CENTRAL BUREAU OF INVESTIGATION & ANR versus MOHD. PARVEZ ABDUL KAYUUM ETC on 5 July 2019

[2019] 8 S.C.R. 439

CENTRAL BUREAU OF INVESTIGATION & ANR.

v.

MOHD. PARVEZ ABDUL KAYUUM ETC.

(Criminal Appeal Nos.140-151 of 2012)

JULY 05, 2019

[ARUN MISHRA AND VINEET SARAN, JJ.]

Penal Code, 1860:

ss. 120B, 302, 307, 201/120B – ss. 25(1)(B)(a), 27(1) and 5of Arms Act, 1959 – s. 3(1), (2), (3) and (4) and s.4 of Prevention ofTerrorism Act, 2002 (POTA)– Murder and attempt to murder – Intwo different incidents – Investigation by CBI – In investigationfound that both incidents were part of same transaction and inpursuance of common conspiracy with the motive to spread terroramong Hindu community after post-Godhra riots – 4 accusedabsconded – Trial of 12 accused – Conviction by trial court –Appeal before High Court by accused as well as CBI – However, noappeal was filed by CBI against A-2, A-3 and A-12 – High Courtset aside the conviction u/s. 302/120B IPC and s. 3(1) of POTAagainst all the accused, while upholding conviction under rest ofthe provisions – High Court also reduced the sentence imposed onA-2 – Appeal to Supreme Court – Held: There is ample evidence asto conspiracy leading to attempt of murder of PW-39 and fatal attackon the deceased – Testimony of the eye-witness is reliable and isamply corroborated by medical evidence – High Court adoptedhyper-technical approach in assessing the evidence of the eye-witness and was moved by minor discrepancies which do not go tothe heart of the matter and shake basic version of prosecution case– Prosecution case is also proved by forensic evidence –Call-records of the accused and recovery of the vehicle used forthe offence and the weapon of offence also support prosecutioncase – Confessional statements made by the accused,which havebeen recorded after due compliance of s. 32, as well as of s. 52 ofPOTA also proves involvement of each and every accused in thecriminal conspiracy – The confessional statements have been dulycorroborated by other evidence – Conviction and sentence of A-1,A-4, A-5, A-6, A-7, A-8, A-9, A-10 and A-11 u/ss. 3(1), (2) and (3) of

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APOTA and s. 302 r/w s. 120B IPC is restored – So far as A-2, A-3and A-12 are concerned, no further interference is required andtheir appeals are dismissed.

s. 174A – Absconded accused – Prosecution for the chargesof murder and attempt to murder under the provisions of IPC andBPOTA – Also prosecuted u/s. 174A – Trial court convicted him u/s.174A and acquitted him of all the charges giving him benefit ofdoubt – High Court modified the sentence by imposing fine of Rs.21 lakhs with default clause – Appeal to Supreme Court – Held:Trial court rightly extended benefit of doubt to the accused – Sincethe accused has already served sentence of 17 months and alsoCpaid the fine, no interference is required.

Prevention of Terrorism Act, 2002:

s. 32 – Confessional statement – Safeguards provided under– Discussed.

DEvidence:

Medical evidence and ocular evidence – Inconsistencybetween – Effect of – Held: In case of such inconsistency, ocularevidence will prevail – Ocular evidence can be discarded only whenthe medical evidence completely improbablises the ocular evidence.

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Book – Evidentiary value – Held: Opinion of a person is notin the realm of the evidence – The opinion in the book may be basedupon surmises, conjectures and suppositions and hence has noevidentiary value.

Newspapers and magazine reports – Evidentiary value – Held:Reports in the Newspapers and Magazines do not constituteevidence – A statement in the Newspaper is merely a heresay andtherefore inadmissible in evidence in absence of maker of thestatement deposing in court to have perceived the fact reported.

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Art. 32 – Writ petition/PIL – By an organization – Seekingfurther investigation in a criminal/murder case – On the basis thatthe High Court had acquitted the accused in the criminal casedoubting the investigation – Propriety and maintainability of – Held:PIL was filed when the criminal case was being heard in the Supreme H

Court – It is apparent that the accused persons were instrumentalin filing the PIL – The appropriate course would have been anapplication seeking further or re-investigation by the personsconcerned or by the writ petitioner – The motive for filing the PILwas oblique, improper and against discipline and it is clearly misuseof forum of PIL – Even on merit there is no material or groundworthy to direct further investigation or re-investigation in the case– The writ petition is dismissed with cost of Rs.50,000/-.

Public Interest Litigation:

Scope of – Held: Public Interest Litigation cannot be filedfor personal gain or political motive or any oblique consideration– Unnecessary interference in criminal case against prosecution attimes may cause serious prejudice to the accused also.

Advocates:

Professional ethics – Rule of Professional ethics framed byBar Council of India – Part VI, Chapter II, Section I, r. 8 –Prohibition for advocate to represent the organization/institutionof which the advocate is Executive Member –Appearance ofadvocate in the Court, in defiance of such Rule, would amount toprofessional misconduct.

Dismissing Criminal Appeal Nos. 141, 147 and 148 of 2012,Criminal Appeal Nos. 981, 982 and 983 of 2019, Writ Petition(Criminal) No. 26 of 2019 and disposing of rest of the appeals,the Court HELD: 1. The evidence has been adduced in the case as tothe conspiracy which leads to attempt to murder of PW-39 andthereafter fatal attack on the deceased. Accused are associatedwith it up to the murder and finally to the escape of the assailantsafter the murder. The evidence evinces training in Pakistan, thevarious meetings at Masjids, etc. of various accused persons fromtime to time. There is evidence of confessional statements ofconvicts, communication over e-mail, seizure of documentaryliterature at the time of arrest, there is also evidence of providinglogistical support and other various types of facilitation, providingmoney by cash or cheque in respect of accommodation, rent,transportation at Ahmedabad as well as at other places. Evidenceis also available with respect to providing mobile phones, A

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[2019] 8 S.C.R.

Atransportation, and providing of motorcycles, etc. On the basisof the confessional statement, recoveries and seizures had beenmade as per the disclosure statements including the seizure ofcomputer hard discs from Cyber Cafes. There is the recovery ofdocumentary evidence also, passenger books proved by hotelcaterers, PC owners and opinion of handwriting experts. ThereBis direct and circumstantial evidence as to the involvement ofother accused with A-1 in the commission of attempt to murderof PW-39 and murder of the deceased. There is evidence of doinga recce of the Law Garden which used to be frequented by thedeceased for taking morning walks, mobile calls bear the time ofCthe fatal attack by the accused persons on the deceased. Besidesthe mobile tower location of the mobile phone and data oftelephone use even shortly before and after the attack on PW-39as well as on deceased. [Para 15][483-F-H; 484-A-D]

State v. Nalini (1999) 5 SCC 253 : [1999] 3 SCR 1 ;DYakub Abdul Razak Memon v. State of Maharashtra(2013) 13 SCC 1 : [2013] 15 SCR 1 - referred to.

‘Commentary on Penal Law of India’ by Hari SinghGour (Vol. 2), 11th Edn. 1138 – referred to.

2.1 In view of the evidence on record, the statement madeEby PW-55, the direction of causing of injury No. 7 is fully explainedand an eye witness cannot be said to state all these details withmathematical precision. Corroborating evidence is available inabundance. [Para 48] [509-C]

Sukhdeep Singh v. State of Uttar Pradesh and Anr.(2010) 2 SCC 177 : [2009] 15 SCR 1252F– referred to.

2.2 As to the precise distance inch-wise position at the timeof firing, there is no witness who can give an exact description assuggested in a lengthy cross-examination. Lengthy cross-examination on this line was wholly uncalled for and whollyGunnecessary and witness is not supposed to furnish all such detailswith precision. Though the witness has withstood the test of cross-examination. It is not a case where medical evidence completelyimprobabilises the ocular evidence only on that case the ocularevidence has to be discarded not otherwise. [Paras 49-50]H[509-D-F]

Abdul Sayeed v. State of Madhya Pradesh(2010) 10SCC 259 : [2010] 13 SCR 311 ;State of Rajasthan v.Bhanwar Singh(2004) 13 SCC 147 : [2004] 4 Suppl.SCR 409 – relied on.

Nallapati Sivaiah v. Sub-Divisional Officer, Guntur,A.P., (2007) 15 SCC 465 : [2007] 10 SCR 347 ;Shingara Singh v. State of Haryana & Anr.(2003) 12SCC 758 ; Ram Narain Singh v. State of Punjab(1975) 4 SCC 497 : [1976] 1 SCR 27 – referred to.

2.3 It is not correct to say that number of injuries of thebullet, is not matching with the number of injuries found. Therewere 7 gunshot wounds whereas 5 bullets were recovered fromthe body of the deceased. 5 bullet injuries were caused assuggested by ocular evidence of PW-55 and also by medicalevidence that 5 bullets were found as injury Nos.5 and 6 werecommunicating injuries leading ultimately to injury No.1. Thus,there is no inconsistency rather ocular evidence is fortified bythe medical evidence. [Para 39] [505-D-E]

Rachhpal Singh and Anr. v. State of PunjabAIR 2002SC 2710 – referred to.

“A Colour Atlas of Human Anatomy”; “Gray’sAnatomy” andModi’s jurisprudence– referred to.

2.4 In the instant case, the ocular evidence of PW-55 is notdiscredited by the medical evidence. In case of any discrepancybetween the ocular or medical evidence, the ocular evidence shallprevail. [Para 57] [515-B-C]

Yogesh Singh v. Mahabeer Singh& Ors.(2017) 11 SCC195 : [2016] 7 SCR 713 ;Sunil Kundu & Anr. v. Stateof Jharkhand(2013) 4 SCC 422 : [2013] 5 SCR924; Bastiram v. State of Rajasthan(2014) 5 SCC398 : [2014] 2 SCR 567 – relied on.

Ram Narain Singh v. State of Punjab(1975) 4 SCC497 : [1976] 1 SCR 27 ; State of Haryana v. RamSingh(2002) 2 SCC 426 : [2002] 1 SCR 208 –distinguished.

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A2.5 The High Court has observed that negligible blood wasfound near the driver’s seat. The clothes of the deceased boretell-tale signs of profuse bleeding from injuries on his neck andfore-arm and mobile phone and keys lying under the seat hadstains of blood. Thus, it is apparent that there was blood on theseat as well as on the mobile phone and keys which were lying onBthe floor. As eye witness has clearly stated the position where hewas. He has been cross-examined at length, blood on cloth wasfound, how much, where it was found is not going to discredit theocular version and an entire incident. [Paras 64 -65] [518-D-E]

2.6 It is not correct to say that since the FIR was not lodgedCby PW-55, his conduct does not inspire confidence and he wasnot an eye-witness. PW-55 had gone to inform the factum of theincident to the owner of Chitty Bang, CW-1. It is not uncommonfor a person to react in the manner PW-55 has done. He firstwanted to inform the owner of the place as to the murder. He wasDnot a literate person. CW-1 has also supported the version ofPW-55, the narration of incident to CW-1 by PW-55 is quite naturaland inspires confidence and there is due corroboration of theversion by CW-1. In the circumstances, non-production of theperson who had simply given the lift in a rickshaw to PW-55 and has taken him to the house of CW-1, does not cause any dent inEthe prosecution version. Merely on the ground of non-examinationof another witness the deposition of PW-55 cannot be discarded.By the time PW-55 came back to the spot police had alreadyarrived and the body of the deceased was taken in another vehicle to the hospital. PW-55 or CW-1 had no ill-will or malice againstFthe accused. It does not make any difference whether CW-1 wasexamined as a court witness or as a prosecution witness. Once awitness has been examined, his evidentiary value has to beconsidered in accordance with the law. Once he has been examinedno question to draw any adverse inference against the prosecutionarises. [Para 70, 71] [519G-H; 520-A-E]G

2.7 There is no embellishment or material improvement inthe court’s statement as compared to the one recorded undersection 161 Cr.P.C. The question of whether CW-1 had askedPW-55 whether he was speaking the truth and omission of that in H

the statement under section 161 cannot be said to be a materialomission. Material facts have been stated in the statement andthere is no contradiction with respect to the material facts withthe statement under section 161 Cr.P.C. as to the approximationof time also nothing can be made out by the accused.[Para 72] [520-G-H; 521-A]

2.8 PW-55’s deposition cannot be discredited or taintedin any manner by faulty preparation of sketch. Even otherwisethe evidence of sketch is not of much significance. Sometime thesketch may not tally with the version given by a witness. TheHigh Court is moved by sketch which was drawn. PW-55 deniedany knowledge of such a sketch. The sketch was not put to PW-55 in the cross-examination and to obtain his explanation whetherit tallied with the assailant. In the absence of cross-examinationof PW-55 on this aspect, the defence cannot take any advantageof a discrepancy, if any. I.O. PW-120 has stated that the sketchwas prepared in the absence of PW-55. It was drawn only on thebasis of his statement recorded under section 161 Cr.PC. Theway in which sketch was drawn, it cannot be considered reliableand trustworthy sketch. In the circumstances, sketch in thereference of the accused ought not to have weighed with the HighCourt because it was prepared in the absence of PW-55.[Para 75-76] [521-G-H; 522-A-B]

2.9 In view of the identification made by the witness in thetest identification parade, no dent is caused by the so-calledsketch in the ocular evidence of PW-55. Considering the intricatenature of the investigation, there was no undue delay in holdingthe T.I.P. It was held after 20 days of the arrest of the accused.The accused had been identified in the same. (PW-39) also, lateron, had rightly identified A-1 as the assailant. [Para 77] [522-C-D]

Subash and Shiv Shankar v. State of U.P. (1987) 3 SCC331 : [1987] 2 SCR 962 – distinguished.

2.10 It is the duty of the High Court to examine the detailsof the intrinsic merit of the evidence of eye-witnesses. The HighCourt has adopted hyper-technical approach in assessing theevidence of PW 55 and has been moved by minor discrepancies A

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Awhich do not go to heart of the matter and shake the basic versionof the prosecution witness. [Para 78] [522-F; 523-A-B]

State of U.P. v. Sahai & Ors. AIR 1981 SC 1442 ;Vijay @ Chinee v. State of M.P. (2010) 8 SCC 191 :[2010] 8 SCR 1150 ;Bhajan Singh @ Harbhajan Singh–B& Ors. v. State of Haryana[2011] 7 SCR 1 relied on.

3.1 The plea was that bullet recovered was not sent forballistic examination and bullets produced in court differ in colourand the state of deformation recorded during post mortem.CHowever, it is clear that it was not put to the doctor that thebullets which were produced in the court, were not the samewhich he has recovered. As a matter of fact, the doctor has clearlyopined that white bullets were seized and they were sent forballistic examination and they have been produced from the CFSL.It was necessary to put in the cross-examination of PW-8 the factDthat the bullets which were produced in court were not the samewhich were recovered at the time of post mortem, which has notbeen done. Thus his testimony cannot be discredited on thisaspect. [Paras 80-82] [523-G-H; 524-A]

3.2 PW-75, the Forensic Expert has stated that 5 shotsEwere fired from a single standard weapon. He compared the seals.The bullets were fired from a .32 revolver. [Para 82] [524-B]

3.3 The prosecution has successfully established the chainof seizure of five very bullets up to production in court whichwere recovered from the body of the deceased. PW-8 has statedFthat during autopsy five bullets were recovered from the body ofthe deceased which was handed over to the police constable(PW-170) in a sealed condition. PW-170 a constable on duty hasstated that he received five bullets in the sealed condition andhas handed over the sealed five bullets to police inspector in theGpresence of panch-witness, PW-2. Further, evidence of PW-101indicates that he has handed over five bullets recovered fromthe body of the deceased to PW-107 who during the course of theinvestigation had handed over the same to PW120 on 28.3.2003.The evidence further discloses that PW-120, Dy. S.P., forwardedthe said five bullets vide letter dated 4.4.2001 in the sealedHcondition to V.S.G.H./EBAB/Forensic Medicine through Director, CFSL, New Delhi vide letter dated 25.4.2004. Exh.442 is thedocument of receipts by which five bullets were sent to CentralForensic Science Laboratory, New Delhi with seal intact andspecimen. Exh.458 points out that blood found on the five bullets,kurta pyjama and lifted from the car was of ‘B’ Group. Thus, it isapparent that the seals have been found intact and there is positiveevidence of the custody of the appellants. Thus, it is far-fetchedand intentional for the defence to contend that bullets have beenchanged. [Para 84] [524-E-H; 525-A-B]

3.4 PW-75 has clearly stated that all the bullets werereceived in sealed condition from CFSL, New Delhi. He has alsoidentified articles 18/1 to 18/5 in the seal applied on the backside of Khakhi cover which is stated to be muddamal article 18/5which is the seal he had applied. He has stated that he hasexamined articles 18/1 to 18/5 of which he has given the details.He has further stated in his examination that the bullets were ofblackish grey colour but the one with a jacket would have copperor aluminum colour. If the bullet is of white metal then the metalwould be made of steel or aluminium but he has not seen norexamined the white coloured jacket bullet. Thus, it is clear thatwhat has been produced in the court are the same articles whichwere examined by the forensic expert (PW-75). [Para 85][525-F-G]

3.5 Even in the absence of the Chemical test of the clothes,the evidence conclusively establishes that the revolver was usedin the offence for firing the bullets in question and that has beenproved to be a weapon of the offence and recovered too.[Para 86] [525-B]

3.6 The act of disclosure of the weapon and its discoveryat the instance of A-1 and the bullets found in the body of thedeceased was sent to CFSL, New Delhi wherein it has beenopined that they have been fired with the standard weapon(revolver of .32 bore), which had been recovered. [Para 93][528-B]

3.7 The evidence of DW-8 also makes it clear that breachface alone is sufficient to confirm the opinion if they are found tobe repetitive and also of repetitive character of the striationswhich are due to an individual firearm can be related to a particular A

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Afirearm. In the present case, while ignoring the difference causedby tampering of the firing pin found the second time, the basicstriation marks remain the same which is individual for everyrevolver and is not to be found in any other such weapon. Thus,the evidence is conclusive to prove that the revolver in questionwas used in firing the bullets recovered from the body of theBdeceased. The medical evidence, thus, supports the version ofPW-55. [Para 97] [528-G-H; 529-A-B]

3.8 PW-8 who prepared the post mortem report has beendiscarded while relying upon the version of defence witnessDW-6, who had stated that injuries 5 and 6 as communicatingCinjuries. The autopsy doctor’s report cannot be discarded lightlyas he had seen the injuries. [Para 98] [529-B-C]

Tanviben Pankajkumar Divetia v. State of Gujarat,(1997) 7 SCC 156 : [1997] 1 Suppl. SCR 96;Eshwaraiah & Anr. v. State of Karnataka,(1994) 2 SCCD677 : [1994] 1 SCR 387 – relied on.

4. The site map was sought to be discredited by High Courton the basis that PW-120, I.O. of CBI gave a contradictory reply.He said that the original spot map was drawn by pencil and lateron drawn in ink. It was clearly stated that at the time of re-drawingEthe same, later on, the name of A1 was mentioned as it was knownby that time. No dent is caused by the said mentioning of thename of the accused and from the explanation given by PW-120,it is apparent that the name has been added later on.[Para 100][530-E-F]

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F5. No dent is caused by non-examination of wife of thedeceased and other persons as they were not the eye-witnesses.In case of any doubt, they could have been examined as defencewitnesses. Wife of the deceased even if examined, would haveproved the fact that deceased left for the Garden at around 7 a.m.and he would have reached there around 7.10 a.m. No benefitGcan be drawn from the aforesaid aspect. No adverse inferencecan be drawn against prosecution due to the non-examination.[Para 102] [531-D-E]

6. The trial court has extensively dealt with the mobilephone, sim card details and the evidence adduced to prove theH

usage of the said phone handsets and sim cards by the accusedpersons. All call records of the accused persons during the entireperiod of conspiracy and the tower location of the phones of theaccused persons near the Law Garden on the day of the murderof the deceased are the strong circumstantial evidence againstthe accused persons. The accused persons were in possessionof mobile phones and were in constant touch with each otherbefore, during and after the commission of the crime throughtheir mobile or landline phones, as depicted in the call detailsrecords, in order to execute the conspiracy. [Para 103][531-F-G; 532-B]

7. The motorbike used by A-1 and A-6 at the time of thecommission of the offence was duly recovered. A-10 purchasedthe motorcycle from PW-54 and gave it to A-1 in the first week ofFebruary 2003 for his movements in Ahmedabad. After thecommission of a crime, the motorcycle was handed over by A-10to PW-45 while fleeing from Ahmedabad and thereafter PW-45parked the same in the parking of Railway Station from wherethe same was recovered by CBI in presence of PW-24. On thedirections of A-13, PW-57 (hostile witness but statement undersection 164 Cr.PC had arranged 3 stolen motor Hero Hondamotorcycles and handed over the same to A-4. Thereafter, A4retained one with him and handed over one each to A-14 andA-5. Later on, these motorcycles were used in the commissionof a crime. One of the stolen motorcycles was handed over byA-10 to PW-45 while fleeing from Ahmedabad. PW-45 parkedthe same in Theatre and later on brought by PS Kagdapeeth fromwhere it was seized by CBI on the pointing of PW-45. A fakenumber plate was got prepared by A-7 and A-8 from PW-52. Thisnumber plate was put on the second Hero Honda motorcycle afterthe commission of a crime. The said motorcycle was abandonedby A-10 and A-11 while fleeing from Ahmedabad. [Para 104][532-C-H; 533-A]

8. Spot map would be admissible so far as it indicates allthat the Inspector saw himself at the spot. Any mark put on thespot map on the basis of statements made by the witness to theInspector would be inadmissible in view of the clear provisionsof section 162 Cr.P.C. Even if the witnesses are not reflected inthe site plan, that does not bar the prosecution to produce such A

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Awitnesses during the trial. Since PW-55 has not been confrontedwith the site plan and no question had been asked to the witness,thus his ocular evidence cannot be discredited on the basis ofthe aforesaid omission. [Paras 106, 107] [533-E-F; 534-G-H]

Tori Singh & Anr. v. State of U.P., AIR 1962 SC 399 :B[1962] SCR 589 ; Pratap Singh & Anr. v. State of M.P.–(2005) 13 SCC 624 : [2005] 5 Suppl. SCR 439 relied on.

9. The High Court has also employed the reason that PoliceInspector PW-101 was supposed to be investigating at 2 p.m. onC26.3.2003 at the scene of the offence, while he was shown presentat post mortem at 2.15 p.m. PW-101 in this regard has explainedthat he handed over the papers to Head Constable. Post Mortemmight have been made at 2.15 p.m. but he was not present in thepost mortem room at that time. The statement of the witnessesought to have prevailed as to his presence on the spot.D[Para 108] [535-A-B]

10. The High Court has observed that voluminous recordsand number of controversies about each piece of evidence, wasnot necessary to be dealt with. It could not be said to be theproper approach of the High Court. The High Court ought toEhave examined the entire background as to what facts andcircumstances prevailed and whether the chain was complete tomake out the case of conspiracy. It was absolutely necessary soas to find out the conspiracy. The acquittal recorded by the HighCourt was wholly uncalled for and is based on basically a wrongFapproach. It was incumbent upon the High Court to come a closequarter of reasoning employed by the trial Court and assessmentof the evidence of the witnesses done by the trial court with greatcare, in an elaborate manner. The High Court has failed to considerthe reasons and has jumped to the conclusion. [Para 111][535-F-H; 536-A]G

11.1 The confession of the accused persons recorded undersection 32 of Prevention of Terrorism Act, 2002 (POTA) provesthe involvement of each and every accused person in the criminalconspiracy. Section 32 of the POTA contains a non-obstante clauselike notwithstanding anything in the Criminal Procedure Code H

or in the Evidence Act and makes admissible certain confessionsmade to the Police Officers. However, the same is subject to theprovisions of section 32. [Paras 112, 113] [536-B-D]

11.2 The safeguards provided in the provisions containedin section 32 of the Act are (i) Confession to be made by theperson before a Police Officer not lower in rank than aSuperintendent of Police. (ii) It has to be recorded either in writingor on any mechanical or electronic device like cassettes, tapesor soundtracks. (iii) The Police Officer before recordingconfession has to appraise the accused in writing that he is notbound to make a confession and in case he makes it, the samemay be used against him. (iv) That accused shall not be compelledto make any confession. (v)The confession shall be recordedin an atmosphere free from threat or inducement. (vi) Confessionto recorded in the same language in which it is made. (vii) Theperson who has confessed shall be produced before the court ofChief Metropolitan Magistrate or CJM along with the recordedconfession within 48 hours. (viii) The CMM/CJM shall recordthe statement, if any, made by the person so produced and gethis signature or thumb impression on it. If there is any complaintof torture by such a person, he shall be referred for medicalexamination to an Assistant Civil Surgeon or any officer higherin rank. (ix) The person shall be sent to judicial custody and notto police custody. [Para 114] [537-C-H; 538-A]

11.3 It is apparent from the facts of the case that theprovisions of section 32(1), (2) and (3) of POTA have beencomplied with. The accused was produced before the SpecialMagistrate for CBI. An application was also filed under section32(4) of the POTA for producing accused. It was mentioned thatthe confessional statement has been made by the accusedvoluntarily without fear, threat or inducement while recorded bythe SP, CBI, ACP. The Magistrate has asked the accusedwhether he was ill-treated or tortured by the CBI while in custodyrecording confessional statement to which he replied in thenegative. He further stated that he has voluntarily made theconfessional statement. On that, he was sent to judicial custodytill 4.7.2003. A similar process has been followed while recording A

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Athe confessional statement of accused persons by PW-21 undersection 32 of POTA. [Paras 121, 122 and 123] [543-F-H; 544-A]

11.4 Safeguards have been provided in various provisionsmade in section 32. The notable safeguards which were lackingin TADA are to be found in sub-sections (4) and (5). OrdinarilyBthe person should be sent to judicial custody. In exceptional cases,police custody can be granted and not otherwise. Non-compliancewith usual custody requirement does not per se vitiate theconfession. In the instant case, the accused persons have beensent to judicial custody and the provisions of section 32 havebeen complied with in pith and substance. [Para 125] [546-C-D]

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State (NCT of Delhi) v. Navjot Sandhu etc.(2005) 11SCC 600 : [2005] 2 Suppl. SCR 79 – relied on.

11.5 Section 32(4) requires that the person whoseconfession has been recorded to be produced before theDMagistrate along with an ordinary statement of confession within48 hours. The Magistrate shall record the statement, if any, madeby the person so produced and get his signatures or thumbimpression. If there is any complaint of torture then medicalexamination has to be ordered and thereafter he shall be sent tojudicial custody. In the present case, the Magistrate has recordedEthe statement made by the accused and has obtained thesignatures. The Magistrate has clearly enquired whether he wasill-treated or tortured by the CBI while in custody, for recordinga confessional statement to which he replied in the negative. Theaccused was asked what he wanted to say to which he respondedFthat he made a voluntary confessional statement. Then he wasremanded to judicial custody. In view of the fact that the officer ofthe rank of S.P. has duly recorded that he has read over thestatement and the accused has admitted it to be correct, as indue compliance with the provisions of section 32, so it was notnecessary for the Magistrate to read over the same again to theGaccused, in view of clear language employed in section 32(4) and(5) the duties enjoined upon the Magistrate have been dulyobserved. There is no requirement of the opening of the sealedenvelope by the Magistrate containing the confession and to readit out to the accused. Paras 126- 128] [546-F-H; 547-A-D]

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State of Maharashtra v. Bharat Chaganlal Raghani &Ors.(2001) 9 SCC 1 : [2001] 3 SCR 840 – relied on.

Adambhai Sulemanbhai Ajmeri & Ors. v. State ofGujarat,(2014) 7 SCC 716 : [2014] 7 SCR 48– distinguished.

11.6 In the facts and circumstances of the present casethere was no such prolonged custody so as to render theconfessional statement doubtful in any manner only due to thefact of police custody. The impact of police custody would dependupon the facts of each case. What is the impact of police custodyon the confessional statement has to be considered also in viewof the fact whether the accused were given sufficient time to thinkover which was given in the instant case. They had legal assistancealso as they had communicated with advocates also after theywere arrested and then the S.P. explained in writing to them theconsequences of making such a statement. S.P. ensured that theywere not under any fear or greed etc. and that they were nottortured. Thereafter confessional statement had been made.Sufficient time for reflection had also been given. [Para 131][549-D-F]

Nathu v. State of Uttar Pradesh,AIR 1956 SC 56– distinguished.

11.7 When several accused persons are involved in variouscases and an accused is found involved in a series of cases,obviously, his police remand has to be taken in a particular case.That does not mean that he has been sent to police remand insome other cases would adversely affect the confession. What isenvisaged is that with respect to the same crime, he should notnormally be subjected to police remand once he makes astatement in the court with respect to his confession undersection 32(4) and (5), he has to be sent to judicial custody. Thathas been precisely followed. In the instant case, it cannot be saidthat he was subjected to prolonged police custody or he had lostthe confidence that he would not be sent to judicial custody.[Para 132] [549-H; 550-A-B]

11.8 In the instant case, under section 32 of POTA,confession made to a senior police officer has been made BCD

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Aadmissible. Even otherwise the S.P. under section 32(1), (2) and(3) and the concerned Magistrate under subsections 4 and 5 ofsection 32 have performed their duties effectively as per the lawlaid down by this Court. [Para 133] [550-C-D]

Shivappa v. State of Karnataka (1995) 2 SCC 76 :B[1994] 6 Suppl. SCR 171 ;Aloke Nath Dutta & Ors. v.State of West Bengal(2007) 12 SCC 230 : [2006] 10Suppl. SCR 662 – distinguished.

11.9 It depends upon the nature of the case and the factsand circumstances and evidence in each case whether theCconfessional statement is truthful and is corroborated. That hasto be seen in each case. In the present case, it is not the case ofthe accused that they were not given the right to consult legalpractitioner when they were interrogated after arrest by the policeunder section 52 of the POTA Act. [Paras 136, 137] [554-C;555-B]D

11.10 There was no violation of safeguards provided underthe provisions of section 32(5) vis a vis any accused person. Theconfessions cannot be said to be inadmissible. The provisions ofsection 32 have been duly complied with. [Para 141] [559-D]

EKehar Singh v. State (Delhi Administration)(1988) 3SCC 609 : [1988] 2 Suppl. SCR 24 – referred to.

11.11 The time of reflection was granted which was adequatein the present case and after giving an opportunity to accusedwhether they wanted to make a confession after being told that itFmay be used against them, it was the case of observance of theaforesaid principle and it is not the case that the accused hadasked for legal assistance during that period and were deprivedof it. The legal aspect of the effect of confession had been dulyinformed to the accused persons beforehand in writing so manywords, and adequate time was given for reflection so as to considerGthe consequence of making a confession. Nothing more couldhave been advised by a lawyer. Thus, by not volunteering toprovide aid of lawyer in view of the fact that the case, where itwas not asked for during the time of reflection, even on theassumption that it was necessary, no prejudice can be said tohave been caused to any of the accused persons as they wereH

given enough time for reflection, whether they wanted to makeconfession as it could be used against them. Thus, there was nobreach of any of the constitutional rights flowing from Articles21, 22(3) and 20(3) of the Constitution of India. They were assistedby lawyers also in the main case when remand etc. was sought.The submission that PW-21 has stated that police custody has norelevance upon the voluntary nature of confession, which is asper counsel is against the settled jurisprudence, is also untenablefor the reason that section 32 makes a voluntary confession to apolice officer admissible. [Para 142] [559-E-H; 560-A-B]

11.12 The use of words like “suraksha”, “prabandh”,“poorva” ‘netritva’ ‘anusar’ ‘hatya’ “sampark”, etc., cannot besaid to be Sanskritised. It would depend upon the educationalbackground of a Muslim in which he has been brought up. Merelyby the fact that A-1 happens to be a Muslim, it cannot be said thathe would not know these words, particularly when it would dependupon his own education and the family background in which hehas been brought up. Thus the criticism made of the confessionalstatement due to use of the aforesaid words that they could nothave been employed by A-1 or by other accused persons is notonly unwarranted but also unacceptable. [Para 143] [560-C-F]

11.13 It is not correct to say that the fact that A-9 was inthe hospital at the time when the statement was recorded, rendersthe confessional statement unreliable. No such question duringhis cross-examination has been put to PW-21 as to the presenceof A-9, in hospital at 10 a.m. A-9 was required to be producedbefore the Magistrate on 9.6.2003 i.e. within 48 hours as requiredunder section 32 of POTA. Neither he stated so in the writtenretraction of confessional statement that he was at the time inthe hospital when the confessional statement is said to have beenrecorded. It was necessary to discredit the recording of confessionby PW-21 to put it in the cross-examination and to seek hisexplanation. Cross-examination is not a matter of procedure buta matter of substance. [Para 147] [561-D-F]

Jai Shankar Prasad vs. State of BiharAIR 1963 SC1906 – relied on.

A.E.G. Carapiet v. A.Y. Derderian AIR 61 Cal.359;Maroti Bansi Teli v. Badhabai w/o Tukaram Kunbi, AB

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AAIR 1945 Nagpur 60 ;Karnidan Sarda v. SailajaKanta MitraAIR 1940 Patna 683 – referred to.

11.14 All the accused persons have given different reasonsfor retraction of their confessional statement. The court hasindividually heard each and every accused. The accused personsBhave not retracted their confession at first opportunity when theywere produced. Reasons behind retraction also do not inspireconfidence. The details with which the confessional statementshave been recorded after the observance of due safeguards andother corroborative evidence on record are indicative of the factthat reasons for retraction are not correct. There is no allegationCthat they were tortured by the police. In the absence of the same,it does not inspire confidence that they have signed on blankpapers, etc. There was a general statement that they were underfear made by some of the accused persons. The fact remains thatthe statements have been recorded by the S.P., a high rankingDofficer as envisaged under section 32 of POTA which cannot belightly discredited in the facts and circumstances of the case.[Para 148] [561-G-H; 562-C-E]

Mohmed Amin & Anr. v. Central Bureau of Investigation(2008) 15 SCC 49 : [2008] 16 SCR 155 – relied on.

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11.15 Since there was no mal-treatment, no manifestcomplaint of torture, confession appears to be voluntary and allthe accused persons were sent to judicial custody. Subsequentretraction of confession is of no consequence, the same is anafterthought. [Para 149] [563-B]

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F12.1 If the view of the High Court is not reasonable, thisCourt may review entire material and there will be no limitationon the jurisdiction of this Court under Article 136 of theConstitution of India to render justice quashing the acquittal.A-4 was part of the conspiracy to murder the deceased.G[Para 165, 166] [572-F-G]

K.R. Purushothaman v. State of Kerala (2005) 12 SCC631 : [2005] 4 Suppl. SCR 498;Central Bureau ofInvestigation, Hyderabad v. K. Narayana Rao (2012)9 SCC 512 : [2012] 9 SCR 54 ;State of Rajasthan v.

Islam & Ors., (2011) 6 SCC 343 : [2011] 6 SCR 988 ;State of Delhi v. S hri Ram Lohia AIR 1960 SC 490– referred to.

12.2 Confession of A-1 has been supported by various otherevidence on the record like phone calls, recovery of the weapon,vehicle, hiring of rooms, etc. There is corroborative evidence ofconfession with respect to A-1, Shooter. He fired PW 39 andmurdered the deceased as stated in his confession in December2002 after return from Pakistan. In view of overall evidenceagainst A-1, his acquittal by High Court for murder of thedeceased and POTA offence deserves to be set aside andconviction and sentence as ordered by Trial Court is restored.[Paras 155,160 and 162] [567-A-B; 568-D-E; 569-E]

12.3 The conspiracy is supported by the confessionalstatement. A-4 had conspired and he was clearly part of theconspiracy of killing the deceased. A-4 was held guilty by theTrial Court for the offences punishable under Section 3(2) readwith Section 3(3) of POTA. For the offences punishable underSection 120-B read with Section 302 of IPC, he was sentenced tolife imprisonment with a fine of Rs.5,000/- with default clause.However, the High Court has maintained and confirmed theconviction for the offence punishable under Section 3(3) of POTAand sentence has been reduced to the period already undergoneby him in jail with fine of Rs.5,000/- each, and in default of paymentof fine, he shall undergo RI for 6 months. The High Court hasacquitted A-4 of charges under Section 120-B read with Section302 of IPC and the charge for the offence under Section 3(1)punishable under Section 3(2)(a) of POTA. He procured vehiclesand weapons and due to his active role in the conspiracy, he isliable to be convicted for commission of offence under Section3(1) read with Section 3(3) of POTA and Section 120B read with302 IPC as ordered by the Trial Court. [Para 173] [575-F-H;576-A-B]

12.4 As far as the confessional statement of A5 isconcerned, the procedural safeguard of giving 24 hour reflectiontime was duly adhered to. All cautions were given to him.Voluntariness was ascertained. No signs of any physical injurieswere found upon examination, neither was he threatened in any A

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Amanner. Evidence of PW-21, PW-120, PW-122, and PW-91 showdue compliance of all procedures, including confirmationproceedings. Disclosure, discovery, and seizure of both the pistoland the e-mail printouts are supported by PW-65 (panch witness).The pistol was discovered at the instance of A5 in the presenceof this witness. Email-id and password were given by A5. PrintoutsBof the emails were taken out in the presence of this witness.This witness supported all documentary evidence in relation tothe above. Exhibit 685 is the sanction accorded by PW-115 toprosecute several accused including A5 under the Arms Act. Otheraccused are A1, A3, and A6. This sanction under Section 39, ArmsCAct was accorded by PW-115, being the In-Charge PoliceCommissioner of Ahmedabad City at the relevant time. Videnotification dated 28.02.02, State of Gujarat had been declared tobe a notified area under the POTA. Mere possession of a firearmin a notified area is an offence as per Section 4 of the POTA.[Paras 174(a), 175] [576-F; 578-A-C]D

12.5 A Senior Scientific Officer at CFSL, New Delhi opinedthat bullet recovered from the body was PW-39 was fired fromthe 7.65 mm pistol discovered at A5’s instance. Three emptycartridges recovered from the shop of PW-39 had also been firedfrom the same weapon, which is a firearm as per the Arms Act,E1959. The evidence of PWs 87, 65, 108 and 120 has no inter seanomalies. For inter se cellular mobile communication of accusedpersons, testimonies of PW-11, PW-17, PW-33 PW-36, and PW-46 are specifically relevant. Besides them, PWs 25, 26, 35, 40also provide corroborative evidence. In the face of this evidence,Fnon-recovery of the mobile handset from A5 would, in fact, be anincriminating circumstance against him. A-5 played a vital role atall stages of conspiracy, right from the very inception, extendingto the murder of the deceased and the subsequent abscondmentof various accused, including himself. He played a crucial role inthe procurement, handling, and storage of the illegally procuredGarms. 7.65 mm pistol was in fact discovered and recovered at hisinstance. He was, thus, rightly convicted and sentenced by theTrial Court for commission of offence under section 3(1) r/w 3(3)of POTA as well as 120B and 120B read with 302 IPC for H

commission of offence of murder of the deceased. The same isrestored. [Paras 176, 177, 178 and 179] [578-D-H; 579-A-B]

12.6 The confessional statement of A6 has beencorroborated by PW-11, PW-13, PW-17, PW-33 and PW-110. Theyare the witnesses to the recoveries of SIM cards. Proximity ofA-6 with rest of the group, his explicit act in taking A-1 to LawGarden and waiting till killing of the deceased under the pretextof reading newspaper and thereafter, taking A-1 to Shahpur MillCompound and handing over the weapon and vehicle andcompleting everything with meticulous detail are all reflected inthe confessional statements. PW-11, PW-13, PW-17, PW-33 andare the witnesses to corroborate the confessional statement.They are also witnesses to the recoveries of SIM cards. PW-27had proved the landline number at the house of A-6 and the saidfact had also been admitted by A-6. Record of mobile phonelocation also revealed the incriminating circumstances as provedby the evidence. Motorbike used during the commission of theoffence was handed over to PW-45, who turned hostile to thecase of the prosecution. He had taken A-1 to spot and broughthim back also and carried a weapon too. Keeping in view hisproximity with rest of the group and his involvement in theconspiracy to kill the deceased, the conviction and sentenceawarded to A-6 by the Trial Court under Section 120B read withSection 302 IPC and under section 3(1) and 3(3) of the POTA, isfound to be appropriate. [Paras 182 and 185] [581-B, G-H;583-B-F]

12.7 It is apparent from the record that A-7 could not gofor training to Pakistan as during the month of Ramzan his parentswere to come from the USA and he decided to opt out. However,he has provided complete logistic support to all those who wentfor training. The guilt stand proved against the A-7 as foundestablished by the Trial Court. The conviction and sentenceimposed by the Trial Court A-7 is found to be proper under section3(1) and 3(3) of POTA as well as section 120B r/w section 302IPC for commission of murder of the decesed.[Paras 187, 192 and 193] [584-E; 587-G-H]

12.8 By and large, A8’s confessional statement is on thesame lines as that of A6. Although he had complained of forcible AB

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Aextraction of his confessional statement by making him sign onblank papers, trial court did not attach much importance to thisin view of his late retraction which was held to be on legal advice,with no prior complaint having been made to any judicial officerand all safeguards of Section 32, POTA had been duly observedby the S.P.PW-21, PW-120, and PW-91 proveBcontemporaneous record of the requisition, the preliminaryquestioning, the caution which was administered and theconfirmation procedure under Section 32 (4) of the POTA, inregard to the confessional statement of A-8. Additionally, allwitnesses examined to prove A-7’s guilt are examined to proveCA-9’s complicity as well. Corroborative evidence also comes forthfrom PW-11, PW-17, PW-21, PW-45, PW-52, PW-60, PW-77, PW-91, PW-114, PW-117, and PW-120. Depositions of PW-119 andPW-33 (working as Sub-Divisional Engineer and DivisionalEngineer, respectively at BSNL, Ahmedabad) are in relation tocell phone records. In view of the evidence on record, A-8 hadDrightly been convicted and sentenced by the Trial Court forcommission of offence under section 3(1) read with section 3(3)of POTA as well as under section 120B and 120B read withsection 302 IPC for commission of murder of the deceased. Thesame is restored. [Paras 198, 199 and 202] [589-F-H; 590-A-B;EG-H; 591-A]12.9 Details of training of A-9 at Pakistan and return fromthere, together with his knowledge and role in AMTS Blasts,attack on PW-39 and murder of the deceased are all mentionedin the statement. A9 also provides details of the role played byFothers in the entire sequence of conspiracy. 60 hours of reflectiontime was given to him. Willingness was again verified afterrecording the statement. A9 put his signatures to it. His custodywas handed over to PW-120 at 4.50 pm. The next day being Sunday,he was produced before PW-91 at 10.35 am on 09.06.03. Nogrievance was raised against police. No complaint was made ofGany physical or mental ill-treatment at the hands of police.Considering the overall evidence, the Trial Court convicted andsentenced him rightly under section 3(1) read with section 3(3)of POTA as well as 120B IPC and 120B read with 302 IPC alsofor commission of murder of the deceased. The same is restored.H[Paras 203 and 209] [591-B-D; 592-D]

12.10 There is evidence that A-10 has provided all thelogistic supports for executing the conspiracy and madearrangement for stay of those who came from outside and providedfor their transportation, motorcycles, arms, and ammunition. Theevidence clearly proves the role of A-10 in the conspiracy tomurder the deceased and he has been rightly convicted by theTrial Court under POTA and for murder of the deceased. In viewof overall evidence available against the accused he was rightlyheld guilty by Trial Court for offence under section 3(1) andsection 3(3) of POTA as well as under section 120B and section120B read with section 302 IPC for murder of the deceased. Theconviction and sentence imposed by Trial Court is restored.[Paras 218 and 223] [596-D; 598-C; 600-E]

12.11 A-2 was held guilty by the Trial Court for the offencepunishable under Section 3(3) of POTA and was given benefit ofdoubt of all the other offences under the POTA as well as underthe IPC. There is no appeal preferred against his acquittal bythe State/CBI in the High Court. The Trial Court has convictedA-2 under Section 3(3) of POTA and sentenced him to 7 yearsrigorous imprisonment and the High Court has also confirmedand maintained the conviction as well as the amount of fine i.e.,Rs.10,000/-. The sentence of rigorous imprisonment has beenmodified to the period already undergone in jail i.e., 5 years.Against the decision of the High Court, the CBI is in appeal.The minimum sentence is 5 years under Section 3(3) of POTAand by now 8 years have passed and the accused has alreadyundergone little more than 5 years. No case for furtherinterference is called for as CBI did not prefer an appeal againstthe judgment and order of the Trial Court. The decision of theHigh Court as to conviction and sentence under POTA is affirmed.[Para 224] [600-F-H; 601-A-B]

12.12 With respect to A-3 the Trial Court has recordedconviction under Section 120B read with Section 307 of IPC andhas sentenced him to undergo 7 years rigorous imprisonmentwith fine of Rs.3,000. He was also given benefit of doubt for allthe other offences he had been charged with under the POTA aswell as under the IPC. The High Court has also maintained and A

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Aupheld conviction and sentence awarded to him by the Trial Court.As no appeal was preferred by CBI against the decision of theTrial Court against A-3, no case for further interference is madeout. [Para 225] [601-F]

12.13 A-12 he was convicted only under Section 3(3) ofBPOTA and was sentenced by the Trial Court to undergo 5 yearsrigorous imprisonment. The High Court has confirmed andmaintained the conviction and sentence awarded under Section3(3) of POTA. [Para 226] [601-D-E]

12.14 No appeal was preferred by CBI against the acquittalCA-2, A-3 and A-12 and since they have completed the sentencefully awarded to them by the Trial Court as modified by the HighCourt in the case of A-2 no further interference is required to bemade as against them in the judgment of conviction and sentenceimposed and it need not be discussed elaborately as no appealwas preferred against the decision of the Trial Court by CBI.D[Para 227] [601-F]

12.15 The conviction and sentence imposed by the TrialCourt on A-1, A-4, A-5, A-6, A-7, A-8, A-9, A-10 and A-11 underSection 3(1) and 3(3) of POTA and 120-B and Section 302 readwith Section 120-B IPC as ordered by the Trial Court areErestored. The appeals filed by State of Gujarat stand disposed ofin terms of decision rendered in Criminal Appeal Nos.140-151 of2012.[ Paras 270, 271 and 272] [623-C-D]

13.1 In the case of absconded accused , who was triedseparately, the trial court found that though his visit to MumbaiFstands proved, any conspiracy was formed at Mumbai had notbeen established. His statement under section 164 (1) Cr.P.C.initially was recorded as a witness that has not been taken intoconsideration. The polygraph test conducted on the accused wasnot as per the laid down safeguards to be observed by the NationalGHuman Rights Commission and was without any permission ofthe court. Even the statement had been held to be not goodenough to fasten the guilt to enter into the conspiracy for eitheran attempt of murder of PW 39 or killing of the deceased. Hewas not with the main accused (A-1) on the date of the incident.

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No role has been shown of the accused in the conspiracy leadingto the attempt of murder of PW 39 and killing of the deceased.[Para 233] [623-C-D; G-H]

13.2 He had taken car of another accused to bring A-1 tothe accommodation cannot make him conspirator in the murderof the deceased since it was a subsequent event. After tiffin bombaccident the conspiracy was hatched to kill PW 39 and thedeceased to which the accused was not a part. The High Courthad not disturbed the aforesaid finding. The benefit of doubt hasbeen rightly extended by the Trial Court. In the peculiar factsand circumstances of the case, as the petitioner has already servedthe sentence of 17 months and has also paid the fine of Rs.21lakhs, thus, no case for interference is made out vis-à-vis to him.[Paras 233 and 234] [603-B-E]

14.1 The writ petition has been filed acting in conjunctionwith the accused persons in the case as the counsel for accusedhas admittedly supplied the documents to the petitioner and hadconsultations. A perusal of the order dated 8.2.2019 indicatesthat the presence of the counsel for an accused in criminal appealshas been recorded on behalf of the petitioner CPIL along withthe advocates in the PIL. The fact is apparent that accusedpersons were instrumental in getting filed this writ petition forfurther investigation in the case. If the accused so wanted thenthey ought to have approached this Court by way of filing anappropriate application in the criminal appeals only and not byway of filing a PIL, that too through the CPIL. It cannot be saidto be an appropriate way of filing a writ petition for furtherinvestigation, the motive is oblique, improper and againstdiscipline, especially when the criminal appeals were being heardfinally and this Court was in seisin of the matter and judgmenthas been reserved ultimately on 31.1.2019. At the relevant timewhen the petition was filed, obviously the petitioner CPIL waswell aware of the hearing of criminal appeals and that fact has notbeen stated in the writ petition that criminal appeals were beingheard on merits for the last several months w.e.f. 1.11.2018. It isshocking and surprising that the accused have resorted to theaforesaid method of getting filed the petition in guise of the PIL

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Aby supplying the documents to CPIL in their self-interest andvirtually attacking the case of the prosecution on the samegrounds and whatever new material has been filed. [Para 245][608-A-G]

14.2 The statement on which the petitioners relied on wasBtotally out of the context of a criminal case in which he haddeposed. It was clearly an attempt as an afterthought to makethe statement as to some other matter irrelevant to controversy.It appears to be clearly a motivated one and bundle of falsehoodas he could not give any reason for omission in the previousstatement in which also this issue was not involved.[Paras 246Cand 247] [609-A-B, G]

14.3 The Book by Rana Ayyub, relied upon by the petitioner,is of no utility. It is based upon surmises, conjectures, andsuppositions and has no evidentiary value. The opinion of a personis not in the realm of the evidence. There is a likelihood of theDsame being politically motivated, cannot be ruled out. The way inwhich the things have moved in Gujarat post-Godhra incident,such allegations and counter-allegations are not uncommon andhad been raised a number of times and have been found to beuntenable and afterthought.[Para 248] [610-B-C]

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14.4 So far as the allegations made by the family of thedeceased ie. by father and wife of the deceased, the matter hasbeen dealt with on merits by the High Court. The High Courthas considered the matter in extensive details. Wife of deceasedwas cited as a witness in the charge sheet. On 16.11.2006, theFprosecution submitted closing pursis and pursis for dropping ofthe witnesses including wife of the deceased. It was taken noteof the fact that the applicant did not challenge the order passeddeclining further investigation. A similar application wassubmitted on 18.12.2006 on the basis of newspaper reports whichwas also dismissed on 25.6.2007 by the POTA Judge. A copy ofGthe order was also supplied to the applicant, wife of the deceased.Thereafter, father of deceased has filed a petition in the HighCourt assailing the order which was decided vide judgment andorder dated 20.6.2008. [Para 249] [610-D-F]

14.5 The High Court has further observed that non-Hexamination of wife of the deceased is no ground for further investigation. The High Court has also observed that in aninterview, it is clearly admitted by the wife of the deceased thatshe has no proof/material with respect to political rivalry. Onlyon allegation of political rivalry, further investigation or re-investigation cannot be ordered. The I.O. has stated that duringthe investigation he did not get any material with respect topolitical rivalry on the basis of the vague statement of father ofdeceased, further investigation was not possible to be orderedagainst political figures. The applicant has no material tosubstantiate the material of political rivalry. In the absence ofmaterial, there cannot be an order for further investigation or re-investigation. On merit, the applicant has failed to make out acase for further investigation or re-investigation.[Para 250][613-B-D]

14.6 The wife of the deceased was not an eye-witness,admittedly, and had no personal knowledge. She was not an eye-witness to be examined in the case. Thus, it cannot be said thatthe prosecution has withheld her and she would have unfoldedany part story which was material to the case. The order passedby the High Court that no investigation was warranted, alsoattained finality. [Paras 251 and 252] [613-E-H; 614-A-B]

14.7 Thereafter, yet another attempt was made by the wifeof the deceased though she was not entitled to file any petitionafter it was filed by the father of the deceased in view of prayermade before the Trial Court as father had questioned the orderspassed on applications filed by her before Trial Court. The HighCourt has dismissed the petition filed by the wife. [Para 253][614-B-C]

14.8 Thus, it is apparent that the matter has attained finality.Again, in criminal appeals, the case has been examined on meritsas the case relates to the deceased. On merits, in view of thematerial that has been placed on record including that of AzamKhan’s statement and Book by Rana Ayyub, no case is made outon the basis of material placed on record so as to direct furtherinvestigation or re-investigation. There is absolutely no materialfor that purpose. The matter has already attained finality due tothe dismissal of SLP. Even otherwise the petition has been basedupon reports in the newspapers/magazines. Newspaper reports A

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Ado not constitute evidence. A statement of fact contained in anewspaper is merely hearsay and therefore inadmissible inevidence in absence of the maker of the statement appearing incourt and deposing to have perceived the fact reported.[Paras254 and 258] [615-D-F; 616-C]

BKusum Lata v. Union of India(2006) 6 SCC 180: [2006]3 Suppl. SCR 462;Rohit Pandey v. Union of India(2005) 13 SCC 702;Holicow Pictures (Private) Ltd. v.Prem Chandra Mishra, (2007) 14 SCC 281 : [2007] 12SCR1068 ;Laxmi Raj Shetty v. State of Tamil Nadu(1988) 3 SCC 319 :[ 1988] 3 SCR 706 - relied on.CVinay Tyagi v. Irshad Ali(2013) 5 SCC 762 : [2012] 13SCR 1005;Manohar Lal Sharma v. Principal Secre-tary & Ors.(2014) 2 SCC 532 ;Zahira HabibullahSheikh & Anr. v. State of Gujarat & Ors.(2004) 4 SCC158 : [2004] 3 SCR 1050 ; Pooja Pal v. Union of IndiaD(2016) 3 SCC 135 : [2016] 11 SCR 560 ; TehseenPoonawala v. Union of India(2018) 6 SCC 72:[2018] 9 SCR 1 -referred to 15.1 Public interest litigation cannot be filed for personalgain or political motive or any oblique consideration. Unnecessaryinference in the criminal case made against the prosecution caseEat times may cause serious prejudice to the accused also.[Para 259] [616-D]

15.2 In the instant case, as the forum of PIL has beenmisused. Apart from that, it is not a case where a private complainthas been lodged with respect to an offence. The CBI hasFinvestigated the case thoroughly and minutely and the conspiracybetween accused persons has been found established. There isvoluminous evidence discussed in criminal appeals with respectto the complicity of the accused persons in the offence. It cannotbe said that investigation was unfair, lopsided, botched up ormisdirected in any manner whatsoever. In all fairness, suchGpetition ought not to have been filed by CPIL at the instance ofaccused, it is clearly misuse of Forum of PIL. [Para 263][619-G-H; 620-A-C]

Rajiv Ranjan Singh ‘Lalan’ (viii) v. Union of India(2006) 6 SCC 613 : [2006] 4 Suppl. SCR 742 ;HGulzar Ahmed Azmi v. Union of India, (2012) 10 SCC

731 : [2012] 9 SCR 287 ;Simranjit Singh Mann v. Unionof India & Anr.(1992) 4 SCC 653;Ashok KumarPandey v. State of W.B., (2004) 3 SCC 349 : [2003] 5Suppl. SCR 716 - relied on.

A. R. Antulay v. Ramdas Sriniwas Nayak & Anr.(1984) 2 SCC 500 : [1984] 2 SCR 914 ; BandhuaMukti Morcha v. Union of India & Ors. AIR 1984 SC802 : [1984] 2 SCR 67 - held inapplicable 16.1 The counsel appearing on behalf of CPIL, cannotappear as counsel in the case filed by CPIL as he admittedly is amember of the executive committee of CPIL. Rule of professionalethics framed by the Bar Council of India contained in section Iof Chapter II of Part VI, Rule 8 makes an exception only if sucha member is appearing as an amicus curiae or without a fee onbehalf of a Bar Council, Incorporated Law Society or a BarAssociation. There is no exception to a body like CPIL.[Paras 266 and 267] [621-E-F; 622-B]

16.2 There cannot be any justification to appear in violationof Rule 8, on the ground that the rule is arbitrary or ultra vires.The rule is not so far declared to be illegal or ultra vires by theCourt. The Rule 8 is binding on the members of the Bar unlessand until the rule in question is amended or declared to be arbitraryor ultra vires for any reason, it is to be observed scrupulously bymembers of the Bar. Rules of professional ethics are meant to beobserved by all concerned. In case their observance is done in abreach that too before this Court and that too knowing itsimplication on the aforesaid canvassed untenable ground, no onecan prevent breach of rules of ethics. If the Bar Council aftermaking a statement has not amended the rule, the rule ought tohave been questioned afresh in an appropriate petition. Theappearance on behalf of the CPIL by a lawyer who is in theExecutive Committee of the said Centre, cannot be said to beproper, as it is defined misconduct under the rules. This is inbreach of Rule 8 of the aforesaid Rules. Until it is declared ultravires, we hold that the advocates are bound to observe the same.[Para 268] [622-D-F]

17. Resultantly, the petition cannot be said to have beenfiled bona fide. Even otherwise, the petition is bereft of merit. It A

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Araises mainly the same questions which have been dealt with inthe appeal. There is no such further material so as to direct furtherinvestigation or re-investigation in the case. The matter shouldhave rested finally as the petition filed by the family membersalso stands dismissed by this Court raking up of the matter, againand again, is not permissible and was wholly unwarranted in theBfacts and circumstances of the case. The same amounts to politicalvendetta. The writ petition is dismissed with cost of Rs.50,000/-to be deposited by petitioner with Supreme Court Bar AssociationAdvocates Welfare Fund. [Paras 269 and 274] [622-G-H; 623-A;624-C-D]

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Case Law Reference

CENTRAL BUREAU OF INVESTIGATION v.MOHD. PARVEZ ABDUL KAYUUM

[2005] 2 Suppl. SCR 79 relied on[2001] 3 SCR 840 relied on[2014] 7 SCR 48 distinguishedAIR 1956 SC 56 distinguished[1994] 6 Suppl. SCR 171 distinguished[2006] 10 Suppl. SCR 662 distinguished[1988] 2 Suppl. SCR 24 referred toAIR 1945 Nagpur 60 referred toAIR 1940 Patna 683 referred toAIR 61 Cal. 359 referred toAIR 1963 SC 1906 relied on[2008] 16 SCR 155 relied on[2005] 4 Suppl. SCR 498 referred to[2012] 9 SCR 54 referred to[2011] 6 SCR 988 referred toAIR 1960 SC 490 referred to[2012] 13 SCR 1005 referred to(2014) 2 SCC 532 referred to[2004] 3 SCR 1050 referred to[2016] 11 SCR 560 referred to[2007] 12 SCR 1068 relied on[1988] 3 SCR 706 relied on[2018] 9 SCR 1 referred to[2006] 3 Suppl. SCR 462 relied on(2005) 13 SCC 702 relied on[2006] 4 Suppl. SCR 742 relied on[2012] 9 SCR 287 relied on(1992) 4 SCC 653 relied on[2003] 5 Suppl. SCR 716 relied on[1984] 2 SCR 914[1984] 2 SCR 67

ACRIMINAL APPELLATE/ORIGINAL JURISDICTION:Criminal Appeal Nos. 140-151 of 2012

From the Judgment and Order dated 29.08.2011 of the High Courtof Gujarat at Ahmedabad in Criminal Appeal Nos. 975 to 981, 984 to986, 1049 and 1188 of 2007B With Criminal Appeal Nos. 83-94 of 2012, 981-982, 983 of 2019, Writ Petition (Crl.) No. 26 of 2019.

Tushar Mehta, SG, Amarendra Sharan, Raju Ramachandran,CShanti Bhushan, Sr. Advs., Sanjay Kumar Tyagi, Ms. Swati Ghildiyal,Rajesh Kumar Singh, Ranjan Kumar Chourasia, Prakash Gautam,Shyamal Kumar, Kabir Shankar Bose, Mrs. Deepanvita Priyanka,Sandeep Singh, Ajay Kumar Pandey, Sujit Singh, Arvind Kumar Sharma,Santosh K. Pandey, Ms. Hemantika Wahi, Ms. Vishakha, Sanjay KumarDTyagi, Mukesh Kumar Maroria, Ms. Nitya Ramakrishnan, Saaduzzaman,Shadan Farasat, Ms. Shruti Narayan, Ms. Jahnavi Sindhu, SamarthKhanna, Ms. Sukriti Bhatnagar, Ms. Aprajita Mukherjee, Sanchit Guru,Irshad Ahmad, Mrigank Prabhakar, Ishwar Mohanty, Ms. HamsiniShankar, Saad, Prashant Bhushan, Rohit K. Singh, Rajat Nair, SanjaiKumar Tyagi, Rajan Kumar Chousaria, B. V. Balram Das, Advs. for theEappearing parties.

The Judgment of the Court was delivered by ARUN MISHRA, J. 1. The facts, in short, envisage that initiallytwo separate cases were registered by local Police relating to the murderof Mr. Haren Pandya, ex-Home Minister for the State of Gujarat onF26.3.2003 and an attempt on the life of Mr. Jagdish Tiwari, a ViswaHindu Parishad (VHP) leader of Ahmedabad on 11.3.2003. The case ofmurder was initially registered on the basis of a complaint brought byMr. Janak Singh Parmar, vide FIR bearing I-C.R. No.272/2003 atEllisbridge Police Station, Ahmedabad, on 26.3.2003. After two days,Gthe Government of Gujarat appointed the CBI to investigate the matteron 28.3.2003. Later on the case of attempt to murder of Mr. JagdishTiwari was also handed over to CBI and it was registered on 2.6.2003.

2. The evidence collected during the investigation in the casesrevealed that both the incidents were part of the same transaction and inHpursuance of a well-designed common conspiracy, they were committed.

The motive was to spread terror amongst the Hindus. It was a part of aninternational conspiracy. Mr. Haren Pandya was a BJP leader who earlierheld the post of Home Minister. He had played an active role in post-Godhra riots at Ahmedabad. It was alleged that he had led a mob whichdemolished a Masjid at Paldi locality and resisted its reconstruction. OneMufti Sufiyan, absconding accused, a preacher at Lal Masjid atAhmedabad used his oratory skills, doctored video CDs. depictingatrocities committed on Muslims and spread radical Islamic literature toinstigate and inculcate a strong feeling of hatred and retribution amongstthe members of the Muslim community against members of the Hinducommunity after post-Godhara riots. Said Mufti Sufiyan in associationwith Rasul Khan Party, a defamed absconding accused of Ahmedabadallegedly, at present residing at Karachi (Pakistan), and other closeassociates, Suhail Khan Pathan, also absconding accused and AnasMachiswala (A-5) conspired to avenge the atrocities and implementedthe same in the form of a series of violent incidents. There was anincident of tiffin bombs being planted in AMTS buses of Ahmedabadcity on 29.5.2002 by a number of Muslim youths which prompted MuftiSufiyan, Sohail Khan Pathan and others. They planned for largerconspiracy and contemplated incumbents to be sent for terrorist activities.In furtherance, thereof several youths from Ahmedabad and Hyderabadhad been sent to Pakistan in groups for arms training with a view toindulge them in terrorist activities of larger magnitude on their return.Some of them had passports and others allegedly crossed the Indo-Bangla Border illegally and went to Pakistan where they obtained thetraining in the use of pistols, rifles, LMG, SLR, hand grenades, explosivedevices, recce, deceptions, etc. They were sent for the purpose of trainingand after obtaining the same they returned to Ahmedabad in January2003 and March 2003.

3. Rasul Khan @ Suleman before shifting to Karachi (Pakistan)resided at Hyderabad. He motivated Mohmed Abdul Rauf (A-2), a localpolitician to participate in the conspiracy to avenge the alleged atrocitiescommitted on the Muslims in Gujarat and create terror in the minds ofmembers of Hindu community. On Suleman’s instance, Mohmed AbdulRauf selected, motivated and sent 14 boys from Andhra Pradesh forarms training to Pakistan which included Asghar Ali (A1) a known criminalof Hyderabad. They were trained in Pakistan and were motivated towork in Gujarat and create terror. Asghar Ali wanted to commit bigterror act and wanted to shift ultimately to Pakistan. He acted as per the ABCDEF

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Aadvice of Rasul Khan and Mufti Sufiyan and went to Udaipur fromwhere he reached Ahmedabad. Asghar Ali (A1) motivated his friendMohmed Shafiuddin, a resident of Nalgonda, Andhra Pradesh to joinhim at Ahmedabad. Conspirators decided to finish Mr. Jagdish Tiwari inthe first instance who allegedly played a leading role during the post-Godhra riots. It was decided that Asghar Ali and his friend MohmedBShafiuddin with the necessary logistic support given by other conspirators,shall attack Mr. Jagdish Tiwari on 11.3.2003.

4. A few days after the incident on 11.3.2003 a meeting wasarranged which was attended by Mufti Sufiyan and others to eliminateMr. Haren Pandya and it was conveyed to other conspirators by SohailCKhan on 17/18.3.2003 the minute aspects of the execution of the planwere finalised resulting into execution of the same by Asghar Ali (A1)on 26.3.2003 with the support of other accused persons at 7.30 a.m.opposite Law Garden. During the investigation as the conspiracy wasrevealed, provisions of the Prevention of Terrorism Act, 2002 (in shortD‘POTA’) had been invoked and accordingly, information was sent to theconcerned Magistrate. The cases were made over to the Special Courtunder the POTA. A joint charge sheet was filed in the matter on 8.9.2003.

5. Four accused persons were absconding that is A-13, A-14,A-18 and A-19 hence no charges could be framed against them whereasEother accused persons were charged for commission of offencepunishable under sections 120B, 302, 307, 201 read with section 120B ofthe Indian Penal Code, 1860 (for short, “the IPC”) and sections25(1)(B)(a), 27(1) and section 5 of the Arms Act, 1959 (for short, “theArms Act”) and under sections 3(1), 3(2), 3(3), 3(4) and section 4 ofPOTA. The accused persons abjured their guilt. The trial court proceededFwith the trial of 12 accused persons. The prosecution examined in all122 witnesses. A plethora of documentary evidence has been filed.Statements of accused persons under section 313 Cr.P.C. have beenrecorded. They denied the charges and urged that the confessionalstatements have been recorded against each of them forcibly and thereGis no element of voluntariness in the same. The case has beenmanufactured against them to shield the real culprits. In defence 8witnesses have been examined. The conviction and sentence imposedby the trial court as modified by the High Court and the period haveundergone is as under:

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CENTRAL BUREAU OF INVESTIGATION v.MOHD. PARVEZ ABDUL KAYUUM [ARUN MISHRA, J.]

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6. The High Court on appeal has dismissed the appeal with respectto conviction under section 307 read with section 120-B, IPC and section4 read with section 3(2)(b), section 3(3) of POTA and section 25(1)(B)(a),section 27(1) of Arms Act. However, it has allowed the appeals in partand set aside the judgment of conviction with respect to the murder ofCHaren Pandya for the offence registered under section 302 read withsection 120-B of IPC and section 3(1) of POTA against all the accusedpersons. The CBI has come up in appeals with respect to the murder ofMr. Haren Pandya.

7. It is pertinent to mention that as against accused A-2, MohmedAbdul Rauf son of Mohmed Abdul Kadar and A-12, Shah Navaz GandhiDson of Mohmed Gandhi, the trial court held them guilty for offence undersection 3(3) of POTA and has given the benefit of doubt of all otheroffences under the POTA as well as under the IPC. A-3, MohmedShafiuddin son of Late Yusuf Ali was held guilty for the offence punishableunder section 120B read with section 307 IPC, and was given the benefitEof doubt for all the offences he has been charged with under the POTAas well as under the IPC. Against the acquittal of aforesaid 3 personsunder various sections, admittedly, no appeal was preferred by the CBIbefore the High Court. Against the conviction of A-2-Mohmed AbdulRauf son of Mohmed Abdul Kadar under section 3(3) of POTA, theFquestion for consideration before this Court is whether the sentenceimposed by the trial court under section 3(3) was proper or the sentencereduced by the High Court on appeal by accused.

8. As per the prosecution case, as reflected in the common chargesheet, the two cases are the outcome of deep-rooted criminal conspiracyto cause communal disharmony and to create fear in the HinduGcommunity. The prosecution has alleged as under:

(i) A meeting was held in April/ May 2002 at Lal Masjid whichwas attended by Mufti Sufiyan (A-13 absconding accused), a MuslimCleric (Kaleem Ahmed, A-4) and Anas Machiswala (A-5). During thesaid meeting, A-13 urged the persons present there to avenge the killingH

of Muslims during the riots and strike terror in the minds of the Hinducommunity by committing violent acts. It is to be noted that A-13 exploitedthe sentiments of Muslims by showing them doctored videos and CDs.and literature showing dead bodies of victims of Naroda Patia, burnthouses, dead bodies, plundered mosques, etc. and the said material hasbeen duly recovered during the investigation.

(ii) In furtherance of criminal conspiracy on 29.5.2002, tiffin boxbombs were planted in crowded buses destined for Hindu localities byA-4, A-5 with the assistance of Mohd. Yunus, Abdul Rahim Sarshewala(A-5), Rehan Abdul Maji Puthawala (A-7), Mohd. Riaz (A-8), Mohd.Parvel Abdul Qayum Sheikh (A-9), Shahnawaj Gandhi (A-12) and others.Accordingly, POTA Case No.7 & 9 were registered and pertinently,A-4 and A-5 have been convicted by the High Court in the aforesaidcase and they are undergoing life imprisonment in the aforesaid matter.

(iii) In September-October, 2002 accused Rasool Khan Party(A-18-absconding), a wanted criminal of Ahmedabad while living inHyderabad from 1994 till 2002 came in touch with Mohd. Abdul Rauf(A-2) and instigated him to send Muslim boys to Pakistan for training inarms. A-2 accordingly selected 14 boys which include Asghar Ali (A-1),a notorious criminal in about 10 cases in Hyderabad and they were sentto Pakistan for arms training.

(iv) In November 2002, A-5, A-14, and A-12 were sent to Pakistanvia Mumbai and Dubai.

(v) After returning from Pakistan, A-1 reached Udaipur on31.12.2002 and stayed at Muslim Musafarkhana. After staying for sometime, he returned to Hyderabad due to paucity of fund where he againreceived a message from A-18 through emails directing him to reachUdaipur and contact PW-29. He accordingly returned to Udaipur on20.1.2003.

(vi) On 24.1.2003, PW-49, along with A-11 and A-13 went toUdaipur in a silver-colored Tata Indica car of PW-38 and brought A-1 toAhmedabad. Later, towards the end of January/beginning of February,A-1 and A-3 were shifted to Flat No. 401, Royal Apartment, Rakhial byA-10 and A-11. Sometime before 5/6.3.2003, a meeting was held at LalMasjid and it was decided to kill Jagdish Tiwari (PW-39). A-14 took A-1 and A-3 to the shop of A-4 where they were introduced with A-4 andA-5. A-4 handed over two pistols each to A-1 and A-3 with live AB

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Acartridges. Around 9.3.2003, A-10 pointed out Jagdish Tiwari at his shopto A-1, and on 9.3.2003, a meeting was held at Jaliwali Masjid where A-14 disclosed that Jagdish Tiwari would be their next target. A-1 and A-3 waited for the arrival of Jagdish Tiwari to kill him, but he did not passthrough the scheduled route.

(vii) Thereafter, on 11.3.2003, at around 9.15 PM, A-1 and A-3went to the shop of PW-39 (Jagdish Tiwari) and asked for a strip of thesorbitrate tablet. When PW-39 bent down to take out the said strip, A-1fired his pistol at him, which hit the metal buckle of his belt, and afterricocheting, entered his body near his navel.

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C(viii) Sometime later, on 15/16.3.2003, A-13, in consultation withA-14 disclosed to A-5 that the next target would be Haren Pandya, whoused to come to Law Garden for a walk. On 17/18.3.2003, at a meetingat Juni Jama Masjid, it was disclosed that Haren Pandya was the nexttarget. On 22.3.2003, another meeting was held at Juni Masjid. On23.3.2003, at around 7 a.m., A-9 and A-6 then visited the Law GardenDwhere A-1 also joined them, but they could not see Haren Pandya.

(ix) On 24.3.2003, A-9 visited Law Garden in the morning on hismotorcycle and saw Haren Pandya. He noted down the number of thevehicle that Haren Pandya was in, as GJ-1AP-4606. Later, a meetingwas held near Juni Jama Masjid.

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(x) An unsuccessful attempt was made to kill Haren Pandya on25.3.2003. Again, the next day on 26.3.2003, Haren Pandya was killed.

9. On receiving information, an FIR was registered by PW-101 atEllisbridge Police Station. Police patrol jeep came around 10.40 a.m.Ffollowed by the arrival of PW-101 from Navrangpura Police Station.The deceased Haren Pandya was immediately taken to the nearby V.S.Hospital. Simultaneously, PW-1 lodged a complaint with PW-101regarding the murder of Haren Pandya. At 11.30 a.m. the same wasregistered at Ellisbridge PS. The inquest was prepared by PW-101followed by post mortem of deceased by a panel of 4 doctors held betweenG2.15 p.m. and 4.50 p.m. on the same day. Inquest of the crime scenewas prepared by PW-101 and statement of eye-witness PW-55 wasalso recorded the same day.

10. After transfer of investigation to the CBI on 28.3.2003, theaccused persons were arrested and their confessional statements were H

recorded under section 32 of POTA from which as per the prosecutionare the modus operandi and criminal conspiracy is amply proved.

11. On 2/3.9.2003, a letter was written to the Commissioner ofPolice, Ahmedabad for according sanction under Section 39 of the ArmsAct in respect of A-1 (Mohmed Asghar Ali), A-3 (Mohmed Shafiuddin),A-5 (Anas Machiswala) and A-6 (Mohmed Yunus Sareshwala) (Exhibit684). On 5.9.2003, the sanction of the Commission of Police, Ahmedabad,under Section 39 of the Arms Act was accorded (Exhibit 685). On6.9.2003, Government of Gujarat accorded sanction under Section 50 ofthe POTA for prosecuting accused persons (Exhibit 697). On 8.9.2003,combined charge-sheet was filed against A-1 to A-19 in the Court ofSpecial Judge, POTA Cases, Ahmedabad. On 29.8.2005, A-15, A-16and A-17 were exonerated by the Central POTA Review Committeeand their trial was separated. As many as 122 witnesses were examinedby the prosecution in order to substantiate the charges against the accusedpersons. On 25.6.2007, two court witnesses were examined by the Courtand defence had examined eight witnesses. The learned Special Judge(POTA) vide judgment dated 29.8.2011 convicted all the 12 accusedpersons. Nine of them were awarded life imprisonment and the remainingthree were awarded sentences ranging from 5 to 7 years rigorousimprisonment. The High Court has acquitted all the accused personsfrom the charge under Section 302 IPC.

SUBMISSIONS ON BEHALF OF CENTRAL BUREAU OFINVESTIGATION (C.B.I.)

SUBMISSIONS ON BEHALF OF CENTRAL BUREAU OFINVESTIGATION (C.B.I.)

12. The prosecution submitted that confessional statements arecorroborated in material particulars by the other evidence. On behalf ofthe CBI, Mr. Tushar Mehta learned Solicitor General urged thatprosecution has proved the offences. The trial court had the advantageof looking at the demeanour of the witnesses. He has urged argumentson the following aspects:

A: Larger Conspiracy:

(i) The prosecution by leading cogent evidence proved to hatch oflarger criminal conspiracy between all the accused persons alongwith the absconding accused persons to kill Shri Haren Pandya(deceased) who was a Hindu leader in the aftermath of Godhrariots to strike terror in a section of people viz. Hindus, therebycommitting an offence under section 3(1) of POTA and section120-B of IPC.

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(ii) Confessions of the accused persons recorded under section32 of POTA amply prove the role of every accused person in acriminal conspiracy.

(iii) Confessions of all the accused persons recorded under section32 of POTA are voluntary and thus the same can be relied upon.

(iv) All the safeguards as provided under section 32 of POTAhave been duly complied with at the time of recording of confessionsand thus the same is admissible in evidence.

(v) Subsequent retraction of confessional statements by theaccused persons is of no consequence.

(vi) Tiffin box blast in POTA Case Nos.7 & 9 of 2003 and theconviction of A-4 & A-5 in the said POTA case, not only provestheir criminal antecedents but it is also a material event in thechain of events with respect to criminal conspiracy to create terroramong Hindus by violent means.

(vii) Attack on Sh. Jagdish Tiwari (PW-39) by A-1 using a firearmalong with A-3 in conspiracy with the other accused persons, whoseconviction under section 307 read with 120-B have also been upheldby the High Court forms part of the same chain of criminalconspiracy to create terror in the community of Hindus.

(viii) Call records of the accused persons during the entire periodof conspiracy and the tower location of the phones of the accusedpersons near the Law Garden on the day of the murder of thedeceased is a piece of strong circumstantial evidence against theaccused persons.

(B) It was further urged that the prosecution by leading cogentevidence proved that in pursuance of the said criminal conspiracy, A-1(Asghar Ali) committed murder of the deceased on 26.3.2003 andtherefore all the accused persons committed offences under section 302IPC to read with section 120B IPC and offences under section 3(1) and 3(3) of POTA. In this regard the following points have been urged:

(a) PW-55 who is an eye witness stated to have seen A-1 shootingthe deceased is a reliable and truthful witness.

(b) Post mortem report which was conducted by a panel of 4doctors, which was duly proved by Dr. Pratik Patel (PW-8) proved7 gunshot injuries on the body of deceased caused by 5 bullets.

(c) The forensic and biological report proves the presence of bloodof the deceased inside the car.

(d) The weapon used by A-1 in the murder of the deceased andthe clothes worn by A-1 at the time of the commission of theoffence was duly recovered at the instance of A-1 from KamarFlats.

(e) PW-75 ballistic expert duly proved that the bullets recoveredfrom the body of the deceased were fired from the same revolverwhich was recovered at the instance of A-1.

(f) The motorbike used by A-1 and A-6 at the time of thecommission of murder of the deceased was duly recovered.

(g) PW-55 who is an eye witness to the murder of the deceasedand PW-39, who is an injured witness of the attempt to murder ofhis own life, duly identified A-1 as the assailant in the testidentification parade before the Executive Magistrate (PW-14).

(h) The commission of the offence of attempt to murder on JagdishTiwari (PW-39) by A-1 along with A-3 by using a firearm on6.3.2003, which offence is duly proved and has attained finality,proves the presence of A-1 and A-3 at Ahmedabad during therelevant period.

(i) PW-95 proves the presence of A-1 in Ahmedabad on 27.3.2003as well as the fact that the phone No. [REDACTED] was beingused by A-1 on 27.3.2003 i.e. next day of the murder of thedeceased.

(C) It was submitted that the aforesaid witness Yusufbhai (PW-95) is an independent witness who stayed in the same “Royal Apartments”as A-1. He in his testimony proved that A-1 was using the mobileNo.[REDACTED] on 27.3.2003 i.e. next day to the murder of the deceasedas he made a phone call from the aforesaid number to his brother on27.3.2003, which has appeared in the call records of the said number.This witness identified A-1 in his deposition before the court. The relevantportion of his deposition is reproduced hereinbelow:

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A“3. On the next day of the murder of Mr. Haren Pandya, VishwaHindu Parishad has called for band, I and my brother as per thedirection of my parents were doing scooter coloring work atChandlodiya. I was going to call my brother that does not go onwork at that time Afdan met me on the stairs, he asked me thatwhere are you going? I told him reason at that time he has statedBthat you make calls from his mobile. Therefore, I made a callfrom his mobile to Babubhai Dhobi who is staying near my brotherand we have a good relationship with him and informed him aboutSalimbhai. Phone Number of Babubhai Dhobi is 7525518. I donot know the mobile No. of Afdan. Due to so many time has beenCpassed perhaps I cannot identify Afdan and his friends. AlthoughI will try. I can identify Afdan. At this stage, the witness hasidentified the accused no. 1 Mr. Asgar Ali Afdan.”

Learned Solicitor General submitted that there is gross perversityin the impugned judgment of the High Court which is against the evidenceDadduced as well as the settled principles of law.

SUBMISSIONS ON BEHALFOFACCUSED

13. On behalf of the accused persons, it has been submitted bythe galaxy of learned senior counsel that the scene of murder does notinspire confidence. The murder of Mr. Haren Pandya has not takenEplace in Maruti 800 car, no gunshot residue has been found, neither anybullet has been recovered from the car. The post mortem report doesnot tally with the ocular evidence. First information report has not beenlodged by the so-called witness PW-55 Anil Yadram Patel. He cannotbe said to be a reliable witness. His testimony stands discredited by theFtiming and conduct is inconsistent with that of an eye-witness. Thereare contradictions on the position in which Mr. Pandya’s body was lyingin the car. Identification of A-1 and identifying sketch of Ex. 620,inferences arrived at from the sketch clearly prove that it was someoneelse and A-1 has not committed the offence. CBI site map dated29.3.2003 has been manipulated. The adverse inference has to be drawnGagainst the prosecution for not producing the material witnesses.

14. The testimony of PW-55 is negatived by the forensic evidence.The murder was not possible in the Maruti car with the window opening,as stated by PW-55. The CBI has conjectured on lack of blood and GSRinside and on the car. The count of bullets fired is not matching either H

CENTRAL BUREAU OF INVESTIGATION v.MOHD. PARVEZ ABDUL KAYUUM [ARUN MISHRA, J.]

with the ocular or medical evidence. The ballistic evidence indicatesthat there was bullets mismatch. The scientific tests for jacketed/unjacketed bullets were not done. There was deformation of bullets, andthe weapon of offence is doubtful. No convincing ballistic matching ofthe alleged revolver with bullets was done. Recovery of revolver andpistol is doubtful. It was also submitted on that reason the case underPOTA is different from TADA. The learned Magistrate while confirmingthe proceedings as to the confessional statement has committed illegality.Recording of confessions is not as per legal requirement under Section32. There are other factors discrediting PW-21. There are severalcontradictions within the confessional statement and there is nocorroboration. As such it would not be safe to act upon so-calledconfessions which were not voluntary in nature and rendered inadmissibledue to non-compliance with provisions of section 32 of POTA. The arrestof A-1 is doubtful. No confession under POTA of any other accused isadmissible against A-1. Call records are not reliable. The prosecutionhas withheld evidence. There is tampering with the same, and interpolationhas been made in spot map, rendering the prosecution case unreliableand improbable. The vital flaws in the prosecution should lead to thebenefit of the doubt to the accused. There are irreconcilableinconsistencies in the prosecution case. Several vital objects have notbeen produced by the CBI. The forensic evidence belies the ocularevidence. The course followed by the High Court is legally sound andcannot be disturbed in the case of acquittal. Even if two views arepossible, the one adopted by the High Court cannot be interfered with inan appeal against acquittal.

IN RE: FACTS AS TO INVESTIGATION AND LARGERCONSPIRACYTO CREATE TERROR

15. The evidence has been adduced in the case as to the conspiracywhich leads to the attempt to murder of Mr. Jagdish Tiwari, PW-39 andthereafter fatal attack on Haren Pandya, accused are associated with itup to the murder and finally to the escape of the assailants after themurder. The evidence evinces training in Pakistan, the various meetingsat Masjids, etc. of various accused persons from time to time. There isevidence of confessional statements of convicts, communication over e-mail, seizure of documentary literature at the time of arrest, there is alsoevidence of providing logistical support and other various types offacilitation, providing money by cash or cheque in respect of AB

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Aaccommodation, rent, transportation at Ahmedabad as well as at otherplaces. Evidence is also available with respect to providing mobile phones,transportation, and providing of motorcycles, etc. On the basis of theconfessional statement, recoveries and seizures had been made as perthe disclosure statements including the seizure of computer hard discsfrom Cyber Cafes. There is the recovery of documentary evidence also,Bpassenger books proved by hotel caterers, PC owners and opinion ofhandwriting experts. There is direct and circumstantial evidence as tothe involvement of other accused with A-1 in the commission of attemptto murder of PW-39 and murder of the deceased Haren Pandya. Thereis evidence of doing a recce of the Law Garden which used to beCfrequented by the deceased for taking morning walks, mobile calls bearthe time of the fatal attack by the accused persons on the deceased.Besides the mobile tower location of the mobile phone and data oftelephone use even shortly before and after the attack on PW-39 as wellas on deceased Haren Pandya. In the light of the aforesaid evidencewhich has been referred to in detail, to be discussed hereinafter.D16. We first consider whether the criminal conspiracy in order tocommit the murder of Mr. Haren Pandya, to strike terror in a section ofpeople has been proved, as such the accused has committed the offenceunder section 3 of POTA.

E17. It has been urged that section 3(1), 3(2), 3(3) and 3(4) andsection 4 of POTA have rightly been invoked in the present case. Accusedpersons have been charged for criminal conspiracy under section 120B,IPC and for conspiracy to commit acts of terrorism under section 3(1)and 3(3) and section 4 of the POTA. It is urged that there is reasonableground to believe that when two or more persons have conspired togetherFto commit any offence, anything said, done or written by any one ofthem in reference to their common intention, is a relevant fact as againsteach conspirator. It is submitted that the accused persons with an intentionto strike terror in a section of people, used fire-arms, caused murder ofMr. Haren Pandya and attempted to murder Jagdish Tiwari, PW-39.GThus, they committed offence under section 3(1) of POTA. The CentralPota Review Committee has upheld the invocation of the provisions ofPOTA. The High Court has also upheld the conviction of the accusedpersons under section 3(3) and section 4 of POTA and has erred inacquitting the accused persons under section 3(1) and 3(2)(a) of POTA.Mr. Tushar Mehta learned Solicitor General has submitted that sectionH

120-B of IPC defines a criminal conspiracy as a distinct offence. Hehas relied on as to criminal conspiracy by Dr. Sri Hari Singh Gour in hiswell-known ‘Commentary on Penal Law of India’, (Vol. 2, 11[th] Edn.Page 1138) summed up the legal position in the following words:

“In order to constitute a single general conspiracy, there mustbe a common design. Each conspirator plays his separate part inone integrated and united effort to achieve the common purpose.Each one is aware that he has a part to play in a general conspiracythough he may not know all its secrets or the means by which thecommon purpose is to be accomplished. The evil scheme may bepromoted by a few, some may drop out and some may join at alater stage, but the conspiracy continues until it is broken up. Theconspiracy may develop in successive stages. There may be ageneral plan to accomplish the common design by such means asmay from time to time be found expedient.

In Yashpal Mittal vs. State of Punjab reported in [1977 (4)SCC 540], Goswami, J, speaking for a three-judge Bench analysedthe legal position relating to criminal conspiracy. At pages 610-611, observed as under:

“the very agreement, the concert or league is the ingredient ofthe offence.” and that “it is not necessary that all theconspirators must know each and every detail of theconspiracy.” It was then observed that “there must be unity ofobject or purpose but there may be a plurality of meanssometimes even unknown to one another, amongst theconspirators.”

18. He has also referred to the case of State v. Nalini, 1999 (5)SCC 253, Hon. S.S.M. Quadri, J., after a survey of case law, made thefollowing pertinent observations:

“662….It is not necessary that all the conspirators should participatefrom the inception to the end of the conspiracy; some may jointhe conspiracy after the time when such intention was firstentertained by any one of them and some others may quit fromthe conspiracy. All of them cannot but be treated as conspirators.

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486SUPREME COURT REPORTS

AWhere in pursuance of the agreement the conspirators commitoffences individually or adopt illegal means to do a legal act whichhas a nexus to the object of conspiracy, all of them will be liablefor such offences even if some of them have not activelyparticipated in the commission of those offences.”

B19. In the matter of Yakub Abdul Razak Memon vs. State ofMaharashtra reported in (2013) 13 SCC 1, where a large number ofaccused were involved in a criminal conspiracy having played a distinctrole, this Court held that where an accused allegedly transported weaponsto the training centre, carried trainees, the question arises; whether thisamounted to overt acts contributing to common object of the conspiracy.CWhat is to be seen is that such an act formed a crucial part of the chainleading to creating terror, engaging in violence, or waging a war againstState. The knowledge of the murder or attack on the victim in particulartherefore was not a sine qua non. This Court in the aforesaid matterfurther while upholding the order of the designated Court observed asDunder:

“2485. As the Respondent has been awarded sufficient punishmentunder different heads of Sections 3(3) and 6 TADA, and the saidoffences themselves are a part of the conspiracy, and the learnedDesignated Court has divided the conspiracy into variousEcomponents, considering the present case, where the accusedwere either involved in participating in the various conspiratorialmeetings, receiving training in the handling of arms, their activeparticipation in the throwing of bombs or parking of vehicles fittedwith explosives, or where the accused persons participated onlyin the landing and transportation of contraband, but were not awareFof the contents of the said contraband, and further, anothercategory, where the accused had knowledge of the contents ofthe contraband, but did not participate either in the conspiratorialmeetings held, or in any actual incident of any terrorist activity,and has awarded different punishments accordingly, we do notGsee any cogent reason to allow the said appeal. The appeal ishence, dismissed.”

Relying upon the aforesaid principles of law in the present case, itis submitted that all the accused persons were in constant touch withH

each other, wherein different roles were designated to every accusedperson in providing support to A-1 for commission of offence such asproviding money, arranging weapons, arranging phones and fake SIMcards, logistics and accommodation, the identification of targets, etc.

20. In September/October 2002, A-1 (Mohmed Asgar Ali) alongwith other 13 boys of Andhra Pradesh was sent to Karachi, Pakistan byA-2 (Mohmed Abdul Rauf) for obtaining arms training on the instigationof A-18. At Karachi, he was directed to reach Ahmedabad via Udaipurto take revenge of the alleged atrocities committed on Muslims duringriots by killing Hindu leaders. The same had been proved by Exhibit 253i.e., confessional statement of A-1 (Mohmed Asgar Ali) and Exhibit 247i.e., confessional statement of A-2 (Mohmed Abdul Rauf).

21. After return from Pakistan, A-1 (Mohmed Asgar Ali) stayedat Muslim Musafirkhana at Udaipur from 31.12.2002 to 5.1.2003. Ithad been proved by Exhibit 298 i.e., the visitor register reflecting entryno.5846 made in respect of his stay; Exhibit 297 i.e., deposition of Mohd.Jamil IS, Manager, Muslim Musafirkhana, regarding his stay at MuslimMusafirkhana; positive opinion given by Dr. Mohmed Aizaz Ali, CFSL,Delhi (PW-88) with respect to the handwriting of A-1 (Mohmed AsgarAli) at entry no.5846 Exhibit 298. Facts regarding stay of A-1 (MohmedAsgar Ali) had also been corroborated by Mohammed Jamil NasirMohammed (PW-30) and Dr. Mohmed Aizaz Ali (PW-88) and Exhibit253, which is the confessional statement of A-1 (Mohmed Asgar Ali).Thereafter, he returned to Hyderabad from Udaipur and took Rs.2,000-3,000/- from A-2 (Mohmed Abdul Rauf). He was directed by A-18through email to reach Udaipur and to contact Usman Khan NawabKhan (PW-29).

22. A-1 (Mohmed Asgar Ali) reached Udaipur on 20.1.2003 andstayed at Muslim Musafirkhana for a day. The same had been provedby Exhibit No.299 i.e., the visitor register showing entry No.8682; Exhibit297 i.e., deposition of Mohmed Jamil Nasir Mohammed (PW-30),Manager of Muslim Musafirkhana regarding his stay at MuslimMusafirkhana; positive opinion given by Dr. Mohmed Aizaz Ali, CFSL,Delhi (PW-88) with respect to handwriting of A-1 (Mohmed Asgar Ali)at entry no.8682 Exhibit 299. Facts regarding stay of A-1 (MohmedAsgar Ali) had also been corroborated by Mohammed Jamil NasirMohammed (PW-30) and Dr. Mohmed Aizaz Ali (PW-88) and Exhibit253, which is the confessional statement of A-1 (Mohmed Asgar Ali).

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A23. For 2-3 days, he stayed at the residence of Usman KhanNawab Khan (PW-29), which had been corroborated by Usman KhanNawab Khan (PW-29) in Court also. During the stay of A-1 (MohmedAsgar Ali) at Udaipur, he used to visit Netsavy Cyber Café situated atChetak Circle, Udaipur for operating emails. While in Udaipur, A-1(Mohmed Asgar Ali) telephonically contacted A-3 (Mohmed Shafiuddin)Band provided him the Landline Number of Usman Khan Nawab Khan(PW-29) and mobile number [REDACTED] of A-14 (Sohail Khan Pathan)and asked him to come to Ahmedabad. The same had been proved byExhibit 250 i.e., confessional statement of A-3 (Mohmed Shafiuddin).

24. On 23.1.2003, A-3 (Mohmed Shafiuddin) reached UdaipurCand stayed at Muslim Musafirkhana for a day. It had been proved byExhibit 300 i.e., visitor register showing entry no.8699 made in respectof stay of A-3 (Mohmed Shafiuddin); Exhibit 297 i.e., deposition ofMohammed Jamil Nasir Mohammed (PW-30), Manager of MuslimMusafirkhana regarding stay of A-3 (Mohmed Shafiuddin; and positiveDopinion of Dr. Mohmed Aizaz Ali, CFSL, Delhi, PW-88 regardinghandwriting of A-3 (Mohmed Shafiuddin) at entry no.8699 Exhibit 300.Mohammed Sharif Amir Mohammed (PW-31), owner of PCO situatedin the basement of Muslim Musafirkhana had also proved stay of A-3(Mohmed Shafiuddin) at Muslim Musafirkhana, Udaipur.

E25. On 24.1.2003, Turk Salim Pasa Majarirule Islam (PW-49)along with A-11 (Mohmed Faruq) and A-13 (Mufti Sufiyan) went toUdaipur in Tata Indica Car (silver color) of Mohmed Muslim MohmedShabbir Ansari (PW-38) and brought A-1 (Mohmed Asgar Ali) toAhmedabad. This fact had been proved by Exhibit 365 i.e., the depositionof Turk Salim Pasa Majarirule Islam (PW-49) who admitted that theyFhad brought A-1 (Mohmed Asgar Ali) to Ahmedabad. At Ahmedabad,A-1 (Mohmed Asgar Ali) stayed in a room at Lokhandwalichali,Bapunagar owned by Mushtaq Ahmed Munir Ahmed Ansari (PW-63).It had also been proved by Exhibit 652 though Mushtaq Ahmed MunirAhmed Ansari (PW-63) has turned hostile, who admitted that A-1G(Mohmed Asgar Ali) had stayed at his house on the request of A-14(Sohail Khan Pathan).

25(a) On 25.1.2003, A-3 (Mohmed Saifuddin) reachedAhmedabad from Udaipur and stayed at Hotel Garden. Stay of A-3(Mohmed Saifuddin) at Hotel Garden had been proved by Exhibit 220

H

i.e., the visitor register showing entry no.2137 made in respect of hisstay at Hotel Garden, which was signed by him and RajendrasinghVajesinh Rathod, Manager, Hotel Garden (PW-18) had also proved theaforesaid entry in his deposition in Court. Exhibit 486 i.e., CFSL Reportof Subhash Mittal, Principal, Scientific Officer (PW-79) had also provedthe handwriting of A-3 (Mohmed Saifuddin) at entry no.2137. A-3(Mohmed Shafiuddin) was then taken to Lokhandwalichali of MushtaqAhmed Munir Ahmed Ansari (PW-63) by A-1 (Mohmed Asgar Ali) andA-10 (Parvez Khan Pathan). This fact had been proved by Exhibits250, 253 and 244 i.e., the confessional statements of A-3 (MohmedShafiuddin), A-1 (Mohmed Asgar Ali) and A-10 (Parvez Khan Pathan)respectively.

25(b). At the end of January 2003, A-1 (Mohmed Asgar Ali) andA-3 (Mohmed Shafiuddin) were shifted to Flat No.902 in M.B. Complexby A-11 (Mohmed Faruq). The said flat was arranged by A-10 (ParvezKhan Pathan) through Tawabhai Yusufbhai Shaikh (PW-66) and MohmedJalis Ahmed Rajput (PW-68). This fact had been proved by TawabhaiYusufbhai Shaikh (PW-66) and Mohmed Jalis Ahmed Rajput (PW-68)in their deposition made in the Court.

25(c). Between January and February 2003, A-1 (Mohmed AsgarAli) and A-3 (Mohmed Shafiuddin) were moved to Flat No.401, RoyalApartment, Rakhial by A-10 (Parvez Khan Pathan) and A-11 (MohmedFarooq). The said flat was owned by Abdul Banki Abdul Bari Ansari(PW-44 - hostile witness) and an advance of Rs.5,000/- was paid to himby A-10 (Parvez Khan Pathan). When the said flat was vacated,Rs.3,500/- was refunded by Abdul Banki Abdul Bari Ansari (PW-44) toA-10 (Parvez Khan Pathan) through cheque no.17296 drawn on GujaratIndustrial Coop. Bank, which was encashed by A-10 (Parvez KhanPathan). The stay of A-1 (Mohmed Asgar Ali) and A-3 (MohmedShafiuddin) had been proved by Yusufbhai Idubhai Pathan, (PW-95 -occupant of neighbouring flat). Exhibit 209 i.e., a notebook of the RoyalApartment had also proved that an entry had been made by MushtaqYusufbhai Mansoori (PW-59) regarding the stay of A-1 (Mohmed AsgarAli) at Royal Apartment.

25(d). On 31.1.2003, a mobile no.[REDACTED] was procured byusing Voter ID of Shivabhai Virabhai Rathod (PW-53) and was providedto A-1 (Mohmed Asgar Ali) by A-14 (Sohail Khan Pathan). This fact AB

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EFG

Ahad been corroborated by Shivabhai Virabhai Rathod (PW-53) and V.Srinivasan, Official of Hutch Company (PW-77) in their deposition andthe print out of mobile no. [REDACTED] is also on record as Exhibit 467.

25(e). On 1.2.2003, a Suzuki Samurai Motorcycle (Black Colour)bearing registration no.GJ-1S-S-5934 was purchased by A-10 (ParvezBKhan Pathan) from Abdul Samad Abbasali (PW-54) and the deliverynote was signed by A-10 (Parvez Khan Pathan) while taking possessionof the same. The deposition of Abdul Samad Abbasali (PW-54) as wellas the Exhibits 383 and 384 i.e., a delivery note of the motorcycle hadclearly proved that the motorcycle was purchased by A-10 (Parvez KhanPathan). On the instructions of A-14 (Sohail Khan Pathan), theCmotorcycle was provided to A-1 (Mohmed Asgar Ali) by A-10 (ParvezKhan Pathan). After the arrival of A-1 (Mohmed Asgar Ali) and A-3(Mohmed Shafiuddin) at Ahmedabad, A-4 (Kalim Ahmed) and A-5 (AnasMachiswala) visited Surat on the instructions of A-13 (Mufti Sufiyan)and collected two pistols from one Maulana Tahir.D25(f). Before 5/6.3.2003, a meeting was held at Lal Masjid, whichwas attended by A-4 (Kalim Ahmed), A-5 (Anas Machiswala), A-13(Mufti Sufiyan) and A-14 (Sohail Khan Pathan), in which it was decidedto kill Jagdish Tiwari.

25(g). On 5/6.3.2003, A-14 (Sohail Khan Pathan) introduced A-E1 (Mohd. Asgar Ali) and A-3 (Mohmed Shafiuddin) to A-4 (Kalim Ahmed)and A-5 (Anas Machiswala). A-4 (Kalim Ahmed) handed over twopistols each to A-1 (Mohd. Asgar Ali) and A-3 (Mohmed Shafiuddin)with live cartridges.Before 9.3.2003, A-10 (Parvez Khan Pathan)pointed out Jagdish Tiwari (PW-39) at his shop to A-1 (Mohd. AsgarFAli). On 9.3.2003, a meeting was held at Jaliwali Masjid, which wasattended by A-5 (Anas Machiswala), A-6 (Mohmed Yunus Sareshwala),A-7 (Rehan Puthawala), A-8 (Mohmed Riyaz), A-9 (Mohmed ParvezSheikh), A-12 (Shanavaz Gandhi) and A-14 (Sohail Khan Pathan) andin the said meeting, it was disclosed by A-14 (Sohail Khan Pathan) thatJagdish Tiwari would be their target. In the night of 9.3.2003, A-1G(Mohmed Asgar Ali) and A-3 (Mohmed Shafiuddin) waited for the arrivalof Jagdish Tiwari (PW-39) in order to kill him, but on that night, JagdishTiwari did not pass through the scheduled route. On 10.3.2003, A-1(Mohmed Asgar Ali) and A-3 (Mohmed Shafiuddin) followed JagdishTiwari (PW-39), who was on his motorcycle and when he took U-turn H

for his flat, A-1 (Mohmed Asgar Ali) tried to fire a shot from his pistol,but the bullet did not come out.

25(h). On the very next day i.e., 11.3.2003 at about 9.15 pm, A-1(Mohmed Asgar Ali) and A-3 (Mohmed Shafiuddin) went to the shop ofJagdish Tiwari (PW-39) and A-3 (Mohd. Shafiuddin) asked for a strip ofthe sorbitrate tablet. While he was taking out the medicine, A-1 (MohmedAsgar Ali) fired a shot from his pistol at Jagdish Tiwari (PW-39), but thebullet hit on his metal buckle of belt and after ricocheting entered in hisbody near navel portion. The weapon of A-1 (Mohmed Asgar Ali) gotjammed and in the process of clearing the blockage, two live cartridgesfell at the shop. Two more bullets were fired on Jagdish Tiwari (PW-39), but he hid behind a pillar and fridge. The identity of A-1 (MohmedAsgar Ali) and A-3 (Mohmed Shafiuddin) had been proved by Exhibit329 i.e., the deposition of Jagdish Tiwari (PW-39) - injured eye-witness.At 9.16 pm, A-1 (Mohmed Asgar Ali) informed A-10 (Parvez KhanPathan) on his mobile about the attack on Jagdish Tiwari (PW-39). Atthat moment his location was under the tower of Jay Chemicals, Odhav,GIDC. At 9.20 pm, A-1 (Mohmed Asgar Ali) again called A-10 (ParvezKhan Pathan) and at that point of time, his location was Vohra MarriageHall, Char Rasta, Rakhial. Jagdish Tiwari (PW-39) was rushed toShardaben Hospital and was treated by Dr. Hasuben Kalubhai Patel(PW-9) in casualty. Thereafter, he was shifted to the emergency ofSurgery Department. A wardi regarding the incident was received atPS Bapunagar on the basis of which, Nagindas Kalidas Barot (PW-96)visited the shop of Jagdish Tiwari (PW-39) and from there he went toHospital. At the Hospital, Nagindas Kalidas Barot (PW-96) wrote downthe complaint of Jagdish Tiwari (PW-39) and sent the same to PSBapunagar where I-CR No.101/03 was registered at 11.35 pm.

25(i). On 12.3.2003, clothes of Jagdish Tiwari (PW-39) were takeninto possession by Nagindas Kalidas Barot (PW-96) vide Exhibit 491(panchnama) in the presence of Sureshbhai Chelwalya Patel (PW-81).Panchnama of the crime scene was prepared by Nagindas Kalidas Barot(PW-96) in the presence of Popatbhai Virchandbhai Padhiyar (PW-78).Two live cartridges, three cartridge cases, and one fired bullet wererecovered and taken into police possession vide Exhibit 474. JagdishTiwari (PW-39) was operated by Dr. Pranjal Desai and his senior and abullet was removed.

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A25(j). On 14.3.2003, Dr. Virendra Kanaiyalal Shah (PW-10) handedover the recovered bullet to Himmatsinh Ratansinh Chauhan (Rathod)(PW-15), who produced the same before Nagindas Kalidas Barot (PW-96) in the presence of Chandrakishan Bageshwar Tiwari (PW-80)(Panch). Exhibit 489 is the memo of handing over of recovered bullet.On the same day, A-3 (Mohmed Shafiuddin) was dropped at Gita MandirBBus Stand by A-10 (Parvez Khan Pathan) and was provided bus ticketfor Jaipur. The ticket was sold by Maqsoodbhai Ismailbhai Mansoori(PW-22).

A

25(k). On 15/16.3.2003, A-13 (Mufti Sufiyan) in consultation withA-14 (Sohail Khan Pathan) disclosed to A-5 (Anas Machiswala) thatCtheir next target would be Haren Pandya, who used to come to LawGarden for a walk.

25(l). On 17/18.3.2003, a meeting was attended by A-4 (KalimAhmed), A-5 (Anas Machiswala), A-7 (Rehan Puthawala), A-8(Mohmed Riyaz), A-12 (Shahnavaz Gandhi) and A-14 (Sohail KhanDPathan) at Juni Jama Masjid, where A-14 (Sohail Khan Pathan) disclosedtheir next target i.e., Haren Pandya. A-12 (Shahnavaz Gandhi) wasdirected by A-14 (Sohail Khan Pathan) to carry out a recce of LawGarden in order to ascertain movements of Haren Pandya and his carnumber.

E

25(m) In a meeting held on 22.3.2003 at Juni Jama Masjid attendedby A-4 (Kalim Ahmed), A-5 (Anas Machiswala), A-7 (Rehan Puthawala),A-8 (Mohmed Riyaz), A-12 (Shahnavaz Gandhi) and A-14 (Sohail KhanPathan), A-9 (Mohmed Parvez Sheikh) was assigned the task to carryout the recce of Law Garden as A-12 (Shahnavaz Gandhi) had failed todo so.F

25(n). On 23.3.2003 at 7.00 am, A-9 (Mohmed Parvez Sheikh)called A-1 (Mohmed Asgar Ali) from the mobile phone of A-7 (RehanPuthawala) and asked him to come to Law Garden in order to familiarizewith the topography. It had been proved by Exhibit 467 i.e., CDR ofGmobile no.[REDACTED] used by A-1 (Mohmed Asgar Ali) during thecommission of the crime. A-6 (Mohmed Yunus Sareshwala) and A-9(Mohmed Parvez Sheikh) visited the Law Garden where A-1 (MohmedAsgar Ali) also came but they could not locate Haren Pandya.

25(o). On 24.3.2003, A-9 (Mohmed Parvez Sheikh) visited theLaw Garden again in the morning on the motorcycle and saw HarenPandya. He noted down his car number as GJ-1AP-4606. In the nightof 24.3.2003, a meeting was again held in Juni Jama Masjid, which wasattended by A-4 (Kalim Ahmed), A-5 (Anas Machiswala), A-7 (RehanPuthawala), A-8 (Mohmed Riyaz) and A-9 (Mohmed Parvez Sheikh),where A-9 (Mohmed Parvez Sheikh) was directed by A-4 (KalimAhmed) to point out the spot at Law Garden to A-1 (Mohmed AsgarAli). A-1 (Mohmed Asgar Ali) was telephonically called there and takento Law Garden by A-9 (Mohmed Parvez Sheikh), where the spot waspointed out to him where Haren Pandya parked his car. Meticulousplanning was done to execute the murder of Haren Pandya on the nextmorning, where A-8 (Mohmed Riyaz) was assigned the role of driver ofA-1 (Mohmed Asgar Ali) and A-9 (Mohmed Parvez Sheikh) was assignedthe task to keep watch to safeguard A-1 (Mohmed Asgar Ali) and A-8(Mohmed Riyaz). A-7 (Rehan Puthawala) was given the task to escortA-1 (Mohmed Asgar Ali) and A-8 (Mohmed Riyaz) to Shahpur MillCompound, where A-4 (Kalim Ahmed) and A-5 (Anas Machiswala)were to wait in an autorickshaw.

25(p). On 25.3.2003, an attempt was made to kill Haren Pandyaat Law Garden, but A-1 (Mohmed Asgar Ali) could not open fire due tothe presence of many persons. In the afternoon, it was decided to killHaren Pandya next morning.

25(q). On 26.3.2003 at around 7.30 am, Haren Pandya was killedby A-1 (Mohmed Asgar Ali) by firing from close range at Law Garden.Entire incident was witnessed by Anilram Yadram Patel (PW-55), whoidentified A-1 (Mohmed Asgar Ali), whom he saw firing at Haren Pandyafrom firearm and he had narrated the entire incident in his depositionand fully supported the version of the prosecution vide Exhibit 175 i.e.,identification memo of A-1 (Mohmed Asgar Ali). After the incident, A-1 (Mohmed Asgar Ali) called A-14 (Sohail Khan Pathan) on mobileno.[REDACTED] from his mobile no.[REDACTED] at 7.33 am and 8.17 am.The location of these mobile numbers had confirmed the presence of A-1 (Mohmed Asgar Ali) at Law Garden. These facts had been proved byExhibit 467 i.e., CDR of mobile no.[REDACTED]. Hemantkumar RatilalPatel, Assistant Divisional Engineer, Vastrapur Telephone Exchange AB

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A(PW-33) had also proved the location of mobile number used by theaccused persons on the basis of tower location chart. At 10.40 am, amessage was sent to PS Navrangpura and PS Ellis Bridge by City ControlRoom to reach Law Garden. Haren Pandya was evacuated to B.S.Hospital by police officials of P.S. Navrangpura. A complaint was lodgedby Janaksingh Khusalsinh Parmar (PW-1) with Yusuf Miya Ahmed MiyanBShaikh, P.I., PS Ellis Bridge (PW-101) regarding the murder of HarenPandya. At 11.30 am, I-CR No.272/02 was registered at PS Ellis Bridgeregarding the killing of Haren Pandya. Inquest panchnama was preparedby Yusuf Miya Ahmed Miyan Shaikh, P.I., P.S. Ellis Bridge (PW-101)between 1.00 pm to 2.00 pm. Post-mortem examination of Haren PandyaCwas conducted between 2.15 pm to 4.50 pm. Panchnama of the crimescene was prepared by Yusuf Miya Ahmed Miyan Shaikh, P.I., PS EllisBridge (PW-101) between 2.30 pm to 3.30 pm. A notification was issuedunder Section 6 of the DSPE Act for investigation by CBI in the murderof Haren Pandya. Statement of Anilram Yadram Patel (PW-55) wasrecorded. On 28.3.2003, the investigation was taken up by CBI andDrecords of FIR No.272/03 were seized from PS Ellis Bridge.

26. Further investigation also unearthed and supported theconspiracy. On 3.4.2003, A-6 (Mohmed Yunus Sareshwala), A-7 (RehanPuthawala), A-8 (Mohmed Riyaz) and A-9 (Mohmed Parvez Sheikh)were arrested by Tarunkumar Amrutlal Barot, P.I. of DCB, AhmedabadE(PW-114) on suspicion of obtaining arms training at Pakistan. I-CR No.6/03 was registered against the aforesaid accused of waging war againstthe State and taken into police custody for remand. A mobile phone wasrecovered from A-7 (Rehan Puthawala).

26(a). On 6/7.4.2003, when A-7 (Rehan Puthawala) wasFconfronted with the contact details of his mobile phone, in which numberswere stored against the names of Mehman and Uncle, he disclosed thatMehman is killer of Haren Pandya and Uncle is A-5 (Anas Machiswala),who played a key role in the murder of Haren Pandya. The same hadbeen proved vide Exhibit 728 i.e., the evidence of Sushilkumar S. GuptaG(PW-120). The location of phones was traced to be at Ahmedabad.

26(b). On 17.4.2003, A-1 (Mohmed Asgar Ali), A-2 (MohmedAbdul Rauf), A-15 and A-16 were arrested from Medchal Bus Stand,Hyderabad. On 18.4.2003, A-3 (Mohmed Shafiuddin) was arrested fromJ.D. Math Bus Depot, RR District, Andra Pradesh by V. PrabhanjanHKumar (PW-118).

26(c). On 22.4.2003, bullets recovered from the body of HarenPandya along with his clothes were handed over to CFSL, New Delhifor opinion (Exhibit 441).

26(d). On 23.4.2003, A-1 (Mohmed Asgar Ali) had confessedabout his stay at House No.206, Block 61, Gujarat Housing Board, OldBapu Nagar, Ahmedabad in the presence of Harikishan Harpal Meena(PW-23). He had also mentioned this fact in his confessional statementand it had also been mentioned in the statement of Mustaq Ahmed MunirAhmed Ansari (PW-63 – hostile witness). He had also mentioned aboutM.B. Complex, Rakhial, in the presence of Harkishan Harpal Meena(PW-23) and House No.522, Gujarat Housing Board, Babunagar ownedby A-10/A-14. At the pointing of A-1 (Mohmed Asgar Ali), Bajaj BoxerMotorcycle No.GJ-1BG-3849 was seized from the house of A-10/A-14along with registration papers. These facts had been proved by Exhibits268, 269, 270 and 272.

26(e). On 25.4.2003, Suzuki Samurai Motorcycle No.GJ-1SS-5934 and Hero Honda Motorcycle No. GJ-1CD-8973 were seized fromthe parking of Kalupur Railway Station and PS Kagdapeeth respectively.A-4 (Kalim Ahmed), A-5 (Anas Machiswala) and A-12 (ShahnavazGandhi) were arrested from Sadashiv Pet Bus Stand, Sangareddy, AndhraPradesh by Udham Sinh Ramkaran Sinh Solanki (PW-108) and wasremanded to transit custody till 29.4.2003 by the Judicial Magistrate.These facts had been proved by Exhibits 274, 356, 645, 646, 647 and648.

26(f). On 26.4.2003, a revolver No.B-40350 Webley & Scott andone pistol No. EE-0330 was discovered at the instance of A-1 (MohmedAsgar Ali) in the presence of Srinathsinh Shambhausinh (PW-13) fromFlat No.4-B, Kamar Flats, Shahapur, Ahmedabad. This fact had beenproved by Exhibit 196. RC Book of Suzuki Samurai Motorcycle No.GJ-1SS-5934 was recovered during a search of the said flat. It had beenproved by Exhibits 197 and 198.

26(g). On 28.4.2003, A-1 (Mohmed Asgar Ali) disclosed of havingused various cyber cafes at Ahmedabad and Udaipur. Two hard disksfrom Modern Cyber Café, Ahmedabad and one hard disk each fromMittal Cyber Café and Net Savy Cyber Café, Udaipur were seized.The same had been proved to vide Exhibits 601, 336, 410 and 576. On29.4.2003, a hard disk of Cyber Space Café, Ahmedabad was also seized(Exhibit 762).

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26(h). On 30.4.2003, A-1 (Mohmed Asgar Ali) and A-2 (MohmedAbdul Rauf) had disclosed about their email IDs, passwords and printout of emails was taken in the presence of Prakashbhai Babulal Modh(PW-16) (Exhibits 213 & 215).

A

26(i). On 5.5.2003, A-1 (Mohmed Asgar Ali) was identified byBAnilram Yadram Patel (PW-55) during a test identification parade.

26(j) On 8.5.2003, a pistol was discovered at the instance of A-5(Anas Machiswala) from his house. It had been proved by Exhibit 423.

26(k). On 22.5.2003, A-7 (Rehan Puthawala) and A-8 (MohmedRiyaz) made a disclosure about the shop of Star Number from whereCthey got prepared fake number plates bearing no.GJ-1CF-5189.Babarbhai Maljibhai Rabari (PW-34) was the punch witness of the saiddisclosure and had fully supported the same during his deposition. ShaikhMohmed Riyaz Hussainmiyan Pirmiyan (PW-52) owner of Star NumberPlate had also deposed regarding the making of number plates. TheseDfacts had been proved by Exhibits 312, 313, 314 and 315.

D

26(l). On 1.6.2003, POTA was invoked in FIR No. RC.2(S)/2003SCUI and an intimation were sent to Principal Sessions Judge,Ahmedabad, and Chief Metropolitan Magistrate, Ahmedabad (Exhibit744).

E

26(m). On 2.6.2003, I-CR No.101/03 of PS Bapunagar wasregistered in CBI as FIR No.RC.5 (S) 2003 – SCU. I and investigationwere taken up (Exhibit 746). Police custody remand of A-6 (MohmedYunus Sareshwala), A-7 (Rehan Puthawala), A-8 (Mohmed Riyas) andA-9 (Mohmed Parvez Sheikh) was extended till 9.6.2003 (Exhibit 745).

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26(n). On 3.6.2003, records of I-CR No.101/03 were collectedfrom DCB by CBI (Exhibit 747).

26(o). On 4.6.2003, A-10 (Parvez Khan Pathan) and A-11(Mohmed Faruq) were arrested on the basis of transfer warrant.Statement of Jagdish Tiwari (PW-39) was recorded, who claimed thatGhe can identify the assailants. A-6 (Mohmed Yunus Sareshwala), A-7(Rehan Puthawala), A-8 (Mohmed Riyas) and A-9 (Mohmed ParvezSheikh) expressed their desire to make a confessional statement beforeSushilkumar S. Gupta, Investigating Officer (PW-120), who producedthem before Vinayak Prabhakar Apte, Superintendent of Police(PW-21).

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26(p). On 5.6.2003, A-10 (Parvez Khan Pathan) and A-11(Mohmed Faruq) were produced before Chief Metropolitan Magistrate,Ahmedabad and were remanded to police custody till 19.6.2003.

26(q). On 6.6.2003, Jagdish Tiwari (PW-39) identified A-1(Mohmed Asgar Ali) and A-3 (Mohmed Shafiuddin) during a testidentification parade. Statements of Jagdish Tiwari (PW-39), Javed AbdulRashidkhan Pathan (PW-45) and Faridkhan Majidkhan (PW-74) wererecorded. A-7 (Rehan Puthawala) also made a confessional statement,which was recorded by Vinayak Prabhakar Apte (PW-21). The samehad been proved by Exhibits 203, 366, 557, 558 and 229.

26(r). On 7.6.2003, confessional statements of A-6 (MohmedYunus Sareshwala) and A-9 (Mohmed Parvez Sheikh) were recordedby Vinayak Prabhakar Apte (PW-21). The same had been proved byExhibits 232 and 235.

26(s). On 8.6.2003, Vinayak Prabhakar Apte (PW-21) recordedthe confessional statement of A-8 (Mohmed Riyaz) (Exhibit 238).

26(t). On 11.6.2003, POTA was invoked in RC.5(S)/2003-SCU.I i.e., case of Jagdish Tiwari and an intimation was sent to PrincipalSessions Judge, Ahmedabad, and Chief Metropolitan Magistrate,Ahmedabad (Exhibits 750 and 751).

26(u). On 12.6.2003, A-1 (Mohmed Asgar Ali), A-2 (MohmedAbdul Rauf) and A-3 (Mohmed Shafiuddin) were arrested on the basisof transfer warrant in case no. RC.5(S)/2003-SCU.I and remanded topolice custody till 21.6.2003. Hero Honda Motorcycle was seized fromPS Koth. A-10 (Parvez Khan Pathan) made a disclosure statementregarding number plates and video CDs. The number plate wasdiscovered from roadside bushes of Tarapur Highway at the instance ofA-10 (Parvez Khan Pathan) and six video CDs and other literature werediscovered from the house of A-10 (Parvez Khan Pathan). A-10 (ParvezKhan Pathan) and A-11 (Mohmed Faruq) also expressed a desire tomake a confessional statement before Sushilkumar S. Gupta (PW-120).These facts have been proved by Exhibits 754, 755, 513, 514 and 515.

26(v). On 15.6.2003 and 16.6.2003, confessional statements ofA-11 and A-10 respectively were recorded by Vinayak Prabhakar Apte(PW-21). (Exhibits 241 and 244)

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A26(w). On 17.6.2003, A-4 (Kalim Ahmed), A-5 (Anas Machiswala)and A-12 (Shahnavaz Gandhi) were arrested on transfer warrant andon 18.6.2003, they were remanded to police custody till 27.6.2003. A-1(Mohmed Asgar Ali), A-2 (Mohmed Abdul Rauf) and A-3 (MohmedShafiuddin) expressed their desire to make a confessional statementbefore Sushilkumar S. Gupta (PW-120). On 20.6.2003, confessionalBstatements of A-2 (Mohmed Abdul Rauf) and A-3 (Mohmed Shafiuddin)were recorded by Vinayak Prabhakar Apte (PW-21). A-12 (ShahnavazGandhi) also expressed a desire to make confession to Sushilkumar S.Gupta (PW-120). These facts had been proved by Exhibits 759, 595,247 and 250.C

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26(x). On 21.6.2003, confessional statement of A-1 (Mohd. AsgarAli) was recorded by Vinayak Prabhakar Apte (PW-21) and on 22.6.2003,confessional statement of A-12 (Shahnavaz Gandhi) was recorded byVinayak Prabhakar Apte (PW-21). The same had been proved videExhibits 253 and 256. Thereafter, A-4 (Kalim Ahmed) and A-5 (AnasDMachiswala) also expressed a desire to make confession before VinayakPrabhakar Apte (PW-21).

IN RE: ANILYADRAM (PW-55)

27. It was urged on behalf of the prosecution that PW-55, AnilYadram is a reliable eye-witness. His presence at the scene of occurrenceEat 7.30 a.m. and that of deceased is natural and stands proved. It waspointed out that the presence of the eye-witness on the crime spot wasnatural as he used to keep his push handcart inside the compound ofChitty Bang in Thakorbhai Desai Hall, as the drive was on to removesuch carts by Municipal Corporation. He was present in early morningFhours and his presence has been corroborated and proved by PW-55,owner of Chitty Bang CW-1 who has confirmed that PW-55 used tokeep his hand cart in the Chitty Bang compound with his permission andused to sleep there at night. The version of PW-55 has also beencorroborated by medical evidence and by other independent evidence.His disposition has been corroborated by medical as well as ballisticGexpert, PWs.-8, 15, 55, 101 and 120 with respect to the position of theaccused and the bullet injury suffered by the deceased. The Post Mortemexamination was conducted by 4 doctors. Dr. Pratik Patel (PW-8) hasproved 7 gunshots caused by 5 bullets. Forensic and biological reports H

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prove the death of the deceased inside the car. The weapon used by A-1 at the time of the commission of the offence was duly recovered fromsame flat. Ballistic expert PW-75 has deposed that the bullets recoveredfrom the body of the deceased were fired from the same revolver whichwas recovered at the instance of A-1. Commission of offence vis-à-visPW-39, Jagdish Tiwari has attained finality as that has not been questionedby accused persons by filing appeals, which also proves the presence ofA-1 and A-3 at Ahmedabad during the relevant period. PW-95 provesthat A-1 was present in Ahmedabad on 27.3.2003 and used phoneNo.98254 91421 even up to the next day of the murder of the deceased.The High Court has committed gross perversity in setting aside the findingsrecorded by the trial court without coming to close quarters of thereasoning employed by the trial court as well as marshalling of evidencein detail, as done by the trial court.

28. On the other hand, learned counsel appearing on behalf of theaccused sought to discredit the testimony and deposition of PW-55 AnilYadram by raising various grounds to be dealt with in extenso hereinafter.Anil Yadram, PW-55 has stated that he stationed his handcart near LawGarden outside the gate of Chitty Bang, Thakorbhai Desai Hall, andNanubhai is the owner of the Chitty Bang. He used to leave his handcartin the compound of Chitty Bang of Nanubhai (CW-1) during the night. Ifthe handcart is kept outside, the corporation might tow away the cart.Therefore, he used to keep the handcart in the said Chitty Bang duringthe night. He used to sleep in the Chitty Bang, the place of Nanubhai.On 26.3.2003 he went to nature’s call, and after brushing he washed hisface and came near the front gate and then he saw that Kanhaiya Lalwas standing nearby the gate. He told him that the Corporation wastowing the handcarts. Kanhayalal told him that he would be there at10’O clock. He was inside the gate of Chitty Bang when he saw aMaruti Fronti came from Gajjar Hall Cross Roadside and stopped wherehe kept his larry. Haren Pandya was inside the car. He parked the carand was rolling the window glass up. In the meantime, a boy came fromthe side where the car had come and he fired 4 to 5 rounds. The feet ofHaren Pandya was raised up and he fell on the back side. Witness shoutedwhat are you doing? The assaulter ran away. Thereafter Ramesh,Sweeper came and asked what had happened. The boy was neitherhere nor there. He has specified some features of the accused. He was AB

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Ascared and sat so for some time and then went towards B Desai Halland saw Shukla Chacha in a rickshaw. He informed Shukla Chacha thatHaren Pandya has been killed. Shukla Chacha and he both went in arickshaw. Since goods were loaded and as there was traffic police onPanchvati Circle, he dropped him off from rickshaw at Panchvati Circleand again asked him to board the rickshaw at Ambawadi Circle. ThenBthey reached Nanubhai’s place. He informed Nanubhai that Haren BhaiPandya has been killed by 4 to 5 rounds of firing at the place where heused to keep his larry. Nanubhai told that after having tea he will reachLaw Garden. They went back to Law Garden, the police had arrived,Haren Pandya was taken in a jeep to V.N. Hospital. The police officerCcame in civil dress and asked him features of the assaulter. The witnessexplained him in the same manner as he has deposed in the court. TheCBI had prepared the map. He has affixed his thumb impression andKanhaiya has signed it.

29. It was submitted on behalf of the accused persons that theDcase of gun firing set up by the witness PW-55 is not correct as inMaruti 800 car, no gunshot residue (GSR) has been found and no bullethas been recovered from the car. It is not in dispute that the bullets wererecovered from the body as such they were not found in the car. Learnedcounsel for A-1 submitted that from the seat no blood was found though

on Kurta and Pyjama and underwear there were blood stains. The HighECourt has observed that there was profuse bleeding, as such from thedriver’s seat cover blood ought to have been found. On the other hand,it was pointed out on behalf of the CBI that blood has been recoveredfrom the Maruti car and it was of Group B of the deceased. Thus,merely on the cover of the seat blood was not found, would not discreditFthe incident. As a matter of fact, it would depend upon the nature of thewound and whether the bleeding is internal and the position of the bodyas to how much blood would go down. Whether it will go to the seatcover or to the bottom of the car, it cannot be said to be a universalformula that whenever an incident has happened in a car, blood shouldbe found on a particular place. Thus, an attempt to discredit the depositionGof the witness on the aforesaid ground that some blood has not beenrecovered from the seat cover of the car by itself, cannot be said to becircumstances leading to doubting of the incident in the car. It wassubmitted on behalf of the prosecution that PW-55 is an independentwitness who is neither related to the deceased nor having any enmityH

with A-1. He has duly identified A-1 in a test identification parade on5.5.1981 before PW-7 who has given Panchnama. The trial court hasrightly found him to be a reliable witness.

30. It was urged on behalf of the accused that there was no GSRinside or outside the vehicle which according to the accused makes ithighly doubtful that the car was the site of the shooting. The prosecutionsubmitted that since the bullets were found inside the body, GSR couldnot be found inside or outside the vehicle. Thus, the incident cannot besaid to be doubtful due to the fact that the presence of GSR has not beenfound inside or outside the vehicle.

31. It was submitted by the learned counsel appearing on behalfof the accused that the car had dark window glasses. Driver’s right sidewas slightly open. PW-55 has also stated that the car window was openas shown in the photograph. Thus, it was submitted that by the openingof roughly 3 inches, gunshot injuries are rendered impossible, to be causedespecially injury No.7, which renders it doubtful that the car was the siteof the shooting. PW-55 has stated that Haren Pandya after stopping thecar, drank water from the bottle and thereafter he was fired at when hewas rolling up the window glass.

32. In our opinion, precise rolling of the glass when he was firedat, cannot be stated by any person with precision. It is too much toexpect a person to state how much rolling of the glass of windows hadbeen done at the time of firing. Even if the witness had stated so, thatwould be merely his guesswork. When a person is rolling the glass up, itis possible that he might have been fired the shot when the window wasquite wide open and when he was in the process of rolling it up. Theperson in order to save himself from the firing would also try to roll upthe glass with speed then also gunshot firing can be made in the process.Thus the argument raised that there was a tiny opening of 3 incheswhen the shots were fired, is against the normal course of human conductto make such statement and the way in which the incident has takenplace it cannot be said with precision how much rolling of the glass ofwindows was done before firing took place and how much rolling wasdone after suffering some shots or in the process of firing. It can only besaid that he was in the process of rolling the glass up when the firingtook place.

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A33. PW-55 has demonstrated the position of the deceased insidethe car in his deposition. With respect to shooting from the driver’s sideglass is corroborated medically by the direction of injuries 1 to 4 whichare from upward to downward and right to left. PW-55 has further statedthat the legs of deceased came up and he fell on the co-driver’s seatwhich explains injury No. 7 also which is from downward to upward andBleft to right. This is further corroborated by the entry hole in Pyjamawhich is in the rear hole of Pyjama. The position of the deceased hasbeen confirmed by PW-85, a constable who took the body of the deceasedout of the car. PW-85 has stated that legs were slightly up from kneelevel. The right leg was slightly more on the upward direction.C

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34. To discredit version of PW-55, it was submitted that therewere 7 injuries and 5 bullet injuries were found. Total 5 fire-arms bulletswere recovered from the body of the deceased during post mortem asproved by PW-8. That falsifies the prosecution case. This aspect requiresa close examination of the evidence. It was submitted on behalf of A-1Dthat in the post mortem conducted by 4 doctors, 5 bullets described aswhite metal bullets were found from the body as against 7 gunshotwounds. All of them had blackening around. Injury No.6 also hadblackening as found by PW-19, the treating doctor. The holes in theclothes corresponding to the blood wounds including the right bone show blackening. The emergence of all 7 holes on the clothes including thoseEon the right GSR and later examined by CFSL. It was further submittedthat autopsy surgeon PW-8 has stated in answer to question Nos.64 to66 that all the bullets inside the body are mentioned for 5 wounds namelyinjury Nos.1 to 4, 5 to 7. Injury Nos. 5 and 6 in the post mortem report istheir communicating injury. The track of injuries 5 and 6 is not noted. ItFwas submitted that in case of injury Nos.5 and 6, there should have beenwrist fracture and the injury should have been on the palm region. Thusthe eye witness account of firing 5 shots is not reliable. For causinginjury No.7 the weapon would have to be at the level of the scrotum andto its left and the autopsy surgeon has stated that assailant to causeinjury No.7 will have to be in front and beneath. Thus injury No.7 couldGnot have been caused in Maruti car. So that is not the place of theincident. Due to this aspect, the ocular evidence of PW 55 standscontradicted.

35. It was submitted on behalf of the prosecution that whilecountering that coherent and succinct nature of the medical and forensicevidence with ballistics bolsters the case of the prosecution andunambiguously establishes that murder was committed by A-1. InjuryNos.2 to 4 were direct shots to the chest; injury Nos.1, 5 and 6 werecaused by the same bullet, injury No.1 was on the neck, injury No.5 onthe right-hand metallic bone and injury No.6 at back of the hand, injuryNos.5 and 6 are communicating injuries and thereafter injury No.1 hasbeen caused in the neck by the same bullet. Statement of PW-8, Dr.Pratik Patel has been relied upon who has stated that the same bullethas caused gunshot injuries 5 and 6. The doctor has opined that if thehand is reflexly kept in front of face or neck region on the right side thatback of hand if facing the opposite side of the victim, the bullet mayre-enter from external injury No.1.

36. Now we advert to whether medical evidence belies the versionof PW-55. In the post mortem report D-160 dated 26.3.2003 of HarenPandya following injuries have been noted:

“1. About 0.8 cm diameter, punch red contused lacerated entrywound with inverted edges is present on the lower part of front ofneck on right side, about 1 cm above and 2 cm right to medial endof right clavicle. Blackening is seen on skin surrounding the wound.

2. About 0.8 cm diameter, punch red contused lacerated entrywound with inverted edges is present in front of right chest, about1.2 cm right to midplane over right 2[nd] intercostal space.

3. About 0.8 cm diameter, punch red contused lacerated entrywound with inverted edges is present on front of right chest, 5 cmbelow and 1 cm left to right nipple.

4. About 0.8 cm diameter, punch red contused lacerated entrywound with inverted edges is present front of right chest, 0.5 cmbelow and 3 cm right to abovementioned external injury no. 3.

5. About 0.8 cm diameter, punch red contused lacerated entrywound with inverted edges is present on back of right hand, 2 cmproximal to junction of index and middle fingers. Blackening ofskin is seen surrounding the wound.

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A6. Lacerated wound with everted margin is present on front ofright forearm at junction of upper 2/3 to lower 1/3rd, g___ obliquelydownward to medially, 2 cm.

7. 0.5 cm diameter, circular punch lacerated wound with invertedmargins present on lower part of left scrotum 1 cm __ midplaneB(scrotal raphe) covered with clot.8. 0.4 cm x 0.4 cm, red-colored, abrasion present on mid of lateralaspect of phalanx of the right middle finger.”

When we consider the aforesaid report, injury No.1 is on the lowerpart of the front of the neck on the right side, that is on the right clavicle.CThe doctor has clearly expressed that injury Nos.5 and 6 arecommunicating ones. As a matter of fact, in communicating injuries it isnot necessary that the bullet to have entered the proximal to junction ofthe index and middle finger. It could have passed touching the area andthen caused injury on the right forearm in the process of reaching rightDup to the front on a lower part of the front to cause injury No.1. Themedical evidence clearly establishes that injury No.5 was caused first, 6thereafter and No.7 was ultimately caused by the same bullet and doctorhas clearly explained it. While replying to question No.14, the doctorsaid that if the hand is reflexly kept in front of neck region on the rightside and that back of the hand is facing the opposite side of the victim,Ebullet injury No.1 may be caused after causing injury Nos.5 and 6.

37. The conclusion of the High Court is only right to the extentthat injury Nos.5 and 6 could not be said to be entry and exit wounds.They were rather communicating wounds caused in the process ofcausing injury No.1. The conclusion to the contrary averred by the HighFCourt as to independent injuries is absolutely incorrect. Testimony ofPW-55 cannot be said to be falsified on the basis of aforesaid medicalevidence. There is no inconsistency with respect to the aforesaid aspectin the medical version and the ocular version of PW55.38. PW-8, Dr. Pratik Patel, Autopsy Surgeon has further stated inGanswer to question No.73.

“Question no. 73: what would be the exception and what is theauthority of considering the exception?

Answer: If first entry and exit are through the small part of thebody and soft tissue and side of the re-entry are in the closeproximity of the exit wound of the first entry wound then theremay be features of the entry wound on the re-entry wound. I canalso show some statements in support of my reply. There is abook on Medico legal statements in support of my reply. There isa book on Medicolegal investigation of Gun Shot by Abdulla Fateh,J.B. Lipping Company.”

It is apparent from the aforesaid answer that wound has beenreferred by doctor PW-8 as a small part of the body and soft tissue.Thus, it is a communicating injury of soft tissue not piercing through orentering the wrist. It is clear that injuries 5 and 6 are communicatinginjuries and injury No.1 has been caused by the same bullet. The entryand exit wounds have been seen and explained by the doctor in theaforesaid manner which has to be communicating one only caused bythe same bullet.

39. It was also urged that the account of a number of injuries ofthe bullet is not matching with the number of injuries found. There were7 gunshot wounds whereas 5 bullets were recovered from the body ofthe deceased. As already explained 5 bullet injuries were caused assuggested by ocular evidence of PW-55 and also by medical evidencethat 5 bullets were found as injury Nos.5 and 6 were communicatinginjuries leading ultimately to injury No.1 as discussed above. Thus, thereis no inconsistency rather ocular evidence is fortified by the medicalevidence.

40. The accused person has relied upon “Gray’s Anatomy” and“A Colour Atlas of Human Anatomy” to contend that there are 32 tightlypacked bones in the palm. The tightest packed are wrist bones and thecarpal tunnel is just about 8.3 mm in depth (as per medical journals). A0.32 caliber bullet has a diameter of 7.65 mm. Therefore, in the absenceof any credible competent forensic explanation of the track of injuries 5and 6, this theory set up by CBI at the stage of arguments, is liable to bedismissed.

41. There is no dispute that the palm has tightly packed bones. Inthe instant case, as the bullet has not entered inside and only touched the A

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Asoft tissue in injury No.5, the injury was caused on the soft tissue andthen it has superficially touched the wrist.

42. The doctor has stated in para 8 that external injuries 5 and 6were found communicating with each other. Fracture of 2[nd] rightmetacarpal bone was present. He has further stated that bullets wereBmade of white metal, they were sealed, labelled and handed over to thepolice officer on duty. When the treating doctor was asked how therewere 5 bullets and 6 entry wounds, he has opined that one injury will beof the entry of the bullet and that was precisely the communicating injuries5 and 6 leading to injury No.1 that was the re-entry wound. Whetherinjury No.1 was original or re-entry, he has referred to post mortemCreport to opine that injury Nos.5 and 6 are communicating injuries.

43. The High Court as well confused as to the number of injurieson the basis of 7 wounds and 5 number of bullets fired. In case of suchcommunicating injuries, it is not necessary that the bullet should enterany part of the body while reaching to the last injury, it may cause scratchDor touched the small part of the body or soft tissue as has been done inthe instant case. It has happened in the instant case. With respect to thesignificance of such a medical version, this Court in Rachhpal Singhand Anr. vs. State of Punjab, AIR 2002 SC 2710, has observed thus:

“8. A perusal of the evidence of the doctor shows that there isEsome discrepancy in his evidence in regard to the nature of theinjury on the deceased as to whether the edges of the woundwere averted or inverted. But this, in our opinion, is not fatal tothe case of the prosecution. The doctor while admitting that therewas some such confusion in his evidence as well as the post mortemFreport, in our opinion, has clarified the said position during thecourse of his examination, though belatedly. From the very natureof the wounds found on the body of the deceased, it is clear thatthey died of gunshot injuries which is not seriously disputed. Whatis beingdisputed by the learned counsel is the points of entry andexit which on facts of this case, would make a very little differenceGsince the other evidence adduced by the prosecution clearly showsthat the deceased died out of gunshot injuries. Some discrepancyas to the nature of entry and exit on facts of this case would notmake the prosecution case any weaker. It is more so because of the facts that the casings of the bullets which were recovered bythe Investigating Officer were positively proved by the ballisticexpert as of those bullets which were discharged from the weaponsrecovered from the appellants and these casings having been foundnear the bodies of the deceased on the roof of their house wouldestablish that the deceased died of bullets discharged from theweapons seized from the appellants. In such circumstances, thequestion of entry or exit of the wounds would lose its significanceif the presence of the accused persons with these weapons at theplace and time is otherwise established by the prosecution.”

44. Reference has also been made on Modi’s jurisprudence. Withrespect to the path of the bullet inside the body in which the followingobservations have been made:

“while searching for a bullet, it must be borne in mind that it couldtake a very erratic and unusual course while passing through thebody. With respect to the determination of the direction from whichthe weapon was fired, it further states as under :

“The question regarding the direction of fire, whether from rightto left or from front to back is of medico-legal importance. Toascertain this, it is necessary to know the position of the victim atthe time of the discharge of the bullet, when a straight line isdrawn between the entrance and exit wounds and prolonged infront generally indicates the line of direction. In some cases, it isdifficult to determine the direction as the bullet is so often deflectedby the tissues that its course is very irregular, also when the bulletwobbles.”

Though it has been observed that in some cases it is difficult todetermine a direction but in the instant case considering the fact that theinjuries are only on the right side which is on driver’s side, 3 woundswere caused on the chest and injury Nos.1, 5 and 6 were caused by thesame bullet obviously fired from the driver’s side window only as isapparent from the direction of communicating injuries also. There is noinconsistency in ocular and medical evidence in the instant case.

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A45. It was submitted on behalf of the learned counsel appearingfor the accused that PW-55 has contradicted himself on the position ofHaren Pandya’s body inside the car. In his examination-in-chief he makesan improvement “pug upar thayi gay ahata” and that he had fallen on hisback “vasa na taraf “. This is an improvement to counter PW-8’s forensicopinion that the weapon would have to be below the scrotum. On thisBcount of improvement alone, PW-55 should be discredited. He has notsaid that in his CBI statement or to the police that “Pug upar thayi gayahata”.

46. This Court in Sukhdeep Singh v. State of Uttar Pradeshand Anr., 2010 (2) SCC 177, this Court has observed thus:C

“17. We find, therefore, that the very basis of the argument raisedby the learned counsel on the basis of the statement of Dr. C.P.Srivastava that the injuries could not have been caused while thedeceased was in a standing posture is not borne out from thecross-examination. Even otherwise, we believe that it would beDimpossible for any witness to give a categorical statement as tothe posture that the deceased or the assailants were holding atthe time when the firing incident happened. The trial court wasnot justified in coming to a contrary conclusion as it appears to bea case of misreading of the evidence.”

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47. It was further submitted that in the police statement PW-55has stated that Haren Pandya collapsed on the front seat then speaks ofShri Pandya having fallen on the driver’s seat. Later speaks about hisfalling on the adjacent seat. CW-1 has stated that “car mein ulte hokeFpade hue hain”. It was submitted that he first says on the questionwhether he could see knees below steering in the car, PW-55 has repliedthat he could see a part of the chest and knee. It was submitted thatwhen injury No.7 has been caused, the weapon could be below the levelof his scrotum to his left. Weapon pointing upwards when PW-55 hasGstated that the shooting happened from outside from the small opening,he stands discredited by the medical evidence. It was further urged onbehalf of the accused that the submission of CBI that left leg of thedeceased came up the injury No.7 is impossible version, cannot bebelieved.

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48. In our opinion, from the statement of PW-55 it is clear thatwhen Haren Pandya fell in the car, his leg came up. Obviously, the leftleg would come up towards the driver’s side and where the injury iscaused to him, obviously it would be in the same direction and travel thesame way it has travelled. The same is the statement of witness PW-55made in the examination-in-chief cannot be said to be an improvement.He has stated what he has seen. It is not necessary to state every minutedetails in the statement under section 161 Cr.P.C. It is not for the autopsydoctor to give a vivid description as to how the deceased reacted at thetime when gunshots were fired upon him as he was not an eye witness.In view of the evidence on record, the statement made by PW-55, thedirection of causing of injury No. 7 is fully explained and an eye witnesscannot be said to state all these details with mathematical precision.Question is whether he is otherwise reliable and whether other evidencecorroborates him. Corroborating evidence is available in abundance.

49. As to the precise distance inch-wise position at the time offiring, there is no witness who can give an exact description as suggestedin a lengthy cross-examination. Lengthy cross-examination on this linewas wholly uncalled for and wholly unnecessary and witness is notsupposed to furnish all such details with precision. Though the witnesshas withstood the test of cross-examination also.

50. The deposition of PW-55 was sought to be further discreditedon the ground that when feet came up, he could not refer to the positionof knees with reference to the steering. The witness is not supposed togive all these minute details. It is not a case where medical evidencecompletely improbabilises the ocular evidence only on that case the ocularevidence has to be discarded not otherwise. Reliance has been placedon behalf of accused on Abdul Sayeed v. State of Madhya Pradesh,2010 (10) SCC 259 thus:

“39. Thus, the position of law in cases where there is a contradictionbetween medical evidence and ocular evidence can be crystallisedto the effect that though the ocular testimony of a witness hasgreater evidentiary value vis-à-vis medical evidence, when medicalevidence makes the ocular testimony improbable, that becomes arelevant factor in the process of the evaluation of evidence.However, where the medical evidence goes so far that it completely A

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510SUPREME COURT REPORTS

Arules out all possibility of the ocular evidence being true, the ocularevidence may be disbelieved.”

51. In Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, A.P.,2007 (15) SCC 465 the court observed:B

“52. The dying declaration must inspire confidence so as to makeit safe to act upon. Whether it is safe to act upon a dying declarationdepends upon not only the testimony of the person recording thedying declaration—be it even a Magistrate but also all the materialavailable on record and the circumstances including the medicalCevidence. The evidence and the material available on record mustbe properly weighed in each case to arrive at a proper conclusion.The court must satisfy itself that the person making the dyingdeclaration was conscious and fit to make statement for whichpurposes not only the evidence of persons recording the dyingDdeclaration but also cumulative effect of the other evidenceincluding the medical evidence and the circumstances must betaken into consideration.”

52. In State of Rajasthan v. Bhanwar Singh, 2004 (13) SCCE147 the Court observed:

“6. We find that the High Court has carefully analysed the factualposition. Though, individually some of the circumstances may nothave affected veracity of the prosecution version, the combinedeffect of the infirmities noticed by the High Court is sufficient toFshow that the prosecution case has not been established. Thepresence of PWs 3, 4 and 8 at the alleged spot of incident hasbeen rightly considered doubtful in view of the categoricalstatement of PW 5, the widow that she sent for these persons togo and find the body of her husband. It is quite unnatural thatPWs 3, 4 and 8 remained silent after witnessing the assaults.GThey have not given any explanation as to what they did afterwitnessing the assault on the deceased. Additionally, theunexplained delay of more than one day in lodging the FIR castsserious doubt on the truthfulness of the prosecution version. Themere delay in lodging the FIR may not prove fatal in all cases.

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But on the circumstances of the present case, certainly, it is oneof the factors which corrodes credibility of the prosecution version.Finally, the medical evidence was at total variance with the ocularevidence. Though ocular evidence has to be given importanceover medical evidence, where the medical evidence totallyimprobabilises the ocular version that can be taken to be a factorto affect credibility of the prosecution version. The view taken bythe High Court is a possible view. The appeal being one againstacquittal, we do not consider this to be a fit case where anyinterference is called for. The appeal fails and is dismissed.”

53. In this case, it cannot be said that ocular evidence is belied bythe medical evidence. It was also submitted on behalf of the accusedthat when the eye witness made an improvement to suit medical evidencewhich has come on record by itself, it is sufficient to discredit him.Reliance has been placed on Shingara Singh v. State of Haryana &Anr., 2003 (12) SCC 758 in which this Court has observed:

“22. In our view, the High Court has completely missed thesignificance of the finding recorded by the trial court. The trialcourt found that in the FIR as also the statements recorded underSection 161 CrPC the witnesses had clearly mentioned that boththe appellants had climbed on top of the wall and from thereShingara Singh, A-2 fired at Surinder Singh. If this version wereto be accepted, the injury caused would not have been of thenature found by the Medical Officer who was clearly of the opinion,having regard to the trajectory of injuries, that the person firingthe firearm was at a lower level than the victim. Therefore, witha view to bring their case in consonance with the medical evidenceon record, all the three witnesses made significant changes whiledeposing in court and all of them thereafter consistently statedthat whileA-1 had climbed on top of the wallA-2 stood on theladder in such a manner that only his face was visible from acrossthe wall and while standing in that position, keeping the barrel ofthe gun on the wall and without resting the butt of the gun againsthis shoulder, he fired at the deceased. There was no dispute thattheir deposition in court was consistent, but what was observedby the trial court was that their version as to the manner of AB

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occurrence as deposed to by them was at variance with whatwas stated in the first information report by PW 5, and in thestatements of PWs 6 and 7 recorded under Section 161 CrPC.When confronted with their earlier statements, they could not givea satisfactory explanation, with the result that their credibility wassufficiently impeached. The change of version by each one ofthem, and to the same effect, was deliberate and not merelyaccidental or on account of lapse of memory. It cannot be disputedthat this was a very significant change. It cannot also be disputedthat the change was deliberately made by all the witnesses sothat the prosecution case became consistent with the medicalevidence on record. We, therefore, do not find any error committedby the trial court in coming to this conclusion.”

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54. Reliance has also been placed by learned counsel for theaccused on Ram Narain Singh v. State of Punjab, 1975 (4) SCC 497Din which this Court has observed:

“2. ……..We might also mention here that the definite case of theprosecution before the Sessions Judge was that while the shotwas fired at the deceased Teja Singh by Ram Narain Singh hehad kept the right hand flexed on his chest. It was thus stated bythe eyewitnesses that at the time of firing, the deceased had puthis right hand on his chest. These two additions or embellishmentsappear to us to have been necessitated in order to bring theevidence of the eyewitnesses in consonance with the evidence ofthe doctor as also that of the ballistic expert, and we shall dealwith this aspect of the matter a little later….

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6. …….. This particular posture was undoubtedly a mostconspicuous fact which could not have been missed by the witnessif it was really there. In these circumstances, therefore, we shouldhave expected this fact to be mentioned in the FIR but it isconspicuously absent from the FIR, nor was this fact mentionedby either Surjit Singh or his brother Joginder Singh in theirstatements before the police or before the committing Magistrate.It seems to us that the theory of the deceased having placed his G

arm on the right side of his chest has been introduced only afterthe doctor who was examined as the second witness in the SessionsCourt stated in his examination-in-chief that if the elbow of rightarm is flexed lying in front of the chest, then injuries Nos. 1 to 4could be caused with a single firearm discharge. It would appearthat this witness was examined before the Sessions Court on May14, 1973, and PW Surjit Singh was examined on the same dayafter the evidence of the doctor was recorded. PWs Surjit Singhand Joginder Singh had to introduce the theory of the deceasedhaving put his right arm on his chest to bring the occurrence intune and in consonance with the evidence of the doctor. This wasundoubtedly a belated idea because if it had been a fact there isno reason why the eyewitnesses should not have deposed to it intheir statements before the police or even before the committingcourt. Till that time the witnesses were not aware of the injuriessaid to have been caused to the deceased Ram Narain Singh by asingle fire unless the deceased was in a particular posture. Thisfact came to light for the first time when the doctor was examinedin the Sessions Court and the witnesses in order to corroboratetheir testimony with the evidence of the doctor introduced thisembellishment in the story of the assault on the deceased.Considered against this background, the argument of the learnedcounsel for the appellants that the evidence of the eyewitnesseswas inconsistent with the medical evidence appears to be wellfounded. In other words, the position is that if we discard this partof the evidence of the eyewitnesses which has come to light forthe first time in the Sessions Court, then according to medicalevidence, the deceased would have got two gunshots whereas itwas never the prosecution case that Ram Narain Singh or anyother accused fired a second shot at the deceased at any time.The medical evidence, therefore, clearly falsifies the prosecutioncase regarding the manner in which the deceased was hit.”

55. Counsel for the accused further submitted that there is aninconsistency between the ocular and medical evidence which will destroythe prosecution case, the benefit of which must go to defence. Reliancehas been placed on Ram Narain Singh (supra) in which this Court hasobserved:

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“14. Where the evidence of the witnesses for the prosecution istotally inconsistent with the medical evidence or the evidence ofthe ballistic expert, this is a most fundamental defect in theprosecution case and unless reasonably explained it is sufficientto discredit the entire case. In Mohinder Singh v. State, AIR1953 SC 415, this Court observed in similar circumstances asfollows:

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“In a case where death is due to injuries or wounds caused bya lethal weapon, it has always been considered to be the dutyof the prosecution to prove by expert evidence that it waslikely or at least possible for the injuries to have been causedwith the weapon with which and in the manner in which theyare alleged to have been caused. It is elementary that wherethe prosecution has a definite or positive case, it is doubtfulwhether the injuries which are attributed to the appellant werecaused by a gun or by a rifle.”

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It is obvious that where the direct evidence is not supported bythe expert evidence, then the evidence is wanting in the mostmaterial part of the prosecution case and it would be difficult toconvict the accused on the basis of such evidence. Whileappreciating the evidence of the witnesses, the High Court doesEnot appear to have considered this important aspect, but readilyaccepted the prosecution case without noticing that the evidenceof the eyewitnesses in the Court was a belated attempt to improvetheir testimony and bring the same in line with the doctor’sevidence with a view to support an incorrect case.”

56. Reliance has been placed as to inconsistency between medicaland ocular evidence by Counsel for accused on State of Haryana v.Ram Singh, 2002 (2) SCC 426 in which this Court has observed:

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“1. While it is true that the post-mortem report by itself is not asubstantive piece of evidence, but the evidence of the doctorconducting the post-mortem can by no means be ascribed to beinsignificant. The significance of the evidence of the doctor liesvis-à-vis the injuries appearing on the body of the deceased personand likely use of the weapon therefor and it would then be theprosecutor’s duty and obligation to have the corroborative evidenceavailable on record from the other prosecution witnesses.

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8. The principal contention raised in support of the appeal filed onbehalf of the accused persons has been that medical evidence asis available on record, completely demolished the prosecutioncase……”

57. In Ram Narain Singh (supra) the Court observed that theprosecution has to prove that injury was caused by the weapon in themanner as alleged. There is no dispute with the aforesaid proposition.However, the applicability of ratio has to be seen in the facts andcircumstances of each case. In the instant case, the ocular evidence ofPW-55 is not discredited by the medical evidence.

58. Even otherwise as submitted on behalf of the prosecution thatin case of any discrepancy between the ocular or medical evidence, theocular evidence shall prevail, as observed in Yogesh Singh v. MahabeerSingh& Ors., (2017) 11 SCC 195:

“43. The learned counsel appearing for the respondents has thentried to create a dent in the prosecution story by pointing outinconsistencies between the ocular evidence and the medicalevidence. However, we are not persuaded with this submissionsince both the courts below have categorically ruled that themedical evidence was consistent with the ocular evidence andwe can safely say that to that extent, it corroborated the directevidence proffered by the eyewitnesses. We hold that there is nomaterial discrepancy in the medical and ocular evidence and thereis no reason to interfere with the judgments of the courts belowon this ground. In any event, it has been consistently held by thisCourt that the evidentiary value of medical evidence is onlycorroborative and not conclusive and, hence, in case of a conflictbetween oral evidence and medical evidence, the former is to bepreferred unless the medical evidence completely rules out theoral evidence. [See Solanki Chimanbhai Ukabhai v. State ofGujarat, (1983) 2 SCC 174, Mani Ram v. State of Rajasthan, (1993)Supp. 3 SCC 18, State of U.P. v. Krishna Gopal, (1988) 4 SCC302, State of Haryana v. Bhagirath, (1999) 5 SCC 96, DhirajbhaiGorakhbhai Nayak v. State of Gujarat, (2003) 9 SCC 322, ThamanKumar v. State (UT of Chandigarh), (2003) 6 SCC 380, Krishnanv. State, (2003) 7 SCC 56, Khambam Raja Reddy v. PublicProsecutor, (2006) 11 SCC 239, State of U.P. v. Dinesh, (2009)11 SCC 566, State of U.P. v. Hari Chand, (2009) 13 SCC 542, A

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AAbdul Sayeed v. State of M.P., (2010) 10 SCC 259 and BhajanSingh v. State of Haryana, (2011) 7 SCC 421.]”

59. The ocular evidence to prevail has also been observed in SunilKundu & Anr. v. State of Jharkhand, (2013) 4 SCC 422 thus:

“24. In Kapildeo Mandalv. State of Bihar, (2008) 16 SCC 99, allBthe eyewitnesses had categorically stated that the deceased wasinjured by the use of firearm, whereas the medical evidencespecifically indicated that no firearm injury was found on thedeceased. This Court held that while appreciating variance betweenmedical evidence and ocular evidence, oral evidence ofCeyewitnesses has to get priority as medical evidence is basicallyopinionative. But, when the evidence of the eyewitnesses is totallyinconsistent with the evidence given by the medical experts thenevidence is appreciated in a different perspective by the courts. Itwas observed that when medical evidence specifically rules outthe injury claimed to have been inflicted as per the eyewitnesses’Dversion, then the court can draw adverse inference that theprosecution version is not trustworthy. This judgment is clearlyattracted to the present case.”

E60. Similarly, in Bastiram v. State of Rajasthan, (2014) 5 SCC398, it was observed:

“33. The question before us, therefore, is whether the “medicalevidence” should be believed or whether the testimony of theeyewitnesses should be preferred? There is no doubt that ocularFevidence should be accepted unless it is completely negated bythe medical evidence. This principle has more recently beenaccepted in Gangabhavani v.Rayapati Venkat Reddy, (2013)15 SCC 298.

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36. Similarly, a fact stated by a doctor in a post-mortem reportcould be rejected by a court relying on eyewitness testimony, thoughthis would be quite infrequent. In Dayal Singh v. State ofUttaranchal, (2012) 8 SCC 263, the post-mortem report and theoral testimony of the doctor who conducted that examination wasthat no internal or external injuries were found on the body of the G

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deceased. This Court rejected the “medical evidence” and upheldthe view of the trial court (and the High Court) that the testimonyof the eyewitnesses supported by other evidence would prevailover the post-mortem report and testimony of the doctor. It washeld: (SCC p. 286, para 41)

“41. … [T]he trial court has rightly ignored the deliberate lapsesof the investigating officer as well as the post-mortem reportprepared by Dr. C.N. Tewari. The consistent statement of theeyewitnesses which were fully supported and corroborated byother witnesses, and the investigation of the crime, includingrecovery of lathis, inquest report, recovery of the pagri of oneof the accused from the place of occurrence, immediate lodgingof FIR and the deceased succumbing to his injuries within avery short time, establish the case of the prosecution beyondreasonable doubt. These lapses on the part of PW 3 [doctor]and PW 6 [investigating officer] are a deliberate attempt ontheir part to prepare reports and documents in a designedlydefective manner which would have prejudiced the case ofthe prosecution and resulted in the acquittal of the accused,but for the correct approach of the trial court to do justice andensure that the guilty did not go scot-free. The evidence of theeyewitness which was reliable and worthy of credence hasjustifiably been relied upon by the court.””

61. With respect to track of bullet for injury No. 7 much wasargued. As already stated in Modi’s Jurisprudence, the track of bulletmay take a different course once the injury has been caused. Bullet mayricochet inside the body after causing the injury. In view of entry woundas explained in Modi’s jurisprudence too much cannot be made out ofthe direction when the injury could have been caused in the method andmanner suggested by PW-55. The High Court while appreciating injuryNo.7 has not considered the fact that Haren Pandya fell down inside onadjoining seat and his left leg came up as stated by the witness. TheHigh Court has simply proceeded on the basis that the victim was sittingon the driver’s seat or was sliding on to the adjoining seat. The aforesaidmaterial part of the statement of witness makes it clear how the injurywas caused.

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A62. It was also urged that the mobile phone of Mr. Pandya wasnot investigated. In our opinion, it was not necessary at all in the facts ofthe case. It is not disputed that he had left the house in the morning towalk.

63. It was urged that no fingerprints were lifted from the car orBfrom the weapon recovered afterward and shoes were not recovered.In our opinion, it was not a case of a cold-blooded murder where therewas no eye witness. Thus, when the accused has not touched the car,taking fingerprints from the car was not at all necessary and the weaponof offence has also been recovered from the accused. It was notnecessary after quite some time when its recovery was made to lift theCfingerprints from it. Merely non-recovery of shoes of deceased fromthe hospital where a large number of persons had gathered by itself isnot enough to discredit prosecution case.

64. The High Court in para 16 has observed that negligible bloodwas found near the driver’s seat. The clothes of the deceased bore tell-Dtale signs of profuse bleeding from injuries on his neck and fore-arm andmobile phone and keys lying under the seat had stains of blood. Thus, itis apparent that there was blood on the seat as well as on the mobilephone and keys which were lying on the floor.

65. As eye witness has clearly stated the position where he was.EHe has been cross-examined at length, blood on cloth was found, howmuch, where it was found is not going to discredit the ocular version andan entire incident.

66. When questioned about the blood, PW-8 has answered, it woulddepend whether haemorrhage was internal or external. If there is internalFhaemorrhage there would not be much blood outside. The volume of theblood on the spot would depend upon the type of injuries. Out of 7 bulletinjuries, 6 were internal wounds, and on the fore-arm where minimum orless blood is possible, it was external. In answer to question No.111, thedoctor has stated.G67. The High Court has mostly proceeded on the basis that thereshould have been more blood found in the Maruti car. As alreadydiscussed, it would depend upon the injury whether it was internal bleedingand how a person is lying, it can also spill on the clothes and fact remainsblood has also been recovered from the Maruti car. It is not necessary H

for how much quantity it should have been recovered. It was found onmobile phone also and keys as observed by the High Court. Followingfacts supports that the incident has taken place as suggested by PW-55.

(a) Ex. 160: Panchnama of the place of offence would show thatblood was found.

(b) Ex. 774: report of the mobile FSL would show that blood wasfound on the spot.

(c) Ex. 547: opinion of serology goes to indicate that human bloodwas found.

(d) Ex. 458: CFSL-biological division report: biological report wouldshow that cotton swabs had B group blood which belonged to thedeceased.

(e) Ex. 451: 5 cotton swabs all indicating B group blood.

(f) The evidence of Y.A. Shaikh (PW 101) who deposed that hehas lifted the blood sample by a cotton swab.

(g) The evidence of Satyam Patel, PW-4 (Panch Witness) whodeposed that blood was seen on the seat at the relevant timewhich was rubbed with a small pellet of cotton which was sent tothe laboratory.

(h) The PM report would indicate that there was a lot of blood inthe thoracic cavity to the tune of 2.2 litres.

(i) Ex. 457, 458 and 169: Panchnama of the clothes would indicatethat the clothes had B group blood.

68. Besides PW-85, R Sharma, Constable has also stated that atthe time when deceased was taken to the hospital, there was no bleedingfrom his body.

69. The post mortem was conducted on 26.3.2003. Time, therefore,is stated to be 5 to 6 hours before post mortem which comes around 8a.m. and tallies with the version of PW-55.

70. It was submitted that the FIR was not lodged by PW-55. Thepolice control room was informed by IGP Mr. Suman. Thus, the conductof PW-55 does not inspire confidence, he was not an eye witness. In ouropinion, Anil Yadram, PW-55 had gone to inform the factum of the incident A

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Ato the owner of Chitty Bang, Mr. Nanubhai S Wala (CW-1) at DesaiHall. It is not uncommon for a person to react in the manner PW-55 hasdone. He first wanted to inform the owner of the place as to the murderof Haren Pandya. He was not a literate person.

71. CW-1 has also supported the version of PW-55, the narrationBof incident to CW-1 by PW-55 is quite natural and inspire confidenceand there is due corroboration of the version by CW-1 Nanubhai. In thecircumstances, non-production of Shukla Chacha who had simply giventhe lift in a rickshaw to Anil Yadram, PW-55 and has taken him to thehouse of CW-1, Nanubhai does not cause any dent in the prosecutionversion. Merely on the ground of non-examination of the witnessCKanhaiya, the deposition of PW-55 cannot be discarded. By the timePW-55 came back to the spot police had already arrived and the body ofthe deceased was taken in another vehicle to the hospital. Anil Yadramhas stated to Nanubhai CW-1 that Haren Pandya had been shot deadand “woh gadi mein ulte hokar ke pade hain” and he had seen the accusedDtaking to their heels. It could not be said from the deposition of PW-55that he had received the information of the incident, in fact, he has givena vivid description as eye witness noted PW-55 or CW-1 had no ill-willor malice against the accused. It does not make any difference whetherNanubhai CW-1 was examined as a court witness or as a prosecution witness. Once a witness has been examined, his evidentiary value hasEto be considered in accordance with the law. Once he has been examinedno question to draw any adverse inference against the prosecution arises.

72. It was submitted that CW-1 had attempted to shrink the timelineby stating that PW-55 came at around 9.15 a.m. instead of 9.45 a.m. Ona rough estimate of time, no adverse inference can be drawn as to theFcorrectness of the version by the aforesaid witness. Estimation of timemay differ by some margin when a statement is made in court afteryears together. Merely by the fact that CW-1 asked PW-55 twicewhether he had seen the incident, he said ‘yes’ he had seen the incidenttwice. That does not cause any dent in the prosecution case and doesGnot render the statement of PW-55 doubtful in any manner. We find noembellishment or material improvement in the court’s statement ascompared to the one recorded under section 161 Cr.P.C. The questionof whether CW-1 had asked PW-55 whether he was speaking the truthand omission of that in the statement under section 161 cannot be said tobe a material omission. Material facts have been stated in the statementH

and there is no contradiction with respect to the material facts with thestatement under section 161 Cr.P.C. as to the approximation of time alsonothing can be made out by the accused.

73. The argument was raised on behalf of A-1 that PW-55 did notmention in the examination-in-chief the time of the incident at around7.30 a.m. He admitted that he does not have a watch. No one can tellthe correct time. How by the aforesaid statement any benefit can bederived by the accused, passes comprehension as it is not uncommonthat various persons do not keep a watch and they go by rough estimationof the time. It was not necessary to speak about the time of occurrencein the examination-in-chief nonetheless it has been brought about in thecross-examination. There is nothing to disbelieve the estimation of timemade in the cross-examination. Time assessment may differ in someduration. It was urged that as far as the time consumed by PW-55 isconcerned, the incident had not taken place at 7.30 a.m., the submissionis futile. As urged, in which condition the deceased was taken to thehospital, is not material whether sitting or lying. He was taken to thehospital when he was already dead.

74. It was urged that the conduct of PW-55 is inconsistent withthat of an eye witness. The witness should have contacted to the regularwalkers in the Law Garden. He did not go to the Law Garden. It is notlikely that he had witnessed the incident. He has stated that he was tooscared to go to the police and stated to Shukla Chacha that he wanted totell the police. In our opinion, overall conduct of the witness is not unnaturalconsidering the person belongs to poor strata of the society and decidedto inform the owner of the Chitty Bang where his cart was parked, is notcommon and is very usual conduct in the course of normal human conduct.

75. It was submitted that on the basis of the statement of PW 55sketch Ex. 620 was prepared. There is crucial variance with thedescription recorded under section 161 Cr.PC. The descriptive featuresmentioned by him are not even reflected in the sketch. PW-55’s depositioncannot be discredited or tainted in any manner by faulty preparation ofsketch. Even otherwise the evidence of sketch is not of much significance.Sometime the sketch may not tally with the version given by a witness.

76. The High Court is moved by sketch Ex. 620 which was drawn.PW-55 denied any knowledge of such a sketch. The sketch was not putto PW-55 in the cross-examination and to obtain his explanation whether A

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Ait tallied with the assailant. In the absence of cross-examination of PW-55 on this aspect, the defence cannot take any advantage of adiscrepancy, if any. I.O. PW-120 has stated that Ex. 620 was preparedin the absence of PW-55, Anil Yadram Patel. It was drawn only on thebasis of his statement recorded under section 161 Cr.PC the way inwhich sketch was drawn it cannot be considered reliable and trustworthyBsketch. In the circumstances, sketch in the reference of the accusedought not to have weighed with the High Court because it was preparedin the absence of PW-55. PW-101 has stated that he got the sketch mapprepared on the basis of the description and handed over it to Mr. A.A.Chauhan, Police Inspector, Crime Branch.

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77. In view of the identification made by the witness in the testidentification parade, no dent is caused by the so-called sketch in theocular evidence of PW-55. Considering the intricate nature of theinvestigation, we find that there was no undue delay in holding the T.I.P.It was held on 5.5.2003 after 20 days of the arrest of the accused. TheDaccused had been identified in the same. Jagdish Tiwari (PW-39) also,later on, had rightly identified A-1 (Mohmed Asgar Ali) as the assailant.The decision relied upon in Subash and Shiv Shankar v. State of U.P.1987 (3) SCC 331 wherein the test identification parade was done after3 weeks. In the facts of the said case, the identification was disbelieved.The decision is distinguishable and turns on its own facts andEcircumstances.

78. It is the duty of the High Court to examine the details of theintrinsic merit of the evidence of eye-witnesses, as observed by thisCourt in State of U.P. v. Sahai & Ors., AIR 1981 SC 1442. PW-55 hasbeen cross-examined repeatedly on the same question as to Maruti FrontiFcame from Gajjar Hall Cross Road side which he withstood. The reasonemployed by the High Court that the presence of PW-55 at the gate at7.30 a.m. (sharp) is doubtful, is also wrong as he was there because hehad parked his hand cart in the Chitty Bang and the fact is corroboratedby CW-1, Nanubhai who was known to him for the last 15 years. TheGtime-frame employed by the High Court with respect to the witnesstravelling time that he should have come back at 10.30 a.m. and not at11 a.m. is based on estimation as if PW55 was not a witness but was anaccused. The version of the witness is not shaken by the aforesaid aspect.The timing stated by the witness is by estimation as he did not carry the H

watch. The High Court has adopted hyper-technical approach in assessingthe evidence and has been moved by minor discrepancies which do notgo to heart of the matter and shake the basic version of the prosecutionwitness, as held in Vijay @ Chinee v. State of M.P. 2010 (8) SCC 191,and Bhajan Singh @ Harbhajan Singh & Ors. v. State of Haryana(2011) 7 SCR 1.

79. The High Court is also moved by the fact that PW-55 claimsto have seen the kurta of Mr. Pandya and stated the colour of stripes ofkurta as brown whereas stripes of kurta were red in colour. There canbe confusion in identification of the colour of the kurta and memory mayalso fade after several years and there is not much difference betweenred and brown. It is a minor discrepancy which has weighed with theHigh Court whereas it ought to have been ignored.

IN RE: WHETHER BULLETS ARE THE SAME ASRECOVERED IN POSTMORTEM

80. It was also submitted on behalf of A-1 that bullet recoveredwas not sent for ballistic examination and bullets produced in court differin colour and the state of deformation recorded during post mortem.However, it is clear that it was not put to the doctor that the bulletswhich were produced in the court, were not the same which he hasrecovered.

81. It was further submitted on behalf of the accused that thecolour depends on whether it is a pure lead bullet or a bullet with a leadcore covered by a jacket of zinc. A pure lead bullet is used in a revolver,a jacketed bullet with a lead core is used in a pistol. A pure lead bulletwill never look white. Its colour will always be greyish black. If purelead bullets caused the wounds on Haren Pandya’s body, they wouldhave been greyish black even when removed at the time of post mortem.The bullet sent to CFSL and later produced in court were pure leadbullets which could never have looked white. Therefore, these bulletscould not be the ones recovered from the body at post mortem whichwere white metal bullets, seen by the four doctors conducting the postmortem. As a matter of fact, the doctor has clearly opined that whitebullets were seized and they were sent for ballistic examination and theyhave been produced from the CFSL. In our opinion, it was necessary toput in the cross-examination of PW-8 the fact that the bullets which A

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82. PW-75, Forensic Expert, Mr. Ashok Raj Arora, Senior ScientificOfficer (Ballistics), Asstt. Chemical Examiner to Government of IndiaBhas stated that 5 shots were fired from a single standard weapon. Hecompared the seals. The bullets were fired from a .32 revolver.

IN RE: FORENSIC EVIDENCE

83. As per the doctor, the bullets were made of white metal. TheAutopsy doctor (PW-8) Mr. Pratik Ravjibhai Patel however, on seeingCthe bullets Exhs. 18/1, 18/2, 18/3, 18/4 and 18/5, has clearly stated thatthe color of the bullets is grayish and they were slightly deformed. It isnot the cross-examination made that these bullets were not found in thebody. It was the duty of the cross-examiner to obtain explanation thatwhether these bullets which were shown and stated by the doctor toDhave been recovered from the body of Haren Pandya were not thesame. When the doctor has seen the bullets and had identified them thatthey were recovered from the body, no dent is caused by the statementof the doctor that they were made of white metal. It is the perception ofthe doctor of which metal they were made. Proper identification of thebullets recovered was established in the court by the witness.

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84. The prosecution has successfully established the chain ofseizure of five very bullets up to production in court which were recoveredfrom the body of the deceased. PW-8 has stated that during autopsyfive bullets were recovered from the body of Haren Pandya which washanded over to the (PW-170) police constable in sealed condition. (PW-F170) Bipin Bhai, a constable on duty has stated that he received fivebullets in the sealed condition and has handed over the sealed five bulletsto police inspector Y.A. Sheikh (PW-101) in the presence of panch-witness, Falgun Pandya (PW-2). Further, evidence of (PW-101), Y.A.Sheikh indicates that he has handed over five bullets recovered from theGbody of Haren Pandya to PW-107 who during the course of theinvestigation had handed over the same to PW120 on 28.3.2003. Theevidence further discloses that PW-120, Dy. S.P., Mr. Gupta forwardedthe said five bullets vide letter dated 4.4.2001 in the sealed condition toV.S.G.H./EBAB/Forensic Medicine through Director, CFSL, New Delhivide letter dated 25.4.2004. Exh.442 is the document of receipts by which H

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five bullets were sent to Central Forensic Science Laboratory, NewDelhi with seal intact and specimen. Exh.458 points out that blood foundon the five bullets, kurta pyjama and lifted from the car was of ‘B’Group. Thus, it is apparent that the seals have been found intact andthere is positive evidence of the custody of the appellants. Thus, it isfar-fetched and intentional for the defence to contend that bullets havebeen changed. There is no room to entertain the said submission.

85. PW-75, Mr. Ashok Raj Arora, Senior Scientific Officer,(Ballistics), Assistant Chemical Examiner, Government of India in hisdeposition has clearly stated that all the bullets are received in sealedcondition from CFSL, New Delhi. He has also identified articles 18/1 to18/5 in the seal applied on the backside of Khakhi cover which is statedto be muddamal article 18/5 which is the seal he had applied. He hasstated that he has examined articles 18/1 to 18/5 of which he has giventhe details. He has further stated in his examination that the bullets wereof blackish grey colour but the one with a jacket would have copper oraluminum colour. If the bullet is of white metal then the metal would bemade of steel or aluminium but he has not seen nor examined the whitecoloured jacket bullet. Thus, it is clear that what has been produced inthe court are the same articles which were examined by the forensicexpert – (PW-75).

86. On behalf of the accused, it was submitted that the chemicaltest on the clothes has not been done to ascertain the nature of bulletsused in the offence. The test, as well as breach face mark, have to beperformed which is prescribed in the CBI Forensic Manual. The test ismust to eliminate by proper evidence before concluding that un-jacketedbullets had been used and therefore the revolver was used. Metal willbe present in both unjacketed and jacketed bullets. No copper test wasdone in the case, therefore, it is not known whether the actual weaponwas a pistol or revolver. In our opinion, even in the absence of the aforesaidtest, the evidence conclusively establishes that the revolver was used inthe offence for firing the bullets in question and that has been proved tobe a weapon of the offence and recovered too.

87. The evidence discloses that during the course of police custodyMohmed Asgar Ali (A-1) on 26.1.2003 gave a disclosure statement andindicated the place for recovery of the weapon in the presence ofAdditional S.P. Chikara and Police Inspector PW-3 Shri Rathi. Mohmed AB

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AAsgar Ali (A-1) has mentioned in his disclosure statement (Exh.656)information pursuant to which two weapons – i.e. one revolver and onepistol and the cartridges were recovered vide inquest memo Exh.196along with the clothes Exh.1 which A-1 worn at the time of occurrence.PW-13, Shrinathsingh, panch witness and Mr. Chikara have proved theaforesaid aspects. The weapons were recovered hidden in the tank ofBBattiwla Stove at Kamar Flat in Shahpur. The aforesaid articles seizedvide memo Exhibit 196 were sealed on the same day i.e. on 27.4.2003and sent to CFSL, New Delhi along with the clothes of Mohmed AsgarAli (A-1). PW-75 received a list of the material objects along withforwarding letter (Exh.443) along with .32 bore revolver bearing serialCNo.B 40350, six .32 bore ‘Scot & Webley‘ cartridges and 7.65 mmpistol bearing serial No.EE 0330, seven 7.65 mm pistol cartridges andone 7.65 mm empty magazine bearing serial no.3497 and clothes of theaccused A-1.

88. On the basis of the examination carried out by forensicDexaminer, it was opined that five .32 bore fired bullets received by himon 25.4.2003 had been fired from .32 bore revolver bearing serial No.B40350 and not from any other firearm, even of the same make, caliberor bore on the ground that every firearm has its own individualcharacteristics marks.

E89. Mr. Gupta (PW-120) in his deposition has stated that Mohd.Yousuf Maniyari, accused, who has been detained has made a statementthat five empty cartridge cases were given to him by absconding accusedMufti Sufiyan on 3.4.2003. They were recovered from his shop tied ina cloth vide seizure memo (Exh.628 dated 10.7.2003). Information memo(Exh.639) was drawn pursuant to disclosure dated 10.07.2003. Mr.AroraF(PW-75) received the parcel on 16.7.2003. In all, they recovered four.32 bore S & WL fired cartridge cases. As they were required to becompared with .32 bore revolver bearing Serial No.B 40350, the samehad been received by him once again and he opined that these four .32bore fired cartridges contained in parcel No.22 had been fired from .32Gbore revolver bearing Serial No.B 40350. He also found that though therevolver was in working condition the firing pin of the revolver wasfound tampered.

90. The prosecution urged that it is not the requirement of lawthat pellets recovered from the body be sent to the ballistic expert toHdetermine whether they were fired from the given article or not. On the contrary, the recovery of pellets from the body clearly establishes theprosecution’s case that the deceased died of the gunshot injuries. PW-8, surgeon is unaware of the difference between white metal bullets/jacketed bullet, as white metal is a cupro-nickel or zinc but, lead bullet isgrayish black and thus, the cupro zinc or cupro-nickel jacketed bullet inrelation to lead bullet is said to be white coloured metal whereas, grayishwould indicate lead bullet.

91. It was argued that PW-75 did not find the firing pin damagedwhen the weapon was first examined by him on 05.05.2003. The witnesswas not able to explain the reason for examining the weapon once againand for the examination of the damaged firing pin. The defence submittedthat in the circumstances the identification would not be possible. Theprosecution has submitted that the breach face mark, if available andsufficient, can lead to provide identification in case of tampering of apin. Reliance has been placed on behalf of the accused on the depositionof Dr. Jitendra Kumar Sinha (DW-8). He has admitted not to have seenany of the exhibits pertaining to the case in question namely the firearms,crime cartridges, test cartridges, empty cartridges, etc. nor had anyoccasion to examine those exhibits under a stereomicroscope. (DW-8)in the cross-examination was questioned whether striation marks of theland and grooves imprinted on the surface of the bullet would be individualcharacteristics marks. It was stated that there may be striation due toextraneous marks which cannot be called individual characteristicexplaining the same. It was the wrong non-committal reply. The trialcourt in the circumstances has referred to individual characteristics onthe point and relied on “An Introduction of Tool Marks”, Firearms underthe heading of “Individual Characteristics” by John E. Davis, the Authorobserved as to the striation marks thus:

“The “Individual Characteristics” on a fired bullet are those featureswhich distinguish it from bullets fired through all other bores.Practically speaking, the term applies to those minute striae alongthe land and groove impressions which are produced by, and arecharacteristic of irregularities within a given bore. Bullets are finallyidentified with a specific weapon on the basis of these striae.”

92. It is apparent that every fired bullet has individual characteristicsin the form of minute striae along with the land and groove impression.The bullets are finally identified with the specific weapons on the basisof these striae. DW-8 has also stated that in 95 % of the cases, filing in AB

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Amarks alone permit identification of the firearm, but in the event of anytampering of firing pin, the expert would examine breach face markwhich shall have to be compared with test fired cartridges to confirmthe opinion that the cartridges are fired from the said firearm.

93. The act of disclosure of the weapon and its discovery at theBinstance of A-1 and the bullets found in the body of Haren Pandya wassent to CFSL, New Delhi wherein it has been opined that they havebeen fired with the standard weapon (revolver of .32 bore), which hadbeen recovered.

94. It was submitted by the prosecution that the same veryCcartridges were seized and sent to Forensic Science Laboratory as statedby Dr. Kuldeep Jayantilal Joshi (PW-20), CMO, V.S. Hospital, Dr. AnilSharma (PW-19) and Bipinchandra Mehta (PW-70), panch witness PW-10, Y.A. Shaik (PW-101), etc. These were received by PW-75, Mr.Arora after the Department of Biology tested it. The weapon was seizedon 27.04.2003 and sent on 2nd/ 3rd May 2003 to CFSL. It is a fact thatDinitially when the expert first examined the revolver he did not realisethe fact that the firing pin of the said weapon tampered. When onceagain after the cartridge cases discovered at the instance of the accused(A-17) were sent for the laboratory testing, he realised that the firing pinhad tampered. Be that as it may, the tale-telling marks of striae makesEthe position clear.

95. A correspondence between major striae, general gross counterand a reasonable number of finer striae will prove identity. No twobullets encounter precisely the same conditions in passing through a bore,nor do the corresponding striae always appear at the same lengthwiseFposition on “identical‘‘ specimen.

96. Dr. Arora emphasised that while giving his testimony beforethe court that degree of similarities which are found was never perfectidentity considering the striking area covered by the tampered fire pinand comparison of the same with the untampered firing pin.G97. Thus, the evidence of DW-8 also makes it clear that breach

97. Thus, the evidence of DW-8 also makes it clear that breachface alone is sufficient to confirm the opinion if they are found to berepetitive and also of repetitive character of the striations which are dueto an individual firearm can be related to a particular firearm. In this case, while ignoring the difference caused by tampering of the firing pinfound the second time, the basic striation marks remain the same whichis individual for every revolver and is not to be found in any other suchweapon. Thus, the evidence is conclusive to prove that the revolver inquestion was used in firing the bullets recovered from the body of thedeceased Haren Pandya. The medical evidence, thus, supports theversion of PW-55.

98. PW-8 who prepared the post mortem report has been discardedwhile relying upon the version of defence witness DW-6 who statedinjuries 5 and 6 as communicating injuries. This Court in TanvibenPankajkumar Divetia v. State of Gujarat, (1997) 7 SCC 156 hasobserved that the autopsy doctor’s report cannot be discarded lightly ashe had seen the injuries. In Tanviben Pankajkumar Divetia (supra) atpara 35, this Court held as:

“35…..We may also indicate here that the doctor who had heldthe post mortem examination had occasion to see the injuries ofthe deceased quite closely. In the absence of any convincingevidence that the doctor holding post mortem examination haddeliberately given a wrong report, his evidence is not liable to bediscarded and in our view, in the facts of the case, the opinion ofthe doctor holding post mortem examination is to be preferred tothe expert opinion of Dr. Shariff.”

99. In Eshwaraiah & Anr. v. State of Karnataka, (1994) 2 SCC677, this Court has observed in this regard thus:

“9…..In our view, the High Court has lightly held that the saiddoctor had no occasion to see the dead body and the injuries onthe person of the deceased and only from the report of the postmortem the said doctor gave an expert opinion. On the contrary,two doctors who had held the post mortem on the deceased hadoccasion to look and examine the injuries on the person of thedeceased and they had given a clear opinion that the death was”due to asphyxia and it was a case of homicidal death…..

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AINTERPOLATION OFSPOTMAP

100. The site map was sought to be discredited on the basis thatPW-120, I.O. of CBI gave a contradictory reply. He said that the originalspot map was drawn by pencil and later on drawn in ink. It was clearlystated that at the time of re-drawing the same, later on, the name ofBaccused Asghar Ali was mentioned as it was known by that time. Nodent is caused by the said mentioning of the name of the accused andfrom the explanation given by PW-120, it is apparent that the name hasbeen added later on.

101. The High Court has also doubted by prosecution case withCrespect to interpolation and site map with respect to the name of A-1.Dr. Gupta, I.O. of CBI, PW-120 has explained the said aspect in thefollowing manner:

“Question: You are being shown Exh-387. At the bottom, the wordAsagarali is written, and has it been checked in Note-3 thereafter?

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Answer: Looking at it through the magnifying glass, I say that Iam unable to say. The witness states clarifying that the site planof Exh- 387 was drawn at the time on 29/3/03 with pencil, and ateach place, the noting was made with pencil. At the time ofattaching it to the charge sheet, it was very dim and therefore, itEwas made clearer with the help of sketch pen and the drawingand the writing made with the pencil has been stroked out and thenote written at the bottom was written at the time of filing thecharge sheet. Therefore, there are some pencil marks on thispaper. At the place of ‘A’, ‘D’ and Law-Garden, NCC Groundand HP Car, etc. is written, it seems. The writing done on theFentire sketch is made by my colleague PI Mr. Vijayvirsinh in hishandwriting. The noting point – 3 and 4 written after erasing wouldhave been falsely written by Vijayvirsinh. So it was removed/erased, but I do not agree with the view that Asagarali has writtenit.

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Question: After writing the name of Asagarali in Note-3 and Exh-387, you have erased it?

Answer: I do not agree with that view.

It is not true and I do not agree with this view that on 29/3/03, weknew that we would book Asagarali in this case. He is to be implicated, H

and his name was written and later when it was realized that it was thedocument dated 29/3/03, his name was spoken out.”

The High Court ought to have taken note of the aforesaid statementin what circumstances name came to be added later on. It was clearlya mistake as admitted by the witness.

NON-EXAMINATION OF JAGRUTIBEN, W/O. HARENPANDYA

102. It was submitted on behalf of the accused that Ms. Jagrutiben,wife of Haren Pandya should have been examined so as to prove thatthe offence took place at about 7.30 a.m. as she has stated in thestatement under Section 161 Cr.P.C. that deceased left house at around7.00 a.m. Some of the friends of deceased and P.A. etc. later on reachedthe spot they have not been examined. In our opinion, no dent is causedas Jagrutiben and other persons were not the eye-witnesses. In case ofany doubt, they could have been examined as defence witnesses.Jagrutiben, even if examined, would have proved the fact that deceasedleft for Law Garden at around 7 a.m. and he would have reached therearound 7.10 a.m. No benefit can be drawn from the aforesaid aspect.No adverse inference can be drawn against prosecution due to non-examination of Jagrutiben. As estimation of time may differ and as perJagrutiben, deceased left for Law Garden only where he used to go fora morning walk.

IN RE: CALL RECORDS

103. Learned Addl. Solicitor General on behalf of the prosecutionhas submitted that all call records of the accused persons during theentire period of conspiracy and the tower location of the phones of theaccused persons near the Law Garden on the day of the murder ofHaren Pandya are the strong circumstantial evidence against the accusedpersons. The accused persons were in possession of mobile phones andwere in constant touch with each other before, during and after thecommission of the crime through their mobile or landline phones, asdepicted in the call details records, in order to execute the conspiracy.As mobile phone No.[REDACTED] was used by A-1, his location at 7.33a.m. on 26.3.2003 in the area near Law Garden and A-14 providingthree new BSNL SIMs. to A-7, A-8 and A-9 on 25.3.2003 and theirlocation on 25.3.2003 and 26.3.2003 near Law Garden were strongcorroborative evidence of the presence of some of the accused in the A

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532SUPREME COURT REPORTS

ALaw Garden area. The printouts of email sent by A-1, A-2 and A-18revealed that they were operating in furtherance of a common object asalso the presence of some of them in Udaipur and Ahmedabad, even asthe text of email messages did not reveal any specific plan of committingany particular crime. It is pertinent to mention that the trial court hasextensively dealt with the mobile phone, sim card details and the evidenceBadduced to prove the usage of the said phone handsets and sim cards bythe accused persons.

IN RE: MOTORBIKE USED BYA-1 AND A-6 :

104. The motorbike used by A-1 and A-6 at the time of theCcommission of the offence was duly recovered. The entire gamut offacts relating to the motorbike is as under:

(i) A-10 purchased motorcycle No.GJ-ISS-5934 from PW-54 andgave it to A-1 in the first week of February 2003 for his movementsin Ahmedabad.

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(ii) After the commission of a crime, the motorcycle was handedover by A-10 to PW-45 while fleeing from Ahmedabad on 4.4.2003and thereafter PW-45 parked the same in the parking of KalupurRailway Station from where the same was recovered by CBI inpresence of PW-24 on the night intervening 24/25.4.2003.

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(iii) In December 2002, on the directions of A-13, PW-57 (hostilewitness but statement under section 164 Cr.PC arranged 3 stolenmotor Hero Honda motorcycles and handed over the same to A-4. Thereafter, A4 retained one with him and handed over oneeach to A-14 and A-5. Later on, these motorcycles were used inthe commission of a crime on 11.3.2003, 25.3.2003 and 26.3.2003.

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(iv) One of the stolen motorcycles was handed over by A-10 toPW-45 on 3/4.4.2003 while fleeing from Ahmedabad. PW-45parked the same in Apsara Aradhna Theatre and later on broughtby PS Kagdapeeth from where it was seized by CBI on the pointingof PW-45 on 25.4.2003.

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(v) A fake number plate bearing No.GJ-ICH-5189 was gotprepared by A-7 and A-8 from PW-52. This number plate wasput on the second Hero Honda motorcycle after the commissionof a crime.

(vi) The said motorcycle was abandoned by A-10 and A-11 whilefleeing from Ahmedabad at Tarapur Highway. The fake numberplate was removed from the motorcycle and thrown into roadsidebushes which were recovered under section 27 Evidence Act atthe pointing out of A-10 in presence of PW-86 on 12.6.2003. thesaid motorcycle was taken into possession by PS Koth andthereafter seized by CBI on 12.6.2003 from PS Koth.

Presence of A-1 at Ahmedabad is proved by the use of phonenumber and by PW-95.

105. With respect to the disappearance of the mobile phone ofaccused A-1, no such question was put to I.O., PW-120 that mobile ofA-1 had disappeared from Muddamal. Neither any mobile phone norany sim card was seized from A-1 on his arrest by one DIG Shri Behra.It is, in fact, Yusufbhai, PW-95 who is an independent witness who stayedin the same Royal Apartments as A-1 has proved that A-1 was usingmobile No.[REDACTED] during the relevant time.

PLACE OF EYE WITNESS NOT DEPICTED IN SPOT MAP

106. With respect to not showing the presence at a particular spotof an eye-witness in the spot map, reliance has been placed by theprosecution on a decision of this Court in Tori Singh & Anr. v. State ofU.P., AIR 1962 SC 399. With respect to the spot map, it has been observedthat it would be based on hearsay of witness. Spot map would beadmissible so far as it indicates all that the Inspector saw himself at thespot. Any mark put on the spot map on the basis of statements made bythe witness to the Inspector would be inadmissible in view of the clearprovisions of section 162 Cr.P.C. This Court has observed thus:

“7. We are of opinion that neither of these arguments has anyforce. Let us first take the contention that it was most unlikelythat the deceased would be hit on that part of the body where theinjury was actually received by him if he was at the spot markedin Ex. Ka-9. The validity of this argument depends mainly on thespot which has been marked on the sketch-map Ex. Ka-9 as theplace where the deceased received his injuries. In the first place,the map itself is not to scale but is merely a rough sketch andtherefore one cannot postulate that the spot marked on the map isin exact relation to the platform. In the second place, the mark on AB

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the sketch-map was put by the Sub-Inspector who was obviouslynot an eyewitness to the incident. He could only have put it thereafter taking the statements of the eyewitnesses. The marking ofthe spot on the sketch-map is really bringing on record theconclusion of the Sub-Inspector on the basis of the statementsmade by the witnesses to him. This in our opinion would not beadmissible in view of the provisions of Section 162 of the Code ofCriminal Procedure, for it is in effect nothing more than thestatement of the Sub-Inspector that the eyewitnesses told himthat the deceased was at such and such place at the time whenhe was hit. The sketch-map would be admissible so far as itindicates all that the Sub-Inspector saw himself at the spot; butany mark put on the sketch-map based on the statements madeby the witnesses to the Sub-Inspector would be inadmissible inview of the clear provisions of Section 162 of the Code of CriminalProcedure as it will be no more than a statement made to thepolice during investigation. We may in this connection refer toBhagirathi Chowdhury v. King-Emperor, AIR 1926 Cal. 550,where it was observed that placing of maps before the jurycontaining statements of witnesses or of information received bythe investigating officer preparing the map from other personswas improper and that the investigating officer who made a mapin a criminal case ought not to put anything more than what hehad seen himself. The same view was expressed by the CalcuttaHigh Court again in Ibra Akanda v. Emperor, AIR 1944 Cal.339, where it was held that any information derived from witnessesduring police investigation, and recorded in the index to a map,must be proved by the witnesses concerned and not by theinvestigating officer, and that if such information is sought to beproved by the evidence of the investigating officer, it wouldmanifestly offend against Section 162 of the Code of CriminalProcedure.”

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107. In Pratap Singh & Anr. v. State of M.P., 2005 (13) SCCG624, it was held that even if the witnesses are not reflected in the siteplan, that does not bar the prosecution to produce such witnesses duringthe trial. Since PW-55 has not been confronted with the site plan and noquestion had been asked to the witness, thus his ocular evidence cannotbe discredited on the basis of the aforesaid omission.

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I.O. NOT ON SPOT

108. The High Court has also employed the reason that PoliceInspector PW-101 was supposed to be investigating at 2 p.m. on26.3.2003 at the scene of the offence. He was shown present at postmortem at 2.15 p.m. PW-101 in this regard he has explained that hehanded over the papers to Head Constable. Post Mortem might havebeen made at 2.15 p.m. but he was not present in the post mortem roomat that time. The statement of the witnesses ought to have prevailed asto his presence on the spot.

RECOVERYOF REVOLVER AND PISTOL FROM A-1:

109. In spite of the tampering of the firing pin, the material striationsare telling the tale and overall evidence inspires confidence and no dentis caused in the prosecution case. In our considered opinion the bulletsand cartridges seized from A-1 match with the revolver and bulletrecovered from Haren Pandya’s body. We reject the submission raisedby A-1. The recovery was from the rented flat of A-1 at Ahmedabad.No one had access to the place and knowledge. Thus, the recovery atthe instance of A-1 is not doubtful.

110. Statement of PW-76, Akhtar is not at all with respect to thedisclosure and discovery attributed to A-1 on the intervening night of26.4.2003 and 27.4.2003 of a revolver, pistol, and cartridges. PW-76 hasdeposed as to the motorcycle. In our opinion, it was not for the police toexplain as to who had put two locks on the flat as submitted by theaccused. That no adverse inference can be drawn for failure to explainputting of 2 locks. In no case, locks can be attributed to CBI.

111. The High Court has observed that in view of the concessiongranted by the counsel for the appellants, voluminous records and numberof controversies about each piece of evidence, it was not necessary tobe dealt with and each and every argument of learned counsel for boththe sides. It could not be said to be the proper approach of the HighCourt. The High Court ought to have examined the entire backgroundas to what facts and circumstances prevailed and whether the chainwas complete to make out the case of conspiracy. It was absolutelynecessary so as to find out the conspiracy. The acquittal recorded by theHigh Court was wholly uncalled for and is based on basically a wrongapproach. It was incumbent upon the High Court to come a close quarter A

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Aof reasoning employed by the trial Court and assessment of the evidenceof the witnesses done by the trial court with great care, in an elaboratemanner. The High Court has failed to consider the reasons and hasjumped to the conclusion.

IN RE: SECTION 32 OFPOTA:B

112. We now take the question for consideration whetherconfessional statements have been recorded after due compliance ofprovisions of section 32 of POTA. The confession of the accused personsrecorded under section 32 of POTA proves the involvement of each andevery accused person in the criminal conspiracy. The question has beenCraised that whether the safeguards provided under section 32 have notbeen observed.

113. Section 32 of the POTA contains a non-obstante clause likenotwithstanding anything in the Criminal Procedure Code or in the IndianEvidence Act and makes admissible certain confessions made to theDPolice Officers. However, the same is subject to the provisions of section32 which is extracted hereunder:

“32. Certain confessions made to police officers to be takeninto consideration.—(1) Notwithstanding anything in the Codeor in the Indian Evidence Act, 1872 (1 of 1872), but subject to theEprovisions of this section, a confession made by a person before apolice officer not lower in rank than a Superintendent of Policeand recorded by such police officer either in writing or on anymechanical or electronic device like cassettes, tapes or soundtracks from out of which sound or images can be reproduced,shall be admissible in the trial of such person for an offence underFthis Act or the rules made thereunder.

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(2) A police officer shall, before recording any confession madeby a person under sub-section (1), explain to such person in writingthat he is not bound to make a confession and that if he does so, itmay be used against him:

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Provided that where such person prefers to remain silent, thepolice officer shall not compel or induce him to make anyconfession.

(3) The confession shall be recorded in an atmosphere free fromthreat or inducement and shall be in the same language in whichHthe person makes it.

(4) The person from whom a confession has been recorded undersub-section (1), shall be produced before the Court of a ChiefMetropolitan Magistrate or the Court of a Chief Judicial Magistratealong with the original statement of confession, written or recordedon the mechanical or electronic device within forty-eight hours.

(5) The Chief Metropolitan Magistrate or the Chief JudicialMagistrate, shall, record the statement, if any, made by the personso produced and get his signature or thumb impression and if thereis any complaint of torture, such person shall be directed to beproduced for medical examination before a Medical Officer notlower in rank than an Assistant Civil Surgeon and thereafter, heshall be sent to judicial custody.”

114. Following safeguards are provided in the provisions containedin section 32 of the Act :

(i) . Confession to be made by the person before a Police Officernot lower in rank than a Superintendent of Police.

(ii) . It has to be recorded either in writing or on any mechanical orelectronic device like cassettes, tapes or soundtracks.

(iii) . The Police Officer before recording confession has toappraise the accused in writing that he is not bound to make a confessionand in case he makes it, the same may be used against him.

(iv) . That accused shall not be compelled to make any confession.

(v) . The confession shall be recorded in an atmosphere free fromthreat or inducement.

(vi) . Confession to recorded in the same language in which it ismade.

(vii) . The person who has confessed shall be produced before thecourt of Chief Metropolitan Magistrate or CJM along with the recordedconfession within 48 hours.

(viii) . The CMM/CJM shall record the statement, if any, made bythe person so produced and get his signature or thumb impression on it.If there is any complaint of torture by such a person, he shall be referredfor medical examination to an Assistant Civil Surgeon or any officerhigher in rank.

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A(ix). The person shall be sent to judicial custody and not to policecustody.

115. It was urged on behalf of the CBI that all the aforestatedsafeguards have been observed. The submission has been refuted byMs. Nitya Ramakrishnan and other learned counsel appearing on behalfBof the accused persons.

116. First, we examine whether the basic safeguards of section32 have been observed or not. Dy. SP, CBI on 18.6.2003 wrote a letterto the SP, ACB, Gandhi Nagar to the effect that accused Asghar Ali hasexpressed his willingness to make confessional statement voluntarily.The Superintendent of Police was requested to record his statementunder section 32 of POTA. After receiving the said communication, theSP, ACB, CBI has recorded that he directed the Dy. S.P. to produce theaccused person before him on 18.6.2003 at 7 p.m. after handing overcustody of the accused to some other officer. Following proceedingshad been recorded by the S.P. :

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“Today on 18.6.2003, I received a requisition from Dr. S.K.Gupta,Dy. S.P., CBI, SIC I, New Delhi, (Camp Gandhi Nagar), in CBIRC.5(S)/2003-SIU.I/SIC.I/CBI/New Delhi requesting me torecord the confessional statement of accused Asghar Ali underSection 32 of the Prevention of Terrorism Act, 2002 (POTA).Accordingly, I directed Dr. S.K. Gupta to produce accused beforeme on 18.6.2003 at 7.00 p.m. after handing over the custody tosome other officer.”

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117. On the accused Asghar Ali being produced before the S.P.,he has recorded the following proceedings:

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“ Proceedings under s. 32 of Prevention ofTerrorismAct, 2002.

Accused Asghar Ali, S/o Mohd. Wazir Ali, aged 27 years, R/oHouse No.8/3/113, Darusafa Colony, Nalgonda, Hyderabad, wastoday produced before me on 18[th] day of June, 2003 at around7.00 p.m. in the Chamber of S.P., CBI/ACB by ASI Shri IshwarChand Sharma, for recording his statement under Section 32 ofthe Prevention of Terrorism Act, 2002 (POTA) in connection withCase No. CBI RC.5(S)/2003-SIU.I/SIC.I/CBI/New Delhi(Jagdish Tiwari case).”

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118. After the ASI who produced him was asked to go out of theroom when he went away, only the S.P. and accused remained insidethe room. The S.P. had again put certain questions and apprised him allthe details of the case and also ascertained from him whether he wantedto make a confessional statement. Accused was told that he was notlegally bound to make such a statement. In case any such statementwas made, the same may be used as evidence against him. He was alsoasked whether he was under any fear, pressure or greed or was beaten,tortured physically and mentally by anyone. He agreed to give a statementand denied to be under any fear, pressure or greed or beaten up ortortured in any manner. He was told that he was not legally bound togive the confessional statement. The S.P. had also recorded a findingthat there was no physical injury, mark of violence on his person. TheS.P. ordered in writing for keeping the accused Mohd. Asghar Ali forthe purpose of his reflection in order to make up his mind whether heactually wanted to make a confessional statement or not and no one isallowed to meet him during the period of reflection. On 18.6.2003following questions were put :

“I asked ASI Ishwar Chand Sharma to go out of the room, and hewent away. Thereafter, only myself and the accused remainedinside the room.

I asked the following questions from the accused and the answersto the questions were given by the accused.

Q. Tell me your name, your father’s name, your age, and address?

A. My name is Asghar Ali, s/o Mohd. Wazir Ali, aged 28 years,R/o House No. 8/3/113, Darusafa Colony, Nalgonda, Hyderabad.

Q.What are your educational qualifications?

A. I am 10[th] fail.

Q. What is your occupation?

A. I was doing business of grocery and general stores.

Q. When you were arrested and for which crime?

A. I was arrested by the CBI in connection with the Jagdish Tiwaricase on 12.6.2003.

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AQ. Do you know that I am a Superintendent of Police?

A. Yes, I know that.

Q. Do you know why you have been produced before me?

A. Yes I know I have been produced before you for recording ofmy confessional statement.

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Q. Do you wish to confess to your crime?

A. Yes Sir.

Q. Do you know that you are not legally bound to five theconfessional statement, and if you give any such statement, itwould be used as evidence against you?

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A. I do not know anything about this. But you have explained meand therefore I have understood it now.

Q. Are you giving this confessional statement under any fear,pressure or greed?

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A. No. I am giving this statement voluntarily on my own.

Q. Have you been beaten or tortured physically and mentallyanyone?

A. No.

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. The answers to the above questions were given by accused onhis own volition and the questions and answers were read overand explained to accused and he admitted them to be correct andsigned the same.

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Sd/- Illegible

Mohd. Asghar Ali

Sd/- Illegible Vinayak P. Apte

Superintendent of Police CBI/ACB, Gandhi Nagar”

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119. On 21.6.2003 the accused was again told that he was notbound to give a confessional statement as mentioned above. Theproceedings recorded on 21.6.2003 by the S.P. are extracted hereunder:H

“At this time, I warned the accused that he is not legally bound togive the confessional statement and if he gives any such statement,it would be used as evidence against him.

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I examined the person of accused and found no apparent or visibleinjury on his person or any mark of violence.

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I ordered for keeping the accused Mohd. Asghar Ali alone for thepurpose of reflection in order to further make up his mind whetherhe actually wants to make his confessional statement or not. Ifurther instructed that no one be allowed to meet him during theperiod of reflection.

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Sd/- IllegibleMohd. Asghar Ali

Sd/- Illegible Vinayak P. Apte Superintendent of PoliceD CBI/ACB, Gandhi Nagar”

120. After 65 hours lapsed, after the accused was given warning,he was directed to be produced before the S.P. who has recorded thatduring his period of reflection, no person was allowed to meet him. Onceagain warning was given. He was asked why he wanted to give aconfessional statement. He was told the consequence of confessionalstatement once again that it could be used against him to which heanswered that he knew it very well. Following is the note prepared bythe S.P.:

“Now more than 65 hours have passed since accused was givenwarning and accused was directed to produced in the Chamberof SP/CBI/ACB, Gandhinagar. During the period of reflection,no person was allowed to meet or talk to him.

There is no other person in the Chamber of SP, CBI, ACB, GandhiNagar, except myself and the accused Mohd. Asghar Ali. Followingquestions are again put to him.

Q. What is the decision you have taken for giving the confessionalstatement during long duration of time since 18.6.2003?

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AA. I have decided to give my confessional statement.

Q. Why are you willing to give confessional statement?

A. Because I want to lessen my burden and I want to confess mycrime.

BQ. I am once again warning you that you are not legally bound togive the confessional statement and if you give any such statement,it would be used as evidence against you?

A. Yes, I know very well.

Sd/-Illegible

Mohd. Rauf.

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Sd/- Illegible

21.6.2003"

121. Thereafter his confessional statement had been recorded byDthe S.P. After recording the confessional statement, Asghar Ali has signedit. It has been mentioned that the confessional statement has been readover and explained to the accused. He has admitted it to be correct. TheS.P. has appended a bottom note to the statement that he has informedthe accused that he was not bound to give his confessional statement. Ifhe gives it, it could be used against him. He has given it voluntarily,Ewithout any fear or pressure and it has been recorded by him, read overto the accused. It has been heard, understood and admitted to be correctby the accused and confession has been recorded whatever has beengiven by the accused. Following is the relevant portion of the aforesaidproceedings:F“The above statement has been read over and explained to theaccused which has been admitted by him as correct.

Sd/- Asgar Ali.

Sd/- Vinayak. P. Apte

Supt. of Police CBI/ACB

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Gandhinagar

At this stage I informed the accused that he is not bound to givehis confessional statement. I also informed the accused that if hegives his confession statement the same would be used in evidenceagainst him. I have confidence that the accused gave his H

confession statement voluntarily and without any pressure, fearand voracity. The confession statement has been recorded by mepersonally and has been read over and over and explained to theaccused and the entire confession statement has been heard,understood and admitted to be correct by the accused. The sameconfession statement has been recorded whatever has been givenby the accused.

Sd/- 21.6.03

Vinayak P. Apte

Supt. Of Police CBI/ACB Gandhinagar

Accused Asghar Ali has been handed over to Dr. S.K. Gupta,Dy. S.P, SIC-I, CBI, New Delhi Camp Gandhi Nagar today on21.6.2003 at 3.00 PM.

Sd/-

21.6.03 Vinayak P.

Apte

Supt. Of Police CBI/ACB Gandhinagar”

In view of the aforesaid, it is apparent that the provisions of section32(1), (2) and (3) of POTA have been complied with.

122. On 21.6.2003 the accused was produced before the SpecialMagistrate for CBI, Ahmedabad. An application was also filed undersection 32(4) of the POTA for producing accused. It was mentionedthat the confessional statement has been made by the accused voluntarilywithout fear, threat or inducement while recorded by the SP, CBI, ACP.The Magistrate has asked the accused whether he was ill-treated ortortured by the CBI while in custody recording confessional statementto which he replied in the negative. He further stated that he hasvoluntarily made the confessional statement. On that, he was sent tojudicial custody till 4.7.2003.

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A123. It is pertinent to mention here that a similar process has beenfollowed while recording the confessional statement of accused personsby PW-21 under section 32 of POTA.

124. It is submitted that on the strength of a decision of this Courtin State (NCT of Delhi) v. Navjot Sandhu etc., (2005) 11 SCC 600B(hereinafter referred to as ‘the Parliament attack case”), POTA hasabsorbed into it the guidelines spelled out in Kartar Singh’s case (1994)3 SCC 569, and there is a conscious improvement over the TADA Act.Therefore, TADA is no guide to understanding the same with respect toconfirmation proceedings before the Magistrate. Following is the relevantportion:C

“156. As already noticed, POTA has absorbed into it the guidelinesspelt out in Kartar Singh v. State of Punjab, (1994) 3 SCC 569andD.K. Basu v. State of W.B., (1997) 1 SCC 416, in order to impartan element of fairness and reasonableness into the stringentprovisions of POTA in tune with the philosophy of Article 21 andDallied constitutional provisions. These salutary safeguards arecontained in Sections 32 and 52 of POTA. The peremptoryprescriptions embodied in Section 32 of POTA are:

(a) The police officer shall warn the accused that he is notbound to make the confession and if he does so, it may be usedEagainst him [vide sub-section (2)]. (b) The confession shall berecorded in an atmosphere free from threat or inducement andshall be in the same language in which the person makes it[vide sub-section (3)]. (c) The person from whom a confessionhas been recorded under sub-section (1) shall be producedFbefore the Chief Metropolitan Magistrate or Chief JudicialMagistrate along with the original statement of confession,within forty-eight hours [vide sub-section (4)]. (d) The CMM/CJM shall record the statement if any, made by the person soproduced and get his signature and if there is any complaint oftorture, such person shall be directed to be produced for medicalGexamination. After recording the statement and after medicalexamination, if necessary, he shall be sent to judicial custody[vide sub-section (5)].

The mandate of sub-sections (2) and (3) is not something new.Almost similar prescriptions were there under TADA also. In fact, H

the fulfilment of such mandate is inherent in the process ofrecording a confession by a statutory authority. What is necessarilyimplicit is, perhaps, made explicit. But the notable safeguards whichwere lacking in TADA are to be found in sub-sections (4) and(5).

157. The lofty purpose behind the mandate that the maker of theconfession shall be sent to judicial custody by the CJM beforewhom he is produced is to provide an atmosphere in which hewould feel free to make a complaint against the police if he sowishes. The feeling that he will be free from the shackles of policecustody after production in court will minimise, if not remove, thefear psychosis by which he may be gripped. The varioussafeguards enshrined in Section 32 are meant to be strictly observedas they relate to personal liberty of an individual. However, weadd a caveat here. The strict enforcement of the provision as tojudicial remand and the invalidation of the confession merely onthe ground of its non-compliance may present some practicaldifficulties at times. Situations may arise that even after theconfession is made by a person in custody, police custody maystill be required for the purpose of further investigation. Sending aperson to judicial custody at that stage may retard the investigation.Sometimes, the further steps to be taken by the investigator withthe help of the accused may brook no delay. An attempt shallhowever be made to harmonise this provision in Section 32(5)with the powers of investigation available to the police. At thesame time, it needs to be emphasised that the obligation to sendthe confession maker to judicial custody cannot be lightlydisregarded. Police custody cannot be given on the mere askingby the police. It shall be remembered that sending a person whohas made the confession to judicial custody after he is producedbefore the CJM is the normal rule and this procedural safeguardshould be given its due primacy. The CJM should be satisfied thatit is absolutely necessary that the confession maker shall berestored to police custody for any special reason. Such a courseof sending him back to police custody could only be done inexceptional cases after due application of mind. Most often, sendingsuch person to judicial custody in compliance with Section 32(5)soon after the proceedings are recorded by the CJM subject to A

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Athe consideration of the application by the police after a few daysmay not make material difference to the further investigation.The CJM has a duty to consider whether the application is only aruse to get back the person concerned to police custody in casehe disputes the confession or it is an application made bona fide inview of the need and urgency involved. We are therefore of theBview that the non-compliance with the judicial custody requirementdoes not per se vitiate the confession, though its non-complianceshould be one of the important factors that must be borne in mindin testing the confession.”

125. This Court has observed that safeguards have been providedCin various provisions made in section 32. Exclusive provisions have beenmade in section 32. The notable safeguards which were lacking in TADAare to be found in sub-sections (4) and (5). While interpreting the provisionsof section 32(5), this Court has observed that ordinarily the person shouldbe sent to judicial custody. In exceptional cases, police custody can beDgranted and not otherwise. Non-compliance with usual custodyrequirement does not per se vitiate the confession. In the instant case,the accused persons have been sent to judicial custody and the provisionsof section 32 have been complied with in pith and substance.

126. It was also submitted on behalf of accused persons theEstrength of the Parliament attack case that the Magistrate should haveread out the confession or at least gist of the same for compliance ofprovisions of section 32(5). The magistrate should also assure the accusedbeforehand that he can be sent to judicial custody and thereafter it is notenough that he ends up sending him to judicial custody. The statement ofthe accused is read over by the S.P. and if the same is admitted to beFcorrect, thereafter he had put his signatures. Section 32(4) requires thatthe person whose confession has been recorded to be produced beforethe Magistrate along with an ordinary statement of confession within 48hours. The Magistrate shall record the statement, if any, made by theperson so produced and get his signatures or thumb impression. If thereGis any complaint of torture then medical examination has to be orderedand thereafter he shall be sent to judicial custody.

127. When we read order sheets, it is apparent that the Magistratehas recorded the statement made by the accused and has obtained thesignatures. The Magistrate has clearly enquired whether he was ill-treated H

or tortured by the CBI while in custody, for recording a confessionalstatement to which he replied in the negative. The accused was askedwhat he wanted to say to which he responded that he made a voluntaryconfessional statement. Then he was remanded to judicial custody. Inview of the fact that the officer of the rank of S.P. has duly recordedthat he has read over the statement and the accused has admitted it tobe correct, as in due compliance with the provisions of section 32, so itwas not necessary for the Magistrate to read over the same again to theaccused, in view of clear language employed in section 32(4) and (5) theduties enjoined upon the Magistrate have been duly observed.

128. Learned counsel on behalf of the accused submitted that theMagistrate did not care to open the sealed envelope containing confessionsand did not read it out to the accused. In State of Maharashtra v.Bharat Chaganlal Raghani & Ors., (2001) 9 SCC 1, this Court hasobserved that there is no requirement of the opening of the sealedenvelope by the Magistrate containing the confession and to read it outto the accused. Following observations have been made by this Court:

“36. Sub-rule (5) of Rule 15 of the TADA Rules provides thatthe confession recorded under Section 15 of the TADA Act shallbe sent forthwith to the Chief Metropolitan Magistrate or the ChiefJudicial Magistrate having jurisdiction over the area in which suchconfession has been recorded and such Magistrate shall forwardthe record of confession so received to the Designated Courtwhich may take cognizance of the offence. Rule 15 does notoblige such Magistrate either to open the envelope containing theconfessional statement recorded by the police officer or to satisfyhimself regarding the voluntary nature of the confession. TheMagistrate, at the most, can record the statement of the accusedif made regarding alleged harassment, torture or the like. If theMagistrate, referred to in sub-rule (5) of Rule 15 has to ascertainthe voluntary nature of the confessional statement, the purpose ofSection 15 authorising a police officer to record the confessionalstatement shall stand frustrated. It was, therefore, not correct onthe part of the Designated Judge to hold, “it was obligatory on the part of the Magistrate to question theaccused as to whether they had made the said statementsvoluntarily or otherwise and that ought to have been formed as AB

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a part of the record of the confessional statements which weresent to her”.

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The Designated Judge has also erred in holding that the Magistratehad not discharged the duties which were cast on her properly.The observations:

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“Had she recorded a memorandum below the confessionalstatements that she had questioned the accused about theaverments in the said statements and she considered the saidconfessional statements to be voluntary and correct, then inthat event, the confessional statements would have inspiredthe confidence of the court to believe that they are free fromany of the influences. The Magistrate is not expected to takethe position of a superior postman in the sense, receive theconfessional statements and forward the same to the TADACourt by putting them in another envelope. The moment shereceives the confessional statements, it should occur to her asto why they are sent to her? What is she required to do withthem? Had the Magistrate been meticulous, it would haveoccurred to her that she is required to question the accused asto whether they have really confessed in the manner recordedin the statement and in that event, in normal course, she wouldnot have forgotten to make a memorandum below theconfessional statements. Her writing to this effect below theconfessional statements would have been of great assistanceto the cause of justice”

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are, therefore, uncalled for.”

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F129. The application which was filed by the prosecution beforeMagistrate was not for police remand but for sending him to judicialcustody. Thus, when the accused had been sent to judicial custody, itcannot be said that he was not aware that he was to be sent to judicialcustody. Since there was no complaint of any torture and S.P. had alsoGrecorded the fact that there was no complaint of torture or any mark ofinjury or violence on his body, he was sent to judicial custody.

130. The decision in Adambhai Sulemanbhai Ajmeri & Ors. v.State of Gujarat, (2014) 7 SCC 716 in which confessional statementwas made after 11 months and the accused was given only 15 minutes’time to reflect- whether they wanted to make confessional statement H

and thereafter it was recorded, and it appears that the record of thecase also did not reflect that it was read over. It does not appear that inthe said case it was read over by the Superintendent of Police. Be thatas it may. The requirement has been fulfilled in the instant case as theS.P. has read over and is so recorded, that he has read over and it wasadmitted to be correct and thereafter the accused has signed it. Theoriginal statements were recorded in the Hindi language which was knownto the accused persons in their own words.

131. Relying upon Nathu v. State of Uttar Pradesh, AIR 1956SC 56, learned counsel on behalf of accused persons submitted thatprolong police custody is sufficient to cast doubt out on the veracity ofthe confession. In the instant case, the confessions have been recordedfrom 4.6.2003 to 22.6.2003. In the instant case the accused were arrestedon different dates in May and June and some were taken into custodyfrom one case to another and then taken on police remand, and in thefacts and circumstances of the present case there was no such prolongedcustody so as to render the confessional statement doubtful in any manneronly due to the fact of police custody. The impact of police custodywould depend upon the facts of each case. What is the impact of policecustody on the confessional statement has to be considered also in viewof the fact whether the accused were given sufficient time to think overwhich was given in the instant case. They had legal assistance also asthey had communicated with advocates also after they were arrestedand then the S.P. explained in writing to them the consequences of makingsuch a statement. S.P. ensured that they were not under any fear orgreed etc. and that they were not tortured. Thereafter confessionalstatement had been made. Sufficient time for reflection had also beengiven. Thus, no benefit can be derived from the aforesaid decision.

132. Learned counsel appearing on behalf of A-1 has pointed outthat he remained in police custody from 17.4.2003 to 23.5.2003.Thereafter he was sent for judicial remand and again taken on policeremand on 12.6.2003. After his confession in another POTA case, A-1was remanded back to police custody from 16.5.2003 to 23.5.2003. Thus,A-1 had lost the confidence to speak out during his 10 minutes’ productionbefore the Magistrate and was not sure that he may be sent to policeremand again. In our opinion the submission is baseless. It cannot besaid to be prolonged police custody. When several accused persons areinvolved in various cases and an accused is found involved in a series of AB

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Acases, obviously, his police remand has to be taken in a particular case.That does not mean that he has been sent to police remand in someother cases would adversely affect the confession. What is envisaged isthat with respect to the same crime, he should not normally be subjectedto police remand once he makes a statement in the court with respect tohis confession as we see under section 32(4) and (5), he has to be sentBto judicial custody. That has been precisely followed. In the case, itcannot be said that he was subjected to prolonged police custody or hehad lost the confidence that he would not be sent to judicial custody.

133. Learned counsel on behalf of accused further submitted thatin view of the decision of this Court in Shivappa v. State of Karnataka,C(1995) 2 SCC 76, searching inquiry should be made by the Magistratebefore recording confessional statements. In the instant case, undersection 32 of POTA, since there is a departure and confession is madeto a senior police officer has been made admissible, the aforesaid decisionbased on section 164 Cr.P.C. is not attracted, even otherwise when weDapply the aforesaid test laid down with respect to section 164 Cr.P.C. asin Shivappa (supra), in our opinion the S.P. under section 32(1), (2) and(3) and the concerned Magistrate under subsections 4 and 5 of section32 have performed their duties effectively as per the law laid down bythis Court in the aforesaid decision in which this Court observed:

E“6. From the plain language of Section 164 CrPC and the rulesand guidelines framed by the High Court regarding the recordingof confessional statements of an accused under Section 164 CrPC,it is manifest that the said provisions emphasise an inquiry by theMagistrate to ascertain the voluntary nature of the confession.This inquiry appears to be the most significant and an importantFpart of the duty of the Magistrate recording the confessionalstatement of an accused under Section 164 CrPC. The failure ofthe Magistrate to put such questions from which he could ascertainthe voluntary nature of the confession detracts so materially fromthe evidentiary value of the confession of an accused that it wouldGnot be safe to act upon the same. Full and adequate compliancenot merely in form but in essence with the provisions of Section164 CrPC and the rules framed by the High Court is imperativeand its non-compliance goes to the root of the Magistrate’sjurisdiction to record the confession and renders the confessionunworthy of credence. Before proceeding to record theH

confessional statement, a searching enquiry must be made fromthe accused as to the custody from which he was produced andthe treatment he had been receiving in such custody in order toensure that there is no scope for doubt of any sort of extraneousinfluence proceeding from a source interested in the prosecutionstill lurking in the mind of an accused. In case the Magistratediscovers on such enquiry that there is ground for such suppositionhe should give the accused sufficient time for reflection before heis asked to make his statement and should assure himself thatduring the time of reflection, he is completely out of police influence.An accused should particularly be asked the reason why he wantsto make a statement which would surely go against his self-interestin course of the trial, even if he contrives subsequently to retractthe confession. Besides administering the caution, warningspecifically provided for in the first part of sub-section (2) of Section164 namely, that the accused is not bound to make a statementand that if he makes one it may be used against him as evidencein relation to his complicity in the offence at the trial, that is tofollow, he should also, in plain language, be assured of protectionfrom any sort of apprehended torture or pressure from suchextraneous agents as the police or the like in case he declines tomake a statement and be given the assurance that even if hedeclined to make the confession, he shall not be remanded topolice custody.”

134. The decision in Aloke Nath Dutta & Ors. v. State of WestBengal (2007) 12 SCC 230, relied on behalf of the accused is basedupon section 164 Cr.P.C. which is quite different in which the confessionis recorded by the Magistrate. Section 32 is a departure from the same.S.P. is authorised to remand and he has observed all the safeguards.Thus, the decision for the aforesaid reasons has no application.

135. On the strength of the Parliament attack case (supra), itwas submitted that on the twin test of confession and voluntariness oftruth. The confession must be corroborated in material particulars. It isinextricably linked with the truth of confession. This Court observed:

“36. Then we have the case of Shankaria v. State of Rajasthan,(1978) 3 SCC 435, decided by a three-Judge Bench. Sarkaria, J.,noted the twin tests to be applied to evaluate a confession: (1)

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whether the confession was perfectly voluntary, and (2) if so,whether it is true and trustworthy. The learned Judge pointed outthat if the first test is not satisfied the question of applying thesecond test does not arise. Then the Court indicated one broadmethod by which a confession can be evaluated. It was said:(SCC p. 443, para 23)

“The Court should carefully examine the confession andcompare it with the rest of the evidence, in the light of thesurrounding circumstances and probabilities of the case. If onsuch examination and comparison, the confession appears tobe a probable catalogue of events and naturally fits in with therest of the evidence and the surrounding circumstances, it maybe taken to have satisfied the second test.”

37. In Parmananda Pegu v. State of Assam, (2004) 7 SCC 779,this Court while adverting to the expression “corroboration ofmaterial particulars” used in Pyare Lal Bhargava v. State ofRajasthan, 1963 Supp. (1) SCR 689,clarified the position thus:(SCC p. 790, para 20)

“By the use of the expression ‘corroboration of materialparticulars’, the Court has not laid down any propositioncontrary to what has been clarified in Subramania Goundanv. State of Madras, 1958 SCR 428, as regards the extent ofcorroboration required. The above expression does not implythat there should be meticulous examination of the entirematerial particulars. It is enough that there is broad corroborationin conformity with the general trend of the confession, as pointedout in Subramania Goundan case.”

The analysis of the legal position in paras 18 and 19 is also worthnoting: (SCC p. 788)

“18. Having thus reached a finding as to the voluntary natureof a confession, the truth of the confession should then betested by the court. The fact that the confession has beenmade voluntarily, free from threat and inducement, can beregarded as presumptive evidence of its truth. Still, there maybe circumstances to indicate that the confession cannot betrue wholly or partly in which case it loses much of itsevidentiary value.

CENTRAL BUREAU OF INVESTIGATION v.MOHD. PARVEZ ABDUL KAYUUM [ARUN MISHRA, J.]

19. In order to be assured of the truth of confession, this Court,in a series of decisions, has evolved a rule of prudence that thecourt should look to corroboration from other evidence.However, there need not be corroboration in respect of eachand every material particular. Broadly, there should becorroboration so that the confession taken as a whole fits intothe facts proved by other evidence. In substance, the courtshould have assurance from all angles that the retractedconfession was, in fact, voluntary and it must have been true.””

136. There is no dispute with the aforesaid proposition. However,it would depend upon the nature of the case and the facts andcircumstances and evidence in each case whether the confessionalstatement is truthful and is corroborated. That has to be seen in eachcase. In Parliament attack case (supra) certain observations have beenmade with respect to section 52(2) of POTA Act which specificallyprovided that the person arrested shall be informed of his right to consulta legal practitioner as soon as he is brought to the Police Station. Section52(3) provides that information of his arrest shall be given immediatelyto a family member or a relative. Section 52(4) says that the personarrested shall be permitted to meet the legal practitioner representinghim during the course of interrogation of the accused person. In thiscontext the observations have been made by this Court in Parliamentattack case:

“182. Parliament advisedly introduced a Miranda v. Arizona,384 US 436, ordained safeguard which was substantially reiteratedin Nandini Satpathyv. P.L. Dani, (1978) 2 SCC 424, by expresslyenacting in sub-sections (2) and (4) of Section 52 the obligation toinform the arrestee of his right to consult a lawyer and to permithim to meet the lawyer. The avowed object of such prescriptionwas to introduce an element of a fair and humane approach to theprisoner in an otherwise stringent law with drastic consequencesto the accused. These provisions are not to be treated as emptyformalities. It cannot be said that the violation of these obligationsunder sub-sections (2) and (4) have no relation and impact on theconfession. It is too much to expect that a person in custody inconnection with the POTA offences is supposed to know thefasciculus of the provisions of POTA regarding the confessionsand the procedural safeguards available to him. The presumption AB

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should be otherwise. The lawyer’s presence and advice, apartfrom providing psychological support to the arrestee, would helphim understand the implications of making a confessional statementbefore the police officer and also enable him to become aware ofother rights such as the right to remain in judicial custody afterbeing produced before the Magistrate. The very fact that he willnot be under the fetters of police custody after he is producedbefore the CJM pursuant to Section 32(4) would make him feelfree to represent to the CJM about the police conduct or thetreatment meted out to him. The haunting fear of again landinghimself into police custody soon after appearance before the CJMwould be an inhibiting factor against speaking anything adverse tothe police. That is the reason why the judicial custody provisionhas been introduced in sub-section (5) of Section 32. The sameobjective seems to be at the back of sub-section (3) of Section164 CrPC, though the situation contemplated therein is somewhatdifferent.

183. The breach of the obligation of another provision, namely,sub-section (3) of Section 52 which is modelled on D.K. Basu(supra) guidelines has compounded the difficulty in acting on theconfession. Section 52(3) enjoins that the information of arrestshall be immediately communicated by the police officer to a familymember or in his absence, to a relative of such person by telegram,telephone or by any other means and this fact shall be recordedby the police officer under the signature of the person arrested.PW 80 the IO under POTA merely stated that “near relatives ofthe accused were informed about their arrest as I learnt from therecord”. He was not aware whether any record was prepared bythe police officer arresting the accused as regards the informationgiven to the relatives. It is the prosecution case that Afzal’s relativeby the name of Mohd. Ghulam Bohra of Baramula was informedthrough phone. No witness had spoken to this effect. A perusal ofthe arrest memo indicates that the name of Ghulam Bohra and hisphone number are noted as against the column “relatives to beinformed”. Afzal’s arrest memo seems to have been attested byGilani’s brother who according to the prosecution, was present atthe police cell. But, that does not amount to compliance with sub-section (3) because he is neither family member nor relation, noreven known to be a close friend. We are pointing out this lapse for the reason that if the relations had been informed, there wasevery possibility of those persons arranging a meeting with thelawyer or otherwise seeking legal advice.”

137. It is not the case of the accused that they were not given theright to consult legal practitioner when they were interrogated after arrestby the police under section 52 of the Act. Section 52 of the POTA Act isextracted hereunder:

“52. Arrest.—(1) Where a police officer arrests a person, heshall prepare a custody memo of the person arrested.

(2) The person arrested shall be informed of his right to consult alegal practitioner as soon as he is brought to the police station.

(3) Whenever any person is arrested, information of his arrestshall be immediately communicated by the police officer to a familymember or in his absence to a relative of such person by telegram,telephone or by any other means and this fact shall be recordedby the police officer under the signature of the person arrested.

(4) The person arrested shall be permitted to meet the legalpractitioner representing him during the course of interrogation ofthe accused person:

Provided that nothing in this subsection shall entitle the legalpractitioner to remain present throughout the period ofinterrogation.”

The observations made by this Court in Parliament attack casecarry the case no further as the accused were having the legal assistanceafter their arrest and they were never deprived of the same, and it is nottheir case they had asked for lawyer’s assistance during the period ofreflection before confessing and they were denied the same.

138. In the Parliament Attack case, the observation has been madeby this Court in the light of the submission that the confession cannot betruly judged from the standpoint of probabilities and natural course ofhuman conduct, though this Court has commented that they were plausibleand persuasive.

139. The learned counsel appearing on behalf of accused hassubmitted that confession of a co-accused made under Section 32 ofPOTA is not admissible against anyone other than the maker. Reliance A

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Ahas been placed on the Parliament Attack case, wherein this Court hasobserved thus:

“49. Now, let us examine the question whether Section 32(1) ofPOTA takes within its sweep the confession of a co-accused.Section 32(1) of POTA which makes the confession made to ahigh-ranking police officer admissible in the trial does not sayanything explicitly about the use of confession made by a co-accused. The words in the concluding portion of Section 32(1)are:

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“shall be admissible in the trial of such person for an offenceunder this Act or the rules made thereunder.”

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It is, however, the contention of the learned Senior Counsel ShriGopal Subramanium that Section 32(1) can be so construed as toinclude the admissibility of confessions of the co-accused as well.The omission of the words in POTA “or co-accused, abettor orconspirator” following the expression “in the trial of such person”which are the words contained in Section 15(1) of TADA doesnot make a material difference, according to him. It is hissubmission that the words “co-accused”, etc. were included bythe 1993 Amendment of TADA by way of abundant caution andnot because the unamended section of TADA did not cover theconfession of the co-accused. According to the learned SeniorCounsel, the phrase “shall be admissible in the trial of such person”does not restrict the admissibility only against the maker of theconfession. It extends to all those who are being tried jointly alongwith the maker of the confession provided they are also affectedby the confession. The learned Senior Counsel highlights the crucialwords “in the trial of such person” and argues that the confessionwould not merely be admissible against the maker but would beadmissible in the trial of the maker which may be a trial jointlywith the other accused persons. Our attention has been drawn tothe provisions of CrPC and POTA providing for a joint trial inwhich the accused could be tried not only for the offences underPOTA but also for the offences under IPC. We find no difficultyin accepting the proposition that there could be a joint trial and theexpression “the trial of such person” may encompass a trial inwhich the accused who made the confession is tried jointly with D

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the other accused. From that, does it follow that the confessionmade by one accused is equally admissible against others, in theabsence of specific words? The answer, in our view, should be inthe negative. On a plain reading of Section 32(1), the confessionmade by an accused before a police officer shall be admissibleagainst the maker of the confession in the course of his trial. Itmay be a joint trial along with some other accused; but, we cannotstretch the language of the section so as to bring the confessionof the co-accused within the fold of admissibility. Such stretchingof the language of law is not at all warranted especially in thecase of a law which visits a person with serious penal consequences[vide the observations of Ahmadi, J. (as he then was) in NiranjanSinghKaram Singh Punjabi v.Jitendra Bhimraj Bijjaya,(1990)4 SCC 76, SCC at p. 86, which were cited with approval in KartarSingh case. We would expect a more explicit and transparentwording to be employed in the section to rope in the confession ofthe co-accused within the net of admissibility on a par with theconfession of the maker. An evidentiary rule of such importanceand grave consequence to the accused could not have beenconveyed in a deficient language. It seems to us that a consciousdeparture was made by the framers of POTA on a considerationof the pros and cons, by dropping the words “co-accused”, etc.These specific words consciously added to Section 15(1) by the1993 Amendment of TADA so as to cover the confessions of theco-accused would not have escaped the notice of Parliament whenPOTA was enacted. Apparently, Parliament in its wisdom wouldhave thought that the law relating to confession of the co-accusedunder the ordinary law of evidence, should be allowed to have itssway, taking a cue from the observations in Kartar Singh caseat para 255. The confession recorded by the police officer was,therefore, allowed to be used against the maker of the confessionwithout going further and transposing the legal position that wasobtained under TADA. We cannot countenance the contentionthat the words “co-accused”, etc. were added in Section 15(1) ofTADA, ex majore cautela.

50. We are, therefore, of the view that having regard to all theseweighty considerations, the confession of a co-accused ought notto be brought within the sweep of Section 32(1). As a corollary, it AB

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558SUPREME COURT REPORTS

Afollows that the confessions of the first and second accused inthis case recorded by the police officer under Section 32(1), areof no avail against the co-accused or against each other. We alsoagree with the High Court that such confessions cannot be takeninto consideration by the Court under Section 30 of the EvidenceAct. The reason is that the confession made to a police officer orBthe confession made while a person is in police custody, cannotbe proved against such person, not to speak of the co-accused, inview of the mandate of Sections 25 and 26 of the Evidence Act.If there is a confession which qualifies for proof in accordancewith the provisions of the Evidence Act, then, of course, the saidCconfession could be considered against the co-accused facing trialunder POTA. But, that is not the case here.”

This Court has merely laid down that confession of accused is notadmissible as against co-accused person and when TADA makes theconfession against co-accused admissible, it could not be said that theDwords co-accused were added in Section 15(1) of TADA, ex majorecautela. Through the expression, they were admissible against theaccused has not been used in Section 32 of POTA. It is relevant andadmissible against the maker of it.

140. On the other hand, learned Solicitor General has relied uponEthe decision in Kehar Singh v. State (Delhi Administration), (1988) 3SCC 609, wherein this Court observed as under:

“278. From an analysis of the section, it will be seen that Section10 will come into play only when the court is satisfied that there isreasonable ground to believe that two or more persons haveFconspired together to commit an offence. There should be, in otherwords, a prima facie evidence that the person was a party to theconspiracy before his acts can be used against his co-conspirator.Once such prima facie evidence exists, anything said, done orwritten by one of the conspirators in reference to the commonintention, after the said intention was first entertained, is relevantGagainst the others. It is relevant not only for the purpose of provingthe existence of conspiracy but also for proving that the otherperson was a party to it. It is true that the observations of SubbaRao, J., in Sardar Sardul Singh Caveeshar v. State ofMaharashtra, (1964) 2 SCR 378 lend support to the contention H

that the admissibility of evidence as between co-conspirators wouldbe (sic more) liberal than in English law. The learned Judge said:(SCR p. 390)

“The evidentiary value of the said acts is limited by twocircumstances, namely, that the acts shall be in reference totheir common intention and in respect of a period after suchintention was entertained by any one of them. The expression‘in reference to their common intention’ is very comprehensiveand it appears to have been designedly used to give it a widerscope than the words ‘in furtherance of’ in the English law;with the result, anything said, done or written by a co-conspirator, after the conspiracy was formed, will be evidenceagainst the other before he entered the field of conspiracy orafter he left it.””

141. In our opinion, there was no violation of safeguards providedunder the provisions of section 32(5) vis a vis any accused person. Theconfessions cannot be said to be inadmissible. The provisions of section32 have been duly complied with.

142. It was also submitted on behalf of accused persons thatrecording of confessions was flawed. The accused were placed inseclusion and they were not informed of the time at which they wouldbe summoned. PW-21 has admitted that none of them called him in-between. In our opinion, the time of reflection was granted which wasadequate in this case and after giving an opportunity to accused whetherthey wanted to make a confession after being told that it may be usedagainst them, it was the case of observance of the aforesaid principleand it is not the case that the accused had asked for legal assistanceduring that period and were deprived of it. The legal aspect of the effectof confession had been duly informed to the accused persons beforehandin writing so many words, and adequate time was given for reflection soas to consider the consequence of making a confession. Nothing morecould have been advised by a lawyer. Thus, by not volunteering to provideaid of lawyer in view of the fact that the case, where it was not askedfor during the time of reflection, even on the assumption that it wasnecessary, no prejudice can be said to have been caused to any of theaccused persons as they were given enough time for reflection, whetherthey wanted to make confession as it could be used against them. Thus, AB

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Athere was no breach of any of the constitutional rights flowing fromArticles 21, 22(3) and 20(3) of the Constitution of India. As alreadymentioned that they were assisted by lawyers also in the main casewhen remand etc. was sought. The submission that PW-21 has statedthat police custody has no relevance upon the voluntary nature ofconfession, which is as per counsel is against the settled jurisprudence,Bis also untenable for the reason that section 32 makes a voluntaryconfession to a police officer admissible.

143. It was also submitted on behalf of accused persons that theuse of words like “suraksha”, “prabandh”, “poorva” ‘netritva’ ‘anusar’‘hatya’ “sampark”, etc., which are highly Sanskritised words would neverCoccur spontaneously to a Muslim of A-1’s background from the Deccan/Hyderabad region. “Spontaneously to a Muslim like the background ofA-1 who hails from Hyderabad”, and to other accused persons, thesubmission is not tenable. It would depend on several factors. Firstly, theaforesaid words cannot be said to be Sanskritised. Secondly, it wouldDdepend upon the educational background of a Muslim in which he hasbeen brought up. Merely by the fact that A-1 happens to be a Muslim, itcannot be said that he would not know these words, particularly when itwould depend upon his own education and the family background inwhich he has been brought up. There are highly cultured and literaryfamilies found in Muslims also who know several languages not onlyEUrdu and are known for their Tehzeeb. Thus the criticism made of theconfessional statement due to use of the aforesaid words that they couldnot have been employed by A-1 or by other accused persons is not onlyunwarranted but also unacceptable and the same is liable to be and ishereby rejected.F144. In the confessional statement accused have referred to mobilenumbers cannot be said to be rendering it unreliable. It is not uncommonto remember mobile numbers and to narrate them.

145. It was also submitted to discredit recording of the confessionsby PW-21 that it was not humanly possible to record confessionsGcontinuously for 37 hours. Considering the chart which has been indicatedis not for 39 hours as submitted. It was submitted on behalf of theprosecution that the time taken by PW-21 is not precise and the samehas been calculated on the basis of the reflection time given to theaccused. PW-21 in this regard has stated thus:

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“227. Exh. 228 and Ex. 229 had concluded just 4 hours before.

A. It is true on seeing a record that accused Rehan statementwas completed at 11.25 PM on 6.6.2003 whereas what I can seefrom the record (E. 232) that more than 16 hours have passedand therefore it cannot be said that recording of theconfessional statement of accused Parvez had commencedexactly at 4 a.m.”

The submission is based upon incorrect calculation and standsexplained by the deposition of PW-21. The period of total recording is 20to 22 hours and not 39 hours as attributed.

146. The argument was raised that when accused asked for aglass of water, this renders the confessional statement unworthy ofcredence. A police officer is not supposed to remember all these aspectsand tell about them for several years and statements cannot be discreditedon the ground whether the accused had asked for water or not.

147. It was also urged that Mohmed Parvez was produced at theCivil Hospital at the time when the statement was recorded, renders theconfessional statement unreliable. No such question during his cross-examination has been put to PW-21 as to the presence of Parvez Sheikh,A-9, in hospital at 10 a.m. A-9 was required to be produced before theMagistrate on 9.6.2003 i.e. within 48 hours as required under section 32of POTA. Neither he stated so in the written retraction of confessionalstatement that he was at the time in the hospital when the confessionalstatement is said to have been recorded. It was necessary to discreditthe recording of confession by PW-21 to put it in the cross-examinationand to seek his explanation. Cross-examination is not a matter ofprocedure but a matter of substance as held in Maroti Bansi Teli v.Badhabai w/o Tukaram Kunbi, AIR 1945 Nagpur 60, Karnidan Sardav. Sailaja Kanta Mitra, AIR 1940 Patna 683, A.E.G. Carapiet v. A.Y.Derderian, AIR 61 Cal. 359, and Jai Shankar Prasad vs. State of Bihar,AIR 1963 SC 1906.

148. With respect to retraction of the confessions by all the accusedpersons on the same day after a month, it is apparent from the reasonsrecorded by the court that they have given different reasons for retraction.The court has individually heard each and every accused. A-1 has statedthat his signatures had been obtained on the blank papers. A-2 has stated A

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Athat was a fact that under fear of encounter, he has given the statement.A-2 says that confession has been forcibly obtained. A-4 says that hewas forced to make the confession. Similar is the statement of A-5. A-6 says that he has not given any confessional statement, his signatureshave been obtained. A-7 says that by hook or crook, he was asked tomake this confession and was forced to make it. A-8 says that he wasBforced to make a confession. When he refused to sign, blinds wereapplied for 2 days. A-9 says that confession is forcible, he was compelledto sign. He signed the written confession. A-12 says that his confessionwas forcible and was obtained under threat. A-13 also made a similarstatement. Thus, it is apparent that the accused persons have not retractedCtheir confession at first opportunity when they were produced. Reasonsbehind retraction also do not inspire confidence. The details with whichthe confessional statements have been recorded after the observanceof due safeguards and other corroborative evidence on record areindicative of the fact that reasons for retraction, as stated, are not correct.There is no allegation that they were tortured by the police. In the absenceDof the same, it does not inspire confidence that they have signed onblank papers, etc. There was a general statement that they were underfear made by some of the accused persons. The fact remains that thestatements have been recorded by the S.P., a high ranking officer asenvisaged under section 32 which cannot be lightly discredited in theEfacts and circumstances of the case.149. In Mohmed Amin & Anr. v. Central Bureau of Investigation,2008 (15) SCC 49 this Court observed:

“69. If the confessions of the appellants are scrutinised in the lightof the above-enumerated factors, it becomes clear that theFallegations made by them regarding coercion, threat, torture, etc.after more than one year of recording of confessions are anafterthought and products of the ingenuity of their advocates. Thestatements made by them under Section 313 CrPC were also theresult of afterthought because no tangible reason has been putGforward by the defence as to why Appellants A-4 to A-8 did notretract from their confessions when they were produced beforethe Magistrate at Ahmedabad and thereafter despite the fact thatthey had access to legal assistance in more than one way.Therefore, we hold that the trial court did not commit any error byrelying upon the confessions of Appellants A-4 to A-8 and A-10H

and we do not find any valid ground to discard the confessions ofAppellants A-4 to A-8 and A-10.”

Since there was no mal-treatment, no manifest complaint of torture,confession appears to be voluntary and all the accused persons weresent to judicial custody. Subsequent retraction of confession is of noconsequence, the same is an afterthought.

150. It was urged by learned Additional Solicitor General appearingon behalf of CBI that A-4 and A-5 stand convicted in tiffin bomb casedated 29.5.2002 in which tiffin bombs were planted in buses going towardsHindu localities and the trial court has also convicted A-1 along with A-3 in conspiracy with other accused persons under section 307 read withsection 120B IPC and section 3(3) of POTA Act. Same forms part ofthe chain of criminal conspiracy to create terror in the community ofHindus which has led to the murder of Haren Pandya. The associatedcase also provides a link and part of the conspiracy to finish the Hinduleaders and to take revenge of post-Godhra incidents. PW-39 has alsoidentified accused A-1 and A-3 in the TIP proceeding before the ExecutiveMagistrate, PW-14 on 6.6.2003. We have to examine the submissions inlight of the evidence that has been adduced with respect to the murderof Haren Pandya.

CONFESSION AND CORROBORATION

151. Since the decision was based on TADA, Section 120A ofIndian Penal Code and Section 10 of Evidence Act, it is the decision inParliament Attack case which has to provide a guide as it was on theprovision of Section 32 of POTA. It is contended by C.B.I. thatconfession of all the accused recorded under Section 32 of POTA arevoluntary and thus can be relied upon. The confessions have been provedby Vinayak Prabhakar Apte, SP CBI (PW-21).

IN RE: CONFESSION OFA-1 (MOHMED ASGAR ALI)

152. It was confessed by A-1 (Mohmed Asgar Ali) that he wasasked by co-accused Abdul Rauf to get prepared for training at Pakistanwith other boys. He was given Rs.20,000/- by Abdul Rauf and theywent to Calcutta from Hyderabad. One Parvez from Calcutta promisedto take them to Bangladesh. For about 1 ½ month, they were inBangladesh and he was in constant touch with A-2 (Mohmed AbdulRaouf). He was given the name of Afdan during his stay at Dhaka, A

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ABangladesh. In the camp, they were trained in firearms like a pistol,gun, LMG, grenades, etc. for about a month. He also confessed that hespoke to Suleman before proceeding to Karachi for training, who wasaggrieved by the atrocities committed on Muslim. He was asked to goto Udaipur by Rasul party where he would be picked up for Ahmedabadto avenge atrocity and as being native of Hyderabad, nobody would beBable to recognize him at Ahmedabad and the terror could be createdamongst the Hindus.

153. It was further confessed that in December 2002, he reachedUdaipur and stayed at Musafirkhana in the name of Afdan Yusuf from31.12.2002 to 5.1.2003. It was confessed by A-1 (Mohmed Asgar Ali)Cthat he had received an email from Rasul Khan Party in which he wasgiven the address and phone number of Usman who lived in Udaipur.After his return from Udaipur to Hyderabad, he took Rs.2,000 – Rs.3,000/- from A-2 (Mohmed Abdul Rauf). He also received one message onhis email that one Sohail Khan would come to Udaipur to take him toDAhmedabad. On 22.1.2003, Sohail Khan, Salim Pasha and Haji Farukwent to Udaipur in Tata Indica Car and they left for Ahmedabad in themorning. He first went to the residence of Haji Faruk and thereafter toSohail Khan’s place from where he was taken to Lokhandwali Chawl,Bapunagar. He contacted A-3 (Mohmed Shafiuddin) and gave theaddress of Musafirkhana and also called him to Ahmedabad. He wasEprovided with the mobile number of Sohail Khan i.e., [REDACTED] andalso intimated Sohail Khan about this friend. He went along with SohailKhan and Parvez and brought Shafi to Hotel Garden near AhmedabadRailway Station. Thereafter, A-1 and Shafi were taken to M.B. Flatsand from there to Royal Apartment to Sundaramnagar. He was given aFmobile phone with SIM card no.[REDACTED] and also one Suzuki Samuraimotorcycle. He was in touch with Suleman (Rasul Party) through ModernCyber Café. In March 2003, A-10 and A-11 went to meet him. SohailKhan name BJP Leader Jagdish Tiwari to be their first target as he ledthe mob during the riots. Parvez showed him the shop of Jagdish Tiwari.G153(a).On 9.3.2003, A-1 (Mohmed Asgar Ali) and A-3(Mohmed Shafiuddin) went to the place of Jagdish Tiwari to target him,but Jagdish Tiwari did not pass through the said route. On 10.3.2003,they followed Jagdish Tiwari, but they could not kill Jagdish Tiwari. Theyaccordingly informed Sohail Khan and it was decided to kill JagdishTiwari at his medical store. On 11.3.2003, Shafiuddin asked for medicineH

and while Jagdish Tiwari bent for taking out the medicine, A-1 (MohmedAsgar Ali) fired on him and the bullet went straight into his stomach. Healso fired a second shot, but the bullet could not come out. JagdishTiwari hides behind the refrigerator. He immediately called up SohailKhan on his mobile no.[REDACTED], but he could not be contacted, so heinformed Parvez on his mobile no.[REDACTED] about the incident andasked him to inform Sohail Khan also. Thereafter, they changed theirshirts at Sohail Khan’s home and were unhappy with the weapon andwanted to return him. A-11 and A-10 left them at Royal Apartment.

153(b). On 17/18.3.2003, Sohail Khan named Haren Pandya astheir next target. Mufti Sufiyan gave the order for his killing. SohailKhan told him that Haren Pandya used to go for a morning walk at LawGarden and he could be killed there.

153(c).On 23.3.2003, Sohail Khan took him to Law Gardenand Yunus and Parvez met them. On that day, Haren Pandya did notcome to Law Garden. On 24.3.2003, he went to Jumma Masjid andwhere he met Anas, Rehan, and Goru. On 25.3.2003, he was givenblack colored loaded revolver with six bullets by Anas in the toilet ofJaliwali Masjid. Goru took him to Law Garden. He walked with HarenPandya, but upon seeing a man in uniform, he decided not to kill HarenPandya inside the garden and dropped the plan of killing him and cameback to Shahpur with Goru. The weapon was returned to AnasMachiswala and Shahnavaz asked him to accomplish the task the nextday.

153(d).Next day inside the Jaliwali Masjid, he was given loadedrevolver by Anas Machinswala. It was confessed that Haren Pandyacame in Maruti Fronti car at the place and parked the car at his regularplace. He also confessed that he fired five bullets on Haren Pandyafrom the window of the driver seat and fled away on Yunus’ motorbike.They went to Shahpur Mill Compound and he called up Sohail Khan andinformed him that work is accomplished. He was piloted by Rehan andSohail Khan and Anas Machiswala were waiting in the auto rickshaw.Five empty cartridges were handed over to Anas Machiswala and keptthe pistol of Yunus with him to guard himself. He then went to the RoyalApartment and stayed there for three days. Due to safety purpose,Sohail Khan asked him to vacate Royal Apartment. His task wasappreciated by Anas Machiswala, Sohail Khan, and Mufti Sufiyan. Hewas asked to stay at Sikandar’s place at Kanodar village, but he refused AB

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153(e).Next day Sohail Khan called A-1 (Mohmed Asgar Ali)near Juhapura, Afzal Masjid. He received a call from Mohd. Ayub whowas called at the hotel. His stay arrangement was made at Silver FlatBNo.2, where Dr. Harun used to stay and A-1 (Mohmed Asgar Ali) alsostayed there for about a week. He continued to chat with his friends atCyber Space Café at Afzal Mosque. It is stated that he was extremelyannoyed with the maltreatment meted out to him after killing HarenPandya, on writing to Rauf, he urged him that he should intimate Sulemanat Pakistan that fact but the next day he did not receive any messageCand therefore, the next day he chose to go to Hyderabad. On 7.4.2003when Ayub brought food for him, he requested him to drop him at RailwayStation, got the ticket for himself for Mumbai. He himself was veryperplexed and perspiring and told Ayub the true story and Ayub wasextremely scared. At Hyderabad, he went to Iftikhar’s place and metDRauf there and requested him to take him to Pakistan after talking toSuleman. They were asked to wait, but since he was scared, he wasplanning to go to Bangladesh on his own. Rauf also told him that HajiFaruk and Parvez had reached Hyderabad hiding from Police. On hisway to Calcutta and Bangladesh from Hyderabad, the police caughthim. The confession was signed by him.E

154. It was urged that confession of A-1 (Mohmed Asgar Ali)lacks corroboration in material particulars. A-1 (Mohmed Asgar Ali) inhis confession stated that he was standing at the spot from before. Similaris the statement of PW-55. A-1’s confession does not mention thepresence of an eye-witness. PW-55 claims to have shouted out at him.FConfession of accused A-1 (Mohmed Asgar Ali) does not refer to rollingup of the window but speaks of Haren Pandya drinking water at thetime of shooting. “Jaise use Gadi khadi karke pani peene ke liye botal kadhakkan khola main gadi ki taraf ghooma aur driver ki taraf se thodakhule sheeshe se Haren Pandya par panch fire kiye.” In our opinion, theGnon-recovery of a water bottle from the car is not at all material as it hadnothing to do with the offence in question. Every material found in thecar was not required to be seized. The witness PW-55 has also said thatHaren Pandya drank water from the bottle. There is no contradiction assought to be made out on behalf of the learned counsel appearing for A-1.H

155. Confession of A-1 (Mohmed Asgar Ali) has been supportedby various other evidence on the record like phone calls, recovery of theweapon, vehicle, hiring of rooms, etc. It was submitted that conduct ofA-1 (Mohmed Asgar Ali) as stated in the confession does not inspireconfidence. There is no conceivable reason for preserving cartridge caseand weapons and spending time which must be precious to a murdererfor escaping from the spot. It was not reasonable for the accused topreserve empty cartridges. There was the possibility of their recoveryfrom the place of occurrence. In case he had thrown them at the placeof occurrence, as such, in our opinion, it was not unusual for accused A-1 to carry them and he wanted to run away from the spot also as suchhe did not waste time in throwing them on spot and leave the evidence.

156. On behalf of accused A-1 (Mohmed Asgar Ali), it wassubmitted that CBI case is that A-9 had called A-7 at 7.18 a.m. on26.3.2003 to say that A-1 has not arrived at Law Garden. At 7.33 a.m.,A-1 had called A-14 from some kilometers away from Law Gardenafter the murder. At 8.17 a.m., A-1 again called A-14 from some 15-17km. away. It was further submitted that there is no evidence to showthat these were phones used by A-7 and A-9 or A-1 or to show thenature of the conversation save the confessions. Even the cell locationof one of those numbers is missing. It was also submitted that takingthis theory at face value it means that A-1 did not reach the spot before7.19 a.m. Also, he must necessarily have left the spot before 7.29 a.m.because it would take 4-5 minutes to reach the spot from which the callat 7.33 a.m. was made. The time band for the murder is thus between7.19 a.m. and 7.28 a.m. at the outer limit going by CBI case, it is evenless if the confession is taken into account for that says that A-1 wanteda few minutes before Mr. Pandya arrived.

157. After the incident, A-1 (Mohmed Asghar Ali) called A-14Sohail’s Mobile No.[REDACTED] from His Mobile No.[REDACTED] at7.33.27 a.m. and at 8.17 a.m., the location of these mobile phone confirmsthe presence of A-1 Asghar Ali at Law Garden area. These facts havebeen proved by Exh. 467 (CDR of [REDACTED]) and also by Ex. 775.PW 33 Hemant Kumar Ratilal Patel, Asstt. Divisional Engineer, VastrapurTelephone Exchange, proved the location of mobile number used by theaccused persons on the basis of tower location. Trial Court has dealtwith this aspect elaborately.

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A158. On 25.3.2003 there was an abandoned/aborted attempt tomurder Haren Pandya. CDR and call records indicate the presence ofA-1 (Mohmed Asgar Ali) in the area of Law Garden on the said date.On 26.3.2003 after the incident, the call was made to mobile of Sohailand it was said that the work was done. CBI call records support thesame.B

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159. In our opinion, it makes hardly any difference of one or twominutes when it is possible to travel the distance from where the callswere made by A-1 to A-14 in a few minutes and from distance of 15 to17 km. calls in 45 minutes. Cell phone location also supports the ocularversion and lends credence to the fact that murder had taken at theplace near Law Garden. In addition, for tracking A-1 (Mohmed AsgarAli), a landline at Nalgonda was used. It was proved that A-1 usedphone No.[REDACTED]. In the confession also, the number has beenstated. Even on the next date of the incident, the phone was used by A-1, stands established by the prosecution.

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160. There is corroborative evidence of confession with respectto A-1 (Mohmed Asgar Ali), Shooter. He fired at Jagdish Tiwari andmurdered Haren Pandya as stated in his confession in December 2002after return from Pakistan. He reached Udaipur and stayed at MuslimMusafirkhana, which is corroborated by the deposition of MohammedJamil Nasir Mohammed, Manager, Muslim Musafirkhana (PW-30)(Exhibit 297) and has also produced guest register (Exhibit 298). Entryno. 5846 (Exhibit 298) was made in respect of stay of A-1 (MohmedAsgar Ali) from 31.12.2002 to 5.1.2003, which was signed by A-1(Mohmed Asgar Ali).

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F161. He also received a message from A-18 through email toreach Udaipur and contact Usman Khan Nawab Khan (PW-29). Thesame had been corroborated by Usman Khan Nawab Khan (PW-29) inhis deposition. A-1 (Mohmed Asgar Ali) reached Udaipur on 20.1.2003and stayed at Muslim Musafirkhana for a day. Entry no.8682 (Exhibit299) was made in the visitor register regarding his stay. Thereafter, heGstayed with Usman Khan Nawab Khan (PW-29) at his house for 2-3days and went to Chetak Circle and used a computer in the computercentre. It had been corroborated by Usman Khan Nawab Khan (PW-29) in his deposition. He also procured a stolen bike of Hero Honda, thisfact had been corroborated by PW-57 (hostile witness) in this deposition.

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He met Salim Pasha and on 23.1.2003, A-3 (Mohmed Shafiuddin) reachedUdaipur and stayed at Muslim Musafirkhana for a day. This fact hadbeen corroborated by Dr. Mohmed Aizaz Ali, Principal Scientific Officer(Document) CFSL, New Delhi vide report (Exhibit 524) and he had alsogiven a positive opinion with respect to Entry No.8699 (Exhibit 300)made in the visitor register for a stay of A-3 (Mohmed Shafiuddin).After reaching Ahmedabad, A-1 (Mohmed Asgar Ali) wasaccommodated in a room at Lokhandwalichali, Bapunagar owned byMushtaq Ahmad Munir (PW-63), which had been proved by MushtaqAhmad Munir (PW-63) in his deposition (Exhibit 652). He had alsoconfessed that after firing on Jagdish Tiwari (PW-39), he called A-14(Sohail Khan Pathan) on mobile no.[REDACTED]. A-1 (Mohmed AsgarAli) further confessed that on 25.3.2003, there was an abandoned attemptto kill Haren Pandya. CDR call record had indicated his presence in thearea of Law Garden. He confessed that on 26.3.2003, after the incident,he made a call to A-14 (Sohail Khan Pathan) and said: “work done”.He further confessed that he wrapped the pistol in a polythene bag andkept it in kerosene oil tanker of the stove in Royal Apartment. The saidweapon was recovered at the instance of A-1 (Mohmed Asgar Ali) videseizure memo Exhibit 196.

162. In view of overall evidence against him, we are of the viewthat his acquittal by High Court for murder of Haren Pandya and POTAoffence deserves to be set aside and conviction and sentence as orderedby Trial Court is restored.

In Re:A-4 (KalimAhmad Karimi)

163. It was submitted by Shri Raju Ramachandran, learned seniorcounsel on behalf of A-4(Kalim Ahmad Karimi) that it is a case ofconspiracy which is based entirely on confessions under POTA whichwere obtained after an unduly long period of police custody. It iscontended that colour of conspiracy is sought to be given solely by theuse of confessions. Reliance has been placed on Kehar Singh (supra),which has already been considered. Further, reliance was placed on thedecision of K.R. Purushothaman v. State of Kerala, (2005) 12 SCC631, wherein this Court observed as under:

“13. To constitute a conspiracy, meeting of minds of two or morepersons for doing an illegal act or an act by illegal means is the AB

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first and primary condition and it is not necessary that all theconspirators must know each and every detail of the conspiracy.Neither is it necessary that every one of the conspirators takes anactive part in the commission of each and every conspiratorialacts. The agreement amongst the conspirators can be inferred bynecessary implication. In most of the cases, the conspiracies areproved by the circumstantial evidence, as the conspiracy is seldoman open affair. The existence of conspiracy and its objects areusually deduced from the circumstances of the case and theconduct of the accused involved in the conspiracy. Whileappreciating the evidence of the conspiracy, it is incumbent on thecourt to keep in mind the well-known rule governing circumstantialevidence viz. each and every incriminating circumstance must beclearly established by reliable evidence and the circumstancesproved must form a chain of events from which the only irresistibleconclusion about the guilt of the accused can be safely drawn,and no other hypothesis against the guilt is possible. Criminalconspiracy is an independent offence in the Penal Code. Theunlawful agreement is sine qua non for constituting an offenceunder the Penal Code and not an accomplishment. Conspiracyconsists of the scheme or adjustment between two or more personswhich may be express or implied or partly express and partlyimplied. Mere knowledge, even discussion, of the plan would notper se constitute conspiracy. The offence of conspiracy shallcontinue till the termination of agreement.”

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164. Learned Senior Counsel has further relied upon the decisionof Central Bureau of Investigation, Hyderabad v. K. Narayana Rao,F(2012) 9 SCC 512, in which this Court opined thus:

“24. The ingredients of the offence of criminal conspiracy arethat there should be an agreement between the persons who arealleged to conspire and the said agreement should be for doing ofan illegal act or for doing, by illegal means, an act which by itselfmay not be illegal. In other words, the essence of criminalconspiracy is an agreement to do an illegal act and such anagreement can be proved either by direct evidence or bycircumstantial evidence or by both and in a matter of commonexperience that direct evidence to prove conspiracy is rarely G

available. Accordingly, the circumstances proved before and afterthe occurrence have to be considered to decide about thecomplicity of the accused. Even if some acts are proved to havebeen committed, it must be clear that they were so committed inpursuance of an agreement made between the accused personswho were parties to the alleged conspiracy. Inferences from suchproved circumstances regarding the guilt may be drawn only whensuch circumstances are incapable of any other reasonableexplanation. In other words, an offence of conspiracy cannot bedeemed to have been established on mere suspicion and surmisesor inference which are not supported by cogent and acceptableevidence.”

165. It is contended that CBI seeks to reverse the acquittal, whereHigh Court has rejected the confessions on the basis of law laid downby this Court. It is further submitted that reversal of an acquittal shouldnot be done when the view taken by the High Court is a possible viewand as such, no interference should be made as per the parameter laiddown in State of Rajasthan v. Islam & Ors., (2011) 6 SCC 343, inwhich this Court observed:

“16. The principle to be followed by the appellate court consideringan appeal against an order of acquittal is to interfere only whenthere are compelling and substantial reasons to do so. Thus, insuch cases, this Court would usually not interfere unless:

(i) The finding is vitiated by some glaring infirmity in the appraisalof evidence. (State of U.P. v. Sahai, (1982) 1 SCC 352 atSCC paras 20-22: AIR paras 19-21.)

(ii) The finding is perverse. (State of M.P. v. Bacchudas, (2007)9 SCC 135 at SCC para 10 and State of Punjab v. ParveenKumar, (2005) 9 SCC 769 at SCC para 9.)

(iii) The order suffers from substantial errors of law and fact.(Rajesh Kumar v. Dharamvir, (1997) 4 SCC 496 at SCC para5.)

(iv) The order is based on misconception of law or erroneousappreciation of evidence. (State of U.P. v. Abdul, (1997) 10SCC 135; State of U.P. v. Premi, (2003) 9 SCC 12 at SCCpara 15.)

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(v) The High Court has adopted an erroneous approach resultingin miscarriage of justice. (State of T.N. v. Suresh, (1998) 2SCC 372 at SCC paras 31 and 32; State of M.P. v. PaltanMallah, (2005) 3 SCC 169 at SCC para 8.)

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(vi) Acquittal is based on irrelevant grounds. (Arunachalamv. P.S.R. Sadhanantham, (1979) 2 SCC 297 at SCC para 4.)

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(vii) The High Court has completely misdirected itself inreversing the order of conviction by the trial court. (GauriShanker Sharma v. State of U.P., (1990) Supp. SCC 656)

(viii) The judgment is tainted with serious legal infirmities. (Stateof Maharashtra v. Narsingrao Gangaram Pimple, (1984) 1SCC 446 at SCC para 45: AIR para 45.)

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17. In reversing an acquittal, this Court keeps in mind thatpresumption of innocence in favour of the accused is fortified byan order of acquittal and if the view of the High Court is reasonableand founded on materials on record, this Court should not interfere.However, if this Court is of the opinion that the acquittal is notbased on a reasonable view, then it may review the entire materialand there will be no limitation on this Court’s jurisdiction underArticle 136 to come to a just decision quashing the acquittal. [SeeState (Delhi Admn.) v. Laxman Kumar, (1985) 4 SCC 476 atSCC para 45 and Dharma v. Nirmal Singh, (1996) 7 SCC 471atSCC para 4.]”

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This Court has cautioned that if the view of the High Court is notreasonable, this Court may review entire material and there will be noFlimitation on the jurisdiction of this Court under Article 136 to renderjustice quashing the acquittal.

166. A-4(Kalim Ahmad Karimi) was part of the conspiracy tomurder Haren Pandya. On 7.12.2002, he went to Udaipur along withA-13 (Mufti Sufiyan) and two others and visited the house of UsmanKhan Nawab Khan (PW-29). He also spoke to A-18 from a PCO atUdaipur. He received three stolen Hero Honda motorcycles fromHussainmiyan Amirmiyan Shaikh (PW-57) on the directions of A-13(Mufti Sufiyan). He kept one motorcycle with him and handed over theother two to A-5 (Anas Machiswala) and A-14 (Sohail Khan Pathan).On 24.4.2003, he called A-1 (Mohmed Asgar Ali) to Juni Jama Masjid G

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and handed over three weapons in the same night to A-5 (AnasMachiswala). The weapon was recovered at the instance of A-5 (AnasMachiswala). A-4 (Kalim Ahmad Karimi) and A-5 (Anas Machiswala)visited Surat and procured two weapons from one Maulana Tahir. Asper the prosecution, A-4 (Kalim Ahmad Karimi) had kept the weaponsat his shop and had given the same to A-5 (Anas Machiswala) on thenight of 25.3.2003 for killing Haren Pandya.

167. The prosecution has relied upon the confessional statementunder Section 32 of POTA, though the A-4 (Kalim Ahmad Karimi) wasin police custody from 25.4.2003 till 5.6.2003. He was sent to judicialcustody up to 17.6.2003. Thereafter on 24.6.2003, he made the confessionafter he was given time for reflection. He admitted his signature on hisconfessional statement on the day on which he was produced before theMagistrate. Later on, he said that while retracting confession that hissignature had been obtained forcibly.

168. It was submitted on behalf of accused that mere knowledgeof plan would not constitute conspiracy as observed in K.R.Purushothaman v. State of Kerala (supra). As already observed, theconspiracy shall not be deemed to have been established on mere suspicionand surmises or inferences which are not supported by cogent andacceptable evidence.

169. Reliance has further been placed on CBI v. V.K. NaryanaRao, (2012) 9 SCC 512 and Kehar Singh (supra). It was furthersubmitted that Hussainmiyan Amirmiyan Shaikh (PW-57) on theinstructions of A-4 (Kalim Ahmad Karimi), has stolen three motorcyclesand given them to A-4 (Kalim Ahmad Karimi). Hussainmiyan AmirmiyanShaikh (PW-57) has turned hostile and has stated that he had not madeany statement on 11.4.2003 regarding stealing of motorcycles. He furtherstated that he had not given any statement in the crime branch and onlyhis signatures were taken on written paper before the Magistrate. Hehas denied his statement under Section 164 Cr.PC also. He has submittedthat signatures were given under coercion. The statement under Section164 Cr.PC is not a substantive piece of evidence and needs corroborationas held in the State of Delhi v. Shri Ram Lohia, AIR 1960 SC 490.

170. It was also submitted on behalf of A-4 (Kalim Ahmad Karimi)that prosecution has relied on the deposition of Javed Abdul Rashid KhanPathan (PW-45) who had purportedly disposed of two motorcycles after AB

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Athe incident. He had also stated that he was forced to give the statement.He has denied that motorcycle recovered from Apsara Cinema wasseized in his presence and he has also denied that motorcycle was shownto him at PS Kagdapith. He has denied the recovery of Suzuki Samuraimotorcycle recovered from the railway station. In view of the witnessnot supporting the same, the recovery of motorcycles become doubtfulBand cannot be believed. Further, it was submitted that there is no evidenceto show that the motorcycles were used in the commission of the offenceof murder of Haren Pandya. The date of alleged theft of motorcycles is2002, long before the conspiracy of murder of Haren Pandya, whichwas hatched in March 2003. The procurement could not imply anyCconspiracy to murder Haren Pandya.

171. It was further submitted on behalf of A-4 (Kalim AhmadKarimi) that regarding the allegation of procuring the weapons fromSurat is based on his confessional statement, which is vitiated in law andhence inadmissible. The confession under Section 32 regarding thisDallegation cannot be used against A-4 (Kalim Ahmad Karimi) as held bythis Court in Parliament Attack case. No weapon was found in hispossession nor did he lead to any discovery. The confession isuncorroborated. A-4 (Kalim Ahmad Karimi) had been convicted andsentenced in POTA 12/2003 and in the present case for the chargeunder Section 3(3) of POTA, for the generic charge of conspiracy asEalso the Arms Act, these sentences he has already undergone. He hasundergone the punishment for all the charges that relate to the timeperiod prior to an alleged conspiracy to murder Haren Pandya. TheHigh Court has rightly acquitted him from the commission of an offenceunder Section 120-B and 302 IPC.F

172. It is apparent that though Hussainmiyan Amirmiyan Shaikh(PW-57) has turned hostile, his statement had been recorded underSection 164, Cr.PC (Exhibit 546). The confessional statement of A-14(Sohail Khan Pathan) is supported by the recovery of motorcycles fromPS Kagdapith in the presence of Bhaveshbhai Nagindas Shah (PW-G103) vide seizure memo Exhibit 628. Bhaveshbhai Nagindas Shah (PW-103) corroborates the recovery of the motorcycle from PS Kagdapith.Bhagwan Singh Samantsinh Rathod (PW-50) has also corroborated therecovery of the motorcycle from PS Koth area vide seizure memo Exhibit356. The weapon was also recovered at the instance of A-5 (AnasMachiswala). Hence, there is corroboration of confession of A-4 (KalimH

Ahmad Karimi) by the recovery of the weapon which was procured byhim. It is apparent that A-4 (Kalim Ahmad Karimi) was a close associateof A-13 (Mufti Sufiyan) and has worked as a link between A-13 (MuftiSufiyan) and the rest of accomplices. He received three motorcycleswhich were stolen in 2002 and kept on the directions of A-13 (MuftiSufiyan) one motorcycle with him and handed over the other two to A-5 (Anas Machiswala) and A-14 (Sohail Khan Pathan). It is also apparentthat he has procured two weapons from Surat in February 2002. Aftershooting incident of Jagdish Tiwari on 11.3.2003, he had attended meetingsdated 17/18.3.2003, 22.3.2003, 24.3.2003 and 25.3.2003, where modalitiesto murder Haren Pandya were chalked out. He kept the weapon receivedon 17/18.3.2003 from A-5 (Anas Machiswala) and A-13 (Mufti Sufiyan)in his shop. On 24.3.2003, he handed over three weapons which werekept at his shop to A-5 (Anas Machiswala). On 25.3.2003, he receivedback those weapons from A-5 (Anas Machiswala) after a failed attempton Haren Pandya. Later in the night, he again handed over weapons toA-5 (Anas Machiswala) as Haren Pandya was to be killed on the nextday.

173. It is also apparent that he was instrumental in changing thenumber of plates of the stolen motorcycles at the bungalow of Junaid onthe night of 25.3.2003. It is also apparent that he received emptycartridges of bullets from A-5 (Anas Machiswala), which were allegedlyshot at Haren Pandya and handed them over to A-13 (Mufti Sufiyan),which were ultimately recovered. Few days after the incident, he tookA-1 (Mohmed Asgar Ali) on the instructions of A-13 (Mufti Sufiyan) toSikander Bhai at Kanoder for providing shelter, who refused to keep A-1 (Mohmed Asgar Ali) and then he dropped A-1 (Mohmed Asgar Ali) atShahpur flat. Thus, the conspiracy is supported by the confessionalstatement. A-4 (Kalim Ahmad Karimi) had conspired and he was clearlypart of the conspiracy of killing Haren Pandya. A-4 (Kalim AhmadKarimi) was held guilty by the Trial Court for the offences punishableunder Section 3(2) read with Section 3(3) of POTA. For the offencespunishable under Section 120-B read with Section 302 of IPC, he wassentenced to life imprisonment with a fine of Rs.5,000/- with defaultclause. However, the High Court has maintained and confirmed theconviction for the offence punishable under Section 3(3) of POTA andsentence has been reduced to the period already undergone by him injail with fine of Rs.5,000/- each, and in default of payment of fine, he A

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Ashall undergo RI for 6 months. The High Court has acquitted A-4 (KalimAhmad Karimi) of charges under Section 120-B read with Section 302of IPC and the charge for the offence under Section 3(1) punishableunder Section 3(2)(a) of POTA. He procured vehicles and weaponsand due to his active role in the conspiracy, he is liable to be convictedfor commission of offence under Section 3(1) read with Section 3(3) ofBPOTA and Section 120B read with 302 IPC as ordered by the TrialCourt.

IN RE: A-5 (ANAS MACHISWALA)

174. It is urged on behalf of accused that emails allegedlyCrecovered at the instance of A-5 (Anas Machiswala) are fabricated.The relevant exhibits were not signed by the accused as is evident fromthe testimony of Sanjay Rameshbhai Brahmane (PW-65) the panchwitness. It is further contended that call records of accused areinadmissible in view of Section 65B of Indian Evidence Act, 1872. Itproves nothing against accused as they knew each other and thus theirDpresence in the same vicinity or having talked with each other should notarouse any suspicion. The BSNL call records are clearly not computer-generated owing to the random order of dates and missing pieces ofinformation and in terms of Section 65B of the Indian Evidence Act,1872, the records cannot be said to be reproduced from the originalEcomputer. Thus, the requirements under Sections 65A and 65B of theIndian Evidence Act, 1872 are not met.

174(a). As far as the confessional statement of Anas Maschiswala(A5) is concerned, the procedural safeguard of giving 24 hour reflectiontime was duly adhered to. All cautions were given to him. VoluntarinessFwas ascertained. No signs of any physical injuries were found uponexamination, neither was he threatened in any manner.

174(b). It comes forth in A5’s confession that it was Mufti Sufiyan(A13) who had instigated one and all to take revenge of the 2002 riots.He (A5) describes his role of instigating other boys for the Tiffin BoxGBombs. A5 describes the arms training that he underwent in Pakistan.He also names others who had also obtained training at Pakistan. Afterthe training, he stayed at Karachi, where he was constantly in touchwith Sohail Khan (A14—absconding), who in turn was very friendlywith Rasool Party (A18—absconding). A5 further states that after hisreturn to Ahmedabad, he was informed by Kaleem (A4) that three HeroH

Honda Motorcycles were arranged at the instance of A13, throughHussainbaba (PW-57). One of these motorcycles was given to Anas(A5), which bore Registration No. GJ-1-BD-5739.

174(c).A5 also speaks about the weapons that were broughtfrom Surat by A5 & A4. Three SIM Cards were given to A5 by A14,one each to be inserted in the phones of A5, A7 (Rehan), and A8 (Goru).The code words “P”, “G” and “R” for the names Parvez, Goru, andRehan were also fed by A5 in his phone. This was done at A14’s instance.In relation to the attack on Jagdish Tiwari, A5 states that while he wassitting one day with A13, A14, and A4, it was A14 who had said thatTiwari of Medical store had played a major role in Communal Riots.Tiwari should be done away by “Mehman”. Jagdish Tiwari was shot on11.03.2003. A5 states that he came to know of this the next day. Afterthis incident, A4 took back both the firearms.

174(d).It is further stated that on 15[th] and 16[th] of March, A13told him (A5) that Haren Pandya would be killed next. A5 was inattendance at the meetings that took place on 17[th] and 18[th] of March,2003 at Juni Jama Masjid. A14, A8, A7, and A4 also attended thosemeetings. A14 named Haren Pandya as the next target because,according to A14, Haren Pandya had perpetrated atrocities on Muslimsduring the communal riots apart from taking a major lead in the demolitionof Paldi Masjid. A5 describes as to how the task of doing a recce ofLaw Garden was first assigned to A12 and, upon A12’s failure, the samecame to be entrusted to Parvez. The events of 23.03.03 and of 24.03.03are also described. On 23.03.03 Haren Pandya had not turned up atLaw Garden. On 24.03.03, registration No. of the Maruti Fronti Carused by Haren Pandya came to be noted at Law Garden. It is statedthat after the first attempt to kill Haren Pandya was aborted, on thenight of 25.03.03, number plates of the motorcycles were changed byA4 and A14.

174(e).On the morning of 26.03.2003, A5 handed over a loadedpistol to A6 and a loaded revolver to A1. After A1 undertook the taskassigned to him of killing Haren Pandya, A1 along with A6 and Rehmancame to Shahpur Mill Compound, where A5 was present at theautorickshaw. A6 kept the pistol and helmet in the autorickshaw, but A1refused to give either of the firearms but handed over five emptycartridges.

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A175. Evidence of PW-21, PW-120, PW-122, and PW-91 showdue compliance of all procedures, including confirmation proceedings.PW-108 arrested A5 from Andhra Pradesh. He was arrested along withA4 and A12. Disclosure, discovery, and seizure of both the pistol andthe e-mail printouts are supported by PW-65 (panch witness). The pistolwas discovered at the instance of A5 in the presence of this witness.BEmail-id and password were given by A5. Printouts of the emails weretaken out in the presence of this witness. This witness supported alldocumentary evidence in relation to the above. Exhibit 685 is the sanctionaccorded by PW-115 to prosecute several accused including A5 underthe Arms Act. Other accused are A1, A3, and A6. This sanction underCSection 39, Arms Act was accorded by PW-115, being the In-ChargePolice Commissioner of Ahmedabad City at the relevant time. Videnotification dated 28.02.02, State of Gujarat had been declared to be anotified area under the POTA. Mere possession of a firearm in a notifiedarea is an offence as per Section 4 of the POTA.

D176. PW-87 opined as to matters connected with weapondiscovered at the instance of A5. This witness was a Senior ScientificOfficer at CFSL, New Delhi. PW-87 opined that bullet recovered fromthe body was Jadish Tiwari was fired from the 7.65 mm pistol discoveredat A5’s instance. Three empty cartridges recovered from the shop ofJagdish Tiwari had also been fired from the same weapon, which is aEfirearm as per the Arms Act, 1959. The evidence of PWs 87, 65, 108and 120 has no inter se anomalies.

177. For inter se cellular mobile communication of accused persons,testimonies of PW-11, PW-17, PW-33 PW-36, and PW-46 are specificallyrelevant. Besides them,PWs 25, 26, 35, 40 also provide corroborativeFevidence. In the face of this evidence, non-recovery of the mobile handsetfrom A5 would, in fact, be an incriminating circumstance against him.

178. It is thus apparent that A-5 played a vital role at all stages ofconspiracy, right from the very inception, extending to the murder ofHaren Pandya and the subsequent abscondment of various accused,Gincluding himself. He was present in several meetings at various Masjidswhere different aspects of the conspiracy were hatched and put intooperation. He played a crucial role in the procurement, handling, andstorage of the illegally procured arms. 7.65 mm pistol was in factdiscovered and recovered at his instance. No great significance can be H

attached to PW-69 not supporting the prosecution. First of all, this witnesswas A5’s first cousin. Secondly, his Section 164 CrPC statement is onrecord. No complaint to any authority was ever made that this statementwas forcibly extracted.

179. He was, thus, rightly convicted and sentenced by the TrialCourt for commission of offence under section 3(1) r/w 3(3) of POTAas well as 120B and 120B read with 302 IPC for commission of offenceof murder of Haren Pandya. The same is restored.

IN RE: A-6 (MOHMED YUNUS SARESHWALA)

180. It was submitted by Shri Raju Ramachandran, learned SeniorCounsel on behalf of A-6 (Mohmed Yunus Sareshwala) that his presenceat the Law Garden area at the time of the incident has not beenestablished. It was submitted on behalf of A-6 (Mohmed YunusSareshwala) that as per prosecution he was present in the meeting dated25.3.2003 in the Masjid. A-5 (Anas Machiswala) told him that A-6(Mohmed Yunus Sareshwala) would take A-1 (Mohmed Asgar Ali) toLaw Garden on a motorcycle for killing Haren Pandya. A-5 (AnasMachiswala) also provided him black coloured Hero Honda motorcyclefor the purpose and mobile instrument of A-8 (Mohmed Riyaz) havingSIM card. Discovery has been made on the basis of disclosure memounder Section 27 of the Evidence Act furnishedby A-1 (Mohmed AsgarAli) regarding pistol and it is recovered in the presence of SrinathSinhShambhauSinh (PW-13). CDR call records of mobile no.[REDACTED]has been placed on record.

181. Disclosure memo Exhibit 196 of the pistol and its seizurevide Exhibit 195 have been proved on record. The confessional statementof A-6 (Mohmed Yunus Sareshwala) disclosed that he was given 72hours to reflect upon the aspect of his confession. He stated of hishaving taken the training at Pakistan with Parvez and Goru. After givingdetails of his role in AMTS blasts on 29.5.2002, they also purchasedcountry-made revolver from money given by A-5 (Anas Machiswala).Masak told them to create terror amongst the people by killing the leaders.He was informed that 15-20 guests were to come to Ahmedabad and A-4 (Kalim Ahmad Karimi) had to make arrangement for all of them. On9.3.2003, A-5 (Anas Machiswala) called up on mobile of A-7 (RehanPuthawala) and told that they were required to meet at Sidi Saiyed Jaliwali A

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AMasjid. They also met A-5 (Anas Machiswala) and A-14 (Sohail KhanPathan) asked them to create terror since extensive training was impartedto them. The first target was Jagdish Tiwari (PW-39). On 18.3.2003,A-7 (Rehan Puthawala) called upon his residence and said that it wasHaren Pandya who is enlisted next for killing and with his killing, a terrorshall be created in Gujarat. A-10 (Parvez Khan Pathan) was doing aBrecce to kill Haren Pandya. On 25.3.2003, A-7 (Rehan Puthawala)called up A-10 (Parvez Khan Pathan) and asked him to come at PanGalla near Al Fazal Masjid. On 25.3.2003, an unsuccessful attempt wasmade to kill Haren Pandya. On 26.3.2003, he was required to takeaccused A-1 (Mohmed Asgar Ali) on a motorcycle at Law Garden so asCto kill Haren Pandya. A-5 (Anas Machiswala) told him that he would begiven Hero Honda motorcycle at Law Garden. A-4 (Kalim AhmadKarimi) also told him that he would be given a pistol and if anybody isfollowing them, he could do firing in the air. A-5 (Anas Machiswala) gota new SIM card for A-6 (Mohmed Yunus Sareshwala) which was used

in the mobile phone of A-8 (Mohmed Riyaz @ Goru). At 7 O’clock inDthe morning, he was required to take Mehman to Law Garden. In SunriseBungalow Society, A-5 (Anas Machiswala) and A-4 (Kalim AhmadKarimi) changed the number plates of both the Hero Honda motorcyclesand A-5 (Anas Machiswala) gave him the motorcycle bearing registrationno.1110. He went on that motorcycle at 6.30 am to Lucky Restaurant.EHe purchased Sandesh newspaper at Juhapura and at 6.56 am reachedto Lucky restaurant and by that time A-5 (Anas Machiswala) reachedthere and called him at Jaliwali Masjid and in the bathroom, he wasgiven pistol by A-5 (Anas Machiswala) and said that it was locked andloaded. Thereafter, he went along with A-1 (Mohmed Asgar Ali) toNehru Bridge. He had worn a helmet and near the gate of ThakardasFHall, he pretended to read a newspaper. He saw A-10 (Parvez KhanPathan) passing from the opposite side and nodded at him. He heardfiring of 4 to 5 bullets. He started the motorcycle and wore the helmet.After about 1 to 1½ minutes, Mehman approached him and set as apillion rider. He went towards Gujarat College to Gandhidham RailwayGStation to Nehru Bridge. From there they went to Shahabuddin Dargahto Shahpur Mill Compound, where they met A-14 (Sohail Khan Pathan)and A-7 (Rehan Puthawala), who was waiting in an autorickshaw. A-6(Mohmed Yunus Sareshwala) went with A-7 (Rehan Puthawala) on hismotorcycle after changing two autorickshaws. He went to his residence H

at Juhapura. He was very happy to know about the death of HarenPandya.

182. His confessional statement has been corroborated by AlpeshRanchhodbhai Patel (PW-11), SrinathSinh ShambhauSinh (PW-13),Manojkumar Baldevbhai (PW-17), Hemantkumar Ratilal Patel (PW-33)and Rajendra Singh S. Chhikara (PW-110). They are the witnesses tothe recoveries of SIM cards. Alpesh Ranchhodbhai Patel (PW-11) andManojkumar Baldevbhai (PW-17)are the witnesses relating to BSNLSIM cards, which were used by the accused persons during the conspiracyof murder of Haren Pandya, to remain in touch with each other. At theinstance of A-1 (Mohmed Asgar Ali) 7.5 mm pistol bearing no.EE330was discovered from Flat No.4/B, Kamar Flats from Batiwala Stoveand Srinathsinh Shambhausinh (PW-13) was the witness to the saiddiscovery. Jayantibhai Vitthaldas Suthar (PW-27) has proved the landlineof the house of Mohmed Yunus Sareshwala (A-6) at A/12, SunriseApartment, Juhapura, Ahmedabad and the same has been admitted byA-6 (Mohmed Yunus Sareshwala) in his further statement recorded underSection 313, Cr.PC. The incriminating circumstances are proved by thesaid evidence. Rajendra Singh S. Chhikara (PW-110)was present at thetime of discovery at Kamar Flat. The motorbike used during thecommission of an offence was driven by A-6 (Mohmed YunusSareshwala) and was handed over to Javed Abdul Rashid Khan Pathan(PW-45).It is apparent that A-6 (Mohmed Yunus Sareshwala) has alsoprovided logistic support throughout the conspiracy and on the date ofthe killing of Haren Pandya. He had not only driven A-1 (MohmedAsgar Ali) to Law Garden but also waited near Thakarbhai Desai Hallunder the pretext of reading a newspaper till A-1 (Mohmed Asgar Ali)accomplished the task assigned to him and drove him back to ShahpurMill Compound. He was also provided one pistol bearing no.EE330 byA-5 (Anas Machiswala) for his own protection and also for the protectionof A-1 (Mohmed Asgar Ali). Proximity of A-6 (Mohmed YunusSareshwala) with rest of the group, his explicit act in taking A-1 (MohmedAsgar Ali) to Law Garden and waiting till killing of Haren Pandya underthe pretext of reading newspaper and thereafter, taking A-1 (MohmedAsgar Ali) to Shahpur Mill Compound and handing over the weapon andvehicle and completing everything with meticulous detail are all reflectedin the confessional statements.

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A183. It is submitted on behalf of accused that sole eyewitnessAnilram Yadavram Patel (PW-55) has not made any reference withregard to A-6 (Mohmed Yunus Sareshwala) presence at the place ofincident. It is further alleged that prosecution has relied on the evidenceof Hemantkumar Ratilal Patel, BSNL Officer (PW-33) to ascertain thelocation of A-6 (Mohmed Yunus Sareshwala) based on the call detailsBrecord of mobile no.[REDACTED]. It is alleged that A-5 (AnasMachiswala) had given three SIM cards to A-7 (Rehan Puthawala) ofmobile no.[REDACTED], A-8 (Mohmed Riyaz) having mobileno.[REDACTED] and A-9 (Mohmed Parvez Sheikh) of mobileno.[REDACTED]. It is submitted that Hemantkumar Raitlal Patel, BSNLCOfficer (PW-33) has given the call details and location based on it ofaforesaid three mobile numbers on the morning of 26.3.2003 in hisdeposition. As per him, the following calls were made on 26.3.2003:

i. A-9 (Mohmed Parvez Sheikh) contacted A-7 (RehanPuthawala) twice at 7:18:35 and 7:18:43. As per him, theDlocation of A-9 was Law Garden and that of A-7 was NehruBridge.

ii. At 7:34:43 another call was made by A-9 (Mohmed ParvezSheikh) to A-7 (Rehan Puthawala), but their location couldnot be traced due to technical lag.

EIt is further submitted that there was no call either made or receivedby A-6 (Mohmed Yunus Sareswala) on that date between 7.00 am to8.30 am. Hence, A-6 (Mohmed Yunus Sareswala) presence has notbeen conclusively established at the place of incident.

184. It is also submitted that the CDR produced by HemantkumarFRaitlal Patel, BSNL Officer (PW-33) is in typed format and in any case,it is inadmissible under Section 65B of the Evidence Act. It is furthersubmitted that there is no evidence to show that A-6 (Mohmed YunusSareswala) had taken A-1 (Mohmed Asgar Ali) to Shahpur MillCompound after the murder of Haren Pandya. With regard to recoveryGof pistol carried by A-6 (Mohmed Yunus Sareswala), it is contended thatit was not recovered at the instance of A-6 (Mohmed Yunus Sareswala),but from the purported disclosure made by A-1 (Mohmed Asgar Ali),which only binds the maker of the statement and cannot be used againstA-6 (Mohmed Yunus Sareswala). It is inadmissible under Section 27 ofthe Evidence Act against A-6 (Mohmed Yunus Sareswala) as it onlyH

binds the maker of the disclosure. Thus, there is no evidence to hold himguilty for the involvement in the conspiracy of murder of Haren Pandya.

185. In our view, the submissions on behalf of the accused arebaseless. Alpesh Ranchhodbhai Patel (PW-11), SrinathSinhShambhauSinh (PW-13), Manojkumar Baldevbhai (PW-17),Hemantkumar Ratilal Patel (PW-33) and Rajendra Singh S. Chhikara(PW-110)are the witnesses to corroborate the confessional statement.They are also witnesses to the recoveries of SIM cards. AlpeshRanchhodbhai Patel (PW-11) and Manojkumar Baldevbhai (PW-17) arethe witnesses of BSNL SIM cards, which were used during an incidentto remain in contact with each other. Discovery of 7.5 mm pistol bearingno.EE330 at the instance of A-1 (Mohmed Asgar Ali) from Flat No.4/B,Kamar Flats was from Batiwala stove and Srinathsinh Shambhausinh(PW-13) was the witness of that discovery. In his testimony, he haddiscussed at length A-1 (Mohmed Asgar Ali) had hidden two weaponsgiven to him by the accused. Jayantibhai Vitthaldas Suthar (PW-27)had proved the landline number at the house of A-6 (Mohmed YunusSareshwala) at A/12, Sunrise Apartment, Juhapura, and the said facthad also been admitted by A-6 (Mohmed Yunus Sareswala). Record ofmobile phone location also revealed the incriminating circumstances asproved by the evidence. Rajendra Singh S. Chhikara (PW-110) waspresent at Kamar Flat when the discovery was effected. Motorbikeused during the commission of the offence was handed over to JavedAbdul Rashid Khan Pathan (PW-45), who turned hostile to the case ofthe prosecution. He had taken A-1 (Mohmed Asgar Ali) to spot andbrought him back also and carried a weapon too. Keeping in view hisproximity with rest of the group and his involvement in the conspiracy tokill Haren Pandya, the conviction and sentence awarded to A-6 (MohmedYunus Sareswala) by the Trial Court under Section 120B read with Section302 IPC and under section 3(1) and 3(3) of the POTA, is found to beappropriate.

IN RE: A-7 (REHAN PUTHAWALA)

186. Evidence against A-7 (Rehan Puthawala) is that on 9.3.2003he was present at Jaliwali Masjid along with A-5 (Anas Machiswala),A-8 (Mohmed Riyaz), A-9 (Mohmed Parvez Sheikh), A-12 (ShahnawazGandhi) and A-14 (Sohail Khan Pathan), where A-14 (Sohail KhanPathan) disclosed that Jagdish Tiwari (PW-39) would be their target due AB

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Ato his role in riots and task will be accomplished by Mehman (A-1 –Mohmed Asgar Ali) who has come from Hyderabad. On 17/18.3.2003,he attended meeting at Juni Jama Masjid where A-14 (Sohail KhanPathan) disclosed that Haren Pandya would be their next target and A-1 (Mohmed Asgar Ali) would execute the killing. He also attended themeeting held on 22.3.2003 at Juni Jama Masjid where A-14 (Sohail KhanBPathan) assigned the task of a recce of Haren Pandya at Law Gardento A-12 (Shahnawaz Gandhi). On 23.3.2003 at about 7.00 am, A-9(Mohmed Parvez Sheikh) called A-1 (Mohmed Asgar Ali) using hismobile in which A-5 (Anas Machiswala) had stored the numbers of A-1 (Mohmed Asgar Ali) and A-5 (Anas Machiswala) as Mama and UncleCrespectively. On 24.3.2003, he was present in the meeting at Juni JamaMasjid where A-1 (Mohmed Asgar Ali) was called by A-4 (Kalim Ahmed)by making a phone call. On the directions of A-14 (Sohail Khan Pathan),A-9 (Mohmed Parvez Sheikh) took A-1 (Mohmed Asgar Ali) to LawGarden for familiarisation with topography. In the said meeting, he wasassigned the task to remain present at Nehru Bridge in order to escortDA-1 (Mohmed Asgar Ali) and A-8 (Mohmed Riyaz) after killing HarenPandya. A-5 (Anas Machiswala) handed over to him one SIM Card ofBSNL for using next morning. The CDR of mobile no.[REDACTED] andprint out of mobile no.[REDACTED] vide Exhibits 469 and 310 respectivelyhave been cited.

E187. It is apparent from the record that he could not go for trainingto Pakistan as during the month of Ramzan his parents were to comefrom the USA and he decided to opt out. However, he has providedcomplete logistic support to all those who went for training. He wasalso contacted by Anas Machiswala (A-5) from Dubai and the othersFfrom Calcutta. He was in regular touch with A-4 (Kalim Ahmad Karimi)and has helped his friends who were in difficulty in Calcutta. On hisasking, he was informed by A-14 (Sohail Khan Pathan) that A-1(Mohmed Asgar Ali) @ Mehman, who is coming from Hyderabad, wouldperform the task of killing Haren Pandya and rest of the members haveto provide logistic support only. He has also attended the meeting onG22.3.2003 called by Sohail Khan Pathan (A-14) and Anas Machiswala(A-5) at Old Jumma Masjid, where A-9 (Mohmed Parvez Sheikh) wasdirected by A-14 (Sohail Khan Pathan) to carry out recce of Law Gardenas A-12 (Shahnavaz Gandhi) could not do so. He had his own mobileno.[REDACTED], where he fed mobile no.[REDACTED] of A-1 (Mohmed H

Asgar Ali) and mobile no.[REDACTED] of A-5 (Anas Machiswala) asMehman and Uncle respectively. It is also apparent that he had waitedat the corner of Nehru Bridge for A-1 (Mohmed Asgar Ali) and A-6(Mohmed Yunus Sareshwala) to come. He escorted them to ShahpurMills Compound where A-5 (Anas Machiswala) and A-14 (Sohail KhanPathan) were waiting for them in an autorickshaw. He also accompaniedA-6 (Mohmed Yunus Sareshwala) for handing over the helmet andweapons to A-5 (Anas Machiswala) and A-6 (Mohmed YunusSareshwala) gave him brief detail about the killing of Haren Pandya.He also accompanied A-8 (Mohmed Riyaz @ Goru) for getting the fakenumber plate. His mobile phone directory gave a major lead in theinvestigation and his active role at every stage and overt act are visiblefrom the evidence adduced by the prosecution.

188. It is also apparent that A-7 (Rehan Puthawala) is a closefriend of A-10 (Parvez Khan Pathan), A-12 (Shahnavaz Gandhi) and A-8 (Mohmed Riyaz). He has given his confessional statement to VinayakPrabhakar Apte (PW-21) and the same had been confirmed byDahyabhai Mathurbhai Patel (PW-91). Though Hussainmiyan AmirmiyanShaikh (PW-57) has not supported his own statement, yet he has statedthat he was known to A-4 (Kalim Ahmed Karimi) through A-13 (MuftiSufiyan) and also knowing all the accused including A-7 (RehanPuthawala). Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW-52)the owner of “Star Number Plate” shop has categorically stated aboutA-8 (Mohmed Riyaz @ Goru) and A-7 (Rehan Puthawala) havingapproached for number plate and also taken the delivery and at the endof May 2003, they had shown his shop to CBI Officer from where thenumber plate was got prepared. The motorcycle having fake registrationno.GJ-1-CH-5189 originally belonged to Gaurang Gandhi. Thismotorcycle was stolen and the original owner Gaurang Gandhi had madea request not to transfer the stolen vehicle in the name of any otherperson. As stated earlier, the fake number plate was discovered fromthe bushes near Tarapur Highway and it was A-10 (Parvez Khan Pathan)who left the motorcycle at Tarapur Highway while he and A-11 (MohmedFaruq) were running away to Bharuch to Surat to Pune and to Hyderabadand this motorcycle was found by PS Koth. The discovery of motorcycleis duly proved by Bhagwan Singh Samantsinh Rathod (PW-50), PSIposted at PS Koth. After killing Haren Pandya, the fake number platewas put by the accused so as to save themselves from the clutches of AB

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Alaw. Sirajbhai Mustufabhai (PW-60) has stated about the visit of A-7(Rehan Puthawala) along with other accused to his Pan Parlour.

189. The sanction granted by Kuldeep Chand Kapoor (PW-117)to A-7 (Rehan Puthawala) under Section 50 of POTA; the deposition ofDr. Sushilkumar S. Gupta (PW-120), Investigating Officer relating toBpointing out of Star Number Plate shop; and the deposition of BabarbhaiMaljibhai Rabari (PW-34), a panch witness to the disclosure of makingof fake number plate and pointing out and seizure of rough bill book ofStar Number Book are strong corroborative evidence to corroborate theconfession of A-7 (Rehan Puthawala) recorded by Vinayak PrabhakarApte (PW-21).C

190. It is apparent that he was provided with BSNL SIM cardmobile no.[REDACTED]. and he was present at Nehru Bridge in the morningof 25.3.2003 and escorted A-1 (Mohmed Asgar Ali) and A-8 (MohmedRiyaz) to Shahpur Mills Compound where A-5 (Anas Machiswala) andA-14 (Sohail Khan Pathan), were waiting for them with an autorickshaw.DOn 26.3.2003, he reached Nehru Bridge corner at about 7.15 am and hereceived a phone call from A-9 (Mohmed Parvez Sheikh) while he wason his way. On seeing A-1 (Mohmed Asgar Ali) and A-6 (MohmedYunus Sareshwala) on a motorcycle, he escorted them to Shahpur MillCompound where A-5 (Anas Machiswala) and A-14 (Sohail Khan Pathan)Ewere waiting with an autorickshaw and returned the SIM card to A-5(Anas Machiswala). He parked the motorcycle used by A-6 (MohmedYunus Sareshwala) in the parking of Anam Flats, Daryapur on 28.3.2003.After 2-3 days of the murder of Haren Pandya, on the direction of A-5(Anas Machiswala), he along with A-8 (Mohmed Riyaz) went to ShaikhMohmed Riyaz Hussainmiyan Pirmiyan (PW-52) and got prepared falseFnumber plates bearing no.5189. This fact has been proved by ShaikhMohmed Riyaz Hussainmiyan Pirmiyan (PW-52) by his deposition videdocument Exhibit 379 and Babarbhai Maljibhai Rabari (PW-34) videdocument Exhibit 311.

191. It was submitted on behalf of accused by Shri RajuGRamachandran, learned Senior Counsel that there was no necessity toescort A-6 (Mohmed Yunus Sareshwala), who is a local resident ofAhmedabad. The CDR (Exhibit 310) has failed to show the location ofthe number which was being used by A-7 (Rehan Puthawala) on26.3.2003 and the CDR was inadmissible in evidence. The allegation H

against the accused was far from the truth and also baseless. Theevidence of Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW-52) isfraught with infirmities. There is a doubt as to whether A-7 (RehanPuthawala) approached him for a false number plate of the motorcycle.The receipt produced contains no name and he has erased Splendor andwritten Yamaha against the entry of number 5189, whereas it is hisoriginal case that he was asked to prepare a number plate for Yamahawhich was later changed to Splendor. The job book is recovered on22.5.2003 whereas he has not stated that CBI has come to his shopbefore 23.5.2003. The statement is typed on a computer, but there is nocomputer at the shop of Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan(PW-52) and he has not been confronted with number plate in the courtas a material object to identify as the one made at the behest of A-7(Rehan Puthawala).

192. In our opinion submissions are baseless. There is no reasonfor Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW-52) to speak lieand it is apparent that he is a reliable witness and that the fake numberplate of motorcycles had been got prepared by the accused was recoveredand it was used at the time of the commission of the offence. ShaikhMohmed Riyaz Hussainmiyan Pirmiyan (PW-52) is categorical aboutA-7 (Rehan Puthawala) and A-8 (Mohmed Riyaz) having approachedhim for a number plate. It was at the instance of A-7 (Rehan Puthawala)and A-8 (Mohmed Riyaz) CBI officers came to know of the place wherenumber plates have been prepared. The motorcycle was stolen one andfake number plates have been discovered from the bushes near TarapurHighway. It was A-10 (Parvez Khan Pathan) who left the motorcycleat Tarapur Highway in the bush. The recovery of the motorcycle isproved by Bhagwan Singh Rathod (PW-50) corroborated by AlpeshRanchhodbhai Rathod (PW-86 - the panch witness) and by depositionof Investigating Officer, CBI and Dr. Sushilkumar S. Gupta (PW-120).The vehicle was used in killing Haren Pandya and the fake number platewas put by the accused so as to save themselves from the clutches oflaw and prevent identification. The guilt stand proved against the A-7(Rehan Puthawala) as found established by the Trial Court.

193. The conviction and sentence imposed by the Trial Court onRehan Puthawala is found to be proper under section 3(1) and 3(3) ofPOTA as well as section 120B r/w section 302 IPC for commission ofmurder of Haren Pandya.

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588SUPREME COURT REPORTS

AIN RE: A-8 (MOHMED RIYAZ @ GORU)

194. It is the contention of the learned counsel that there is norecord or written evidence against A-8 (Mohmed Riyaz) that he hasgiven the order for the number plate. It is also averred that alterationswere made in the job workbook of Star Number Plate. There is noBindependent evidence linking the number plate to the offence. It is furthersubmitted that prosecution has picked up abandoned bikes already in thelocal police custody and foisted the same on the accused. Eachmotorcycle recovered is the planted recovery and has been falselyconnected to this case. It is further submitted that there is no independentevidence to establish the connection of motorcycle recovered by PSCKoth, which CBI claimed to be connected with number plate 5189, withthe offence. The discrepancies as to the presence or absence of anumber plate on the motorcycle in the panchnama and in the testimonyof Sushilkumar S. Gupta (PW-120) creates suspicion. It is further urgedthat on account of broadcast in May 2003, the CBI came to know aboutDthe motorcycle being at PS Koth. This broadcast indicates that CBIwas aware of the motorcycle in the month of May itself and the recoveryof the motorcycle from PS Koth on 12.6.2003 was choreographed tosuit the case of the prosecution. Despite Court’s directions, no broadcastdocuments have been produced. It is stated that motorcycle havingnumber plate 8973 was recovered from the parking of Apsara CinemaEby Kagdapeeth PS on 9/10.4.2003 and it was seized by CBI on 25.4.2003.However, Javed Abdul Rashidkhan Pathan (PW-45) denies being shownthe motorcycle at Kagdapeeth PS and also states that CBI did not seizeit in his presence. It is also contended that original owner AshokbhaiAmbalal Shah (PW-36) of the above motorcycle has deposed that fromF24.12.2002 i.e., the day he filed a complaint of theft of motorcycle till4.5.2003, he regularly visited (every 15-30 days) the Kagdapeeth PS toinquire about his stolen motorcycle. It is, thus, completelyincomprehensible as to why Amduji Pabji Chavda (PW-46)did not informhim immediately when the bike was recovered.G195. It is further alleged that Bhagwan Singh Samantsinh Rathod(PW-50) has categorically stated that broadcast made in May 2003 aboutthe recovered motorcycle indicates that CBI was aware of the motorcycleat the time of recovery of the number plate and fabricated a connectionbetween the two later.

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196. A-8 was given 78 hours of reflection time. All necessarycautions and explanations were given to him. His confessional statementwas recorded on 08.06.03. Custody was handed over to PW120 at 4.00am on 08.06.03. He had not complained of anything when producedbefore PW91 at 10.40 am. His oral retraction was made on 29.07.03;written retraction on 11.08.03.

197. A-8 stated that he undertook arms training in Pakistan. Hewent there via Dhaka, along with Yunus (A6), Parvez (A9), and anotherperson named Munaver Beg @ Captain. Fake passports were used forthis, where A8’s name was Abdul Karim. Besides this, he also spoke ofhis close association with other persons, namely, Kaleem (A4), Anas(A5), Yunus (A6), Parvez (A9) Shahnawaz (A12), and Rasul Khan Party(A18—absconding). One specific instance of his association with Rehan(A7) came after the murder of Haren Pandya. This was in relation tochanging the number plate of Hero Honda Motorcycle, which was doneat the Shop of Star Number Plate. A8 had gone with A7 for this purpose.Number plate registration No. GJ-1-CA-5189 was suggested for thistask by Anas (A5). Prior to changing the number plate, he wasinstrumental in taking Asgar Ali (A1) to Law Garden on 25.03.03. Blackcoloured Hero Honda motorcycle was used for this; it was provided byAnas (A5). The plan to murder Haren Pandya was aborted on that day(i.e. on 25.03.03) as the place was found to be very crowded. Next day,i.e. on 26.03.03, it was Yunus (A6) to whom the task of taking A1 toLaw Garden for the murder of Haren Pandya came to be handed over.

198. By and large, A8’s confessional statement is on the samelines as that of A6. Although he had complained of forcible extraction ofhis confessional statement by making him sign on blank papers, trialcourt did not attach much importance to this in view of his late retractionwhich was held to be on legal advice, with no prior complaint havingbeen made to any judicial officer and all safeguards of Section 32, POTAhad been duly observed by the S.P.

199. PW-21, PW-120, and PW-91 prove contemporaneous recordof the requisition, the preliminary questioning, the caution which wasadministered and the confirmation procedure under Section 32 (4) of thePOTA, in regard to the confessional statement of A-8. Additionally, allwitnesses examined to prove A-7’s guilt are examined to prove A-9’s AB

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Acomplicity as well. Corroborative evidence also comes forth from PW-11, PW-17, PW-21, PW-45, PW-52, PW-60, PW-77, PW-91, PW-114,PW-117, and PW-120. Depositions of PW-119 and PW-33 (working asSub-Divisional Engineer and Divisional Engineer, respectively at BSNL,Ahmedabad) are in relation to cell phone records.

B200. On 25.03.03 A8 drove A1 to Law Garden. Haren Pandyawas to be murdered on that day as per the conspired planning. Thismission had to be aborted on 25.03.03. For 26.03.03 (i.e. the day HarenPandya was actually murdered) A-8’s task of taking A-1 to Law Gardenwas assigned to A-6. This was done at A-14’s instance, lest repeatedvisits should blow away A-8’s cover. Further, after Haren Pandya wasCmurdered, a fake number plate was obtained for the stolen Hero Hondamotorbike. Fake number plate bore registration No. GJ-1-CH-5189,whereas the motorbike earlier had a plate bearing registration No. GJ-2164. The fake number plate was changed at Star Number Place, shopof PW-52. A-8 had prior acquaintance with PW-52. The stolen motorbikeDhad been procured through PW-57 at the instance of A-13 (abscondingaccused). The number plate was discovered at the instance of A-10,who had left the motorcycle at Tarapur Highway.

201. A-8 was arrested on 03.04.03 from Parimal Garden.Depositions of PW-114 and DW-3 bear on this aspect. DW-3 lived in A-E8’s neighborhood. This witness stated that A8 was taken away by policeat night; time around 2.30; the date was 2[nd] or 3[rd] of April, 2003. DW-3deposed nearly three years after the happening. There are no supportingdocuments. It is very incredulous that prior to receiving of Court summons,this witness had no knowledge of what it was that occurred, neither didhe make any inquiries in relation to A-8 (the son of DW3’s neighbour).FEqually, he is himself unsure of the exact date. Therefore, even if,arguendo, his version was to be believed, it would still not dent theprosecution. Thus, there is nothing to suspect arrest of A-8.

202. As for the discrepancies alleged in the format of the callrecords, these would not go to the falsify the prosecution’s case. At theGtime of his arrest, SIM Card was found from his pocket. Mobile Nos.[REDACTED] and [REDACTED] (Hutch) belonged to A8, along with mobilephone bearing IMEI No. 448478527477630).In view of the evidence onrecord, A-8 (Mohmed Riyaz @ Goru) had rightly been convicted andsentenced by the Trial Court for commission of offence under sectionH3(1) read with section 3(3) of POTA as well as under section 120B and 120B read with section 302 IPC for commission of murder of HarenPandya. The same is restored.

IN RE: A-9 (MOHMED PARVEZ SHEIKH)

203. In a nutshell, details of his training at Pakistan and returnfrom there, together with his knowledge and role in AMTS Blasts, attackon Jagdish Tiwari (PW-39), and murder of Haren Pandya are allmentioned in the statement. A9 also provides details of the role playedby others in the entire sequence of conspiracy. 60 hours of reflectiontime was given to him. The requisition was given on 04.06.03. Thestatement was recorded on 07.06.03. Willingness was again verifiedafter recording the statement. A9 put his signatures to it. His custodywas handed over to PW-120 at 4.50 pm. The next day being Sunday, hewas produced before PW-91 at 10.35 am on 09.06.03. No grievancewas raised against police. No complaint was made of any physical ormental ill-treatment at the hands of police. His subsequent warrant ofjudicial remand is Ex. 324.

204. He went for training at Pakistan via Indo-Bangla Border.A4 had told him that even those who did not have passports were also togo there. A9 states that although Rehan (A-7) could not make it, for his(A-7’s) parents were visiting from the USA, Anas (A-5), Shahnawaz(A-12), Sohail Khan (A-14), and Yunus (A-6) had all gone for training atPakistan. Two coded messages are also mentioned to have been sent,one each on behalf of A-18 and A-18’s wife; the former was sent forA4, the latter in the form of a letter for A-8 and A6.

205. A-9 was present in the meeting at Jaliwalli Masjid on 09.03.03.He states that attendees included A-4 and A-14. There, A14 disclosedtwo things. Firstly, that Jagdish Tiwari would be their target and secondlythat two ‘guests’ from Hyderabad had also been called; both of whomtrained at Pakistan. It is stated that firing upon Jagdish Tiwari came toA-9’s knowledge via a newspaper. Next, he met A-7 and A-12. Alongwith them, A-9 met A-4, A-5, A-12, and A-14 at Juni Jama Masjid. Thistime, Haren Pandya came to be named as their target. Haren Pandyawas stated to have worked very actively during the riots, as also in thedemolition of the Paldi Masjid. A-14 disclosed that a sharpshooter hadcome from outside for accomplishing this.

206. A-9 states that the first task assigned to him was forundertaking the recce of Law Garden. This fell to him since earlier A-12

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Ahad failed to undertake the same task. Therefore, in the meeting at JuniJama Masjid on 22.03.03, it was to A9 that this task came to be assignedby A-14. A-14 is so stated to have disclosed certain aspects of HarenPandya’s movements in/around Law Garden: that Haren Pandya would

go for a morning walk at Law Garden every day, and entering fromtowards the Thakarbhai Desai Hall, Haren Pandya would park his WhiteBMaruti Fronti Car near Children’s Park. Upon not sighting their targeton the morning following the meeting dated 22.03.03, A9 once againwent to Law Garden on 24.03.03 on his motorbike. On this occasion, hefound Haren Pandya. He also found his Maruti Fronti Car bearingregistration No. GJ-1-AP-4606. What thereafter followed on 25.03.03Cand on 26.03.03 is also mentioned by A9, including as to why it was thaton 25.03.03 the plan to murder Haren Pandya came to be aborted. Onboth these days, A-9 was present in the vicinity of Law Garden, oppositeH.A. College. Finally, he saw Haren Pandya being killed by A-1. A-9saw to it that nobody followed A-1. Besides the aforesaid, A-9 alsoprovides details of the mobile numbers used by various co-conspirators.DA-7’s number was [REDACTED], that of A-1 was [REDACTED] and A-5had [REDACTED]. It was through A-7’s mobile phone that A1 was askedto reach Law Garden at 7 am on 23.03.03.

207. Defence mounted an attack on the entire procedure ofrecording confessions. Specifically, voluntary recording of A-9’sEconfession was stated to be improbable. To this end, certain aspects ofPW21’s deposition were pressed into service. Accused had been sentfor a medical check-up as part of compliance of the guidelines in D.K.Basu’s Case. PW-21 had mentioned that about 12 hours and 50 minutes were taken to record A-9’s confessional statement. There was noFinterruption of any kind while recording the confession. Recording startedat around 4 am; ended at 4.30 pm. A-9 was produced at the Civil Hospitalfor medical check-up on 07.06.03. Medical papers (Ex. 773) show hispresence along with other accused. Mr. I.C. Sharma of CBI had takenA-7, A-8, A-9, A-10, and A-11 for medical examination around 10 am.With aforesaid as the position, defence contention was that there couldGhave been no uninterrupted recording of the statement. Thus, PW-21perjured himself. A confessional statement is hence rendered, suspect.

208. There is no substance in the aforesaid defence arguments.The defence did not ask for a recall of PW-21 to cross-examine him asto aforesaid aspects. Even if medical papers were produced late, nothingH

prevented the defence from asking for his recall. It cannot thus beconcluded that PW-21 perjured himself. In fact, PW-21 was duty-boundto refer the accused persons for medical check-up every 48 hours. Theouter time-limit for medical examination is provided for under D.K. BasuGuidelines. Bonafide compliance of this mandate cannot be held to beagainst prosecution’s case. It is to be also kept in mind that during thereflection time of 60 hours given to A-9, he was not sent for medicalexamination. A perusal of Ex. 772 shows that A-9 was last sent to CivilHospital on 03.06.03 at 9.35 am. This aspect also throws light on thenecessity for sending A-9 for medical check-up on 07.06.03.

209. Lastly, the defence contention of forcible extraction ofconfession is also to be noted, if only to be rejected. There is no proof ofthe alleged torture. There is no medical evidence substantiating the same.On the other, sufficient corroboration is available for A-9’s confession.Considering the overall evidence, the Trial Court convicted and sentencedhim rightly under section 3(1) read with section 3(3) of POTA as well as120B IPC and 120B read with 302 IPC also for commission of murderof Haren Pandya. The same is restored.

IN RE: A-10 (PARVEZ KHAN PATHAN)

IN RE: A-10 (PARVEZ KHAN PATHAN)

210. On behalf of A-10 (Parvez Khan Pathan) and A-11 (MohmedFaruq), it was contended that they were not part of the conspiracy ofkilling Haren Pandya. A-10 (Parvez Khan Pathan) got the knowledgeof killing after a few hours. Their participation with the other accusedwill not amount to conspiracy. They have been punished for a generalconspiracy to take revenge for atrocities against Muslims. They havebeen tried and punished not once but twice and spent over 8 years incustody. They were accused in the case of Jagdish Tiwari (PW-39)also. The confession attributing ex post facto knowledge of the murderof Haren Pandya is inadmissible in evidence. Their statements are notadmissible under Section 32 of POTA safeguards were not observed,which aspect we have already discussed and negated.

211. On behalf of A-10 (Parvez Khan Pathan), it was submittedthat he has no specific role in the murder of Haren Pandya. He made adisclosure under Section 27 of Evidence Act which lead to the recoveryof some literature from his house and that he has disclosed that amotorbike was left by him on Tarapur Highway after removing numberplates and rendering the bike unfit by taking out air on 4/5.4.2003. The AB

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AInvestigating Officer, CBI (PW-120) recovered number plate bearingno.5189 from the bushes, though, he discovered no bike, he went intonearby Koth Police Station, whereupon he learned that in May 2003, theKoth Police Station had found an abandoned bike on the TarapurHighway.

B212. On behalf of the accused, it was submitted that the bikecould not have been driven by Bhagwan Singh Samantsinh Rathod (PW-50), PSI Koth Police Station stated that on 5.4.2003. It was furthersubmitted that tires were deflated and flung down. It could not havebeen brought to the police station. The Koth Police Station had broadcastthis news in May 2003 and that is how CBI came to know about it. TheCstatement of Bhagwan Singh Samantsinh Rathod (PW-50) has also beenadversely commented upon that looking at the front of the motorcyclethere was one white color number plate, but no number was written onit. On 3.5.2003, when the motorcycle was seized, it was in standingposition, hence he brought it to the police station and broadcast as to the Dmotorcycle in every police station as it was found unclaimed. Thedisclosure statement refers to the number of the plate being removedand thrown away.

213. As per prosecution case, A-10 (Parvez Khan Pathan) is thereal brother of A-14 (Sohail Khan Pathan) and during the entire periodEof the conspiracy, he had the main role of providing lodging, arms,ammunition, mobile phones, and SIM cards. In January 2003, A-14(Sohail Khan Pathan) disclosed to him that as per directions of A-13(Mufti Sufiyan), one Mehman (A-1 Mohmed Asgar Ali) is to be broughtfrom Udaipur for taking revenge in Ahmedabad. A-14 (Sohail KhanPathan) along with A-11 (Mohmed Faruq) and Turk Salim Pasa MajariruleFIslam (PW-49) went to Udaipur in Tata Indica car and brought Mehman(A-1 Mohmed Asgar Ali) to Ahmedabad and was introduced to him.He also went to Railway Station, Ahmedabad and brought A-3 (MohmedShafiuddin) to Lokhandwali Chali. He and A-11 (Mohmed Faruq) hadmade arrangement for stay of A-1 (Mohmed Asgar Ali) and A-3G(Mohmed Shafiuddin) at M.B. Complex and later on at Flat No.401,Royal Apartment. He also made an advance payment of Rs.5,000/- forthe flat to Abdul Banki Abdul Bari Ansari (PW-44). This fact had beencorroborated by Abdul Banki Abdul Bari Ansari (PW-44 – hostile witness)in his deposition. He also purchased Suzuki Samurai motorcycle bearingno. GJ-1SS-5934 from Abdul Samad Abbasali (PW-54) from the moneyH

provided by A-14 (Sohail Khan Pathan) in February 2003 for A-1(Mohmed Asgar Ali), the shooter. This fact had been corroborated byAbdul Samad Abbasali (PW-54) in his deposition. He acted as anintermediary between A-1 (Mohmed Asgar Ali) and A-13 (MuftiSufiyan). About 5-6 days before the attack on Jagdish Tiwari, he wascalled by A-14 (Sohail Khan Pathan) at the shop of A-4 (Kalim Ahmed)where A-14 (Sohail Khan Pathan) disclosed that as per the directions ofA-13 (Mufti Sufiyan), Jagdish Tiwari was their target. He pointed outJagdish Tiwari (PW-39) and his shop to A-1 (Mohmed Asgar Ali) on thedirections of A-14 (Sohail Khan Pathan). On 7.3.2003, he collected twoweapons from A-1 (Mohmed Asgar Ali) and gave them to A-14 (SohailKhan Pathan).

214. It is further the stand of prosecution that on 9.3.2003, A-1(Mohmed Asgar Ali) and A-3 (Mohmed Shafiuddin) made an abortiveattempt on Jagdish Tiwari (PW-39) where he along with A-11 (MohmedFaruq) waited for them at Afzal Cold Drink in order to exchange themotorcycles with A-1 (Mohmed Asgar Ali) and A-3 (Mohd. Shafiuddin).After the attack on 11.3.2003 on Jagdish Tiwari (PW-39), A-1 (MohmedAsgar Ali) called him twice on his mobile. After attacking Jagdish Tiwari(PW-39), they visited his house and changed clothes. He along withA-11 (Mohmed Faruq) dropped them at Royal Apartments.

215. It is further the case of the prosecution against A-10 (ParvezKhan Pathan) that after 3-4 days of the attack on Jagdish Tiwari (PW-39), on the directions of A-14 (Sohail Khan Pathan), he dropped A-3(Mohmed Shafiuddin) at ST Bus Stand for going to Jaipur. On 1.4.2003,he was informed by A-14 (Sohail Khan Pathan) that Flat No.401 atRoyal Apartment has been vacated. On 3.4.2003, he went to AbdulBanki Abdul Bari Ansari (PW-44) and collected a cheque for Rs.3,500/- out of the advance amount paid. Thereafter, on the instructions of A-14 (Sohail Khan Pathan), he handed over Suzuki Samurai and HeroHonda motorcycles to Javed Abdul Rashidkhan Pathan (PW-45) andasked him to keep them in some parking place. This fact had beencorroborated by Javed Abdul Rashidkhan Pathan (PW-45) in hisdeposition (Exhibit 558). After 4.4.2003, he along with A-11 (MohmedFaruq) fled from Ahmedabad on Hero Honda motorcycle which theyabandoned at Tarapore highway after removing its number plate.Thereafter, he went to Bharuch and stayed in false names of Akhtar Aliand Usman Ali. On 5.4.2003, he went to Surat and stayed in Bismillah AB

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AHotel in a false name and from Surat he went to Hyderabad via Puneand stayed in Hotel Bluestar. The confession about his stay at Bharuchand Hyderabad had been corroborated proved by Exhibits 757 and 527i.e., the visitor registers of both the Hotels. He met A-4 (Kalim Ahmed),A-5 (Anas Machiswala), A-12 (Shahnawaz Gandhi), A-13 (MuftiSufiyan) and A-14 (Sohail Khan Pathan) in Hyderabad. Upon seeingBthe news in a newspaper on 26.4.2003 about the arrest of other accusedpersons, he along with A-11 (Mohmed Faruq) decided to return toAhmedabad. The allegations against A-10 (Parvez Khan Pathan) hadbeen proved by Harikishan Harpal Meena (PW-23) as panch witness.Rajendra Singh S. Chhikara (PW-110) had called Harikishan HarpalCMeena (PW-23) working in Central Excise and Customs Departmentposted at Gandhinagar as Superintendent to be panch witness in pointingout memo prepared at the instance of A-1 (Mohmed Asgar Ali). A-10(Parvez Khan Pathan) has closely worked in association with abscondingbrother A-14 (Sohail Khan Pathan). He has provided all the logisticsupports for executing the conspiracy and made arrangement for stayDof those who came from outside and provided for their transportation,motorcycles, arms, and ammunition.

216. There is evidence that he has provided all the logistic supportfrom the beginning in executing the conspiracy and had been supportedby A-11 (Mohmed Faruq). On 23.4.2003, they went in TATA Sumo jeepEfrom CBI Office, Gandhinagar and A-1 (Mohmed Asgar Ali) led themto House No.206, Block No.61, Old Bapunagar, Ahmedabad at GujaratHousing Board flats where he stayed for three days and from there toFlat No.902, A-3 Block near Dhobi ki Chawl, Rakhial where also stayedfor three days and then to House No.522, Block No.105, BapunagarFnear Momin Masjid, which is a house of A-14 (Sohail Khan Pathan) andA-10 (Parvez Khan Pathan) and from there one Bajaj Kawasaki BoxerMotorcycle bearing registration no.GJ1BG3849 had been seized alongwith its RC book, for which memo Exhibit 270 was prepared and wassigned by Harikishan Harpal Meena (PW-23) as well as by A-1 (MohmedAsgar Ali).G

217. Abdul Banki Abdul Bari Ansari (PW-44) had corroboratedthat he had rented the flat at Royal Apartment on a fixed rent of Rs.1,400/- and Rs.5,000/- had been deposited. In April 2003 it was vacated andafter deducting the amount of rent, he had refunded Rs.3,400/- to A-10(Parvez Khan Pathan) through cheque issued favouring A-10 (ParvezH

Khan Pathan) drawn on Gujarat Industrial Cooperative Bank from SavingBank Account No.2244 and the same had been encashed by A-10(Parvez Khan Pathan). This fact had been proved by SatyendraSriramayan Pandey (PW-105), Sub-Inspector, CBI who had seized thesaid cheque book and also obtained the bank details of aforesaid accountno.2244 from the Shantikumar Narmadashankar Pandya (PW-37),Branch Manager of Gujarat Industrial Cooperative Bank, was alsocategorical about A-10 (Parvez Khan Pathan) having withdrawn theamount giving the details of denomination of the currency notes given tohim on 3.4.2003. The handwriting on the cheque was also proved to bethat of A-10 (Parvez Khan Pathan). Suzuki Samurai black colouredmotorcycle bearing no.GJ-1-SS-5934 was found at the instance of JavedAbdul Rasidkhan Pathan (PW-45). Abdul Samad Abbasali (PW-54),owner of Silver Auto Consultant, dealing in sale and purchase of second-hand two-wheelers, on 28.1.2003 purchased the aforementionedmotorcycle from Sanjab Akhtar Maheboob Akhtar (PW-76) of IndiaAuto Consultant and signed the delivery notebook and he subsequentlysold the same to A-10 (Parvez Khan Pathan). An entry was accordinglymade in the delivery notebook. The original owner of the aforesaidmotorcycle was Anil Mehta, who sold it to Sanjab Akhtar MaheboobAkhtar (PW-76). After killing Haren Pandya, the aforesaid motorcyclewas handed over to Javed Abdul Rashidkhan Pathan (PW-45) by A-10(Parvez Khan Pathan) on 3.4.2003 and this fact had been proved byJaved Abdul Rashidkhan Pathan (PW-45). The aforesaid motorcyclewas found from Magnet System Car Parking, Kalupur Railway Stationon 17.4.2003 in an abandoned condition.

218. Another motorcycle bearing fake registration no.GJ-1CD-8973 was found at Apsara-Aradhana Theatre. The original registrationnumber of this motorcycle was GJ-1CH-6692 and it was owned by RutulAshok Shah and his father Ashokbhai Ambalal Shah (PW-36)had statedthat this motorcycle was stolen from New Cloth Market. On intimationby Kamlesh Bamanrao Marathe (PW-40), Manager of Apsara-AradhanaCinema, the aforesaid motorcycle was fetched by the officers ofKagdapith Police Station. It is also apparent that Janakrai RavishankarPandya (PW-25) in response to a letter of CBI had produced registrationpapers in respect of Hero Honda Splendor bearing registration no.GJ-1CJ-6692 and Suzuki Samurai owned by Anil Mehta as well as BajajKawasaki Boxer having registration no.GJ-1BG-3849 vide exhibits 278, AB

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A279 and 282. Another Hero Honda motorcycle having registrationno.GJ7Q2164 was found at Tarapur Highway which originally belongedto Gaurang Kirit Gandhi and the fake number plate was got preparedfrom Star Number Plate as GJ-1CF-5189. The aforesaid motorcyclewas found without any number near Tarapur-Bagodara Highway at theinstance of A-10 (Parvez Khan Pathan) in the presence of Sushil KumarBS. Gupta (PW-120) and Arpesh Ranchhodbhai Rathod (PW-86). It wasseized by Bhagwan Singh Samantsinh Rathod (PW-50), In-charge, PSI,Koth Police Station. Thereafter, the six CDs and written material werealso discovered from the residential place of A-10 (Parvez Khan Pathan)which depicted the plight of Muslims after the Godhra incident in Gujarat.

CThe aforesaid evidence clearly proves the role of A-10 (ParvezKhan Pathan) in the conspiracy to murder Haren Pandya and he hasbeen rightly convicted by the Trial Court under POTA and for murder ofHaren Pandya.

IN RE: A-11 (MOHMED FARUQ)D

219. It is contended by Shri Shadan Farasat, learned counsel onbehalf of A-11 (Mohmed Faruq) that there is no evidence against A-11(Mohmed Faruq) other than confession. It is alleged that he hasaccompanied A-10 (Parvez Khan Pathan) when the bike was abandonedat Tarapur Highway. There is no evidence to support it. The otherEallegation against him is that he accompanied a group of people whodrove A-1 (Mohmed Asgar Ali) to Ahmedabad from Udaipur in February2003 and that by itself is not an offence as it is the prosecution case thatthe plan to murder Haren Pandya was hatched only on 18.5.2003. Hehas undergone the sentence for general conspiracy including theFconspiracy of the attack on Jagdish Tiwari (PW-39). It is contendedthat there is no evidence to link him to the murder of Haren Pandya andhence, his acquittal must be upheld.

220. It is the case of prosecution and evidence discloses that A-11 (Mohmed Faruq) was a close associate of A-14 (Sohail Khan Pathan)Gand a friend of A-10 (Parvez Khan Pathan). He was under the influenceof Mutfi Sufiyan and through him, he came in contact with A-14 (SohailKhan Pathan). On their instructions, A-11 (Mohmed Faruq) agreed toaccompany A-14 (Sohail Khan Pathan) to fetch A-1 (Mohmed AsgarAli) from Udaipur. He was also accompanied by Turk Salim PasaMajarirule Islam (PW-49) and he drove the Tata Indica car. A-1 (MohmedH

Asgar Ali) was brought to Ahmedabad on 23.1.2003. On the very firstday, A-1 (Mohmed Asgar Ali) stayed at the place of A-11 (MohmedFaruq) and thereafter, he made arrangement of his stay at M.B. Complexfor being in touch in Mohmed Jalis Ahmed Rajput (PW-68) throughTawabhai Yusufbhai Shaikh (PW-66). Thereafter, they stayed at theRoyal Apartment. It is proved by Sajid Ibrahim Patel (PW-47) that SIMcard no.[REDACTED] was sold from his shop which was used while fleeingaway to Hyderabad after killing Haren Pandya. Turk Salim PasaMajarirule Islam (PW-49) had also confirmed the same by naming A-11(Mohmed Faruq). Sajid Ibrahim Patel (PW-47) also corroborated thatTurk Salim Pasa Majarirule Islam (PW-49) had requested for SIM card,but later he agreed that by way of proof of residence with the applicationof A-11 (Mohmed Faruq), he had sent the driving license, which wasforwarded to the company. He stated that sometimes company, in orderto achieve the targets, request the dealers to activate the SIM in thename of any his employees and it was done in name of SarvarmiyanAnvarmiyan Saiyed, however before 4.4.2003, not even a single callwas made from the aforesaid SIM card and the same was sold to A-11(Mohmed Faruq). He further maintained that if the company requestsfor activation of SIM card for achieving its target, the proof sent withthe application suffice the need of the company. Mubinuddin PirsaabmiyaShaikh (PW-116), Manager, Bismillah Hotel has deposed that two personsin the name of Akhtarali Sabirali and Fazalbhai Ganibhai had stayed atSurat in fake names. As per the prosecution, they were A-10 (ParvezKhan Pathan) and A-11 (Mohmed Faruq). After purchasing the SIMcard, A-10 (Parvez Khan Pathan) and A-11 (Mohmed Faruq) left themotorcycle at Tarapur Highway and fled away to Bharuch to Surat toPune to Hyderabad. Their stay at Hotel Bluestar at Hyderabad wasalso duly proved by the prosecution. A-11 (Mohmed Faruq) has providedall sorts of logistic support in executing the conspiracy and he has playeda very crucial role in the conspiracy and prosecution has also proved hisalleged involvement in the crime.

221. There is supporting evidence of Usman Khan Nawab Khan(PW-29) (Exhibit 295), Turk Salim Pasa Majarirule Islam (PW-49)(Exhibit 365), Tawabhai Yusufbhai Shaikh (PW-66) (Exhibit 429) andMohmed Jalis Ahmed Rajput (PW-68) (Exhibit 431).

222. It was urged on behalf of accused persons that FIR of suchincident registered belatedly is doubtful. The submissions though AB

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Aattractive have no legs to stand. It is apparent that car was parked atChitty Bang near Law Garden and the glasses of the car of HarenPandya were dark and rolled up considerably and in the process of firinghe fell down on the side seat. Obviously, in order to save himself, hetried to lie down and bullets were fired at him constantly one after theother by A-1 (Mohmed Asgar Ali). In the process, his legs came up. AsBthe glasses were dark, obviously it was not possible for others to takenote of the fact that Haren Pandya was lying killed in the vehicle. Theeye witness - Anil Yadram Patel (PW-55) has gone to inform the ownerof Chitty Bang and by the time he could come back, police had arrivedat the spot and were taking Haren Pandya to Hospital. This explains theCso-called delay and explains the situation of the spot and due to darkglasses, it may not have been possible for the passer-by immediately totake note of the fact that as to what had happened inside the car, whichwas parked on the side of Chitty Bang. Thus, the submission on behalfof accused persons cannot be accepted and the evidence discloses thatfamily members of Haren Pandya, his P.A., and other political leadersDhad also arrived in the meantime at the spot on coming to know of theincident.

223. In view of overall evidence available against the accused hewas rightly held guilty by Trial Court for offence under section 3(1) andsection 3(3) of POTA as well as under section 120B and section 120BEread with section 302 IPC for murder of Haren Pandya. The convictionand sentence imposed by Trial Court is restored.

IN RE: ACCUSED NO.2 (MOHMED ABDUL RAOUF)

224. Mohmed Abdul Raouf, son of Mohmed Abdul Kadar wasFheld guilty by the Trial Court for the offence punishable under Section3(3) of POTA and was given benefit of doubt of all the other offencesunder the POTA as well as under the IPC. There is no appeal preferredagainst his acquittal by the State/CBI in the High Court. Now, the questionremains that of the sentence to be imposed under Section 3(3) of POTA.The Trial Court has convicted A-2 (Mohmed Raouf) under Section 3(3)Gof POTA and sentenced him to 7 years rigorous imprisonment and theHigh Court has also confirmed and maintained the conviction as well asthe amount of fine i.e., Rs.10,000/-. The sentence of rigorousimprisonment has been modified to the period already undergone in jaili.e., 5 years. Against the decision of the High Court, the CBI is in H

CENTRAL BUREAU OF INVESTIGATION v.MOHD. PARVEZ ABDUL KAYUUM [ARUN MISHRA, J.]

appeal. The minimum sentence is 5 years under Section 3(3) of POTAand by now 8 years have passed and the accused has already undergonelittle more than 5 years. No case for further interference is called for asCBI did not prefer an appeal against the judgment and order of the TrialCourt. The decision of the High Court as to conviction and sentenceunder POTA is affirmed.

IN RE: A-3 (MOHMED SHAFIUDDIN)

225. With respect to A-3 (Mohmed Shafiudding), the Trial Courthas recorded conviction under Section 120B read with Section 307 ofIPC and has sentenced him to undergo 7 years rigorous imprisonmentwith fine of Rs.3,000. He was also given benefit of doubt for all theother offences he had been charged with under the POTA as well asunder the IPC. The High Court has also maintained and upheld convictionand sentence awarded to him by the Trial Court. As no appeal waspreferred by CBI against the decision of the Trial Court against A-3(Mohmed Shafiuddin), no case for further interference is made out.

IN RE: A-12 (SHAHNAVAZ GANDHI)

226. With respect to A-12 (Shahnavaz Gandhi), he was convictedonly under Section 3(3) of POTA and was sentenced by the Trial Courtto undergo 5 years rigorous imprisonment. The High Court has confirmedand maintained the conviction and sentence awarded under Section 3(3)of POTA.

227. No appeal was preferred by CBI against the acquittal A-2(Mohmed Abdul Raouf), A-3 (Mohmed Shafiuddin) and A-12 (ShahnavazGandhi) and since they have completed the sentence fully awarded tothem by the Trial Court as modified by the High Court in the case of A-2 (Mohmed Abdul Raouf), no further interference is required to be madeas against them in the judgment of conviction and sentence imposed andit need not be discussed elaborately as no appeal was preferred againstthe decision of the Trial Court by CBI.

IN RE: CRIMINALAPPEAL NO……./2019 @ SPECIALLEAVEPETITION (CRL.) NO.5530 OF 2017

AND CRIMINALAPPEALNO……./2019 @SPECIALLEAVEPETITION (CRL.) NOS.9028-9029 OF 2016

228. Leave granted.

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A229. As accused absconded, separate trial was held with respectto Mohd. Junaid Sheikh.

230. In addition to the aforesaid charges for the murder of HarenPandya and attempt to kill Jagdish Tiwari under POTA the accused –Mohd. Junaid Sheikh was also prosecuted under Section 174 A of IndianBPenal Code (for short, “the IPC”) as he had absconded. A separate trialwas held wherein he had been acquitted by the trial court for commissionof the offence with respect to the attempt of murder of Jagdish Tiwariand murder of Haren Pandya but has been convicted for commission ofthe offence under section 174A of the IPC. The trial court has convictedthe accused for the said offence under section 174A IPC in Case No.10Cof 2003 vide separate judgment and order dated 28.02.2008.

231. On appeal filed by the accused, the High Court acquitted theaccused and modified the sentence by imposing fine of Rs. 21 lakhs andin breach of default of payment of fine the sentence imposed by the trialcourt shall stand. The amount of fine has been deposited. On beingDaggrieved, the CBI has filed the appeals.

232. Though, in the instant case, the trial court has found thatattempt on the life of Jagdish Tiwari and the murder of Haren Pandyahas been committed in the method and manner as per prosecution case.However, with regard to present accused M.J. Sheikh, it has been heldEthat the prosecution has not been able to prove his guilt beyond theperiphery of doubt.

233. As per prosecution case, he is stated to have stayed inMumbai in the place of Mufti Sufian, the trial court has found that thoughhis visit to Mumbai with Mufti Sufian stands proved, any conspiracyFwas formed at Mumbai had not been established. His statement undersection 164 (1) Cr.P.C. initially was recorded as a witness that has notbeen taken into consideration. The polygraph test conducted on theaccused was not as per the laid down safeguards to be observed by theNational Human Rights Commission and was without any permission ofGthe court. Even the statement had been held to be not good enough tofasten the guilt to enter into the conspiracy for either an attempt ofmurder of Mr. Jagdish Tiwari or killing of Haren Pandya. He was notwith the main accused – Mohmed Asgar Ali on the date of the incidentand while he was running from place to place after committing murderof Haren Pandya, he is said to have stayed for three days in the H

accommodation which was taken from the accused M.J. Sheikh at theinstance of the Mufti Sufian. No role has been shown of the accused inthe conspiracy leading to the attempt of murder of Mr. Jagdish Tiwariand killing of Haren Pandya. Maybe subsequent stay at the house thattoo when the house has been obtained by Mufti Sufian and since theaccused M.J. Sheikh was close to Mufti Sufian he has taken his car tobring the A-1 to the accommodation cannot make him conspirator in themurder of Haren Pandya since it was a subsequent event. The phonecalls made to Mufti Sufian by the accused are not significant since thewitness was known to Mufti Sufian and he handed him Rs.15,000 toRs.20,000 for visit to Hajwhich amount was paid back, as such it hasbeen inferred by the trial court that the same is not the case for fundingfor creating terror. Apart from that, after tiffin bomb accident theconspiracy was hatched to kill Jagdish Tiwari and Haren Pandya towhich the accused was not a part. The High Court had not disturbedthe aforesaid finding.

234. We have gone through the judgment of the trial court and theevidence on record adduced in this case. We are satisfied that the benefitof the doubt has been rightly extended by the Trial Court. In the peculiarfacts and circumstances of the case, as the petitioner has already servedthe sentence of 17 months and has also paid the fine of Rs.21 lakhs,thus, no case for interference is made out vis-à-vis to him. The appealsare accordingly, disposed of.

WRIT PETITION (CRL.) NO.26 OF 2019

235. The petition has been filed by the Centre for Public InterestLitigation to direct further investigation into the murder of Shri HarenPandya which took place on 26.3.2013. Other ancillary reliefs have alsobeen sought.

236. The writ petition had been filed on 21.1.2019 on the groundthat the High Court has acquitted the accused persons and has doubtedthe correctness of investigation while passing the judgment dated29.8.2011. It was submitted that earlier a criminal miscellaneousapplication No.15506/2007 was filed by father of the deceased,Vithalbhai Pandya v. CBI and two others for further investigation inthe case. However, the petition was dismissed by the High Court ofGujarat on 16.6.2008. Thereafter, wife of deceased Haren Pandya fileda petition, being Special Crl. Application No.2327/2011, in the High Court A

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Aof Gujarat at Ahmedabad, which was dismissed. Vide judgment andorder dated 6.2.2012 passed by the High Court of Gujarat at Ahmedabadon the ground that petition filed by Mr. Vithalbhai D. Pandya, father ofthe deceased, had been dismissed and due to the pendency of the criminalappeals in this Court, the High Court observed that it would not be properto reappreciate and re-evaluate the material on record. Judicial proprietyBand discipline oust the court from entering into the merits of the case.Since this Court was in seisin of the subject-matter to settle the issueauthoritatively under plenary jurisdiction under Chapter IV of theConstitution of India.

237. The present writ petition has been filed when criminal appealsCfiled in this Court were already being heard for the last two months. Itwas not mentioned that criminal appeals were already being heard w.e.f.1.11.2018by this Court in which hearing was concluded on 31.1.2019.The present writ petition was listed before a Bench consisting of Hon.Sikri and Abdul Nazeer, JJ. on 8.2.2019. The Bench directed the listingDof the case before the same Bench which had heard the criminal appealson merits, after obtaining orders from Hon. the Chief Justice of India.Thereafter, this matter had been listed before this Court and has beenheard and is being decided with the criminal appeal.

238. The writ petition has been filed on the ground that the HighECourt has held that investigation done is botched up and misdirected.Statement of Mohd. Azam Khan had been recorded on 3.11.2018 in acriminal trial who was produced as a prosecution witness in the trial offake encounter of Sohrabuddin Sheikh, his wife Kausarbi and his associateTulsiram Prajapati. In the case, accused persons were acquitted. AzamKhan has stated that Sohrabudin had told him that the contract to killFHaren Pandya had been given to him by IPS Officer G.D. Vanzara andthat Sohrabuddin’s associate Tulsiram Prajapati along with one NaeemKhan and Shahid Rampuri murdered Haren Pandya. Azam Khan’sstatement has been placed on record as Annexure P-1 on the basiswhereof a news report had been carried out by the Indian Express onG5.11.2018 filed as Annexure P-2. Ajam Khan has revealed that he hadgiven the information to the CBI in 2010. The CBI did not pay any heedto this information.

239. It is submitted that a book called ‘Gujarat Files – Anatomy ofa cover-up” was published by a journalist Ms. Rana Ayyub wherein sheHhad given certain details of operation conducted by her on the investigating

officer from Gujarat Police, Y.A. Shaikh who had started the investigationin the case of murder of Haren Pandya before the same was handedover to the CBI, the shooter accused Mohmed Asgar Ali was already inthe police custody and the site map dated 29.3.2003 had the name ofAsghar Ali, main article published on the website on 7.11.2018, has alsobeen relied upon. D.G. Vanzara’s statement was published in the Timesof India who told the CBI that Sohrabuddin was involved in HarenPandya’s murder. The news was published in Times of India dated21.9.2013. A photo sketch which was drawn did not match with theappearance of Mohmed Asghar Ali, A-1 but with Tulsiram Prajapati.The newspaper report dated 5.11.2007 published in countercurrents.orgregarding Mr. Vithalbhai Pandya and Ms. Jagrutiben Pandya’s allegationshas been filed as Annexure P-8. Mr. Pandya had given an interviewpublished in the Outlook dated 7.11.2007 saying that he was likely to bemurdered.

240. The prosecution case has been doubted by the petitioners onthe various counts which have been raised in the criminal appeals. Suchas he was rolling up the glass of the window of his car, there were 5bullets found with 7 injuries. PW-55 is not a reliable witness. Family ofMufti Sufiyan was permitted to move to Pakistan despite being underthe surveillance of the Gujarat Police and relocated there. The HighCourt has made observations that ballistic evidence does not support theocular version. There was a difference in the bullets recovered andexamined. The direction of the wound has also been adversely commentedupon so as to cast doubt on ocular version. The offence has not takenplace in the car. Confessions of the accused were not reliable. Theinvestigation was tainted. Thus, prayer has been made to direct furtherinvestigation in the matter. Reliance has been placed on Vinay Tyagi v.Irshad Ali (2013) 5 SCC 762 in which this Court observed that a fair andproper investigation has two imperatives, the investigation must beunbiased, honest, and just which is in accordance with law and secondly,the entire emphasis has to be to bring out the truth of the case before thecompetent jurisdiction. In Manohar Lal Sharma v. Principal Secretary& Ors., (2014) 2 SCC 532, the Court observed that the aim of theinvestigation is ultimately to search for the truth and bring the offenderto book. The CBI has not acted as per the provisions contained in theManual at para 6.11.5, Chapter VI. The CBI is required to take intoconsideration as per para 8.22 of Chapter VIII of the Manual the press A

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Areports regarding allegations relating to the significant matter in the media.In spite of acquittal by the High Court, the CBI has not taken the stepsas envisaged in para 23.20 of CBI Manual. It is likely that G.D. Vanzarawas involved in the conspiracy to kill Haren Pandya and there is thepossibility of the complicity of political figures. Azam Khan’s testimonyreveals that he had provided information 8 years before to the CBI. TheBCBI has not acted upon it. Haren Pandya’s father and wife were nothaving the benefit of the information available now. The conduct of theinvestigating agency in the instant case forms a fit ground for ordering are-investigation as observed in Zahira Habibullah Sheikh & Anr. v. Stateof Gujarat & Ors. (2004) 4 SCC 158. If deficiency in the investigation orCthe prosecution is visible or can be perceived by lifting the veil trying tohide the realities of covering the obvious deficiencies, courts have todeal with the same with an iron hand appropriately within the frameworkof the law. In Pooja Pal v. Union of India (2016) 3 SCC 135, this Courthas again relied upon the observations made in Zahira Habibullah Sheikh(supra).D241. Mr. Shanti Bhushan, learned senior counsel and Mr. PrashantBhushan, learned counsel have urged that in view of the aforesaid factsand circumstances and the statement of Azam Khan and other materialsplaced on record, it is a fit case where the further investigation should beordered. They have relied upon the statement of the father of deceasedEand the wife of the deceased Haren Pandya. As is reflected in thenewspaper reports, the orders passed in their cases have also been placedon record.

242. Mr. Tushar Mehta, Solicitor General has submitted that thepetition filed by the father of the deceased seeking investigation hadFbeen dismissed by the Gujarat High Court way back in 2008, the specialleave petition against the same was also dismissed. Thereafter wife ofdeceased also filed a petition in the year 2012 in the Gujarat High Courtwhich was also dismissed inter alia on the aforesaid grounds that judicialpropriety and discipline oust the High Court from entering into merits asGthis Court has to reassess the evidence and the findings recorded by theGujarat High Court in the criminal appeals. Which have been heardfinally by this Court and hearing concluded on 31.1.2019. The petition isnot maintainable and has been filed with an oblique motive. The statementof Azam Khan is an afterthought and did not relate to the matter inquestion in the case in which he has deposed. The Forum of PIL is beingH

misused. It cannot be based on newspaper reports or reports in themagazines. For this purpose, he has relied upon Kusum Lata v. Union ofIndia, (2006) 6 SCC 180, Rohit Pandey v. Union of India (2005) 13 SCC702; and Holicow Pictures (Private) Ltd. v. Prem Chandra Mishra, 2007(14) SCC 281.

243. Mr. Mehta, with respect to the evidentiary value of the report,has further submitted that the facts contained in the newspaper reportsare merely hearsay and therefore not admissible in evidence. He hasrelied upon Laxmi Raj Shetty v. State of Tamil Nadu (1988) 3 SCC 319.He has further relied upon Rajiv Ranjan Singh ‘Lalan’ (VIII) v. Union ofIndia (2006) 6 SCC 613 to contend that such PILs. would hamper thecourse of justice in a criminal case and are not maintainable. A PILcannot be filed for personal gains or private profit or political motives orany oblique consideration. A person must act bona fide and should havesufficient interest in the proceeding alone has locus standi to file a PIL.Unnecessary interference given in a case may sometime damage theprosecution case and at times may cause prejudice to the accused also.Reliance has been placed on Gulzar Ahmed Azmi v. Union of India(2012) 10 SCC 731, and Ashok Kumar Pandey v. State of West Bengal,(2004) 3 SCC 349. Mr. Mehta has also relied upon a recent decision ofthis Court in Tehseen Poonawala v. Union of India, (2018) 6 SCC 72, tosubmit that the instant case is nothing but misuse of PIL by the petitioners.

244. As the writ petition has been filed on 22.1.2014 when thisCourt was finally hearing the criminal appeals with effect from December2018 and most of documents and grounds taken are similar as such,during the course of hearing we asked Mr. Prashant Bhushan, learnedcounsel appearing on behalf of the petitioner that when criminal appealswere being heard by this Court at that time on the basis of almost thesame grounds why PIL has been filed. In case it was felt necessary thatfurther investigation is required, why an application was not filed seekingfurther investigation or re-investigation in the matter by the concernedpersons or by CPILand how the very same documents have been obtainedand filed in the petition which forms part of the criminal appeal. Mr.Prashant Bhushan admitted that certain documents have been suppliedby learned counsel who is appearing on behalf of the accused persons/respondents in criminal appeals. He had consultations with said counselto file the petition. It was considered appropriate to file a separatepetition.

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A245. We are not happy the way in which the writ petition hasbeen filed. It has been filed acting obviously in conjunction with theaccused persons in the case as the counsel for accused has admittedlysupplied the documents to the petitioner and had consultations. It wasalso pointed out by Mr. Tushar Mehta that presence of the counselappearing on behalf of CPIL and one of them appearing for the accused,Bhas also been recorded in the writ petition in the order dated 8.2.2019. Aperusal of the order dated 8.2.2019 indicates that the presence of thecounsel for an accused in criminal appeals has been recorded on behalfof the petitioner CPIL along with Mr. Prashant Bhushan and Mr. RohitK Singh, advocates. Mr. Prashant Bhushan tried to explain the aforesaidCposition on the ground that his clerk has wrongly given the appearanceof said learned counsel who is appearing on behalf of an accused personin criminal appeals. However, as admitted by Mr. Prashant Bhushan,the said counsel was associated with him in furnishing the information,documents, etc. Be that as it may. The fact is apparent that accusedpersons were instrumental in getting filed this writ petition for furtherDinvestigation in the case. If the accused so wanted then they ought tohave approached this Court by way of filing an appropriate applicationin the criminal appeals only and not by way of filing a PIL, that toothrough the CPIL. It cannot be said to be an appropriate way of filing awrit petition for further investigation, the motive is oblique, improper andEagainst discipline, especially when the criminal appeals were being heardfinally and this Court was in seisin of the matter and judgment has beenreserved ultimately on 31.1.2019. At the relevant time when the petitionwas filed, obviously the petitioner CPIL was well aware of the hearingof criminal appeals and that fact has not been stated in the writ petitionthat criminal appeals were being heard on merits for the last severalFmonths w.e.f. 1.11.2018. It is shocking and surprising that the accusedhave resorted to the aforesaid method of getting filed the petition inguise of the PIL by supplying the documents to CPIL in their self-interestand virtually attacking the case of the prosecution on the same groundsand whatever new material has been filed, we will discuss the value ofGthe same hereafter.

246. Statement of Mohd. Azam Khan who was examined as awitness in Sessions Case No.177/2013 etc. has been relied on, it wasstated by him that Sohrabuddin told him that Shahid Rampuri, NaeemKhan and he got a contract to kill Haren Pandya and they had killed him.

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He felt sad and told Sohrabuddin that they have killed a good person.Thereafter Sohrabuddin told him that this contract of killing was givenby Mr. Vanzara. In our opinion, the aforesaid statement made by AzamKhan was totally out of the context of a criminal case in which he haddeposed. It was clearly an attempt as an afterthought to make thestatement as to some other matter irrelevant to controversy. In the cross-examination of the witness in para 3, he has made the following statement:

“3. The CBI officer recorded my statement twice in the year2010. I told before the CBI officer the entire story of my leavingUdaipur for Pratapgarh and from there to come back to Udaipurand then to visit Hyderabad to meet Shahid Rampuri in jail andNaeem Khan at Hyderabad and to assured Naeem Khan to supplyAK 56 weapons to him and then come to Indore and again Udaipurand to stay with Sohrabuddin at Udaipur as said by me in myexamination in chief. The reason for the omission of this story byCBI might be when I told before them the story of the killing ofthe Home Minister Hariyan Pandya. I told before the CBI officerabout my discussion with Sohrabuddin at his house at Udaipurand the killing of the Home Minister Shri Hariyan Pandya byTulsiram and one boy at the instance of Sohrabuddin and killing ofHamid Lala by Tulsiram and Mudassar at the instance ofSohrabuddin. There is no reason for this omission in my statementrecorded by CBI. I told before the CBI officer that in order torecover the money of Rajasthan Tools Company Jodhpur fromMariam Marble, I was falsely booked in an extortion case. Thereis no reason for the above omission in my statement beforeCBI…….”

247. Azam Khan has stated that CBI recorded his statement twicein the year 2010, but he was unable to give any reason for omission in hisstatement recorded by the CBI. Even otherwise the statement madeafter more than 15 years is wholly unreliable and an afterthought andwas not connected with the matter in question in which it was made.Thus, it appears to be clearly a motivated one and bundle of falsehoodas he could not give any reason for omission in the previous statement inwhich also this issue was not involved.

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A248. A book by Ms. Rana Ayyub has also been relied upon inwhich it has been observed that Haren Pandya’s case is like a volcano.“Once the truth is out, (xxx) will go home. He will be jailed.” The counselhas further relied upon an article in the Outlook based upon the statementof Mr. Vithal Pandya, father of Haren Pandya. It appears from that heentertained a doubt as to the actual killer, but with no material againstBanybody. The Book by Rana Ayyub is of no utility. It is based uponsurmises, conjectures, and suppositions and has no evidentiary value.The opinion of a person is not in the realm of the evidence. There is alikelihood of the same being politically motivated, cannot be ruled out.The way in which the things have moved in Gujarat post-Godhra incident,Csuch allegations and counter-allegations are not uncommon and had beenraised a number of times and have been found to be untenable andafterthought.

249. Coming to the allegations made by the family of the deceased,by father of Haren Pandya, Mr. Vithal Pandya and Ms. Jagruti Ben,Dwife of the deceased, the matter has been dealt with on merits by GujaratHigh Court in the petition which was filed on behalf of Mr. Vithal BhaiPandya. A Division Bench of the High Court of Gujarat has consideredthe matter in extensive details. It was urged that Ms. Jagrutiben Pandya,wife of deceased Haren Pandya was cited as a witness in the chargesheet. On 16.11.2006, the prosecution submitted closing pursis and pursisEfor dropping of the witnesses including Jagrutiben Pandya. It was takennote of the fact that the applicant did not challenge the order passeddeclining further investigation. A similar application was submitted on18.12.2006 on the basis of newspaper reports which was also dismissedon 25.6.2007 by the POTA Judge. A copy of the order was also suppliedFto the applicant, wife of the deceased. Thereafter, father of deceasedhas filed a petition in the High Court assailing the order which was decidedvide judgment and order dated 20.6.2008. A Division Bench of the HighCourt of Gujarat has observed thus:

“24. At the outset, it is required to be noted that in the respectiveGappeals, the applicant who is neither a witness nor a complainant,has challenged three different orders namely [1] order dtd.18/12/2006 passed below application Ex.855 [2] order dtd.26/3/2007passed below application Ex.898 [3] final judgement and order ofconviction dtd.25/6/2007 passed by the learned Special Court inSpecial Case [POTA] No.10 of 2003. Vide order dtd.18/12/2006H

passed below application Ex.855 and order dtd.26/3/2007 passedbelow application Ex.898, the learned Special Court [POTA] hasdismissed the said applications submitted by the applicant forreinvestigation/further investigation of the case related to themurder of the son of the applicant namely Mr. Haren Pandya. Itis also required to be noted at this stage that at the time when thefirst application Ex.855 was submitted by the applicant for furtherinvestigation/reinvestigation, the same was after 122 prosecutionwitnesses and 7 defence witnesses were already examined bythe Special Court [POTA] and further statements of the accusedrunning into 202 pages had already been recorded and the trialwas at the fag end. Even when the application Ex.898 came to bedismissed by the learned Special Court [POTA] on 26/3/2007 itwas specifically observed by the learned trial court that theapplicant be supplied copy of the said order urgently to enablehim to approach the higher forum if he so chooses, as there is stillsome time before the Court shall deliver the judgment aftercompleting the submissions of both the sides on 28/3/2007 and 4/4/2007. It is borne out from the record that the order passed belowapplication Ex.855 dtd.18/12/2006 was sent to the applicant on22/12/2006 and the copy of the order passed blow applicationEx.898 dtd.26/3/2007 was received by the applicant on the veryday i.e. on 26/3/2007. In the order dtd.26/3/2007, it was specificallyobserved by the learned Special Jude that the applicant shall alsobe provided legal aid service to approach the Hon’ble High Courtif he so desires. Still, the applicant did not challenge the aforesaidtwo orders immediately. It appears that the submissions/argumentsof both the sides were heard on 28/3/2007 and 4/4/2007.Thereafter, final judgment and order of conviction convicting theaccused persons is passed by the learned Special Court [POTA]on 25/6/2007 and all the aforesaid orders came to be challengedby the applicant in the month of November 2007. Thus, it appearsthat the applicant has either not taken the matter very seriously inchallenging the aforesaid orders passed below application Ex.855and 898 immediately and/or within a reasonable time and allowedthe trial to be proceeded and concluded. It is also required to benoted at this stage that the applicant has specifically averred inthe Appeal Memo challenging the final judgment and order dtd.25/6/2007 that he is not challenging the final judgment and order

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of conviction dtd.25/6/2007 convicting the accused persons. Ifthat is so, in that case, as such, the appeal against the final judgmentand order dtd.25/6/2007 under Section 34 of the POTA would notbe maintainable, an order of conviction is not challenged.

26. In support of his prayer for further investigation and/orreinvestigation of the murder of Mr.Haren Pandya it is allegedthat the same was a political murder. It is submitted by the applicantthat the applicant was not cited as a witness in the charge sheetand that the Jagrutiben widow of deceased Haren Pandya thoughwas cited as a witness, but was dropped. As stated above, thecharge sheet was filed on 8/9/2003 and the applicant was notcited as a witness. Still, the applicant did not do anything. Closingpursis and the pursis for dropping of the witness was submittedby the learned Special Public Prosecutor on 16/11/2006 and thecertified copy of the said pursis was applied by the applicant on16/4/2007 which was actually delivered to the applicant on 25/4/2007. Still, the applicant did not challenge the orders passed belowapplications Ex.855 and 898 and allowed the trial to be concluded.It also appears that even the averments made in the applicationsexplaining the delay are too vague and/or general in nature. Eventhe applicant has not stated correct facts with respect to the receiptof copies of the orders passed below applications Ex.855 and 898and the certified copy of the closing pursis for dropping of thewitnesses.

27. Still construing the ‘sufficient cause’ liberally, so as to advancesubstantial justice and with a view to see that the meritoriouscase is not defeated on the technical ground of delay, we haveconsidered prima facie case on merits also. The learned senioradvocate appearing on behalf of the applicant as well as learnedSpecial Public Prosecutor appearing on behalf of the CBI haveaddressed the court on merits also and we have heard the learnedadvocates appearing on behalf of the respective parties on meritsat length to appreciate the prima facie case on merits with a viewto advance substantial justice and to see that the meritorious caseis not defeated on the technical ground of delay.

29. It is further submitted that Jagrutiben widow of Haren Pandyawas already cited as a witness in the charge sheet, still, she was not examined as a witness and she was dropped as a witness. Itis submitted that if she would have been examined as a witness,the truth might have come out. It is submitted that even Jagrutibenin her interview published in ‘Tahelka’ on 19/8/2006 apprehendedthat she would not be examined as a witness and it has cometrue.”

250. The High Court has further observed that non-examinationof Jagrutiben is no ground for further investigation. The High Court hasalso observed that in the interview published in ‘Tehelka’ on 19.8.2006,it is clearly admitted by Ms. Jagrutiben that she has no proof/materialwith respect to political rivalry. Only on allegation of political rivalry,further investigation or re-investigation cannot be ordered. The I.O. hasstated that during the investigation he did not get any material with respectto political rivalry on the basis of the vague statement of Mr. VithalbhaiPandya, father of deceased, further investigation was not possible to beordered against political figures. The applicant has no material tosubstantiate the material of political rivalry. In the absence of material,there cannot be an order for further investigation or re-investigation. Onmerit, the applicant has failed to make out a case for further investigationor re-investigation.

251. Coming back to Jagrutiben, she was not an eye-witness,admittedly, and has no personal knowledge and it is apparent from thereport she has stated that the deceased left the house for a morningwalk at around 0645 hours/0700 hours. Thus, the doubt raised in thenewspaper report was that it would not have taken half an hour to reachthe Law Garden. It would have taken 10 minutes to reach Law Garden.The submission of dropping of Jagrutiben is too tenuous to be accepted.She has not unfolded any story regarding the real assailants to be someoneelse and in case she would have been examined, her statement wouldhave supported the case of the prosecution that deceased had left thehouse in the morning only for a walk. The assessment of the time maydiffer by 15 to 20 minutes also or even half an hour. On the basis ofapproximation of the time by Jagrutiben in the newspaper reports and onthe basis whereof the happening at Law Garden at 7.30 a.m. cannot bedoubted at all. Deceased Haren Pandya had as per her version left forLaw Garden. She was not an eye-witness to be examined in the case.Thus, it cannot be said that the prosecution has withheld her and shewould have unfolded any part story which was material to the case.

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252. The SLP against the aforesaid decision in the case of VithalBhai of the Gujarat High Court has been dismissed by this Court on15.7.2009. This Court condoned the delay and dismissed the SLP. Thus,the order passed by the High Court that no investigation was warranted,has attained finality.

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B253. Thereafter, yet another attempt had been made by the wifeof the deceased though she was not entitled to file any petition after itwas filed by the father of the deceased in view of prayer made beforethe Trial Court as father had questioned the orders passed on applicationsfiled by her before Trial Court. Nonetheless, she filed Special Crl.Application No.2327/2011 which was decided vide order dated 6.2.2012.CThe High Court of Gujarat has dismissed the petition filed by the wifeand observed:

“4. Mr. J.M. Panchal, learned Special Public Prosecutor appearingfor the State of Gujarat has, relying upon the affidavit dated4.2.2012 filed on behalf of the State of Gujarat, virtually reiterated,apart from reappreciation of evidence, the factum about pendencyof SLPs arising out of the judgment and order dated 29.8.2011rendered by this Hon’ble Court in Crl. Appeal No.975 of 2007and allied appeals. It is further submitted that similar petition andprayer made earlier by the father-in-law of the petitioner for furtherinvestigation/re-investigation below Exh.855 and Exh.898 in SpecialCase [POTA] No.10 of 2003 came to be rejected by theDesignated Trial Court and further Criminal Appeal Nos.17 of2008, 18 of 2008 and 1324 of 2007 preferred along with delaycondonation application before this Court also came to be rejectedby a Division Bench after condoning the delay as per C.A.V.Judgment dated 16.6.2008 and, therefore, in such a scenario, whenthe subject matter is pending before the Apex Court in Petition(s)for Special Leave to Appeal (Crl) No(s) 9785-9796/2011 andPetition(s) for Special Leave to Appeal (Crl) No(s) 9797-9808/2011, in all propriety and judicial discipline, it is desirable that thisCourt may not exercise extraordinary power under Article 226 ofthe Constitution of India read with Section 482 of the Code ofCriminal Procedure, 1973.

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5. Admittedly, the above factual aspects remain uncontrovertedas submitted by the State Counsel.

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6. Prima-facie, the subject matter, and prayer of this petition areemanating from the proceedings pending before the Apex Courtin Petition(s) for Special Leave to Appeal (Crl) No(s) 9785-9796/2011 [filed by the State of Gujarat] and Petition(s) for SpecialLeave to Appeal (Crl) No(s) 9797-9708/2011 [filed by the CBI].Under the circumstances, at this stage, entertaining this petitionfor seeking a direction to re-investigate/for further investigationof the offences would be in the arena of re-appreciating and re-evaluating the evidence and material on record and, therefore,the propriety and judicial discipline dissuades this Court fromentering into the merits of the case in exercise of powers underArticle 226 of the Constitution of India as well as under Section482 of the Code of Criminal Procedure, 1973, since the ApexCourt is in seisin of the subject matter to settle the issueauthoritatively in its plenary jurisdiction under Chapter IV of theConstitution of India.”

254. Thus, it is apparent that the matter has attained finality. Again,in criminal appeals, we have examined the case on merits as the caserelates to Haren Pandya, former Home Minister of Gujarat. In ouropinion on merits in view of the material that has been placed on recordincluding that of Azam Khan’s statement and Book by Rana Ayyub, nocase is made out on the basis of material placed on record so as to directfurther investigation or re-investigation. There is absolutely no materialfor that purpose. The matter has already attained finality due to thedismissal of SLP. Even otherwise the petition has been based uponreports in the newspapers/magazines. It has been observed by this Courtin Kusum Lata v. Union of India, (2006) 6 SCC 180 that newspaperreports do not constitute evidence. This Court also observed that thewrit petition should be dismissed with costs so that the message goes inthe right direction that a petition filed by the oblique motive does nothave the approval of courts.

255. As we are deciding the criminal appeals along with the order,we have dealt with veracity of prosecution case and fairness ofinvestigation in our opinion the observations made by the High Courtwere not only uncalled for but based on incorrect appreciation of medical/forensic evidence and ignoring material evidence on record.

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A256. In Rohit Pandey v. Union of India, (2005) 13 SCC 702, thewrit petition was filed on the basis of newspaper reports by a younglawyer. The petition was filed on 12.2.2004. This Court observed thatordinarily we would have dismissed such a misconceived petition withexemplary costs but considering that the petitioner is a young advocate,costs of Rs.1,000 was imposed.B

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257. In Holicow Pictures (Pvt.) Ltd. v. Prem Chandra Mishra,(2007) 14 SCC 281, it was noticed that the petitions are based onnewspaper reports without any attempt to verify their authenticity.

258. In Laxmi Raj Shetty v. State of Tamil Nadu, (1988) 3 SCCC319, this Court has observed that it is well settled that a statement offact contained in a newspaper is merely hearsay and thereforeinadmissible in evidence in absence of the maker of the statementappearing in court and deposing to have perceived the fact reported.

259. In Rajiv Ranjan Singh ‘Lalan’ (viii) v. Union of India,D(2006) 6 SCC 613, this Court has observed that public interest litigationcannot be filed for personal gain or political motive or any obliqueconsideration. Unnecessary infernce in the criminal case made againstthe prosecution case at times may cause serious prejudice to the accusedalso.

E260. In Gulzar Ahmed Azmi v. Union of India, (2012) 10 SCC731, it was observed that it is for the affected party to seek redress.

261. Reliance has also been placed on Simranjit Singh Mann v.Union of India & Anr., (1992) 4 SCC 653 in which this Court observed:

“7. Ordinarily, the aggrieved party which is affected by any orderFhas the right to seek redress by questioning the legality, validity orcorrectness of the order, unless such party is a minor, an insaneperson or is suffering from any other disability which the lawrecognises as sufficient to permit another person, e.g. next friend,to move the Court on his behalf. If a guardian or a next friendinitiates proceedings for and on behalf of such a disabled aggrievedGparty, it is in effect proceedings initiated by the party aggrievedand not by a total stranger who has no direct personal stake in theoutcome thereof. In the present case no fundamental right of thepetitioner before us is violated; if at all the case sought to be made H

out is that the fundamental rights of the two convicts have beenviolated. The two convicts could, if so minded, have raised thecontention in the earlier proceedings but a third party, a totalstranger to the trial commenced against the two convicts, cannotbe permitted to question the correctness of the conviction recordedagainst them. If that were permitted any and every person couldchallenge convictions recorded day in and day out by courts evenif the persons convicted do not desire to do so and are inclined toacquiesce in the decision. If the aggrieved party invokes thejurisdiction of this Court under Article 32 of the Constitution, thatmay stand on a different footing as in the case of A.R. Antulay v.R.S. Nayak, (1988) 2 SCC 602. However, we should not beunderstood to say that in all such cases the aggrieved party has aremedy under Article 32 of the Constitution. Unless an aggrievedparty is under some disability recognised by law, it would be unsafeand hazardous to allow any third party to question the decisionagainst him. Take for example a case where a person accusedunder Section 302, IPC is convicted for a lesser offence underSection 324, IPC. The accused is quite satisfied with the decisionbut a third party questions it under Article 32 and succeeds. Theconviction is set aside and a fresh trial commenced ends up in theconviction of the accused under Section 302, IPC. The person tosuffer for the unilateral act of the third party would be the accused!Many such situations can be pointed out to emphasise the hazardinvolved if such third party’s unsolicited action is entertained. Caseswhich have ended in conviction by the apex court after a fullgamut of litigation are not comparable with preventive detentioncases where a friend or next of kin is permitted to seek a writ ofhabeas corpus. We are, therefore, satisfied that neither under theprovisions of the Code nor under any other statute is a third partystranger permitted to question the correctness of the convictionand sentence imposed by the Court after a regular trial. On firstprinciples, we find it difficult to accept Mr. Sodhi’s contention thatsuch a public interest litigation commenced by a leader of arecognised political party who has a genuine interest in the futureof the convicts should be entertained. In S.P. Gupta v. Union ofIndia, (1981) Supp. SCC 87 Bhagwati, J. observed : (SCC p.219, para 24)

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“But we must be careful to see that the member of the public,who approaches the court in cases of this kind, is acting bonafide and not for personal gain or private profit or politicalmotivation or other oblique consideration. The court must notallow its process to be abused by politicians and others ….”

These observations were made while discussing the question of‘locus standi’ in public interest litigation. These words of cautionwere uttered while expanding the scope of the ‘locus standi’ rule.These words should deter us from entertaining this petition. Thisaccords with the view expressed by this Court in Krishna Swamiv. Union of India, (1992) 4 SCC 605.

8. More apposite is the view expressed by a Division Bench ofthis Court in Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305.That was a public interest litigation for quashing an FIR lodged bythe CBI on January 22, 1990 based on the core allegation thatcertain named and unnamed persons had entered into a criminalconspiracy in pursuance whereof they had secured illegalgratification of crores of rupees from Bofors, a Swiss Company,through their agents as a motive or reward. The CBI had movedan application before the learned Judge, Delhi, for the issuance ofa letter rogatory to the Swiss authorities for assistance inconducting an investigation, which request was conceded. Anadvocate, Shri Harinder Singh Chowdhary, filed a criminal revisionapplication before the High Court of Delhi for quashing the FIRand the letter rogatory on certain grounds. Several questions oflaw and fact were raised in support of the challenge. The HighCourt came to the conclusion that the said third party litigant hadno ‘locus standi’ to maintain the action and so also the intervenershad no right to seek impleadment/intervention in the saidproceeding. However, the learned Judge took suo motu cognizanceof the matter and for reasons stated in his order directed issue ofshow cause notice to the CBI and the State why the FIR shouldnot be quashed. On appeal, this Court came to the conclusion thatthe learned Judge in the High Court was right in holding that theadvocate litigant, as well as the interveners, had no ‘locus standi’.The relevant observations found in paragraph 45 of the judgmentread as under: (SCC p. 329, para 45)

“Even if there are million questions of law to be deeply goneinto and examined in a criminal case of this nature registeredagainst specified accused persons, it is for them and themalone to raise all such questions and challenge the proceedingsinitiated against them at the appropriate time before the properforum and not for third parties under the garb of publicinterest litigants.”

In that case, besides the advocate litigant, certain political partieslike the Janata Dal, the CPI (Marxist), the Indian Congress(Socialist) and one Dr. P. Nalla Thampy Thera also approachedthis Court questioning the High Court’s rejection of their requestfor impleadment/intervention. It was in this context that this Courtwas required to examine the question whether third parties hadany ‘locus standi’ in criminal proceedings and answered the sameas stated above. This decision clearly negatives the submissionmade by Mr. Sodhi in support of the maintainability of this petition.We are, however, in respectful agreement with the view expressedin the observations extracted hereinbefore.”

262. Reliance has been placed on Ashok Kumar Pandey v. Stateof W.B., (2004) 3 SCC 349, in which it has been observed that anaggrieved party which is affected by any order, has the right to seekredress by questioning the legality, validity or correctness of the order,unless aggrieved party is a minor or insane person or is suffering fromany other disability, etc. to question the decision again.

263. On behalf of the petitioner, reliance has been placed on A. R.Antulay v. Ramdas Sriniwas Nayak & Anr., (1984) 2 SCC 500 in whichprivate complaint lodged by Shri R.S. Nayak was held to be maintainableagainst A.R. Antulay, the then Chief Minister. It was urged that anyperson can bring to the notice of the court the fact which constitutes theoffence and a Special Judge can take cognizance on such complaint oreven on information received from any person other than a police officeror upon his own knowledge of the fact that the offence has beencommitted. The decision has no application in the instant case as Forumof PIL has been misused, we have examined the case and found thesame to be meritless. Apart from that, it is not a case where a private A

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Acomplaint has been lodged with respect to an offence. The CBI hasinvestigated the case thoroughly and minutely and the conspiracy betweenaccused persons has been found established. There is voluminousevidence discussed in criminal appeals decided today vide separatejudgment with respect to the complicity of the accused persons in theoffence. It cannot be said that investigation was unfair, lopsided, botchedBup or misdirected in any manner whatsoever, as had been observed bythe High Court in the judgment which we have set aside. It is surprisingthat the observations of the High Court have been heavily relied upon inspite of mentioning the fact that the appeal was pending. In all fairness,such petition ought not to have been filed by CPIL at the instance ofCaccused, it is clearly misuse of Forum of PIL. Only an application couldhave been preferred by the accused persons or by the petitioner or anyother interested person in the criminal appeals. Even otherwise, we havenot found on merits any material or ground worthy to direct furtherinvestigation or re-investigation in the case. The observations made bythe High Court in the judgment which we have set aside were based onDlopsided approach without consideration of the entire evidence on recordand on the wholly incorrect appreciation of the evidence which wasclearly perverse.

264. Reliance has also been placed on Bandhua Mukti Morchav. Union of India & Ors., AIR 1984 SC 802 wherein this Court hasEobserved that where a person or class of persons whose fundamentalright is violated but who cannot approach the Court on account of povertyor disability or socially or economically disadvantaged position, and insuch a case, any member of the public acting bona fide, can move thecourt for relief under Article 32 and a fortiorari, also under Article 226Fso that the fundamental rights may become meaningful not only for therich and the well to do but also for the large masses of people who areliving a life of want and destitution and who are by reason of lack ofawareness, assertiveness, and resources unable to seek judicial redress.Court can and must allow any member of the public acting bona fide toespouse the cause of such person or class of persons for judicialGenforcement of the fundamental rights. This Court has further observedthat the provisions of Article 32 do not specifically indicate who canmove the court. In the absence of such a provision in that respect, it isplain that the petitioner may be anyone in whom the law has conferredpower to maintain an action of such nature. It is open to anybody who isHinterested in the petition under Article 32 of the Constitution for relief.

The aforesaid proposition cannot be doubted. In the instant case, thepetition cannot be said to have been filed bona fide as in the facts andcircumstances as narrated above. In case it is at the instance of familymembers, their rights have been adjudicated by the High Court andconcluded up to this Court. Accused persons are represented by ablelawyers throughout and in criminal appeals. But unfortunate part is thatthey had a hand in filing of the petition by supplying the materials to thepetitioner CPIL and CPIL in all fairness, ought not to have filed thepetition in the form of PIL but an application should have been filed onbehalf of the accused persons or any other person interested in criminalappeals. When all concerned were aware that appeal was being heardin this Court for the last 2 months before the filing of the petition,publications being made in reports when the appeal has been taken upfor hearing is also not a proper scenario and may tantamount to undueinterference in course of justice.

265. We have dealt with on merits the various submissions raisedby the petitioner as to the falsity of the case of the prosecution andinvestigation in criminal appeals and have found that on merits thesubmissions raised to cast doubt on prosecution case by CPIL arebaseless vide detailed discussion which we have made while dealingwith the criminal appeals decided today by separate judgment in whichwe have reiterated the judgment of conviction recorded by the TrialCourt.

266. During the course of arguments, we had put a query to Mr.Prashant Bhushan, learned counsel appearing on behalf of CPIL, howhe can appear as counsel in the case filed by CPIL as he admittedly is amember of the executive committee of CPIL. In view of the rule ofprofessional ethics framed by the Bar Council of India contained in sectionI of Chapter II of Part VI, Rule 8 is extracted hereunder:

“8. An advocate shall not appear in or before any court or tribunalor any other authority for or against an organisation or an institution,society or corporation if he is a member of the ExecutiveCommittee of such organisation or institution or society orcorporation. “Executive Committee”, by whatever name it maybe called, shall include any Committee or body of persons which,for the time being, is vested with the general management of theaffairs of the organisation or institution, society or corporation:

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Provided that this rule shall not apply to such a member appearingas amicus curiae or without a fee on behalf of a Bar Council,Incorporated Law Society or a Bar Association.”

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267. Rule 8 makes an exception only if such a member is appearingas an amicus curiae or without a fee on behalf of a Bar Council,BIncorporated Law Society or a Bar Association. There is no exceptionto a body like CPIL. Mr. Prashant Bhushan learned counsel has statedthat he had questioned the vires of Rule 8 by way of filing a writ petitionin the High Court. In order to save vires of aforesaid Rule 8, the statementwas made in the Court by the Bar Council that they are going to amendthe rules, however, he submitted that the Bar Council has not amendedCthe rules in spite of making the statement. The rule is arbitrary and ultravires as such he can appear.

268. We are not happy with the entire scenario. There cannot beany justification to appear in violation of Rule 8, on the ground that therule is arbitrary or ultra vires. The rule is not so far declared to be illegalDor ultra vires by the Court. The Rule 8 is binding on the members of theBar unless and until the rule in question is amended or declared to bearbitrary or ultra vires for any reason, it is to be observed scrupulouslyby members of the Bar. Rules of professional ethics are meant to beobserved by all concerned. In case their observance is done in a breachEthat too before this Court and that too knowing its implication on theaforesaid canvassed untenable ground, no one can prevent breach ofrules of ethics. If the Bar Council after making a statement has notamended the rule, the rule ought to have been questioned afresh in anappropriate petition. The appearance on behalf of the CPIL by a lawyerwho is in the Executive Committee of the said Centre, cannot be said toFbe proper as it is defined misconduct under the rules. This is in breach ofRule 8 of the aforesaid Rules. We need not say any further on this.However, until it is declared ultra vires, we hold that the advocates arebound to observe the same.

269. Resultantly, we find that the petition cannot be said to haveGbeen filed bona fide. Even otherwise, the petition is bereft of merit. Itraises the mainly same questions which have been dealt with in theappeal. There is no such further material so as to direct furtherinvestigation or re-investigation in the case. The matter should have rested H

finally as the petition filed by the family members also stands dismissedby this Court raking up of the matter, again and again, is not permissibleand was wholly unwarranted in the facts and circumstances of the case.The same amounts to political vendetta.

The petition is thus liable to be dismissed.

CONCLUSION

CRIMINALAPPEAL NOS.140, 142-146 AND 149-151 OF2012

270. In view of the aforesaid discussion, we restore the convictionand sentence imposed by the Trial Court on A-1 (Mohmed Asgar Ali)(Criminal Appeal No.149 of 2012), A-4 (Kalim Ahmed) (Criminal AppealNo.142 of 2012), A-5 (Anas Machiswala) (Criminal Appeal No.145 of2012), A-6 (Mohmed Yunus Sareshwala) (Criminal Appeal No.146 of2012), A-7 (Rehan Puthawala) (Criminal Appeal No.143 of 2012), A-8(Mohmed Riyaz @ Goru) (Criminal Appeal No.144 of 2012), A-9(Mohmed Parvez Sheikh) (Criminal Appeal No. 140 of 2012), A-10(Parvez Khan Pathan) (Criminal Appeal No.150 of 2012) and A-11(Mohmed Faruq) (Criminal Appeal No.151 of 2012) under Section 3(1)and 3(3) of POTA and 120-B and Section 302 read with Section 120-BIPC as ordered by the Trial Court. The appeals are accordingly disposedof.

CRIMINALAPPEALNOS.141, 147 AND 148 OF2012

271. However, with respect to A-2 (Mohmed Abdul Raouf)(Criminal Appeal No.147 of 2012), A-3 (Mohd. Shafiuddin) (CriminalAppeal No.148 of 2012) and A-12 (Shahnawaz Gandhi) (Criminal AppealNo.141 of 2012), the CBI did not prefer any appeal in the High Courtagainst them and since A-3 (Mohd. Shafiuddin) and A-12 (ShahnawazGandhi) have completed the sentence fully awarded to them by the TrialCourt and in the case of A-2 (Mohd. Abdul Raouf) as modified by theHigh Court, no further interference is made and the appeal against themis dismissed. (The names of accused have been used as per the TrialCourt judgment).

CRIMINALAPPEAL NOS.83-94 OF2012

272. The appeals filed by State of Gujarat stand disposed of interms of decision rendered in Criminal Appeal Nos.140-151 of 2012.

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ACRIMINALAPPEALNO……./2019 @ SPECIALLEAVEPETITION (CRL.) NO.5530 OF 2017AND CRIMINALAPPEALNO……./2019 @ SPECIALLEAVE PETITION (CRL.)NOS.9028-9029 OF 2016

273. With respect to accused Mohd. Sheikh, a separate trial wasBheld. In his conviction and sentence under section 174A IPC as orderedby the High Court, no interference is made. He has been acquitted exceptunder section 174A IPC by the trial court as well as by the High Court.The appeal against him filed by the CBI is dismissed. Appeal by theaccused is also dismissed.

WRIT PETITION (CRIMINAL) NO.26 OF 2019

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274. No ground for further re-investigation or investigation is madeout in the matter. The writ petition is dismissed with cost ofRs.50,000/- to be deposited by petitioner with Supreme Court BarAssociation Advocates Welfare Fund within a month.

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Kalpana K. Tripathy

Matters disposed of.

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