Adambhai Sulemanbhai Ajmeri & Ors. Vs. State of Gujarat
[Criminal Appeal No. 45 of 2011]
V. GOPALA GOWDA, J.
1. These appeals are filed by the convicted accused appellants as they are aggrieved by the conviction and sentences awarded to them by the Special Court (POTA), and confirmed by the High Court of Gujarat for the offences punishable under the provisions of the Indian Penal Code, 1860 (hereinafter 'IPC'), the Arms Act, 1959, the Explosive Substances Act, 1908 and the Prevention of Terrorism Act, 2002 (hereinafter 'POTA') as per list in para 2 below, for the attack on the Akshardham temple in Gandhinagar between the afternoon of 24.09.2002 and early morning of 25.09.2002, wherein 33 people were killed and more than 85 people were injured.
2. The following list outlines the charges against each of the accused and the conviction and sentences meted out to them by the Special Court (POTA), Ahmedabad, and upheld by the High Court of Gujarat. Accused no.1 is not in appeal before us. The appellant nos. 1-5 before us will hereinafter be referred to as per their position as accused i.e A-2 to A-6. Appellant no.4, Abdullamiya Yasinmiya Kadri (A-5) has already undergone 7 years out of the 10 years of sentence awarded by the learned Judge, Special Court (POTA) and by order dated 03.12.2010, this Court directed him "to be released to the satisfaction of the trial court." The following list outlines the charges, conviction and sentences awarded to each of the accused-appellants. All the accused persons had been charged with offences under the following sections by the learned Judge, Special Court (POTA):
1.Section 120B of the IPC .
2. Section 120B of the IPC read with Sections 121, 123, 124A, 153A, 302 and 307 of the IPC .
3.Section 120B of the IPC read with Sections 25(1AA) 27 and 29 of the Arms Act.
4.Section 120B of the IPC read with Sections 3, 4 and 6 of the Explosive Substances Act. 5.Section 120B of the IPC read with Sections 3(1)(a) and (b), 3(3), 4, 20 and 21(2) (b) of the POTA.
6.Additionally, A-2 had been charged with offence under Section 452 of the IPC (for entering Akshardham illegally).
7.Additionally, A-6 had been charged under Section 135(1) of the Bombay Police Act, 1951 (for illegally possessing arms and explosives despite notification, in force, issued by Gandhinagar District Police Official).
The Special Court (POTA) framed the aforesaid charges and convicted and sentenced the accused persons as per nature of offences detailed hereunder:
Altaf Malek (hereinafter 'A-1')
Gathered the Indian Muslims who had gone to Saudi Arabia. Associated with banned organizations like Lashkar-e-Toiba. Collected funds from Jaish-e-Mohammed.Convicted and sentenced under:
• Section 22 (1) of POTA. Rigorous Imprisonment for 5 years with a fine of Rs.5,000/- and in default of payment of fine, simple imprisonment for 6 months. He was acquitted of rest of the charges.
Adambhai Ajmeri (hereinafter 'A-2')
Talked to locals to get idea about city, and to get idea about lodging etc. They took him to A-4 and A-5. Received money through Havala. Meeting on 24.06.2002 with witness at G Royal Hotel, Hyderabad. Absconding accused gave him Rs 3,500 Picked up the two assailants (hereinafter referred to as the 'fidayeens') from the railway station and gave them shelter. Moved around in an auto rickshaw and showed the fidayeens places around the city, where strikes could be done and also arranged for their night stay at his brother's place. Was present at Akshardham at the time of the incident and exited when the firing started.Convicted and sentenced under:
•Section 3 (3) of POTA- Life imprisonment and a fine of Rs.10,000/- and in case of default, simple imprisonment for 2 years.
• Section 3 (3) read with Section 5 of POTARigorous imprisonment for 10 years and a fine of Rs.5,000/- and in case of default, simple imprisonment for 1 year.
• ection 22 (2) (a) and (b) of POTA - Rigorous imprisonment for 10 years and fine of Rs.20,000/- and in case of default, simple imprisonment for 1 year.
• Section 120B IPC read with Section 4 of Explosive Substances Act - Rigorous imprisonment for 10 years and fine of Rs.10,000/- and in case of default, simple imprisonment for 2 years.
• Section 120B IPC read with Sections 3 and 6 of Explosive Substances Act - life imprisonment and fine of Rs.20,000/-.
• Section 120B IPC read with Section 302 IPC - Death penalty (hanging by neck till death) and fine of Rs.25,000/-.
• Section 120B IPC read with Section 307 IPC - life imprisonment and fine of Rs.20,000/- and in case of default, simple imprisonment for 1 year. ô€‚¾ Section 120B IPC read with Section 27 of Arms Act- Rigorous imprisonment for 7 years and fine of Rs.10,000/- and in case of default of fine, simple imprisonment for 1 year.
• The accused was acquitted of the rest of the charges.
Mohammed Salim Hanif Sheikh (hereinafter 'A-3')
Gathered Indian Muslims working in Saudi Arabia at his home and showed them instigating videos. Is a member of Jaish-e-Mohammed and Lashkar-e- Toiba. Made instigating speeches with the intention of endangering the unity and integrity of India. Became a member of Jaish-e-Mohammed and took funding from them.Convicted and sentenced under:
• Section 3 (3) of POTA- Life imprisonment and a fine of Rs.10,000/- and in case of default, simple imprisonment for 2 years.
• Section 3(3) read with section 5 of POTA, Rigorous imprisonment for 10 years and a fine of Rs.5,000/- and in case of default, simple imprisonment for 1 year.
• Section 20 of POTA - Rigorous imprisonment for 5 years and fine of Rs.20,000/- and in case of default, rigorous imprisonment for 1 year.
• Section 21 (2) (b) of POTA - Rigorous imprisonment for 10 years and a fine of Rs.10,000/- and in case of default, simple imprisonment for 1 year.
• Section 22 (1) (a) of POTA - Rigorous imprisonment for 10 years and a fine of Rs.20,000/- and in case of default, simple imprisonment for 2 years.
• Section 120B IPC read with Section 4 of Explosive Substances Act - Rigorous imprisonment for 10 years and a fine of Rs.10,000/- and in case of default, simple imprisonment for 2 years.
• Section 120B IPC read with Sections 3 and 6 of Explosive Substances Act - life imprisonment and fine of Rs.20,000/-.
• Section 120B IPC read with Section 302 IPC - life imprisonment till his natural life (till he is alive) and a fine of Rs.25,000/-.
• Section 120B IPC read with Section 307 IPC - life imprisonment and fine of Rs.20,000/- and in case of default, simple imprisonment for 1 year.
• Section 120B IPC read with Section 121A IPC Rigorous imprisonment for 10 years and a fine of Rs.5,000/- and in case of default, simple imprisonment for 1 year.
• Section 120B IPC read with Section 153A IPC Rigorous imprisonment for 3 years and a fine of Rs.5,000/- and in case of default, simple imprisonment for 6 months.
• Section 120B IPC read with Section 27 of Arms Act, Rigorous imprisonment for 7 years and a fine of Rs.10,000/-, and in case of default, simple imprisonment for 1 year.
• The accused was acquitted of the rest of the charges.
Abdul Qaiyum Muftisaab Mohmed Bhai (hereinafter 'A-4')
Gave shelter to the fidayeens. Wrote the two Urdu letters recovered from the fidayeens, which spoke of instigating violence and atrocities and communal riots.Convicted and sentenced under:
• Section 3 (3) of POTA- Life imprisonment and a fine of Rs.10,000/- and in default of payment, simple imprisonment for 2 years.
• Section 3 (3) read with section 5 of POTA - Rigorous imprisonment for 10 years and a fine of Rs.5,000/- in default of payment of fine, simple imprisonment for 1 year.
• Section 120B IPC read with Section 4 of Explosive Substances Act - Rigorous imprisonment for 10 years and a fine of Rs.10,000/- in default of payment of fine, simple imprisonment for 2 years.
• Section 120B IPC read with Sections 3 an 6 of Explosive Substances Act - life imprisonment and a fine of Rs.20,000/-, in default of payment of fine to recover the amount in accordance with law.
• Section 120B IPC read with Section 302 IPC - Death penalty (hanging by neck till death) and a fine of Rs.25,000/- in default of payment of fine to recover the amount in accordance with law.
• Section 120B IPC read with Section 307 IPC - life imprisonment and fine of Rs.20,000/- in default of payment of fine, a simple imprisonment for 1 year.
• Section 120B IPC read with Section 153A IPC Rigorous imprisonment for 3 years and a fine of Rs.5,000/- in default of payment of fine, a simple imprisonment for 6 months.
• Section 120B IPC read with Section 27 IPC of Arms Act, Rigorous imprisonment for 7 years and a fine of Rs.10,000/-, in default of fine a simple imprisonment for 1 year.
• Section 120B IPC read with Section 121A IPC Rigorous imprisonment for 10 years and a fine of Rs.5,000/- in default of payment of fine, a simple imprisonment for 1 year.
• The accused was acquitted of the rest of the charges.
Accused-5 Abdullamiya Yasinmiya (hereinafter 'A-5')
Member of Jaish-e-Mohammed and Lashkar-e-Toiba. Gave shelter to the fidayeens. Dropped them near Kalur Railway Station, had also put them in an ambassdor car to take them to the temple. Convicted and sentenced• Section 3 (3) of POTA- Rigorous imprisonment for 10 years and a fine of Rs.10,000/- and in default of payment, simple imprisonment for 2 years.
• The accused was acquitted of the rest of the charges.
Accused-6 Chand Khan (hereinafter 'A-6')
Met the dead terrorists, also bought an ambassador car worth Rs 40,000 and made secret compartment for storing weapons and explosives. Came from Ahmedabad to Bareilly with explosives, moved the fidayeens in an auto, and helped to transfer the weapons. Received Rs 30,000/- from Zuber (a dead terrorist, killed in a separate encounter)Convicted and sentenced under:
• Section 3 (3) of POTA- Life imprisonment and a fine of Rs.10,000/- in default of payment of fine, simple imprisonment for 2 years.
• Section 3 (1) of POTA, life imprisonment and a fine of Rs.25,000/- in default of payment of fine, the same shall be recovered in accordance with law.
• Section 3 (3) read with Section 5 of POTA, Rigorous imprisonment for 10 years and fine of Rs.5,000/- in default of payment, simple imprisonment for 1 year.
• Section 120B IPC read with Sections 3 an 6 of Explosive Substances Act - life imprisonment and a fine of Rs.20,000/-, in default of payment of fine to recover the amount in accordance with law.
• Section 120B IPC read with Section 4 of Explosive Substances Act - Rigorous imprisonment for 10 years and a fine of Rs.10,000/- in default of payment of fine, simple imprisonment for 2 years.
• Section 120B IPC read with Section 302 IPC - Death penalty (hanging by neck till death) and a fine of Rs.25,000/- in default of payment of fine to recover the amount in accordance with law.
• Section 120B IPC read with Section 307 IPC - life imprisonment and fine of Rs.20,000/- in default of payment of fine, simple imprisonment for 1 year.
• Section 120B IPC read with Section 25 (1AA) of Arms Act - rigorous imprisonment for 7 years and a fine of Rs.10,000/-, in default of fine a simple imprisonment for 2 years.
• The accused was acquitted of the rest of the charges.
3. The aforesaid sentences imposed upon each accused person were ordered to run concurrently. The accused persons were allowed to set off the sentences for the time spent in custody, wherever applicable. Various sentences of rigorous imprisonment, life imprisonment and death sentence as detailed in the list above were passed against the accused persons by the Special Court (POTA) in POTA case No. 16 of 2003 by the judgment dated 01.07.2006, which was affirmed by the High Court of Gujarat at Ahmedabad by the impugned judgment and order dated 01.06.2010 in Criminal Confirmation Case No. 2 of 2006 along with Criminal Appeal Nos. 1675 of 2006 and 1328 of 2006.
4. Aggrieved by the said impugned judgment and order of the High Court of Gujarat, all the accused persons except A-1 have appealed before this Court challenging the correctness of their conviction and sentences imposed upon them, urging various legal and factual grounds in support of the questions of law raised by them.
5. Certain relevant facts are stated herein below for the purpose of examining the correctness of the findings and reasons recorded by the High Court in the impugned judgment and order while affirming the findings and reasons recorded in the judgment and order passed by the Special Court (POTA). The facts of the incident leading up to the case, the arrest of the accused persons and their trial and conviction are detailed below:
On 24.09.2002 at about 4.30 p.m., two persons armed with AK-56 rifles, hand grenades etc. entered the precincts of the Swaminarayan Akshardham temple situated at Gandhinagar, Gujarat from gate No.3. They fired indiscriminately towards the children, games and rides and started throwing hand grenades. While continuing the attack, they reached gate No. 2 of the temple and fired at the worshippers, devotees, volunteers and visitors and then proceeded towards the main building. Since the main door of the temple was locked, they moved towards the Sachchidanand Exhibition Hall, killing and injuring women, children and others.
Thereafter, immediately CRPF personnel, Deputy Inspector General (DIG), Gujarat State and other senior police officers along with SRP commandos rushed to the place of offence to return the fire. Ambulances were called and other police forces were also urgently called at the place. The team led by Mr. V.B. Rabari - Inspector General of Police, Mr. R.B. Brahambhatt - Deputy Superintendent of Police, Gandhinagar and four other special reserve police commandos climbed on the roof. By that time, the terrorists (fidayeens) once again started firing. A fierce gun battle ensued, and there was also a bomb blast.
6. In the meantime, a team of National Security Guard (NSG) commandos was summoned from New Delhi. They arrived by a chartered flight and took control at about 12.00 at midnight. After understanding the topography of the area, they began the counter attack against the fidayeens. Exchange of firing continued and lasted for nearly 5 hours which went on into the wee hours of 25.9.2002. Eventually both of them were killed in the early morning hours as they succumbed to the injuries received in the said operation. It is the further case of the prosecution that a large quantity of fire arms and explosive substances were carried by the two fidayeens. Some of the explosives were seized along with other articles from the premises. The attack resulted in the killing of 33 persons, including NSG commandos, personnel from the State Commando Force and three other persons from SRP group. Nearly 86 persons, including 23 police officers and jawans were grievously injured. Those who were injured or killed during the attack were removed to Sola Civil Hospital and to Civil Hospital, Ahmedabad.
7. A complaint was lodged by the then ACP Mr. G.L. Singhal, (Prosecution Witness (hereinafter 'PW')-126) on 24.09.2002 at the Gandhinagar Sector 21 police station. After the possession of the temple premises was handed over from NSG Commandos to the state police, an FIR was registered being Ist CR No. 314 of -16- 2002 on 25.09.2002 for the offences punishable under Sections 120-B, 302, 307, 153-A, 451 of the IPC by PW- 126. A Report under Section 157 of the Code of Criminal Procedure (hereinafter 'CrPC') was also prepared. The same was lodged against the unknown persons aged between 20 to 25 years and the investigation was handed over to Police Inspector Mr. V.R. Toliya (PW-119) of the local Crime Branch, Gandhinagar. It is the case of the prosecution that some articles were received from Brigadier Raj Sitapati, Head of the NSG, which were collected from the clothes of the dead bodies of the fidayeens, and according to them, these articles included two letters written in Urdu language, allegedly found in the pocket of each one of the fidayeens.
8. The investigation of the crime continued for sometime under the said Police Inspector and thereafter, the Anti Terrorist Squad (ATS) was directed by the Director General of police, State of Gujarat to take over the investigation of the case. The investigation continued but nothing fruitful came out of the attempt of the investigating officer to trace the accused persons who were involved in the conspiracy and other offences committed by two fidayeens. The investigation of the case was transferred to ACP Singhal (PW-126) of the Crime Branch who was the complainant in the case, on 28.08.2003 at the direction of the DGP from Mr. K.K. Patel of ATS with 14 files, each with index.
9. On 29.08.2003 at 2 p.m., A-1 to A-5 were arrested by PW- 126 and the matter was investigated further. The prosecution alleged that the criminal conspiracy was hatched at Saudi Arabia, Hyderabad, Ahmedabad and Jammu and Kashmir by some clerics, along with a few others, as they had become spiteful after the incidents of riots which had taken place in the state of Gujarat after the Godhra train burning incident in 2002. Subsequently, A-6 was also taken into custody and arrested by the Gujarat police on 12.09.2003 from the State of Jammu and Kashmir. It is also the case of the prosecution that after investigation, the matter was concluded and the charge sheet was filed against all the six accused persons by the Crime Branch, after obtaining necessary sanction from the State Government for the purpose of taking cognizance of the offence in compliance with Section 50 of POTA.
In the said charge sheet, 26 persons were shown as absconding accused. The five accused persons, who were arrested on 29.08.2003, remained in the police custody, which had been sought from the Judicial Magistrate, Gandhinagar on 29.08.2003. Provisions of POTA were invoked by the police on 30.08.2003. The chargesheet was filed before the designated Court constituted under Section 23 of POTA, on 25.11.2003. It is further the case of the prosecution that the chargesheet was filed by the Investigating Officer after obtaining necessary sanction order as required under Section 50 of POTA from the government of the state of Gujarat vide sanction order dated 21.11.2003 [Exhibit (hereinafter 'Ex.')498].
10. It is the case of the prosecution that the confessional statements of the accused persons were recorded by the Superintendent of Police, Sanjaykumar Gadhvi (PW-78), as provided under Section 32 of the POTA by following the mandatory procedure.
11. There were 376 witnesses shown in the chargesheet. Out of those, 126 witnesses were examined by the prosecution to prove the charges against the accused persons. The prosecution witnesses were examined on various dates and through them, various Exs. namely, 117 to 679 were marked. The details of the names of the prosecution witnesses and the dates of examination and the marking of exhibits to them are described in the judgment passed by the Special Court (POTA) and the same need not be adverted to in this judgment as it is unnecessary.
12. The Special Court (POTA) had formulated 8 points for its consideration and answered the same in the judgment by accepting the case of the prosecution and passed an order of conviction against all the accused persons and sentenced A-2, A-4 and A-6 to death, A-3 to life imprisonment, A-1 to rigorous imprisonment for 5 years and A-5 to rigorous imprisonment for 10 years.
13. A reference was made to the High Court of Gujarat under Section 366 of the CrPC for confirmation of the death sentence imposed upon A-2, A-4 and A-6. All the accused persons appealed before the High Court against their conviction and sentences imposed on them.
14. The Division Bench of the High Court, after adverting to the charges framed against each one of accused persons under the provisions of POTA, Explosive Substances Act, Arms Act and IPC, and the punishment imposed for each one of the offences under the aforesaid provisions of the Acts and Code, confirmed the order passed by the Special Court (POTA). Briefly stated, the High Court held that the attack was an act of retaliation against the incidents of communal riots which took place in the State of Gujarat in the months of March and April, 2002 during which several Muslim persons had lost their lives and properties. The High Court stated: "Therefore, the terrorist attack was conceived by some unknown persons of foreign origin presumably of Pakistan and Saudi Arabia. The Indian Muslims residing in Saudi Arabia were instigated to retaliate for the incidents which happened during the months of March and April, 2002 and were enticed to fund the terrorist attack. The Fidayeens were recruited by the said masterminds who traveled to Ahmedabad by train from Kashmir via Bareily and they were provided with rifles, hand grenades, gun-powder and other weapons. The said accused persons joined them in providing necessary hide-outs in the city of Ahmedabad and also provided them transport to go in and around the city of Ahmedabad and helped them in selecting the place and time for carrying out the attack. The accused persons also helped in giving them last rites of namaaz for their well being (Hifazat)."
15. The High Court further held that a criminal conspiracy was hatched to strike terror amongst the Hindus in the State of Gujarat. The accused persons and the absconding accused, were in connivance, had gathered the Indian Muslims working in the towns of Jiddah, Shiffa and Riyadh of Saudi Arabia at the residence of A-3. A-1, A-3 and A-5 and the absconding accused Nos. 3 to 5 and 12 to 22, who at the instance of the ISI of Pakistan became members of the terrorist outfit "Jaish-e-Mohammad", and collected funds for it to spread terror in the State of Gujarat. They showed the cassettes of the loss caused to the Muslims in the State of Gujarat and the gruesome photos and the videos of the dead bodies of Muslim men, women and children, at the residence of A-3; distributed the cassettes and made enticing statements to damage the unity and integrity of India and to cause loss to the person and property of Hindu people. It was also observed by the High Court that to carry out the criminal conspiracy, the absconding accused No. 16 visited the relief camps run at Ahmedabad during the communal riots.
16. The statements of the injured witnesses were examined, which is also adverted to in the impugned judgment and the High Court stated that the casualties are also proved by the postmortem notes Exs. 170 and 171 and by examining various doctors and prosecution witnesses.
17. The High Court in the impugned judgment also noted that there is a reference made to the injuries sustained by the individuals which is proved by the medical certificates and the same have been proved by the doctors. The High Court also referred to handing over of the list (Ex.524), recovered from the bodies of fidayeens, including notes in Urdu, by Maj. Jaydeep Lamba (PW-91) to PW-126 under Panchnama (Ex. 440) and the same is proved by the Panch-Vinodkumar Valjibhai Udhecha (PW-74.) Reference of recovery of white coloured AD Gel pen from the scene of offence under Panchnama (Ex.650) is proved by the Panch-Hareshbhai Chimanlal Shah (PW-11 : Ex.649). The said pen was sent to the Forensic Science Laboratory (in short 'FSL') under Panchnama (Ex.621). The FSL report (Ex.668) confirmed that the Urdu writings (Ex. 658) were in the same ink as that of the muddamal pen.
There was also reference made of recovery of muddamal articles in the afternoon of 25.9.2002 (84 in number) from the temple precincts under Panchnama (Ex.396) which is proved by panch-Prakashinh Ratansinh Waghela (PW-71 : Ex.395). There was further reference of recovery of empty bullet of Rifle-303, Rifle Butt No. 553, disposal of left out hand grenades, recovery of empties from the fire arms of the SRP Jawans, the empties produced by I.G. Shri V.V. Rabari, production and sealing of Dongri of the police constable, recovery of bullets from the injured witnesses, production of clothes of injured PSI-Digvijaysinh Chudasama and injured witness, the splinters of hand grenades and bullets recovered from the injured and these are proved by the panchnama Exs. 553, 106, 121, 107, 596, 108 597, 109, 110, 111 and 160. Also, the reference of recovery of the disputed signature of witness-Abdul Wahid (PW-56) in the entry register of Hotel G. Royal Lodge, Naampalli, Hyderabad and the collection of his specimen signature collected under Panchnama (Ex.583) is proved by Panch-Manubhai Chhaganlal Thakker (PW :Ex.581) and collection of the natural signature of the witness Abdul Wahid (PW-56) under Panchnama (Ex.684) is proved by the investigating officer ACP Singhal (PW-126 : Ex.679).
Reference was made to the Panchnama (Ex.682) proved by Panch-Dipakshinh Ghanshyamsinh Chudasama (PW-62: Ex.344) regarding seizure of Auto-rickshaw No. GRW-3861 wherein the fidayeens visited various places and the route they had taken in Auto-rickshaw on 22.09.2002 and the route to Akshardham Temple on 24.09.2002, was traced by A-2. Reference was also made of the house of Abbas (the brother of A-2) in which fidayeens and Ayub (absconding accused No. 23) were provided lodging, was identified by A-2 under Panchnama (Ex.580) proved by the Panch-Jignesh Arvindbhai Shrimali (PW-100 :Ex.579). There is also reference of seizure of Panchnama (Ex.336) of the Passport and a piece of paper containing telephone numbers, a telephone diary and electricity bill of February, 2003 of A-2 proved by the Panch-Santosh Kumar R. Pathak (PW-59 :Ex.335). The panchnama (Ex.446) of collection of the natural signature of A-2 is proved by the Panch-Mukeshbhai Natwarlal Marwadi (PW-75:Ex.445) and recovery of specimen handwriting of A-2 under Panchnama (Ex.448) is proved by Panch-Dineshbhai Chunaji Parmar (PW- 76:Ex.447).
There is also panchnama of seizure of recovery of Railway ticket(Ex.589) from Ahmedabad to Mumbai dated 22.04.2002, communication regarding cancellation of ticket dated 22.04.2002, telephone charge slips and the expense account for mattresses, fan, petrol, food and hotel from the residence of A-2 has been proved by the Panch-Navinchandra Bechardas Kahaar (PW-103 : Ex.585). There is also seizure of the Accounts Diary from Mehboob-ellahi Abubakar Karim (PW- 82) to prove receipt of Rs.10,000/- and Rs.20,000/- sent from Riyadh and paid to the A-2 under the Code "JIHAD" under Panchnama (Ex.481), which is proved by the Panch-Bharatbhai Babulal Parmar (PW-102 : Ex.584). There is recovery of natural handwriting (Ex.613) of A-4 from a diary identified by him, which was recovered under Panchnama (Ex.309) and proved by the Panch-Ashok Manaji Marwadi (PW-49 :Ex.308).
Collection of the specimen writing (Ex.698) of A-4 under Panchnama (Ex.334) is proved by the Panch-Arvindbhai Jehabhai Chavda (PW-58 : Ex.333). The High Court stated that the handwriting expert Jagdishbhai Jethabhai Patel (PW-89 : Ex.507) has proved that the disputed writings marked A/5/A and A/5/B (Urdu writings Ex.658) were the same as the natural handwriting and the specimen writing of A-4. The report (Ex.511), which is the opinion of the handwriting expert, is also confirmed by the expert report (Mark-T) of R.K. Jain, Directorate of Forensic Sciences, Hyderabad and in the presence of the Panch - Bhikhaji Bachuji Thakore (PW-6: Ex.343). Under Panchnama (Ex.681), A-4 and A-5 identified the place where the last namaaz was performed for the fidayeens and the place where the weapons were packed. The witness identified A-4 and A-5 in the court. Reference was made to the recovery of muddamal-ambassador Car No. KMT-413 from the compound of SOG Camp, Srinagar, J & K.
The existence/disclosure of concealed cavity under the rear seat of the car in Panchnama (Ex.671), is proved by the Police Inspector-Shabirahmed (PW-123 : Ex.670) and the Assistant Sub-Inspector Gulammohamad Dar (PW-124 : Ex.673). Reference was made of the disputed handwriting of Yusufbhai Valibhai Gandhi (PW- 57) from entry No.81 dated 23.09.2002 and his natural handwriting from entry Nos. 224, 225 and 226 of 24.05.2003 and 26.05.2003 from the passenger register of Gulshan Guest House in Panchnama (Exs.317 and 319) which have been proved by the Panch-Poonambhai Narshibhai Parmar (PW-54: Ex.318) and Panch-Ashok Sahadevbhai Kahaar (PW-53: Ex.316) respectively. The Panch-Poonambhai Narshibhai has also proved recovery of the disputed signature of A-6, from column No.13 of the aforesaid entry No.81.
The collection of specimen handwriting of Yusuf Gandhi (PW-57) in Panchnama (Ex.321) is proved by Panch-Sajubha Adarji Thakore (PW-55:Ex.320). The High Court has made further reference that A-6 identified STD booths used by him during his stay in Ahmedabad on 23.09.2002 and 24.09.2002 under Panchnama (Ex.342) proved by Panch- Prahlad Bagadaji Marwadi (PW-60 : Ex.341). Further, there is reference to A-6, who identified the places visited by him, and the way to Gulshan Guest House from Railway Station under Panchnama (Ex.591) proved by Panch-Natwarbhai Fakirchand Kahar (PW-104 : Ex.590). Reference is also made by the High Court of the Taxi Driver, Rajnikant (Rajuji) Thakore, who identified the dead bodies of the fidayeens under Panchnama (Ex.130) which is proved by Panch-Bhupatsinh Chandaji Waghela (PW-5 : Ex.129). The route of the fidayeens from Kalupur Railway Station to Akshardham gate no.3 is identified by Taxi driver Rajnikant Thakore (PW-68) under Panchnama (Ex.131) proved by Panch-Bhupatsinh Andaji Waghela (PW-5: Ex.129).
18. From paragraph 75 onwards in the impugned judgment, the Division Bench of the High Court has referred to the judgments of this Court. Reliance was placed on the cases of S.N. Dube v. N.B. Bhoir & Ors.1 and Lal Singh etc.etc. v. State of Gujarat & Anr.2 which made reference to the confessional statement recorded under Section 15 of Terrorist and Disruptive Activities (Prevention) Act,1987 (hereinafter 'TADA'), wherein this Court rejected the contention urged on behalf of the accused persons that the confessional statements were inadmissible in evidence because (a) the statements were recorded by the investigating officer or the officers supervising the investigation (b) the accused persons were not produced before the judicial Magistrate immediately after recording the 1 (2000) 2 SCC 254 2 (2001) 3 SCC 221 confessional statements and (c) guidelines laid down in the case of Kartar Singh v. State of Punjab3 were not followed. Reliance was also placed by the High Court on the case of State of Maharashtra v. Bharat Chaganlal Raghani & Ors.4, wherein this Court held the confessional statements of the accused persons to be admissible in evidence. The Court further held that confessional statements having been proved to be voluntarily made and legally recorded, can be used against all or some of the accused persons in the light of other evidence produced in the case.
19. The High Court referring to the broad principles covering the law of conspiracy as laid down in the case of State of Tamil Nadu v. Nalini & Ors.5, and also referring to Section 120-A of IPC which constitutes the offence of criminal conspiracy, held 3 (1994) 3 SCC 569 4 (2001) 9 SCC 1 5 (1999) 5 SCC 253 that the acts subsequent to achieving an object of criminal conspiracy may tend to prove that a particular accused person was a party to the conspiracy. Conspiracy is hatched in private or in secrecy and it is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused persons. Further, reference was also made to the judgment in the case of State of W.B. v. Mir Mohammad Omar & Ors.6, wherein it was held that the courts should bear in mind the time constraints on the police officers in the present system, the ill equipped machinery they have to cope with and the traditional apathy of respectable persons towards them. 6 (2000) 8 SCC 382 The High Court also relied upon the case of Rotash v. State of Rajasthan7, wherein this Court held that the investigation was not foolproof but that defective investigation would not lead to total rejection of the prosecution case. Further, reference of State of M.P. v. Mansingh8 in the case of Rotash (supra) in support of the aforesaid proposition of law.
20. The Division Bench of the High Court also referred to the evidence of Asfaq Abdulla Bhavnagari (PW-50: Ex.312) who had worked at Riyadh in Saudi Arabia and whose statement was recorded by the police, which according to the prosecution, led to the revelation of the entire conspiracy.
21. The High Court further placed reliance upon the statement of Mohammed Munaf Hajimiya Shaikh (PW-52 : Ex.315) who gave evidence against A-2, A-4 and A-5 7 (2006) 12 SCC 64 8 (2003) 10 SCC 414 regarding running of relief camp in the State of Gujarat and against his brother Abdul Rashid Sulemanbhai Ajmeri (absconding accused No. 4). According to the witness, A-5 and A-4 advised A-2 to go ahead with the plan and gave telephone number of one Nasir Doman to A-2. He identified A-2, A-4 and A-5 in the court.
22. The High Court also placed reliance on the statement of Abdul Wahid (PW-56 : Ex.325), who admitted that on 24.04.2002 he had gone to Hyderabad with A-2 and that they had met Khalid (absconding accused No. 16) there. According to this witness, the said Abdul Raheman @ Abu Talah @ Khalid had made arrangement for their lodging at Hotel G-Royal. He also admitted to having met Ayub (absconding accused No.23) at Hyderabad. He further admitted the disputed signature in the hotel register (muddamal article no. 129) and the specimen signature (muddamal article no. 131) as that of his own. He also identified A-2 in the court.
23. The High Court also placed reliance on the statement of Mehboob-e-llahi Abubakar Karimi (PW-82) who has admitted to transfer of money through him. He also admitted the payment made to A-2 and identified the muddamal Diary (article no. 106) and the entries (Ex.477) and (Ex.478) made in respect of the aforesaid transfer of money. The High Court further placed reliance on the statement of Sevakram Bulaki (PW-97 : Ex.563), owner of Hotel G. Royal Lodge, Hyderabad, who supported the prosecution version and admitted to having allotted Room No. 322 to two persons namely Abdul Shaikh and A.S. Shaikh who came from Ghatkopar, Bombay on 26.04.2002. He further admitted entry (Ex.326) made in the entry register.
24. The High Court further referred to the statement of A-1 (Ex.456) recorded before the Deputy Commissioner of Police Zone-IV, Ahmedabad under Section 32 of POTA, who admitted that he and other Muslims from Gujarat, working at Riyadh used to meet at the residence of A-3 and also admitted that one Karim Annan Moulvi (absconding accused No. 20), who was a native of Pakistan, also used to attend the meetings. He also stated that he used to collect funds in the name of Islam and was connected with Pakistani Jihadi group "Sippa-e-Saheba" and had also become a member of "Jaish-e-Mohammed". The High Court also stated that the confessional statement made by him is supported by the evidence of Abdul Raheman Panara (PW- 51:Ex.314)
25. In paragraph 19 of the impugned judgment, the Division Bench of the High Court examined the admissibility of the confessional statements made by A-1, A-2, A-3, A-4 and A-6 and their probative value and held that the confessional statements were made by the accused persons under Section 32 of POTA before Sanjay Gadhvi, Deputy Commissioner of Police (Zone-IV) (PW-78: Ex.452), Ahmedabad, who had been examined by the prosecution. He had deposed before the Special Court (POTA) about the manner in which the confessional statements of the accused persons were recorded. He also identified and proved their confessional statements (marked as Exs. 454, 456, 458, 460 and 462). He stated before the court that the provisions of POTA were explained to the accused persons before their statements were recorded, and further stated that he had warned them that their statements may be used against them and that they were not bound to make such statements before him.
26. The contention of the counsel for the accused that the aforesaid statements have been recorded mechanically by PW-78, without following the mandatory procedural safeguards provided under Section 32 of POTA, was rejected by the Division Bench of the High Court, which held that the same have been recorded after following the mandatory procedural safeguards provided under Section 32 of POTA, after careful examination of the above provisions of Section 32. The High Court opined that sub-sections (4) and (5) of Section 32 do not make it mandatory for the Police (Recording Officer) to send the accused to judicial custody after recording his confessional statement under Section 32 of POTA.
27. The High Court came to the conclusion that the Chief Judicial Magistrate is obliged to send the accused to judicial custody only in case the accused persons complain of ill-treatment or torture by the police. All the accused persons who made confessional statements appeared before the CJM (PW-99), and they made no complaint against the police and they had also admitted the statement made by them. The Division Bench of the High Court held that the aforesaid facts tend to prove that none of the accused persons making the confessional statement had been ill treated by the police or had been oppressed or lured to do so.
28. Therefore, the High Court has concluded at paragraph 131 of the impugned judgment that the prosecution had proved that the confessional statements of all the six accused persons were properly recorded and procedural requirements under the statute were complied with. The Division Bench of the High Court further recorded the concurrent finding at para 132 of the impugned judgment that if the statutory safeguards are properly followed by the police officer and the CJM, and other facts and evidence on record indicate free will of the accused persons in making the confessional statement, such statement is admissible in evidence and can be relied upon as a truthful account of facts of the crime.
29. The High Court further examined the evidence of Suresh Kumar Padhya CJM (PW-99 : Ex.568) who had recorded the statement of A-1 and A-3 on the request of PW-78, DCP on 18.09.2003, i.e a day after their confessional statements were recorded. A-2 and A-4 made their confessional statements before PW-78 on 24.09.2003 and were sent to PW-99 on 25.09.2003. A-6 made his confessional statement on 05.10.2003 and was sent to PW-99 on 06.10.2003. PW-99 had stated before the Special Court (POTA) that accused persons had stated before him that they were not ill treated by the police. Their statements were read over to them. With regard to cross examination of PW-99, he admitted that he had not inquired from the accused persons as to how long they were in the police custody nor did he send them to judicial custody after recording their statements. He deposed that he did not think it necessary to send the accused persons to the judicial custody. He has also admitted that he had not recorded a specific statement that the accused persons had made confessional statement of their own volition.
30. The High Court considered the evidence of PW-99 and came to the conclusion that the procedural safeguards provided under Section 32 of POTA have been followed by PW-78 to record the statements of the accused persons as per the guidelines issued by the Apex Court in various judgments particularly State of Tamil Nadu v. Nalini & Ors.(supra) and Jayawant Dattatraya Suryarao v. State of Maharashtra9. The High Court came to the conclusion that this Court in the case of Devender Pal Singh v. State of NCT of Delhi10 held that the initial burden is on the prosecution to prove that all the requirements under Section 15 of TADA and Rule 15 of TADA Rules were complied with. Once that is done and the prosecution discharges its burden, then it is for the accused to satisfy the 9 (2001) 10 SCC 109 10 (2002) 5 SCC 234 court that the confessional statement was not made voluntarily. The High Court opined that in present case, each accused making confessional statement was granted time of around 15 minutes to reflect over his decision to make confessional statement, and the High Court stated that there is no evidence on record to suggest that 15 minutes time was inadequate so as to render the confessional statements inadmissible in evidence or unreliable as none of the five accused persons while making the confessional statement had asked for further time. None of them had made a complaint of inadequacy of time before PW-99 and on the other hand, admitted the confessions made by them.
31. The High Court further stated that the contention made by the learned counsel for the accused persons that they were kept in police custody for around 45 days before the official date of arrest, is absolutely unbelievable. Further, sending the accused persons to judicial custody after recording the confessional statement is a matter of prudence and not a statutory requirement. PW-99 had made a specific note on the writings (Exs. 453, 455, 457, 459 and 461), that each of the accused person was asked whether he had suffered ill-treatment at the hands of the police and that none of them had complained of ill-treatment by the police. The Division Bench held the confessional statements of the accused persons to be admissible in evidence in order to prove their guilt, relying on various decisions of this Court.
32. After recording such findings, the defence evidence was also examined. Defence witness (hereinafter 'DW') Nos. 1 to 7 have given evidence and the same have been adduced by the defence to support their claim that the accused persons were arrested long before the official date recorded and that they were tortured by the police to make the confessional statements. The aforesaid evidence of DW-3 referred to A-2 and A-3. The High Court referred to all the defence witnesses, except DW-3 to hold that none of the aforesaid evidence remotely supports the defence version that A-2 and A-3 were arrested long before 29.08.2003, i.e. the dates of arrest as mentioned in their arrest memos. The High Court held that the evidence of the doctors also does not prove the police atrocities allegedly committed upon the accused persons during the period they were in the police custody. All the six accused persons, in their retraction statements, complained of having been beaten up by ACP Singhal (PW-126), V.D. Vanar and R.I. Patel, because of which they could not stand up on their feet. On denying their complicity in the Akshardham attack, they were threatened of being encountered. Each accused persons said that every day they were called either by Singhal, V.D. Vanar or by R.I. Patel and were forced to admit their complicity in the Akshardham attack. On 05.11.2003, the accused persons were produced before the Special Court (POTA) from the judicial custody. Each one of them was given audience before the judge of the Special Court (POTA) wherein, they all made an oral complaint of police atrocities during the police custody and also complained of having been in police custody for long time. According to each accused person, he was made to sign the confessional statement prepared by the police under coercion and duress and had not made the same of his own free will. At paragraph 144 of the impugned judgment, the Division Bench of the High Court had recorded its finding that the aforesaid retractions are ex facie unbelievable, without giving any reason.
33. At para 145 of the impugned judgment, the High Court examined the evidence in respect of the letters written in Urdu (Ex.658), which is a vital incriminating evidence against A-4. According to the defence, these letters were planted by the police at a later stage, and they placed reliance on the evidence of PW-42 (Ex.266), the inquest Panchnama(Ex.267) of the bodies of the deceased fidayeens, the post mortem notes(Ex.492 and Ex.493) and the muddamal clothes of the fidayeens and submitted that since both of them died of bullet wounds sustained during the counter attack by the NSG commandos, the bodies were wounded and soiled in blood, and their clothes were tattered by the bullet holes and the splinters. There were holes in the clothes of the fidayeens particularly on the pockets of their trousers. In the aforesaid circumstances, it is not possible that the letters recovered allegedly from the pockets of the trousers of the fidayeens were unsoiled and in perfect condition, and therefore, the expert opinion (Ex.511) is not very accurate and is not reliable. The High Court stated that it is true that the Urdu letters recovered from the bodies of the deceased fidayeens were in perfect condition in spite of the multiple injuries received by the fidayeens and assigned the reason in paragraph 189 of the impugned judgment as "But then the truth is stranger than fiction" and that it is not possible to disbelieve that two Urdu letters (Exh.658) were recovered from the bodies of the fidayeens. It was stated by the High Court that both the letters were signed by Brig. Raj Sitapati of NSG. The recovery of these letters is recorded in the muddamal articles as per list (Ex.524) which were received by ACP G.L Singhal (PW-126) in the premises of Akshardham temple itself under Panchnama (Ex.440), signed by the Police Officer Shri Prakashchandra Mehra (PW-105 : Exh.592). The evidence and the opinion (Exh.511) of the handwriting expert J.J.Patel (PW-89: Exh.507) was relied upon to prove that the said letters were written by A-4.
34. The argument advanced by the learned counsel for the accused persons regarding the subsequent planting of letters was rejected by the High Court, stating that if this argument was to be accepted, then the aforesaid evidence adduced by the prosecution has to be disbelieved and it has to be held that the police had such presence of mind that in the: "milieu of the aftermath of the terrorist attack, the police thought of creating the evidence, found out a person who knew Urdu, got them to write the write-ups in handwriting that would match the handwriting of accused no.4, Abdul Kayyum, made Lt.Col Lamba and Brig. Raj Sitapathi their accomplices and that the two officers of the NSG readily agreed to be the accomplices. SO did the panch witness, Vinod Kumar(PW-74) and Dilip Sinh (PW-1). This possibility is too far-fetched to believe." The High Court therefore held that the accused persons had committed offences for which they had been charged and confirmed the conviction and sentence, i.e. death sentence awarded to A-2, A-4 and A-6, lifeimprisonment to A-3, five years Rigorous Imprisonment to A-1 and ten years Rigorous Imprisonment to A-5 and the appeals of the accused persons were dismissed. The correctness of the impugned judgment and orders passed by the High Court is under challenge in these appeals by the accused - appellants, in support of which they urged various facts and legal contentions before this Court.
35. The rival legal contentions urged on behalf of the accused persons and the prosecution will be dealt with as hereunder:
Contentions on behalf of the prosecution We will first examine the contentions urged on behalf of the prosecution represented by Mr. Ranjit Kumar, the learned senior counsel appearing on behalf of the State of Gujarat who has advanced the following arguments to establish the guilt of the accused persons:
The procedure under Section 50 of POTA was followed by the State Government while granting sanction:
36. It was contended by the learned senior counsel that on completion of the investigation, PW-126 forwarded a complete set of papers and his report through official channel recommending prosecution against all six accused persons under the provisions of POTA. The sanction granted by the Home Department was given under the signature of the Deputy Secretary of the said department, Mr. J.R Rajput by sanction no. SB.V/POTA/10/2003/152 (Ex.498). All the papers were received by the sanctioning authority on 12.11.2003 and the section officer put up the file to the Under Secretary on 13.11.2003 and after proper application of mind, the sanction was approved by Kuldeep Chand Kapur, Principal Secretary, Home Department (PW-88) on 15.11.2003 and it was sent back to the Minister for State (Home) who approved it on 18.11.2003 and received back these papers from the Minister on 19.11.2003 and thereafter sanction order was issued on 21.11.2003. It was further submitted that the for granting sanction by the Home Department was followed as per the Gujarat Government Rules of Business, 1990. It was submitted that the sanction order was passed by the State Government after proper application of mind by the competent authority. The learned senior counsel also submitted that the learned counsel for A-6, Ms. Kamini Jaiswal placed reliance on the case of Ramanath Gadhvi v. State of Gujarat 11 qua the sanction under Section 20-A (2) of TADA, which has been declared per incuriam by a 5 Judge Bench in the case of Prakash Bhutto v. State of Gujarat 12 and therefore the judgment has no relevance. Confessions of A-1, A-2, A-3, A-4 and A-6 are valid:
37. The learned senior counsel contended that the procedure for recording of the confessions as under 11 (1997)7 SCC 744 12 (2005)2 SCC 409 Section 32 of POTA was scrupulously followed. The accused persons did not make any complaints of beatings or ill treatment by the police when produced before the CJM for remand on different dates. When the complaints were made later, a medical examination was carried out in which none of the complaints were found to be true. The learned senior counsel also submitted that the confessional statements of A-2 and A-4 were recorded on 24-09-2003, that of A-3 on 17-09-2003 and that of A-6 on 05-10-2003. A-5 did not make any confession at all. The retraction to these confessional statements came around five weeks later. He contended that it is clear that these retractions are mechanical as even A-5, who had not made any confessional statement, sent his retraction.
The Urdu letters were collected from the dead bodies of the two fidayeens:
38. The inquest panchnama was drawn of the dead bodies of the two fidayeens by Police Officer Shri Prakashchandra Mehra (PW-105: Exh.592), who in his statement has confirmed the collection of the two Urdu letters. PW-91, Maj. Jaydeep Lamba, who was the commander of the task force, also stated that two Urdu letters were found from the dead bodies of the fidayeens by him and Brig. Raj Sitapati, and that they contain the signature of Brig. Raj Sitapati at the bottom and that a list was prepared of the articles recovered (Ex.524) which` was signed by him. Reliance was also placed by the learned senior counsel on the evidence of PW-89 who had opined that the letters (Ex.658) had been written by A-4. The learned senior counsel also submitted that PW-91 deposed before the court, and that in his cross examination, he was not questioned regarding the 'condition' of the letters written in Urdu, as recovered from the two fidayeens. Similarly, even PW- 126 was not cross examined by the counsel for the accused persons on the condition of the letters. On being questioned by us as to why the letters did not have any blood stains on them, the learned senior counsel submitted that the panchnama stated that the trousers were stained with blood and not soaked with it. Their trousers became wet due to the oozing of blood which has gone to the back of the trousers because of gravity as the bodies were lying on their back after shooting.
The link of accused persons to Akshardham attack has been established.
39. The learned senior counsel had relied upon the confessional statements of the accused persons to draw the link between them and the attack on the Akshardham temple. He had submitted that the confessional statements would clearly go to show how each one of the accused persons had a different and compartmentalized role from the procurement of arms and ammunitions to providing the logistics to the fidayeens for carrying out the operation and the motivation provided for the attack.
The role of A-6 has also been proved.
40. The learned senior counsel submitted that A-6 played a crucial role in bringing the weapons from Kashmir to Bareilly- in his ambassador car bearing registration no. KMT 413, in a secret cavity made underneath the back seat, and thereafter he carried the weapons, concealed in the bedding in the train and accompanied the fidayeens to Ahmedabad. The Navgam Police Station at Jammu & Kashmir had arrested A-6 in offence registered in FIR: CR no. 130 of 2003, and it was during the interrogation in the above said offence that he had disclosed his involvement in the Akshardham attack. A fax message was received by the Gujarat ATS from the IGP Kashmir regarding the same on 31.08.2003. The investigation was conducted by PW-126 who was the then ACP and was authorized to do so as per section 51 of POTA. A team was formed under the proper authorization for collecting materials from different places during investigation. I.K Chauhan (PW- 125) was asked to go for inquiry to Jammu & Kashmir. It was submitted that there were many other evidences, other than his confessional statement, including the testimony of Yusuf Gandhi, owner of Gulshan Guest House, (PW-57) who had stated before the Special Court (POTA) that A-6 stayed there, and also the panchnama of the ambassador car KMT 413 (Ex.671).
Delay in cracking the case.
41. The learned senior counsel submitted that initially the investigation was conducted by V.R Tolia (PW-113) of the Local Crime Branch, Gandhinagar, and thereafter by K.K Patel of the ATS. The investigation was then handed over to G.L Singhal, ACP Crime Branch (PW- 126) on 28.08.2003. It was on 28.08.2003, that Ashfaq Bhavnagri (PW-50) was interrogated, who revealed the entire conspiracy as well as the role of A-1 and A-3 in committing the dastardly offences.
The Conspiracy.
42. It was further submitted that it has been proved that the accused persons, along with the absconding accused hatched a conspiracy to create terror and take revenge on the Hindus on account of the Godhra riots. For this purpose, secret meetings were held at Jiddah, Riyadh, Hyderabad and Kashmir. A-2 was contacted by his brother who ensured supply of finance, weapons and trained terrorists. A-4 and A-5, who were running relief camps and were also religious leaders, accepted to garner local support and thus money was sent through havala. A-2 and the two fidayeens visited various places in Ahmedabad and finally chose Akshardham temple in Gandhinagar as the site for the attack on 24.09.2002. A-4, at the instance of A-5, wrote the two Urdu letters and gave them to the fidayeens. A-5 took the fidayeens to the railway station, from where they took a taxi to the Akshardham temple. The arms and ammunitions were brought from Kashmir by A-6.
Concurrent findings of the courts below
43. It was further submitted by the learned senior counsel for the prosecution that the Special Court (POTA) as well as the Division Bench of the High Court, after proper appreciation and analysis of evidence, gave concurrent findings of fact and thus the conviction and the sentences ordered by the courts below ought to be upheld.
44. The learned senior counsel for the prosecution thus submits that it has proved beyond reasonable doubt that the accused persons were involved in the conspiracy for the attack on the Akshardham temple and the sentences meted out to them by the Special Court (POTA) and confirmed by the High Court must be upheld by this Court as the concurrent findings of fact recorded on the charges framed against the accused persons does not warrant any interference by this Court.
Contentions on behalf of A-2 & A-4 and A-3 & A-5.
45. We will now examine the contentions urged on behalf of A-2 and A-4 who are represented by learned senior counsel, Mr. K.T.S Tulsi and thereafter A-3 and A-5, who are represented by learned senior counsel, Mr. Amarendra Sharan. Subsequently, the contentions urged on behalf of A-6 who is represented by learned counsel, Ms. Kamini Jaiswal will be dealt with. The contentions will be dealt with topic wise.
That the Sanction required under Section 50 of POTA was not obtained in a proper manner.
46. Section 50 of POTA provides that "no court shall take cognizance of any offence under the Act without the previous sanction of the Central Government or as the case may be by the State Government." The prosecution has relied on the testimony of Kuldeep Chand Kapoor (PW-88) to prove that the sanction was granted in accordance with the law. It was contended by the learned counsel for A-6 that the perusal of the statement of PW-88 would show that all the documents pertaining to the investigation were not placed before the sanctioning authority and it was only on the approval of the Minister that the sanction was granted. The sanction was granted without due application of mind. Thus the said sanction is not a proper previous sanction, on the basis of which the court could have taken cognizance of the offences.
Evidentiary value of confessions:
47. All the three learned counsel have similar submissions with respect to the reliance placed by the courts below on the confessional statements made by the accused persons to hold that the accused persons are guilty of the offences they are charged with. They submitted that the concurrent findings of fact upholding the conviction of the accused persons on the basis of their confessional statements is erroneous, keeping in mind that there is no admissible or reliable evidence on record which connect them with the offences. It is contended by both the learned senior counsel Mr. K.T.S. Tulsi and Mr. A. Sharan on behalf of A-2 and A- 4 and A-3 and A-5 respectively, that the prosecution had not complied with the statutory provisions under Section 32(5) of POTA, though they produced the accused persons before the learned CJM PW-99, within 48 hours as provided under Section 32(4) of POTA. It is contended that after recording their statements, CJM (PW-99) failed to discharge the vital obligation of sending them to judicial custody and thus, committed a grave error in remanding them back to police custody which was a clear violation of Section 32(5) of POTA and Article 20(3) of the Constitution. It was submitted that the Division Bench of the High Court had erroneously made an observation in the impugned judgment in this regard with reference to Section 32(5) of POTA, stating that the Chief Judicial Magistrate has the power to send a person to a judicial custody only when he complains of ill treatment and torture by the police. The aforesaid finding is contrary to the law laid down by this Court in NCT v. Navjot Sandhu.13 13 (2005) 11 SCC 600
48. Further, the learned senior counsel placed reliance on the deposition of PW-99 to contend that it leaves no manner of doubt that he was neither mindful of his obligations under Section 32 of POTA nor did he make any enquiry regarding fear or torture likely to have been faced by the accused persons while making their confessional statements. On the contrary, he mechanically sent the accused persons back to police custody after recording their statements. It was further submitted that the CJM had failed to perform the most important duty of informing himself about the surrounding circumstances for making the confessional statements by the accused. Remanding the accused persons to judicial custody has been considered as the most significant safeguard and protection against torture by police, which was thrown to the wind by the CJM, thereby he had violated the fundamental rights guaranteed to the accused persons under Articles 20(3) and 21 of the Constitution.
It was further contended by the learned senior counsel that there was a failure on the part of the courts below in not considering the evidence of doctors who work in Government Hospitals and who deposed in the case on behalf of the accused persons that A-2 to A-6 had complained of having received severe beating by the police prior to recording the confessional statements. The said evidence is clear from the depositions of DW- 2(Ex.731), DW-4(Ex.736), DW-5(Ex.737) and DW- 7(Ex.744). From the evidence of DW-2, it is revealed that the X-ray plates and case papers of A-4 were found missing and from the aforesaid evidence, the only conclusion that can be drawn is that once the accused persons had complained of having received severe beatings by the police prior to their making of their confessional statements, the credibility of such confessions became doubtful as the same had not been made voluntarily before PW-78 by them. Therefore, it had been urged that neither the Special Court (POTA) nor the Division Bench of the High Court should have placed reliance upon the said confessional statements to record the finding of guilt against the accused persons. The courts below should have considered that there was a statutory obligation upon the prosecution not to suppress any evidence or document on record which indicates the innocence of the accused persons. Thus, in the light of evidence of DW-2, the conduct of the prosecution in the facts and circumstances of the case becomes unjustified. The learned senior counsel in support of the said contention placed reliance upon the decision of this Court in the case of Sidhartha Vashisht v. State (NCT of Delhi)14.
49. Further, the learned senior counsel on behalf of the accused persons contended that there were serious infirmities with regard to the manner in which the alleged confe
