehra
(PW-105 : Exh.592). The evidence and the opinion
(Exh.511) of the handwriting expert J.J.Patel (PW-89:
Exh.507) was relied upon to prove that the said
letters were written by A-4.
34. The argument advanced by the learned counsel for
the accused persons regarding the subsequent planting
of letters was rejected by the High Court, stating
Crl.A.Nos.2295-2296 of 2010 - 49-
that if this argument was to be accepted, then the
aforesaid evidence adduced by the prosecution has to
be disbelieved and it has to be held that the police
had such presence of mind that in the:
“milieu of the aftermath of the terrorist
attack, the police thought of creating the
evidence, found out a person who knew Urdu,
got them to write the write-ups in handwriting
that would match the handwriting of accused
no.4, Abdul Kayyum, made Lt.Col Lamba and
Brig. Raj Sitapathi their accomplices and that
the two officers of the NSG readily agreed to
be the accomplices. SO did the panch witness,
Vinod Kumar(PW-74) and Dilip Sinh (PW-1). This
possibility is too far-fetched to believe.”
The High Court therefore held that the accused persons
had committed offences for which they had been charged
and confirmed the conviction and sentence, i.e. death
sentence awarded to A-2, A-4 and A-6, life-
imprisonment to A-3, five years Rigorous Imprisonment
to A-1 and ten years Rigorous Imprisonment to A-5 and
the appeals of the accused persons were dismissed.
Crl.A.Nos.2295-2296 of 2010 - 50-
The correctness of the impugned judgment and orders
passed by the High Court is under challenge in these
appeals by the accused – appellants, in support of
which they urged various facts and legal contentions
before this Court.
35. The rival legal contentions urged on behalf of the
accused persons and the prosecution will be dealt with
as hereunder:
Contentions on behalf of the prosecution
We will first examine the contentions urged on behalf
of the prosecution represented by Mr. Ranjit Kumar,
the learned senior counsel appearing on behalf of the
State of Gujarat who has advanced the following
arguments to establish the guilt of the accused
persons:
The procedure under Section 50 of POTA was followed by
the State Government while granting sanction:
Crl.A.Nos.2295-2296 of 2010 - 51-
36. It was contended by the learned senior counsel
that on completion of the investigation, PW-126
forwarded a complete set of papers and his report
through official channel recommending prosecution
against all six accused persons under the provisions
of POTA. The sanction granted by the Home Department
was given under the signature of the Deputy Secretary
of the said department, Mr. J.R Rajput by sanction no.
SB.V/POTA/10/2003/152 (Ex.498). All the papers were
received by the sanctioning authority on 12.11.2003
and the section officer put up the file to the Under
Secretary on 13.11.2003 and after proper application
of mind, the sanction was approved by Kuldeep Chand
Kapur, Principal Secretary, Home Department (PW-88) on
15.11.2003 and it was sent back to the Minister for
State (Home) who approved it on 18.11.2003 and
received back these papers from the Minister on
19.11.2003 and thereafter sanction order was issued on
21.11.2003. It was further submitted that the
Crl.A.Nos.2295-2296 of 2010 - 52-
procedure for granting sanction by the Home Department
was followed as per the Gujarat Government Rules of
Business, 1990. It was submitted that the sanction
order was passed by the State Government after proper
application of mind by the competent authority.
The learned senior counsel also submitted that the
learned counsel for A-6, Ms. Kamini Jaiswal placed
reliance on the case of Ramanath Gadhvi v. State of
Gujarat
11
qua the sanction under Section 20-A (2) of
TADA, which has been declared per incuriam by a 5
Judge Bench in the case of Prakash Bhutto v. State of
Gujarat
12
and therefore the judgment has no relevance.
Confessions of A-1, A-2, A-3, A-4 and A-6 are valid:
37. The learned senior counsel contended that the
procedure for recording of the confessions as under
11
(1997)7 SCC 744
12
(2005)2 SCC 409
Crl.A.Nos.2295-2296 of 2010 - 53-
Section 32 of POTA was scrupulously followed. The
accused persons did not make any complaints of
beatings or ill treatment by the police when produced
before the CJM for remand on different dates. When the
complaints were made later, a medical examination was
carried out in which none of the complaints were found
to be true. The learned senior counsel also submitted
that the confessional statements of A-2 and A-4 were
recorded on 24-09-2003, that of A-3 on 17-09-2003 and
that of A-6 on 05-10-2003. A-5 did not make any
confession at all. The retraction to these
confessional statements came around five weeks later.
He contended that it is clear that these retractions
are mechanical as even A-5, who had not made any
confessional statement, sent his retraction.
The Urdu letters were collected from the dead bodies
of the two fidayeens:
Crl.A.Nos.2295-2296 of 2010 - 54-
38. The inquest panchnama was drawn of the dead bodies
of the two fidayeens by Police Officer Shri
Prakashchandra Mehra (PW-105: Exh.592), who in his
statement has confirmed the collection of the two Urdu
letters. PW-91, Maj. Jaydeep Lamba, who was the
commander of the task force, also stated that two Urdu
letters were found from the dead bodies of the
fidayeens by him and Brig. Raj Sitapati, and that they
contain the signature of Brig. Raj Sitapati at the
bottom and that a list was prepared of the articles
recovered (Ex.524) which` was signed by him.
Reliance was also placed by the learned senior counsel
on the evidence of PW-89 who had opined that the
letters (Ex.658) had been written by A-4.
The learned senior counsel also submitted that PW-91
deposed before the court, and that in his cross
examination, he was not questioned regarding the
‘condition’ of the letters written in Urdu, as
Crl.A.Nos.2295-2296 of 2010 - 55-
recovered from the two fidayeens. Similarly, even PW-
126 was not cross examined by the counsel for the
accused persons on the condition of the letters. On
being questioned by us as to why the letters did not
have any blood stains on them, the learned senior
counsel submitted that the panchnama stated that the
trousers were stained with blood and not soaked with
it. Their trousers became wet due to the oozing of
blood which has gone to the back of the trousers
because of gravity as the bodies were lying on their
back after shooting.
The link of accused persons to Akshardham attack has
been established.
39. The learned senior counsel had relied upon the
confessional statements of the accused persons to draw
the link between them and the attack on the Akshardham
temple. He had submitted that the confessional
statements would clearly go to show how each one of
Crl.A.Nos.2295-2296 of 2010 - 56-
the accused persons had a different and
compartmentalized role from the procurement of arms
and ammunitions to providing the logistics to the
fidayeens for carrying out the operation and the
motivation provided for the attack.
The role of A-6 has also been proved.
40. The learned senior counsel submitted that A-6
played a crucial role in bringing the weapons from
Kashmir to Bareilly- in his ambassador car bearing
registration no. KMT 413, in a secret cavity made
underneath the back seat, and thereafter he carried
the weapons, concealed in the bedding in the train and
accompanied the fidayeens to Ahmedabad.
The Navgam Police Station at Jammu & Kashmir had
arrested A-6 in offence registered in FIR: CR no. 130
of 2003, and it was during the interrogation in the
above said offence that he had disclosed his
involvement in the Akshardham attack. A fax message
Crl.A.Nos.2295-2296 of 2010 - 57-
was received by the Gujarat ATS from the IGP Kashmir
regarding the same on 31.08.2003. The investigation
was conducted by PW-126 who was t he then ACP and was
authorized to do so as per section 51 of POTA. A team
was formed under the proper authorization for
collecting materials from different places during
investigation. I.K Chauhan (PW- 125) was asked to go
for inquiry to Jammu & Kashmir.
It was submitted that there were many other evidences,
other than his confessional statement, including the
testimony of Yusuf Gandhi, owner of Gulshan Guest
House, (PW-57) who had stated before the Special Court
(POTA) that A-6 stayed there, and also the panchnama
of the ambassador car KMT 413 (Ex.671).
Delay in cracking the case.
41. The learned senior counsel submitted that
initially the investigation was conducted by V.R Tolia
(PW-113) of the Local Crime Branch, Gandhinagar, and
Crl.A.Nos.2295-2296 of 2010 - 58-
thereafter by K.K Patel of the ATS. The investigation
was then handed over to G.L Singhal, ACP Crime Branch
(PW- 126) on 28.08.2003. It was on 28.08.2003, that
Ashfaq Bhavnagri (PW-50) was interrogated, who
revealed the entire conspiracy as well as the role of
A-1 and A-3 in committing the dastardly offences.
The Conspiracy.
42. It was further submitted that it has been proved
that the accused persons, along with the absconding
accused hatched a conspiracy to create terror and take
revenge on the Hindus on account of the Godhra riots.
For this purpose, secret meetings were held at Jiddah,
Riyadh, Hyderabad and Kashmir. A-2 was contacted by
his brother who ensured supply of finance, weapons and
trained terrorists. A-4 and A-5, who were running
relief camps and were also religious leaders, accepted
to garner local support and thus money was sent
through havala. A-2 and the two fidayeens visited
Crl.A.Nos.2295-2296 of 2010 - 59-
various places in Ahmedabad and finally chose
Akshardham temple in Gandhinagar as the site for the
attack on 24.09.2002. A-4, at the instance of A-5,
wrote the two Urdu letters and gave them to the
fidayeens. A-5 took the fidayeens to the railway
station, from where they took a taxi to the Akshardham
temple. The arms and ammunitions were brought from
Kashmir by A-6.
Concurrent findings of the courts below
43. It was further submitted by the learned senior
counsel for the prosecution that the Special Court
(POTA) as well as the Division Bench of the High
Court, after proper appreciation and analysis of
evidence, gave concurrent findings of fact and thus
the conviction and the sentences ordered by the courts
below ought to be upheld.
44. The learned senior counsel for the prosecution
thus submits that it has proved beyond reasonable
Crl.A.Nos.2295-2296 of 2010 - 60-
doubt that the accused persons were involved in the
conspiracy for the attack on the Akshardham temple and
the sentences meted out to them by the Special Court
(POTA) and confirmed by the High Court must be upheld
by this Court as the concurrent findings of fact
recorded on the charges framed against the accused
persons does not warrant any interference by this
Court.
Contentions on behalf of A-2 & A-4 and A-3 & A-5.
45. We will now examine the contentions urged on
behalf of A-2 and A-4 who are represented by learned
senior counsel, Mr. K.T.S Tulsi and thereafter A-3 and
A-5, who are represented by learned senior counsel,
Mr. Amarendra Sharan. Subsequently, the contentions
urged on behalf of A-6 who is represented by learned
counsel, Ms. Kamini Jaiswal will be dealt with. The
contentions will be dealt with topic wise.
Crl.A.Nos.2295-2296 of 2010 - 61-
That the Sanction required under Section 50 of POTA
was not obtained in a proper manner.
46. Section 50 of POTA provides that “no court shall
take cognizance of any offence under the Act without
the previous sanction of the Central Government or as
the case may be by the State Government.” The
prosecution has relied on the testimony of Kuldeep
Chand Kapoor (PW-88) to prove that the sanction was
granted in accordance with the law.
It was contended by the learned counsel for A-6 that
the perusal of the statement of PW-88 would show that
all the documents pertaining to the investigation were
not placed before the sanctioning authority and it was
only on the approval of the Minister that the sanction
was granted. The sanction was granted without due
application of mind. Thus the said sanction is not a
proper previous sanction, on the basis of which the
court could have taken cognizance of the offences.
Crl.A.Nos.2295-2296 of 2010 - 62-
Evidentiary value of confessions:
47. All the three learned counsel have similar
submissions with respect to the reliance placed by the
courts below on the confessional statements made by
the accused persons to hold that the accused persons
are guilty of the offences they are charged with. They
submitted that the concurrent findings of fact
upholding the conviction of the accused persons on the
basis of their confessional statements is erroneous,
keeping in mind that there is no admissible or
reliable evidence on record which connect them with
the offences.
It is contended by both the learned senior counsel Mr.
K.T.S. Tulsi and Mr. A. Sharan on behalf of A-2 and A-
4 and A-3 and A-5 respectively, that the prosecution
had not complied with the statutory provisions under
Section 32(5) of POTA, though they produced the
accused persons before the learned CJM PW-99, within
Crl.A.Nos.2295-2296 of 2010 - 63-
48 hours as provided under Section 32(4) of POTA. It
is contended that after recording their statements,
CJM (PW-99) failed to discharge the vital obligation
of sending them to judicial custody and thus,
committed a grave error in remanding them back to
police custody which was a clear violation of Section
32(5) of POTA and Article 20(3) of the Constitution.
It was submitted that the Division Bench of the High
Court had erroneously made an observation in the
impugned judgment in this regard with reference to
Section 32(5) of POTA, stating that the Chief Judicial
Magistrate has the power to send a person to a
judicial custody only when he complains of ill
treatment and torture by the police. The aforesaid
finding is contrary to the law laid down by this Court
in NCT v. Navjot Sandhu.
13
13
(2005) 11 SCC 600
Crl.A.Nos.2295-2296 of 2010 - 64-
48. Further, the learned senior counsel placed
reliance on the deposition of PW-99 to contend that it
leaves no manner of doubt that he was neither mindful
of his obligations under Section 32 of POTA nor did he
make any enquiry regarding fear or torture likely to
have been faced by the accused persons while making
their confessional statements. On the contrary, he
mechanically sent the accused persons back to police
custody after recording their statements. It was
further submitted that the CJM had failed to perform
the most important duty of informing himself about the
surrounding circumstances for making the confessional
statements by the accused. Remanding the accused
persons to judicial custody has been considered as the
most significant safeguard and protection against
torture by police, which was thrown to the wind by the
CJM, thereby he had violated the fundamental rights
guaranteed to the accused persons under Articles 20(3)
and 21 of the Constitution. It was further contended
Crl.A.Nos.2295-2296 of 2010 - 65-
by the learned senior counsel that there was a failure
on the part of the courts below in not considering the
evidence of doctors who work in Government Hospitals
and who deposed in the case on behalf of the accused
persons that A-2 to A-6 had complained of having
received severe beating by the police prior to
recording the confessional statements. The said
evidence is clear from the depositions of DW-
2(Ex.731), DW-4(Ex.736), DW-5(Ex.737) and DW-
7(Ex.744). From the evidence of DW-2, it is revealed
that the X-ray plates and case papers of A-4 were
found missing and from the aforesaid evidence, the
only conclusion that can be drawn is that once the
accused persons had complained of having received
severe beatings by the police prior to their making of
their confessional statements, the credibility of such
confessions became doubtful as the same had not been
made voluntarily before PW-78 by them. Therefore, it
had been urged that neither the Special Court (POTA)
Crl.A.Nos.2295-2296 of 2010 - 66-
nor the Division Bench of the High Court should have
placed reliance upon the said confessional statements
to record the finding of guilt against the accused
persons. The courts below should have considered that
there was a statutory obligation upon the prosecution
not to suppress any evidence or document on record
which indicates the innocence of the accused persons.
Thus, in the light of evidence of DW-2, the conduct of
the prosecution in the facts and circumstances of the
case becomes unjustified. The learned senior counsel
in support of the said contention placed reliance upon
the decision of this Court in the case of Sidhartha
Vashisht v. State (NCT of Delhi)
14
.
49. Further, the learned senior counsel on behalf of
the accused persons contended that there were serious
infirmities with regard to the manner in which the
alleged confessional statements of the accused persons
14
(2010) 6 SCC 1
Crl.A.Nos.2295-2296 of 2010 - 67-
were recorded without sufficient time being given for
reflection, which was in violation of the principle
laid down by this court in the cases of Ranjit Singh @
Jita & Ors. v. State of Punjab
15
, Navjot Sandhu case
(supra) and State of Rajasthan v. Ajit Singh & Ors.
16
.
It was further urged that the courts below had failed
to take into consideration the element of fear of
further torture by the police, in the minds of the
accused persons which was bound to be present,
especially when their confessional statements were
recorded by PW-78 in his office without them being
assured of being sent to judicial custody immediately
after making their statements. These above important
facts had certainly vitiated the confessional
statements made by the accused persons, making them
highly unreliable and unnatural. Therefore, the courts
below should not have placed reliance on the same to
15
(2002) 8 SCC 73
16
(2008) 1 SCC 601
Crl.A.Nos.2295-2296 of 2010 - 68-
record the finding of guilt against the accused
persons. The remaining evidence on record placed on
behalf of the prosecution, does not establish even
remotely that they were party to any of the material
ingredients of the conspiracy of the attack on
Akshardham temple. In support of the said contention,
the learned senior counsel invited our attention to
concurrent findings of fact of the courts below
contending that the same are liable to be set aside as
they have relied solely upon the confessional
statements made by the accused persons while upholding
their conviction. The courts below had gravely erred
in not considering the very important legal aspect of
the matter, that a trial court cannot begin by
examining the confessional statements of the accused
persons to convict them . It was contended that it must
begin with other evidence adduced by the prosecution
and after it has formed its opinion with regard to the
quality and effect of other evidence, only then, the
Crl.A.Nos.2295-2296 of 2010 - 69-
court must turn to the confessions in order to be
assured as to the conclusion of guilt, which the
judicial mind is about to reach, based on the said
other evidence. In support of the aforesaid legal
submissions he had placed reliance upon the judgment
of this Court in the case of Haricharan Kurmi v. State
of Bihar
17
and the Navjot Sandhu case(supra).
50. Further elaborating their submissions, the learned
senior counsel urged that the confession of an accused
person has been regarded by this Court as fragile and
feeble evidence which can only be used to support
other evidence. In support of this contention he
relied upon the judgment of this Court in the Prakash
Kumar v. State of Gujarat
18
. The approach of the
courts below to record the finding of guilt against
the accused persons, should be to first marshall
evidence against the accused persons excluding their
17
(1964)6 SCR 623
18
(2007) 4 SCC 266
Crl.A.Nos.2295-2296 of 2010 - 70-
confessions and see whether conviction can safely be
based upon it.
Retracted confessions.
51. The learned senior counsel Mr. A. Sharan appearing
for A-3 and A-5 had further contended that the courts
below had failed to take into consideration that the
confessional statements made by the accused persons
had been retracted at the earliest possible
opportunity available to them. The evidence of the
doctors that the sustained fracture being found on the
bodies of the accused persons by the examining doctor
and subsequent disappearance of the X-ray plates from
the records, raised a series of doubts regarding the
manner in which the confessional statements were
recorded. In support of this contention the learned
senior counsel placed reliance upon the decision of
this Court in the case of Chandrakant Chimanlal Desai
Crl.A.Nos.2295-2296 of 2010 - 71-
v. State of Gujarat
19
. The learned senior counsel
further contended that in the present set of facts,
there was sufficient proof that the confessional
statements were not made voluntarily and in the light
of the above, the courts below were duty bound to
corroborate the confessional statements with other
independent evidence to test their veracity.
Learned senior counsel Mr. K.T.S Tulsi representing A-
2 and A-4 and learned counsel, Ms. Kamini Jaiswal
representing A-6 have reiterated the same and
submitted that there had to be independent evidence
corroborating the confessional statements of the
accused persons if they had been retracted.
Evidence of accomplices.
52. The learned senior counsel Mr. K.T.S Tulsi
submitted that the learned senior counsel for the
19
(1992) 1 SCC 473
Crl.A.Nos.2295-2296 of 2010 - 72-
prosecution had placed reliance on the evidence of PW-
50 as substantial evidence against the accused
persons. He contended that a careful reading of the
evidence of PW-50 showed that the said witness had
clearly admitted that he was an accomplice in as much
as he admitted to having contributed money, even when
A-3 informed them that the money was to be used for
taking revenge. It was further contended that a court
should not rely on the evidence of an accomplice to
record finding of guilt against the accused persons
and to buttress the said submission, he placed
reliance upon the judgment of this Court in the case
of Mrinal Das v. State of Tripura
20
. In support of the
said submission, he had further placed reliance upon
the judgment of this Court in the case of Bhiva Doulu
Patil v. State of Maharashtra
21
20
(2011) 9 SCC 479
21
AIR 1963 SC 599
Crl.A.Nos.2295-2296 of 2010 - 73-
Further elaborating his submission in this regard, he
placed reliance upon another judgment of this Court in
the case of Mohd. Husain Umar Kochra v. K.S.
Dalipsinghji
22
, wherein this Court had further stated
with regard to the combined effect of Sections 133 and
114, Illustration (b) of the Indian Evidence Act, 1872
and held that corroboration must connect the accused
persons with the crime.
53. The learned senior counsel relied upon the case of
Sarwan Singh v. State of Pubjab
23
, wherein this Court
has laid down the legal principle that the courts are
naturally reluctant to act on such tainted evidence
unless it is corroborated and that independent
corroboration should support the main story disclosed
by the approver apart from a finding that the approver
is a reliable witness. The accomplice evidence should
satisfy a double test, i.e. he is a reliable witness
22
(1969) 3 SCC 429
23
AIR 1957 SC 637
Crl.A.Nos.2295-2296 of 2010 - 74-
and that there is sufficient corroboration by other
evidence to his statement. This test is special to the
case of weak or tainted evidence like that of the
approver.
In support of the said principle, he further
placed reliance on the cases of Ravinder Singh v.
State of Haryana
24
, Abdul Sattar v. U.T. Chandigarh
25
,
Narayan Chetanram Chaudhary v. State of Maharashtra
26
,
Sheshanna Bhumanna Yadav v. State of Maharashtra
27
and
Bhuboni Sahu v. R.
28
.
54. The learned senior counsel specifically referred
to the case of K. Hashim v. State of Tamil Nadu
29
wherein this Court, after adverting to Sections 133
and 114, Illustration (b) of the Evidence Act has held
that the said provisions strike a note of warning
24
(1975) 3 SCC 742
25
(1985) Suppl (1) SCC 599
26
(2000) 8 SCC 457
27
(1970) 2 SCC 122
28
(1948-49) 76 IA 147
29
(2005) 1 SCC 237
Crl.A.Nos.2295-2296 of 2010 - 75-
cautioning the court that an accomplice does not
generally deserve to be believed.
55. He then drew our attention to an unreported
judgment of this Court delivered by one of us, A.K.
Patnaik, J. in the case of State of Rajasthan v.
Balveer (Crl. Appeal No. 942 of 2006 decided on
31.10.2013) wherein this Court observed, while
referring to illustration (b) of Section 114 of the
Evidence Act, and observed that the Court will presume
that an accomplice is unworthy of credit unless he is
corroborated by material particulars.
56. It was further urged that the learned senior
counsel on behalf of the prosecution had strongly
relied on the statement of PW-51, whereas the
aforesaid deposition was virtually rendered useless
during cross examination before the Special Court
(POTA). The version given by the said witness in his
cross examination was more credible, natural and casts
Crl.A.Nos.2295-2296 of 2010 - 76-
a serious doubt about the manner in which the evidence
was sought to be fabricated by police officer, D.G
Vanzara whose entrusting of the case to the Crime
Branch on 28.08.2003 suddenly resulted in feverish
activity, whereupon the accused persons were arrested
and their confessional statements were recorded.
The learned senior counsel for the prosecution had
relied upon the deposition of PW-52 who had stated in
his evidence about sending money through A-3, as well
as the weapons for the carnage and had also identified
A-2, A-4 and A-5 before the Court. The learned senior
counsel, Mr. K.T.S Tulsi submitted that the said
statement of this witness was exculpatory as he had
stated that no work was assigned to him. Therefore,
such statement can neither be considered to be
reliable nor worthy of acceptance without
corroboration in material particulars from independent
sources. In view of the test laid down by this court
in a catena of judgments referred to supra, upon which
Crl.A.Nos.2295-2296 of 2010 - 77-
strong reliance had been placed by the learned counsel
based on the presumption contained in illustration (b)
of Section 114 read with section 133 of the Indian
Evidence Act, it was submitted that provisions of the
Evidence Act are of no avail to the prosecution case.
Letters purportedly recovered from the pockets of the
fidayeens cannot be relied upon:
57. Both the learned senior counsel, Mr. K.T.S Tulsi
and Mr. A. Sharan contended that it was not possible
to believe that the letters were recovered from the
pockets of the two fidayeens, mainly on the evidence
from the post mortem of the dead bodies of the
fidayeens which showed that the bodies had 46 and 60
external injuries, respectively, due to multiple
bullet shots and the panchnama of the clothes of the
assailants clearly demonstrated that their clothes
were full of blood and mud and therefore, it was
highly improbable and difficult to believe that the
Crl.A.Nos.2295-2296 of 2010 - 78-
alleged letters were recovered in a perfect condition
from the clothes of the fidayeens. The High Court had
failed to reconcile the fact of absence of bullet
holes on the letters with the presence of multiple
bullet holes on the pockets of the trousers, from
which the letters were purported to have been
recovered. With regard to the letters being in a
perfect condition, the High Court merely observed that
“Truth is stranger than fiction”
and it was submitted
that the courts below ought not to have relied upon
such a document to record their findings of guilt
against the accused persons on the basis of the same.
58. The learned senior counsel also referred to
various discrepancies in the statements of the two
important witnesses in relation to the letters, i.e of
PW-91, Lt. Col. Jayadeep Lamba, who, according to the
prosecution, had recovered them from the pockets of
the trousers of the fidayeens, but whose statement was
not recorded under Section 161 CrPC and that of PW-
Crl.A.Nos.2295-2296 of 2010 - 79-
121, the translator of the letters. It was claimed by
the prosecution that PW-91 was not examined by the
investigation officer under Section 161 CrPC since the
NSG had refused to grant permission to its personnel
to disclose any information regarding their operation
with respect to the attack. The prosecution had placed
reliance upon a letter dated 11.02.2002 by the
Ministry of Home Affairs to prove the same. The
learned senior counsel contended that the prosecution
had however, relied upon the statement made by this
witness, PW-91 before the Special Court (POTA), who
was a chargesheet witness although his statement under
Section 161 CrPC was never recorded and thus, the
accused persons had been naturally deprived of an
opportunity to effectively cross-examine the witness
and thereby they were very much prejudiced.
59. The learned senior counsel also contended that the
claim of the prosecution that the letters were found
in a pouch which was present in the pocket of the
Crl.A.Nos.2295-2296 of 2010 - 80-
trousers of the fidayeens cannot be believed as there
is no evidence to support the same and on the
contrary, the receipt voucher of the articles
collected from the fidayeens only listed two
‘handwritten letters in Urdu’ and there was no mention
of the pouch whatsoever.
Delay in recording statements of accomplices and
confessional statements of the accused persons.
60. The learned senior counsel, Mr. A. Sharan had
submitted that the preliminary investigation of the
case was initially carried out by the police from
27.09.2002 and thereafter, the investigation was
handed over to the ATS on 03.10.2002. After the matter
was investigated for a year, it was transferred to the
Crime Branch on 28.08.2003 and surprisingly, on the
very next day i.e, 29.08.2003, all the accused
persons, except A-6 were arrested and on 30.08.2003,
Crl.A.Nos.2295-2296 of 2010 - 81-
the provisions of POTA were invoked by the Crime
Branch against them.
61. It was further contended by him that this made the
prosecution story highly improbable and the fact that
the accused persons were apprehended a year after the
incident made the conduct of the prosecution highly
doubtful and totally unreliable.
It was further contended by him that it is a well
settled principle of law that there should not be an
inordinate delay in the recording of the statements of
the accomplices by the police. PW-50, PW-51, PW-52 and
PW-56 had stated in their depositions that their
statements were recorded around the 7
th
or 8
th
month of
2003. Thus, this inordinate delay leads one to draw an
adverse inference and also leads one to believe that
the police had sufficient time to fabricate the story
and rope in the accused persons falsely in this case.
Reliance was placed by the learned senior counsel on
Crl.A.Nos.2295-2296 of 2010 - 82-
the case of State of Andhra Pradesh v. S.Swarnalatha &
Ors.
30
, wherein even 26 days delay in recording
statements of prosecution witnesses was not allowed by
this Court. The learned senior counsel also referred
to the case of Jagjit Singh @ Jagga v. State of
Punjab
31
in support of the above position of law.
It was contended that the delay in recording the
statements of the accused and witnesses by police and
reliance placed upon the same by the courts below
vitiated the finding recorded that the accused persons
are guilty, and the same is liable to be set aside.
There was delay in recording the statement of PW-52
and PW-56 which is evident from the record that PW-52
had stated that his statement was recorded on
07.09.2003, while PW-56 stated that his statement was
recorded in the 7
th
or 8
th
month of 2003. Thus, there
30
(2009) 8 SCC 383
31
(2005) 3 SCC 689
Crl.A.Nos.2295-2296 of 2010 - 83-
was a delay of almost of a year in recording the
statement of the aforesaid witness by the Police.
Failure of prosecution to establish a nexus between
the accused persons and the crime as well as link
between the fidayeens and the accused persons.
62. The learned senior counsel Mr. A. Sharan contended
that for the prosecution to invoke common intention
under Section 34 IPC or common object under Section
149 IPC, it is required to establish beyond reasonable
doubt the connection between the accused persons and
the common intention/object of the crime with which
they are charged. In this regard, it was submitted
that all the main prosecution witnesses, i.e PW-50,
PW-51, PW-52 and PW-56 upon which strong reliance had
been placed by the learned senior counsel on behalf of
the prosecution, had failed to show and establish the
nexus either with common intention or object, or the
cumulative effect of the proved circumstances, to
Crl.A.Nos.2295-2296 of 2010 - 84-
establish any connection between the accused persons
and the conspiracy of the attack on Akshardham.
Further, it was contended that the courts below had
grossly erred in placing strong reliance upon the
evidence of above prosecution witnesses to hold that
there was a link or connection between the fidayeens
and the accused persons, and that it was on the
failure of the prosecution to establish such
connection, that they had been subsequently roped in.
63. Further, it was contended that even from the
confessional statement of A-6, wherein he had narrated
as to how the two fidayeens were brought from Jammu &
Kashmir to Gujarat, there was no mention of A-1 to A-
5. Therefore, the prosecution had failed to establish
the connection between A-6 and A-2, A-4, A-3 and A-5
and this important aspect of the matter had not been
considered at all by the courts below while recording
the finding of guilt against the accused persons and
the same cannot be allowed to sustain.
Crl.A.Nos.2295-2296 of 2010 - 85-
Defence Witnesses to be given same weightage as
prosecution witnesses.
64. The learned senior counsel also contended that the
courts below should have given same weightage to the
evidence of the defence witnesses as that of the
prosecution witnesses and in support of this
contention, he placed reliance upon the cases of
Munshi Prasad v. State of Bihar
32
, I.C.D.S. Ltd. v.
Beena Shabeer & Anr.
33
and State of Uttar Pradesh v.
Babu Ram
34
Suppression of material witness draws an adverse
inference against the prosecution.
65. It was contended by the learned senior counsel
that PW-126 stated that his senior officer D.G
Vanzara, had orally told him that PW-50 was aware of
32
(2002) 1 SCC 351
33
(2002) 2 SCC 426
34
(2000) 4 SCC 515
Crl.A.Nos.2295-2296 of 2010 - 86-
the details of the conspiracy, but D.G. Vanzara was
never produced as a prosecution witness. The case is
the same with Brig. Raj Sitapati, who was also a
witness to the recovery of the two Urdu letters, and
this material witness had also been conveniently
brushed aside both by the police and the prosecution.
Reliance was placed by the learned senior counsel in
this regard on Tulsiram Kanu v. The State
35
, Ram
Prasad & Ors. v. State of U.P.
36
and State of U.P. v.
Punni & Ors.
37
Alternative stories put forth by the prosecution.
66. Further, it was contended by the learned senior
counsel Mr. A Sharan that alternative stories had been
put forth by the prosecution. It was borne out from
the confessional statement of A-4 that the two
fidayeens, i.e. Doctor 1 (Murtuza/ Hafiz Yasir) &
35
AIR 1954 SC 1
36
(1974) 3 SCC 388
37
(2008) 11 SCC 153
Crl.A.Nos.2295-2296 of 2010 - 87-
Doctor 2 (Ashraf/Mohd. Faruk) belonged to Lahore and
Rawalpindi respectively. As per the confessional
statement of A-6, the names of the two fidayeens were
Sakil and Abdullah, who belonged to Jammu and Kashmir
and had travelled along with A-6 to Gujarat. It was
observed from the deposition of Maj. Jaydeep Lamba
(PW-91) that it was written in the two Urdu letters
that the two fidayeens were from ‘Atok’ region of
Pakistan. It was submitted that the prosecution had
come forth with three different versions insofar as
the origin of the two fidayeens was concerned. Even
the prosecution was not certain as to which of the
three versions was true. It was submitted that
therefore, in the presence of these major
discrepancies in the prosecution story, and the non-
reliability of the confessional statements of the
accused persons, they were entitled to acquittal.
Crl.A.Nos.2295-2296 of 2010 - 88-
Contentions on behalf of A-6.
67. The contentions urged by learned counsel Ms.Kamini
Jaiswal on behalf of A-6 will now be adverted to as he
was arrested later and his situation is different from
that of the other accused persons.
Arrest of A-6 in an offence investigated by Jammu and
Kashmir police.
68. It is contented that as per the case of the
prosecution, A-6 was under arrest at the Navgam police
station Kashmir, in relation to offence in FIR no. 130
of 2003 under Sections 120-B and 153-A of Ranbir Penal
Code(RPC) and Sections 7 and 27 of the Arms Act. It
was also the case of t he prosecution that a fax
message was sent by the IGP Kashmir to ATS, Gujarat on
31.08.2003, and that pursuant to the receipt of the
fax, the Transfer Warrant was sought from the Special
Designated Court (POTA), Ahmedabad and on that basis,
the Application for Remand was made to the Chief
Crl.A.Nos.2295-2296 of 2010 - 89-
Judicial Magistrate, Badgaum. A-6 was brought to
Ahmedabad on 12.09.2003 and was arrested by the
Gujarat police in CR No. 314 of 2002 at 9:30 P.M.
Confessional statement of A-6 is not admissible
against him.
69. It was further submitted that the entire case of
the prosecution rested solely on the alleged
confession of A-6 which was recorded on 05.10.2003
(Exs.461-462), while he was in police custody. It had
been submitted that there were several violations of
the mandatory requirements of Section 32 of POTA while
recording his confessional statement. Learned senior
counsel Mr. K.T.S Tulsi, appearing on behalf of A-2
and A-4 and Mr. A. Sharan learned senior counsel
appearing on behalf of A-3 and A-5 had also advanced
arguments in detail as to how the confessional
statements of the accused persons were not recorded in
accordance with the mandatory procedural safeguards
Crl.A.Nos.2295-2296 of 2010 - 90-
under Section 32 of POTA and the learned counsel for
A-6, Ms.Kamini Jaiswal had alluded to them with
respect to A-6 also. Hence, we will not reiterate the
same in this portion of the judgment.
That the other evidence produced by the prosecution
also does not point to the guilt of A-6.
70. The learned counsel submitted that during the
remand of A-6, the investigation was carried on by V.D
Vanar (PW-112), at Bareilly and Ahmedabad. He had
drawn panchnama of a PCO from where the accused had
allegedly made telephone calls, but though he stated
that a panchnama was drawn at Bareilly, no such
panchnama had been brought on record. He was also said
to have recorded the statement of PW-69, Minhaas
Ashfaq Ahmed who had stated that A-6 got the
ambassador car repaired at Das Motors and also the
statement of one Dr. Sudhanshu Arya (PW-93) who had
stated that the accused came to him for treatment of
Crl.A.Nos.2295-2296 of 2010 - 91-
his child. However, it is contented that none of these
incidents in any way connected the accused to the
attack on the Akshardham temple.
Some other evidence which the prosecution sought to
rely on to establish the guilt of A-6 were the
deposition of the owner of Gulshan Guest House, Yusuf
Gandhi, (PW-57: Ex.328), Panchnama of specimen
signature of A-6 in the register of the guest house
(Ex. 683), recovery of the ambassador car from the
custody of the J & K Police (Ex.672) and the report of
the RTO regarding the ownership of the said ambassador
car. (Ex.672).
It was submitted that the register of the Guest House,
which was seized around 27.08.2002 and 28.08.2002, was
never sealed, and that the pointing out of the
signature by A-6 while being in custody of the police
was not admissible in evidence.
Crl.A.Nos.2295-2296 of 2010 - 92-
It was further submitted that with regard to the
ownership of the ambassador car, the report of the RTO
(Ex.672), showed that it was registered in the name of
Abdul Majid Rathor. The prosecution had also not been
able to bring anything on record to connect A-6 with
the said owner or with the car, or of the case with
the attack at Akshardham temple.
That there had also been a violation of Section 51 of
POTA.
71. It was contended by the learned counsel that
Section 51 of POTA, which starts with the non-obstante
clause, makes it mandatory that the investigation
under POTA be carried out only by the officer of the
rank of Deputy Superintendent of Police or a police
officer of an equivalent rank. It was argued that the
investigation in the present case was mostly carried
out by the officer of the rank of a Police Inspector.
The POTA, unlike CrPC does not contain any provision
Crl.A.Nos.2295-2296 of 2010 - 93-
where the powers of the I.O could be delegated to any
other person. Thus, it was contented that any
investigation, if carried out by any officer below the
rank of ACP is illegal and evidence, if any, collected
during such investigation could not be looked at.
Findings of this Court:
72. We have heard the rival factual and legal
contentions raised at length for a number of days and
perused in detail the written submissions on record
produced by the learned counsel representing both the
parties. We have also perused the material objects and
evidence on record available with this Court in
connection with this case. The following points that
would arise in these appeals for the purpose of
adjudication of the appeals by this Court are:
1. Whether sanction given by the Gujarat State
Government dated 21.11.2003 in this case is
in compliance with Section 50 of POTA?
Crl.A.Nos.2295-2296 of 2010 - 94-
2. Whether the confessional statements of the
accused persons were recorded as per the
procedure laid down in Section 32 of POTA,
CrPC and the principles laid down by this
Court?
3. Whether the statements of the accomplices
disclosing evidence of the offences, and the
connection of the accused persons to the
offence, can be relied upon to corroborate
their confessional statements?
4. Whether the two letters in Urdu presented as
Ex.658 which have been translated in English
vide Ex.775, were found from the pockets of
the trousers of the fidayeens who were
killed in the attack?
5. Whether the letters allegedly found from the
pockets of the trousers of the fidayeens
were written by A-4?
Crl.A.Nos.2295-2296 of 2010 - 95-
6. Whether there is any evidence apart from the
retracted confessional statement of A-6
which connects him to the offence?
7. Whether there is any independent evidence on
record apart from the confessional
statements recorded by the police, of the
accused persons and the accomplices, to hold
them guilty of the crime?
8. Whether A-2 to A-6 in this case are guilty
of criminal conspiracy under Section 120-B
IPC?
9. Whether the concurrent findings of the
courts below on the guilt of the accused
persons can be interfered with by this court
in exercise of its appellate jurisdiction
under Article 136 of the Constitution?
10. What Order?
Crl.A.Nos.2295-2296 of 2010 - 96-
We will now proceed to answer each point in detail.
73. Justice Vivian Bose while dealing with the
incipient constitution in the case of State of West
Bengal v. Anwar Ali Sarkar
38
, made an observation
which is very pertinent to be quoted herein, which
reads thus:
“90. I find it impossible to read these
portions of the Constitution without regard
to the background out of which they arose. I
cannot blot out their history and omit from
consideration the brooding spirit of the
times. They are not just dull, lifeless words
static and hide-bound as in some mummi-fied
manuscript, but, living flames intended to
give life to a great nation and order its
being, tongues of dynamic fire, potent to
mould the future as well as guide the
present. The Constitution must, in my
judgment, be left elastic enough to meet from
time to time the altering conditions of a
changing world with its shifting emphasis and
differing needs. I feel therefore that in
each case judges must look straight into the
heart of things and regard the facts of each
case concretely much as a jury would do; and
yet, not quite as a jury, for we are
considering here a matter of law and not just
38
AIR 1952 SC 75
Crl.A.Nos.2295-2296 of 2010 - 97-
one of fact: Do these “laws” which have been
called in question offend a still greater law
before which even they must bow? ”
(emphasis laid by this Court)
POTA was repealed in 2004. Yet, the trials, its
implementation has entailed, are continuing till date.
POTA was repealed for the gross violation of human
rights it caused to the accused persons due to abuse
of power by the police. This is an important aspect to
be kept in mind while deciding this case and hence, it
was pertinent to mention this in the beginning to say
that we are wary of the abuse the provisions of this
Act might bring. And we are conscious of it.
Answer to point no.1
74. It was contended by Ms. Kamini Jaiswal, the
learned counsel for A-6 that a perusal of the
statement of PW-88 would show that not all documents
pertaining to the investigation were placed before the
sanctioning authority and that it was only on the
Crl.A.Nos.2295-2296 of 2010 - 98-
approval of the Home Minister of the State of Gujarat
to prosecute the accused, that sanction as required
under Section 50 of POTA was granted in this case.
PW-88 Kuldeep Chand Kapoor IAS, Principal Secretary,
Home Department, had stated in his statement (Ex.497)
recorded before the Special Court (POTA) as under:
“I agree that the last paragraph of the
letter of ACP (Ex. 502) contains the details
of papers submitted to the Home Department
and these are the only papers that had been
received by me.
I am producing Patrak- A and B details of
arrests of all the six accused. Patrak- A,
Patrak – B and details of the accused
arrested are being given respectively Ex.
503, Ex. 505 and Ex. 506.
It is true that while granting the sanctions
against all the six accused to be prosecuted,
I had perused Patrak- A and B other two
Patraks.
(q). Did you notice while granting sanction
against the accused that no explosives
substance has been seized from any of the
accused?
(a). Explosive substances and firearms were
found at the site.
Crl.A.Nos.2295-2296 of 2010 - 99-
I agree that from these six accused, no
explosive substance had been recovered.
I do not know that A- summary had been filed
earlier.
(q). Whether there were any papers of
investigation by Crime Branch, Ahmedabad
conducted at Jammu and Kashmir?
(a). As far as I know, there was no
investigation by Crime Branch, Ahmedabad at
Jammu and Kashmir Police. Therefore, I cannot
say whether there were no papers to my
knowledge to that effect and it was the
police of Jammu and Kashmir who had intimated
the Gujarat Police about the whereabouts of
Chand Khan from Jammu and Kashmir Police by
following due process of law.
I was not supplied the papers of
investigation carried out by Jammu and
Kashmir police. Therefore, I cannot say
whether there were any such papers or not.
Witness volunteers that in my opinion those
papers were not relevant for me to come to
the conclusion for permitting the prosecution
to prosecute against the accused.
I have no idea whether the accused Adam
Ajmeri and Adbul Qayum a Mufti had been taken
to Jammu and Kashmir for investigation by
Crime Branch, Ahmedabad. Witness volunteers
that as Crime Branch would not need to take
my permission for taking accused for
Investigation of State of Jammu and Kashmir,
I am not aware.
Crl.A.Nos.2295-2296 of 2010 - 100-
I had verified the case papers and satisfied
that section 52 of POTA had been complied
with completely.
There were no papers suggesting compliance of
section 52 of POTA in the bunch of papers
sent to me. According to me, those papers
were not relevant for my purpose as
compliance was to be observed by the I.O. and
I was not investigating the case.
I do not agree that the entire Investigation
had not been done by the competent officer of
the level of ACP.
I do not agree to the suggestion that neither
Minister nor I applied mind while granting
sanction nor officer below also applied mind
for such a grant.”
(emphasis laid by this Court)
(translation extracted from the Additional documents
submitted on behalf of State of Gujarat)
PW-88, in his deposition had stated that PW-126 had
forwarded to him the relevant documents as
aforementioned for the purpose of deciding whether it
was a fit case for granting sanction under Section 50
of POTA. He had reiterated in his deposition that he
had perused all these documents, especially Patrak-A,
which contained the details of the two Urdu letters
Crl.A.Nos.2295-2296 of 2010 - 101-
and the opinion of the handwriting expert from the FSL
and Patrak B, the contents of which were not mentioned
in his statement, and also the details of the arrest
of the accused persons. But glaringly, PW-88 had
stated in his deposition that he had not enquired
about whether there were any investigation papers
regarding the involvement of A-6 in the crime by the
Crime Branch, Ahmedabad, at Jammu and Kashmir. This
aspect is important as he had stated that he had no
knowledge of whether the custody of A-6 was taken in
accordance with due process of law. He further stated
that he had verified the case papers and had satisfied
himself that Section 52 of POTA had been complied with
completely but in the very next sentence, he stated:
“There were no papers suggesting compliance
of Section 52 of POTA in the bunch of papers
sent to me. According to me, those papers
were not relevant for my purpose as
compliance was to be observed by the I.O and
I was not investigating the case.”
Crl.A.Nos.2295-2296 of 2010 - 102-
(translation extracted from the Additional
documents submitted on behalf of State of
Gujarat)
Thus, it is clear from the statement of PW-88 that he
was an important part of the process of granting
sanction under POTA and could throw light on the
aspects taken into consideration while granting
sanction. He was the only prosecution witness who was
examined by the court in this regard and it is
apparent that he had not applied his mind for the
same, which is clearly visible from the inherent
contradictions in his statement as shown above.
75. It has been held by this Court that all the
relevant documents required for granting sanction
shall be presented before the sanctioning authority so
that the sanction can be granted on the basis of
relevant material information and documents collected
during the course of investigation with respect to the
crime. In the case of Rambhai Nathabhai Gadhvi & Ors.
Crl.A.Nos.2295-2296 of 2010 - 103-
v. State of Gujarat
39
, this Court, while examining a
similar sanction Order as provided under Section 15 of
TADA (repealed), has held as under:
“8. Taking cognizance is the act which the
Designated Court has to perform and granting
sanction is an act which the sanctioning
authority has to perform. Latter is a condition
precedent for the former. Sanction contemplated
in the sub-section is the permission to
prosecute a particular person for the offence
or offences under TADA. We must bear in mind
that sanction is not granted to the Designated
Court to take cognizance of the offence, but it
is granted to the prosecuting agency to
approach the court concerned for enabling it to
take cognizance of the offence and to proceed
to trial against the persons arraigned in the
report. Thus a valid sanction is sine qua non
for enabling the prosecuting agency to approach
the court in order to enable the court to take
cognizance of the offence under TADA as
disclosed in the report. The corollary is that,
if there was no valid sanction the Designated
Court gets no jurisdiction to try a case
against any person mentioned in the report as
the court is forbidden from taking cognizance
of the offence without such sanction. If the
Designated Court has taken cognizance of the
offence without a valid sanction, such action
is without jurisdiction and any proceedings
39
(1997) 7 SCC 744
Crl.A.Nos.2295-2296 of 2010 - 104-
adopted thereunder will also be without
jurisdiction.
9. In this case the prosecution relies on Ext.
63, an order issued by the Director General of
Police, Ahmedabad, on 3-9-1993, as the sanction
under Section 20-A(2) of TADA. We are
reproducing Ext. 63 below:
“Sr. No. J-1/1909/1/Khambalia 55/93
Director General of Police, Dated 3-9-1993
Gujarat State,
Ahmedabad.
Perused: (1) FIR in respect of offence
Registered No. 55/93 at Khambalia Police
Station 25(1)(b)(a)(b) of Arms Act and Sections
3, 4 and 5 of the TADA.
(2) Application sent by DSP Jamnagar vide
his letter No. RB/D/122/1993/1820 dated 9-8-
1993.
Having considered the FIR in respect of
offence Registered No. 55/93 at Khambalia
Police Station District Jamnagar under Section
25(1)(b)(a)(b) of Arms Act and Sections 3, 4
and 5 of TADA and letter No. RB/D/122/1993/1820
of DSP dated 9-8-1993 seeking permission to
apply the provisions of TADA carefully, I A.K.
Tandon, Director General of Police, Gujarat
State, Ahmedabad under the powers conferred
under the amended provisions of TADA (1993)
Section 20-A(2) give permission to add Sections
3, 4 and 5 of TADA.
A.K. Tandon
Director General of Police
Ahmedabad
Gujarat”
10. Apparently Ext. 63 makes reference only to
two documents which alone were available for
Crl.A.Nos.2295-2296 of 2010 - 105-
the Director General of Police to consider
whether sanction should be accorded or not. One
is the FIR in this case and the other is the
letter sent by the Superintendent seeking
permission or sanction. No doubt in that letter
to the Director General of Police the
Superintendent of Police had narrated the facts
of the case. But we may observe that he did not
send any other document relating to the
investigation or copy thereof along with the
application. Nor did the Director General of
Police call for any document for his perusal.
All that the DGP had before him to consider the
question of granting sanction to prosecute were
the copy of the FIR and the application
containing some skeleton facts. There is
nothing on record to show that the Director
General of Police called the Superintendent of
Police at least for a discussion with him.”
(emphasis laid by this Court)
It was further held by this Court in the case of
Anirudhsinhji Karansinhji Jadeja and Anr. v. State of
Gujarat
40
, as under:
“ 15. The aforesaid is however not all. Even if
it be accepted that as an additional safeguard
against arbitrary exercise of the drastic
provisions, the State Government had provided
by administrative instructions an additional
40
(1995) 5 SCC 302
Crl.A.Nos.2295-2296 of 2010 - 106-
safeguard whereunder the DSP was required to
obtain the sanction/consent of the State
Government, we are of the view that in the
present case the same was given by the State
Government without proper application of mind.
We have taken this view because the
sanction/consent was given by the Government
merely on the basis of the fax message dated
17-3-1995 of the DSP. The reason for our saying
so is that though there is no record a fax
message of Deputy Director General of Police
also, which is dated 18-3-1995, the
sanction/consent order has mentioned above the
fax message of the DSP only. Now, no doubt the
message of the DSP is quite exhaustive, as
would appear from that message which has been
quoted above in full, we are inclined to think
that before agreeing to the use of harsh
provisions of TADA against the appellants, the
Government ought to have taken some steps to
satisfy itself whether what had been stated by
the DSP was borne out by the records, which
apparently had not been called for in the
present case, as the sanction/consent was given
post-haste on 18-3-1995, i.e., the very next
day of the message of the DSP. It seems the DSP
emphasised the political angle in the first two
paragraphs of his message. The dispute or
motive stated was that the Darbars were annoyed
because they were refused loan and not because
of any political rivalry. In the third
paragraph there is reference to statements of
accused after arrest which would ordinarily be
inadmissible in evidence. Reference to avoid
incident of the past does not provide any
nexus. The State Government gave the sanction
without even discussing the matter with the
investigating officer and without assessing the
Crl.A.Nos.2295-2296 of 2010 - 107-
situation independently. All these show lack of
proper and due application of mind by the State
Government while giving sanction/consent.”
(emphasis laid by this Court)
It was the Deputy Secretary, Law and Order, Mr. J.R
Rajput who had signed the document of sanction issued
in the name of the Governor (Ex.498). However, he was
not examined by the Court. On the other hand, PW-88,
the Principal Secretary was examined. Therefore, we
intend to examine the statement of PW-88, since he
formed the only link in the Home Ministry of State of
Gujarat and could enlighten us with the facts and
information which were taken into consideration by him
while granting sanction.
While deposing before the Special Court (POTA), PW-88
stated that he had not discussed anything with the
Home Minister regarding the grant of sanction and the
Minister had simply signed the proposed note as a mark
of approval. PW-88 further stated that he had not
Crl.A.Nos.2295-2296 of 2010 - 108-
discussed anything with the I.O about granting
sanction in the present case. However, the Special
Court (POTA) erroneously justified the granting of
sanction on the ground that the learned counsel for A-
2 and A-4 before the Special Court (POTA), Mr. R.K.
Shah, did not insist on examination of the internal
note and at no stage was such a request made in
writing.
76. In the case of Mansukhlal Vithaldas Chauhan v.
State of Gujarat
41
, it has been held by this Court as
under:
“19. Since the validity of “sanction” depends
on the applicability of mind by the sanctioning
authority to the facts of the case as also the
material and evidence collected during
investigation, it necessarily follows that the
sanctioning authority has to apply its own
independent mind for the generation of genuine
satisfaction whether prosecution has to be
sanctioned or not. The mind of the sanctioning
authority should not be under pressure from any
quarter nor should any external force be acting
41
(1997) 7 SCC 622
Crl.A.Nos.2295-2296 of 2010 - 109-
upon it to take a decision one way or the
other. Since the discretion to grant or not to
grant sanction vests absolutely in the
sanctioning authority, its discretion should be
shown to have not been affected by any
extraneous consideration. If it is shown that
the sanctioning authority was unable to apply
its independent mind for any reason whatsoever
or was under an obligation or compulsion or
constraint to grant the sanction, the order
will be bad for the reason that the discretion
of the authority “not to sanction” was taken
away and it was compelled to act mechanically
to sanction the prosecution.”
(emphasis laid by this Court)
77. However, the present case does not show that the
sanctioning authority had applied its mind to the
satisfaction as to whether the present case required
granting of sanction. The prosecution had failed to
prove that the sanction was granted by the government
either on the basis of an informed decision or on the
basis of an independent analysis of fact on
consultation with the Investigating Officer. This
would go to show clear non-application of mind by the
Home Minister in granting sanction. Therefore, the
Crl.A.Nos.2295-2296 of 2010 - 110-
sanction is void on the ground of non- application of
mind and is not a legal and valid sanction under
Section 50 of POTA.
Answer to Point no. 2
78. To begin with, the provisions for recording
confessional statements can be found in CrPC under
Section 164 which reads as:
“164. Recording of confessions and statements.
(1) Any Metropolitan Magistrate or Judicial
Magistrate may, whether or not he has
jurisdiction in the case, record any confession
or statement made to him in the course of an
investigation under this Chapter or under any
other law for the time being in force, or at
any time afterwards before the commencement of
the inquiry or trial:
Provided that any confession or statement made
under this sub-section may also be recorded by
audio-video electronic means in the presence of
the advocate of the person accused of an
offence:
Provided further that no confession shall
be recorded by a police officer on whom any
power of a Magistrate has been conferred under
any law for the time being in force.
Crl.A.Nos.2295-2296 of 2010 - 111-
(2)The Magistrate shall, before recording any
such confession, explain to the person making
it that he is not bound to make a confession
and that, if he does so, it may be used as
evidence against him ; and the Magistrate shall
not record any such confession unless, upon
questioning the person making it, he has reason
to believe that it is being made voluntarily.
(3)If at any time before the confession is
recorded, the person appearing before the
Magistrate states that he is not willing to
make the confession, the Magistrate shall not
authorise the detention of such person in
police custody.
(4)Any such confession shall be recorded in the
manner provided in section 281 for recording
the examination of an accused person and shall
be signed by the person making the confession ;
and the Magistrate shall make a memorandum at
the foot of such record to the following
effect: -
"I have explained to (name) that he is not
bound to make a confession and that, if he does
so, any confession he may make may be used as
evidence against him and I believe that this
confession was voluntarily made. It was taken
in my presence and hearing, and was read over
to the person making it and admitted by him to
be correct, and it contains a full and true
account of the statement made by him.
(Signed) A. B.
Magistrate".
(5) Any statement (other than a confession)
made under sub- section (1) shall be recorded
in such manner hereinafter provided for the
recording of evidence as is, in the opinion of
the Magistrate, best fitted to the
circumstances of the case ; and the Magistrate
Crl.A.Nos.2295-2296 of 2010 - 112-
shall have power to administer oath to the
person whose statement is so recorded.
(6) The Magistrate recording a confession or
statement under this section shall forward it
to the Magistrate by whom the case is to be
inquired into or tried.”
However, caution against the use of confession
statements made by accused persons before the police,
is specifically provided in Section 162 of the CrPC,
which reads as:
“162. Statements to police not to be signed:
Use of statements in evidence. (1) No statement
made by any person to a police officer in the
course of an investigation under this Chapter,
shall, if reduced to writing, be signed by the
person making it; nor shall any such statement
or any record thereof, whether in a police
diary or otherwise, or any part of such
statement or record, be used for any purpose,
save as hereinafter provided, at any inquiry or
trial in respect of any offence under
investigation at the time when such statement
was made:
Provided that when any witness is called for
the prosecution in such inquiry or trial whose
statement has been reduced into writing as
aforesaid, any part of his statement, if duly
proved, may be used by the accused, and with
the permission of the Court, by the
prosecution, to contradict such witness in the
Crl.A.Nos.2295-2296 of 2010 - 113-
manner provided by section 145 of the Indian
Evidence Act, 1872 (1 of 1872); and when any
part of such statement is so used, any part
thereof may also be used in the re- examination
of such witness, but for the purpose only of
explaining any matter referred to in his cross-
examination.
(2) Nothing in this section shall be deemed to
apply to any statement falling within the
provisions of clause (1) of section 32 of the
Indian Evidence Act, 1872 (1 of 1872), or to
affect the provisions of section 27 of that
Act.
Explanation.-An omission to state a fact or
circumstance in the statement referred to in
sub-section (1) may amount to contradiction if
the same appears to be significant and
otherwise relevant having regard to the context
in which such omission occurs and whether any
omission amounts to a contradiction in the
particular context shall be a question of
fact.”
The caution against the use of confessional
statements of an accused given to police as
incriminating evidence stems from Article 20(3) of the
Constitution which provides that no person shall be
compelled to be a witness against himself. However,
POTA makes a departure from the above principle
through Section 32 which reads as under:
Crl.A.Nos.2295-2296 of 2010 - 114-
“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 reproduced, shall be admissible in the
trial of such person for an offence under this
Act or the rules made thereunder.
(2) A police officer shall, before recording
any confession made by a person under sub-
section (1), explain to such person in writing
that he is not bound to make a confession and
that if he does so, it may be used against him:
Provided that where such person prefers to
remain silent, the police officer shall not
compel or induce him to make any confession.
(3) 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.
(4) The person from whom a confession has been
recorded under sub-section (1), shall be
produced before the Court of a Chief
Metropolitan Magistrate or the Court of a Chief
Judicial Magistrate along with the original
statement of confession, written or recorded on
mechanical or electronic device within forty-
eight hours.
(5) The Chief Metropolitan Magistrate or the
Chief Judicial Magistrate, shall, record the
statement, if any, made by the person so
produced and get his signature or thumb
Crl.A.Nos.2295-2296 of 2010 - 115-
impression and if there is any complaint of
torture, such person shall be directed to be
produced for medical examination before a
Medical Officer not lower in rank than an
Assistant Civil Surgeon and thereafter, he
shall be sent to judicial custody.”
Since this Act makes a departure from the established
criminal jurisprudence as well as the provisions of
the Constitution, the constitutionality of the Act
came to be challenged before this Court in the case of
Peoples Union of Civil Liberties v. Union of India
42
.
The Court upheld the constitutionality of the Act
after taking into account all the provisions which
seemingly violate the fundamental rights guaranteed
under the Constitution. For the purpose of this case,
we intend to record the finding of this court with
respect to the provisions of Section 32. The relevant
paragraphs of the case read as under:
42
(2004) 9 SCC 580
Crl.A.Nos.2295-2296 of 2010 - 116-
“63. Concerning the validity and procedural
difficulties that could arise during the
process of recording confessions, the
Petitioners submitted that there is no need to
empower the police to record confession since
the accused has to be produced before the
Magistrate within forty-eight hours, in that
case the magistrate himself could record the
confession; that there is no justification for
extended the time limit of forty eight hours
for producing the person before the Magistrate;
that it is not clear in the Section whether the
confession recorded by the police officer will
have validity after Magistrate has recorded the
fact of torture and has sent the accused for
medical examination; that it is not clear as to
whether both the confession before the police
officer as well as confessional statement
before the Magistrate shall be used in
evidence; that the Magistrates cannot be used
for mechanically putting seal of approval on
the confessional statements by the police;
that, therefore, the Section has to be
nullified. Validity of this Section was
defended by the learned Attorney General by
forwarding the arguments that the provisions
relating to the admissibility of confessional
statements, which is similar to that of
Section 32 in POTA was upheld in Kartar
Singh case ; that the provisions of POTA are an
improvement over TADA by virtue of enactment of
Sections 32(3) to 32(5); that the general
principles of law regarding the admissibility
of a confessional statement is applicable
under POTA; that the provision which entails
the Magistrate to test and examine the
voluntariness of a confession and complaint of
torture is an additional safeguard and does not
Crl.A.Nos.2295-2296 of 2010 - 117-
in any manner inject any constitutional
infirmity; that there cannot be perennial
distrust of the police; that Parliament has
taken into account all the relevant factors in
its totality and same is not unjust or
unreasonable.
64. At the outset it has to be noted that
Section 15 of TADA that was similar to this
Section was upheld in Kartar Singh case (pp.
664-83 of SCC). While enacting this Section
Parliament has taken into account all the
guidelines, which were suggested by this Court
in Kartar Singh case. Main allegation of the
Petitioners is that there is no need to empower
the police to record confession since the
accused has to be produced before the
Magistrate within forty-eight hours in which
case the Magistrate himself could record the
statement or confession. In the context of
terrorism the need for making such a provision
so as to enable Police officers to record the
confession was explained and upheld by this
Court in Kartar Singh case (p. 680 para 253 of
SCC). We need not go into that question at this
stage. If the recording of confession by police
is found to be necessary by Parliament and if
it is in tune with the scheme of law, then an
additional safeguard under Sections 32(4) and
(5) is a fortiori legal. In our considered
opinion the provision that requires producing
such a person before the Magistrate is an
additional safeguard. It gives that person an
opportunity to rethink over his confession.
Moreover, the Magistrate’s responsibility to
record the statement and the enquiry about the
torture and provision for subsequent medical
treatment makes the provision safer. It will
Crl.A.Nos.2295-2296 of 2010 - 118-
deter the police officers from obtaining a
confession from an accused by subjecting him to
torture. It is also worthwhile to note that an
officer who is below the rank of a
Superintendent of Police cannot record the
confessional statement. It is a settled
position that if a confession was forcibly
extracted, it is a nullity in law. Non-
inclusion of this obvious and settled principle
does not make the Section invalid. (See: Kartar
Singh case, p. 678, para 248 –49 of SCC).
Ultimately, it is for the Court concerned to
decide the admissibility of the confession
statement. (See: Kartar Singh case p. 683, para
264 of SCC). Judicial wisdom will surely
prevail over irregularity, if any, in the
process of recording confessional statement.
Therefore we are satisfied that the safeguards
provided by the Act and under the law are
adequate in the given circumstances and we
don’t think it is necessary to look more into
this matter. Consequently we uphold the
validity of Section 32.”
(emphasis laid by this Court)
79. The provisions of a Special Act prevail over the
provisions of General Act. Since the constitutionality
of the POTA was declared as valid by this Court, its
provisions would prevail over CrPC. However,
considering the stringency of the provisions of POTA
Crl.A.Nos.2295-2296 of 2010 - 119-
and the grave consequences that misuse of the Act
might carry i.e, violation of right to life and
personal liberty, we need to ensure that the
guidelines laid down in the Act are rigorously
observed while recording the confessional statements
of the accused persons. We will examine herein the
various mandatory provisions to be followed while
recording the confessional statements and whether the
same have been followed in the instant case.
80. The learned senior counsel appearing on behalf of
A-2, A-3 and A-4 submitted that the mandatory
provisions laid down in Section 32 were not followed
by PW-78 Mr. Sanjaykumar Gadhvi while recording their
confessional statements. It was argued by the learned
senior counsel that Section 32(2) had not been
complied with since the accused persons were not
statutorily informed in writing that they were not
bound to make confessional statements and their
statements, if made, shall be used against them. The
Crl.A.Nos.2295-2296 of 2010 - 120-
learned senior counsel on behalf of the prosecution,
on the other hand contended that the statutory
mandates had been complied with by the police.
We have perused the evidence on record in this
aspect. We have found stark discrepancies in the
manner in which the statements of the accomplices and
those of the accused persons were recorded. While the
statements of the accomplices in the present case,
namely- PW-50, PW-51 and PW-52 were preceded by
written records of cautions in the same document, the
confessional statements of the accused persons do not
show such caution. On the other hand, the intimation
by the DCP Sanjaykumar Gadhvi (PW-78) appeared on a
separate documents marked as separate Exhibits from
the confessions. The same are as follows:
For A-2- Adambhai Sulaimanbhai Ajmeri
Intimation letter given by DCP prior to
confession- Ex.457
Confessional Statement- Ex. 458
For A-3-Mohammad Salim Mohammad Hanif Sheikh
Crl.A.Nos.2295-2296 of 2010 - 121-
Intimation letter given by DCP prior to
confession- Ex.453
Confessional Statement- Ex. 454
For A-4- Abdul Kayum
Intimation letter given by DCP prior to
confession- Ex. 459
Confessional Statement- Ex. 460
For A- 6- Shanmiya@ Chandkhan Sajjadkhan Pathan
Intimation letter given by DCP prior to
confession- Ex. 461
Confessional Statement- Ex. 462
On this aspect of the matter, the CJM, PW-99 made the
following statement during cross examination by the
learned counsel for the accused persons vide Ex.568:
“....It is true that the explanation given to
the accused and statement made by him, the said
both were separate papers. I agree to the fact
that generally the explanation and the
statement should be in same paper. As both of
this were in same papers, I did not suspect
that the said explanation which was given, has
been brought later on”
(translation extracted from the Additional
documents submitted on behalf of the
Appellants)
Crl.A.Nos.2295-2296 of 2010 - 122-
It is also pertinent to extract one of the intimation
letters given by the DCP prior to the confession of
one of the accused persons. The intimation letter
given by DCP to A-2 reads thus:
“....... your statement under section 32 of the
POTA before the Superintendent of Police is to
be taken. But you are not bound to make this
statement or confession and the confession that
you will make could be used against you as
evidence. So it is informed to you that you
give this statement willingly and free from any
kind of pressure or threat or allurement.”
(translation extracted from the Additional
documents submitted on behalf of the
Appellants)
81. It was held by this Court in the case of Hardeep
Singh Sohal & Ors. v. State of Punjab through CBI
43
that the police officer recording the confessional
43
(2004)11 SCC 612
Crl.A.Nos.2295-2296 of 2010 - 123-
statement under TADA is required to give in writing at
the end of the statement, that the accused was
informed that the confessional statement he has
voluntarily decided to make, can be used against him
as evidence and also the fact that the accused after
fully knowing the consequences has decided to make the
confessional statement. The relevant paragraphs of the
judgment can be read as under:
“16. The constitutional validity of Section 15
of the TADA Act was challenged. A Constitution
Bench of this Court in Kartar Singh v. State of
Punjab upheld the constitutional validity of
the said provision. The contention urged in
Kartar Singh case was that the procedure in the
TADA Act is the antithesis of a just, fair and
reasonable procedure and this power could be
abused to extort confession by unlawful means
by using third-degree methods. This plea was
rejected on the ground that sufficient
safeguards have been made in the Rules as to
the manner in which the confession is to be
recorded. Rule 15 extracted above would show
that confession shall be in writing and signed
by the person who makes the confession. The
police officer shall also certify under his own
hand that such confession was taken in his
presence and recorded by him and that the
record contains a full and true account of the
confession made by the person and such police
Crl.A.Nos.2295-2296 of 2010 - 124-
officer shall make a memorandum at the end of
the confession and the pro forma of such
certificate also is appended to Rule 15.
17. Ext. PAA does not contain such a
certificate having been given by PW 34. It is
true that PW 34 had put certain questions to
the accused as to whether he was aware that the
statement which he wants to make could be used
against him and on the basis of the same he
will be sentenced. The officer also asked him
whether there is any pressure, fear on him and
he answered in the negative. However, PW 34 did
not give the certificate at the end of the
confession. The certificate should have
specifically stated that he had explained to
the person making the confession that he was
not bound to make the confession and, if he
does so, the confession he may make may be used
against him and that he believed that this
confession was voluntarily made and it was
taken in his presence and recorded by him and
was read over to the person making it and
admitted by him to be correct, and it contained
a full and true account of the statement made
by him.
18. This Court has in a series of decisions
deprecated the practice of non-observance of
this provision and held that such violation
would be inadmissible. In Bharatbhai v. State
of Gujarat this Court held that Rule 15(3)( b)
of the TADA Rules was not complied with and no
memorandum as required was made. There was also
no contemporaneous record to show the
satisfaction of the recording officer after
writing of confession that the confession was
voluntarily made or read over to the accused.
Thus, the confessional statement was
Crl.A.Nos.2295-2296 of 2010 - 125-
inadmissible and cannot be made the basis for
upholding the conviction.
19. In S.N. Dube v. N.B. Bhoir this Court held
that writing the certificate and making the
memorandum under Rule 15(3)( b) to prove that
the accused was explained that he was not bound
to make a confession and that if he made it, it
could be used against him as evidence; that the
confession was voluntary and that it was taken
down by the police officer fully and correctly
are all matters not left to be proved by oral
evidence.”
Though the case mentioned supra dealt with TADA, the
Rules of which cannot be imported into POTA, the main
objective behind mentioning this case was that the
underlying safeguards which were required to be taken
while making confessional statement to the police
cannot be compromised with.
82. The intimation letters of caution written by PW-78
fail to prove that the process of intimation preceded
the recording of confessional statements as a
continuous process. On the other hand, the letters of
intimation and the confessional statements exist as
Crl.A.Nos.2295-2296 of 2010 - 126-
disjunctive evidence, failing to prove the required
chain of procedure, i.e, that the letters of caution
precede the confessional statements and not vice
versa.
Further, in the instant case, the CJM (PW-99 : Ex.568)
during cross examination before the Special Court
(POTA) by the learned counsel for the accused persons,
on being asked about sending the accused to judicial
custody after confession, stated:
“I had not sent him in judicial custody. I did
not feel that I should send him in judicial
custody......I had not asked the accused about
how many days of his remand are left. I had not
told him that he will not be sent to police
custody again”.
In the case of Mohammad Ajmal Mohammad Amir Kasab
Alias Abu Mujahid v. State of Maharashtra
44
, the
accused was willing to make confessional statement
44
(2012) 9 SCC 1
Crl.A.Nos.2295-2296 of 2010 - 127-
while he was in police custody. Yet, his confession
was deferred on the ground that he shall be sent to
judicial custody after the confession was made before
the CJM and this would hinder the investigation
procedure. However, in the present case, presenting
the accused persons before the CJM for half an hour
was a mere formality to show compliance with the
provisions of Sections 32(4) and 32(5) of POTA since
they were sent back to police custody immediately
after being presented before the CJM.
83. In the present case, the CJM (PW-99 : Ex.568),
during cross examination went on to record that:
“..... I did not make inquiry with any police
officers with regard to the said confessions. I
had not asked the two accused produced before
me as to whether they need any lawyer or not. I
had not taken the said accused persons in my
custody. It is true that I did not issue any
warrant for them to be sent to judicial
custody. It is true that I did not inquire with
the accused about where and at what time and
who recorded their statements. It is true that
I have not kept any rojkam or record in my
court about the accused persons produced before
Crl.A.Nos.2295-2296 of 2010 - 128-
me on date 25
th
. There is entry in the postal
book with regards to the covers along with the
statements having been sent by me to the POTA
court.”
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
The statements made by the CJM show how casually the
mandates under Sections 32(4) and 32(5) were followed,
rendering the said requirement a hollow and empty
exercise.
84. Now, we proceed to examine the statement of PW-78,
DCP Mr. Sanjaykumar Gadhvi(Ex.452), who recorded the
confessional statements of the accused persons. On
being cross examined by the learned counsel for A-1,
A-3 and A-5, he stated as under:
“..I have not asked the accused about since how
many days they were in custody. I had asked to
the officer who had brought the accused about
since how many days the accused was in police
custody. I had asked him but I don’t remember
presently what reply was given by him. Before
taking the statement of the accused persons, I
did not examine their physical condition by
Crl.A.Nos.2295-2296 of 2010 - 129-
removing their clothes. I knew that the fact
that the accused persons were brought from the
custody of Crime Branch. I had not asked to the
accused persons before recording confessional
statement that since how many days they were in
custody prior to the recording of the
confessional statement. I had not informed the
accused persons that if they do not give
confessional statement they will not be sent
back to the Crime Branch custody. I have not
made any note with regards to the fact that I
had sent back the Crime Branch Officer along
with vehicle. It is true that I had also not
written the fact at any place with regards to
the instruction given by me to return after
around three hours and only when called by me.
I had also not made any note with regards to
the fact that I had got the accused persons
seated in my P.A.s room. The fact that I had
informed accused persons in writing that they
are not bound to make statement and if they
make then the same can be used against them,
with regard to the said fact, I have not kept
any copy with me. On asking me about how I had
reached to the conclusion as stated by me with
regards to the language of Mohammad Salim, I
state that that he was speaking fearlessly and
whatever facts were stated by him, its point
were clear. There was no sign of fear in his
expression and he was not crying. I have not
made any note at any place with regards to the
fact stated by me to the accused persons that
their case is with Crime Branch and I am not
associated with Crime Branch in any way. I have
also not made note about having stated to the
accused that I am Deputy Superintendent of
different area. It is true that I have not
noted the fact separately regarding which I
Crl.A.Nos.2295-2296 of 2010 - 130-
have stated in my deposition that for the
purpose that he can re-think about giving
statement voluntarily, I had called my office
boy and had got him seated in adjacent office
of my PA and had asked to have water and think
over with peaceful mind for 10-15 minutes and
then come back to my office.
It is true that I have not made any note with
regards to the fact that “After 15 minutes, he
had again come to my office and had stated that
he had thought with peaceful mind about his
good and bad, thereby on the basis of feeling
regret felt by him, and that he in fact desires
to make his statement”. It is true that there
is no note regarding the fact that I had read
over the statement to the accused. I have also
not made note about the fact that I had stated
to the accused that “this statement is still
with me and since it is in the form of
confession, he is free to give or not give
statements, and he can also deny the same”.
(translation extracted from the Additional
documents submitted on behalf of the State of
Gujarat)
Further, during cross examination by the learned
counsel for A-2 and A-4, he stated that:
“It is true that with regards to the fact
stated by me during cross examination regarding
non- presence of written notes, the said
written notes are not present in case of every
Crl.A.Nos.2295-2296 of 2010 - 131-
accused. ...It is true that the two documents
which have been shown to me today in court,
except for the said documents, there are no
other written records with regards to
confessional statement. It is true that there
is no note with regards to time at any place in
the statement under s. 32 or in the document of
understanding. It is true that there is no
mention of any specific place of Ahmedabad city
in the column for place therein. “
(translation extracted from the Additional
documents submitted on behalf of the State of
Gujarat)
On being asked about what kind of understanding was
given by him to the accused persons before the
recording of the confessional statement, he stated:
“I had given understanding to the accused
during oral understanding that the type of his
statement is confessional statement.”
(translation extracted from the Additional
documents submitted on behalf of the State of
Gujarat)
Reverting to the requirement of Section 32, the police
officer recording the confessional statements is
Crl.A.Nos.2295-2296 of 2010 - 132-
required to explain in writing to the accused that he
is not bound to make confessional statement and once
such statement is made, the same can be used against
him. Further, it is imperative that the accused is
assured that if he does not make the confessional
statement, it will not jeopardize his well-being while
in police custody and also to ensure that such
statements are made before a competent police officer
in a threat-free environment. The deposition of the
police officer PW-78 who had recorded the confessional
statements of the accused persons however, reflects
otherwise. He admitted to the fact that he did not
assure the accused persons that not making the
confessional statement will not put them in adverse
position.
85. Further, there is nothing available on record to
show that reasonable reflection time was given to the
accused persons before making the confessional
statements, though the prosecution claimed to have
Crl.A.Nos.2295-2296 of 2010 - 133-
given them 15 minutes as reflection period. We will
examine this aspect of the matter herein.
It is pertinent to mention here that the two
exhibits referred to supra, namely, the letter of
intimation and the statements of confession, in the
case of each of the accused perso ns, are of the same
day. It has been contended by the learned senior
counsel of the accused persons that not enough time
was given to them to reflect on the incident before
making confessional statements. They were given a
token amount of time i.e., 15 minutes to think and
reflect and thereafter the recording of confessional
statements began, which fact is on record as per the
statement of PW-78, who recorded their confessional
statements. While it has been laid down by this Court
that the amount of time to be given for reflection
before confession depends on the facts and
circumstances of the case, it is imperative to bear in
mind that in the present case, the accused persons
Crl.A.Nos.2295-2296 of 2010 - 134-
were making confessions after a period almost 11
months after the incident. Hence, a mere period of 15
minutes does not appear to be reasonable time for
reflection on the incident of the attack and their
involvement in the same. In this regard, we wish to
mention the observation made by this Court on this
issue. In the case of State of Rajasthan v. Ajit Singh
& Ors.
45
, this Court observed as follows:
“12. We have perused the confession of the
seven accused and the prefatory proceedings
relating thereto. We first examine the
confession made by Noordeen. From Ext. P-18,
the note recorded by Shri Ranjit Basot as a
prelude to the recording of the confession, it
transpires that he had been produced before him
at 12.30 p.m. on 21-9-1991 and after the
completion of the formalities the recording of
the confession had started at 12.45 p.m.
Likewise Ajit Singh alias Guru Lal Singh had
been produced before the officer at 10.50 a.m.
and the recording of the confession had started
half an hour later. We have seen the record of
confessions of the other accused as well and it
shows that 15 to 30 minutes’ time was given to
the accused for reflection before the actual
45
(2008) 1 SCC 601
Crl.A.Nos.2295-2296 of 2010 - 135-
confessions were recorded. We accordingly find
that sufficient cooling-off time had not been
given to the accused, in the background that
they had been in police custody over a long
period of time. It has been held in Ranjit
Singh case: (SCC pp. 76-77, paras 10-12)
“10. According to the deposition of PW 3
in cross-examination, the accused were in
police custody 18-20 days prior to
recording of their confessional
statements. PW 3 has deposed that he gave
the requisite warning to the accused that
they were not bound to make the
confessional statement and if they make it
will be used as evidence against them, but
despite the warning they were prepared and
willing to make the statement. After
recording the introductory statement in
this behalf in question-answer form he
still considered it proper to give them
some time for rethinking and for this
purpose they were allowed to sit in a
separate room for some time and were
brought to him after about half an hour
and expressed their desire to make
statement and thereafter the confessional
statements were recorded.
11. Before adverting to the facts said to
have been narrated by the accused as
recorded in the two confessional
statements, it deserves to be noticed that
in case the recording officer of the
confessional statement on administering
the statutory warning to the accused forms
a belief that the accused should be
granted some time to think over the
Crl.A.Nos.2295-2296 of 2010 - 136-
matter, it becomes obligatory on him to
grant reasonable time for the purpose to
the accused. In other words, the cooling
time that is granted has to be reasonable.
What time should be granted would of
course depend upon the facts and
circumstances of each case. At the same
time, however, when the time to think over
is granted that cannot be a mere farce for
the sake of granting time. In a given
case, depending on facts, the recording
officer without granting any time may
straight away proceed to record the
confessional statement but if he thinks it
appropriate to grant time, it cannot be a
mechanical exercise for completing a
formality.
12. In Sarwan Singh Rattan Singh v. State
of Punjab where a Magistrate granted about
half an hour to the accused to think over
and soon thereafter recorded the
confessional statement, this Court
reiterated that when an accused is
produced before the Magistrate by the
investigating officer, it is of utmost
importance that the mind of the accused
person should be completely freed from any
possible influence of the police and the
effective way of securing such freedom
from fear to the accused person is to send
him to jail custody and give him adequate
time to consider whether he should make a
confession at all. It would naturally be
difficult to lay down any hard-and-fast
rule as to the time which should be
allowed to an accused person in any given
case.”
Crl.A.Nos.2295-2296 of 2010 - 137-
13. Applying the aforesaid principles to the
facts of the present case, we are of the
opinion that adequate time had not been given
to any of the accused as they had been in
police custody for almost 45 days in each case.
We also observe that there is no evidence on
record to suggest that the special report
envisaged under sub-rule (5) of Rule 15 had
been submitted to the Magistrate. The
confessions cannot, therefore, be taken into
account for any purpose.
(emphasis laid by this Court)
Further, in the case of Ranjit Singh v. State of
Punjab
46
,which case is relied upon in the case of Ajit
Singh(supra) this Court observed as under:
“11. Before adverting to the facts to have been
narrated by the accused as recorded in the two
confessional statements, it deserves to be
noticed that in case the recording officer of
the confessional statement on administering the
statutory warning to the accused forms a belief
that the accused should be granted some time to
think over the matter, it becomes obligatory on
him to grant reasonable time for the purpose to
the accused. In other words, the cooling time
46
(2002) 8 SCC 73
Crl.A.Nos.2295-2296 of 2010 - 138-
that is granted has to be reasonable. What time
should be granted would of course depend upon
the facts and circumstances of each case. At
the same time, however, when the time to think
over is granted that cannot be a mere farce for
the sake of granting time . In a given case,
depending on facts, the recording officer
without granting any time may straightaway
proceed to record the confessional statement
but if he thinks it appropriate to grant time,
it cannot be a mechanical exercise for
completing a formality.
13. This Court further held:- "However,
speaking generally, it would, we think, be
reasonable to insist upon giving an accused
person at least 24 hours to decide whether or
not he should make a confession. Where there
may be reason to suspect that the accused has
been persuaded or coerced to make a confession,
even longer period may have to be given to him
before his statement is recorded. In our
opinion, in the circumstances of this case it
is impossible to accept the view that enough
time was given to the accused to think over the
matter."
20. In the facts and circumstances of the
present case the grant of half an hour to the
accused to think over before recording their
confessional statement cannot be held to be a
reasonable period. We do not think that is safe
to base conviction on such confessional
statements. Further, on the facts of the
present case, conviction cannot be maintained
on the sole testimony of two police officials.
It may also be noticed that although PW6
Chander Bhan, Armourer, was examined by the
prosecution to prove that the weapons were in
working conditions, no effort was made to prove
Crl.A.Nos.2295-2296 of 2010 - 139-
that the ammunition or the empties matched the
weapons.”
(emphasis laid by this Court)
Therefore, in the given facts and circumstances on
record and based on the legal principles laid down by
this Court, we are of the opinion that enough time was
not given to the accused persons to record their
confessional statements, particularly in the present
case since they were making confessions after 11
months of the incident.
86. It is also pertinent to take note of the callous
manner in which PW-99 had discharged his duty in the
present case. Since A-2 and A-4 made confessional
statements on the same day, they were produced before
the CJM PW-99 the very next day. It is pertinent
therefore, to note the observation made by him with
respect to A-2 and A-4. The statement of PW-99 with
respect to A-2 is recorded as under:
“The accused has signed in this above statement
in my presence at 16-30 hrs
, today on
Crl.A.Nos.2295-2296 of 2010 - 140-
25.9.2013. And therefore, his statement by read
over and conveying him noted and he has signed
by admitting.
Sd/-
Chief Judicial Magistrate Rural”
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
The statement of CJM with respect to the A-4 is as
under:
“The accused has made his signature in the
above statement made by him today on dated
25.9.2003 at 5 p.m. before me. The statement is
read over and explained to accused and as he
admits the same, he has made his signature in
his confession.
Sd/- illegible
Chief Judicial Magistrate
Ahmedabad (Rural)
Old High Court, Ahmedabad”
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
Crl.A.Nos.2295-2296 of 2010 - 141-
From the above statements of the CJM PW-99, it can be
inferred that he was able to record the statement of
the accused persons, read it over to them and enquire about any coercion and torture, all in a period of half an hour. It is highly improbable that a
confessional statement running to more than 15 pages
could be read back to them within half an hour. The
statement of PW-99 on examination in chief and also on
cross examination has been mentioned above and it is
clear that he did not enquire about the basic
compliances he was required to make himself aware of,
to ensure fair investigation against the accused
persons. His conduct in recording of statement under
Section 32(5) of POTA merely resembles that of a
passive reluctant officer involved in some procedural
formality.
87. It is pertinent to note here that while POTA makes
a departure from CrPC in that it makes confessional
statements made before a police officer admissible,
Crl.A.Nos.2295-2296 of 2010 - 142-
the procedural safeguards therein are not a mechanical
formality. On the other hand, it should be able to
inspire confidence to show that the procedure has been
scrupulously followed while recording confessional
statements particularly because of the grave
consequences which follow such statements, which might
result in deprivation of life and personal liberty of
the person, which is a fundamental right guaranteed by
the Constitution that can be taken away only by
following the procedure established by law. Therefore,
it is incumbent upon the CJM to strictly and
scrupulously follow all the statutory procedural
safeguards provided for under Section 32 of POTA.
88. Further, the other statutory mandate under Section
32 of POTA is that the person making the confessional
statement shall be produced for medical examination
and thereafter, be sent to judicial custody after the
CJM records the statement of the accused person. The
question which then arises for our consideration is
Crl.A.Nos.2295-2296 of 2010 - 143-
whether this mandate is operative only if the accused
makes a complaint of torture before the CJM or whether
the CJM is duty bound to send the accused persons to
judicial custody as a statutory requirement after
recording the statement. It had been contended by the
learned senior counsel on behalf of the accused
persons that they were subjected to physical torture
by the police before the confessional statements were
recorded and that they were also kept in police
custody in the intervening night between being
produced before the CJM and being sent to Judicial
Custody. Therefore, though they were subjected to
torture, they could not make a complaint before the
CJM due to fear and apprehension, since they were
taken back to police custody after their statements
were recorded. The learned senior counsel for the
accused persons, argued that Section 32(5) unambiguously declares that the accused shall be sent to judicial custody after the recording of the
Crl.A.Nos.2295-2296 of 2010 - 144-
confessional statements, whereas the learned senior
counsel for the prosecution contended that the accused
must be sent for medical examination only if there is
a complaint of torture and only in that case, must he
be sent to judicial custody. We are unable to agree
with the argument of the learned senior counsel for
the prosecution.
Firstly, the use of the phrase, ‘shall be sent to
judicial custody’ after confession is a mandatory
requirement in comparison to the use of an alternative
term ‘may’ which gives discretionary power to the CJM.
Further, this court in the case of State (NCT of
Delhi) v. Navjot Sandhu
47
, has unambiguously observed
as under:
“177. Now we look to the confession from
other angles, especially from the point of
view of in-built procedural safeguards in
Section 32 and the other safeguards contained
in Section 52. It is contended by the learned
47
(2005) 11 SCC 600
Crl.A.Nos.2295-2296 of 2010 - 145-
senior counsel Mr. Gopal Subramanium that the
DCP before recording the confession, gave the
statutory warning and then recorded the
confession at a place away from the police
station, gave a few minutes time for
reflection and only on being satisfied that
the accused Afzal volunteered to make
confession in an atmosphere free from threat
or inducement that he proceeded to record the
confession to the dictation of Afzal.
Therefore, it is submitted that there was
perfect compliance with sub-Sections (2)&(3).
The next important step required by sub-
Section (4) was also complied with inasmuch
as Afzal was produced before the Additional
Chief Metropolitan Magistrate-PW63 on the
very next day i.e. 22.12.2001 along with the
confessional statements kept in a sealed
cover. The learned Magistrate opened the
cover, perused the confessional statements,
called the maker of confession into his
chamber, on being identified by PW80-ACP and
made it known to the maker that he was not
legally bound to make the confession and on
getting a positive response from him that he
voluntarily made the confession without any
threat or violence, the ACMM recorded the
statement to that effect and drew up
necessary proceedings vide Exts.PW63/5 and
PW63/6. It is pointed out that the accused,
having had the opportunity to protest or
complain against the behavior of police in
extracting the confession, did not say a
single word denying the factum of making the
confession or any other relevant
circumstances impinging on the correctness of
the confession. It is further pointed out
that Afzal and the other accused were also
Crl.A.Nos.2295-2296 of 2010 - 146-
got medically examined by the police and the
Doctor found no traces of physical violence.
It is therefore submitted that the steps
required to be taken under sub-Sections
(4)&(5) were taken. However, the learned
counsel for the State could not dispute the
fact that the accused Afzal was not sent to
judicial custody thereafter, but, on the
request of the I.O PW80, the ACMM sent back
Afzal to police custody. Such remand was
ordered by the ACMM pursuant to an
application made by PW80 that the presence of
Afzal in police custody was required for the
purpose of further investigation. Thus, the
last and latter part of sub-Section (5) of
Section 32 was undoubtedly breached. To get
over this difficulty, the learned counsel for
the State made two alternative submissions,
both of which, in our view, cannot be
sustained.
178. Firstly, it was contended that on a
proper construction of the entirety of sub-
Section (5) of Section 32, the question of
sending to judicial custody would arise only
if there was any complaint of torture and the
medical examination prima facie supporting
such allegation. In other words, according to
the learned counsel, the expression
'thereafter' shall be read only in
conjunction with the latter part of sub-
Section (5) beginning with 'and if there is
any complaint' and not applicable to the
earlier part. In our view, such a restrictive
interpretation of sub-Section (5) is not at
all warranted either on a plain or literal
reading or by any other canon of construction
including purposive construction. The other
Crl.A.Nos.2295-2296 of 2010 - 147-
argument raised by the learned counsel is
that the provision regarding judicial
custody, cannot be read to be a mandatory
requirement so as to apply to all situations.
If the Magistrate is satisfied that the
confession appears to have been made
voluntarily and the person concerned was not
subjected to any torture or intimidation, he
need not direct judicial custody. Having
regard to the circumstances of this case,
there was nothing wrong in sending back Afzal
to police custody. This contention cannot be
sustained on deeper scrutiny.
179. The clear words of the provision do not
admit of an interpretation that the judicial
custody should be ordered by the Chief
Judicial Magistrate only when there is a
complaint from the 'confession maker' and
there appears to be unfair treatment of such
person in custody. As already stated, the
obligation to send the person whose alleged
confession was recorded to judicial custody
is a rule and the deviation could at best be
in exceptional circumstances. In the present
case, it does not appear that the ACMM (PW63)
had in mind the requirement of Section 32(5)
as to judicial custody. At any rate, the
order passed by him on 22.12.2001 on the
application filed by PW80 does not reflect
his awareness of such requirement or
application of mind to the propriety of
police remand in the face of Section 32(5) of
POTA. Compelling circumstances to bypass the
requirement of judicial custody are not
apparent from the record.”
Crl.A.Nos.2295-2296 of 2010 - 148-
89. Apart from Section 32 of POTA, Section 52 also
lays down certain guidelines which are to be strictly
adhered to while recording the confessional statements
of an accused person under Section 32. On this issue,
it was held in Navjot Sandhu case (supra) as under:
“158. These provisions of Section 32, which are
conceived in the interest of the accused, will
go a long way to screen and exclude
confessions, which appear to be involuntary.
The requirements and safeguards laid down in
sub-sections (2) to (5) are an integral part of
the scheme providing for admissibility of
confession made to the police officer. The
breach of any one of these requirements would
have a vital bearing on the admissibility and
evidentiary value of the confession recorded
under Section 32(1) and may even inflict a
fatal blow on such confession. We have another
set of procedural safeguards laid down in
Section 52 of POTA which are modelled on the
guidelines envisaged by D.K. Basu8
Section 52
runs as under:
“52. (1) Where a police officer arrests
a person, he shall prepare a custody memo
of the person arrested.
(2) The person arrested shall be
informed of his right to consult a legal
practitioner as soon as he is brought to
the police station.
Crl.A.Nos.2295-2296 of 2010 - 149-
(3) Whenever any person is arrested,
information of his arrest shall be
immediately communicated by the police
officer to a family member or in his
absence to a relative of such person by
telegram, telephone or by any other means
and this fact shall be recorded by the
police officer under the signature of the
person arrested.
(4) The person arrested shall be
permitted to meet the legal practitioner
representing him during the course of
interrogation of the accused person:
Provided that nothing in this sub-
section shall entitle the legal
practitioner to remain present throughout
the period of interrogation.”
Sub-sections (2) and (4) as well as sub-section
(3) stem from the guarantees enshrined in
Articles 21 and 22(1) of the Constitution.
Article 22(1) enjoins that no person who is
arrested shall be detained in custody without
being informed, as soon as may be, of the
grounds for such arrest nor shall he be denied
the right to consult, and to be defended by, a
legal practitioner of his choice. They are also
meant to effectuate the commandment of Article
20(3) that no person accused of any offence
shall be compelled to be a witness against
himself.
159. The breadth and depth of the principle
against self-incrimination embedded in Article
20(3) was unravelled by a three-Judge Bench
speaking through Krishna Iyer, J. in Nandini
Satpathy v. P.L. Dani. It was pointed out by
the learned Judge that the area covered by
Crl.A.Nos.2295-2296 of 2010 - 150-
Article 20(3) and Section 161(2) CrPC is
substantially the same. “Section 161(2) of the
Criminal Procedure Code is a parliamentary
gloss on the constitutional clause” — it was
observed (SCC p. 434, para 21). This Court
rejected the contention advanced on behalf of
the State that the two provisions, namely,
Article 20(3) and Section 161, did not operate
at the anterior stages before the case came to
Court and the incriminating utterance of the
accused, previously recorded, was attempted to
be introduced. Noting that the landmark
decision in Miranda v. Arizona did extend the
embargo to police investigation also, the Court
observed that there was no warrant to truncate
the constitutional protection underlying
Article 20(3). It was held that even the
investigation at the police level is embraced
by Article 20(3) and this is what precisely
Section 161(2) means. The interpretation so
placed on Article 20(3) and Section 161, in the
words of the learned Judge,
“brings us nearer to the Miranda
mantle of
exclusion which extends the right against
self-incrimination, to police examination
and custodial interrogation and takes in
suspects as much as regular accused
persons” (SCC p. 435, para 22).
The observations in M.P. Sharma v. Satish
Chandra
(SCR p. 1088) to the effect that:
“the protection afforded to an accused
insofar as it is related to the phrase ‘to
be a witness’ is not merely in respect of
testimonial compulsion in the court room
but may well extend to compelled testimony
previously obtained from him”
Crl.A.Nos.2295-2296 of 2010 - 151-
were cited with approval in Nandini Satpathy
case (SCC p. 448, para 43).”
90. Therefore, we are of the opinion that neither the
police officer recording the confessional statements
nor the CJM followed the statutory mandates laid down
in POTA under Sections 32 and 52 while recording the
confessional statements of the accused persons, and we
hold that the confessional statements made by A-2, A-
3, A-4 and A-6 under Section 32 of POTA are not
admissible in law in the present case. Therefore, we
answer this point in favour of the appellants. We have
to observe next therefore, whether the statements of
the accomplices can be relied upon to determine the
involvement of the accused persons in this case.
Answer to point no.3:
91. Section 133 of the Indian Evidence Act 1872 states
that:
Crl.A.Nos.2295-2296 of 2010 - 152-
“an accomplice shall be a competent witness
against an accused person; and a conviction is
not illegal merely because it proceeds upon
the uncorroborated testimony of an accomplice.”
Both the courts below have placed extensive reliance
upon the evidence of accomplices, PW-50, PW-51 and PW-
52 to establish the culpability of the accused.
However, one needs to understand the extent of
admissibility of such evidence. But prior to that, we
also need to emphasize upon the reliability of the
evidence given by an accomplice. It has been held by
this court in the case of Haroom Haji Abdulla v. State
of Maharashtra
48
as under:
“8. ...... The Evidence Act in Section 133
provides that an accomplice is a competent
witness against an accused person and that a
conviction is not illegal merely because it
proceeds upon the uncorroborated testimony of
an accomplice. The effect of this provision is
that the court trying an accused may legally
convict him on the single evidence, of an
accomplice. To this there is a rider in
48
AIR 1968 SC 832
Crl.A.Nos.2295-2296 of 2010 - 153-
Illustration (b) to Section 114 of the Act
which provides that the Court may presume that
an accomplice is unworthy of credit unless he
is corroborated in material particulars. This
cautionary provision incorporates a rule of
prudence because an accomplice, who betrays his
associates, is not a fair witness and it is
possible that he may, to please the
prosecution, weave false details into those
which are true and his whole story appearing
true, there may be no means at hand to sever
the false from that which is true. It is for
this reason that courts, before they act on
accomplice evidence, insist on corroboration in
material respects as to the offence itself and
also implicating in some satisfactory way,
however small, each accused named by the
accomplice. In this way the commission of the
offence is confirmed by some competent evidence
other than the single or unconfirmed testimony
of the accomplice and the inclusion by the
accomplice of an innocent person is defeated.
This rule of caution or prudence has become so
ingrained in the consideration of accomplice
evidence as to have almost the standing of a
rule of law.
9. The argument here is that the cautionary
rule applies, whether there be one accomplice
or more and that the confessing co-accused
cannot be placed higher than an accomplice.
Therefore, unless there is some evidence
besides these implicating the accused in some
material respect, conviction cannot stand.
Reliance is placed in this connection upon the
observations of the Judicial Committee in
Bhuboni Sahu v. Emperor a case in which a
conviction was founded upon the evidence of an
accomplice supported only by the confession of
Crl.A.Nos.2295-2296 of 2010 - 154-
a co-accused. The Judicial Committee acquitting
the accused observed:
"...... Their Lordships whilst not
doubting that such a conviction is
justified in law under s. 133, Evidence
Act, and whilst appreciating that the
coincidence of a number of confessions of
co-accused all implicating the particular
accused given independently, and without
an opportunity of previous concert, might
be entitled to great weight, would
nevertheless observe that Courts should be
slow to depart from the rule of prudence,
based on long experience, which requires
some independent evidence implicating the
particular accused. The danger of acting
upon accomplice evidence is not merely
that the accomplice is on his own
admission a man of bad character who took
part in the offence and afterwards to save
himself betrayed his former associates,
and how has placed himself in a position
in which he can hardly fail to have a
strong bias in favour of the prosecution;
the real danger is that he is telling a
story which in its general outline is
true, and it is easy for him to work into
the story matter which is untrue..... "
(emphasis laid by this Court)
However, in the present case, the Courts below have
placed strong reliance upon the statements of
Crl.A.Nos.2295-2296 of 2010 - 155-
accomplices PW-50 Ashfaq Bhavnagri, PW-51 Abdul Rehman
Gulamhussain Panara and PW-52 Mohammad Munaf Sheikh to
establish the culpability of the accused persons.
Though the confessional statement of PW-51 was
followed by a retraction, the same as per the courts
below, did not vitiate the admissibility of the
evidence against the accused persons.
92. We will therefore, examine the relevant excerpts
from the statements of the three accomplices namely,
PW-50, PW- 51 and PW-52 to ascertain what each of them
had to say about the incident of the attack, on the
premise that Section 133 of the Evidence Act states
that an accomplice is a competent witness. PW-50 in
his deposition (Ex.312) before the Special Court
(POTA) stated as under:
“.....We used to arrange cassette at
Salimbhai’s place on Thursday night, it was
done by Salimbhai, and we had seen the
cassette over there, in which Muslim children
were burnt alive. There was mass killing of
Muslims. Huge mobs of Hindus had come and
Crl.A.Nos.2295-2296 of 2010 - 156-
they used to attack on Muslims, and there
were mass burial ceremonies. We had also seen
interviews of relief camps. Thereafter, there
were two maulanas (priests) at Salimbhai’s
place, among them one was named as Faradullah
Ghauri alais Abu Sufiyan and Saukatullah
Ghauri who was brother of Abu Sufiyan. They
had said their speech before us that this
much has happened in your Gujarat, despite
this you do not awake from your sleep and you
are engaged in playing carom. We are from
Hyderabad and have come to help you.
.......
There were also talks over there that
Lashkar-e-Toiba is having huge fund but is
not having network and Jaish-e-Mohammed does
not have fund but is having manpower as well
as it is having network, and hence, both
these groups will work together, therefore
you just give donation. On that night many
persons gave donation, donation of about 12
to 13 thousand Riyals was given. We were
taken to the program by Rashidbhai Ajmeri and
Salimbhai because we did not know those
people. Those people were new for us. Similar
program was also organized after riots in
Gujarat. At that time at least 400 people had
gathered and all were from Gujarat. Good
amount of donation was gathered in it also.
…And thus by doing such small meetings, they
used to gather money. After some time, people
got fed up and used to say that you are not
doing anything and are just utilizing the
money. We used to give money to Salimbhai
Sheikh who was with us, and he used to give
this money to Faradullah Ghauri, and he used
to send this money to India through charge
responsibility (Hawala). He used to send this
Crl.A.Nos.2295-2296 of 2010 - 157-
money through Majid Vora Patel and Iqbal Vora
Patel who are basically from Bharuch.
Thereafter, during about three months of
riots post- Godhra in 2002, Faradullah Ghauri
and Shaukatullah Maulana came to India, these
people had visited the relief camps in
Ahmedabad, and they had met with a person
named Jahid in camp, and they had gathered
persons whose family members were killed or
who had suffered great losses.
........
When Abu Talah and Faridullah Ghauri had come
to India, they had called Adam Ajmeri brother
of Rashid Ajmeri to Hyderabad for meeting.
Thereafter we came to know about Akshardham
tragedy on Saudi TV. Initially nobody spoke
about it, an thereafter one meeting was
organized after 8 days, and had said that
this is work of Jaish-e-Mohammed. And Abu
Talah had said to them, we came to know about
this from Salimbhai and Rashidbhai. These
people had also said that the persons who had
gone to Akshardham, their intention was to
spread terror and not to kill, their fight
was with the police, and had also said that
they gave fight for about 10 to 12 hours and
got martyred.“
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
Crl.A.Nos.2295-2296 of 2010 - 158-
He further stated during cross examination by learned
counsel Mr. H. N. Jhala for A-1, A-3 and A-5:
“Question: Was Salimbhai your leader?
Answer: Salimbhai had more responsibilities. He
had more worries about Islam. When I met with
Salimbhai on first Thursday after Godhra
carnage, he had no cassette at that time. I had
not kept any note for Salimbhai coming and
going to India. At the time of Godhra carnage,
Salimbhai was present at Saudi Arabia, and I
met him on Thursday thereafter.
Question: Incidence of Godhra happened on date
27/02/2002, what do you want to say about
Salimbhai was in India from January- 2002, and
not in Saudi Arabia?
Answer: It is true that he was not present in
Saudi at the time of Godhra carnage. Witness
voluntarily states that he was present at Saudi
at the time of Akshardham.
We had watched the cassette in the following
month of Godhra carnage. It is true that the
cassette in the following month of Godhra
carnage. It is true that the cassette (C.D.)
which was watched regarding the incidences of
Post Godhra carnage, the said were watched at
the house of Salimbhai. There is television and
VCD player at the house of Salimbhai.”
....
Question: The money which was collected in
Saudi Arabia, the said money was utilized for
running relief camps?
Crl.A.Nos.2295-2296 of 2010 - 159-
Answer: We used to give money to Salimbhai and
we had not asked him about what he did with
money nor did he say to us about what he did
with the money.
I had given maximum of 500 Riyal to Salimbhai,
it is Rs. 5000/-. Besides me, there were my
other friends who also used to meet at
Salimbhai’s place on every Thursday. Except me,
all other used to ask Salimbhai about what he
did with the money. Salimbhai used to say that
this money has been collected for taking
revenge. Since he didn’t say anything everybody
had stopped giving money. I don’t know if this
money was utilized for running relief camps.
…..The meetings which held during nights, the
said meetings held in big halls and party plots
of Riyadh. Salimbhai used to take us in these
meetings, and therefore, we used to go, he had
said you will have to come and therefore we had
attended two or three meetings. It was not like
that I have to go wherever Salimbhai asked to,
because he was doing his business and I was
doing job.”
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
Further, on cross examination by learned counsel of
A-2 and A-4 before the Special Court (POTA), PW-50
deposed as under:
Crl.A.Nos.2295-2296 of 2010 - 160-
“I know Rashid Ajmeri since two years of
incidence. Rashid Ajmeri was at Saudi Arabia in
year 2002. Name of the brother of Rashid Ajmeri
is Adam. It is Adam Ajmeri. The fact that Adam
Ajmeri was called at Hyderabad was stated to me
by Salimbhai and Rashidbhai. I don’t know about
why he was called at Hyderabad. It is not true
that I know that the fact I have stated about
Adam Ajmeri having gone to Hyderabad is false.
It is not true that the fact I am stating about
I having been called to Hyderabad by Salimbhai
and Adambhai is also stated false by me.”
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
PW-51, in his deposition (Ex.314), particularly
indicated the active involvement of A-2 and also about
the involvement of A-4 and A-5. The relevant excerpt
from the deposition reads as under:
“Nashir Doman, (the cable operator) in our area
had brought one person to me during afternoon
time at Bawahir Hall. Nasir had introduced him
to me as his friend Adambhai from Shahpur.
Nashir had said that Adambhai has come with
regards to taking revenge about what has been
suffered by Muslims during riots. During talks,
another of our friend named Munaf Radiator had
also arrived. And I had asked Adam to inform
about the matter.
Crl.A.Nos.2295-2296 of 2010 - 161-
Adam had said to us that his brother Rashid
resides at Riyadh Saudi Arabia. And Salim of
Dariapur, Kankodi Pol is with him. And under
leadership of Altaf Sheikh of Shahpur Adda,
there is big group of Muslim youths from
Gujarat especially from Ahmedabad. And they
have support of Jaish-E-Mohammad organization.
Those people will send weapons to us, will send
men, and are also ready to send funds. We will
have to remain helpful in doing survey work of
Hindu areas. On listening to such serious talk,
I had said that I will have to talk to my
leaders…..
At that time, I had met with Mufti Qaiyum and
Maulvi Abdullah near the hall. I had said to
them about what Adam had said, and in a way as
if they already knew about it. Thereby, they
replied that we know it and had assigned me the
responsibility of arranging house for the
guests who would come for the work of this
carnage, and I had agreed…..
As Adam informed about the talk having taken
place at Saudi Arabia, and he having informed
that phone call will come at Doman Nasir’s
place, Mufti Ayub and Maulvi had asked to four
of us to go and discuss at Nasir’s home. But
phone did not come. Thereafter, we and Adambhai
had departed after deciding to talk to Saudi
from opposite of Kalupur Railway. ….
After two to three days, I and Adam had gone
to Kalupur Darwaja on my scooter, and Nasir
Doman had also come along on his scooter. From
STD/ ISD booth named Kohinoor Telecom, Adam had
dialed number at Saudi Arabia and firstly he
had done all the talk in Arabic language, and
thereafter to give us assurance, he had talked
in Hindi language and asked to exchange
greetings with the people involved with me in
Crl.A.Nos.2295-2296 of 2010 - 162-
work. By saying this, Adam handed over the
receiver to me……. I was asked from the other
side in Gujarati, ‘brother, what you need,’.
Prior to this, Adam had asked me to demand for
Rs. 20 Lac for the work. Therefore, on my say
that it would take Rs. 20 lac for the work, I
was asked from the other side to give the phone
to Adambhai. And Adam had done some talk in
Arabic language. We could not understand the
said language. …
In the last week of May 2002, Nashir had called
me to his house by sending message through
someone. And when I went, Nashir, Adam and
Adam’s brother Ahmed was present. Adam had
given me Rs. 5000/- and had said to me that
guests are going to come and you have to
arrange for their lodging. And he had also
given Rs.5000/- to Nashir and he said to buy
two mobile phones from it and give it to
Rehman, and had said that the numbers for the
same will be given to the guests and had said
that thereby they will remain in contact. At
that time, I had said to Adam that another Rs.
15,000/- will be required for deposit of house
and for mattresses. So Adam said that it will
also be arranged, and when it was informed to
Mufti Qaiyum and Maulvi Abdullah at Bawahir
Hall about all this, at that time Mufti Qaiyum
had said to me that arrangement for lodging of
guests should be done, money is arranged or
not. At that time, Maulvi Abdullah had said
that if there is much problem then he should be
informed. After, one week, Nashir had given two
mobile phones to me….. After taking the said
phone, I had given it to Mehmood Wadhwani, and
I had said to him that you should only switch
it on when you want to use it, or keep it
continuously switched off. This Mehmood
Crl.A.Nos.2295-2296 of 2010 - 163-
Wadhwani is from Madhno Mohallo, Charwat,
Dariapur, and is my friend. …..
One day at 9 or 10 o’ clock in the night, Adam
had called me on my mobile phone …… We had cold
drinks over there and he had given me Rs.
5000/-. At that time, I had asked for another
Rs. 10,000/- for house and arrangement as the
earlier Rs. 5000/- had got spent in rickshaw
fare and SIM card. Therefore, Adam had agreed
for arranging another Rs. 10,000/- and thereby
we had departed. Thereafter, Nashir Doman had
come to call me at Hall and had said to me that
Adam is presently sitting at his brother,
Ahmed’s house and is calling you. Thereafter, I
and Nashir both went to Ahmed’s house by
walking and Adam had given me Rs. 10,000/- and
had informed me that guests will come from
Hyderabad to do carnage in Gujarat, and had
asked me to do arrangement for house and other
arrangements speedily, and therefore, I had
agreed and thereby we had departed.
…..And Adam had informed that the guests will
arrive from Hyderabad in one or two weeks. But
nobody had arrived. During June 2002, Adam had
said to me that your mobile phone for contact
is switched off. Therefore, the guests arriving
from Hyderabad while arriving at Ahmedabad had
contacted from Kheda, but since mobile phone
was switched off, contact could not be made and
thus, it seems that they have returned. …. I
had informed him that if the phone is switched
off, I will get it switched on. ..
I felt that Adam must have assured about the
other phone given to me if it is switched off
or switched on. And since the phone was
continuously switched off, he has made story
about the guests having returned from Kheda,
just to reprimand me. But I did not come to
Crl.A.Nos.2295-2296 of 2010 - 164-
know if the guests may have come up to Kheda or
not. After about a week or 10 days, Adam met me
at Dariapur and had said to me that the carnage
persons have returned back after coming to
Bareja- Narole as contact could not be made.
Therefore, there is no meaning keeping the
mobile phone with you. By having said this, he
has asked us to return both the mobile phones,
and therefore I had replied that there is my
card inserted in the mobile phone with me and I
will return it to you after I get another
instrument for me, and I will return the other
one by getting it back from my friend, so Adam
had said to give both the mobile phones to
Nashir and thereby he had left…..
During this time, Liyakat of Juhapura who had
gone outstation for marriage ceremony had
returned, and he met me at the corner of Madhno
Mohallo at Dariapur. He had said to me that now
the guests are not going to come. Possession of
the said house is to be handed back to
Sohrabkhan after returning mattresses, barrels
and table fans. The rent for it is to be paid
by me. After informing this, three or four days
later, Liyakat had said to me at Madhno Mohallo
that everything has been returned and Sohrab
had said about Rs. 500/- with regard to the
rent. Therefore, I had given Rs. 500/- to
Liyakat. …
Adam used to come every week for collecting the
money because he had given me Rs. 20,000/- and
two mobile phones for making arrangements for
the person to coming from Hyderabad to do
carnage, and from among them, one mobile phone
was taken back through Nashir and one was with
me and therefore, he used to ask for it. I used
to give him Rs. 300/- to Rs. 500/-. At last,
during end of September, once Adam had come to
Crl.A.Nos.2295-2296 of 2010 - 165-
my shop during noon time and had said that the
guest who were to come from Hyderabad for
doing carnage have arrived. He said, “I have to
take them around the city and therefore, I am
in need of more money”. At that time, Adam had
asked for Rs. 2000/- from me, but since the
said was not with me, I was asked to meet at
night, because I had to pay the due amount.
Adam had come in the night and since I had
arrangement for Rs. 900/-, I had given Rs.
900/- to him. At that time Adam had also said
to me that I had received the guests coming
from Hyderabad at Railway station, who have
come to do carnage and have taken them around
the city and thereafter have dropped them at
the railway station. During those days, while I
was passing from opposite of Dariapur Bawahir
Hall, at that time Mufti Abdul Qaiyum and
Maulvi Abdullah had met and exchanged
greetings. He had asked for well being and at
that time Mufti Abdul Qaiyum had informed me
that “the persons who were to come for carnage,
those guests have arrived, and God willing,
victory will be ours in short time”. Some days
earlier I had dispute with Maulvi Abdullah and
Mufti regarding dissimilarity of dowry in the
marriage of refugee girls in camp and since
there was no arrangement for distribution of
sewing machines. Therefore, I had not given
interest in their say. Thereafter, some days
later, while I was sitting at my traders place
at Gomaji complex, Pankornaka, Tran Darwaja, I
got the news that terrorists have attacked
Akshardham Temple. Therefore, I got the doubt
that this work may have been done by the
persons who have come from Hyderabad to do
carnage. Because, these people have said to me
the persons for carnage have arrived.”
Crl.A.Nos.2295-2296 of 2010 - 166-
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
Finally, we are extracting the relevant excerpt from
the statement made by PW-52 (Ex.315). The excerpt from
his statement reads as under:
“When the relief camp for Muslims had started
at Dariapur Bawahir Hall, at that time Muslim
youths of our area used to gather over there.
All used to sit and talk. Abdul Rehman Panara
was the organizer of the camp. Since he had
business by name of Panara Garments, I knew
him. The main administrators of the camp were
Mufti Abdul Qaiyum and Maulvi Abdullah.
Nasirbhai Doman who used to visit camp is cable
operator of our area, and I know him. I know
Adambhai since last election of Municipality
because he used to take interest in politics by
Congress Party. I knew brother of Adambhai
named Ahmedbhai of Dariapur, and therefore, I
started knowing Adambhai.
In the beginning of April 2002, once Adam had
called me on my mobile phone during noon time.
I had gone to Chaarwad Bawahir Hall and Nasir,
Adam and Abdul Rehman were present over there.
At that time, Adam Bhai had said that Muslims
have been oppressed here. And therefore,
carnage for taking its revenge is to be done.
He said that “my brother Rashid is in Saudi.
And Salim is with him. They have support of
Crl.A.Nos.2295-2296 of 2010 - 167-
Jaish-e-mohammad organization. We will seek
money from there. Those people will send men
and provide weapon. Salim has contact with
Jaish-e-Mohammad and Tanzeem. He had said that
these people are being sent for committing
carnage (kand). On listening to this, I got up
and felt afraid. When I got up, Adambhai had
made me to sit by holdi ng my hand and had
stated that we will also have to take advice
from big persons in this regard. Thereafter, we
had met with Mufti Aiyub Qaiyum and Maulvi
Abdullah at the office outside hall.
Both of them had informed that guests will
arrive for carnage. The work of arranging for
their house has been assigned to Abdul Rehman.
Adam had asked for a local phone number.
Therefore, Doman Bhai had given his house
telephone number. …
On second time, I, Abdul Rehman, Nasir Doman,
Adam had met in presence of Mufti Qaiyum and
Abdullah at Bawahir Hall. At that time, Adam
had informed that talk has been done at Saudi,
and number of Doman’s house has been given.
Therefore, phone will come over there.
Thereafter, Mufti Qaiyum and Maulvi Abdullah
had asked to four of us to go and discuss at
Nasir’s house, so that the phone call at
Nasir’s can be attended to …. But since no call
came, we had departed. Therefore, Rehman and
Adam had gone on Rehman’s scooter to talk from
PCO/ STD at railway station. And after
returning from Bawahir Hall, they had stated
that after trying to Saudi, nobody was found
present.
After some days of it, when I had gone to
Dariapur from Kalupur, Abdullahmiya and Mufti
Qayuim was stopped me and said that the guests
who were going to arrive have arrived , and you
Crl.A.Nos.2295-2296 of 2010 - 168-
will hear in sometime about the work which is
to be done. And therefore, I had got afraid and
had left, and had said don’t say it to me.
Guest means terrorist. After sometime, I got to
hear the news of Akshardham incidence. Police
had taken my statement with regards to the
facts mentioned by me today. I was taken to
Gandhinagar court for statement. Since I had
not seen the court, I asked the police to take
me along. …
….
Immediately after April 2002 that is after
about one month, I did not reveal to anybody
that such carnage is going to happen. I don’t
have relations with any police personnel. I
know Crime Branch Officer Mr. Singhal. I came
to know him when he called me for the first
time for statement. My friends are in garage
profession. After I came to know regarding
this carnage, I was not afraid at any time that
I may be implicated in this carnage. Witness
himself states that I don’t know anything about
it so why should I be afraid? I was suddenly
called at Crime Branch on 6.9.2003. It is true
that next day, on 7
th
, my statement was
recorded. It is not true that I was kept for
one month at Crime Branch. I have never met any
body after this. I had not talked with any one
of them.
…..
It is true that there was no activity in the
relief camp at Bawahir Hall. It is true that I
don’t know anything about if there was any
daily note in register for entry/ exit in
Bawahir Hall. It is true that I have stated in
examination in chief that no work was assigned
to me. It is true that when I was informed
during cross examination about my statement
Crl.A.Nos.2295-2296 of 2010 - 169-
having been recorded on 7.9.2003, at that time
I got idea about the date, month and year.
…….
Question: Had you understood at the respective
time that confession of the offences is being
written?
Answer: No, I have not committed any offence at
any time, then how such confession can be
written.
I don’t remember if Magistrate Sir had asked
me that the statement that will be given by
you, can be used against you.
Question: If the Magistrate sir had asked you
that if police has done any misbehavior with
you?
Answer: No misbehavior was done. Although I was
asked as such.
It is not true whole of my reply (statement)
was got written before Magistrate from my
statement and I didn’t say anything. I had
placed only one signature in my statement,
which was recorded before the Magistrate. It is
true that I had placed the signature on the
last page. It is not true that I am giving
false deposition on oath. It is not true that
the police had written my statement by
threatening me to make me accused. It is not
true that I am giving false deposition even
today under the threat of police.
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted the appellants)
Crl.A.Nos.2295-2296 of 2010 - 170-
93. Before examining the evidence of the accomplices
on merit, we need to satisfy ourselves that the
evidence of the accomplices is acceptable. The twin
test on this point has been laid down by this Court in
the three judge bench decision of this Court in
Ravinder Singh v. State of Haryana
49
which was
reiterated in the case of Mrinal Das & Ors. v. State
of Tripura
50
, wherein this Court in the Ravinder Singh
case (supra) held as under:
“12. An approver is a most unworthy friend, if
at all, and he, having bargained for his
immunity, must prove his worthiness for
credibility in court. This test is fulfilled,
firstly, if the story he relates involves him
in the crime and appears intrinsically to be a
natural and probable catalogue of events that
had taken place. The story if given, of minute
details according with reality is likely to
save it from being rejected brevi manu.
Secondly, once that hurdle is crossed, the
story given by an approver so far as the
accused on trial is concerned, must implicate
him in such a manner as to give rise to a
conclusion of guilt beyond reasonable doubt. In
49
(1975) 3 SCC 742
50
(2011) 9 SCC 479
Crl.A.Nos.2295-2296 of 2010 - 171-
a rare case taking into consideration all the
factors, circumstances and situations governing
a particular case, conviction based on the
uncorroborated evidence of an approver
confidently held to be true and reliable by the
court may be permissible. Ordinarily, however,
an approver's statement has to be corroborated
in material particulars bridging closely the
distance between the crime and the criminal.
Certain clinching features of involvement
disclosed by an approver appertaining directly
to an accused, if reliable, by the touchstone
of other independent credible evidence, would
give the needed assurance for acceptance of his
testimony on which a conviction may be based. ”
(emphasis laid by this Court)
A perusal of the evidence of all the three accomplices
in the present case shows that all of them intended to
absolve themselves of the liability for the conspiracy
with respect to the attack on Akshardham, going as far
to mention that they were not involved in the incident
and only the accused persons knew about the intricate
details of the chain of events that ultimately led to
the execution of their plan of ‘carnage’. Even then,
if, we were to presume that the accomplices have
Crl.A.Nos.2295-2296 of 2010 - 172-
implicated themselves by mentioning that they were
aware about some incident which was about to happen
and thus, were part of the criminal conspiracy, the
evidence of the accomplices fail the second test, in
that it fails to prove the guilt of the accused
persons beyond reasonable doubt. All the three
accomplices mentioned about the plan of ‘carnage’
which the accused persons had planned together.
However, no link can be established between the
accused persons and the attack on Akshardham since the
evidence of the accomplices is far too vague and they
fail to provide any form of substantive evidence
against the accused persons. Therefore, we need to
examine the statements of the accomplices in the light
of the legal principle laid down by this Court in the
case of Mohd. Husain Umar Kochra Etc. v. K.S.
Dalipsinghji & Anr. Etc.
51
which held as under:
51
(1969) 3 SCC 429
Crl.A.Nos.2295-2296 of 2010 - 173-
“21. On the merits, we find that the two courts
have recorded concurrent findings of fact.
Normally this Court does not re-appraise the
evidence unless the findings are perverse or
are vitiated by any error of law or there is a
grave miscarriage of justice. The courts below
accepted the testimony of the accomplice Yusuf
Merchant. Section 133 of the Evidence Act says:
“An accomplice shall be a competent
witness against an accused person; and a
conviction is not illegal merely because
it proceeds upon the uncorroborated
testimony of an accomplice.”
Illustration (b) to Section 114 says that the
Court may presume that an accomplice is
unworthy of credit unless he is corroborated in
material particulars. The combined effect of
Sections 133 and 114, Illustration ( b) is that
though a conviction based upon accomplice
evidence is legal the Court will not accept
such evidence unless it is corroborated in
material particulars. The corroboration must
connect the accused with the crime. It may be
direct or circumstantial. It is not necessary
that the corroboration should confirm all the
circumstances of the crime. It is sufficient if
the corroboration is in material particulars.
The corroboration must be from an independent
source. One accomplice cannot corroborate
another, see Bhiva Doulu Patil v. State of
Maharashtra and R. v. Baskerville. In this
light we shall examine the case of each
appellant separately.”
Crl.A.Nos.2295-2296 of 2010 - 174-
Therefore, in the light of the case mentioned above,
we begin with examining in detail the evidence of PW-
50. He has stated in his deposition about watching
videos of riots and killing of Muslims in Gujarat in
the house of A-3 at Riyadh, which act, by itself does
not constitute a criminal offence. On being asked
during the cross examination before the Special Court
(POTA) if the money donated by the gathering in Saudi
Arabia to A-3, was used for running the relief camps
in Gujarat, he was not able to answer for what purpose
exactly the money was collected. Therefore, at the
most, even if his evidence is taken to be true for the
sake of argument, some suspicion, if at all, can be
cast on the involvement of A-3 in some sort of illegal
activity at the most. But culpability of a person in
as grievous an offence as this, cannot be premised on
mere suspicion without knowledge of the nature of the
illegal activity.
Crl.A.Nos.2295-2296 of 2010 - 175-
94. Next, with respect to PW-51, the evidence is not
reliable because of two reasons. Firstly, according to
his evidence, it was reported to him by A-2 that the
fidayeens had arrived from Hyderabad which contradicts
the claim of the prosecution. Secondly, A-2 did not
state anything beyond the alleged arrival of the
fidayeens which cannot be connected to the event of
attack on Akshardham beyond reasonable doubt. It
again, merely arouses suspicion about the involvement
of A-2 and the passive approval of A-4 and A-5 in the
incident.
Even with respect to PW-52, other than the fact that
he mentioned about A-2 telling him that they are
planning a ‘carnage’ and that some ‘guests’ have
arrived, no other detail was provided by PW-52 in his
evidence. It is also pertinent to mention here that
A-6 had not been mentioned at all in the evidence of
any of the accomplices. Therefore, the twin test to
establish the credibility of the guilt of the accused
Crl.A.Nos.2295-2296 of 2010 - 176-
persons based on the evidence of the accomplices,
fails miserably in the present case.
Further, on the aspect of guilt to be proved
beyond reasonable doubt, it is pertinent to mention
the case of Vijay Kumar Arora v. State(Govt. of NCT of
Delhi)
52
, wherein the Court held as under:
“16.Essential ingredients to prove the guilt of
an accused by circumstantial evidence are:
16.1. The law relating to circumstantial
evidence is well settled. In dealing with
circumstantial evidence, there is always a
danger that conjecture or suspicion lingering
on mind may take place of proof. Suspicion,
however, strong cannot be allowed to take place
of proof and, therefore, the Court has to be
watchful and ensure that conjectures and
suspicion do not take place of legal proof .
However, it is no derogation of evidence to say
that it is circumstantial. Human agency may be
faulty in expressing picturisation of actual
incident, but the circumstances cannot fail.
Therefore, many a times it is aptly said that
"men may tell lies, but circumstances do not".
16.2. In cases where evidence is of a
circumstantial nature, the circumstances from
which the conclusion of guilt is to be drawn
should, in the first instance, be fully
52
(2010) 2 SCC 353
Crl.A.Nos.2295-2296 of 2010 - 177-
established. Each fact sought to be relied upon
must be proved individually. However, in
applying this principle, a distinction must be
made between facts called primary or basic on
the one hand and inference of facts to be drawn
from them, on the other. In regard to proof of
primary facts, the court has to judge the
evidence and decide whether that evidence
proves a particular fact and if that fact is
proved, the question whether that fact leads to
an inference of guilt of the accused person
should be considered. In dealing with this
aspect of the problem, the doctrine of benefit
of doubt applies.”
(emphasis laid by this Court)
95. Thus, as can be seen from the above mentioned
case, the evidence of the accomplices at the most,
raises suspicion and conjectures but the same cannot
be construed as legal evidence against the accused
persons, relying solely on which they can be
convicted, as has been done by the courts below.
Moreover, it is a settled principle of law that the
confessional statements of accomplices form a very
weak form of evidence, to prove the culpability of the
accused persons if the guilt of the accused cannot be
Crl.A.Nos.2295-2296 of 2010 - 178-
proved, independent of the statements of the
accomplices. Therefore, the same cannot be used to
corroborate the confessional statements of an accused.
Instead, there should be independent evidence to
corroborate the evidence of the accomplice to
establish the culpability of the accused. In this
regard, we intend to rely upon the three Judge bench
decision of this court as early as 1952 which still
holds its field. In the case of Kashmira Singh v.
State of Madhya Pradesh
53
, this court held as under:
“8. Gurubachan's confession has played an
important part in implicating the appellant,
and the question at once ari ses, how far and in
what way the confession of an accused person
can be used against a co-accused? It is evident
that it is not evidence in the ordinary sense
of the term because, as the Privy Council say
in Bhuboni Sahu v. The King, 76 Ind App 147 at
p.155 :-
"It does not indeed come within the
definition of 'evidence' contained in S.3,
the Evidence Act. It is not required to be
given on oath, nor in the presence of the
53
AIR 1952 SC 159
Crl.A.Nos.2295-2296 of 2010 - 179-
accused and it cannot be tested by cross
examination."
Their Lordships also point out that it is
"obviously evidence of a very weak
type...... It is a much weaker type of
evidence than the evidence of an approver,
which is not subject to any of those
infirmities."
....
10. Translating these observations into
concrete terms they come to this. The proper
way to approach a case of this kind is, first,
to marshal the evidence against the accused
excluding the confession altogether from
consideration and see whether, if it is
believed, a conviction could safely be based on
it. If it is capable of belief independently of
the confession, then of course it is not
necessary to call the confession in aid. But
cases may arise where the judge is not prepared
to act on the other evidence as it stands even
though, if believed, it would be sufficient to
sustain a conviction. In such an event the
judge may call in aid the confession and use it
to lend assurance to the other evidence and
thus fortify himself in believing what without
the aid of the confession he would not be
prepared to accept.
11. Then, as regards its use in the
corroboration of accomplices and approvers. A
co-accused who confesses is naturally an
accomplice and the danger of using the
testimony of one accomplice to corroborate
another has repeatedly been pointed out. The
danger is in no way lessened when the
"evidence" is not on oath and cannot be tested
by cross-examination. Prudence will dictate the
same rule of caution in the case of a witness
Crl.A.Nos.2295-2296 of 2010 - 180-
who though not an accomplice is regarded by the
judge as having no greater probative value. But
all these are only rules of prudence. So far as
the law is concerned, a conviction can be based
on the uncorroborated testimony of an
accomplice provided the judge has the rule of
caution, which experience dictates, in mind and
gives reasons why he thinks it would be safe in
a given case to disregard it. Two of us had
occasion to examine this recently in Rameshwar
v. The State of Rajasthan,Cri. App. No.2 of
1951 : (AIR 1952 SC 54). It follows that the
testimony of an accomplice can in law be used
to corroborate another though it ought not to
be so used save in exceptional circumstances
and for reasons disclosed. As the Privy Council
observe in Bhuboni Sahu v. The King, 76 Ind.
App. 147 at p.157 :
"The tendency is include the innocent with
the guilty is peculiarly prevalent in
India, as judge have noted on innumerable
occasions, and it is very difficult for
the court to guard against the danger....
The only real safeguard against the risk
of condemning the innocent with the guilty
lies in insisting on independent evidence
which in some measure implicates such
accused."
12.………We do not doubt that a rickshaw was used
because rickshaw tracks were discovered by the
well long before anybody had suggested that a
rickshaw had been used . But we find it
difficult to resist the inference that this
witness was an accomplice so far as the
disposal of the body was concerned.
Consequently, he is in much the same category
so far as credibility is concerned. That brings
us at once to the rule that save in exceptional
Crl.A.Nos.2295-2296 of 2010 - 181-
circumstances one accomplice cannot be used to
corroborate another; nor can he be used to
corroborate a person who though not an
accomplice is no more reliable than one. We
have therefore either to seek corroboration of
a kind which will imp licate the appellant apart
from the confession or find strong reasons for
using Gurubachan's confession for that purpose.
Of course against Gurubachan there is no
difficulty, but against the appellant the
position is not as easy.
We will therefore examine the reliability of
Gurubachan's confession against the appellant.
Now there are some glaring irregularities
regarding this confession and though it was
safe for the Sessions Judge and the High Court
to act on it as against Gurubachan because he
adhered to it throughout the sessions trial
despite his pleader's efforts to show the
contrary, a very different position emerges
when we come to the appellant.
The first point which emerges regarding this is
that the confession was not made till the 25-2-
1950, that is to say, not until two months
after the murder…”
(emphasis laid by this Court)
In the present case, the prosecution did not make any
effort to substantiate the evidence of the accomplices
with independent material evidence. Rather, the
confessional statements of the accomplices have been
used to corroborate the confessional statements of the
Crl.A.Nos.2295-2296 of 2010 - 182-
accused persons, in the absence of any independent
evidence.
96. But, apart from all these aspects on the
statements of the accomplices, we fear that the story
against the accused persons and its corroboration
through the statements of accomplices is an act of
concoction to make up a case against them. It was
recorded in the statement of PW-126 that the
information regarding PW-50 was given to him by D.G.
Vanzara. However, D.G. Vanzara had not even been
examined in this case and there is no information as
to how he came to know about PW-50 after almost a year
of the attack on Akshardham. This very important
aspect of the lapse in investigation had been ignored
by the courts below. The learned senior counsel for
the accused persons have contended that there has been
a delay of around a year from the time of the attack
on Akshardham in recording the statements of the
accomplices which shrouds the case of the prosecution.
Crl.A.Nos.2295-2296 of 2010 - 183-
We have to accept the contention of the learned senior
counsel for the accused persons in this regard as
there is an inordinate delay in recording of the
statements of the accomplices and this casts a grave
suspicion on the reliability of the testimony of the
accomplices.
It has been held by this Court in the case of
State of Andhra Pradesh v. Swarnalatha & Ors.
54
as
under:
“ 21. It stands accepted that the statements of
PW 3 and PW 6 were recorded only on 31-1-1998.
The investigating officer did not assign any
reason as to why so much delay was caused in
recording their statements. A panchnama in
regard to the scene of offence was conducted.
PW 6 was admittedly not present at that time.
The statements of PW 3 and PW 6 were recorded
under Section 164 of the Code of Criminal
Procedure much before their recording of their
statements under Section 161 thereof.
22. In Ganesh Bhavan Patel v. State of
Maharashtra this Court held:
“47. All the infirmities and flaws pointed
out by the trial court assumed importance, when
54
(2009) 8 SCC 383
Crl.A.Nos.2295-2296 of 2010 - 184-
considered in the light of the all-pervading
circumstance that there was inordinate delay in
recording Ravji’s statement (on the basis of
which the ‘FIR’ was registered) and further
delay in recording the statements of Welji,
Pramila and Kuvarbai. This circumstance,
looming large in the background, inevitably
leads to the conclusion, that the prosecution
story was conceived and constructed after a
good deal of deliberation and delay in a shady
setting, highly redolent of doubt and
suspicion.”
(emphasis laid by this Court)
Further, PW-51 on being cross examined by the counsel
for A-1, A-3 and A-5, Shri H.N. Jhala before the
Special Court (POTA), stated that:
“It is true that I wa s taken to the Crime
Branch 60 days earlier when my statement was
taken. I was severely beaten up and therefore
even my thumb had got broken. I was told that I
as well as my family will be taken as accused.
I have not done anything wrong in my life. I
was beaten up at the Crime Branch for 15 to 20
days. I am coming just now from the Crime
Branch. I was called today at 9:30 in the
morning and was also called yesterday at 6:00
p.m. It is true that I was told at Crime Branch
that you have to depose as we say or else you
will get in trouble. It is true that whatever I
have stated in the examination in chief, the
Crl.A.Nos.2295-2296 of 2010 - 185-
said has been stated by me at the instance of
the Crime Branch. The fact as stated by me in
examination in chief that Mufti Abdullah and
Maulvi Abdullahmiya met me after Godhra
carnage, the said has been false stated by me.
Prior to the time when I was deposing, I was
said that I have to state before the Court that
guests are going to come and they are
terrorists ans they were still reading over the
said facts to me. It is true that Maulana
Abdullahmiya leads in prayer in Haji Saki
Mosque. It is true that the facts stated by me
to have sought Rs. 20 lakhs from Saudi Arabia
on phone, the said facts are false. It is true
that I have stated in the chief- examination
that when I was asked who are guests, at that
time I have said that the guests will survey
the Hindu areas and will do the killings which
are to be done, the said facts have been stated
falsely. It is true that I stated in
examination in chief that while I was passing
from the near the Bawahir Hall, at that time
Maulana Abdullahmiya and Mufti Abdul Qaiyum met
me, had exchanged greetings and they also said
that the guests have arrived and God willing in
some days victory will be ours, the said facts
have been stated by me falsely……”
(translation extracted from the Additional
documents submitted on behalf of the appellants)
Also on cross examination by Adv. Shri R.K. Shah for
A-2 and A-4, PW-51 said:
Crl.A.Nos.2295-2296 of 2010 - 186-
“…….It is true that around 700 people lived
in the said camp. I don’t know if except for
me, many other workers were taken by the
Crime Branch personnel and there were protest
in this regard. The witness states that
Khalid Sheikh was taken from our place. The
witness himself states that I was kept blind
folded (by tying strip on eyes) and
therefore, I don’t know. I was questioned
about identification of accused no. 2 and 5.
I do not know after how many days these
accused persons were brought when I was taken
by the Crime Branch personnel because I could
not make out about dates and days. It is true
that I was released after two months by the
crime branch and remand of the accused had
completed prior to the time when I was
released. It is true that when I was taken to
the magistrate, I was told that this
confession could be used against me in the
Court…..It is true that the statement written
by the Magistrate Sir was written from the
statement at Crime Branch.”
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
During cross examination by the Special Public
Prosecutor, Shri H.M. Dhruva, he stated thus:
“……I was taken to Crime Branch in seventh or
Eighth month of the year 2003. I was confined
continuously for two months and was not
Crl.A.Nos.2295-2296 of 2010 - 187-
allowed to go anywhere. Application was not
submitted by any of my relative in this
regards. My relative had not filed any case
with regards to my wrongful confinement nor
was any application filed. After I got
released 2 months later, I have not submitted
any application anywhere. I was questioned
with regard to the case. The witness himself
states that questioning was done just with
regards to the camp. With regards to all the
other facts, only written statements were
given. It is true that I was taken to the
Magistrate Sir regarding what I know about
this statement. It is not true that the
Magistrate had asked any question to me and I
had replied to the Sir. It is true that I did
state the fact to the magistrate that I was
confined for two months and was beaten up.
The witness himself states that I was told
not to say it. It is true that from the time
I was released from Crime Branch and till the
time when I came to give this deposition, I
have not submitted any application in this
regards, nor have I made any complaint. ……
….It is true that I did not give any written
or oral complaint on the last court date with
regards to having been confined for 60 days
and having been threatened by the Crime
Branch. It is true that I am stating these
facts for the first time after my deposition
on the last date 15.7.2005. It is true that I
went to Crime Branch after I had deposed on
the last occasion, and thereafter I had gone
to my house. …..The witness himself states
that I made daily phone calls to Crime
Branch…..Crime Branch officer used to
investigate if I am threatened by anybody. It
Crl.A.Nos.2295-2296 of 2010 - 188-
is not true that when I went even today, I
was questioned if anybody has threatened me.
……
It is not true that I am giving such
deposition since I have received threats from
the accused persons. It is not true that I
received such threats after I deposed on the
last court date.”
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
The statement made by PW-51 during the cross
examination along with the legal principle laid down
by this Court leads us to the conclusion that there
was a serious attempt on the part of the investigating
agency to fabricate a case against the accused persons
and frame them with the help of the statements of the
accomplices, since they had not been able to solve the
case even after almost a year of the incidence.
97. Therefore, we hold that the evidence of the
accomplices cannot be used to corroborate the
confessional statements of the accused persons in the
Crl.A.Nos.2295-2296 of 2010 - 189-
absence of independent evidence and the delay of more
than one year in recording their statements causes us
to disregard their evidence. Therefore, we answer this
point in favour of the appellants.
Answer to point no. 4
98. The two Urdu letters were mentioned for the first
time in the list of Muddammal articles (Ex.524)
collected from the fidayeens by Major Lamba (PW-91)
and handed over to PW-126 by Panchnama drawn up for
the same(Ex.440). In the same, the mention of the two
Urdu letters comes as under:
“(7). Two white papers upon the same some
writing have been made in Urdu language
estimated price of the same can be assumed at
Rs. 0.00”
Further, the receipt voucher of articles recovered
from the body of the fidayeens and handed over to the
I.O. by PW-91 (Ex.524) merely makes a mention of
‘handwritten letters in Urdu’.
Crl.A.Nos.2295-2296 of 2010 - 190-
PW-91, in his deposition before the Special Court
(POTA) (Ex.522), had made the following statement:
“Thereafter, we had carried out search of
entire area of Akshardham and all explosives
those were not exploded, we had destroyed all
of them at the same place. Thereafter, I handed
over two dead bodies, two AK 47/56 Rifles,
chocolates, one live hand grenade, two chits
found from dead body, and other articles by
preparing its separate list to D.S.P. Shri G.L.
Singhal.
…… I am shown the articles of list Exhibit 524.
I am shown both the letters written in Urdu
language Mark-P. After seeing that I say that
the same were found from pocket of cloth on
body of those persons. One letter was found
from each both of them, and at backside part of
the letter signature has been made by Force
Command Brigadier Rajsitapati, and I identify
his signature. I was knowing him for one year
of incident and I was serving with him,
therefore I identify his signature. I was
commander of task force and Brigadier Sitapati
was as Force Commander. One maulvi was called
in presence of us both and other persons, who
was conversant with the Urdu language. The
letters which were obtained by me from pocket
of cloth put on by terrorists, he had done
translation of its writing, wherein as per my
memory such fact was written that, this attack
was by way of reply to the communal riots took
place in Gujarat state, wherein both terrorists
were of “Atok” region of Pakistan. I am shown
muddamal. After seeing that, I say that, this
is the same muddamal, as had been handed over
Crl.A.Nos.2295-2296 of 2010 - 191-
to Gujarat police by me after preparing list
thereof.”
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
Further, during cross examination by the counsel on
behalf of the accused persons, PW-91 deposed that:
“At the time of seizing the articles whichever
were found as articles which ever found from
the bodies of both the terrorists, from their
pockets and Rucksack I was continuously
present there. I don’t remember that by which
of my army man these articles had been
obtained. It is not true that I cannot say as
to which of the army man had taken out which
of the articles and from where taken out. I
don’t remember name of Jawan who had prepared
list of Exhibit 524, but list was prepared in
my presence. It is true that no signature of
concerned Jawan has been obtained on Exhibit
524.
….. Both the two chits, which I state to have
been found, were found from pocket of pant of
terrorists. The search of both of them was
carried out by one Junior Commissioned Officer
and two Jawans, wherein Junior Commissioned
Officer was carrying out search and both the
jawans were collecting the articles found.
Crl.A.Nos.2295-2296 of 2010 - 192-
…… On suggesting me to give name of any junior
Commissioned Officer, I state he was Subedar
Suresh Yadav. He was expired at that time. I
handed over all those articles and dead bodies
to the police. I handed over the same in
Akshardham temple itself. They were checking
as per list of Exhibit 524 and they had
prepared voucher thereof and in that manner
they had seized the articles. The Maulvi was
called in Akshardham temple itself. He came
during period of 8:00 AM to 9:00 AM. I don’t
remember certain time. I cannot give his name.
His signature is not obtained at any place.
When we had seized the articles of Exhibit 524
from the terrorists, at that time no police
officers were present, because, that premises
was in our possession. I don’t know as to
where Shri Singhal kept all those items after
I handed over to him. I don’t know the Urdu
language. It is true that for showing that
both these chits were seized by us, there is
no other evidence with me to show except the
signature of Brigadier Sitapati. It is true
that there is no date ther ein. It is not the
same as were seized at the relevant time.
Witness willingly states that, these are these
chits, which had been seized from the dead
body by me. It is not true that, Brigadier
Sitapati has not made any signature in my
presence.
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
Crl.A.Nos.2295-2296 of 2010 - 193-
The learned senior counsel on behalf of the accused
persons had expressed strong suspicion as to whether
the letters produced before the court as Ex.658 were
the same letters which were found from the pocket of
the trousers of the fidayeens. While making the above
contention, the learned senior counsel on behalf of
the accused persons placed reliance upon the FIR
registered under Section 154 CrPC by PW-126 on
25.09.2002 (Ex.680). The FIR mentioned about the
seizure of some articles from the body of the
fidayeens which were mentioned in the list handed over
by PW-91 to PW-126. It was imperative therefore, on
the part of the prosecution to ensure that Brigadier
Sitapati was required to be examined before the Court
so as to prove that he signed on the letters marked as
Ex.658 and they were the same letters recovered by
Maj. Jaydeep Lamba (PW-91) from the bodies of the
fidayeens. Otherwise, the absence of such evidence
adversely affects the case of the prosecution.
Crl.A.Nos.2295-2296 of 2010 - 194-
However, the statement of PW-91 under Section 161 CrPC
was not recorded. The necessary implication of this is
that he could not have been presented as a chargesheet
witness, as his evidence is recorded for the first
time before the Special Court (POTA). and his
statement under Section 161 CrPC was not taken by the
I.O. However, Brigadier Sitapati, who is the most
important witness for proving the recovery of the
alleged letters from the pockets of the trousers of
the fidayeens, was not examined either under Section
161 or before the Court.
99. It is a settled position of law in the criminal
jurisprudence that a witness, whose evidence is placed
reliance upon by the Court, has to be examined and
questioned during the course of investigation by the
police and his name has to appear in the chargesheet
so that the accused gets a fair chance to cross
examine such witness. It was held in the case of Ram
Crl.A.Nos.2295-2296 of 2010 - 195-
Lakhan Singh & Ors. v. State of Uttar Pradesh
55
as
under:
“37. It is true that no enmity or grudge is
suggested against this witness, but we find
that this witness was not even examined by the
police nor was he cited in the chargesheet. In
a grave charge like the present, it will not be
proper to place reliance on a witness who never
figured during the investigation and was not
named in the chargesheet. The accused who are
entitled to know his earlier version to the
police are naturally deprived of an opportunity
of effective cross-examination and it will be
difficult to give any credence to a statement
which was given for the first time in court
after about a year of the occurrence. We
cannot, therefore, agree that the High Court
was right in accepting the evidence of this
witness as lending assurance to the testimony
of other witnesses on the basis of which alone
perhaps the High Court felt unsafe to convict
the accused.”
The legal principle laid down by this Court in the
aforementioned case renders the case of the
prosecution with respect to the recovery of the
alleged letters from the dead bodies of the fidayeens,
55
(1977) 3 SCC 268
Crl.A.Nos.2295-2296 of 2010 - 196-
fatal. We however, intend to further examine the
contents of the letters (Ex.658) to determine if they
are the same letters which were alleged to be
recovered from the pockets of the trousers of the
fidayeens. It is pertinent here to examine the
deposition of PW-121(Ex.657), the translator of the
Urdu letters before the Special Court (POTA). The
translation of his statement from Gujarati to English,
as per the documents submitted on behalf of the
accused persons, reads as under:
“I know Urdu, Arabic and Persian languages. I
have studied all these languages by living at
Bihar, U.P and Ahmedabad. The said degree is
called Aalim.
After three days of Akshardham incidence, DSP
Shri B.D Waghela had given news to me at
Petlad, and I had received news at my village
Bisnoli from Petlad, I had come to the office
of L.C.B at Gandhinagar as I had received the
news. I was said that, “sir (bapu), translate
the two papers which we take out from the
cover. I had read both the papers which were
written in Arabic language, and thereafter had
translated the same to Gujrati from Urdu. That
was written by writer of Tolia Sir. I was
speaking and he was writing. Police had taken
my statement on the same day on which I had
Crl.A.Nos.2295-2296 of 2010 - 197-
translated. On showing me letters of Mark-P and
Mark-F/1 written in Gujarati script, I state
that the said is not same which was read by me
on the relevant day and it is not the same
which was given to me to read. He was writing
whatever was spoken by me, and at present on
reading the same, I state that this writing is
same which has been written as spoken by me.
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
During the cross examination before the Special Court
(POTA) by the learned counsel for A-2 and A-4, it was
stated by him as under:
“No certificate was taken from me for the
translation done by me, so that there is
writing that the said translation was done by
me.
There is no other written base that the said
translation was done by me. I don’t know the
name of the person who had written the
translation. Translation was not written by
Tolia sir. It is not true that Tolia sir had
written the translation of both the letters. It
is true that the letters which were translated
by me on that day were not seen by me
thereafter till today. It is not true that the
said letters were not there at the respective
time.
Crl.A.Nos.2295-2296 of 2010 - 198-
It is not true that I have not done any
translation. It is not true that I don’t know
difference between Arabic and Urdu language.
There are similar writings in both the papers,
but as per my opinion the writer is not the
same, writer has changed.”
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
The statement of PW-121 as per the documents submitted
on behalf of the prosecution, to the extent of
contradiction, reads as under:
“I was told to read two letters from an
envelope and to translate them. I read both the
letters which were in Arabic language, then
entire matter was in Urdu language. I
translated Arabic language to Urdu language
into Gujarati language. There was a writer
appointed by Shri Tolia. I stated and he typed
them. My statement was taken by the police on
the day I did the translation”.
(translation extracted from the Additional
documents submitted on behalf of State of
Gujarat)
Crl.A.Nos.2295-2296 of 2010 - 199-
100. We are therefore, not inclined to accept any of
the contradictory versions of either of the parties.
It is pertinent to mention here that the poor
translation of the documents from Gujarati language to
English submitted by both the parties have majorly
inconvenienced us. Therefore, instead of relying on
either of the versions, particularly the aspect of the
statement of the translator, since the same has been
majorly contested before us, we intend to closely
consider the other relevant evidence on this aspect
which is brought to our notice. The excerpts of the
translation of letter marked as Ex. 775 read as under:
“Tehrik-e-Kassas, Gujarat Hind.
……..
Now each young boy of Tehreek-e-kassas will
take revenge of the Muslims.
………
Muslims of Gujarat come and by joining steps
with young boys of Tehrik-e-Kassas, we should
rebuild our mosques and take revenge of
killings of Muslims.
…….
Allah may give us guidance to point true path
for Muslims and may keep alive Tehrik-e-Kassas
Crl.A.Nos.2295-2296 of 2010 - 200-
till the time revenge of each one killed is not
taken.
……
From: Real Representatives of Group of Muslims
of Gujarat
Tehrik-e-Kassas, Gujarat.
Sd/- V.S.M.
PMG Raj Seethapathi”
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
The contents of the letter nowhere mention the name of
the place ‘Atok’ in Pakistan from where the fidayeens
had allegedly come, as had been mentioned by PW-91 in
his deposition before the Special Court (POTA).
101. Further, the statement of PW- 105, Prakash
Chandra Mehra (Ex.592), Police Inspector of Gandhi
Nagar only raises our doubts further. PW-105 stated as
under:
“….During this time, NSG Major Joydeep Lamba
had produced a list before me and before
divisional officer Shri Singhal, by which he
had handed over the articles recovered from the
dead bodies, like weapons, ammunitions, cash as
Crl.A.Nos.2295-2296 of 2010 - 201-
well as papers written in Urdu and edible items
etc, and the said were seized by me by calling
panchas and in presence of panchas as per
instruction of Mr. Singhal. During questioning,
Major Lamba Sir had stated that the Urdu papers
were recovered from the right pocket of pant of
deceased persons. The said panchnama is by
exhibit- 440, and it being shown to me, and on
seeing the same, I state that the panchas have
signed therein before me, and it has my
signature as before me, and facts written
therein are true. I am being shown list of Exh-
524, the said is the list given by Major Lamba
and it has my signature.
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
During the cross examination, he further stated that:
“I was the very first officer to reach
Akshardham. At present I cannot say whether S.P
Brahmbhatt and Dy Shri Singhal were present
there before I had reached over there or not,
but I had seen them at that place. After I had
reached at the site, I immediately came to know
that cognizable offence has been committed. It
is true that the two dead bodies which I had
seen, all of their cloths were stained with
blood, I had questioned Major Lamba, but I had
not recorded his statement.
It is true that it has happened that the seized
papers were not kept in sealed covers. It is
true that there is no description of the said
papers in panchnama except for the description
Crl.A.Nos.2295-2296 of 2010 - 202-
that the said papers were written in Urdu
language. It has not happened that the said
papers were seized by any other officer before
me.
It is true that panchnama of dead bodies of two
terrorists which I stated to have been done,
its videography was done. I presently don’t
remember as to who had done the said
videography. After getting the videography
done, I have not received it cassettes or CD,
because immediately thereafter investigation
was handed over to another officer. It is true
that my statement which is recorded by P.S.I
Shri Padheriya has no clear mention about Urdu
papers.
The order to hand over the investigation to
Shri Tolia was not of Shri Singhal, but of Shri
Brahmbhatt.”
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
He further stated during the examination by the Judge
of the Special Court (POTA):
“I am being shown signature of Brig. Raj
Sitapati from the time when both the papers
of Mark-P were produced before me, I don’t
remember about the same presently and I
cannot identify the said signature. It has
not happened that any Maulvi (Muslim priest)
was called before me, and the said papers
were got translated.”
Crl.A.Nos.2295-2296 of 2010 - 203-
(translation extracted from the Additional
documents submitted on behalf of the appellants)
He also stated during the cross examination by the
learned counsel for A-2 and A-4 :
“I have not recorded any statement of Brig. Raj
Sitapati during my investigation, nor have I
met with him.”
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
If the statement of PW-105 is taken into
consideration, it would mean that no signature was
made on the back of the letters, and that the letters
seized were not kept in sealed covers which increased
the chance of letters being replaced subsequently. It
is also on record that the photographer and the
videographer who had recorded the scene of offence as
per the instruction of PW-126 had not been examined.
102. Further, the post mortem report of the fidayeens
(Ex.492) stated that all their clothes were stained
Crl.A.Nos.2295-2296 of 2010 - 204-
with blood and mud and all clothes bore multiple
tears and holes due to perforation by bullets. In
such a case, the fact that the letters remained clean,
without any tear, soiling or stains of blood and soil
is highly unnatural and improbable.
103. Therefore, we cannot accept the recording of the
High Court that the secret behind the crease-free
unsoiled and unstained letter lies in the divine
philosophy of “Truth is stranger than fiction” for
this renowned epithet by the author Mark Twain comes
with a caveat that says, “Truth is stranger than
fiction. Fiction must make sense”. We accordingly
accept the contentions of the learned senior counsel
on behalf of the accused persons and hold that the two letters marked as Ex. 658 cannot be taken as evidence
in order to implicate the accused persons in this
crime. Hence, we answer this point in favour of the
appellants.
Crl.A.Nos.2295-2296 of 2010 - 205-
Answer to point no. 5
104. The learned senior counsel on behalf of the
prosecution, Mr. Ranjit Kumar contended that the two
Urdu letters allegedly recovered from the pockets of
the trousers of the fidayeens had been written by A-4,
as he had admitted the same in his confessional
statement as under:
“…..On the next day night Aiyub came at my
office and he stated that persons come by
taking goods (arms). Tomorrow they three will
come here at the time of noon’s prayer here, at
that time I and both fidayins will have to go
to Akshardham separately, therfore Adam be
called at noon time before Johar’s prayer with
rickshaw to take me, and keep ready by writing
two chits in Urdu to the effect that this
massacre is committed as a revenge of torture
beyond limit committed on Muslims, and as
writer of that chit name of group taking
revenge on Gujarat i.e. “tehrik-e-qisas
Gujarat” be written……
…On that night at late hours, in my office of
Zankar sound by closing shutter, I and Maulvi
Abdulla made discussion and I wrote two chits
in Urdu in my handwriting wherein we wrote that
“violence on Muslims in Gujarat due to which
feeling of revenge is spread in Muslims, now
Crl.A.Nos.2295-2296 of 2010 - 206-
blood of Hindus, police will come out and now
Shiv Sena, VHP and temple will be burnt and due
to that Muslims will get relief and called upon
all Muslims to take revenge by shaking
shoulders, and if you want to live, live with
pride and if you want to die, then die with
pride. This gift of massacre is for Advani and
Modi….by saying to give both these chits and
pen to fidayins on next day, I had given it to
Maulvi Abdullah…
……we performed two rakat fazal namaz, and as I
called upon both fidayins to state their real
names to make prayer for success of massacre,
their safety and if they are died then they are
going to heaven, doctor-2 stated his real name
as Hafiz Yasir res. Lahore, Pakistan and
Doctor-3 (Ashraf) stated his real name as
Mohammed Faruk residence Ravalpindi, Pakistan
and for their prayer we all five persons
performed two rakat nafal namaz and gave hug to
each other. At that time Maulvi Abdullah had
given one chit each to the fidayin written by
me in Urdu yesterday as per my instruction and
if in future chits are caught to show that
chits are written by fidayins he had also given
them pen.
During this in the encounter with armed forces,
they both terrorists are also killed and one
chit each having one kind of urdu writing have
been found from pockets of both. I had seen
photographs of those chits and photographs of
both the terrorists killed afterwards in T.V
and newspapers. I identified that those chits
are same which I and Maulvi Abdullah made
discussion and both terrorists who died were
doctor-1 and doctor-2.”
(emphasis laid by this Court)
Crl.A.Nos.2295-2296 of 2010 - 207-
(translation extracted from the Additional
documents submitted on behalf of the State of
Gujarat)
Therefore, by placing reliance upon the confessional
statement of A-4, read with the contents of the
letters mentioned above and the opinion of the hand
writing expert,Jagdish Bhai(PW-89) the learned counsel
on behalf of the prosecution contended that the
alleged letters had been written by A-4.
105. The learned counsel for the accused persons have
contended that the statement under Section 161 of the
CrPC, of the key witness PW-91, Maj.Jaydeep Lamba was
not recorded. We have to accept this contention as the
investigating officers have conveniently omitted to
record the statements of witnesses which could have
established beyond reasonable doubt that the letters
were the same ones as discovered from the site of
offence. They tied A-4 to the letters merely based on
Crl.A.Nos.2295-2296 of 2010 - 208-
his confessional statement whereas the opinions of the
hand writing experts are merely indicative and not
conclusive beyond reasonable doubt. We begin with the
comment made by the translator of the Urdu letters
(PW-121: Ex.657) who had categorically stated that:
“The matter in both the letters was same but
the persons who wrote it are not the same as
per my opinion”.
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
But considering the fact that he was not a hand
writing expert, we shall refer to the statement of the
evidence of the hand writing expert, Jagdish Bhai (PW-
89: Ex.507) who had assigned the following reasons for
recording his finding in his report that the hand
writing of A-4 matches with the letters allegedly
found from the pockets of the trousers of the
fidayeens:
Crl.A.Nos.2295-2296 of 2010 - 209-
“Pictorial appearance of all the disputed
specimen and natural writings are similar.
All these writings are written freely with
speed showing natural variation among
themselves.
They agree in the writing habits such as
movements, slants, spacing, relative size and
proportion of characters, line quality,
alignment of characters; manner of
accommodation etc.
They also show similarities in the execution
of various commencing, terminal and connecting
strokes.
………
However, during cross examination by the learned
counsel on behalf of A-2 and A-4 while deposing before
the court, he has stated as under:
“Question: Hand writing science is not a
perfect science.
Answer: It is also not imperfect science. It
can be called developing science.
.....
Question: What basic knowledge of Urdu you
have? Answer: The Urdu language is written from
right to left, the said fact as well as the
fact that the complete word is written in
combination that initial, medial and final.
Also, wherever there is double pronunciation
like in bachcha, kachcha then letter like
little ‘W’ like English is made. I have studied
‘Kaaf’, ‘Gaaf’, ‘Nukta’, ‘Hamja’, ‘Tasdid’,
‘full- stop, ‘comma’, small S, big SW, vowels
Crl.A.Nos.2295-2296 of 2010 - 210-
and Sh thereby all words. ...I cannot write
Urdu. I cannot read Urdu language, But by
taking reliance of book, I can read it.
....
It is true reason that there is no mention
about the discussion of the reasons given by me
with the Expert of Hyderabad. It is true that
in the reasons given by me, there is no
signature of any examiner except for me. It is
true that in my reasons, general
characteristics, which are given, in the said,
details like measurements have not been
mentioned. It is true that the sample documents
were compared mutually has not been mentioned
in my reasons. It is true that the specimen and
natural hand writings were compared with each
other, but it is not written in my reasons. It
is true that I have written natural variations
in my reasons, but I have not mentioned details
about what these variations are.”
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
On cross examination by the Judge of the Special Court
(POTA) however, he was asked whether the hand writing
expert can also give opinion on the language which is
not known to him. To this, he answered that:
“It is necessary to have basic knowledge of the
concerned language. Even many signatures are
Crl.A.Nos.2295-2296 of 2010 - 211-
written illegibly in monogramatic formation,
even then also by examining different
characteristics of hand writing, one can come
to the conclusion from the same.”
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
Further, he was asked, if the person who analyses such
a document can read or write the language of the
document and whether the opinion given by such a
person can be called more reliable than the opinion
given by the person who does not know to read or write
the language, he answered:
“I don’t agree that the opinion can be called
more reliable, but I can just say that the
knower of the language can give reasons in more
details. The witness states on his own that
apart from me, two other experts of Hyderabad
were taken, and they knew Urdu language better
than me.”
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
Crl.A.Nos.2295-2296 of 2010 - 212-
The hand writing expert had stated that he cannot read
or write the Urdu language. He can read Urdu language
only with the aid of a book.
106. We state that considering the seriousness of this
case and the gravity of the offences, it was the duty
of the handwriting expert to seek opinion of other
experts which he claimed to have done. PW-89 stated
that he requested the Director of FSL to seek the
service of the Central Government Laboratory, and the
photocopies of the documents were sent to the
Government Examiner of Questioned Documents(in short
‘GEQD’), Ministry of Home Affairs, Hyderabad for the
preliminary examination. Accordingly, Assistant
Government Examiner, Shri A.K Singh and Shri R.K Jain,
the senior most GEQD of the Central government had
arrived at the FSL of Gujarat. It was further stated
by PW-89 that the officers from Hyderabad had worked
independently and prepared their opinion. Accordingly,
PW-89 formed a final opinion based upon the opinion of
Crl.A.Nos.2295-2296 of 2010 - 213-
the aforesaid officers (Ex.511). The senior most
officer, Mr. R.K Jain, sent certificate via fax on
14.09.2003 in which he had stated that he was in
consent with the opinion of PW-89. However, objection
was raised by the counsel for the accused persons at
the Special Court (POTA) for taking this certificate
on record, since this document of certificate was
never given to the defence in the chargesheet papers,
or at any time thereafter. Moreover, the prosecution
had also submitted that even they were unaware of the
existence of this document, and this knowledge had
come before them only during the course of recording
of the deposition of PW-89 before the Special Court
(POTA). Therefore, the certificate was taken on record
with the objection of the defence.
107. After perusing the above mentioned evidence on
record, we decipher that the prosecution had contended
that the Urdu letters (Ex.658) were written by A-4 by
only placing reliance upon the opinion of the
Crl.A.Nos.2295-2296 of 2010 - 214-
handwriting expert, PW-89. However, the certificate of
the seniormost official of FSL, Hyderabad was not
admitted on record till a much later stage, after the
charge sheet was prepared and PW-89 gave his statement
before the court. It was at this stage that his
evidence was admitted with protest from the defence.
PW-89 in his evidence had stated that he has basic
knowledge of Urdu and cannot differentiate between
Urdu, Arabic and Persian. He further stated that the
opinion of handwriting experts is not conclusive.
Therefore, we hold that the prosecution had failed to
establish beyond reasonable doubt that the Urdu
letters (Ex.658) were written by A-4. Accordingly, we
answer this point in favour of the appellants.
Answer to point no.6
108. As per the Order of the CJM of Budgam, Jammu and
Kashmir (Ex.674) dated 11.10.2003, A-6 was arrested
from Bareilly during investigation in the case FIR no.
130 of 2003 for offences under Sections 120-B, 153-A
Crl.A.Nos.2295-2296 of 2010 - 215-
RPC, Section 10 of one ‘C.B.A. Act’ and Sections 7 and
27 of Arms Act registered at the police station at
Nowgam, Jammu and Kashmir. A car bearing Registration
no. CHOIX- 3486 was seized as the vehicle was
subjected to checking, and arms and ammunitions were
recovered from the vehicle. The driver disclosed his
name as Chand Khan, resident of Barsia Tehsil
Nawabgunj, Dist. Bareilly, U.P. The seizure memo was
drawn up immediately and A-6 was taken into custody.
He thereafter, allegedly confessed that he was
affiliated to militant outfits in the style of
Lashkar-e-Toiba and was involved in subversive
activities outside Jammu and Kashmir as well. A-6 had
further allegedly confessed that he was using one
ambassador car bearing Registration no. KMT 413 for
subversive activities outside Jammu and Kashmir, which
was recovered by the Jammu & Kashmir police from the
workshop under the name of ‘Chand Motor Khanabai
Anantnag’ as stolen property, under Section 550 of the
Crl.A.Nos.2295-2296 of 2010 - 216-
Jammu and Kashmir CrPC. Thereafter, the car was
subsequently handed over to Gujarat Police, on their
requisition, for investigation in the present case
which was registered vide FIR 314 of 2002. In this
regard, we shall examine the statements of Police
Inspector Shabbir Ahmed (PW-123), Sub-Inspector, Gulam
Mahammed (PW-124) who are from the Jammu & Kashmir
Police and Ibrahim Chauhan, Police Inspector of Crime
Branch, Ahmedabad (PW-125).
109. The statement of PW- 123 is extracted as under:
“the car was seized in our police station
limit. The car was seized in September 2003. I
do not remember exact date. There may be
letters of seizing car in our police station. I
did not seize the car, but investigating
officer of the case did it. The car was seized
by Gulam Mohammad Dar. I do not know if there
were documents of the car. It is true that this
car was seized by our police station and then
by the Gujarat Police by Exhibit 671. During
this course, I saw papers of seizure. The
witness himself states that the papers would
have been given to Gujarat Police, but I am not
sure in this regard, but our case papers are
those papers. It is true that we seized the car
Crl.A.Nos.2295-2296 of 2010 - 217-
on the basis of suspect for investigation. I do
not know the condition of the car when we
seized it for our police station case. Whether
it was as written in existing panchnama. My
Investigation Officer must be knowing it. It is
true that I saw seizure papers including
panchnama before Gujarat police seized it. ….
When the car was seized, it was in our custody,
but kept in S.O.G. camp. Then the car was
handed over to Ahmedabad police. Thereafter, I
had an occasion to see the car. It was true
that when the car was given to Gujarat police,
it was not in working condition.
……
Question: Are you prepared to produce panchnama
and other papers in court when you seized the
car in suspected condition?
Reply: Our file has been submitted to the
government for sanction. I am prepared to
produce when it comes. I am prepared to produce
when court orders after getting sanction.
After getting reply from R.T.O., we came to
know that its owner’s name is Abdul Majid
Rathor. We enquired in this regard but no such
person exists. The car was registered in
pseudonym. It is true that panchnama was made
to handover the car to the police. There is
record in my police record in this regard….
There were engine number and chasis number in
the inner part of the car. No photographs were
taken of the car in my presence then. It was
seized in our police station. Then also no
photographs were taken. It is true that there
are no photographs of the car in our record.
Crl.A.Nos.2295-2296 of 2010 - 218-
(basically they talk about the seizure of the
car by Gujarat Police and not the police of
J&K).”
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted on behalf of State of
Gujarat)
110. Therefore, it is clear from the deposition of PW-
123 that firstly, A-6 is not the owner of the car
since it was registered in the name of some other
person as per the report of R.T.O (Ex.672). Secondly,
as per the Order of the CJM of Budgam, Jammu and
Kashmir (Ex.674) dated 11.10.2003, A-6 was not in
physical possession of the car which was allegedly
used for carrying weapons for the attack on Akshardham
whereas he was actually found in possession of another
car bearing Registration no. CHOIX-3486. Finally,
though a panchnama was drawn up of the alleged car, by
the police of Jammu and Kashmir, it was for them to
hand over the car from their custody to the Gujarat
Crl.A.Nos.2295-2296 of 2010 - 219-
police. No panchnama or document of seizure of the car
had been produced before us to show that the car was
recovered from the workshop/ garage of A-6 or even
that the garage/ workshop from which the car was
allegedly recovered belongs to A-6. Therefore, we
cannot see how the car can be linked to A-6 in the
absence of any independent evidence other than his
confessional statement which had been subsequently
retracted.
111. It is also of the utmost importance for us to
mention the statement of PW-125, Ibrahim Chauhan,
Crime Branch, Ahmedabad regarding the seizure of the
car since it is reflective of how casually and with
what impunity the investigation has been conducted in
the instant case by the investigating officer. PW-125,
who was a part of the investigation of this case in
Kashmir, and who was also responsible for escorting A-
2, A-4 and A-5 to Srinagar, Kashmir, states as under:
Crl.A.Nos.2295-2296 of 2010 - 220-
“After knowing the facts of seizing car in the
case 130/ 2003, I had no occasion to ask for
papers regarding vehicle seized, because I was
engaged in other works. It is in my view that
panchnama regarding seizure of car no. KMT- 413
existed earlier to panchnama of Exhibit 671. I
have not seen panchnama.”
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted on behalf of the State of
Gujarat)
He again went on record to state that:
“I do not believe that if any car is seized in
one crime, seizure, panchnama and other papers
should be possessed before seizing car in
another crime. It is true that when the car is
confiscated, its panchnama is made, that
panchnama should be obtained while seizing car
in another crime. As I was engaged in other
work, I did not get panchnama. It is not true
that panchnama of Cr. No. 130/ 2003 was not
produced because its details were not in
consonance with Panchnama Exhibit 671…….”
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted on behalf of State of
Gujarat)
Crl.A.Nos.2295-2296 of 2010 - 221-
It is clear from the statement of PW-125 that neither
the panchnama nor seizure memo of the car no. KMT 413,
made during its alleged seizure in case no. 130 of
2003 was seen by PW-125 since, “ he was engaged in
other work”. However, without verifying the contents
of the panchnama and the seizure memo of the car in
Case No.130 of 2003, the involvement of the car had
been admitted in evidence on record by the courts
below, merely on the basis of the subsequent panchnama
drawn by the Gujarat police, which was only for the
transfer of possession of the car from the police of
Jammu and Kashmir to the Gujarat police.
In light of the evidence mentioned above, we are
not inclined to give any weightage to the panchnama
drawn by the Gujarat police at Jammu and Kashmir for
the seizure of car already in the possession of the
Jammu and Kashmir police at SOG Camp, in the absence
of the original panchnama and seizure memo drawn by
the police of Jammu and Kashmir. In view of the
Crl.A.Nos.2295-2296 of 2010 - 222-
evidence on record, and the reasons recorded by us, we
answer this point in favour of the appellants and hold
that the prosecution had failed to prove that the car
was used by A-6 to carry weapons from Jammu and
Kashmir to Bareilly for carrying out the attack on
Akshardham.
Answer to point no.7
112. The independent documentary evidence produced
before us against the accused persons are the two
letters in Urdu allegedly recovered from the pockets
of the trousers of the fidayeens, upon which the
prosecution had placed strong reliance to establish
the involvement of A-4 in the offence. The other
independent evidence is the blue ambassador car in
which A-6 was alleged to have brought the fidayeens
and the weapons to Ahmedabad through Bareilly from
Jammu and Kashmir. We have already ascertained while
answering the point about the above letters that
Crl.A.Nos.2295-2296 of 2010 - 223-
neither the two letters produced before the Special
Court (POTA) nor the procedure by which the ambassador
car was seized by the Gujarat police, inspires
confidence in our minds to show that these are genuine
evidence to implicate the accused persons in the
offence. The only other material evidence on record on
the basis of which the prosecution had argued the
involvement of the accused persons, are the
confessional statements given by A-1, A-2, A-3, A-4
and A-6 before the Gujarat police under Section 32 of
POTA. We have already mentioned that the confessional
statements had not been recorded as per the strict
statutory mandate provided for under Section 32 of
POTA, which made their confessional statements
inadmissible as evidence. However, we also intend to
record certain other reasons as to why the conviction
and sentencing of the accused persons by the Special Court (POTA), which was upheld by the High Court in
Crl.A.Nos.2295-2296 of 2010 - 224-
the appeals and reference order, is liable to be set
aside.
113. We cannot lose sight of the fact that the
confessional statements of the accused persons were
recorded by the DCP, PW-78 in extremely suspicious
circumstances. We have already held that the procedure
of presenting them before the CJM and subsequently
sending them to judicial custody mandatorily had been
reduced to a mere, empty formality. This above said
procedural lapse coupled with the fact that the
letters of caution to be given to them, before the
making of such statements, mandated under Section
32(2) of POTA, and the process of recording their
confessional statements were done in an extremely
casual manner which is not the conduct expected from
such high ranking police officers of the state
government. Since we have already recorded our
findings and reasons in this regard, while answering
Crl.A.Nos.2295-2296 of 2010 - 225-
the point no.2 on confessional statements, we
therefore do not intend to reiterate the same here.
114. Even if the confessional statements of the
accused persons are made admissible, that alone could
not have been made the only ground for convicting
them, as it would amount to a violation of the legal
principle laid down in the five judge bench decision
of this court in the case of Hari Charan Kurmi and
Jogia Hajam v. State of Bihar
56
, wherein this Court
held as under:
“12. As we have already indicated, this
question has been considered on several
occasions by judicial decisions and it has been
consistently held that a confession cannot be
treated as evidence which is substantive
evidence against a co-accused person. In
dealing with a criminal case where the
prosecution relies upon the confession of one
accused person against another accused person,
the proper approach to adopt is to consider the
other evidence against such an accused person,
and if the said evidence appears to be
satisfactory and the court is inclined to hold
that the said evidence may sustain the charge
56
AIR 1964 SC 1184
Crl.A.Nos.2295-2296 of 2010 - 226-
framed against the said accused person, the
court turns to the confession with a view to
assure itself that the conclusion which it is
inclined to draw from the other evidence is
right. As was observed by Sir Lawrence Jenkins
in Emperor v. Lalit Mohan Chuckerburty, I.L.R.
38 Cal. 559 at p.588 a confession can only be
used to "lend assurance to other evidence
against a co-accused". In Peryaswami Moopan
v.Emperor,I.L.R. 54 Mad. 75 at p.77: (AIR 1931
Mad. 177 at p.178) Reilly, J., observed that
the provision of S. 30 goes not further than
this, "where there is evidence against the co-
accused sufficient, if believed, to support his
conviction, then the kind of confession
described in S. 30 may be thrown into the scale
as an additional reason for believing that
evidence." In Bhuboni Sahu v. The King, 76 Ind
App 147 at p.155: (AIR 1949 PC 257 at p.260)
the Privy Council has expressed the same view.
Sir John Beaumont who spoke for the Board,
observed that,
“a confession of a co-accused is
obviously evidence of a very weak type. It does
not indeed come within the definition of
"evidence" contained in S. 3 of the Evidence
Act. It is not required to be given on oath,
nor in the presence of the accused, and it
cannot be tested by cross-examination. It is a
much weaker type of evidence than the evidence
of an approver, which is not subject to any of
those infirmities. S. 30, however, provides
that the Court may take the confession into
consideration and thereby, no doubt, makes it
evidence on which the court may act; but the
section does not say that the confession is to
amount to proof. Clearly there must be other
evidence. The confession is only one element in
Crl.A.Nos.2295-2296 of 2010 - 227-
the consideration of all the facts proved in
the case; it can be put into the scale and
weighed with the other evidence."
It would be noticed that as a result of the
provisions contained in S. 30, the confession
has no doubt to be regarded as amounting to
evidence in a general way. because whatever is
considered by the court is evidence;
circumstances which are considered by the court
as well as probabilities do amount to evidence
in that generic sense. Thus, though confession
may be regarded as evidence in that generic
sense because of the provisions of S. 30, the
fact remains that it is not evidence as defined
by S.3 of the Act. The result, therefore, is
that in dealing with a case against an accused
person, the court cannot start with the
confession of a co-accused person; it must
begin with other evidence adduced by the
prosecution and after it has formed its opinion
with regard to the quality and effect of the
said evidence, then it is permissible to turn
to the confession in order to receive assurance
to the conclusion of guilt which the judicial
mind is about to reach on the said other
evidence. That, briefly stated, is the effect
of the provisions contained in S. 30. The same
view has been expressed by this Court in
Kashmira Singh v. State of Madhya Pradesh 1952
SCR 526 :(AIR 1952 SC 159) where the decision
of the Privy Council in Bhuboni Sahu's case, 76
Ind App 147 (AIR 1949 PC 257) has been cited
with approval.
..
14. The statements contained in the confessions
of the co-accused persons stand on a different
footing. In cases where such confessions are
relied upon by the prosecution against an
Crl.A.Nos.2295-2296 of 2010 - 228-
accused person, the Court cannot begin with the
examination of the said statements. The stage
to consider the said confessional statements
arrives only after the other evidence is
considered and found to be satisfactory. The
difference in the approach which the Court has
to adopt in dealing with these two types of
evidence is thus clear, well-understood and
well-established. It, however, appears that in
Ram Prakash's case, 1959 SCR 1219: (AIR 1959 SC
1), some observations have been made which do
not seem to recognize the distinction between
the evidence of an accomplice and the
statements contained in the confession made by
an accused person.”
(emphasis laid by this Court)
115. Again, in the present case, there is nothing on
record other than the statements of the accomplices
(of which PW- 51 retracted from his confession) and
the confessional statements of the accused persons
which were retracted and this aspect of the matter was
required to be considered by the courts below while
recording the findings on the charges framed against
the accused persons. The retraction of the
confessional statements of the accused persons A-2, A-
3, A-4 and A-6 and that of PW-51 revealed that they
Crl.A.Nos.2295-2296 of 2010 - 229-
were tortured by the police to extract their
confessional statements. Therefore, the confessional
statements of A-2, A-3, A-4 and A-6 cannot be relied
upon for this reason also i.e they have been retracted
vide Exs. 779 (A-2), 780 (A-4), 33 (A-3) and 32 (A-6).
A-2 had retracted his confessional statement vide
Ex.779, wherein he had detailed the account of how he
was detained on the charge of ‘autorickshaw theft’ and
was brought to the Crime Branch, Ahmedabad and forced
to confess regarding the crime of attack on the
Akshardham temple. He had stated that he was put to
intense physical and psychological torture and the
police threatened him and his family members with the
motive of eliciting a confession out of him which he
stated to be ‘false’ as he is not guilty of the same
and had been falsely charged. Relevant portions of the
retraction statement(Ex.779) are extracted hereunder
in order to examine the import of his statement of
retraction:
Crl.A.Nos.2295-2296 of 2010 - 230-
“I, Ajmeri Suleman Adam, state in writing that
five to six officers of Ahmedabad City Crime
Branch from Gaekwad haveli came in maruti car
at the corner of my mohalla at about 1.30-2.00
in the night and they called me. They asked my
name and occupation. I told the officers that I
am rickshaw driver. They told me to sit in our
maruti car. We have to take you for enquiry.
They told me that the rickshaw which them that
the rickshaw that I drive is not be theft.He
has owner. Then the officer abused me, beat me
and seated me in the car by coercion. I was
taken into the crime branch office at night
they tied a strip on eyes and placed me at such
a place that I do not know. Then I could not
sleep for whole night. I was thinking that I
have not done any wrong. Then why I was brought
here, then on 10-8-2003, on next day
at 1.00
noon a constable came and told me to come with
him as higher officer call you. At that time a
strip tied on my eyes. The constable caught me
and put in an office and opened the strip from
my eyes. I saw four officer sitting there. Shri
Vanzara, DCP Shri Singhal, ACP Shri Vanar PI
and Shri patel PI, I came to know afterwards
that these officers are from crime branch . Shri
DCP Vanzara asked me whether I know after works
that these officers are from crime branch. Shri
DCP Vanzara asked me whether I know why I was
brought here. I replied that you other officers
told me that the rickshaw that I drive is by
thefts and I am to be asked about it. He told
me that I was not brought here for that crime
but for other crime. I told that I not have
made such crime that I should be brought here.
Then Singhal Sahib abused me and told that
should agree to what they say. I should agree
that I am the criminal of Akshardham carnage. I
Crl.A.Nos.2295-2296 of 2010 - 231-
told them that I have never gone to Akshardgam
nor have I seen it. Kindly do not involve me.
He immediately called five or six persons and
told me to have handcuffs and fetters. Vanar
Saheb beat me on soles. Shri Singhal Saheb told
me that I agree with the crime of Askhardham ,
they shall not beat me and have some benefits.
Then they beat me in such a way that I became
unconscious and fell down. ..
..When I became conscious I was near Vanar
Saheb office. I suffered much difficulty. I was
weeping. It was night. At that time one
constable came and told me that superior sahib
was calling. I had no strength to walk or
stand. I was caught and taken to Vanzara Saheb
office. All four officers were present there.
They told me to agree the crime, otherwise I
shall be encountered. But I did not believe.
Then they brutally beat me. There was bleeding
in back portion....They gave me currents. Then
I told them, sir, have mercy on me. I am not
culprit. Pardon me. Please don’t make me
criminal wrongly. I do not know anything in
this regard. They threatened me to harass me
and my family members. Even though I have not
committed any crime, they wanted to agree
Akshardham crime.”
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted on behalf of the State of
Gujarat)
A-2 further stated:
Crl.A.Nos.2295-2296 of 2010 - 232-
“One day Singhal Saheb called me to office and
asked me to do as we say. I know that you are a
good congress worker. The relief materials
received from congress at the time of godhra
episode were distributed among Muslims and poor
persons as said by congress leader you
contested as an independent candidate in 1998.
We know that congress candidate was defeated
and BJP candidate won the election. You made a
case against BJP in the High Court. The case
was extended to Supreme Court but you could not
do anything. What shall you able to do now.
...
...I was harshly beaten from 9-8-2003 to 28-8-
2003 without my fault and behaved rudely.
...Singhal Saheb came to my office at night
(29-8-2003) and told me, “ We have declared you
as criminal. We shall take you to court and
present before Judge. You should not speak
anything against us, otherwise we shall get you
down on the way and encounter you. You shall
not come alive. Then I requested Vanzara Saheb,
Singhal Saheb, Vanar Saheb and Patel Saheb that
you have beaten the truth and placed lying in a
higher position......They told me to sign where
they say...
...They threatened me and presented to the
court . Hon.Court gave remand. During court, I
was in crime branch. Shri Vanzara Saheb,
Singhal Saheb, Vanar Saheb and Patel Saheb
behaved with me as if I am an animal. During
that time, I was taken to VS Hospital. They
told me one thing that I should not narrate my
difficulties to the Doctor, otherwise I shall
be harassed like anything. I should say to the
doctor I am healthy and I shall get treatment
from the private doctor who comes in crime
branch for any trouble. ...
Crl.A.Nos.2295-2296 of 2010 - 233-
....Singhal Saheb seated me in his office on 4-
9-03 at night and told me to write in my
handwritings as he says, otherwise I shall be
finished. I went to writing as he stated. I
have not written this willingly but as per wish
of Singhal Saheb. If I would not have written
so, I would have been encountered on that very
day or night. I was frightened and I wrote on
account of fear. I was taken to Ahmedabad
airport on 5-9-03. Vanzara Saheb, Patel Saheb,
AA Chauhan Saheb and other three PSI s were
with me....IG Shrinagar called me on 7-9-03. At
that time three officers of Shrinagar were
present. He told me to tell the truth. Then I
told on oath of kuran-sharif true facts. I was
arrested on 9-8-03. Till them I am beaten. I do
not know anything about Akshardham. They have
threatened my family members and threatened me
to encounter. I have been forced to agree to
the crime. I told officers of Shrinagar to help
me, otherwise these officers shall kill me.
Then they told me that we also know that you
are innocent.....
...I reached to Ahmedabad on 9-9-03....Then I
was taken to POTA Court. Prior to it Singhal
and Vanar Saheb told me that I was to be taken
to the Court. “ If you complain, you shall not
be kept alive. You might not be knowing what we
can do. We can take out prisoner from the
Central Jail and encounter him, while you are
with us. Latif was in jail. We brought him out
and killed. What can you do against us.” I was
not allowed to speak anything in the Court...
I was taken on 23-9-2003 with strips on my
eyes. I was told that Doctor had come for my
treatment. ..I was given two injections on my
right hand....On the next day I told them that
I have many difficulties on account of your
Crl.A.Nos.2295-2296 of 2010 - 234-
injections. Then Vanar Saheb and Patel Saheb
told me that our work is over and I am not
required now. On 25-9-03, Vanar Saheb, Singhal
Saheb and other officers seated me in a jeep
and took me to old high court. Singhal Saheb
and vanar Saheb informed me that here in big
judge. You should sign where he says, otherwise
you know what we can do. Here court is ours,
Govt. is ours, polics is ours and judge sahib
is also ours. I was taken to judge sahib room.
There were some written papers. I do not know
what was written in it. Without allowing me to
read anything judge sahib and crime branch
officers took my signatures
thereon.....Singhal,Vanar and other officers at
in judge hamber. They took snacks and tea.
After one hour all officers came out smiling
saying our work is over. We shall present him
in Pota court and send them to Central Jail....
...I request you that since last two months I
remained in crime branch as helpless and
humble....
...I f you want the truth in this case to be
revealed, hand over the case to CBI officers.
It is my humble request to you to hand over the
investigation to the CBI and truth shall be
revealed to you. Sir, when I was sent to
central jail I told the jail authorities that I
required treatment...
...I am hopeful that you shall prevent me and
my family from ruin and do justice. I am
hopeful that you shall do justice to me and my
family after considering my request.”
(emphasis laid by this Court)
Crl.A.Nos.2295-2296 of 2010 - 235-
(translation extracted from the Additional
documents submitted on behalf of the State of
Gujarat)
116. Excerpts from the statement of retraction of A-4
(Ex. 780), reads as under:
“I state with request that I am (Mufti) Abdul
Kayyam Ahmedhussain Mansuri...I taught namaz at
Haji Sakhi Masjid charvat and teach Koran to
children....
...On 17/8/2003, Sunday, in the evening, I was
at Haji Sakhi Masjid, Dariyapur when four
people came in the Masjid in civil dress and
asked me if I was Mufti A.Kayyam. I replied
that I am and they told me that I had to come
to crime branch office as senior officer was
calling me. ...
One of them told me that some enquiry has to be
made and I would be left after enquiry in 3-4
days. ..they took me to Haveli crime Branch
office. They blindfolded me and made me sit
down later. At about 10.00 to 11.00 pm in the
night they took me to some officer. They
removed the blindfold and released my hands.
Later I learnt that the name of the Saheb was
ACP GL Singhal.Shri Singhal asked me as to why
I was brought here. I told him that I did not
know....Then Singhal asked me questions about
my family, friends etc...and I satisfactorily
answered them. Suddenly, Singhal started
beating me on my backside and told me to go and
you would know as to why I was brought there on
Crl.A.Nos.2295-2296 of 2010 - 236-
next day. Then I was blindfolded again and my
hands were tied up and taken back again. ..
...Then everyday from 18/8/03 to 29/8/03, at
noon and at night, that is two to three times a
day I was taken to the office of Singhal
Vanzara sir. Vanar sir also remained present
there. They presented a story of Akshsardham
before me and asked me to repeat that story
before senior officer and confess it. I refused
and so mental and physical torture was effected
on me. I was beaten with a stick everyday on my
backside, feet and palms. They used to beat me
so badly that I fell down on the floor.
Sometimes, lips were attached on my hand
fingers and current was given to me. Pins were
pierced below the nails of my finger tips. Such
inhuman torture wad done on me for about ten
days from 17/8/03 to 29/8/03. I was illegally
kept in the Crime Branch office and tortured
and threatened. ..
..Later on 29-8-03, Friday at 3.00 pm noon, on
officer (whose name I learnt later) PI RI Patel
called my father and me too. My and fathers
signatures were taken on some papers. Neither
do I or my father know what was written on
those papers. But we were helpless and had to
sign them. At about 3-4 o clock many
photographers came and made me cover my face
with a bukha (cloth) and clicked photographs.
That day at about 10.00 pm night Singhal Saheb
called me and told me that I was arrested in
Akshardham case. He told me that I would be
presented in the court the next day. ...I was
presented in court the next day. Judge asked me
whether I had any complain but due to fear I
could not say anything...
...Later on the day I got remand on 30-8-03 at
night I was called to Singhals office by Shri
Crl.A.Nos.2295-2296 of 2010 - 237-
Singhal and VD Vanar. They told me that letters
were found from both the dead terrorists at
Akshardham complex. They asked me if I had
written those letters. I replied that I had not
written them and I do not know anything about
it. On this they started torturing me mentally
and physically. Then Singhal said it was ok,
they knew I had not written those letters. He
asked me read and rewrite the copy of the two
letters. Saying so he gave me a copy of those
two letters. I trusted them and copied those
two letters. Due to innocence I could not
understand their conspiracy and I was
repeatedly asked to copy those letters by Vanar
and RI Patel for three four days every night
Patel and those urdu letters and asked me to
copy them till three four o clock late night.
They used bad words and said those letters were
found from terrorists. They asked me to match
the handwritings of these letters and exactly
write in those many lines and paragraphs also
must be at the same place. ...They threatened
and forced me to write 40-50 copies of those
letters.
Later on 5.9.03 they took me to Srinagar
(Kashmir). Out of the officers present with me
RI Patel repeatedly told me that there I would
be presented before officer. He would ask me
about Akshardham and I must repeat the false
story which they had told me earlier. They
threatened me if I revealed the truth, they
would kill me and throw my body somewhere. They
would inform my family that i would be killed
in an encounter with the terrorists. They told
me that I would be shown a person, they told me
to identify him and then they presented me
before those officers. I learnt the names of
officers later as DIG K Rajendra, ACP Sandip
Crl.A.Nos.2295-2296 of 2010 - 238-
vazir and ACP Saheb of these officers showed me
a person and asked me if I knew him. I did not
know that person at all. So I dared to say that
I did not know him....
...So those officers made the officers of
Crime Branch, Ahmedabad sit in another room.
They asked me to speak the truth. I replied
that if I did so these officers would kill me
and trouble my family too. At this DIG K
Rajendra answered me that they would not let
any trouble fall upon my family, if I told the
truth. I was impressed with his words and
started owning loudly. Due to his humanitarian
approach, I gained confidence and told him that
I was innocent and knew nothing about
Akshardham. They answered me that they would
not let injustice happen to innocent as they
had arrested the person involved in this
scandal. ...
....Later on 9-9-03 I was brought again to
Ahmedabad... I was brought to Crime Branch on
14-9-03, Vanar Saheb called me...he was writing
something on some papers...Then he gave those
papers to me(which he was writing). He asked me
to read those papers. In them, I was accused
of crime and falsely trapped in Akshardham case
by these officers. After reading, I pleaded and
requested Vanar saying that I was innocent and
such allegations must not be charged on
me....He asked me to read those papers in same
way and confess in front of live camera, as
they had written my role in those papers. ...At
about 10.00 pm they compelled me to tell the
false story in front of video camera....I used
to forgot and make mistakes in telling the
written story. At this PI Vanar used to sign me
and remind me....He also made the camera close
and abused me and reminded me the untrue story
Crl.A.Nos.2295-2296 of 2010 - 239-
in this way by beating and threatening me they
made me reveal an absolutely untrue story. ..
...I swear I have been wrongly trapped by Crime
branch Officers in Akshardham case. I am
absolutely innocent and do not know anything
about Akshardham case...”
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted on behalf of State of
Gujarat)
This Court in the case of Navjot Sandhu (supra) while
deciding whether the same rule of prudence for
confessions under the general law would apply for
confessions under the POTA as well, held as under:
“46. …. The better view would be to follow the
same rule of prudence as is being followed in
the case of confessions under the general law.
The confessional statement recorded by the
police officer can be the basis of conviction
of the maker, but it is desirable to look to
corroboration in a broad sense, when it is
retracted. The non obstante provision adverted
to by the learned Judges should not, in our
considered view, affect the operation of the
general rule of corroboration broadly.”
Crl.A.Nos.2295-2296 of 2010 - 240-
Further, in the case of Parmanada Pegu v. State of
Assam
57
, this Court relied upon many judgments, most
important of which is Subramania Goundan v. State of
Madras
58
which was relied upon in the case of Navjot
Sandhu (supra), in order to hold that the confessional
statement of the accused which is retracted, cannot be
relied upon to convict him in the absence of
corroborating evidence. In the Subramania Goundan case
(supra), this Court held thus:
“14. The next question is whether there is
corroboration of the confession since it has
been retracted. A confession of a crime by a
person, who has perpetrated it, is usually the
outcome of penitence and remorse and in normal
circumstances is the best evidence against the
maker. The question has very often arisen
whether a retracted confession may form the
basis of conviction if believed to be true and
voluntarily made. For the purpose of arriving
at this conclusion the court has to take into
consideration not only the reasons given for
making the confession or retracting it but the
attending facts and circumstances surrounding
57
(2004) 7 SCC 779
58
AIR 1958 SC 66
Crl.A.Nos.2295-2296 of 2010 - 241-
the same. It may be remarked that there can be
no absolute rule that a retracted confession
cannot be acted upon unless the same is
corroborated materially. It was laid down in
certain cases one such being In re. Kesava
Pillai ILR 53 Mad 160: (AIR 1929 Mad 837) (B)
that if the reasons given by an accused person
for retracting a confession are on the face of
them false, the confession may be acted upon as
it stands and without any corroboration. But
the view taken by this court on more occasions
than one is that as a matter of prudence and
caution which has sanctified itself into a rule
of law, a retracted confession cannot be made
solely the basis of conviction unless the same
is corroborated one of the latest cases being
'Balbir Singh v. State of Punjab (S) AIR 1957
SC 216 (C) , but it does not necessarily mean
that each and every circumstance mentioned in
the confession regarding the complicity of the
accused must be separately and independently
corroborated nor is it essential that the
corroboration must come from facts and
circumstances discovered after the confession
was made. It would be sufficient, in our
opinion, that the general trend of the
confession is substantiated by some evidence
which would tally with what is contained in the
confession. In this connection it would be
profitable to contrast a retracted confession
with the evidence of an approver or an
accomplice. Though under S. 133 of the Evidence
Act a conviction is not illegal merely because
it proceeds on the uncorroborated testimony of
witnesses, illustration (b) to S. 114 lays down
that a court may presume that an accomplice is
unworthy of credit unless he is corroborated in
material particulars. In the case of such a
Crl.A.Nos.2295-2296 of 2010 - 242-
person on his own showing he is a depraved and
debased individual who having taken part in the
crime tries to exculpate himself and wants to
fasten the liability on another. In such
circumstances it is absolutely necessary that
what he has deposed must be corroborated in
material particulars. In contrasting this with
the statement of a person making a confession
who stands on a better footing, one need only
find out when there is a retraction whether the
earlier statement, which was the result of
remorse, repentance and contrition, was
voluntary and true or not and it is with that
object that corroboration is sought for. Not
infrequently one is apt to fall in error in
equating a retracted confession with the
evidence of an accomplice and therefore, it is
advisable to clearly understand the distinction
between the two. The standards of corroboration
in the two are quite different. In the case of
the person confessing who has resiled from his
statement, general corroboration is sufficient
while an accomplice's evidence should be
corroborated in material particulars. In
addition the court must feel that the reasons
given for the retraction in the case of a
confession are untrue.”
(emphasis laid by this Court)
This above said view of this Court has been endorsed
in various judgments subsequently and we find it
necessary to reiterate the same herein. The rule of
Crl.A.Nos.2295-2296 of 2010 - 243-
prudence as applying to confessions of the accused
under the general law, being that the confessional
statements which were retracted must be corroborated
by independent evidence, must be followed to convict
the accused for the charges framed against them. The
findings and reasons for conviction and sentencing of
the accused persons in this case were the confessional
statements of A-2, A-3, A-4 and A-6 and the two Urdu
letters which are purportedly written by A-4. A-2, A-
3, A-4 and A-6 had retracted their confessional
statements as per the exhibits aforementioned and all
of them had alleged that they were tortured and
threatened with dire consequences of death through
‘encounter’ and death of their loved ones. All the
accused persons speak of torture by beating,
especially on the legs and this corresponds to their
complaints of pain ‘under the feet’.
117. Further, A-5 also made a statement as per Ex.778
that he was tortured in police custody and that he had
Crl.A.Nos.2295-2296 of 2010 - 244-
no role in the conspiracy to attack the Akshardham
temple and he was being frame d in the case. The
statements of retraction also referred to the repeated
entreaties by accused persons before the Special Court
(POTA) as well as by A-2, A-4 and A-5, before the DIG
of Police at Jammu and Kashmir, Mr. K Rajendra Kumar
to transfer the case to the CBI for an independent
investigation and enquiry.
118. Further, A-6 had also retracted his confessional
statement (Ex.32), wherein he had also alleged severe
torture and beating by the Srinagar police as well as
the Crime Branch, Ahmedabad and he alleged that he was
arrested at Nagpur and sent to Srinagar and a
compulsory confession had been extracted from him in
order to implicate him in the crime.
119. Further, with respect to the two Urdu letters,
which were purportedly written by A-4, upon which the
prosecution placed such an unflinching reliance in
Crl.A.Nos.2295-2296 of 2010 - 245-
order to establish a link between the fidayeens and
the accused persons, has already been answered by us
in point nos. 4 and 5 to be completely unreliable for
the reasons stated by us in this judgment.
120. The story of the prosecution crumbles down at
every juncture. Most importantly, the case laws relied
upon above show that the statements of confession of
the accused persons cannot be relied upon if they are
retracted, unless corroborated by independent
evidence. In this case, as already elucidated, the
case of the prosecution rests on the confessional
statements on the accused persons, the confessional
statements of the accomplices and their evidence and
the two Urdu letters purportedly found in the pockets
of the trousers of the fidayeens and written by A-4,
and apart from this, it is very clear that there is
absolutely no independent evidence to implicate the
accused persons for the crime. The evidence of the
accomplices, PW-50, PW-51 and PW-52 are also rejected
Crl.A.Nos.2295-2296 of 2010 - 246-
for the reasons given in the answer to point no.3.
Therefore, there is no independent evidence on record
which corroborates the confessions of the accused
persons which were subsequently retracted.
Further, a retracted confessional statement of an
accused person cannot be used to corroborate the
retracted confessional statement of a co-accused. In
the case of Aloke Nath Dutta & Ors. V. State of West
Bengal
59
, this Court held as under:
“110. A retracted confession of a co-accused
cannot be relied upon for the purpose of
finding corroboration for the retracted
confession of an accused....
116. Whatever be the terminology used, one rule
is almost certain that no judgment of
conviction shall be passed on an uncorroborated
retracted confession. The court shall consider
the materials on record objectively in regard
to the reasons for retraction. It must arrive
at a finding that the confession was truthful
and voluntary. Merit of the confession being
the voluntariness and truthfulness, the same,
in no circumstances, should be compromised. We
are not oblivious of some of the decisions of
59
(2007) 12 SCC 230
Crl.A.Nos.2295-2296 of 2010 - 247-
this Court which proceeded on the basis that
conviction of an accused on the basis of a
retracted confession is permissible but only if
it is found that retraction made by the accused
was wholly on a false premise.......
117. There cannot, however, be any doubt or
dispute that although retracted confession is
admissible, the same should be looked with some
amount of suspicion - a stronger suspicion than
that which is attached to the confession of an
approver who leads evidence to the court. ”
(emphasis laid by this Court)
121. Thus, for the above reason also, the confessional
statements of the accused persons cannot be relied
upon and the case of the prosecution fails.
Accordingly, we hold that there is no independent
evidence on record to prove the guilt of the accused
persons beyond reasonable doubt in the face of the
retractions and grave allegations of torture and
violation of human rights of the accused persons
against the police. We accordingly answer this point
in favour of the appellants.
Crl.A.Nos.2295-2296 of 2010 - 248-
Answer to point no. 8
122. The accused persons have been found guilty of the
offence of criminal conspiracy by both the courts
below. It was contended before us by the learned
senior counsel for the prosecution that the accused
persons in the instant case are guilty of criminal
conspiracy and though the accused persons did not know
each other, it is not a prerequisite for establishing
the offence of criminal conspiracy provided under
Section 120-A of IPC. On the other hand, it was
contended by the learned senior counsel for the
accused persons that neither the common intention nor
the common object of the accused, i.e attack on
Akshardham temple in the intervening night between
24.09.2002 and 25.09.2002, has been established by the
prosecution.
To begin with, we intend to reiterate the provisions
of the relevant section of the IPC.
Crl.A.Nos.2295-2296 of 2010 - 249-
"120-A- When two or more persons agree to do,
or cause to be done-
(1) an illegal act, or
(2) an act which is not illegal by illegal
means, such an agreement is designated a
criminal conspiracy:
Provided that no agreement except an agreement
to commit an offence shall amount to a criminal
conspiracy unless some act besides the
agreement is done by one or more parties to
such agreement in pursuance thereof."
Explaining what constitutes the offence of criminal
conspiracy, it was held by this Court in the case of
K.R Purushothaman v. State of Kerala
60
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 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
60
(2005) 12 SCC 631
Crl.A.Nos.2295-2296 of 2010 - 250-
existence of conspiracy and its objects are
usually deduced from the circumstances of the
case and the conduct of the accused involved in
the conspiracy. While appreciating the evidence
of the conspiracy, it is incumbent on the court
to keep in mind the well-known rule governing
circumstantial evidence viz. each and every
incriminating circumstance must be clearly
established by reliable evidence and the
circumstances proved must form a chain of
events from which the only irresistible
conclusion about the guilt of the accused can
be safely drawn, and no other hypothesis
against the guilt is possible. Criminal
conspiracy is an independent offence in the
Penal Code. The unlawful agreement is sine qua
non for constituting offence under the Penal
Code and not an accomplishment. Conspiracy
consists of the scheme or adjustment between
two or more persons which may be express or
implied or partly express and partly implied.
Mere knowledge, even discussion, of the plan
would not per se constitute conspiracy. The
offence of conspiracy shall continue till the
termination of agreement.”
(emphasis laid by this Court)
123. The ingredients necessary to establish the
offence of criminal conspiracy have been discussed by
a three Judge bench of this Court in the case of Ram
Narayan Popli & Ors. & Ors v. Central Bureau of
Crl.A.Nos.2295-2296 of 2010 - 251-
Investigation
61
in a portion of the below para, as
under:
“342. ….The elements of a criminal conspiracy
have been stated to be: (a) an object to be
accomplished, (b) a plan or scheme embodying
means to accomplish that object, (c) an
agreement or understanding between two or more
of the accused persons whereby, they become
definitely committed to co-operate for the
accomplishment of the object by the means
embodied in the agreement, or by any effectual
means, and (d) in the jurisdiction where the
statute required an overt act. The essence of a
criminal conspiracy is the unlawful combination
and ordinarily the offence is complete when the
combination is framed. From this, it
necessarily follows that unless the statute so
requires, no overt act needs be done in
furtherance of the conspiracy, and that the
object of the combination need not be
accomplished, in order to constitute an
indictable offence….”
As far as the role of each individual accused is
concerned, it has been established by this Court that
each individual conspirator need not know the contents
of the entire conspiracy, or each and every step. It
61
(2003) 3 SCC 641
Crl.A.Nos.2295-2296 of 2010 - 252-
is possible that the co-conspirator’s knowledge of the
conspiracy is limited to his role in the conspiracy,
and he may have no knowledge about the actions of the
other co-conspirators. In the case of Yash Pal Mittal
v. State of Punjab
62
it was held by this Court as
under:
“9. The offence of criminal conspiracy under
Section 120-A is a distinct offence introduced
for the first time in 1913 in Chapter V-A of
the Penal Code. The very agreement, concert or
league is the ingredient of the offence. It is
not necessary that all the conspirators must
know each and every detail of the conspiracy as
long as they are co-participators in the main
object of the conspiracy. There may be so many
devices and techniques adopted to achieve the
common goal of the conspiracy and there may be
division of performances in the chain of
actions with one object to achieve the real end
of which every collaborator must be aware and
in which each one of them must be interested.
There must be unity of object or purpose but
there may be plurality of means sometimes even
unknown to one another, amongst the
conspirators. In achieving the goal, several
offences may be committed by some of the
conspirators even unknown to the others. The
only relevant factor is that all means adopted
62
(1977) 4 SCC 540
Crl.A.Nos.2295-2296 of 2010 - 253-
and illegal acts done must be and purported to
be in furtherance of the object of the
conspiracy even though there may be sometimes
misfire or over-shooting by some of the
conspirators. Even if some steps are resorted
to by one or two of the conspirators without
the knowledge of the others it will not affect
the culpability of those others when they are
associated with the object of the conspiracy….”
It was also observed in the case of Ajay Aggarwal v.
Union of India & Ors.
63
that:
“8….It is not necessary that each conspirator
must know all the details of the scheme nor be
a participant at every stage. It is necessary
that they should agree for design or object of
the conspiracy. Conspiracy is conceived as
having three elements: (1) agreement; (2)
between two or more persons by whom the
agreement is affected; and (3) a criminal
object, which may be either the ultimate aim of
the agreement, or may constitute the means, or
one of the means by which that aim is to be
accomplished…..”
124. In the present case, the prosecution had relied
upon the information contained in the confessional
63
1993 (3) SCC 609
Crl.A.Nos.2295-2296 of 2010 - 254-
statements of the accused persons in order to set up
the plea that the offence of criminal conspiracy had
been committed by each one of them. A careful
examination of this information will reveal that this
claim of the prosecution does not hold water.
125. To punish an accused under section 120-B of the
IPC, it is essential to establish that there was some
common object to be achieved and that there was an
agreement by the accused persons to achieve that
object i.e there was a ‘meeting of minds’. In the
present case, it cannot be said that the conspiracy
was hatched by the accused persons in furtherance of
some common object.
The common object, according to the case of the
prosecution was to take revenge for the Godhra Riots
of 2002. But this object is vague, and is not very
specific and the charge of criminal conspiracy against
the accused persons cannot be proved on its basis.
Crl.A.Nos.2295-2296 of 2010 - 255-
Further, even the confessional statements of the
accused persons did not help the prosecution to
establish the chain of events in pursuance of the
alleged conspiracy. In fact, they are highly
contradictory and improbable in nature.
126. According to the prosecution, as disclosed in the
confessional statements of A-1, A-2, A-3, A-4 and A-6,
the conspiracy was hatched in Saudi Arabia, and money
was delivered to India through havala; the two
fidayeens were apparently escorted to Ahmedabad by one
Aiyub Khan and they also brought the arms and
ammunition with them. It was stated that A-2 then took
the fidayeens in his auto rickshaw and helped them
reccie places in Ahmedabad and Gandhinagar, and
finally helped them in choosing the Akshardham temple
at Gandhinagar as a suitable place to carry out the
attack and hence take the revenge against Hindus for
the Godhra riots. According to the prosecution, A-2
Crl.A.Nos.2295-2296 of 2010 - 256-
also stated that the accommodation of the fidayeens
was set up at Bavahir Hall.
Per contra, as per the confessional statement of
A-6, he was the one who brought the two fidayeens from
Kashmir, and drove the car with ammunitions from
Kashmir to Bareilly, and then came to Ahmedabad in a
train, and carried the ammunitions in bedding. A-6,
according to the prosecution, was also the one who
recceied Gandhinagar and Ahmedabad with the two
fidayeens, before finally settling on Akshardham as
the site of the attack. A-6 also stated, according to
the prosecution, that the fidayeens stayed at the
Gulshan Guest House. Interestingly though, neither A-2
nor A-6 speak of each other or each other’s role in
the planning and conspiracy, even though they were
both seemingly doing the same task, i.e, of arranging
for the accommodation of the fidayeens, and making
them reccie the cities of Gandhinagar and Ahmedabad
Crl.A.Nos.2295-2296 of 2010 - 257-
and we wonder how there can be two versions of the
same event.
127. It is true that in order to establish criminal
conspiracy, it is not required of every co-conspirator
to know the entire sequence of the chain and events,
and that they can still be said to be conspirators
even if they are only aware of their limited roles and
are not able to identify the role of any other
conspirator. But that is not the case here. It is not
the case here that the knowledge of the conspirators
is limited to their role. Each accused claims to have
complete knowledge of the conspiracy, while
contradicting the other’s version of the same events
to constitute the act of criminal conspiracy.
128. Therefore, the confessional statements of the
accused persons and the accomplices do not complement
each other to form a chain of events leading to the
offence. Rather, the depositions of the prosecution
Crl.A.Nos.2295-2296 of 2010 - 258-
witnesses were contradictory and disrupt the chain of
events and turn it into a confusing story with many
discrepancies, defeating the roles of each of the
accused persons which have been allegedly performed by
them. Also, none of the events of the alleged criminal
conspiracy was supported by independent evidence that
inspires confidence in our minds to uphold the
conviction and sentences meted out to the accused
persons.
128. Hence, we hold that the prosecution has failed to
prove beyond reasonable doubt, the guilt against the
accused persons, for the offence of criminal
conspiracy under Section 120-B of the IPC. We,
therefore answer this point in favour of the
appellants.
Answer to point no. 9
Crl.A.Nos.2295-2296 of 2010 - 259-
129. Article 136 of the Constitution confers appellate
jurisdiction on this court, the scope and powers of
which has been discussed by this court in a catena of
decisions.
In the case of Arunachalam v. P.S.R. Sadhanantham &
Anr.
64
, Chinappa Reddy, J. observed:
“4…. Article 136 of the Constitution of India
invests the Supreme Court with a plenitude of
plenary, appellate power over all Courts and
Tribunals in India. The power is plenary in the
sense that there are no words in Article 136
itself qualifying that power. But, the very
nature of the power has led the Court to set
limits to itself within which to exercise such
power. It is now the well established practice
of this Court to permit the invocation of the
power under Article 136 only in very
exceptional circumstances, as when a question
of law of general public importance arises or a
decision shocks the conscience of the Court.
But within the restrictions imposed by itself,
this Court has the undoubted power to interfere
even with findings of fact making no
distinction between judgment of acquittal and
conviction, if the High Court, in arriving at
those findings, has acted "perversely or
otherwise improperly”….”
64
(1979)2 SCC 297
Crl.A.Nos.2295-2296 of 2010 - 260-
(emphasis laid by this Court)
While examining as to whether this Court has the power
to interfere with the concurrent findings of fact
recorded by the courts below, it was held in the case
of Indira Kaur & Ors. v. Sheo Lal Kapoor
65
as under:
“7.… Article 136 of the Constitution of India
does not forge any such fetters expressly. It
does not oblige this Court to fold its hands
and become a helpless spectator even when this
Court perceives that a manifest injustice has
been occasioned. If and when the Court is
satisfied that great injustice has been done it
is not only the “right” but also the “duty” of
this Court to reverse the error and the
injustice and to upset the finding
notwithstanding the fact that it has been
affirmed thrice………… It is not the number of
times that a finding has been reiterated that
matters. What really matters is whether the
finding is manifestly an unreasonable, and
unjust one in the context of evidence on
record. It is no doubt true that this Court
will unlock the door opening into the area of
facts only sparingly and only when injustice is
perceived to have been perpetuated. But in any
view of the matter there is no jurisdictional
lock which cannot be opened in the face of
grave injustice...”
65
(1988) 2 SCC 488
Crl.A.Nos.2295-2296 of 2010 - 261-
(emphasis laid by this court)
Further, this court has explained the circumstances in
which it can interfere with the findings of the fact
recorded by the courts below. In the case of Bharwada
Bhoginbhai Hirjibhai v. State of Gujarat
66
, it was
held by this Court that:
“5. …….Such a concurrent finding of fact cannot
be reopened in an appeal by special leave
unless it is established : (1) that the finding
is based on no evidence or (2) that the finding
is perverse, it being such as no reasonable
person could have arrived at even if the
evidence was taken at its face value or (3) the
finding is based and built on inadmissible
evidence, which evidence, if excluded from
vision, would negate the prosecution case or
substantially discredit or impair it or (4)
some vital piece of evidence which would tilt
the balance in favour of the convict has been
overlooked, disregarded, or wrongly
discarded….”
66
(1983)3 SCC 217
Crl.A.Nos.2295-2296 of 2010 - 262-
More recently, in the case of Ganga Kumar Shrivastav
v. State of Bihar
67
it was stated while discussing
previous cases on the subject that, the following
principles could guide the courts in determining the
scope of the criminal appellate jurisdiction exercised
by the Supreme Court, especially on the issue of
reversing findings of fact by the lower courts:
“10.
……
i) The powers of this Court under Article 136
of the Constitution are very wide but in
criminal appeals this Court does not interfere
with the concurrent findings of the fact save
in exceptional circumstances.
ii) It is open to this Court to interfere with
the findings of fact given by the High Court if
the High Court has acted perversely or
otherwise improperly.
iii) It is open to this Court to invoke the
power under Article 136 only in very
exceptional circumstances as and when a
question of law of general public importance
arises or a decision shocks the conscience of
the Court.
67
(2005)6 SCC 211
Crl.A.Nos.2295-2296 of 2010 - 263-
iv)When the evidence adduced by the prosecution
fell short of the test of reliability and
acceptability and as such it is highly unsafe
to act upon it.
v) Where the appreciation of evidence and
finding is vitiated by any error of law of
procedure or found contrary to the principles
of natural justice, errors of record and
misreading of the evidence, or where the
conclusions of the High Court are manifestly
perverse and unsupportable from the evidence on
record
130. From the aforementioned two cases, the legal
principles laid down regarding the scope and ambit of
exercise of this Court’s power, it is clear that even
though the powers under Article 136 must be exercised
sparingly, yet, there is absolutely nothing in the
Article which prohibits this Court from reversing the
concurrent findings of fact by the courts below, if it
is of the opinion on the basis of the evidence on
record, that affirming the findings of the courts
below will result in a grave miscarriage of justice.
Moreover, it has been held by this Court in the case
Crl.A.Nos.2295-2296 of 2010 - 264-
of Mohammad Ajmal Mohammad Amir Kasab v. State of
Maharashtra
68
that if the case is of death sentence,
this Court can exercise its power to examine material
on record first hand and come to its own conclusion on
facts and law, unbound by the findings of the Trial
Court and the High Court.
131. Here, we intend to take note of the perversity in
conducting this case at various stages, right from the
investigation level to the granting of sanction by the
state government to prosecute the accused persons
under POTA, the conviction and awarding of sentence to
the accused persons by the Special Court (POTA) and
confirmation of the same by the High Court. We, being
the apex court cannot afford to sit with folded hands
when such gross violation of fundamental rights and
basic human rights of the citizens of this country
68
(2012) 9 SCC 1
Crl.A.Nos.2295-2296 of 2010 - 265-
were presented before us. The investigation process
post Akshardham attack happened as under:
• The incidence of Akshardham happened in the
intervening nights between 24.09.2002 and
25.09.2002. An FIR was registered by PW-126 on
25.09.2002.
• According to the instruction of Superintendent
of Police, the investigation of the complaint
was handed over to Police Inspector Shri V.R.
Tolia (PW-113).
• The investigation was then handed over to the
Anti Terrorist Squad on 03.10.2002.
• The investigation was thereafter handed over to
the Crime Branch which was assigned to PW-126
on 28.08.2003 at 6:30 p.m.
• The statement of PW-50 was taken at 8 p.m, on
the same night of 28.08.2003, after receiving
verbal instruction from higher officer-D.G.
Vanzara in the morning.
• A-1 to A-5 were arrested on 29.08.2003.
• POTA was invoked on 30.08.2003.
• The I.G.P. Kashmir sends a fax message to
I.G.P. operations ATS Gujarat state on
31.08.2003 regarding A-6 being in the custody
of Kashmir Police and that he has stated that
he was involved in the Akshardham attack.
• A-6 was brought to Ahmedabad on 12.09.2003 and
was arrested at 9:30 p.m.
Crl.A.Nos.2295-2296 of 2010 - 266-
• A-1 and A-3 confessed on 17.09.2003.
• A-2 and A-4 confessed on 24.09.2003.
• A-6 confessed on 05.10.2003.
• A-6 was brought to Ahmedabad on 12.09.2003 and
was arrested at 9:30 p.m.
A careful observation of the above said dates would
show that the ATS was shooting in the dark for about a
year without any result. No trace of the people
associated with this heinous attack on the Akshardham
temple could be found by the police. Then on the
morning of 28.03.2003, the case is transferred to
Crime Branch, Ahmedabad. This was followed by D.G.
Vanzara giving instructions to the then-ACP G.S.
Singhal (PW-126) about one Ashfaq Bhavnagri (PW-50).
PW-126 was thereafter made in charge of the case on
the same evening at 6:30 p.m. and the statement of PW-
50 was recorded at 8 p.m., i.e within one and a half
hours. This shrouds our minds with suspicion as to why
such a vital witness- D.G. Vanzara, who discovered the
Crl.A.Nos.2295-2296 of 2010 - 267-
link to the accused persons, was not examined by the
Special Court (POTA). The courts below accepted the
facts and evidence produced by the police without
being suspicious about the extreme coincidences with
which the chain of events unfolded itself immediately
that is, within 24 hours of the case being transferred
to the Crime Branch, Ahmedabad.
132. We are reminded of the legendary lines of Justice
Vivian Bose in the case of Kashmira Singh’s case
(supra) wherein he cautioned that:
“2. The murder was a particularly cruel and
revolting one and for that reason it will be
necessary to examine the evidence with more
than ordinary care lest the shocking nature of
the crime induce an instinctive reaction
against the dispassionate judicial scrutiny of
the facts and law.”
(emphasis laid by this court)
The courts below have not examined the evidence with
‘more than ordinary care’. Firstly, the Special Court
Crl.A.Nos.2295-2296 of 2010 - 268-
(POTA) accepted the justification made by the
prosecution in sending the accused persons to police
custody after being produced before the CJM on the
ground that there was no complaint made by them.
Secondly, the courts below held that the fact
that A-1 to A-5 did not know A-6, does not disprove
the theory of criminal conspiracy, rather it displays
the extreme caution with which the conspiracy was
hatched. We are unable to bring ourselves to agree
with this reasoning of the courts below, as in the
instant case, not only did A-1 to A-5 not know A-6 and
vice versa, but also A-2, A-4 and A-6 had narrated
different versions of the same story, each of which
contradicted the other and was actually fatal to the
case of the prosecution. The courts below mechanically
and without applying their mind, discarded this
contention of the learned counsel on behalf of the
accused persons.
Crl.A.Nos.2295-2296 of 2010 - 269-
Thirdly, the two Urdu letters purported to have
been recovered from the pockets of the trousers of the
fidayeens (Ex.658), did not have even a drop of blood,
mud or perforation by the bullets, whereas on physical
examination of the trousers by us, which are marked as
mudammal objects, we found that the clothes on the
pockets of the fidayeens were perforated with bullets
and smeared with dried blood even after 12 years of
the incident.
The Special Court (POTA) however, did not find it
imperative to examine why the letters recovered from
the pockets of the trousers of the fidayeens were
spotless. It admitted the letters as evidence merely
on the basis of the confessional statement of A-4 who
had, in his statement recorded that he had written the
letters and had also kept the pen to prove that the
letters were written with the same pen. The Special
Court (POTA) also admitted the letters as evidence on
the ground that signatures of Brigadier Raj Sitapati
Crl.A.Nos.2295-2296 of 2010 - 270-
as per the statement of PW-91 Major Lamba, were
present on those letters. The High Court admitted the
letters as evidence on the ground that “ truth is
stranger than fiction ” by overlooking not only the
most impossible fact that the letters marked by the
police were spotless, but also ignoring the evidence
of PW-105 who in his deposition recorded that there
were no signatures of Brigadier Sitapati or anyone
else on the letters when they were handed over to PW-
126.
133. Another error of the courts below is reflected in
the fact that they have not given the same weightage
to the defence witnesses as they have to the
prosecution witnesses. The learned senior counsel for
the accused persons contended that the courts below
should have given same weigthage to the evidence of
the defence witnesses as that of the prosecution
witnesses. However, the evidence of DW-3 was not only
Crl.A.Nos.2295-2296 of 2010 - 271-
discarded but also not mentioned in the decision of
the Special Court (POTA). DW-3 stated as under:
“Nazneen Bastawala was a Municipal Corporator
in Dariyapur area in the year 2003. All those
were arrested on 25.8.2003 under POTA.
Therefore, a rally was organized for going from
Dariyapur Lake to Kalupur. 200-300 women
gathered near Dariyapur Talawadi at ten o clock
in the morning. While we were going for rally,
police made lathi charges and Nazneen was
forced to sit in vehicle.
….
Thereafter, we were taken to the Office of the
Commissioner at Shahibag in vehicle. Police
personnel said that you have to engage advocate
for obtaining bail. We were taken to Court no.
10 from there at Meghaninagar. Nazneen Ben
called an advocate by making a phone and
thereafter we were released on bail at about 5
o’ clock in the evening on the relevant day.
….
The persons who were taken from Dariyapur
Kalupur under POTA were- Maulvi Ahmed, Maulvi
Abdulla, Mufti Kayum and many such people. All
these people were taken before eight to nine
days of the rally.”
In Cross Examination by Special P.P. Shri H.M. Dhruv
for the state, DW-3 states as under:
“……. I had given the names of the boys who were
arrested under POTA to Nazneenben. Boys were
talking in Mohalla. Maulvi Ahmed resides in
Kalupur. It takes five to seven minutes if we
Crl.A.Nos.2295-2296 of 2010 - 272-
go to Kalupur on foot from my house which is
situated at Dariyapur. Maulvi Abdullah resides
at Baluchawad Moti Haveli in Kalupur area.
Mufti Kayum resides in Dariyapur and his house
is situated at a distance of two to three
minutes from my house. It is true that there
may not be any occasion for me to visit houses
of these people, only we meet on the way. It is
true that Nazneen Ben told for arranging the
rally in respect of their arrest under POTA. It
is true that boys were saying that Maulvi
Abdulla, Mufti Kayum and Maulvi Ahmed had been
taken away by arresting them under POTA. It is
not true that I had stated falsely that Mufti
Abdulla, Mufti Kayum and Maulvi Ahmed were
taken before 8 to 9 days of 25.8.2003.
They were not my kin or kith out of the persons
who have been arrested in POTA. We reside in
one Mohalla and we belong to one caste. Mufti
Kayum is my neighbour. There is distance of two
or three minutes between our houses. …..Mother
of Mufti Kayum met me and she told that they
have been taken and no one is released and
therefore, a rally is required to be arranged.
There were two vehicles of police. Fifty or
sixty women went in them and the rest of them
had left.”
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted on behalf of the
appellants)
Crl.A.Nos.2295-2296 of 2010 - 273-
It has been held by this Court in a catena of
cases that while examining the witnesses on record,
equal weightage shall be given to the defence
witnesses as that of the prosecution witnesses. In
the case of Munshi Prasad & Ors. v. State of Bihar
69
,
this Court held as under:
“3..…Before drawing the curtain on this score
however, we wish to clarify that the evidence
tendered by the defence witnesses cannot always
be termed to be a tainted one by reason of the
factum of the witnesses being examined by the
defence. The defence witnesses are entitled to
equal respect and treatment as that of the
prosecution. The issue of credibility and the
trustworthiness ought also to be attributed to
the defence witnesses on a par with that of the
prosecution - a lapse on the part of the
defence witness cannot be differentiated and be
treated differently than that of the
prosecutors' witnesses.”
(emphasis laid by this Court)
69
(2002) 1 SCC 351
Crl.A.Nos.2295-2296 of 2010 - 274-
Further, it has been held in the case of State of
Haryana v. Ram Singh
70
as under:
“19. …………Incidentally, be it noted that the
evidence tendered by defence witnesses cannot
always be termed to be a tainted one — the
defence witnesses are entitled to equal
treatment and equal respect as that of the
prosecution. The issue of credibility and the
trustworthiness ought also to be attributed to
the defence witnesses on a par with that of the
prosecution. Rejection of the defence case on
the basis of the evidence tendered by the
defence witness has been effected rather
casually by the High Court. Suggestion was
there to the prosecution witnesses, in
particular PW 10 Dholu Ram that his father
Manphool was missing for about 2/3 days prior
to the day of the occurrence itself — what more
is expected of the defence case: a doubt or a
certainty — jurisprudentially a doubt would be
enough: when such a suggestion has been made
the prosecution has to bring on record the
availability of the deceased during those 2/3
days with some independent evidence. Rejection
of the defence case only by reason thereof is
far too strict and rigid a requirement for the
defence to meet — it is the prosecutor’s duty
to prove beyond all reasonable doubts and not
the defence to prove its innocence — this
itself is a circumstance, which cannot but be
termed to be suspicious in nature.”
70
(2002) 2 SCC 426
Crl.A.Nos.2295-2296 of 2010 - 275-
(emphasis laid by this Court)
Also, in the case of State of U.P. v. Babu Ram
71
, this
court held as under:
“21. Shri N.P. Midha, learned counsel for the
respondent submitted written submissions over
and above the oral arguments addressed by him.
One of the contentions adverted to by the
learned counsel is pertaining to the evidence
of the defence witness (DW 1 Moharam Ali).
Counsel contended that if the evidence of DW 1
Moharam Ali can be believed it is sufficient to
shake the basic structure of the prosecution
evidence. Shri N.P. Midha invited our attention
to the following observations contained in the
decision of this Court in Dudh Nath Pandey v.
State of U.P.: (SCC p. 173, para 19)
“Defence witnesses are entitled to equal
treatment with those of the prosecution.
And, courts ought to overcome their
traditional, instinctive disbelief in
defence witnesses.”
22. We may quote the succeeding sentence also
from the said decision for the sake of
completion of the observations of their
Lordships on that score. It is this: “Quite
often they tell lies but so do the prosecution
witnesses.”
23. Depositions of witnesses, whether they are
examined on the prosecution side or defence
71
(2000) 4 SCC 515
Crl.A.Nos.2295-2296 of 2010 - 276-
side or as court witnesses, are oral evidence
in the case and hence the scrutiny thereof
shall be without any predilection or bias. No
witness is entitled to get better treatment
merely because he was examined as a prosecution
witness or even as a court witness. It is
judicial scrutiny which is warranted in respect
of the depositions of all witnesses for which
different yardsticks cannot be prescribed as
for those different categories of witnesses. ”
(emphasis laid by this Court)
134. The courts below had ignored these basic legal
principles while admitting the statement of witnesses
while weighing the case against the accused persons.
While the decision of the Special Court (POTA) found
mention of DW-1, DW-2, DW-4, DW-5 and DW-6, the
evidence of DW-3 which indicated that some of the
accused persons might have actually been detained in police custody much before the official date of arrest, had been completely overlooked.
Crl.A.Nos.2295-2296 of 2010 - 277-
However, FIR-ICR No. 3090 of 2003 (Ex.733) in the
present case shows that DW-3 was arrested along with
some other women under Section 188 IPC for protesting
against detention of some persons from their area.
This, read with the notification G.P.K./V.S./774/2003
by the Police Commissioner Ahmedabad City holding that
from date 16.08.2003 00/00 hrs. to 31.08.2003 at 24.00
hrs., not more than four persons shall gather for
holding or calling any meeting or shall take out any
procession, indicates a story under the layers of
truth which the police has managed to suppress and the
courts below overlooked.
Therefore, according to us, this is a fit case
for interference by this Court under Article 136 of
the Constitution, as we are of the firm view that the
concurrent findings of fact of the Special Court
Crl.A.Nos.2295-2296 of 2010 - 278-
(POTA) and the High Court are not only erroneous in
fact but also suffers from error in law.
Answer to point no. 10
135. On the basis of t he issues we have already
answered above based on the facts and evidence on
record and on the basis of the legal principles laid
down by this Court, we are convinced that accused
persons are innocent with respect to the charges
leveled against them. We are of the view that the
judgment and order of the Special Court (POTA) in POTA
case No. 16 of 2003 dated 01.07.2006 and the impugned
judgment and order dated 01.06.2010 of the High Court
of Gujarat at Ahmedabad in Criminal Confirmation Case
No.2 of 2006 along with Criminal Appeal Nos. 1675 of
2006 and 1328 of 2006 are liable to be set aside.
Crl.A.Nos.2295-2296 of 2010 - 279-
Consequently, the sentences of death awarded to A-2,
A-4 and A-6, life imprisonment awarded to A-3, 10
years of Rigorous Imprisonment awarded to A-5 are set
aside. Since we are acquitting all the accused in
appeal before us for the reasons mentioned in this
judgment and also, since A-1 was convicted and
sentenced on the basis of the same evidence which we
have already rejected, we also acquit A-1 who is not
in appeal before us, of the conviction and sentence of
5 years Rigorous Imprisonment awarded to him by the
courts below, exercising the power of this Court under
Article 142 of the Constitution and hold him not
guilty of the charges framed against him. We are aware
that he has already served his sentence. However, we
intend to absolve him of the stigma he is carrying of
that of a convict, wrongly held guilty of offences of
terror so that he is able to return to his family and
society, free from any suspicion.
Crl.A.Nos.2295-2296 of 2010 - 280-
136. Before parting with the judgment, we intend to
express our anguish about the incompetence with which
the investigating agencies conducted the investigation
of the case of such a grievous nature, involving the
integrity and security of the Nation. Instead of
booking the real culprits responsible for taking so
many precious lives, the police caught innocent people
and got imposed the grievous charges against them
which resulted in their conviction and subsequent
sentencing.
137. We allow the appeals accordingly by setting aside
the judgment and order of Special Court (POTA) in POTA
case No. 16 of 2003 dated 01.07.2006 and the impugned
common judgment and orders dated 01.06.2010 of the
High Court of Gujarat at Ahmedabad in Criminal
Confirmation Case No.2 of 2006 along with Criminal
Appeal Nos. 1675 of 2006 and 1328 of 2006.
Crl.A.Nos.2295-2296 of 2010 - 281-
Accordingly, we acquit all the appellants in the
present appeals, of all the charges framed against
them. The appellants who are in custody shall be set
at liberty forthwith, if they are not required in any
other criminal case. We also set aside the conviction
and sentence awarded to A-1, though he has already
undergone the sentence served on him. All the
applications filed in these appeals are accordingly
disposed of.
………………………………………………………J.
[A.K. PATNAIK]
…………………………………………………………J.
[V. GOPALA GOWDA]
May 16, 2014
NEW DELHI
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