Gujarat ISI Conspiracy Case POTA Court Judgement

POTA/12/2003
JUDGMENT
IN THE SPECIAL COURT UNDER POTA (STATE OF GUJARAT) AT AHMEDABAD POTA CASE No. 12 OF 2003
WITH
POTA CASE No. 2 OF 2004

WITH

WITH

WITH

WITH

WITH

WITH
POTA CASE No. 3 OF 2007 Complainant : The State of Gujarat (in all the cases) Versus Accused : POTA CASE No. 12 OF 2003 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Mohammed Parvez S/o Abdul Kaiyum Shaikh (convicted in POTA Case No. 10/03) Mohammed Yunus Abdul Rahim Sareshwala (convicted in POTA Case No. 10/03) Mohammed Riyaz @ Goru S/o Abdul Wahid Sareshwala (convicted in POTA Case No. 10/03) Rehan Abdul Majid Puthawala (convicted in POTA Case No. 10/03) Munawar Baig @ Captain Yakub Baig Mirza Afzalkhan @ Babu Murtuzakhan Pathan Idrishkhan Yakubkhan Pathan Mohammed Zahir Mohammed Iqbal Shaikh Mohammed Tariq Faridbhai Shaikh Mehmood Razasha Saiyed
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11.
12.
13.
14.
15.
16. 17. 18. 19. 20.
21. 22. 23. 24. 25. 26. 27.
Mohammed Asgarali @ Junaid @ Afdan @ Rehman Mohammed Vazirali (Dropped on 19/12/2007 vide order below Exh.602 and 615) Mohammed Abdul Rauf Mohammed Abdul Kadar (Dropped on 19/12/2007 vide order below Exh.602 and 615) Mohammed Abdul Bari Mohammed Abdul Aziz (Case transferred on 03/12/2008 vide order below Exh. 1 as exonerated from POTA charges by Central POTA Review Committee) Iftekhar Ul Hasan Hashmi (Case transferred on 03/12/2008 vide order below Exh. 1 as exonerated from POTA charges by Central POTA Review Committee) Mohammed Safiuddin Yusufali (Case transferred on 03/12/2008 vide order below Exh. 1 as exonerated from POTA charges by Central POTA Review Committee) Zuber Sharif Rahim Sharif Muslim Mohammed Imtiyaz Mohammed Khasim Noor Ur Rehman S/o. Saiyed Madhar Saiyed Mubashir Hussain @ Bashir Hussain S/o. Mazhar Hussain Saiyed Kalim Ahmed @ kalimullah S/o. Mohammed Habib Karimi (convicted in POTA Case No. 7/03, 8/03 & 10/03) Shahnawaz @ Shanu Mohammed Hussain Gandhi (convicted in POTA Case No. 10/03) Anas Abdul Machiswala (convicted in POTA Case No. 7/03, 8/03 & 10/03) Mohammed Farooq @ Haji Farooq Usmangani Shaikh (convicted in POTA Case No. 10/03) Atthar Parvez Siddiq Mohammed @ Manjukhan Pathan (convicted in POTA Case No. 10/03) Mohammed Hussain Gulam Hussain Shaikh Sikandarkhan Usmankhan Sindhi Mufti Tahir Arifbhai Bakaswala (convicted in POTA Case No. 11/03)
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JUDGMENT
28.
29.
30. 31. 32. 33. 34. 35.
36. 37.
38. 39.
Maulvi Ahmed Hussain S/o. Allahrakha Mansuri (Case transferred on 03/12/2008 vide order below Exh. 1 as exonerated from POTA charges by Central POTA Review Committee) Mohammed Ashraf Ismailbhai Nagori (Case transferred on 03/12/2008 vide order below Exh. 1 as exonerated from POTA charges by Central POTA Review Committee) Mohammed Rafiq @ R.D. Majidkhan Pathan Gulammohammed @ Gulal S/o. Abdul Kadar Shaikh Abdul Latif @ Kashmiri Lala Mohammed Hasan Pathan Aiyubkhan Mohammed Rafiq Pathan Abdul Samad Mohammed Ibrahim Sunni (On bail) Abdul Rahim S/o. C. S. Ramsundram Hanfi Muslim (Case transferred on 03/12/2008 vide order below Exh. 1 as exonerated from POTA charges by Central POTA Review Committee) Mohammed Manzoor Mohammed Siraj Siddique (On bail) Saeed Akbar Mohammed Yusuf Shaikh (Case transferred on 03/12/2008 vide order below Exh. 1 as exonerated from POTA charges by Central POTA Review Committee) Mohammed Haji Sadiq Jalaluddin Gurjar Mohammed Hanif @ Pakitwala @ Theliwala Abdul Razzak Shaikh (convicted in POTA Case No. 7/03 and 8/03)
POTA CASE No. 2 OF 2004 40. 41. 42. 43. 44. 45. 46. Mohammed Wajid @ Wajid S/o. Mohammed Ahmed Sunni Saiyad Ajazahmed @ Mamu S/o. Jafar Saiyad Javed Hamidullah Siddique Mohammed Majid @ Shakeel S/o. Mohammed Abid Sunni Ajaz Ahmed @ Chhotu Ajaz S/o. Mumtaz Ahmed Saiyed Mohammed Yunuskhan S/o. Yakubkhan Pathan Abdul Hamidkhan S/o. Yakubkhan Pathan
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47.
Abdul Latif Gulamali Patel (On bail)
POTA CASE No. 2 OF 2005 48. Mohammed Nasiruddin @ Maulana Nasiruddin
POTA CASE No. 3 OF 2005 49. Harpalsinh Natwarsinh Zala (Case transferred on 03/12/2008 vide order below Exh. 1 as exonerated from POTA charges by Central POTA Review Committee) (without framing charge) Mustaqali Abbasali Saiyed (On bail) Mohammedali Gulamnabi Shaikh (Case transferred on 03/12/2008 vide order below Exh. 1 as exonerated from POTA charges by Central POTA Review Committee) (without framing charge) Javedkhan @ Jahidkhan Azizkhan Pathan (Case transferred on 03/12/2008 vide order below Exh. 1 as exonerated from POTA charges by Central POTA Review Committee) (without framing charge)
50. 51.
52.
POTA CASE No. 1 OF 2006 53. Aslamkhan @ Ladden S/o. Nazarkhan Pathan (Proclaimed then tried)
POTA CASE No. 1 OF 2007 54. Arif Abubakar Shaikh
POTA CASE NO.2 OF 2007 55. Jamil @ Akbar @ Baba S/o. Haji Abdul Jabbar Shaikh (Proclaimed then tried)
POTA CASE NO.3 OF 2007 56. Mohammed Ashrafali Mohammedali (On bail)
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ABSCONDING ACCUSED : 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. Mufti Sufiyan Ahmedmiya Patangiya (Proclaimed offender) Sohailkhan Siddique Mohammed @ Manjukhan Pathan (Proclaimed offender) Jafarbhai (Proclaimed offender) Bhurabhai (Bangali) (Proclaimed offender) Mohammedbhai (Proclaimed offender) Razzak Shakeel Salim Aslamkhan Naveed Kirmani Famke Sohad @ Bilal Naeem Chanduchacha Jiya Parvez Umarbhai Rasulkhan (Proclaimed offender) Dawood Ibrahim (Proclaimed offender) Chhota Shakeel (Proclaimed offender) Sharifkhan @ S. K. (Proclaimed offender) Alambhai Masarshaab Isthiyak Alibaba Fahim Salim Khanbaba Rashid Kiyum Doctor Usman
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34. 35. 36. 37. 38. 39. 40. 41. 42.
Yasin Ameeruddin Farooqui Saalim Hasim (Proclaimed offender) Afroz Mohammed Iqbal Sunni Mohammed Abdul Khavi Khwaja Moinuddin Yusufbhai Abdulwahab Shaikh Gulam Lahero Abrar Anwar Babu Shaikh
Appearances (as on the date) : Mr. V.P. Atre, learned Special P.P. with Mr. K.L. Trivedi, learned Addl. Special P.P. for the State in all the cases Mr. B.M. Gupta, L.A. for accused No. 1 to 4, 6, 16 to 22 (in POTA Case No 12 of 2003); accused No. 40 to 44 (in POTA Case No. 2 of 2004); accused No. 55 & 56 (in POTA Case No. 2 of 2007) Mr. M. I. Laliwala, L.A. for accused No. 5, 7, 8, 10, 30, 31, 33, 39 (in POTA Case No. 12 of 2003); accused No. 45 (in POTA Case No. 2 of 2004) Mr. M.M. Shaikh, L.A. for accused No. 9, 27 (in POTA Case No. 12 of 2003); accused No. 48 (in POTA Case No. 2 of 2005) Mr. J. M. Pathan, L.A. for accused No. 23, 24, 26, 38 (in POTA Case No. 12 of 2003); accused No. 53 (in POTA Case No. 1 of 2006) Mr. I.D. Pathan, L.A. for accused No. 34 and 36 (in POTA Case No. 12 of 2003); accused No. 54 (in POTA Case No. 1 of 2007) Mr. S.A. Khan, L.A. for accused No. 25 (in POTA Case No. 12 of 2003) Mr. L.R. Pathan, L.A. for accused No. 32 (in POTA Case No. 12 of 2003); accused No. 46 (in POTA Case No. 2 of 2004) Mr. K.G. Shaikh, L.A. for accused No. 47 (in POTA Case No. 12 of 2003) Mr. M.C. Hakim, L.A. for accused No. 50 (in POTA Case No. 3 of 2005)
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Appearances of Advocates only at the stage of arguments : Mr. J. M. Panchal, learned Special P.P. for the State Ms. Nitya Ramkrishnan for accused Nos. 7, 30, 31, 45 & 46 Mr.RizwanMerchantforaccusedNo.54 (Coram : Dr. Jyotsnaben Yagnik, Special Judge under POTA, Gujarat State) JUDGMENT 1. The accused Nos. 1 to 56 have been arraigned in First C.R.
No. 6/2003 filed by DCB Police Station, Crime Branch, Ahmedabad. 1.1 Out of the 56 accused, the Central POTA Review
Committee has exonerated about 10 accused whose cases have been transferred to the Sessions Court for the trial of their cases for the case under Indian Penal Code. 1.2 The proceedings against two of the accused have been
dropped by virtue of the order of learned predecessor of this Court under Section 300 of the Criminal Procedure Code, 1973. 1.3 The said order of dropping the proceedings against two of
the accused has been challenged by the State and the said Criminal Appeals are pending before Hon'ble the High Court of Gujarat. 1.4 In nutshell, this case has been tried against 44 accused
shown hereinabove. 1.5 Since the accused were charged under different sections of
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POTA, no committal proceedings have taken place, but this Court being Special POTA Court, has taken cognizance of the offences against the accused. 1.6 All the accused have been charge-sheeted and thenafter
charged under different sections of I.P.C., POTA, Arms Act, etc. 1.7 Vide Exh. 374, accused Nos. 1 to 48 in POTA Case No.
12/03, 2/04 and 2/05 have been charged by the then POTA Judge under Sections 120(B), 120(B) read with Section 121 with Section 121(A), with Section 122, 123, 212 of IPC and under Section 3(1)(a) and (b), 3(3), 3(4) of POTA read with Section 120(B) of IPC, under Section 20, 21(2) (b) of POTA read with Section 120(B) of IPC, Section 22(3)(a) of POTA read with Section 120(B) of IPC, Section 25(1)(a) and 27 of the Arms Act. 1.8 Vide Exh. 606, accused Nos. 50, 53, 54 and 55 have been
charged by the then POTA Judge under Section 120(B), 121, 121(A), 122, 123 of IPC and under Section 25(1)(a)(a), 27 and 29 of the Arms Act and under Section 3(1)(a)(b), 3(3), 4, 10, 20, 21(2)(b), 22(3)(a)(b) of POTA. 1.9 Vide Exh. 1636, this Court has framed charge against
accused No. 56 under Section 120(B), 212, 121, 121(A), 122, 123 read with Section 120(B) of IPC and under Section 25(a)(a), 27 and 29 of the Arms Act read with Section 120(B) of IPC and under Section 3(1)(a) and (b), 3(3), 3(4), 20, 21(2)(b), 22(3)(a)(b) of POTA read with Section 120(B) of IPC. 2. The brief facts about the complaint in which the accused
have been arraigned are as under :
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JUDGMENT
The complainant is the P.I. of Crime Branch, Ahmedabad City, who has given his complaint as under, which has been divided into parts for the sake of convenience : "I, Tarunkumar Amrutlal Barot, Police Inspector,
Ahmedabad City, working in Crime Branch from 4/1/1997, do complain that : PART 'A' Shri P. P. Pandey, Joint Police Commissioner, had received definite information through Intelligence agencies before some days to the effect that some young boys had gone to Pakistan for obtaining terrorist training from Ahmedabad city to take revenge of the loss caused to the lives and properties of the Muslim community during communal riots which took place in the state of Gujarat after Godhra math and the said young boys have come back. In this connection he had instructed Mr. D. G. Vanzara, Deputy Police Commissioner, Crime Branch, Ahmedabad City to make private investigation into the matter. Thereupon, Mr. D. G. Vanzara had called me and provided guidance to me for making private investigation seriously for finding out the said terrorists. Accordingly, I had started investigation into the matter through my informants. Meanwhile, at about 7 pm on 3/4/2003, one most confidential informant had come to the office of Mr. P. P. Pandey, Joint Police Commissioner, at Gaikawad Haveli, Crime Branch and provided a definite confidential information that on 3/4/2003 at about 9.30 pm, Parvez, Yunus, Goru, Rehan and Captain - the persons having obtained terrorist training from Pakistan are going to hold a meeting near Sandesh Chowk, Parimal Garden area in order to
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commit some act of offence and that out of the said boys, Parvez has got illegal weapons. He had informed DSP, Crime Branch and myself in connection with the said information and after discussion with us, a team consisting of PSI Shri P. O. Bhatt, PSI Shri R. L. Mawavani, PSI Shri I. K. Chauhan and Head Constable Mukeshkumar Natwarlal, Head Constable Harnamsinh Dhaniram as well as Police Constable Rajesh Matabadal, Police Constable Bharatsinh Daulatsinh, Police Constable Girwatsinh Mahendrasinh, Police Constable Mahendrasinh Jujarsinh and Police Constable Harisinh Chatrasinh was formed, which was headed by me for the purpose of carrying out further proceedings. After making necessary entry in the Station Diary, our team had left at 20.10 hours from Gaikawad Haveli along with private informant in two private vehicles. We had given this information to about seven to eight persons of public near Mangaldas Town Hall during the course of our travel and explained them to act as Panchas in the present proceedings. Thereupon, out of the said persons (1) Nirav Bharatbhai Vyas and (2) Manoj Ramlal Lodha, both residents of Ahmedabad, had voluntarily agreed to act as Panchas and to accompany the police party. They were also kept with us, whereas the other persons had gone away by expressing their unwillingness to act as Panchas. A preliminary panchnama to that effect was prepared between 20.30 to 20.50 hours. PART 'B' In the company of the aforesaid Panchas and private informant, the officers and other persons of police had scattered for a watch around the main gate of Parimal Garden at around 21.15 hours. Meanwhile, five persons riding Suzuki Samurai, Caliber Bajaj and Hero Honda Splender had come from Gujarat College side at 21.45 hours near main gate of Parimal Garden
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and while they were parking their vehicles near Dukhbhanjan Hanuman Temple, our private informant pointing our attention to them, stated that they are the same persons who have come back after obtaining training from Pakistan. Therefore, as planned earlier, the police party cordoned and rounded them up on the spot and upon being asked their names and addresses, they stated to be (1) Mohammed Parvez Abdul Kaiyum Shaikh, aged 29 residing at House No. 1258, Gali No. 13, Navi Mohallat, Panchkuwa (2) Mohammed Yunus Abdul Rahim Sareshwala, aged 27 residing at A/12, Sunrise Flat, Near Hajibawa's Kui, Sarkhej Road, Juhapura, native of Navi Mohallat, Panchkuwa (3) Mohammed Riyaz @ Goru Abdul Wahid Sarshwala, aged 23 residing at House No. 2063, Gali No. 3, Navi Mohallat, Panchkuwa (4) Rehan Abdul Majid Puthawala, aged 27, residing at House No. 2156, Gali No. 13, Navi Mohallat, Panchkuwa and (5) Munawar Baig @ Captain Yakubmiya Mirza, aged 47. residing at House No. 2026, Haranwali Pole, Panchkuwa. On taking their personal search in presence of Panchas, one foreign make Pistol was found to have been inserted in the pant at waist portion below the shirt of No. 1 - Mohammed Parvez Abdul Kaiyum Shaikh. On being asked whether he has got any licence or permit to hold the same weapon, he denied to have any such licence or permit. On taking out the said weapon and examining the same, it was found that it contained magazine in which .32 bore five live cartridges were found to have been loaded and .32 bore ten live cartridges wrapped in a light green colour plastic bag were found from the right hand side pocket of his pant. The said total 15 cartridges, taking their aggregate value to be Rs. 1500/- @ Rs. 100/- per each cartridge and the said Pistol on which "Made in China - Bore 32 978253" has been written, taking its approximate value at Rs. 2,00,000/-, have been recovered as shown in the
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panchnama. Moreover, the vehicles brought by the said five persons i.e. (1) Suzuki Samurai black colour bearing No. GJ-01BL-4363 (2) Caliber Bajaj Black colour bearing No. GJ-01-BJ4015 and (3) Hero Honda Splender red colour bearing No. GJ-01CF-397, considering the value of each motorcycle at Rs. 25,000/-, were recovered as shown in the panchnama. The said panchnama was completed at 24.00 hours. PART 'C' On making preliminary inquiry of all the aforesaid persons, it was revealed that a serious criminal conspiracy and terrorist conspiracy as mentioned below were hatched. As per available primary information, after last communal riots which took place in Gujarat, (1) Kalim alias Mulla Mohammed Habib Karimi alias Mulla Karim, residing at 1861/1, Mogal Pole, Kalupur Panchpatti (2) Anas Abdul Rashid Machiswala, residing at Gali No. 8, Navi Mohallat, Panchkuwa, (3) Sahilkhan alias Manzoorkhan Siddiq Mohammedkhan, residing at Gujarat Housing Board, Old Bapunagar, House No. 105/522, had hatched a conspiracy to carry out serious terrorist activities in the State of Gujarat under the leadership, guidance, inducement, inspiration and financial aid of a rich person, whose name has not been known, and by using the network of Dawood Ibrahim gang situated at Pakistan and ISI, with a view to take revenge of the loss caused to Muslims in communal riots which took place in the State of Gujarat. PART 'D' In order to implement the said conspiracy and in order to materialise their malafide intention of jeopardizing the unity and
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integrity of India by provoking educated young Muslim boys of Ahmedabad city, as a part of the Jehadi activities prevailing in Pakistan, in order to carry out bomb blasts, arson and terrorist activities in big cities of the State of Gujarat and in order to kill Shri L. K. Advani, Deputy Prime Minister of India, Shri Narendrabhai Modi, Chief Minister of the State of Gujarat, Shri Pravin Togadia, International Chief Secretary of Vishwa Hindu Parishad and other leaders of BJP, Vishwa Hindu Parishad, RSS, Bajrang Dal and Police Officers as well as other Hindu leaders, they started to send Muslim boys to Pakistan step by step for obtaining terrorist training. PART 'E' The aforesaid three persons informed Rehan Abdul Majid Puthawala, residing at Gali No. 13, House No. 2156, Navi Mohallat, Panchkuwa, about the aforesaid intentions and requested him to prepare Muslim boys by connecting them with Jehadi thinking. Thereupon, he prepared the aforesaid persons named Yunus Sareshwala, Riyaz alias Goru and Munawar Baig alias Captain mentally and decided to send them to Pakistan and also arranged meetings from time to time with Mulla Kalim for the said purpose. As per the unknown directions of their underground leader Ameer, Mulla Kalim managed for reservation of Railway tickets of the said boys for their travel from Ahmedabad to Hawra - Kolkata and he had instructed Mulla to go for the said work by making payment of Rs. 16,000/- in cash to him and he also instructed Mulla to provide his contact number after staying in any hotel at Kolkata and that the other arrangement shall be made as per the network established in advance.
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PART 'F' Accordingly, all the said four trainees had left Ahmedabad at 5.05 hours in the morning on 20/12/2002 by Karnavati Express and reached Vadodara and from there they left at 11.30 hours by Hawra Express and reached Hawra in the morning on 22/12/2002 and from there they reached Kolkata where they checked-in Star Guest House situated near Markaz, Jakaria Street area. From there Parvez had talked to Ahmedabad on Mobile No. 9825398516 of Rehan and gave the contact number of Kolkata. PART 'G' Therefore, Rehan told them to stay in the hotel and that further arrangement would be made. Thereafter, they remained in contact with each other by telephone. Meanwhile, as the said persons found short of money, as directed by Rehan, they obtained Rs. 10,000/- by Hawala from the hardware shop of Nandlal by providing him the number of the currency note of Rs. Five. PART 'H' Thereafter, on 27/12/2002, an unknown person had come to them who stated his name to be Ziya. He had come in the morning on 28/12/2002 by white Ambassador car. Therefore, they had checked-out on the same day and left Kolkata and entered Bangladesh by crossing Benapole border. In the said white Ambassador car, over and above the aforesaid four persons of Ahmedabad, a person named Ziya and one more person named Mohammedbhai were sitting. Both the said persons were Indians and were the agents of ISI. They had paid Rs. 3,000/- @ Rs. 500/- for each person to BSF personnel and they had also paid
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Rs. 3000/- @ Rs. 500/- for each person to Bangladesh Rifle personnel and had got the border crossed and got them reached Dhaka, capital city of Bangladesh, in the evening by a luxury bus running in the areas of Bangladesh. They were kept in a flat of one Parvez, an ISI agent of Mumbai. Jamil, another ISI agent of Mumbai had met them there who had made arrangement for their stay and food. Out of the said four persons, as the age of Captain was found to be more, it was decided that he could not be given terrorist training and hence, necessary arrangement for sending him back from Dhaka to Ahmedabad was made. Thereafter, photographs of the remaining persons i.e. Parvez, Goru and Yunus were taken out and their passports in fake names as citizens of Bangladesh were got issued. On 18/1/2003, the said three trainees had reached Karachi airport, capital city of Pakistan Sindh, from Dhaka by the flight of United Arab Emirates. One Rasulkhan Party, original resident of Popatiawad, Dariapur and another person named Umarkhan, were present at Karachi airport with a Toyota type car. They were having the photographs of the said three persons in advance. They verified the said photographs and took the said three persons with them in their car to a luxury bunglow situated in Karachi. After staying at the said place for two days, in the evening, they were made to sit in a car with close body and were taken to a training camp of Jaish-eMohammed situated in a hill area after traveling for about four hours. The said three persons were given terrorist training for twenty one days in the said camp. There was a Mosque at the said place. It was compulsory to offer Namaz for five times in a day in the said Mosque. During the said period, they were given practice to open and assemble the parts of AK-47, LMG, SLR, Revolver and Pistol and they were also given the practice of firing everyday. They were also given the training of preparing and
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using bombs. They were also given training for preparing and using different types of bombs as per IED and for preparing and using circuits as well as time bombs and to make blasts of such bombs in congested areas. They were also given training to cause deaths of VIPs and to cause loss to the financial institutions. They were also given training for spreading terrorism by killing big industrialists and to wage Jehadi war against the Government of India as well as Government of Gujarat. Thereafter, they were again brought to the same bunglow in Karachi where they were kept earlier. Rasulkhan Party, who is being called "Bhai" in Karachi, had given confidential information and various targets to the said three trainees for carrying out the terrorist activities in Gujarat. The said Rasulkhan Party has hatched a larger conspiracy for carrying out terrorist activities in Gujarat on a larger scale than the incidents of serial bomb blasts which took place in Mumbai in 1992 under the guidance of Dawood Ibrahim, Chhota Shakeel, Sharifkhan alias S.K. and under the guidance of ISI agency of Pakistan. Thereafter, the said three boys had come back to Dhaka from Karachi on 3/3/2003 by the flight of United Arab Emirates by again getting their Pakistani passports issued with their fake names. They were again made to stay in the flat of Parvez at Dhaka. After two days, they had gone to Kolkata on 6/3/2003 by crossing Benapole border from where they had reached Maninagar Railway Station, Ahmedabad on 8/3/2003 by Hawra Express. Thereafter, they immediately informed Rehan and Kalimullah on phone from Astodia Darwaja that they had come back after obtaining training. Thereafter, they continuously remained in contact with Rehan and Kalimullah and were preparing for accomplishing the targets of terrorist attacks as per the instructions that may be given by Rasulkhan Party and Ameer. During this period, while they gathered for the purpose of
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carrying out some suspicious activities near Parimal Garden, they were found with illegal possession of Pistol and fifteen live cartridges. As informed by them, before they came back after obtaining training from Pakistan, (1) Anas Abdul Rashid Machiswala (2) Shahnawaz Mohammed Hussain Gandhi and (3) Sohailkhan alias Manzoorkhan Siddiq Mohammedkhan had also similarly come back by obtaining training of Jaish-e-Mohammed on their way from Ahmedabad to Mumbai via Dubai and Karachi. Not only this, other youths on a large scale have also come back after obtaining training from Pakistan and they were ready to carry out terrorist acts either at one place or at different places simultaneously in the State of Gujarat at the instance of Ameer. PART 'I' Thus, above referred (1) Mohammed Parvez Abdul Kaiyum Shaikh, residing at Navi Mohallat, Panchkuwa (2) Mohammed Yunus Abdul Rahim Sareshwala, residing at Juhapura, (3) Mohammed Riyaz @ Goru Abdul Wahid Sarshwala, residing at Navi Mohallat, Panchkuwa (4) Rehan Abdul Majid Puthawala, residing at Panchkuwa (5) Munawar Baig @ Captain Yakubmiya Mirza, residing at Panchkuwa (6) Kalim alias Mulla Kalim Mohammed Habib Karimi residing at Panchpatti, Kalupur (7) Shahnawaz Mohammed Hussain Gandhi residing at Navi Mohallat, Panchkuwa (8) Anas Abdul Rashid Machiswala residing at Navi Mohallat, Panchkuwa (9) Sohailkhan alias Manzoorkhan Siddiq Mohammedkhan residing at Old Bapunagar, Gujarat Housing Board (10) Ameer - whose full name and address is yet not cleared (11) Ziya of Kolkata (12) Mohammedbhai (13) Hawala person Nandlal of Kolkata (14) Parvez resident of Mumbai staying at Dhaka (15) Jamil (16) Umarbhai (17) Rasul Party native of Ahmedabad, at present residing at Karachi, Pakistan (18)
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Dawood Ibrahim native of Mumbai, at present residing at Karachi, Pakistan (19) Chhota Shakeel residing at Karachi, Pakistan (20) Sharifkhan alias S. K., at present residing at Karachi, Pakistan and other persons who may be found out during the course of investigation have, in collusion with each other, involved themselves, directly or indirectly, in criminal conspiracy and the malafide intentions of ISI agency of Pakistan to divide and scatter India by creating Jehadi terrorism, to provide inspiration to wage war against the Government of India, to collect weapons, arms and ammunition, to illegally possess weapons for creating serious conspiracy against the country by becoming active members of terrorist organisation and by creating financial assistance for the terrorist organisation, committed and caused to commit serious offences punishable under Sections 120-B, 121, 121-A, 122 and 123 of the IPC and under Sections 25 (1)(b)(c), 27 and 29 of the Arms Act. Therefore, I file the present complaint against all the aforesaid accused". 3. To substantiate and fortify its case, the prosecution has
examined following witnesses : LIST OF WITNESSES P.W. No. 1 Exh Name of Witness Status
444 Mohammed Habib Ahmedmiya Shaikh (Rajput)
Panch Witness of seizing panchnama Exh. 445, 446, 447 (linking A-1, 4, 22)
462 Samirbhai Kasambhai Panch Witness of Exh.463 Rajput of absconding accused Sohailkhan
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P.W. No. 3
Exh
Name of Witness
Status
Hostile 621 Manishbhai Josephbhai Macwan
Panch Witness of seizing panchnama Exh. 622 (linking A-3) Panch Witness of seizing panchnama of A-21 Residence, Exh. 637 Panch Witness of panchnama Exh. 639 to seize passport of A-34 Panch Witness of panchnama of dropped witness (Exh. 641) Panch Witness of panchnama Exh. 643 of seizure of articles produced by PW-95 (links A-20, 21, 22) Panch Witness of Panchnama Exh.648 to recover signature card of A-2 Panch Witness of Panchnama Exh.651 to recover Bill Book and Register of Star Guest House Bank Manager of Memon Bank Panch Witness of Panchnama Exh. 657, search of house of A-2
636 Bharatbhai Kantibhai Patni
638 Narendra Bechardas Kahar
640 Laljibhai Sakarchand Soni
642 Mohammed Salim Akbarbhai Shaikh
647 Nazir Ahmed Mohammed Hanif Ansari
650 Girishbhai Kanaiyalal Panchal
10
655 Abdul Razzak Usmanbhai Memon 656 Sajid Hussain Ahmed Hussain Mansuri
11
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P.W. No. 12
Exh
Name of Witness
Status
658 Rajendrabhai Kantilal Patel
Panch Witness of Panchnama Exh. 660, recover specimen signature card of A-1 Panch Witness of Panchnama Exh. 732 to recover V.P. for sign of A-1 to A-5 Panch Witness Panchnama Exh. of
13
Hostile 661 Ravi Muljibhai Malhotra
14
Hostile 664 Jayeshbhai Vasantlal Shah 665 Biren Jagdishchandra Soni
15
Panch Witness of Exh.721, 723 panchnamas to recover sign from record of Amber Guest House, Bombay (links A-7 & A-30) Panch Witness of Panchnama Exh. 669, discovery of weapon from A-4. Panchnama to open up the parcel received from FSL.
16
668 Dixit Jitendrakumar Nayak
17
673 Prahladbhai Bechardas Thakore
Panch Witness of Panchnama Exh. 674, discovery of weapon from A-25 Panch Witness of Panchnama Exh. 677, discovery of weapon from A-7
18
676 Dhirubhai Ranchhodbhai Makwana
POTA/12/2003
21
JUDGMENT
P.W. No. 19
Exh
Name of Witness
Status
Hostile 679 Yunusbhai Valibhai Mansuri
Panch Witness of panchnama Exh. 759, discovery of weapon from A-20
20
685 Pappubhai Ishwarbhai Panch Witness of Kahar Panchnama Exh. 689, 690 discovery of weapon from A-8 and arrest panchnama of A-23 & A-24 693 Maheshkumar Bechardas Kahar Panch Witness of Exh. 639 panchnama to recover passport of A-34. Panchnama Exh. 696, discovery of weapon by A2
21
22
698 Manoj Rambhai Lodha Panch Witness of Panchnama Exh. 702 of the site of meeting at Parimal Garden 703 Shailesh Vishnubhai Parekh Panch Witness of Panchnama Exh. 705 of the specimen hand-writing of A-1, 2, 3 & 5
23
24
706 Ashokkumar Kishanlal Panch Witness of Dhingra Panchnama Exh. 711, discovery of weapon and arrest panchnama of A-30, 31 712 Mayurbhai Arjunbhai Pankaniya Panch Witness of Panchnama Exh. 714, specimen signature of A-1, 2, 3 & 5
25
POTA/12/2003
22
JUDGMENT
P.W. No. 26
Exh
Name of Witness
Status
716 Rajeshbhai Lavjibhai Rana
Panch Witness of Panchnama Exh. 719, discovery of weapon of A23 Panch Witness of Panchnama Exh. 1473, discovery of weapon from A-25 Panch Witness of Panchnama Exh. 727, Arrest panchnama of A-25 Panch Witness of Panchnama Exh. 732, recovery of V.P. signed by A-1 to A-5 Panch Witness of Panchnama Exh. 734, discovery of weapon by A4 and panchnama to open up packet from FSL Panch Witness of Discovery of weapon by A22 Exh. 736 and Arrest and recovery panchnama of A-32, 33 (not exhibited)
27
Hostile 724 Kishansingh Durgasingh Tomar
28
726 Sureshbhai Viraji Mali
29
730 Anees Ahmed Mohammed Pasina Ansari
30
733 Mukeshbhai Jaykrushna Tripathi
31
Hostile 735 Rasikbhai Kantilal Parmar
32
742 Pravin Haribhai Kahar Panch Witness of Panchnama Exh. 754, discovery of weapon from A-6 Hostile 755 Gopal Bagdaji Marwari Panch Witness of Panchnama Exh. 736, discovery of weapon from A-22
33
POTA/12/2003
23
JUDGMENT
P.W. No. 34
Exh
Name of Witness
Status
758 Govindbhai Kanjibhai Solanki
Panch Witness of Panchnama Exh. 759, discovery of weapon from A-20 Officer who was assigned specific task by I.O. Panch Witness of Panchnama Exh. 769 related to dropped witness (Aiyub Dadamiya) Officer who was assigned specific task by I.O. Panch Witness of Panchnama Exh. 783 & 785 respectively of arrest and recovery of weapon from A-24 Officer who was assigned specific task by I.O. Panch Witness of Panchnama Exh. 1319, discovery of weapon and chit of Rukshana from A-3 Panch Witness of Panchnama of arrest and recovery of A-32, 33 (not exhibited) Panch Witness of Panchnama Exh. 801 of PW-88 showing STD, PCO (Sanand)
35
765 Hareshkumar Prafulchand Agrawat 768 Chandubhai Dalsukhbhai Thakore
36
37
770 Jaysinh Gulabsinh Parmar 779 Shivabhai Laljibhai Yadav
38
39
790 Irshad Ali Anwar Ali Saiyad Hostile 795 Anees Ahmed Mohammed Yusuf Patel
40
41
Hostile 798 Jayantibhai Savdasbhai Sadhu
42
800 Sabatkhan Mustufakhan Pathan
POTA/12/2003
24
JUDGMENT
P.W. No. 43
Exh
Name of Witness
Status
802 Rameshbhai Kuranmal Panch Witness of Exh. 803 Sahu panchnama for A-11 proceeding dropped. 805 Vikramsinh Arjunsinh Vaghela Panch Witness of Panchnama Exh. 806 of A42 to identify photos of A1, 2, 3, 5, 17 & 18 Panch Witness of Panchnama Exh. 811 of A55 to identify photo of A-1, 2, 3, 5, 17, 18, 42 Panch Witness of Panchnama Exh. 814 of press conference
44
45
810 Bharat Pratapbhai Thakore
46
813 Manubhai Ishwarlal Rathore
47 48
844 Yogesh Dulerai Mehta Principal of I.T.I. (for A-20) 847 Rameshbhai Officer who was assigned Ishwarbhai Patel (R. I. specific task by I.O. Patel) 859 Nitish Chandravadan Joshi 862 Kalidas Naranbhai Parmar 865 Jamnadas Kanjibhai Vaishnani 873 Divyaprakash Ramshanker Mishra Hostile 874 Javedullah Azizullah Pathan Reservation Supervisor of Railway Chief Ticket Railway Inspector,
49
50
51
FSL (for five bottles)
52
Eyewitness Garden
at
Parimal
53
Hostile witness
POTA/12/2003
25
JUDGMENT
P.W. No. 54
Exh
Name of Witness
Status
875 Hitesh Dahyabhai Patel 879 Manohar Mohandas Taheliyani 902 Bharat Kapilrai Mistry 922 Anandkumar Kushalbhai Pandya
Person from M. K. Travels
55
Hand-writing Expert
56 57
Ballistic Expert D.C.P. who recorded statements under Section 32 of POTA Hostile witness
58
Hostile 926 Rizwan Abubakar Gotlawala Hostile 927 Mustaq Ahmed Abdul Sattar Shaikh Hostile 928 Abdul Rehman Mohammed Miya Saiyad
59
Neighbour of A-3
60
Witness concerns A-31
61
Hostile 970 Kamar Hassan Witness concerns A-7 & AMohammed Ali Saiyad 45 Hostile 973 Asif Baig Gulam Rasul Hostile witness Baig Mirza 989 Shrinivas Ramamurty Varanasi 1004 Jitendra Karsanbhai Patel 1006 Sanjaykumar Karandas Gadhvi B.S.N.L. (AM)
62
63
64
Statement qua A-42 under Section 164 of Cr.P.C. D.C.P. who recorded statements under Section 32 of POTA
65
POTA/12/2003
26
JUDGMENT
P.W. No. 66
Exh
Name of Witness
Status
Hostile 1010 Aslam Ganibhai Kachot Hostile 1011 Tanvir Hussain Sagir Hussain Koza
Hostile witness
67
Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C. Witness who has helped A-20 in providing fund Witness who has helped A-20 in providing fund Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C.
68
Hostile 1015 Wasim Yasinbhai Mansuri
69
Hostile 1019 Irfan Abdul Kadar Khanwala
70
Hostile 1020 Salim Hasambhai Memon
71
1022 Asad Fazlurehman Kagdi 1026 Aslambhai Fazlurehman Kagdi Hostile 1029 Asif Rashidbhai Patel
72
73
74
Hostile 1031 Mohammed Arif Sikanderbhai Mansuri
75
Hostile 1033 Tanvirkhan Imtiyazkhan Pathan
POTA/12/2003
27
JUDGMENT
P.W. No. 76
Exh
Name of Witness
Status
Hostile 1034 Irfan Rashidbhai Shaikh
Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C.
77
Hostile 1035 Kamruddin Kamaluddin Saiyad
78
Hostile 1036 Shafiqujumma Mohammed Aslam Bangdiwala 1037 Jahangirkhan Abadkhan Lohani
79
80
Hostile 1039 Abdul Rahim Samsuddin Shaikh
81
Hostile 1040 Mohammed Junaid Mohammed Miya Shaikh Hostile 1041 Imtiyazuddin Karimuddin Saiyad
82
83
1042 Mohammed Witness who gave Usmanbhai Abdul Aziz statement under Section Shaikh 164 of Cr.P.C. Hostile 1045 Mohammed Rizwan Mehmood Ansari Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C.
84
85
Hostile 1046 Mohammed Samim Mohammed Idrish Rajput
POTA/12/2003
28
JUDGMENT
P.W. No. 86
Exh
Name of Witness
Status
Hostile 1048 Abdul Majid Abdul Kadar Shaikh
Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C. witness concerns A-26
87
Hostile 1051 Jungkhan Sikanderkhan Pathan
88
Hostile 1053 Abdul Sattar Ibrahim Momin
89
Hostile 1054 Habibbhai Abibbhai Pathan Hostile 1056 Abdul Rashid Mohammed Usman Machiswala Hostile 1058 Firozkhan Abdulrashidkhan Mewati Hostile 1062 Mohammed Sajid Ahmed Hussain Shaikh Hostile 1063 Abdul Rahim Jalaluddin Shaikh
90
Father of A-22 to prove passport Exh. 1057
91
Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C.
92
93
94
Hostile 1065 Mohammed Samir Siddiquebhai Shaikh
95
Hostile 1067 Yusufbhai Haji Ahmed Witness who gave Maniyar statement under Section 164 of Cr.P.C.
POTA/12/2003
29
JUDGMENT
P.W. No. 96
Exh
Name of Witness
Status
Hostile 1069 Mazhar Mehmood Kansara
Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C.
97
Hostile 1070 Liyakat Hussain Badamiya Shaikh
98
1074 Salim Pasa Mazrirullah Witness who knows A-23 Turk & A-24 Hostile 1075 Nileshbhai Babubhai Gandhi Panch Witness of panchnama Exh. 1479 of STD-PCO - A-31
99
100 Hostile 1076 Mohammed Arif Abdul To prove telephone Kadar Shaikh conversation of A-31 101 Hostile 1077 Afrozkhan Witness who gave Jafarullahkhan Baloch statement under Section 164 of Cr.P.C. 102 Hostile 1078 Yusuf Allahbebi Shaikh Witness who gave statement under Section 164 of Cr.P.C. Panch Witness of panchnama Exh. 1721. Concerns A-50. Witness who gave statement under Section 164 of Cr.P.C.
103 Hostile 1082 Abubhai Bodabhai Desai
104 Hostile 1089 Abdul Hamid Abdul Rahim Shaikh
105 Hostile 1093 Sitaramdas Witness for finance for Ramsharandas Sadhu Green Bungalow 106 Hostile 1094 Munir Miya Ahmed Miya Shaikh Witness for finance for Green Bungalow
POTA/12/2003
30
JUDGMENT
P.W. No.
Exh
Name of Witness
Status
107 Hostile 1095 Sabir Hussain Ahmedbhai Shaikh
Witness for finance for Green Bungalow
108 Hostile 1096 Iqbal Hussain Witness for finance for Mehmoodbhai Shaikh Green Bungalow 109 Hostile 1102 Ravida Adamkhan Mirzakhan Pathan Witness who gave statement under Section 164 of Cr.P.C.
110 Hostile 1103 Sairabanu Mohammed Witness who gave Miya Shaikh statement under Section 164 of Cr.P.C. 111 Hostile 1104 Abdul Sattar Mohammedbhai Saiyad 112 Hostile 1105 Pravinbhai Durgeshbhai Kadela 113 Hostile 1106 Mohammed Yusuf Fakir Mohammed Mulla Witness concerns A-50
Witness concerns A-50 for Green Bungalow Witness concerns A-50 for Green Bungalow
114 Hostile 1109 Niranjan Navinchandra Witness concerns A-50 for Patel Green Bungalow 115 Hostile 1110 Harkullan Raymond Lopez 116 Hostile 1111 Anisuddin Nafisuddin Munshi 117 Witness concerns A-50 for Green Bungalow Witness concerns A-50 for Green Bungalow
1112 Gausveer Mohiyuddin Operator of National Tours Shaikh & Travels - concerns A-30. 1115 Mohammed Ali Dawoodbhai Maradia Partner of Platinum Hotel Concerns A-31
118
POTA/12/2003
31
JUDGMENT
P.W. No. 119
Exh
Name of Witness
Status
1116 Abbasbhai Rasulbhai Chaudhary
Partner of Hotel Platinum Concerns A-31
120
1117 Harshash Panch Witness of Bhupendrabhai Parikh panchnama Exh. 1118 for A-50 1119 Vijay Subramaniam Pillai Panch Witness of panchnama Exh. 1120 for A-50 Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C. Panch Witness panchnama Exh. 1490 of
121
122 Hostile 1122 Vijaykumar Parshottamdas Prajapati 123 Hostile 1125 Kanubhai Kantilal Patel
124 Hostile 1127 Anwar Hussain Nizamuddin Luhar
125 Hostile 1129 Purshottambhai Sajandas Multani
126 Hostile 1131 Vikramsinh Cheharsinh Rathod
127 Hostile 1133 Mustufa Miya Hussain witness concerns A-50 Miya Shaikh 128 Hostile 1134 Harishbhai Devjibhai Bhawaniwala 129 Hostile 1139 Anwar Hussain Moazam Hussain Notary
Panch Witness of panchnama Exh.1578 concerns A-7 & A-30
POTA/12/2003
32
JUDGMENT
P.W. No.
Exh
Name of Witness
Status
130 Hostile 1140 Billukumaran Nair
Panch Witness panchnama Exh.1576.
of
131 Hostile 1141 Mohammed Farid At whose house in Gulam Hussain Shaikh Mumbai meeting of A-7, A30 and wanted accused etc. was held. 132 1142 Abbas Fateh Mohammed Seliya 1143 Sureshbhai Nathalal Patel Administrator of Hotel at Mumbai Amber
133
Money Exchanger Firm for A-50
134
1145 Rakeshkumar Ambalal Money Exchanger Firm Patel for A-50 Witness concerns A-10
135 Hostile 1149 Tausif Mohammed Sharif Saiyad
136 Hostile 1152 Babubhai Witness who gave Khemchandbhai Patel statement under Section 164 of Cr.P.C. 137 Hostile 1156 Liyakat Hussain Rahemubhai Shaikh Witness who gave statement under Section 164 of Cr.P.C. Witness who gave statement under Section 164 of Cr.P.C. A trader at Kolkata for Hawala concerns A-1 & A3
138 Hostile 1159 Dineshbhai Jayantilal Shah
139 Hostile 1203 Sunilkumar Nandlal Jalan
140
1205 Prashant Pavitrakumar Manager of Hotel Ghosh International, Kolkata
POTA/12/2003
33
JUDGMENT
P.W. No. 141
Exh
Name of Witness
Status
1210 Ambalal Songhabhai Prajapati 1214 Nareshbhai Sherumal Malkani 1217 Limbabhai Vajabhai Kharadi 1219 Shaileshbhai Fulchandbhai Jain 1222 Mukeshbhai Nandshanker Joshi
F.S.L. Officer for A-50
142
Panch Witness panchnama Exh. 1215 Central Jail, Ahmedabad Related Bungalow to
of
143
Sabarmati,
144
Green
145
F.S.L. Officer for photo of Green Bungalow. Related Bungalow to Green
146 Hostile 1225 Jashwantsinh Lalsinh Rathod 147 Hostile 1229 Sajid Ali Mohammed Ali Saiyad
Witness who gave statement under Section 164 of Cr.P.C.
148 Hostile 1231 Mohammed Junaid Witness who gave Abdul Aziz Valsadwala statement under Section 164 of Cr.P.C. 149 Hostile 1236 Rashidabanu Fazal Hussain Shaikh Related to telephone conversation - concerns A31
150 Hostile 1238 Sairabanu Ahmedbhai Related to telephone Shaikh conversation - concerns A31 151 1240 Farooqbhai Yusufbhai Watchman of Royal Mansuri Apartments, concerns A23
POTA/12/2003
34
JUDGMENT
P.W. No.
Exh
Name of Witness
Status
152 Hostile 1241 Ayishabibi Samsuddin Witness who gave Shaikh statement under Section 164 of Cr.P.C. 153 Hostile 1242 Mohammed Salim Farid Mohammed Chhipa 154 1246 Tarunkumar Amrutlal Barot Panch Witness panchnama Exh. 1723 of
Complainant and Officer who was assigned specific task by I.O. Witness who gave statement under Section 164 of Cr.P.C. Judicial Officer
155 Hostile 1270 Dipakbhai Lalbhai Shah
156
1277 Surmanbhai Mayurbhai Dholakiya
157
1279 Dahyabhai Mayurbhai Judicial Officer Patel
158 Hostile 1287 Mumtaz Ahmed Father of A-44 Saiyad Ahmed Saiyad 159 1292 Dahyaji Gobarji Vanzara 1298 Hirenbhai Ramanbhai Amin 1299 Amrutbhai Revidas Patel 1304 Kishorsinh Motisinh Vaghela Sanctioning Authority under Arms Act. B.S.N.L. Officer (AM)
160
161
B.S.N.L. Officer (AM)
162
Officer who was assigned specific task by I.O.
POTA/12/2003
35
JUDGMENT
P.W. No. 163
Exh
Name of Witness
Status
1360 Harshaben Chandrakantbhai Raval
B.S.N.L. Officer (AM)
164
1367 Sanatkumar Ajitkumar Manager, Calcutta Panja Guest House
Star
165 Hostile 1370 Moahmmed Ehsan Man from STD, PCO of Karim Mehmood Alam Calcutta Ansari 166 1371 Imad Ahmed Mukthar Ahmed Saiyad 1376 Dilipkumar Sudhirkumar Bagachi 1385 Rameshbhai Madhavlal Patel 1395 Hansaben Manubhai Velani 1402 Niranjanbhai Pravinkant Purani 1407 Manomay Sudipchandra Ghosh 1415 Bharatkumar Aavardhan Gadhvi 1427 Khemchand Topumal Makhija 1434 Ravsinh Bhimsinh Thakore STD, PCO of Calcutta
167
B.S.N.L. Calcutta
Officer
from
168
Officer who was assigned specific task by I.O. Judicial Officer
169
170
Judicial Officer
171
Officer at Dhaka Check Post Judicial Officer
172
173
Judicial Officer
174
Judicial Officer
POTA/12/2003
36
JUDGMENT
P.W. No. 175
Exh
Name of Witness
Status
1441 Parikshit Chandrakant Judicial Officer Thaker 1444 Mahendrabhai Maganbhai Gamit Judicial Officer
176
177
1449 Mahendrabhai Judicial Officer Somabhai Brahmbhatt 1458 Dharmeshkumar Ajmalbhai Prajapati 1462 Bharatkumar Bhupendrabhai Patel 1469 Vakhatsinh Devisinh Vanar 1499 Kanubhai Ambalal Patel Judicial Officer
178
179
Judicial Officer
180
Officer who was assigned specific task by I.O. Judicial Officer
181
182 Hostile 1503 Mohammed Ismail Isa From Al-Imran Merchant House, Mumbai 183 1511 Shivgiri Ramgiri Goswami Judicial Officer
Guest
184
1512 Yogeshkumar Amrutlal Judicial Officer Bhavsar 1524 Rohitkumar Ramanlal Parekh 1528 Vishwabandhu Narendrakumar Varatiya 1533 Prashant Vinodrai Joshi Judicial Officer
185
186
Court staff of the then learned Metropolitan Magistrate Court Judicial Officer
187
POTA/12/2003
37
JUDGMENT
P.W. No. 188
Exh
Name of Witness
Status
1554 Pragyaben Jayeshbhai Judicial Officer Agrawat 1557 Sureshchandra Bhimbhai Patel 1566 Manjitbhai Bikhabhai Mandli Judicial Officer
189
190
Executive Magistrate to prove Identification Parade of A-42, Exh. 1570.
191
1574 Rameshkumar Officer who was assigned Bhavanishanker Joshi specific task by I.O. 1586 Malvikaben Dilip Bhatt Judicial Officer 1606 Naginbhai Narsibhai Parmar 1645 Kuldeepchand Laxmandas Kapoor 1666 Balwantsinh Rampraveshsinh 1680 Harish Ranchhodlal Muliyana 1696 Rajgopalan Duraiswami 1718 Narendra K. Amin 1762 Girishkumar Laxmanbhai Singhal 1982 Pruthvipal Jagdish Pandey Judicial Officer
192 193
194
Sanctioning Authority
195
196
I.O. (No.4)
197
198 199
I.O. (No.3) I.O. (No.2)
200
Sanctioning Authority for Arms Act
POTA/12/2003
38
JUDGMENT
P.W. No. 201
Exh
Name of Witness
Status
2017 Manoj Krushnapillai Sashidharan
Sanctioning Authority for Arms Act
4.
The prosecution has produced the following documentary
evidence in support of its case : LIST OF DOCUMENTS
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness A-1 to 5 arrested from site u/s. 154 Cr.P.C. PW-162
FROM LIST EXH.433 1 Complaint filed by P.I. Mr. T. 04/04/2003 A. Barot (PW-154). FIR from the complaint 04/04/2003 1247
2 3
1341 1988
Report to Metropolitan 19/04/2003 Magistrate, Court No. 11, Ahmedabad for insertion of Sections 3(1)(a)(b), 3(3), 4, 20, 21(2)(b), 22(3)(a)(b) of POTA in the charge-sheet Report Officer of Police Station 04/04/2003
4 5
1248 702
u/s.157 Cr.P.C. Panch PW-22,56,154 A-1 to A-5 Panch PW-1
Panchnama of the place of 03/04/2003 offence (First Five accused arrested) Panchnama of search of 05/04/2003 house of accused Rehan Puthawala (A-4)
445
POTA/12/2003
39
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness A-22 Article 26 A-22 Article 25 A-4 Article 23 A-4 PW-1 Article 24 A-22 A-4 Article 17 A-22 Article 27 A-4 Article No.18 &19 Panch PW-1 Panch PW-1 Panch PW-3 Panch PW-4 Panch PW-2
Municipal Tax Bill - the October muddamal article No. 26 2002 recovered (Navi Mohallat) Ration Card (Navi Mohallat) -
459
8 9
458 456 457
Telephone Bill the 06/02/2003 muddamal (Navi Mohallat) of A-4 (Navi 31/01/1995
10 Passport Mohallat)
11 Telephone Diary 12 A diary with Address, Telephone Number etc. 13 Electric Bill (NAvi Mohallat) 14 One small Telephone Diary and Number Plate of Motorcycle (GJ-1CF-397)
13/02/2003 -
461 454 460 455
15 Panchnama of search of 05/04/2003 house of accused Anas Machiswala (A-22) 16 Panchnama of search of 05/04/2003 house of accused Mohammed Parvez (A-1) 17 Panchnama of search of 05/04/2003 house of accused Riyaz @ Goru (A-3) 18 Panchnama of search of 05/04/2003 house of accused Shahnawaz Gandhi (A-21) 19 Panchnama of search of 05/04/2003 house of wanted accused Sohailkhan Siddiq Mohammed Pathan
446
447
622
637
463
POTA/12/2003
40
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Panch PW-11 Panch PW-21 PW-162(I.O.) A-2 Panch PW-14,16 PW-162(I.O.) PW-56 (Ballistic) A-4 Panch PW-40 A-3 PW-162
20 Panchnama of search of 05/04/2003 house of accused Yunus Sareswala (A-2) 21 Panchnama regarding 10/04/2003 discovery of Revolver and Cartridge shown by accused Yunus Sareswala (A-2) 22 Panchnama regarding 12/04/2003 discovery of two countrymade Revolvers and Cartridge shown by accused Rehan Puthawala (A-4) 23 Panchnama regarding 13/04/2003 discovery of two countrymade Revolvers and Chit written by Rukshana wife of Rasul Party shown by accused Riyaz @ Goru S/o Abdulwahid Sareswala (A3)and letter of wife of absconding accused Rasul Party 24 Panchnama regarding 15/04/2003 discovery of Pistol, countrymade Tamancha and cartridge shown by accused Afzal @ Babu S/o. Murutuzakhan Pathan (A-6) 25 Panchnama regarding 15/04/2003 discovery of countrymade revolver shown by accused Idrishkhan Yakubkhan Pathan (A-7)
657
696
669
1319
754
Panch PW-32 PW-162(I.O.) A-6
677
Panch PW-18 PW-162(I.O.) Article 27
POTA/12/2003
41
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Panch PW-20 A-8
26 Panchnama regarding 18/04/2003 discovery of Pistol, countrymade revolver and cartridge shown by accused Mohammed Zahir Mohammed Iqbal Shaikh (A8) 27 Arrest and recover 18/04/2003 panchnama of accused Mohammed Tariq Fakirbhai Shaikh (A-9) and Mehmood Rajasha Saiyed (A-10) 28 Panchnama regarding 19/04/2003 exhibition of recovered weapons to press reporters 29 Panchnama of Asgarali (A-11) accused 11/05/2003
689
783
Panch PW-1-38 A-9, 10
814
Panch PW-46 POTA proceedings dropped Panch PW-28 A-25 A-25 PWPanch PW-19,34 PW-37(I.O.) A-20
803
30 Arrest and search 13/05/2003 panchnama of accused Mohammed Hussain Gulam Hussain (A-25) 31 Discovery panchnama weapons by A-25 of 13/05/2003
727
1473 759
32 Panchnama regarding 13/05/2003 discovery of revolver and cartridge shown by accused Kalim @ Mulla Kalim S/o. Mohammed Habib Karimi (A20) 33 Panchnama regarding 13/05/2003 discovery of revolver and cartridge shown by accused Mohammed Farooq @ Haji Farooq Usmangani Shaikh (A-23)
719
Panch PW-26 A-23
POTA/12/2003
42
JUDGMENT
Sr. No.
Description
Date
Exh.
34 Panchnama regarding 18/05/2003 discovery of weapons shown by accused Atthar Parvez Siddiq Mohammed Pathan (A-24) 35 Panchnama regarding 18/05/2003 discovery of weapons shown by accused Mohammed Hussain Gulam Hussain Shaikh (A-25) 36 Panchnama regarding 18/05/2003 discovery of weapons shown by accused Anas Abdul Rashid Machiswala (A-22) (Article-96,97) 37 7/12 Abstract searched from 13/05/2003 A-25 (muddamal) 38 Arrest panchnama regarding 15/07/2003 recovery of weapons and cartridge from accused Mohammed Rafiq @ R.D. (A-30) and Gulammohammed @ Gulal (A-31). 39 Panchnama regarding 31/07/2003 Places of S.T.D. / P.C.O. Booths from where phone calls were made by accused Gulammohammed @ Gulal S/o. Abdulkadar (A-31)to contact wanted accused Rasul Party and the places where he had attended the phone calls and the Godown 40 Panchnama regarding 05/08/2003 specimen signatures taken of accused (A-1,2,3 & 5)
785
674
Panch PW-17 A-25
736
Panch PW-31,33 A-22
1488 711
PW-180 A-25 Panch PW-24 A-30,31
1479
PW-180 A-31
705
Panch PW-23 A-1,2,3 & 5
POTA/12/2003
43
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-191 A-7 & 30 PW-129 (Article No.112 & 113) Panch PW-130
41 Panchnama regarding 07/08/2003 discovery of house shown by accused Mohammed Rafiq @ R.D. (A-30)(where meeting was held) at Mumbai wherein conspiracy was hatched by accused Mohammed Rafiq @ R.D.(A30), Idrishkhan (A-7), and absconding accused Mufti Suifyan, Rasul Party. 42 Panchnama regarding 07/08/2003 recovery of register of Hotel Amber, Mumbai where accused Mohammed Rafiq @ R.D. (A-30), absconding accused Mufti Sufiyan and Idrishkhan (A-7) stayed. 43 Panchnama regarding 09/08/2003 seizure of passport of accused Abdul Samad Mohammed Ibrahim Sunni (A-34). 44 Panchnama regarding S.T.D. 10/08/2003 / P.C.O. Which was used by witness Abdul Sattar Ibrahim Momin to talk to Rasul Party. 45 Panchnama regarding 17/08/2003 seizure of Mobile Phone and driving licence given by absconding accused Mufti Sufiyan to witness Yusufbhai Haji Ahmedbhai (PW-95).
1576
1578
PW-191 A-7 & 30
639
Panch PW-5 A-34
801
Panch PW-42 A-31 Involives A-20 to 22
643
POTA/12/2003
44
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Panch PW-8
46 Panchnama regarding 22/08/2003 seizure of specimen signature card of Memon CoOp Bank of accused Mohammed Yunus Abdul Rahim Sareswala (A-2) 47 Bank Card recovered of A-2 of Memon Co-op Bank 48 Panchnama regarding 22/08/2003 seizure of specimen signature card of Amarnath Co-Op Bank of accused Mohammed Parvez A.Kiyum Shaikh (A-1) 49 Card of Amarnath Bank 50 Panchnama regarding 14/07/2003 recovery of register and bill book of Star Guest House at Kolkatta produced by PW164 Sanatkumar Ajitkumar Panja. 51 Panchnama regarding 28/08/2003 seizure of passport of dropped witness Mustaqali Chandmiya Shaikh. 52 Panchnama regarding 18/08/2003 specimen handwritings of witness Mohammed Junaid Mohammed Hanif Shaikh (dropped) 53 Panchnama regarding 22/08/2003 seizure of notebook containing handwritings of witness Mohammed Junaid Mohammed Hanif Shaikh
648
649 660
A-2 Panch PW-12
659 651
A-1 Panch PW-9 Involves A1,2,3, & 5
641
721
Panch PW-15 A-7,30
723
Panch PW-15 A-7,30
POTA/12/2003
45
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Panch PW-13,29 PW-199(I.O.) A-1,2,3 & 5
54 Panchnama regarding 10/10/2003 seizure of the document containing signatures of accused Mohammed Riyaz @ Goru S/o Abdul Wahid Sareswala (A-3) and accused Munawar Baig @ Captain Yakub Baig Mirza (A-5)from Sessions Court. 55 Panchnama to open packet 21/11/2003 received from FSL 56 Vakalatnama recovered from City Court with signatures of A-1 to A-5 57 Panchnama regarding 23/11/2003 seizure of photographs of the accused who were sent to Pakistan by different routes for obtaining terrorist training by accused Javed Hamidullah Siddique (A-42) 58 Panchnama regarding 01/12/2003 recovery of specimen handwritings taken at Central Jail of accused Mohammed Parvez Abdul Kiyum Shaikh (A-1), Mohammed Yunus Abdul Rahim Sareswala (A2), Mohammed Riyaz @ Goru S/o Abdul Wahid Sareswala (A-3), Munawar Baig @ Captain Yakub Baig Mirza (A-5).
732
734
Panch PW-30 A-1,2,3 & 5 A-1 to A-5
731
806
Panch PW-44 A-1,2,3,4, 17,18
714
Panch PW-25 A-1,2,3,5
POTA/12/2003
46
JUDGMENT
Sr. No.
Description
Date
Exh.
59 Panchnama regarding 03/01/2004 recovery of specimen handwritings of witness Mohammed Ayyub @ Maap S/o. Dadamiya Shaikh (dropped witness) 60 Panchnama regarding 07/01/2004 seizure of specimen handwritings of witness Mohammed Ayyub @ Maap S/o. Dadamiya Shaikh contained in the handwritings of relevant time (dropped witness) 61 Panchnama regarding arrest 13/05/2003 of accused Mohammed Farooq @ Haji Farooq Usmangani Shaikh (A-23) and Atthar Parvez S/o. Siddiq Mohammed Pathan (A-24). 62 Despatch Note for sending 02/06/2003 Muddamal to FSL 63 Receipt of FSL 64 Opinion of FSL 65 Opinion of FSL 66 Opinion of FSL 67 Opinion of FSL 02/06/2003 01/01/2004 29/01/2004 27/01/2004 21/02/2004 23/02/2004
769
1809
Panch PW-14 PW-199(I.O.) A-42
690
Panch PW-20 A-23,24
904 905 906 866 867 909 882
PW-56 PW-56 PW-56 PW-51 PW-51 A-4 PW-56 PW-55
68 Letter of Chief Handwriting 13/11/2003 Expert, Handwriting & Photography Bureau, Gandhinagar in response to query.
POTA/12/2003
47
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-55
69 Letter of Chief Handwriting 19/11/2003 Expert, Handwriting & Photography Bureau, Gandhinagar in response to query. 70 Letter of documents FSL returning 05/01/2004
883
887 777
PW-55 PW-36
71 Relevant page containing 03/11/2002 Entry No.215 of Hotel International, Kolkata 72 Specimen signatures of 03/01/2004 dropped witness Ayyub Dadamiya who signed as Gafurbhai 73 Opinion of Chief Handwriting 01/01/2004 Expert, Handwriting & Photography Bureau, Gandhinagar. 74 Letter of documents FSL returning 03/01/2004 03/2004
778
PW-36
888
PW-55
889 890
PW-55 PW-55
75 Opinion of Chief Handwriting 03/02/2004 Expert, Handwriting & Photography Bureau, Gandhinagar. 76 Letter to ACP, Crime Branch 04/01/2005 seeking approval to Chargesheet for Arms Act 77 Letter of PSI Shri K. M. 07/04/2003 Vaghela (PW-162)to the Chief Ticket Collector, Ahmedabad Railway Station
1293
PW-159 A-48 PW-55
860
78 Information provided by Chief 07/04/2003 861 Involves ATicket Superintendent, (colly) 1,2,3 & 5 Ahmedabad Railway Station about journey by accused
POTA/12/2003
48
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Inquiry for A32, 33
79 Yadi addressed to Chief 15/07/2003 Ticket Inspector, Kalupur Railway Station for providing copy of reservation chart about journey from Ajmer to Ahmedabad by Delhi Mail by A-30 & A-33. 80 Information received from 15/07/2003 Chief Ticket Inspector about reservation 81 Letter requesting for 02/09/2003 information to the Kenya High Commission, New Delhi about Visa, Arrival Stamp and Exit Stamp affixed on passport No. A-0433477 of accused Anas Machiswala (A-22) 82 Information received from the 09/09/2003 Kenya High Commission, New Delhi in response to the above letter. 83 Proposal sent to Home 07/1/2004 Department in respect of A40 to A-47 84 Yadi written for accused 29/09/2003 Kalim Ahmed (A-20) to ITI, Kubernagar, Ahmedabad for obtaining certificate with regard to the course of T.V. Mechanic undergone by him 85 Forwarding letter to issue 29/09/2003 Certificate issued by ITI, Kubernagar, Ahmedabad.
863
864
Involves A-32, 33 PW-199 A-22
1783
1784
PW-199 A-22
1946
PW-199 A-40, A-47 For A-20
846
845
Involves A-20
POTA/12/2003
49
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-199 A-1,2,3
86 Letter to the Chief of Group 17/10/2003 Secretary, Emirates Airways, Mumbai requesting for information with regard to air journey made by the accused. 87 Letter containing information 24/01/2004 and xerox copy of Air Ticket received from Emirates Airways in response to the above letter. 88 Letter to Regional Passport 02/09/2003 Officer, Ahmedabad for obtaining certified copies of the documents submitted by accused Anas Machiswala (A-22) for obtaining passport. 89 Information along with 14/11/2003 certified copies of the documents provided by the Regional Passport Office in response to the above letter. 90 Yadi to the General 05/04/2003 Manager, Hutch, Ahmedabad for obtaining printout of information about calls made by accused Rehan Puthawala (A-4) from Mobile No. 9825398516 91 Printout in respect of Mobile 21/12/2002 No. 9825398516 of Rehan to Puthawala (A-4) received 28/12/2002 from Hutch Company. 92 Yadi requesting Hutch 22/08/2003 Company, Ahmedabad for obtaining name and address of the customer having Mobile No. 9825488270
1786
1787
PW-199 A-1,2,3
1779
PW-199 A-22
1780
PW-199 A-22
990
A-4 PW-162
991
A-4 (talked CA for 14 times) PW-162 PW-162 22/05/02 to 6/9/02
992
POTA/12/2003
50
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness A-1 (talked with A22
93 Forwarding letter and 30/03/2003 Printout in respect of Mobile No. 9825488270 received from Hutch Company, Ahmedabad (Hutch gives address of A-1) 94 Yadi for keeping PSI Shri K. 03/06/2003 M. Vaghela in the investigation of accused Gulal (A-31) and Rafiq @ R. D. (A-30) 95 Report submitted by PSI Shri 15/07/2003 K. M. Vaghela after arrest of accused Gulal (A-31) and Rafiq @ R. D. (A-30) 96 Yadi to PSI Shri B A Chavda 29/04/2003 for producing the accused arrested at Hyderabad by obtaining Transfer Warrant 97 Report regarding production 05/05/2003 of accused Noor-ur-Rehman (A-18) and Mohammed Imtiyaz (A-17) arrested by PSI Shri B. A. Chavda from Hyderabad. 98 Report containing points for 10/04/2003 investigation to be made at Kolkata, provided by PSI Shri K. M. Vaghela to PSI Shri R.M. Patel (PW-168) 99 Report submitted by PSI Shri 20/04/2003 R.M. Patel after investigation made by him at Kolkata 100 Order directing PSI Shri R.M. 12/08/2003 Patel to make investigation of the accused at Burhanpur, Madhya Pradesh
993
1326
PW-162 A-30,31
1327
PW-162 A-30,31
1763
PW-199 A-17,18
1765
PW-199 A-17,18
1318
PW-162,168
1390
PW-162,168
1391
PW-168
POTA/12/2003
51
JUDGMENT
Sr. No.
Description
Date
Exh.
101 Report submitted by PSI Shri 19/08/2003 R.M. Patel after investigation made by him at Burhanpur, Madhya Pradesh 102 Order directing PI Shri J.G. 05/05/2003 Parmar to produce accused Kalim Ahmed @ Kalimullah (A-20),Shahnawaz @ Shanu (A-21) and Anas Machiswala (A-22) by obtaining Transfer Warrant as the said accused were arrested by CBI. AND Endorsement of PI Shri J.G. Parmar on the Yadi about arrest and production of the 09/05/2003 said accused. 103 Yadi submitted by PI Shri 06/05/2003 J.G. Parmar to the Court for obtaining Transfer Warrant of the accused 104 Report of PI Shri J.G. Parmar 06/05/2003 for production of the accused by Transfer Warrant before the Chief Court 105 Report of PI Shri J.G. Parmar 13/05/2003 for carrying out required procedure by keeping with him accused Kalim @ Kallimullah (A-20) and endorsement thereof along with panchnama of discovery of weapons 106 Order issued to PI Shri P.G. 10/12/2003 Vaghela to make investigation by visiting Hyderabad
1392
771
PW-37
772
PW-37
773
PW-37
774
PW-37 A-20
1794
PW-199 A-44
POTA/12/2003
52
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-199 A-44 PW-199 A-40,41
107 Report submitted by PI Shri 14/12/2003 P.G. Vaghela after making investigation at Hyderabad 108 Order directing PSI Shri M.D. 20/10/2003 Chaudhary to produce the accused arrested at Hyderabad by Transfer Warrant 109 Report of PSI Shri M.D. 27/10/2003 Chaudhary 110 Order directing PSI Shri B.T. 22/11/2003 Karolia to produce accused Mohammed Majid @ Shakeel (A-43) arrested from Hyderabad by Transfer Warrant 111 Report submitted by PSI Shri 27/11/2003 B.T. Karolia for production of accused Mohammed Majid @ Shakeel (A-43) arrested from Hyderabad by Transfer Warrant 112 Order directing PSI Shri R.I. 18/07/2003 Patel to produce accused Haji Mohammed Sadiq (A38), resident of Jammu Kashmir, if found after investigation. 113 Report regarding production 28/07/2003 of Haji Mohammed Sadiq (A38) produced by PSI Shri R.I. Patel. 114 Order directing PSI Shri R.I. 22/08/2003 patel to produce necessary information relating to bank accounts of the first four arrested accused in connection with this offence
1795
1789
1790 1791
PW-199 A-40,41 PW-199 A-43
1792
PW-199 A-43
848
PW-48 A-38
849
PW-48 A-38
850
PW-48 A-1,2,3&5
POTA/12/2003
53
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-48 A-2 PW-48 A-43
115 Report regarding procedure 22/08/2003 carried out by PSI Shri R.I. Patel for above 116 Report regarding production 19/12/2003 of accused Mohammed Majid @ Shakeel @ Guddu (A-43) by PSI Shri R.I. Patel 117 Report by PI Shri R.B. Joshi 08/08/2003 after making investigation at Mumbai by keeping the accused Mohammed Rafiq @ R.D. Majidkhan Pathan(A30)with him . 118 Yadi to PI Shri H.P. Agrawat 18/05/2003 for carrying out necessary procedure by keeping accused Anas Abdul Machiswala (A-22) with him 119 Report by PI Shri H.P. 18/05/2006 Agrawat after making investigation by keeping the accused Anas Abdul Machiswala (A-22) with him . 120 Order directing PSI Shri I.K. 29/04/2003 Chauhan to produce the accused arrested from Hyderabad by Transfer Warrant 121 Report by PSI Shri I.K. 05/05/2003 Chauhan for production of the A-16 arrested from Hyderabad by Transfer Warrant and the Report of Bahadursinh
851
852
1575
PW-191 A-30
766
PW-35 A-22
767
PW-35 A-22
1764
PW-199 A-16,19
1766 PW-199 (page A-16 12)
POTA/12/2003
54
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness
122 Report by PSI Shri I.K. 05/05/2003 Chauhan for production of the A-19 arrested from Hyderabad by Transfer Warrant and the Report of Bahadursinh 123 Report regarding procedure 31/072003 carried out PSI Shri V.D. Vanar by keeping A-31 with him 124 Report by PSI Shri V.D. 01/08/2003 Vanar in respect of panchnamas prepared by him and statements of witnesses recorded by him 125 Yadi directing PI Shri T.A. 12/05/2003 Barot to arrest accused Mohammed Farooq @ Haji Farooq (A-23) and Atthar Parvez Siddiq Mohammed (A-24) 126 Report of PI Shri T.A. Barot 13/05/2003 after arrest of accused Mohammed Farooq @ Haji Farooq (A-23) and Atthar Parvez Siddiq Mohammed (A-24) 127 Yadi to PI Shri T.A. Barot to 13/05/2003 make investigation by keeping accused Mohammed Farooq @ Haji Farooq (A23)with him 128 Report PI Shri T.A. Barot 13/05/2003 after making investigation by keeping accused Mohammed Farooq @ Haji Farooq (A-23) with him
1767 PW-199 (page A-19 3)
1775
PW-199
1776
PW-199
1252
PW-154 A-23,24
1253
PW-154
1254
PW-154 A-23,24
1255
PW-154 A-23
POTA/12/2003
55
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-154 A-24
129 Yadi to PI Shri T.A. Barot to 18/05/2003 make investigation by keeping accused Atthar Parvez Siddiq Mohammed (A-24) with him 130 Report PI Shri T.A. Barot 18/05/2003 after making investigation by keeping accused Atthar Parvez Siddiq Mohammed (A-24) with him 131 Yadi directing PI Shri T.A. 17/08/2003 Barot to make investigation by visiting Hyderabad. 132 Report by PI Shri T.A. Barot 21/08/2003 after making investigation at Hyderabad 133 Yadi to PI Shri V.D. Vanar for 12/05/2003 arrest of accused Mohammed Hussain Gulam Hussain (A-25) 134 Report of PW-180 of the 13/05/2003 procedure done by keeping A-25 together 135 Yadi by PW-199 for A-25 13/05/2003
1256
1257
PW-154 A-24
1258
PW-154
1259
PW-154
1470
PW-180 A-25
1471
PW-180 A-25 PW-27 PW-180 A-25
1472
136 Yadi by PW-180 for the 13/05/2003 1471/1 PW-27 panchnama of A-25 PW-180 A-25 137 Order directing PI Shri V.D. 25/07/2003 Vanar to take search of the house of accused Abdul Latif @ Kashmiri Lala (A-32) and Aiyubkhan Mohammed Rafiq Pathan (A-33) 1475 PW-180 A-32,33
POTA/12/2003
56
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness A-25 Article-91 PW-180 PW-180 A-32,33
138 Electricity Bill (A-25)
24/04/2003
1474
Two Telephone Bills (A-25 Feb and address) May 2003 139 Report of PI Shri V.D. Vanar 25/07/2003 in connection with the investigation made by him in pursuance of the order regarding search of the house of accused Abdul Latif @ Kashmiri Lala (A-32) and Aiyubkhan Mohammed Rafiq Pathan (A-33) 140 Yadi directing PI Shri V.D. 09/08/2003 vanar to make investigation by keeping witness Abdul Sattar with him 141 Report by PI Shri V.D. Vanar 10/08/2003 after making investigation by keeping witness Abdul Sattar with him 142 Order directing PI Shri V.D. 08/11/2003 Vanar to produce accused Javed Hamidullah (A-42) arrested from Mumbai 1476
1480
PW-180
1481
PW-180
1484
PW-180
143 Report regarding production 10/11/2003 1485 PW-180 of the accused Javed (Colly) Hamidullah (A-42)along with order papers and Yadi 144 Yadi directing PI Shri V.D. 24/11/2003 Vanar to make investigation at Kolkata by keeping accused Javed Hamidullah (A-42) with him 145 Report by PI Shri V.D. Vanar 01/12/2003 after making investigation at Kolkata by keeping accused Javed Hamidullah (A-42) 1486 PW-180
1487
PW-180
POTA/12/2003
57
JUDGMENT
Sr. No.
Description
Date
Exh.
146 Order by PI Shri K.M. 05/04/2003 Vaghela directing PI Shri A.A. Chauhan to take search of the accused 147 Report by PI Shri 15/04/2003 A.A.Chauhan regarding arrest and production of absconding accused Afzalkhan @ Babu Murtuzakhan Pathan (A-6) 148 Yadi directing PI Shri A.A. 18/05/2003 Chauhan to make investigation by keeping accused Mohammed Hussain Gulam Hussain Shaikh (A-25) with him 149 Report by PI Shri A.A. 18/05/2003 Chauhan after making investigation by keeping accused Mohammed Hussain Gulam Hussain Shaikh (A-25) with him 150 Yadi directing PI Shri A.A. 03/06/2003 Chauhan to make 04/06/2003 investigation by keeping accused Abdul Latif @ Kashmiri LaLa (A-32) and Aiyubkhan Mohammedrafiq Pathan (A-33) with him 151 Report by PI Shri A.A. 15/07/2003 Chauhan after arrest of Abdul Latif @ Kashmiri LaLa (A-32) and Aiyubkhan Mohammedrafiq Pathan (A33)
1305
1322
PW-162 A-6
1769
PW-199 A-25
1770
PW-199 A-25
1771
PW-199 A-32,33
1772
PW-199 A-32,33
POTA/12/2003
58
JUDGMENT
Sr. No.
Description
Date
Exh.
152 Yadi directing PI Shri A.A. 19/07/2003 Chauhan to make investigation about absconding accused of Hyderabad 153 Report by PI Shri A.A. 28/07/2003 Chauhan regarding production of accused. 154 Yadi directing PI Shri A.A. 05/09/2003 Chauhan to make investigation of absconding accused 155 Report by PI Shri A.A. 05/01/2004 Chauhan regarding production of accused Mohammed Yunuskhan S/o. Yakubkhan Pathan (A-45) and Abdul Hamidkhan S/o. Yakubkhan Pathan (A-46) 156 Yadi directing PI Shri A.A. 03/01/2004 Chauhan to produce accused Abdul Latif Gulamali Patel (A-47) 157 Report by PI Shri A.A. 05/01/2004 Chauhan regarding production of accused Abdul Latif Gulamali Patel (A-47) 158 Yadi to PI Shri I.A. Saiyed for 05/04/2003 taking search of the house of the accused 159 Report by PI Shri I.A. Saiyed 05/04/2003 after taking search of accused Sohailkhan Siddique Mohammed @ Manjukhan Pathan (absconding) and Mohammed Yunus Abdul Rahim Sareshwala (A-2)
1773
1774
PW-199 A-34 to A-37 PW-199 A-45,46
1798
1799
PW-199 A-45,46
1796
PW-199 A-47
1797
PW-199 A-47
791
PW-39
792
PW-39 A-2
POTA/12/2003
59
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Case Transferred
160 Yadi to PI Shri I.A. Saiyed to 12/05/2003 arrest accused Maulvi Ahmed Hussain S/o. Allahrakha Mansuri (A-28) 161 Yadi to PI Shri I.A. Saiyed 13/05/2003 regarding arrest of accused Maulvi Ahmed Hussain S/o. Allahrakha Mansuri (A-28) 162 Yadi to Manager, BSNL for 05/04/2003 obtaining names, addresses and printouts of mobile holders 163 Yadi to Manager, AIRTEL for 07/04/2003 obtaining names, addresses and printouts of mobile holders 164 Yadi to Manager, AIRTEL for 07/04/2003 obtaining names, addresses and printouts of mobile holders 165 Yadi to General Manager, 07/04/2003 HUTCH for obtaining names, addresses and printouts of mobile holders 166 Yadi to General Manager, 07/04/2003 BSNL for obtaining names, addresses and printouts of mobile holders 167 Yadi to General Manager, 08/04/2003 HUTCH for obtaining names, addresses and printouts of mobile holders 168 Yadi to S.T.O.D., Jamalpur 10/04/2003 Telephone Exchange for obtaining telephone printout
793
794
Case Transferred
1306
PW-162
1310
PW-162
1311
PW-162
994
PW-63
1312
PW-162
1314
PW-162
1315
PW-162
POTA/12/2003
60
JUDGMENT
Sr. No.
Description
Date
Exh.
169 Yadi to General Manager, 10/04/2003 HUTCH for obtaining names, addresses and printouts of mobile holders 170 Yadi to General Manager, 10/04/2003 BSNL, Telephone Exchange Building, Gulbai Tekra, Ahmedabad for obtaining telephone printout 171 Yadi to General Manager, 11/04/2003 HUTCH for obtaining names, addresses and printouts of mobile holders 172 Yadi to General Manager, 15/04/2003 HUTCH for obtaining names, addresses and printouts of mobile holders 173 Yadi to General Manager, 16/04/2003 BSNL for obtaining telephone printout 174 Yadi to General Manager, 16/04/2003 BSNL for obtaining printout of mobile 175 Yadi to General Manager, 28/04/2003 HUTCH for obtaining names, addresses and printouts of mobile holders 176 Yadi to General Manager, 01/01/2004 BSNL for obtaining names, addresses and printouts of telephone as well as mobile holders 21639496, 2171331 etc. 177 Yadi to S.D.E., BSNL for 20/01/2004 obtaining names and addresses of telephone holders
1316
1317
PW-162
996
PW-63
1323
PW-162
1324
PW-162
1325
PW-162
1804
PW-199
1805
PW-199 A-1 & A-20
1806
PW-199
POTA/12/2003
61
JUDGMENT
Sr. No.
Description
Date
Exh.
178 Yadi to the Chief 17/04/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C. 179 Yadi to the Chief 30/04/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C. 180 Information by BSNL of 19/01/2004 number, address etc including of Telephone Number 2163946 and 2171331 181 Yadi to the Chief 07/05/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C. 182 Yadi to the Chief 14/05/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C. 183 Yadi to the Chief 26/05/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C. 184 Yadi to the Chief 29/05/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C.
1329
1814
PW-199
1300
A-1, 20 etc.
1815
PW-199
1816
PW-199
1817
PW-199
1818
PW-199
POTA/12/2003
62
JUDGMENT
Sr. No.
Description
Date
Exh.
185 Yadi to the Chief 09/06/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C. 186 Yadi to the Chief 11/06/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C. 187 Yadi to the Chief 09/07/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C. 188 Yadi to the Chief 09/07/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C. 189 Yadi to the Chief 09/07/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C. 190 Yadi to the Chief 05/08/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C. 191 Yadi to the Chief 18/08/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C.
1819
1820
PW-199
1821
PW-199
1822
PW-199
1823
PW-199
1824
PW-199
1825
PW-199
POTA/12/2003
63
JUDGMENT
Sr. No.
Description
Date
Exh.
192 Yadi to the Chief 18/08/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C. 193 Yadi to the Chief 18/08/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C. 194 Yadi to the Chief 18/08/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C. 195 Yadi to the Chief 18/08/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C. 196 Yadi to the Chief 18/08/2003 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C. 197 Yadi to the Chief 05/01/2004 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C. 198 Yadi to the Chief 12/01/2004 Metropolitan Magistrate, Meghaninagar for recording statement of witness under Section 164 of Cr.P.C.
1826
1827
PW-199
1828
PW-199
1829
PW-199
1830
PW-199
1831
PW-199
1832
PW-199
POTA/12/2003
64
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-170 A-1 to A-5
199 Yadi to the Chief 25/04/2003 Metropolitan Magistrate, Ahmedabad for recording statement of accused Mohammed Parvez S/o Abdul Kiyum Shaikh (A1)and four others under Section 32 of POTA 200 Yadi to the Chief 29/04/2003 Metropolitan Magistrate, Ahmedabad for recording statement of accused Idrishkhan Yakubkhan Pathan (A-7)and Mohammed Zahir Mohammed Iqbal Shaikh (A-8) under Section 32 of POTA 201 Yadi to the Chief 16/05/2003 Metropolitan Magistrate, Ahmedabad for recording statement of accused Mohammed Asgarali(A-11) and Five others under Section 32 of POTA 202 Yadi to the Chief 18/05/2003 Metropolitan Magistrate, Ahmedabad for recording statement of accused Anas Machiswala(A-22) and Two others under Section 32 of POTA 203 Yadi to the Chief 25/05/2003 Metropolitan Magistrate, Ahmedabad for recording statement of accused Mohammed Farooq @ Haji Farooq Usmangani Shaikh (A-23) and Four others under Section 32 of POTA
1403
1835
PW-199 A-7,8
1836
Case dropped
1837
PW-199 A-22
1838
PW-199 A-23
POTA/12/2003
65
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Case transferred
204 Yadi to the Chief 30/05/2003 Metropolitan Magistrate, Ahmedabad for recording statement of accused Mohammed Ashraf Ismail Nagori (A-29) under Section 32 of POTA 205 Yadi to the Chief 05/08/2003 Metropolitan Magistrate, Ahmedabad for recording statement of accused Abdul Latif @ Kashmiri Lala (A-32) under Section 32 of POTA 206 Yadi to the Chief 08/08/2003 Metropolitan Magistrate, Ahmedabad for recording statement of accused Mohammed Rafiq @ R.D. (A-30) and Three others under Section 32 of POTA 207 Report to the Chief 16/08/2003 Metropolitan Magistrate, Ahmedabad for recording statement of accused Haji Sadiq Jalaluddin Gurjar (A38) under Section 32 of POTA 208 Report to the Chief 05/11/2003 Metropolitan Magistrate, Ahmedabad for recording statement of accused Ajazahmed @ Mamu (A-41) and Mohammed Wajid @ Wajid (A-40) under Section 32 of POTA
1839
1840
PW-199 A-32
1841
PW-199 A-30
1842
PW-199 A-38
1843
PW-199 A-40,41
POTA/12/2003
66
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-199 A-42
209 Report to the Chief 03/12/2003 Metropolitan Magistrate, Ahmedabad for recording statement of accused Javed Hamidullah Siddique (A-42) under Section 32 of POTA 210 Report to the Chief 09/12/2003 Metropolitan Magistrate, Ahmedabad for recording statement of accused Mohammed Majid Mohammed Abid Sunni (A43) under Section 32 of POTA 211 Report to the Chief 20/12/2003 Metropolitan Magistrate, Ahmedabad for recording statement of accused Ajazahmed @ Chhotu Ajaz (A-44) under Section 32 of POTA 212 Report to the Chief 08/01/2004 Metropolitan Magistrate, Ahmedabad for recording statement of accused Mohammed Yunuskhan S/o Yakubkhan Pathan (A45)and Mohammed Abdul Hamidkhan S/o Yakubkhan Pathan (A-46) under Section 32 of POTA 213 Report to the Chief 11/01/2004 Metropolitan Magistrate, Ahmedabad for recording statement of accused Abdul Latif Gulamali Patel (A-47) under Section 32 of POTA
1844
1845
PW-199 A-43
1846
PW-199 A-44
1847
PW-199 A-45,46
1848
PW-199 A-47
POTA/12/2003
67
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness A-48 PW-169
214 Yadi to verify the statement 08/11/2004 of accused Maulana Nasiruddin (A-48) under Section 32 of POTA 215 Yadi to assign work to PW- 05/08/2003 191 to go to Mumbai FROM LIST EXH.878 216 Report No. 1299/03 sent by 20/10/2003 Shri G.L. Singhal, ACP, Crime Branch, Ahmedabad City sent to FSL, Gandhinagar for examination of disputed documents. 217 Report No. 1300/03 sent by 20/10/2003 Shri G.L. Singhal, ACP, Crime Branch, Ahmedabad City sent to FSL, Gandhinagar for examination of disputed documents. 218 Report No. 1481/03 sent by 06/12/2003 Shri G.L. Singhal, ACP, Crime Branch, Ahmedabad City sent to FSL, Gandhinagar for examination of disputed documents. 219 Report No. 22/04 sent by 15/01/2004 Shri D.G. Vanzara, ACP, Crime Branch, Ahmedabad City sent to FSL, Gandhinagar for examination of disputed documents. 220 Reasons for opinion in 01/01/2004 respect of AB-Case No.242/2003 i.e. DCB Police Station Ist C.R. No.6/2003
1396
1777
PW-191
880
PW-55
881
PW-55
884
PW-55
885
PW-55
891
PW-55
POTA/12/2003
68
JUDGMENT
Sr. No.
Description
Date
Exh.
221 Reasons for opinion in 29/01/2004 respect of AB-Case No.242/2003 i.e. DCB Police Station Ist C.R. No.6/2003
892
222 Original photographs used 27/01/2004 886 PW-55 for giving opinion taken from (Colly) VSC-5000 instrument in respect of AB-Case No.242/A/2003 i.e. DCB Police Station Ist C.R. No.6/2003 and 35 photographs and negatives FROM LIST EXH.913 223 Papers containing details of 14/10/2003 914 PW-56 Muddamal Articles received (colly) by FSL for examination. 224 Papers containing details of 07/02/2004 915 PW-56 Muddamal Articles received (colly) by FSL for examination. FROM LIST EXH.1021 225 True copy of extract of 10/12/2002 account of Hawa Engineering to Ltd. with Karur Vysya Bank 10/03/2003 Ltd., Kolkata. 226 True copy of cheque of Karur 01/03/2003 Vysya Bank Ltd. FROM LIST EXH.1375 227 Yadi to Divisional Engineer 16/04/2003 (Vigilance) Kolkata Telephones 228 Printouts in respect of 22/12/2002 Telephone No.28330190. to 28/12/2002 1377 PW-167 1024 PW-71 A-1,2,3,5,20
1023
PW-71 A-1,2,3,5,20
1382
PW-167
POTA/12/2003
69
JUDGMENT
Sr. No.
Description
Date
Exh.
229 Printouts in respect Telephone No.28330295
of 22/12/2002 to 28/12/2002
1381
230 Printouts in respect of 22/12/2002 Telephone No.28330383. to 28/12/2002 231 Cover containing printouts of 23/04/2003 Telephone details FROM LIST EXH.1947 232 Office copy of the proposal 18/02/2006 sent to the Chief Secretary, Home Department, Sachivalaya, Gandhinagar for filing charge-sheet against accused Aslamkhan @ Ladden S/o. Nazarkhan Pathan (A-53) under Section 196 of Cr.P.C. and Section 50 of POTA 233 Office copy of the proposal 18/02/2006 sent to the Dy. Police Commissioner, Crime Branch, Ahmedabad City, for filing charge-sheet against accused Aslamkhan @ Ladden S/o. Nazarkhan Pathan (A-53) in respect of offences under the Arms Act FROM LIST EXH.1813
1383
PW-167
1379
Pw-167
1948
PW-199 A-53
1949
PW-199 A-53
POTA/12/2003
70
JUDGMENT
Sr. No.
Description
Date
Exh.
234 Yadi sent by Shri G.L. 20/12/2003 Singhal, SP, ATS, Ahmedabad City to the Chief Metropolitan Magistrate for recording statement of Mohammed Shakeel @ Guddu and Parag B. Gandhi under Section 164 of Cr.P.C. 235 Yadi sent by Shri G.L. 30/12/2005 Singhal, SP, ATS, Ahmedabad City to the Chief Metropolitan Magistrate for recording statement of Tanvirkhan under Section 164 of Cr.P.C. FROM LIST EXH.808 236 Panchnama regarding 18/02/2007 identification of photographs of accused who had gone to Dhaka for obtaining terrorist training. 237 Photographs of arrested as well as absconding accused, identified by A-55 FROM LIST EXH.1717 238 Yadi regarding arrest of 29/10/2004 accused Maulana Nasiruddin (A-48) 239 Report regarding production 01/11/2004 of acAcused Maulana Nasiruddin (A-48) FROM LIST EXH.1781 --
1833
1834
PW-199
811
Involves A1,2,3, 5,17,18, 42
812
Involves A1,2,3, 5,17,18, 42 PW-198 A-48 PW-198 A-48
1719
1720
POTA/12/2003
71
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness A-22
240 Original cover in which 14/11/2003 accused Anas Abdul Rashid Machiswala (A-22)had sent documents to the Regional Passport Office for obtaining passport 241 Original cover under which 09/09/2003 Kenya Embassy, New Delhi, had sent information regarding suspicious Stamp of Visa and Immigration on the passport of accused Anas Abdul Rashid Machiswala (A-22) 242 Original cover under which 21/01/2004 Emirates Airways, Mumbai, had sent information about journey of accused Mohammed Parvez (A-1), Mohammed Yunus (A-2) and Riyaz @ Goru (A-3) on the basis of fake passports FROM LIST EXH.1204 243 Original page of the Register 30/09/2002 of Departure Record of Hotel International containing entry Nos. 60 to 73 244 Office copy of receipt issued 28/11/2003 to Prashant Pavitrakumar Ghosh FROM LIST EXH.1208 245 Despatch Note for sending 05/02/2005 three Muddamal articles to FSL for investigation 246 Office copy of receipt 05/02/2005 acknowledging receipt of Despatch Note at Exh.1211
1782
1785
A-22
1788
A-1,3
1206
PW-140 A-42
1207
PW-140 A-42
1211
PW-141 A-50 PW-141 A-50
1212
POTA/12/2003
72
JUDGMENT
Sr. No.
Description
Date
Exh.
FROM LIST EXH.1297 247 Copy of letter of BSNL 22/01/2004 regarding Telephone No.2171331 248 Copy of statement received 22/01/2004 along with letter of BSNL at Exh.1361 (Telephone No. 2171331) 249 Passport of A-22 issued on 10/01/1997 10/01/1997. FROM LIST EXH.1328 250 Yadi by PW-162, Shri K.M. 30/04/2003 Vaghela PSI, DCB Police Station, Ahmedabad City to the Chief Metropolitan Magistrate, Ahmedabad City for obtaining custody of accused on the basis of Transfer Warrant 251 Various applications by to Advocates and relatives of 270 accused regarding their visit at Central Jail, Sabarmati, Ahmedabad FROM LIST EXH.1905 271 Medical treatment case papers of accused Mohammed Parvez Abdul Kaiyum Shaikh (A-1) 272 Medical treatment case papers of accused Mohammed Yunus Sareshwala (A-2) ranging 1906 PW-199 from (colly) A-1 06/04/2003 to 23/04/2003 ranging 1907 PW-199 from (colly) A-2 06/04/2003 to 23/04/2003 1330 PW-162 1361
1362
PW-163 A-20
1057
PW-90 Implicates A22
during the (1851 Twenty period from to applications 06/04/2003 1870) to 11/12/2006
POTA/12/2003
73
JUDGMENT
Sr. No.
Description
Date
Exh.
273 Medical treatment case papers of accused Mohammed Riyaz @ Goru Sareshwala (A-3)
ranging 1908 PW-199 from (colly) A-3 06/04/2003 to 23/04/2003
274 Medical treatment case ranging 1909 PW-199 papers of accused Rehan from (colly) A-4 Abdul Majid Puthawala (A-4) 06/04/2003 to 23/04/2003 275 Medical treatment case papers of accused Munawar Baig @ Captain Yakub Baig Mirza (A-5) 276 Medical treatment case papers of accused Afzalkhan @ Babu Murtuzakhan Pathan (A-6) ranging 1910 PW-199 from (colly) A-5 06/04/2003 to 23/04/2003 ranging 1911 PW-199 from (colly) A-6 18/04/2003 to 23/04/2003
277 Medical treatment case ranging 1912 PW-199 papers of accused Idrishkhan from (colly) A-7 Yakubkhan Pathan(A-7) 21/04/2003 to 23/04/2003 278 Medical treatment case papers of accused Mohammed Zahir Mohammed Iqbal Shaikh(A8) 279 Medical treatment case papers of accused Mohammed Tariq F. Shaikh(A-9) ranging 1913 PW-199 from (colly) A-8 21/04/2003 to 23/04/2003 ranging 1914 PW-199 from (colly) A-9 21/04/2003 to 24/04/2003
POTA/12/2003
74
JUDGMENT
Sr. No.
Description
Date
Exh.
280 Medical treatment case ranging 1915 PW-199 papers of accused Mehmood from (colly) A-10 Razasha Saiyed (A-10) 21/04/2003 to 23/04/2003 281 Medical treatment case ranging 1916 PW-199 papers of accused Zuber from (colly) A-16 Sharif Rahim Sharif 9/5/2003 to Muslim(A-16) 18/5/2003 282 Medical treatment case papers of accused Mohammed Imtiyaz Mohammed Khasim(A-17) 283 Medical treatment case papers of accused Noor Ur Rehman S/o Saiyed Madhar Saiyed(A-18) 284 Medical treatment case papers of accused Mubashir Hussain @ Bashir Hussain S/o. Mazhar Hussain Saiyed (Muslim)(A-19) 285 Medical treatment case papers of accused Kalim @ Mullah Kalim S/o. Mohammed Habib Karimi(A20) 286 Medical treatment case papers of accused Shahnawaz @ Shanu S/o. Mohammed Hussain Gandhi (A-21) ranging 1917 PW-199 from (colly) A-17 9/5/2003 to 18/5/2003 ranging 1918 PW-199 from (colly) A-18 9/5/2003 to 18/5/2003 ranging 1919 PW-199 from (colly) A-19 9/5/2003 to 18/5/2003 ranging 1920 PW-199 from (colly) A-20 12/05/2003 to 31/05/2003 ranging 1921 PW-199 from (colly) A-21 12/05/2003 to 18/05/2003
287 Medical treatment case ranging 1922 PW-199 papers of accused Anas from (colly) A-22 Abdul Machiswala (A-22) 12/05/2003 to 18/05/2003
POTA/12/2003
75
JUDGMENT
Sr. No.
Description
Date
Exh.
288 Medical treatment case papers of accused Mohammed Farooq @ Haji Farooq Usmangani Shaikh(A-23) 289 Medical treatment case papers of accused Atthar Parvez Siddiq Mohammed @ Manjukhan Pathan(A-24) 290 Medical treatment case papers of accused Mohammed Hussain Gulam Hussain Shaikh(A-25) 291 Medical treatment case papers of accused Sikandarkhan Usmankhan Pathan(A-26)
ranging 1923 PW-199 from (colly) A-23 16/05/2003 to 31/05/2003 ranging 1924 PW-199 from (colly) A-24 18/05/2003 to 31/05/2003 ranging 1925 PW-199 from (colly) A-25 16/05/2003 to 31/05/2003 ranging 1926 PW-199 from (colly) A-26 18/05/2003 to 31/05/2003
292 Medical treatment case ranging 1927 PW-199 papers of accused Tahir from (colly) A-27 Arifbhai Bakaswala(A-27) 16/05/2003 to 31/05/2003 293 Medical treatment case papers of accused Mohammed Rafiq @ R.D. Majidkhan Pathan(A-30) 294 Medical treatment case papers of accused Gulam Mohammed @ Gulal S/o. Abdul Kadar Shaikh(A-31) ranging from 1/08/2003 to 5/08/2003 ranging from 3/08/2003 to 7/08/2003 1928 PW-199 (colly) A-30
1929 PW-199 (colly) A-31
POTA/12/2003
76
JUDGMENT
Sr. No.
Description
Date
Exh.
295 Medical treatment case ranging 1930 PW-199 papers of accused Abdul from (colly) A-32 Latif @ Kashmiri Lala(A-32) 18/07/2003 to 5/08/2003 296 Medical treatment case papers of accused Aiyubkhan Mohammed Rafiq Pathan(A-33) 297 Medical treatment case papers of accused Abdul Samad Mohammed Ibrahim Sunni(A-34) 298 Medical treatment case papers of accused Mohammed Manzoor Mohammed Siraj Siddique(A36) 299 Medical treatment case papers of accused Mohammed Haji Sadiq Jalaluddin Gurjar(A-38) ranging 1931 PW-199 from (colly) A-33 18/07/2003 to 3/08/2003 ranging 1932 PW-199 from (colly) A-34 1/08/2003 to 16/08/2003 ranging 1933 PW-199 from (colly) A-36 1/08/2003 to 16/08/2003 ranging 1934 PW-199 from (colly) A-38 1/08/2003 to 16/08/2003 1935 PW-199 A-39
300 Medical treatment case 10/08/2003 papers of accused Mohammed Hanif @ Pakitwala @ Theliwala S/o. Abdul Majid Shaikh(A-39) 301 Medical treatment case papers of accused Mohammed Wajid @ Wajid S/o. Mohammed Ahmed Sunni(A-40) ranging from 1/11/2003 to 6/11/2003
1936 PW-199 (colly) A-40
POTA/12/2003
77
JUDGMENT
Sr. No.
Description
Date
Exh.
302 Medical treatment case ranging 1937 PW-199 papers of accused Ajaz from (colly) A-41 Ahmed @ Mamu S/o Jaffar 30/10/2003 Saiyed(A-41) to 6/11/2003 303 Medical treatment case ranging 1938 PW-199 papers of accused Javed from (colly) A-42 Hamidullah Siddique(A-42) 13/11/2003 to 3/12/2003 304 Medical treatment case 3/12/2003 papers of accused Mohammed Majid @ Shakeel Mohammed Abid(A43) 305 Medical treatment case papers of accused Ajaz @ Chhota Ajaz S/o. Mumtaz Ahmed Saiyed A-44) 306 Medical treatment case papers of accused Mohammed Yunuskhan S/o. Yakubkhan Pathan (A-45) 307 Medical treatment case papers of accused Abdul Hamidkhan S/o. Yakubkhan Pathan(A-46) 1939 PW-199 A-43
ranging 1940 PW-199 from (colly) A-44 16/12/2003 to 20/12/2003 ranging 1941 PW-199 from (colly) A-45 8/01/2004 to 10/01/2004 ranging 1942 PW-199 from (colly) A-46 8/01/2004 to 10/01/2004
308 Medical treatment case ranging 1943 PW-199 papers of accused Abdul from (colly) A-47 Latif Gulam Ali Patel (A-47) 8/01/2004 to 12/01/2004 309 Medical treatment case 08/11/2004 papers of accused Maulana Nasiruddin Hanifuddin(A-48) 1944 PW-199 A-48
POTA/12/2003
78
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-171 A-42 PW-171 A-42 PW-171 A-42 PW-179 A-54
FROM LIST EXH.1406 310 Yadi by PW-180 Shri Vanar 27/11/2003 to the DCP (Immigration), Check Post, West Bengal 311 Yadi by PW-180 Shri Vanar 27/11/2003 to the DCP (Immigration), Check Post, West Bengal 312 Reply to the above letters by 28/11/2003 PW-171 FROM LIST EXH.1461 313 Yadi given by PW-179 to Shri 02/01/2007 Muliyana PW-196 to produce A-54 FROM LIST EXH.1221 314 FSL Report 315 Photographs and negatives FROM LIST EXH.1226 316 Power of Attorney for petrol 10/10/2001 pump in Green Bungalow 317 Reviewed contract of the 20/11/2001 petrol pump FROM LIST EXH.786 318 Secret Report submitted by 21/11/2004 PI Mr. V.D. Vanar, DCB Police Station, Ahmedabad city regarding Intelligence Input 319 Panchnama regarding 21/11/2004 recovery of money from secret witness 1489 PW-180,198 A-50 1227 1228 PW-146 For A-50 PW-146 For A-50 18/12/2004 18/12/2004 1223 1224 PW-145 For A-50 PW-145 For A-50 1463 1408
1409
1410
1490
PW-126,180 A-50
POTA/12/2003
79
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Panch PW-103,198 A-50
320 Panchnama regarding 23/11/2004 recovery of two pistols and 20 cartridges from accused Mustaqali Abbasali Saiyed (A-50) 321 Panchnama regarding place 25/11/2004 from where accused Mustaqali Abbasali Saiyed (A-50)had taken out two pistol and cartridges from Green Bunglow and kept at his house 322 Panchnama regarding 25/11/2004 recovery of mobile phone produced by the son of accused Mustaqali Abbasali Saiyed (A-50) 323 Panchnama regarding 04/12/2004 discovery of old writing in Green Bunglow in presence of FSL Expert 324 Panchnama regarding 07/12/2004 recovery of Bharatiya Book and Bharatiyas (Bill Book) 325 Panchnama regarding 19/12/2004 identification of the photograph of accused Mustaqali Abbasali Saiyed (A-50)by secret witness 326 Original Banakhat entered 20/07/2004 into between Ashwinbhai Jayantilal Shah and others on one hand and Shri H.N. Jhala, Advocate, on the other hand (only for signature) 327 Yadi for witness Sureshbhai 01/01/2005 Nathalal Patel to record statement u/s. 164 of Cr.P.C.
1721
1723
PW-198 A-50
1118
Panch PW-120 A-50
1215
Panch PW-142,198 A-50 PW-198 A-50 PW-121 A-50
1729
1120
1138
PW-128 (Notary) PW-138
1730
PW-198 A-50
POTA/12/2003
80
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-198 A-50 PW-198 A-50
328 Yadi for witness Rakesh 01/01/2005 Ambalal Patel to record statement u/s. 164 of Cr.P.C. 329 Yadi for witness Babubhai 21/01/2005 Khemchandbhai Patel to record statement u/s. 164 of Cr.P.C. 330 Yadi to Chief Metropolitan 01/01/2005 Magistrate, Ahmedabad for recording statement of Nitinbhai Keshavlal Patel u/s. 164 of Cr.P.C. 331 Yadi to General Manager, 28/11/2004 BSNL to obtain printout of name and address of owner of Mobile No.9426559431 332 Yadi to Chief Metropolitan 28/11/2004 Magistrate, Ahmedabad for recording statement of accused Mustaqali Abbasali Saiyed (A-50) u/s. 32 of POTA 333 Despatch Note for sending muddamal to FSL for examination 334 Receipt from FSL 335 Report of FSL 07/02/2005 30/05/2005
1731
1732
1733
PW-198 A-50
1734
PW-198 A-50
1278
PW-198 A-50
1738
PW-198 A-50 PW-198 PW-141 A-50 PW-198 A-50
1739 1213 1740
336 Proposal to Home 01/02/2005 Department, for sanction to initiate proceedings against the accused u/s. 50 of POTA 337 Proposal for sanction under 07/02/2005 Arms Act FROM LIST EXH.1237
1295
PW-159 A-50
POTA/12/2003
81
JUDGMENT
Sr. No.
Description
Date
Exh.
338 Telephone Bill of 6827382 05/09/2002 produced by the witness Sairabanu FROM LIST EXH.1309 339 Yadi issued by PW-162 to 07/04/2003 the R.T.O. for name and address of the three Motorcycles dated 07/04/2003 FROM LIST EXH.1502 340 Form No.219 of the Al-Imran 14/09/2002 Guest House, Mumbai to 20/09/2002 FROM LIST EXH.1513 341 Yadi of the learned Chief 17/02/2007 Metropolitan Magistrate Court for A-55 342 Report by ACP 343 Original Rozkam 17/02/2007 19/02/2007
1239
1313
PW-162
1504
PW-182 A-30
1514
PW-184 A-55 PW-184 A-55 PW-184 A-55 PW-184 A-55 PW-184
1515 1516 1517 1519
344 Yadi to DCB to keep the 19/02/2007 accused present. 345 Correspondence with the 23/02/2007 POTA Court along with Yadi, Cover etc. FROM LIST EXH.1565 346 Yadi for Identification Parade 13/04/2003 to Executive Magistrate 347 Yadi for Identification Parade 17/11/2003 to Executive Magistrate 348 Yadi for Identification Parade 20/11/2003 to Executive Magistrate 349 Identification panchnama 20/11/2003
1567 1568 1569 1570
PW-190 A-42 PW-190 A-42 PW-190 A-42 A-42
POTA/12/2003
82
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-190 A-42 PW-196 A-54 PW-196 A-55 PW-196 A-56 PW-190 A-54 PW-196 A-55 PW-196 A-56
350 Rozkam is sealed cover 20/11/2003 handed over to the I.O. FROM LIST EXH.1681 351 Proposal letter for sanction 15/02/2007 for Arif Abubakar Shaikh (A54) 352 Proposal letter for Jamil Haji 17/04/2007 Abdul Jabbar Shaikh (A-55) 353 Propossal letter for 10/09/2007 Mohammed Ashrafali Mohammedali (A-56) 354 Proposal letter under Arms 23/02/2007 Act for Arif Abubakar Shaikh (A-54) 355 Proposal letter under Arms 02/05/2007 Act for Jamil Haji Abdul Jabbar Shaikh (A-55) 356 Proposal letter under Arms 17/09/2007 Act for Mohammed Ashrafali Mohammedali (A-56) FROM LIST EXH.1250 357 Arrest Report of the first five 04/04/2003 accused FROM LIST EXH.1307 358 Yadi by PI Shri Chauhan to 05/04/2003 PW-162 Shri Waghela FROM LIST EXH.1384 359 Yadi to Kolkata police for 14/04/2003 Star Guest House 360 Yadi to Kolkata police for 14/04/2003 investigation of witness Sunil Zalan
1571
1682
1683 1684
1685
1686
1687
1251
PW-190 A-1 to A-5 PW-168
1308
1386 1389
PW-168 A-1,2,3,5 PW-168 A-1,2,3,5
POTA/12/2003
83
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-168 A-1,2,3,5 PW-168 A-1,2,3,5
361 Yadi to Manager, Vysya Bank for Engineering
Karur 16/04/2003 Hawa
1387
362 Reply from Karur Vysya 16/04/2003 Bank along with abstract of account of Hawa Engineering FROM LIST EXH.1871 - List of applications given by different witnesses about their apprehensions 363 Application of PW-81 364 Application of PW-78 365 Application of PW-80 366 Application of PW-152 367 Application witness by 02/09/2003 02/09/2003 02/09/2003 02/09/2003
1388
1872 1873 1874 1875 1876 1877 1878 1879 1880 1881 1882 1883
Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199
dropped 03/09/2003 03/09/2003 dropped 03/09/2003 03/09/2003 dropped 04/09/2003 dropped 04/09/2003 04/09/2003 04/09/2003
368 Application of PW-82 369 Application witness by
370 Application of PW-84 371 Application witness 372 Application witness by by
373 Application of PW-97 374 Application of PW-77
POTA/12/2003
84
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199 Produced by PW-199
375 Application of PW-96 376 Application witness by
04/09/2003 dropped 05/09/2003 05/09/2003 05/09/2003 dropped 05/09/2003 dropped 05/09/2003 05/09/2003 05/09/2003 05/09/2003 dropped 05/09/2003 dropped 06/09/2003 06/09/2003 dropped 06/09/2003 dropped 06/09/2003 06/09/2003 07/09/2003 08/09/2003
1884 1885 1886 1887 1888 1889 1890 1891 1892 1893 1894 1895 1896 1897 1898 1899 1900
377 Application of PW-94 378 Application of PW-72 379 Application witness 380 Application witness by by
381 Application by PW-101 382 Application of PW-91 383 Application of PW-92 384 Application witness 385 Application witness by by
386 Application of PW-95 387 Application witness 388 Application witness by by
389 Application by PW-71 390 Application by PW-70 391 Application by PW-67
POTA/12/2003
85
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Produced by PW-199 Produced by PW-199 Produced by PW-199 PW-167 PW-167 involves A-1 (dialed telephone Nos. to A-4) PW-63
392 Application by PW-88 393 Application by PW-87 394 Application by PW-69 FROM OTHERS LISTS 395 Reply from BSNL 396 Reply from BSNL
08/09/2003 08/09/2003 08/09/2003
1901 1902 1903
23/04/2003 23/04/2003
1378 1380 995
397 Printout of telephone No. ranging 9825498974 from 11/03/2003 to 17/03/2003 398 Printout of Mobile telephone ranging No. 9825189663 from 1/11/2002 to 16/12/2002 399 Printout of 9825311933 ranging from 15/03/2003 to 04/04/2003 15/10/2002 28/11/2002 of 03/11/2004 (Entry 20/07/2004
997
998
PW-63 Mobile NO. of A-21
400 Yadi by PW-180 401 Yadi by PW-180 402 Receipt No.2601 Rs.2,70,000/403 Notary No.427) 404 Notary No.428) Register
1477 1478 1124 1135
PW-180 PW-180 PW-122 A-50 PW-128 (Notary) A-50 PW-128 (Notary) A-50
Register
(Entry 20/07/2004
1136
POTA/12/2003
86
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-128 (Notary) A-50 PW-128 (Notary) A-50 PW-136 A-50 PW-138 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50
405 Notary No.430) 406 Banakhat
Register
(Entry 23/07/2004
1137
20/07/2004
1138
406 Receipt of Rs.600/407 Receipt of Rs.2,31,000/22/07/2004
1153 1165 1168 1169 1170 1171 1172 1173 1174 1175 1176 1177 1178 1179
408 Entry of ledger of Hazratkhan 31/03/2000 409 Entry of ledger of Hazratkhan 31/03/2004 410 Muhbolya Khatu 411 Muhbolya Khatu 412 Muhbolya Khatu 413 Ledger Book 414 Entries of Tenants 415 Account of Hazratkhan 416 Muhbolya Khatu 417 Entries of Hazratkhan 418 Entries of Hazratkhan 419 Entries of Hazratkhan 31/03/2002 31/03/2003 31/03/2004 1990-91 31/03/1991 15/10/1991 25/10/1991 31/05/1991 1992 31/07/1992 31/08/1992
POTA/12/2003
87
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-138 A-50 PW-143 (Jail Suptd) A-50
420 Entries of Hazratkhan 421 Muhbolya Khatu 422 Entries of Hazratkhan 423 Entries of Hazratkhan 424 Muhbolya Khatu 425 Muhbolya Khatu Ledger 426 Muhbolya khatu 427 Entries of Hazratkhan 428 Muhbolya khatu 429 Pass Book
18/12/1992 31/05/1991 31/03/1992 15/10/1991 31/03/1992 01/04/1993 01/04/1993 01/04/1995 01/04/1996 31/03/1998 10/01/2004 to 05/03/2008
1180 1181 1182 1183 1184 1185 1186 1187 1188 1191
430 Letter by the witness and his 27/09/1997 partners 431 Letter by the witness and his 08/05/2006 partners 432 Income-Tax Return 2004-05
1192 1193 1196 1197 1209 1218
433 Documents for land by the 07/04/2005 witness 434 Certificate of Kotak Mahindra 07/04/2005 Bank 435 Report on visits prisoner Javed of the 1992 to 2004
POTA/12/2003
88
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-164 Article-98 A-1,2,3,5 PW-164 Article-98 A-1,2,3,5 PW-178 (Ld.MMC-11) PW-173 A-7,20,22, 30,31,39 PW-173 A-7,20,22, 30,31,39 PW-174 A-20,27 PW-176 A-9 PW-179
436 Register of Star Guest House December (four entries)-Page 705,706 2002 437 Bill Book of the Guest House 22/12/2002 (Bill No.2968) 438 Forwarding letter to send 05/01/2006 statement of PW-75 439 Forwarding letter of PW-173 02/08/2003
1368
1369
1460 1428
440 Letter to P.J.
26/08/2003
1429
441 Forwarding letter statement of PW-174 442 Forwarding letter statement of PW-76
of 18/06/2003 of 31/07/2003
1438 1443 1465
443 Forwarding letter of 08/01/2007 confessional statement of A54 444 Order of Metropolitan Court 445 Yadi 446 Cover 447 Cover 448 Order to statement record Ld. Chief 06/12/2004 Magistrate 21/12/2004 --the 17/12/2004 21/12/2004
1540
PW-187 A-50 PW-187 A-50 PW-187 A-50 PW-187 A-50 PW-187 A-50 PW-187 A-50
1541 1542 1543 1544 1545
449 Letter to POTA Court
POTA/12/2003
89
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-187 A-50 PW-187 A-50 PW-187 A-50 PW-187 A-50 PW-187 A-50 PW-187 A-50 PW-188 A-50 PW-188 A-50 PW-189 A-50 PW-194 A-21 to 39 PW-194 A-40 to 47 PW-194 A-48 PW-194 A-50 PW-194 A-53 PW-195 A-54 PW-195 A-55
450 Cover 451 Cover 452 Order of Metropolitan Court 453 Order of Metropolitan Court
--Ld. Chief 23/11/2004 Magistrate Ld. Chief 30/11/2004 Magistrate 03/12/2004 ----
1546 1547 1548
1549
454 Letter to POTA Court 455 Cover 456 Cover 457 Cover
1550 1551 1555 1556 1558 1647 1648 1649 1650 1651 1667 1668
458 Yadi by Chief Metropolitan 11/12/2004 Magistrate Court 459 Sanction order to prosecute 08/09/2003 by Home Ministry 460 Sanction order to prosecute 19/01/2004 by Home Ministry 461 Sanction order to prosecute 25/01/2005 by Home Ministry 464 Sanction order to prosecute 16/02/2005 by Home Ministry 465 Sanction order to prosecute 14/03/2006 by Home Ministry 466 Sanction order to prosecute 03/03/2007 by Home Ministry 467 Sanction order to prosecute 10/05/2007 by Home Ministry
POTA/12/2003
90
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-194 A-56 PW-2
468 Sanction order to prosecute 29/09/2007 by Home Ministry 469 Article-47 Municipal Bill from house of absconding accused Sohilkhan 470 Article-48 Telephone Bill 471 Article-49 Ration Card 472 Specimen signature of the accused - Article 98-S-1 to S24 (Star Guest House) 473 Specimen signature of the accused - Article 98-S-25 to S-72 (Star Guest House) 473 Specimen signature of 18/08/2003 dropped witness (Muddamal Article No.98) 474 School diary of dropped 2002-2003 witness (Shahjanand School) 475 Despatch Note to FSL 476 Receipt of FSL 04/04/2003 26/08/2003
1669 464
465 466 704
PW-2 PW-2 PW-25 A-1,2,3,5 PW-25 A-1,2,3,5 PW-15
713
720
722 907 908 1280
PW-15 Article PW-56 PW-56 PW-157 A-16 to A-19 A-40 to A-42 PW-157 A-16 to A-19 A-40 to A-42 PW-157 A-16 to A-19 A-40 to A-42 PW-157 A-16 to A-19 A-40 to A-42 PW-159 A-48
477 Yadi to the witness for six 17/05/2003 accused 478 Yadi with endorsement of the 16/05/2003 witness 479 Forwarding letter by 19/05/2003 Metropolitan Magistrate to Principal Judge, City Civil & Sessions Court, Ahmedabad 480 Yadi by the Agency to statement Investigating 05/11/2003 verify the
1281
1282
1283
481 Sanction order under Arms 06/01/2005 Act
1294
POTA/12/2003
91
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-159 A-50 PW-172
482 Sanction order under Arms 10/02/2005 Act 483 Forwarding letter to Chief 12/06/2003 Metropolitan Magistrate Court by PW-172 484 Forwarding letter to POTA 16/02/2004 Court 485 Forwarding letter to POTA 28/08/2003 Court 486 Forwarding letter to Chief 19/01/2004 Metropolitan Magistrate Court 487 Forwarding letter to POTA 19/01/2004 Court 488 Passport of A-22 489 Big Cover 490 Small Cover 491 Forwarding Letter 492 Cover 10/01/1997 --29/08/2003 --
1296 1416
1445 1451 1453
PW-176 PW-177 PW-177
1454 1057 1592 1593 1594 596 1609
PW-177 PW-90 A-22 PW-192 PW-192 PW-192 PW-192 PW-193
493 Yadi by the I.O. to 21/07/2003 Metropolitan Magistrate for sending the statement 494 Letter to the I.O. to keep the 17/07/2003 witnesses present 495 Forwarding letter to the 21/07/2003 Ld.Metropolitan Magistrate Court for DCB Police Station 496 Forwarding Letter 31/07/2003 497 Letter to I.O. to keep the 06/08/2003 witnesses present 498 Yadi by investigating agency 06/08/2003 along with endorsement of PW-193
1610 1611
PW-193 PW-193
1612 1615 1616
PW-193 PW-193 PW-193
POTA/12/2003
92
JUDGMENT
Sr. No.
Description
Date
Exh.
499 Yadi from investigating 08/08/2003 agency with endorsement of PW-193 500 Yadi by the investigating 23/08/2003 agency to record the statement 501 Yadi by investigating agency 14/08/2003 for PW-8 etc 502 Forwarding letter to Sessions 25/08/2003 Court 503 Cover to the P.J. -504 Yadi to verify statement of 08/08/2003 four accused 505 Forwarding letter to ld. Chief 11/08/2003 Metropolitan Magistrate Court 506 Cover 507 Sanction from Department -Home 11/07/2003
1618
1621
PW-193
1623 1624 1625 1626 1627
PW-193 PW-193 PW-193 PW-193 PW-193
1628 1663 1697 1950 1983 1951 1984 1801
PW-193 PW-197 A-1 to A-19 PW-197 A-1 to A-19 PW-200 PW-200 A-1 to A-39 PW-200 A-40 to A-47 PW-200 A-40 to A-47 A-53
508 Report of the I.O. to PW-197 26/06/2003 509 Proposal for sanction under 19/08/2003 Arms Act 510 Sanction Order under Arms Act 511 Proposal for sanction under 19/01/2004 Arms Act 512 Sanction order under Arms 19/01/2004 Act 513 Report by PSI Shri N.S. 16/12/2005 Malik regarding production of A-53
POTA/12/2003
93
JUDGMENT
Sr. No.
Description
Date
Exh.
514 Report by PSI Shri B.A. Patel 06/12/2006 regarding production of A-54 by Transfer Warrant from Mumbai 515 FSL Letter Muddamal to Department sending 24/11/2003 Poison
1802
868
PW-51
516 Yadi to Chief Metropolitan 03/12/2003 Magistrate, Ahmedabad 517 Sanction order 14/03/2006 518 Letter of Crime Branch to 24/08/2003 Home Department, Gandhinagar seeking permission to proceed against arrested accused 519 Statement sent by Crime 24/08/2003 Branch to Home Department regarding permission to prosecute against accused under IPC 520 Statement sent by Crime 24/08/2003 Branch to Home Department regarding permission to prosecute against accused under POTA 521 Letter by Deputy Police 25/08/2003 Commissioner Crime Branch to Joint Police Commissioner, Crime Branch for permission to proceed against accused 522 Statement showing details of arrested accused
1284 1651 1652
PW-157 PW-194 PW-194
1653
PW-194
1654
PW-194
1656
PW-194
1657
PW-194
POTA/12/2003
94
JUDGMENT
Sr. No.
Description
Date
Exh.
523 Letter by Police 26/08/2003 Commissioner, Ahmedabad City to Home Department, Gandhinagar for permission to proceed against accused 524 Letter by Joint Police 09/07/2003 Commissioner Crime Branch to Additional Chief Secretary, Home Department, Gandhinagar for permission to proceed against accused 525 Letter by Deputy Police 09/07/2003 Commissioner Crime Branch to Additional Chief Secretary, Home Department, Gandhinagar for permission to proceed against accused 526 Letter by Joint Police 08/07/2003 Commissioner Crime Branch to Additional Chief Secretary, Home Department, Gandhinagar for permission to proceed against accused 527 Gujarat Government 25/10/2005 Notification issued by Home Department, Gandhinagar 528 Receipt showing payment of 24/02/1993 insurance premium by Mohammed Ayyub Dadamiyan Shaikh 529 Sanction order under Arms 02/03/2006 Act 530 Sanction order under Arms 10/05/2007 Act 531 Sanction order under Arms 21/09/2007 Act
1658
1659
PW-194
1660
PW-194
1661
PW-194
1664
PW-194
1810
Article No.18 PW-199
2018 2019 2020
PW-201 A-53 PW-201 A-55 PW-201 A-56
POTA/12/2003
95
JUDGMENT
Sr. No.
Description
Date
Exh.
532 Order passed Commissioner of Ahmedabad city
by 30/09/1988 Police,
2021
533 Purshis closing evidence on 03/07/2009 behalf of prosecution STATEMENT UNDER SECTION 164 OF Cr.P.C.
2022
534 Statement of PW-68 Wasim 06/05/2003 1587 Yasinbhai Mansuri
Hostile PW-68 Concerns A-8 Before PW192
535 Statement of PW-69 Irfan 17/05/2003 1589 Abdulkadar Khanwala
Hostile PW-69 Concerns A-8, 10 Before PW192
536 Statement of PW-71 Asad 20/05/2003 1025 Fazlurrehman Kagdi
PW-71 Concerns A-1, 20 Before PW192
537 Statement Aslambhai Kagdi
of PW-72 12/05/2003 1027 Fazlurrehman
PW-72 Concerns A20 Before PW192
POTA/12/2003
96
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Hostile PW-82 Concerns A-9 Before PW192
538 Statement Imtiyazuddin Saiyed
of
PW-82 27/08/2003 1591 KArimuddin
539 Statement Abdulrahim Shaikh
of
PW-93 22/05/2003 1597 Jalaluddin
Hostile PW-93 Concerns A20,22,39 Before PW192
540 Statement of PW-94 06/05/2003 1588 Mohammed Samir @ Nana Siddiqbhai Shaikh
Hostile PW-94 Concerns A20 Before PW192
541 Statement of PW-95 Yusuf 27/08/2003 1068 Haji Ahmed Maniyar
Concerns A20,21,22 Before PW192
542 Statement of PW-96 Mazhar 07/05/2003 1590 Mehmood Kansara
POTA/12/2003
97
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Hostile PW101 Concerns A-7 Before PW192
543 Statement Afrozkhan Baloch
of PW-101 28/05/2003 1595 Jafarullahkhan
544 Statement of PW-104 Abdul 23/05/2003 1598 Hamid Abdul Rahim Shaikh
Hostile PW104 Concerns A20,22,23,24,3 9 Before PW192
545 Statement Kamruddin Saiyed
of
PW-77 18/06/2003 1437 Kamaluddin
546 Statement of PW-148 18/06/2003 1436 Mohammed Junaid Abdul Aziz Valsadwala
Hostile PW148 Concerns A20,27 Before PW174
547 Statement of PW-67 07/08/2003 1613 Tanvirhussain Sagirhussain Koza
Hostile PW-67 Concerns A7,31,45,46 PW-193
POTA/12/2003
98
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Hostile PW-78 Concerns A4,8,22 Before PW193
548 Statement of Shafiqujumma Mohammedaslam Bangdiwala
PW-78 21/07/2003 1608
549 Statement of PW-81 23/08/2003 1620 Mohammed Junaid Mehboob Miya Shaikh
550 Statement of PW-85 08/08/2003 1617 Mohammed Shamin Mohammed Idrish Rajput
Hostile PW-85 Concerns A6,24 Before PW193
551 Statement of PW-88 Abdul 18/08/2003 1622 Sattar Ibrahim Momin
552 Statement of PW-91 21/07/2003 1607 Firozkhan Abdul Rashidkhan Mewati
POTA/12/2003
99
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Hostile PW-92 Concerns A22 Before PW193
553 Statement of Mohammed Sajid Hussain Shaikh
PW-92 07/08/2003 1614 Ahmed
554 Statement of PW-97 Liyakat 23/08/2003 1619 Hussain Badamiya Shaikh
Hostile PW-97 Concerns A20,25,26 Before PW193
555 Statement of Mohammed Arif Sikander Mansuri
PW-74 12/06/2003 1501 @ Lalo
556 Statement of PW-102 Yusuf 12/06/2003 1500 Allabeli Shaikh
Hostile PW102 Concerns A24 Before PW181
557 Statement of PW-64 16/02/2004 1005 Jitendrakumar Karsanbhai Patel
PW-64 Concerns A42 Before PW176
POTA/12/2003
100
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Hostile Pw-70 Concerns A20 Before PW172
558 Statement of PW-70 Salim 06/06/2003 1417 Hasambhai Memon
559 Statement of PW-73 Asif 07/06/2003 1030 Rashidbhai Patel
560 Statement of PW-79 06/06/2003 1038 Jahangirkhan Abadkhan Pathan
561 Statement Jungkhan Pathan
of PW-87 07/06/2003 1418 Sikanderkhan
562 Statement of PW-76 Irfan 17/07/2003 1442 Rashidkhan Shaikh
POTA/12/2003
101
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Hostile PW-80 Concerns A7,45,46 Before PW173
563 Statement of PW-80 Abdul 26/08/2003 1431 Rahim Samsuddin Shaikh
564 Statment of Mohammed Mehmood Ansari
PW-84 26/08/2003 1430 Rizwan
Hostile PW-84 concerns all accused Before PW173
565 Statement of Tanvirkhan Pathan
PW-75 05/01/2006 1459
566 Statement Mohammed Shaikh
of
PW-83 17/01/2004 1043 Usmangani
PW-83 Concerns A-9 Before PW177
567 Statement of PW-86 Abdul 15/01/2004 1452 Majid Shaikh
Hostile PW-86 Concerns A7,8,9,10,20,21 ,22,30,32, 33,39,45,46,4 7 Before PW177
POTA/12/2003
102
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Hostile PW152 Concerns A-7 Before PW177
568 Statement of Ayishabibi Shaikh
PW-152 27/08/2003 1450
569 Statement Sairabanu Shaikh
of PW-110 20/12/2004 1539 Mohammadbhai
PW-187 A-50 PW-187 A-50 PW-187 A-50 PW-187 A-50 PW-187 A-50 PW-189 A-50 PW-185 A-50 PW-183 A-50
570 Statement of PW-109 Ravida 09/12/2004 1536 Hafizuddin 571 Statement of PW-122 01/12/2004 1123 Vijaykumar Parsottamdas 572 Statement of PW-123 02/12/2004 1126 Kanubhai Shantilal Patel 573 Statement of Anwarhusain PW-124 16/12/2004 1537
574 Statement of PW-125 24/12/2004 1130 Purshottambhai Sajandas 575 Statement of PW-133 Sureshbhai Nathalal Patel 576 Statement of PW-134 06/01/2005 1146 Rakeshkumar Ambalal 06/01/2005 1144
POTA/12/2003
103
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-187 A-50 PW-187 A-50 PW-187 A-50 PW-188 A-50 PW-187 A-50 PW-187 A-50
577 Statement Babubhai Patel
of PW-136 24/01/2005 1154 Khemchandbhai
578 Statement of Liyakathusain
PW-137 20/12/2004 1535
579 Statement of PW-138 23/12/2004 1160 Dineshbhai Jayantilal Shah 580 Statement of PW-144 28/12/2004 1220 Shaileshkumar Fulchandbhai Jain 581 Statement of PW-147 Sajidali 02/11/2004 1538 Mohammadali Saiyed 582 Statement of PW-155 21/12/2004 1271 Deepakbhai Lalbhai Shah CONFESSION STATEMENT OF ACCUSED UNDER SECTION 164 OF Cr.P.C. 583 Statement of A-54 Abubakar Shaikh Arif 04/01/2007 1464
Concerns A42,54 Before PW179
POTA/12/2003
104
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness Concerns A1,2,3,5,17,18 & 42 Before PW184
584 Statement of A-55 Jamil @ 22/02/2007 1518 Akbar @ Baba S/o. Haji Abduljabbar Shaikh
CONFESSIONS OF ACCUSED U/S. 32 OF POTA 585 Certified copy of statement of 24/04/2003 A-1 u/s. 32 of POTA Act 586 Certified copy of statement of 24/04/2003 A-2 u/s. 32 of POTA Act 587 Certified copy of statement of 24/04/2003 A-3 u/s. 32 of POTA Act 588 Certified copy of statement of 24/04/2003 A-4 u/s. 32 of POTA Act 589 Certified copy of statement of 24/04/2003 A-5 u/s. 32 of POTA Act 591 Certified copy of statement of 29/04/2003 A-7 u/s. 32 of POTA Act 591 Certified copy of statement of 29/04/2003 A-8 u/s. 32 of POTA Act 592 Certified copy of statement of 16/05/2003 A-11 u/s. 32 of POTA Act 593 Certified copy of statement of 16/05/2003 A-12 u/s. 32 of POTA Act 594 Certified copy of statement of 16/05/2003 A-16 u/s. 32 of POTA Act 595 Certified copy of statement of 16/05/2003 A-17 u/s. 32 of POTA Act 596 Certified copy of statement of 16/05/2003 A-18 u/s. 32 of POTA Act 931 932 933 934 935 936 937 938 939 940 941 942 PW-57,170 PW-57,170 PW-57,170 PW-57,170 PW-57,170 PW-57,186 PW-57,186 PW-57 PW-57 PW-57,157 PW-57,157 PW-57,157
POTA/12/2003
105
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-57,157 PW-57,186 PW-57,186 PW-57,186 PW-57,186
597 Certified copy of statement of 16/05/2003 A-19 u/s. 32 of POTA Act 598 Certified copy of statement of 18/05/2003 A-22 u/s. 32 of POTA Act 599 Certified copy of statement of 18/05/2003 A-20 u/s. 32 of POTA Act 600 Certified copy of statement of 18/05/2003 A-21 u/s. 32 of POTA Act 601 Statement of A-23 u/s. 32 of 25/05/2003 POTA Act (with understanding letter) 602 Statement of A-24 u/s. 32 of 25/05/2003 POTA Act (with understanding letter) 603 Statement of A-25 u/s. 32 of 25/05/2003 POTA Act (with understanding letter) 604 Statement of A-26 u/s. 32 of 25/05/2003 POTA Act (with understanding letter) 605 Statement of A-30 u/s. 32 of 08/08/2003 POTA Act (with understanding letter) 606 Statement of A-31 u/s. 32 of 08/08/2003 POTA Act (with understanding letter) 607 Statement of A-34 u/s. 32 of 08/08/2003 POTA Act (with understanding letter) 608 Statement of A-36 u/s. 32 of 08/08/2003 POTA Act (with understanding letter) 609 Statement of A-38 u/s. 32 of 15/08/2003 POTA Act (with understanding letter)
943 944 945 946 948
949
PW-57,186
950
PW-57,186
951
PW-57,186
952
PW-57,193
953
PW-57,193
954
PW-57,193
955
PW-57,193
956
PW-57,186
POTA/12/2003
106
JUDGMENT
Sr. No.
Description
Date
Exh.
Concerns which accused and which witness PW-57,157
610 Statement of A-41 u/s. 32 of 05/11/2003 POTA Act (with understanding letter) 611 Statement of A-40 u/s. 32 of 05/11/2003 POTA Act (with understanding letter) 612 Statement of A-42 u/s. 32 of 03/12/2003 POTA Act (with understanding letter) 613 Statement of A-45 u/s. 32 of 09/01/2004 POTA Act (with understanding letter) 614 Statement of A-46 u/s. 32 of 09/01/2004 POTA Act (with understanding letter) 615 Statement of A-47 u/s. 32 of 11/01/2004 POTA Act (with understanding letter) 616 Statement of A-48 u/s. 32 of 14/12/2007 POTA Act (with forwarding, understanding letter) 617 Statement of A-50 u/s. 32 of 14/11/2004 POTA Act (with understanding letter) 618 Certified copy of statement 25/05/2003 u/s. 32 of A-27 submitted through list Exh. 977/1 619 Statement u/s. 32 of POTA of 05/08/2003 A-32 620 Statement of A-43 u/s. 32 of 03/12/2003 POTA Act (with understanding letter) 621 Statement of A-44 u/s. 32 of 20/12/2003 POTA Act (with understanding letter)
957
958
PW-57,157
959
PW-57,157
960
PW-57,186
961
PW-57,186
962
PW-57,186
963
PW-57,169
964
PW-57,156
978
PW-186
979 1007
PW-57,186 PW-65,186
1008
PW-65,186
POTA/12/2003
107
JUDGMENT
LIST OF PANCH SLIPS
Sr. No. 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650
Exh. 452 453 670 671 672 675 678 680 681 686 687 688 694 699 700 701 707 708 709 710 717 695 718 725 737 738 739 740 741
Muddamal Article No. 30 1 (from 2nd list) 57 58 59 94 77 88 89 78 79 80 55 1 2 3 100 101 102 103 92 56 93 90 96 97 104 105 109
Proved by deposition of Witness No. 1 1 16 16 16 17 18 19 19 20 20 20 21 22 22 22 24 24 24 24 26 26 26 27 31 31 31 31 31
POTA/12/2003
108
JUDGMENT
Sr. No. 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681
Exh. 782 784 743 744 745 746 747 748 749 750 751 752 753 756 757 780 781 796 797 815 816 817 818 819 820 821 822 823 824 825 826
Muddamal Article No. 84 95 65 66 67 68 69 70 71 72 73 74 75 97 96 82 83 61 62 1 2 3 55 56 57 58 59 65 66 67 68
Proved by deposition of Witness No. 38 38 32 32 32 32 32 32 32 32 32 32 32 33 33 32 38 40 40 46 46 46 46 46 46 46 46 46 46 46 46
POTA/12/2003
109
JUDGMENT
Sr. No. 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697
Exh. 827 828 829 830 831 832 833 834 835 836 854 855 856 1083 1084 1085
Muddamal Article No. 69 70 71 72 73 74 75 77 78 79 82 86 84 5 6 7
Proved by deposition of Witness No. 46 46 46 46 46 46 46 46 46 46 46 46 46 103 103 103
(DEFENCE SIDE) During the course of cross-examination of different witnesses, following documents have been brought on record by defence : Sr. Description No. 698 Original Station Diary 699 Office copy of Station Diary Date 03/04/2003 03/04/2003 Exh. 1970 1971 1991 Remarks PW-199 PW-199 PW-199 A-16,19, 21,40,41, 43,44
700 Report submitted to Court for 10/09/2003 addition of offences under POTA in the Ist charge-sheet Column-5
POTA/12/2003
110
JUDGMENT
Sr. Description No.
Date
Exh. 1995
Remarks PW-199 A-25 PW-199 A-25
701 Arrest Memo in respect of 13/05/2003 accused Mohammed Hussain Gulam Hussain Shaikh (A-25) 702 Certified copy and original 14/05/2003 application of accused Mohammed Hussain Gulam Hussain Shaikh (A-25) 703 Page No. 401 to 405, being 25/04/2003 Remand application, obtained from the record of the Court of learned Metropolitan Magistrate 704 Certified copy of charge framed 04/02/2004 in POTA Case No. 7/03 705 Certified copy of charge framed 04/02/2004 in POTA Case No. 8/03 706 Notarised copy of telegram 07/04/2003 made by the brother of accused Idrishkhan Yakubkhan Pathan (A-7) to the Police Commissioner 707 Copy of Special Criminal 11/04/2003 Application No.370/03 preferred by Afsanabanu, wife of accused Idrishkhan Yakubkhan Pathan (A-7)before the Hon'ble High Court of Gujarat (Habeas Corpus) 708 Certified copy of the order 17/04/2003 passed by the Hon'ble High Court of Gujarat disposing of Special Criminal Application No.370/03 709 Writing in Red Ink of accused 16/04/2003 Idrishkhan Yakubkhan Pathan (A-7)being page No.251, produced at the time of his production before the learned Metropolitan Magistrate
1996
2003
PW-199
2004 2005 2006
PW-199 PW-199 PW-199 A-7
2007
PW-199 A-7
2008
PW-199 A-7
2009
PW-199 A-7
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Sr. Description No.
Date
Exh. 2010
Remarks PW-199 A-7
710 Application of accused 19/04/2003 Idrishkhan Yakubkhan Pathan (A-7)submitted to the learned Metropolitan Magistrate 711 Application of accused 30/04/2003 Idrishkhan Yakubkhan Pathan (A-7)submitted to the learned Metropolitan Magistrate 712 Registered A.D. letter sent by 18/09/2003 Sharifabibi, mother of accused Mohammed Yunuskhan S/o. Yakubkhan (A-45) to POTA Judge 713 Arrest Memo of accused 18/04/2003 Mohammed Zahir Mohammed Iqbal Shaikh (A-8) being page No.363 of the record of learned Metropolitan Magistrate 714 Purshis for retraction of 12/05/2003 confessional statement by accused Mohammed Zahir Mohammed Iqbal Shaikh (A-8) before the learned Metropolitan Magistrate 715 Entry No.2321 from the Register 02/05/2002 of Hotel Amber (muddamal article No.112) 716 F.I.R.
2011
PW-199
2012
PW-199
2013
PW-199
2014
PW-199
1631
PW-132, 191 A-7,30 PW-162 A-1 to A-5
1338
717 Arrest Memo 718 Production Application 719 Slip containing name of accused Mohammed Parvez S/o Abdul Kaiyum Shaikh (A-1) and the signature of Mr. G.L. Singhal, in respect of muddamal article No.3. 05/04/2003 Slip on Article No.37 Bank Receipts (430)
1339 1340 1344 PW-162 A-21
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Sr. Description No. 720 Deposition of PW-57 in Tiffin Bomb Case
Date
Exh. 983
Remarks For the accused whose confessio nal statement has been recorded PW-196
721 Notification Commissioner
of
Police 01/03/2003 to 30/04/2003 23/11/2004
1690
722 Arrest Memo of A-50 723 Affidavit of PW-198 in POTA Case 7/03, 8/03
1752 1753 691
PW-198 A-50 PW-198 A-50 PW-20
724 Certified copy of deposition in 10/05/2007 Sessions Case No. 214/05 where the witness was panch 725 Certified copy of panchnama 726 Certified copy of deposition of 13/0/2006 PW-154 in POTA Case No.10/03 727 Medical Certificate of A-2 728 Medical Certificate of A-2 ---
692 1262 129 149 140 71 351 531 114 143
PW-20 PW-154 A-2 A-2 A-5 & A10 A-6 A-7 A-55 A-17, A25 & A-42 A-17
729 Medical Certificate of A-5 & A-10 -730 Medical Certificate of A-6 731 Medical Certificate of A-7 732 Written Submission of A-55 --10/03/2007
733 Medical Certificate of A-17, A-25 -and A-42 734 Medical Certificate of A-17 735 Applications of A-21 & A-22 736 Medical Certificate of (along with A-17 & A-25) 737 Medical Certificate of A-30 --A-24 --
63 & 65 A-21 & A22 143 A-24, A17 & A25) A-30
--
139
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Sr. Description No. 738 High Court Writ filed for A-43 739 Application to against A-36 drop
Date --
Exh. 35 113 333 138 141 --
Remarks A-43 A-36 All Accused A-40 & A41 A-45, A46 & A-47
charge --
740 Central Review Committee 14/06/2005 Report on POTA (2) 741 Joint application of A-40 & A-41 -for prison transfer 742 Applications by A-45, A-46 & A- -47 revealing no ill-treatment 743 Correspondence by investigating agency produced in the crossexamination by the witness (total 8 letters) 744 Report of I.O. 745 FIR sent by I.O. 746 Patrak-A sent by I.O. 747 Patrak-B sent By I.O. 748 Letter by Police Commissioner 749 Letter by Police Commissioner 23/04/2003 09/05/2003
1698 PW-197 (Colly) A-1 to A19 1700 1701 1702 1703 1704 1705 1655 PW-197 PW-197 PW-197 PW-197 PW-197 PW-197 PW-194
750 Letter by Joint Police 25/08/2003 Commissioner Crime Branch to Police Commissioner, Ahmedabad City for permission to proceed against accused
DOCUMENTS PRODUCED WITH FURTHER STATEMENTS Sr. ACC No. No. 1 1 NAME OF ACCUSED F.S. W.S. Exh. Exh. DOCUMENTS Exh.& Date Description -
Mohammed 375 2051 Parvez S/o Abdul Kiyum Shaikh Mohammed Yunus Abdul 376 2052
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Sr. ACC No. No.
NAME OF ACCUSED Rahim Sareshwala
F.S. W.S. Exh. Exh.
DOCUMENTS Exh.& Date Description
Mohammed 377 2053 Riyaz @ Goru S/o Abdul Wahid Sareshwala Rehan Abdul Majid Puthawala 378 2054
4 5
4 5
Munawar Baig @ 379 2111 Captain Yakub Baig Mirza Afzalkhan @ Babu Murtuzakhan Pathan Idrishkhan Yakubkhan Pathan 380 2055
381 2112
Mohammed 382 2123 Zahir Mohammed Iqbal Shaikh Mohammed Tariq Faridbhai Shaikh 383 2067
10 11
10 Mehmood Razasha Saiyed 16 Zuber Sharif Rahim Sharif Muslim 17 Mohammed Imtiyaz Mohammed Khasim Saiyad
384 2116 387 2030
12
388 2031
13
18 Noor-Ur-Rehman 389 2032 S/o. Saiyed Madhar Saiyed
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Sr. ACC No. No. 14
NAME OF ACCUSED
F.S. W.S. Exh. Exh. 390 2033
DOCUMENTS Exh.& Date Description -
19 Mubashir Hussain @ Bashir Hussain S/o. Mazhar Hussain Saiyed 20 Kalim Ahmed @ kalimullah S/o. Mohammed Habib Karimi 21 Shahnawaz @ Shanu Mohammed Hussain Gandhi 22 Anas Abdul Machiswala 23 Mohammed Farooq @ Haji Farooq Usmangani Shaikh 24 Atthar Parvez Siddiq Mohammed @ Manjukhan Pathan 25 Mohammed Hussain Gulam Hussain Shaikh
15
391 2056
16
392 2057
17 18
393 2058 394 2068
19
395 2069
2070 7/12/06
Certified copy of deposition of PW-1 - Shivaji L. Yadav in Sessions Case No. 130/2004 List Documents of
20
396 2038
2039 2040 (Colly)
Certified copy of charge-sheet for the offence 27/10/04 registered at IC.R. No.302/04 with Saher Kotda Police Station 10/08/09 Certified copy of charge-sheet for the offence
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Sr. ACC No. No.
NAME OF ACCUSED
F.S. W.S. Exh. Exh.
DOCUMENTS Exh.& Date Description registered with Proh. C.R. No.5232/05 with Saher Kotda Police Station 24/05/06 Certified copy of charge-sheet for the offence registered at IC.R. No.163/06 with Saher Kotda Police Station 14/05/03 Purshis for 26/08/03 retraction of confessional statement
21
26 Sikandarkhan Usmankhan Sindhi 27 Mufti Tahir Arifbhai Bakaswala
397 2075
22
398 2071
2072 2073
List Documents
of
Certified copy of retraction of 11/09/03 confessional statement by accused in POTA Case No.11/03 Certified copy of application 24/06/03 filed by accused in Athwa Police Station I-C.R. No.111/02 (POTA Case No.11/03) 2074
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Sr. ACC No. No. 23
NAME OF ACCUSED
F.S. W.S. Exh. Exh. 399 2115
30 Mohammed Rafiq @ R.D. Majidkhan Pathan
24
31 Gulammohamme 400 2114 d @ Gulal S/o. Abdul Kadar Shaikh 32 Abdul Latif @ Kashmiri Lala MOhammed Hasan Pathan 33 Aiyubkhan Mohammed Rafiq Pathan 34 Abdul Samad Mohammed Ibrahim Sunni 401 -
25
26
402
27
403 2043
28
36 Mohammed 404 2044 Manzoor Mohammed Siraj Siddique 38 Mohammed Haji Sadiq Jalaluddin Gurjar 39 Mohammed Hanif @ Pakitwala @ Theliwala Abdul Razzak Shaikh 40 Mohammed Wajid @ Wajid S/o. Mohammed Ahmed Sunni 41 Saiyad Ajazahmed @ Mamu S/o. Jafar Saiyad 405 2076
29
2077 School Leaving 25/03/08 Certificate of accused. -
30
406 2116
31
407 2059
32
408 2060
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Sr. ACC No. No. 33
NAME OF ACCUSED
F.S. W.S. Exh. Exh. 409 2061
42 Javed Hamidullah Siddique
34
43 Mohammed 410 2062 Majid @ Shakeel S/o. Mohammed Abid Sunni 44 Ajaz Ahmed @ 411 2063 Chhotu Ajaz S/o. Mumtaz Ahmed Saiyed 45 Mohammed Yunuskhan S/o. Yakubkhan Pathan 46 Abdul Hamidkhan S/o. Yakubkhan Pathan 47 Abdul Latif Gulamali Patel 48 Mohammed Nasiruddin @ Maulana Nasiruddin 50 Mustaqali Abbasali Saiyed 53 Aslamkhan @ Ladden S/o. Nazarkhan Pathan 54 Arif Abubakar Shaikh 607 412 2117
35
36
2162
List Documents
of
37
413 2118
38 39
414 2135 415 2078
2163
FIR 883/04 of Hyderabad
40 41
42 43
608 2119
55 Jamil @ Akbar 609 2064 @ Baba S/o. Haji Abdul Jabbar Shaikh
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Sr. ACC No. No. 44
NAME OF ACCUSED
F.S. W.S. Exh. Exh. 1637 2047
DOCUMENTS Exh.& Date Description copy of Attendance Register of Madras-eSabilul Falah, Hyderabad of July-Aug, 2003
56 Mohammed Ashrafali Mohammedali
5.
Heard learned Special P.P. Mr. J.M. Panchal for the State
who has mainly submitted as under : 5.1 In the case, 8 charge-sheets have been filed and originally 56 accused were arraigned and thenafter the case is being tried against 44 accused as the Central POTA Review Committee has exonerated some of the accused and in case of two of the accused, the proceedings have been dropped by the order of the learned predecessor under Section 300 of Cr.P.C. He has however clarified that against the order to drop the proceeding against the accused, Criminal Appeal No. 167/08 and 174/08 respectively against the accused No. 11 & 12 are pending before Hon'ble the High Court of Gujarat. 5.2 About 201 witnesses have been examined by the prosecution whose oral evidence is legal, reliable, trustworthy and cogent. 5.3 It is a case of large scaled, deep rooted conspiracy which has to be dealt with keeping in mind objects of POTA.
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5.4
The conspirator would never involve any outsider to maintain secrecy of the conspiracy. Unless there is revolt within, nothing would come out and that no uniform standard or mathematical calculation for appreciation of evidence can be adopted in such cases.
5.5
The conspiracy to murder the then H.M. Shri Haren Pandya, Tiffin Bomb Case and Lalwala Case of Surat are absolutely different from the present case. What is important is point for determination and that the point for determination to decide the present case and those three cases are since absolutely different and when neither there were same offences, same issue nor the same charge, it cannot be said that the conspiracy of all the cases was same. It may be possible that the reference of facts of one case can be seen in another case or even history of the case might have been mentioned, but then the said cannot be equated with the trial and unless decision on the issue involved in this case has been decided, the principle of double jeopardy or issue estoppel cannot have any application.
5.6
In POTA case of murder of Shri Haren Pandya, the conspirators have selected Hindu leaders and have assaulted Shri Tiwari and murdered Shri Harenbhai to strike terror among the people. In the same way, in the Tiffin Bomb Case to spread terror by blast of tiffin bomb in AMTS buses, conspiracy was hatched.
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In case of Hasmukh Lalwala at Surat, he was assaulted being leader of Vishwa Hindu Parishad by firing who had sustained serious injuries. All the above three conspiracies were limited conspiracies. As against that, the conspiracy hatched in this case is a larger conspiracy. This is a case clearly pointing out preparation for proxy war and is against national interest wherein every citizen and even the whole administration is targetted whereas in the above referred three cases, the target was quite limited. Therefore, the conspiracies are absolutely different. Hence it cannot be said that the convict accused are being tried for the same offences again. 5.7 In case of Haren Pandya there were 19 accused. In case of tiffin bomb blast there were 21 accused. In this case there are 56 accused who all have been tried to go for training to be in possession of weapons but they are not tried for the offences and for the conspiracy in other cases which is suggestive of the conspiracy being different in all the cases.
5.8
A-28, has been exonerated by the Central POTA Review Committee but then he is convict of the tiffin bomb case which shows that the conspiracy was different in this case then the other cases.
5.9
Mere narration of history or mention or description cannot be said to be decision on issue, earlier judgment is not in respect of the same charge, issue raised and adjudicated in the earlier case are different then the issues raised in this case. The conspiracy in the
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earlier case were limited to that case only whereas here it is in this case for larger conspiracy. 5.10 If the confession of the different accused are same, it appears to be absolutely voluntary, without any coercion or force. Hence, it can be made the basis for the conviction. In the light of Section 32 of the POTA, the confessions of the accused seems to be voluntary, legal, without any inducement or threat. (a) Section 32 of the POTA provides that such voluntary confessions are admissible in trial. All the confessions are meant apparently stated in free atmosphere without any threat or promise to let off or allow to go and when have been sent to the learned Chief Metropolitan Magistrate within 48 hours, the confessions are satisfying the requisites laid down in Section 32 of the POTA. (b) If the confessions are perused, it seems that the confessions show the terrorist training having been imparted to the concerned maker of the confession for mass killing, mass destruction, to prepare bomb, to blast bomb, to use computer, internet, etc. and that the makers of the confessions have become member of terrorist organization like Lashkar-E-Toiba and Jaish-EMohammad which are banned organizations. (c) It is true that the confession of the accused cannot be used against the co-accused. But then even if the confessions are used only against their makers, the said are clearly involving the said makers in the charged offences. (d) The provision of recording confession is only for the reason that
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conspiracies are hatched in secrecy and direct evidence would hardly be available and that such offences can usually be proved only by the confession. (e) Had the accused been desirous to commit offence against individual, the million dollar question is whether such kind of training is required for such offences. The reply is in negative, hence the kind of training itself is suggestive that the accused have committed the charged offences.
5.11 The oral evidence of PW 170, learned the then I/c. Metropolitan Magistrate Mr. Purani in this case needs to be evaluated independently and appreciation of his oral evidence in another case cannot be look into. 5.12 The confession of the two accused, viz. accused No. 54 & 55, under Section 164 of the Cr.P.C., can be used against the coaccused upon due corroboration. It was emphasised to read Section 164 of Cr.P.C. with Section 30 of Indian Evidence Act and Section 80 of the Indian Evidence Act needs to be read with Section 32 of POTA. 5.13 Upon reading the confessions of different accused, the ingredients under Section 122 of the I.P.C. seem to be satisfying. The accused have returned upon completion of their training in January 2003 and have admitted to have become members of banned terrorist organizations. The confession being substantial piece of evidence, the said needs to be given due weightage. 5.14 About 14 accused are such who have confessed their crime, from
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whom recovery or discovery of the weapons has been effected to. This provides strong support to the case of the prosecution which is suggestive of the confession being genuine. They are accused Nos. 1, 2, 3, 4, 7, 8, 20, 22, 23, 24, 25, 30, 31 and 32. 5.15 There is absolutely no statutory provision to provide time for reflection or time to think over. This is nothing but a rule of caution falling from Section 164 of Cr.P.C. which is not mandatory and that it can never vitiate the evidentiary value of the confession recorded by the Authorized Officer. It has been submitted to make a note that when more than one accused have been taken to the concerned Officer, every second accused gets time for reflection automatically and that even while the accused were taken to the Metropolitan Magistrate Court for confirmation or verification of their confession, the time for reflection was available. 5.16 Some of the accused through their further statement or through their cross-examination wants the Court to believe that they were not taken to the D.C.P., they were not taken to Court, the confession was written by the I.O. as if everyone plays fraud and forgery which is ridiculous proposition. Such a conduct of the accused should be viewed seriously and their retraction apparently prepared by their learned Advocate should be accordingly appreciated. 5.17 In such a voluminous investigation, the investigating officer cannot do every work and he needs to assign work to different officers, but then as has been provided in Section 156(2) of the Cr.P.C., the proceeding cannot be challenged on the ground that the assignee officer has no authority. The control of the overall investigation remains with the I.O. and was not transferred to
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anyone, is the gist. 5.18 The part of the oral evidence and the Panchnamas of the recovery and discovery of the weapons from different accused needs to be viewed with the presumption provided in Section 114(e) of the Indian Evidence Act which spells of the presumption in favour of the prosecution. There is no reason to distrust the I.O. and such approach being improper cannot be adopted. Even when the complainant himself is I.O., unless the bias against the accused is proved, the investigation cannot be vitiated. 5.19 The confession under Section 164 by accused No. 54 involves accused No. 42 whereas the confession of accused No. 55 involved accused No. 1, 2, 3, 5, 17, 18 and 42. These two confessions are substantial pieces of evidence and since are under Section 164, can be read for the co-accused as well. 5.20 Defective and improper investigation cannot be ground to acquit the accused, in the light of settled legal position. 5.21 In case of accused No. 1 to 5, evidence at Exh. 861 of reservation chart of railway, Exh. 1368 - register of the Star Guest House, Exh. 657 - Panchnama, Exh. 705 - Panchnama, Exh. 704 specimen signature, Exh. 714- Panchnama, Exh. 731 - the Vakalatnama, Exh. 659 - natural writing of Amarnath Bank, Exh. 649 - card of Memon Bank, Exh. 888 and 891 - FSL report and reasons, telephonic contact with accused No. 4 and accused No. 20, information of Emirate Airways at Exh. 1781, Exh. 702 are the documents which if read with oral evidence of concerned
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witnesses and if seen along with the muddamal recovered and discovered and read with the replies given in the Further Statement of the accused wherein no plausible or reasonable explanation has been tendered by any of the accused, then all the said are clearly proving the intentions, objects, conspiracy and involvement of the accused No. 1 to 5 and 20 in the crime. 5.22 The discovery of weapon from accused No. 6 clearly involves accused No. 6. Had it been fabricated, all the accused would have been shown with arms and none would have been shown with cartridge. 5.23 In case of accused No. 7 and 30, the meeting at the Ambar Hotel, Bombay with wanted accused Rasulkhan who is a draded terrorist is clearly proved. The confession statements of accused No. 7 & 30 read with entry at the hotel at Exh. 1631 are clearly establishing the case of the prosecution. This is the initiation of the criminal conspiracy. The fact of the Al-Imran Guest House, panchnama at Exh. 721 and oral evidence of P.W. No. 15 and P.W. No. 182 proves the guilt of the accused No. 7 & 30. 5.24 In case of accused No. 8, though the confession as such does not require any corroboration, but however, in case of accused No. 8, discovery of weapon corroborate the confession which proves the guilt of accused No. 8. 5.25 In case of accused No. 9 & 10, their joint arrest is a circumstance showing their intimacy and their role in conspiracy. The recovery of the weapon and the statement of P.W. No. 83 under Section
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164 of Cr.P.C. is also corroborated. 5.26 Attempts have been made to allege the detention of the accused as illegal one, but it is needed to be taken note of that so has not been held by any Court. Hence, the said contentions become merely an allegation without any finding of the Court. The accused or the witnesses for whom such suggestions of illegal detention has been made, should have filed the private complaint had the allegation been genuine. It cannot be permitted to file the Habeous Corpus and then not to invite the order. Had the writ been genuine, a final judgment ought to have been invited. Hence, the production of such Habeous Corpus Writ, etc. cannot help the accused. 5.27 In case of accused No. 16 to 19, there are confessional statements which are substantial pieces of evidence. Hence, the said need to be acted upon. 5.28 Accused No. 20 is a root conspirator whose confession and discovery of the weapon from him clearly connect the accused with the charged offences. 5.29 The confessional statement, house search panchnama, the oral evidence of P.W. 95 who identifies the driving licence of accused No. 21, newspaper cutting for which no explanation for preservation of the said has been tendered are all the points which clearly book the accused No. 21. 5.30 The accused No. 22 has also given confession, discovery of weapon from him, oral evidence of P.W. No. 95, his passport at Exh. 1057 with fake seals produced by his father, etc. is
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connecting this accused with the crime. 5.31 The evidence against accused No. 24 who is brother of absconding accused Sohail Khan, his confession, two discovery panchnamas, arrest panchnama telephone diary, etc. are connecting the accused. 5.32 The connectivity of accused No. 26 & 31 can also be seen from the contact list in the mobile phone of A-25. The rifle having been purchased from the accused No. 26 by the accused No.25 and the confessional statement of accused No. 26 are all the evidences which are proving offences against the accused No. 25, 26 and 31along with their inter se contacts. 5.33 The confessional statement of accused No. 27 is sufficient as the said is proving the case against the accused. 5.34 Accused No. 30 was arrested with accused No. 31, the recovery panchnama is on record, the panchnama and register of Hotel Platinum wherein the number of UAE has been noted which reveals his contact with the absconding accused Rasulkhan Party. The documentary evidence in form of STD Register at Exh. 1477 and 1478 clearly joins the accused. 5.35 Accused No. 32 & 33 are father-in-law and son-in-law. The confessional statement of accused No. 32 and recovery of accused No. 32 read with Exh. 864 of the railway and the oral evidence of the Railway Officer clearly show that both the accused have travelled from Ahmedabad to Ajmer and that huge amount of Rs.1,21,000/- was found from these accused with which one would not usually move. The evidence on record clearly connect
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both these accused. 5.36 The confessional statement, passport, panchnama at Exh. 639 and entry of UAE connect the accused No. 34 with the crime. 5.37 Accused No. 36 is connected with the crime through his confessional statement and a circumstance wherein shoes of absconding accused Sohail Khan were found from this accused. 5.38 Confessional statement of A-38 and the weapon and money were given to the accused No. 32 as a circumstance connects accused No. 38 with the crime. 5.39 Accuse No. 40 has given confessional statement, was absconding and warrant under Section 70 of the Cr.P.C. had to be issued which is even the case of accused No. 41. Hence, both of them are found connected with the crime. 5.40 Confessional Statement, oral evidence of P.W. No. 64, Exh. 1044, identification of the accused through the witness, Exh. 777 (page 27 of the register of the Hotel), specimen panchnama Exh. 769, 778, Exh. 806-Panchnama by which accused No. 55 has identified the photograph, deposition of Manager of Hotel International, only one entry in the passport of accused No. 42 to have crossed the border shows his return to India was unlawful, test identification parade, confessional statement of accused No. 54 and 55 are all the evidences against the accused No. 42. 5.41 In case of accused No. 43, 45, 46, 47 and 48, there are confessional statements and the circumstance of their absconding by which all these accused have been joined with the crime.
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5.42 In case of accused No. 44, his confessional statement at Exh. 1088 and the circumstance of his abscondance are on record. This accused has though not signed his confessional statement, he has confirmed it to be voluntary and has not made any complaint against the police as to any ill-treatment having been meted out to him. He too is found to have been totally connected with the crime. 5.43 The retraction of the accused seems to be got up not genuine and is after couseling of the learned advocate. 5.44 It is notable that accused No. 44 and accused No. 50 have since not desired did not sign their confession. This is a clear pointer of adoption of genuine procedure by the respective Police Officer and the learned Metropolitan Magistrate. It is therefore clear that had the other accused would not have desired to sign the confession they could have done so; therefore also, it needs to be held to be voluntary. 5.45 A-50 has not explained for discovery of weapon, for transacting for Rs. 6 lacs which were sent to the dreaded terrorist. The oral evidence of PW-136 and the statement at Exh. 1154 are quite important. 5.46 (a) The defence of the accused No.50 is plain denial, it is
nowhere on record as to on which date he acquired the possession of the weapon. (b) Amount of Rs. 2.70 lacs has been intercepted. The report
Exh. 1489 of Mr. Vanar is dated 22/11/2004 which joins the
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accused No.50 with the crime. The involvement of the accused No. 50 has not been revealed untill the report Exh. 1489 dated 22/11/2004 hence, it is obvious that till then the accused has not been shown absconding. (c) PW-125, PW-141, Mobile Telephone produced by son of A-
50, the phone book in the mobile shows telephone number of the Pakistan for which no explanation is given are the evidence against A-50. (d) The statement u/s. 164 can be used for corroboration to the
main prosecution case hence, the witnesses who have been examined to prove the guilt of A-50 and those witnesses who were not hostile, their version should be taken as evidence against the A-50. 5.47 In case of some of the accused they seems to be in contact with ISD numbers but there is no explanation. 5.48 In case of some other accused an article titled as 'Aat>kvadI bole 0e.' (The terrorist speaks) is found this being the objectionable material is a circumstance against the accused. The explanation for keeping such material has not been tendered by the said accused which therefore corroborate the confession. 5.49 The I.O. is not alleged to have any enmity with the accused. The seals on the muddamal are found to be intact, the weapons have been sent to FSL, Section 114 (e) of the Indian Evidence Act provides for the presumption of genuineness in the official and judicial act when there is no material on record to rebut the presumption and on the contrary, the panch slips on record with
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the signature of the panchs' is corroborating to the correctness and genuineness of the panchnama, the panchnama needs to be believed. 5.50 The Metropolitan Magistrate is neither knowing the accused nor is interested in the investigation. He is a judicial officer and has performed his duty as a judge. There is nothing to doubt as to why would he falsely confirm any statement when the accused himself is not stating about his voluntariness to give the confession. 5.51 The attitude that police does everything wrong is not proper when the case is related to national interest. 5.52 In case of accused No. 54 & 55, the confessional statements binds themselves as well as the co-accused to whom they involve. 5.53 A-54 involves A-42, whereas A-55 involves A-1, 2, 3 5 17 18 PW45, Panch has proved the panchnama Exh. 811 by which the photograph of the co-accused have been identified by the A-55. 5.54 According to the confession of A-1, 2, 3, 16, 17, 18, 19, 21 22 41, 43 and 44 have gone for the terrorist training at Pakistan. These 12 accused have apparently proved their involvement through their confession. 5.55 Accused No.5 had intention to receive the training, had been at Dhaka but was returned on account of his age. It is for this reason all the 13 accused can be penalized for the charge u/s. 120 (b) of the IPC and S. 3 (3) of the POTA. 5.56 For S. 3 (3) of the POTA and S. 120 (b) of the IPC going to
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Pakistan, taking the training, procuring and possessing the weapon, discovery, recovery or seizure of the weapon needs to be seen. 5.57 By going for terrorist training, successfully received the training, possession of unlicenced weapon, etc. attract the provisions of POTA and that the accused needs to be held liable for the terrorist act 5.58 Section 21 (2) (b) of POTA read with explanation to this section can be read along with the fact that : In May 2002 A-7 and A-30 met with absconding accused at Mumbai. On 3/4/2003 the accused have assembled at Parimal Garden. The fact that the accused have gone to the training and have become member of banned terrorist organization and thenafter their act and omission of procuring and possessing weapon, meeting and assisting with each other with the knowledge of the kind of act and omission of one another by which the activities of the banned organization would be furthered. 5.59 By necessary implication remaining accused will have to meet with the same fate as act of one is act of all and the united goal of all the accused as provided in s. 3 (1) should be seen. 5.60 S.22(3)(a) of the POTA could be attracted if one provided money or other property. Noting the principle that a criminal conspiracy is marched under a banner, act of one is act of all, the agreement
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may be expressed or implied, the accused might not be interse knowing each other the act of one accused of providing money or other property binds all. The act of A-47, A-32 and A-50 is done the act provided in this section, which binds all the accused. 5.61 Section 22 (5) of the POTA is penalizing provision. The charged offences have been proved to have been committed by all the accused beyond reasonable doubt. 5.62 The case against all the accused has been proved by cogent, convincing, reliable and legal evidence hence they are required to be penalized for the charged offences. SUBMISSIONS OF MR. PANCHAL, LEARNED SPECIAL P.P., IN REBUTTAL 5.63 It has been submitted by Mr. Panchal, learned Special P.P., while replying the extensive submissions made by different L.As. for the defence, that though the investigation is not carried out by the designated officer in the public interest, such lapses should not be given over weightage if no prejudice is proved to have been caused to the accused. The illegality in the investigation can never affect the trial and vitiate the result unless miscarriage of justice is shown. It has been further submitted that even if the witnesses whose statements u/s. 164 of Cr.P.C. have been recorded do not support the prosecution, the Court can believe the Judge witness who has recorded the statement without any hesitation. It has also been emphasised while recording the confessional statement, if omission to obtain signature of the accused is found, the same is curable in view of the provision contained in Section 463 of Cr.P.C. and that all hue and cry about unjustified arrest since does
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not vitiate the trial and when is absolutely baseless cannot be believed at all. It has been once again submitted that the prosecution has proved its case beyond all reasonable doubt and the said therefore is held to be credible upon which the accused needs to be convicted. 5.64 Following judgments have been cited to support the
prosecution case which shall be discussed at appropriate place in the judgment to avoid repetition.
Sr. No. 1.
Citation
Relevant Paragraph No. 19 State of
On the topic
AIR 1975 SC 856 Ravinder Singh Haryana
v.
Issue Estoppel
of
2.
(1979) 2 SCC 322 11 Ram Lal Narang v. State (Delhi Administration) (2009) 1 SCC 441 41, 44, 51 Nirmal Singh Kahlon v. State of Punjab & Others AIR 2001 SC 746 84 to 86 Lal Singh v. State of Gujarat and another AIR SC 456 4 People's Union for Civil Liberties and another v. Union of India (2002) 5 SCC 234 33, 37(265), Devender Pal Singh v. State of 42, 43, 44, NCT of Delhi and Another 48, 53, 54, 56, 64. From P.256Majority View.
Issue of Estoppel and double Jeopardy Issue of Estoppel and double Jeopardy Appreciation evidence of
3.
4.
5.
Purpose & object of POTA and appreciation of evidence Retracted confession, Confessional Statement, Conspiracy and appreciation of evidence.
6.
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Sr. No. 7.
Citation
Relevant Paragraph No.
On the topic
AIR 2002 SC 409 32, 33, 34, irregularities in State of Maharashtra v. Bharat 34, 37, 39, recording Chaganlal Raghani and others 57, 58, 63 confession and evidentiary value thereof AIR 2000 SC 776 27 (793) S. N. Dube, etc. v. N. B. Bhoir and P. 797, others Confession is substantial piece of evidence
8.
9.
2005 SCC (Cri) 1715 34, 35, 37, S.27 of Indian State (NCT of Delhi) v. Navjot 44, 46, 47, Evidence Act. Sandhu Alias Afsan Guru 50, 114, 157, 164, 184,, Confession, conspiracy, reflection time, discovery panchnama, procedural safeguard, etc. Reflection time and not sent to judicial custody, S.32 & 52 of POTA. Non-compliance of certain procedural safeguard and minor irregularity qua confession Confessional statement and minor contradictions Confessional statement by coaccused
10. (2008) 3 SCC (Cri) 294 10, 12, 16 Harbans Singh v. State (Govt. of NCT of Delhi)
11. (2001) 10 SCC 109 50, 52 Jayawant Dattatraya Suryarao v. State of Maharashtra & others
12. AIR 2002 SC 2241 17, 18, 19 Ravinder Singh @ Bittu v. State of Maharashtra 13. (2007) 3 SCC (Cri) 126 9, 10 Abdulvahab Abdul Majid Shaikh v. State of Gujarat
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Sr. No.
Citation
Relevant Paragraph No. 13, 14, 15
On the topic
14. AIR 1971 SC 1525 Muni Lal v. Delhi Administration
Assignment of work to the Police Officer by the I.O. and its effect Source of evidence and its value Assistance of some officer can be taken bu I.O., but that does not vitiate investigation Notified area I.O. should not always be distrusted Sec. 27 of the Indian Evidence Act I.O. should not always be distrusted Complainant himself is I.O. Evidence of I.O. and seizure Conspiracy
15. 2004 SCC (Cri) 1722 15 State Represented by Inspector of Police and Others v. N.M.T. Joy Immaculate 16. 2006 (1) GLR 881 5 Panchabhai Becharbhai Makwana v. State of Gujarat & Others
17. AIR 1996 SC 3079 Tahir v. State (Delhi)
18. 2003 SCC (Cri) 1001 8 Karamjit Singh v. State (Delhi Administration) 19. 2002 (1) GLH 176 24.2 Vinugiri Motigiri v. State of Gujarat 20 AIR 1978 SC 1571 3 State of Kerala v. M.M. Mathew H.N. (A) and another (2004) 5 SCC 230 2, 3 S. Jeevanantham v. State through Inspector of Police T.N. AIR 1978 SC 1511 Modan Singh v. Rajasthan State 9 of H.N. (B)
21
22
23
AIR 1977 SC 2433 9 Yash Pal Mittal v. The State of Punjab
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Sr. No. 24
Citation
On the topic
AIR 1981 SC 1062 16 Mohammed Usman Mohammed Hussain Maniyar and another v. The State of Maharashtra
S. 120-B of IPC
25
AIR 1993 SC 1637 8, 10, 11, 24, Conspiracy Ajay Agarwal v. Union of India 25 and others (2002) 2 SCC 35 17, 18, 19, Confession u/s. Prakash Dhaval Khairnar (Patil) v. 20 164 of Cr.P.C. State of Maharashtra can be used for co-accused. Para 34 to 39 of Criminal Manual. (2006) 1 SCC 697 25 R. Janakiraman v. State, Represented by Inspector of Police, CBI, SPE, Madras Confession under S.164 of Cr.P.C. is substantive as far as accused is concerned for co-accused corroborative. Defective investigation Defective investigation, Dropping of witnesses Defective investigation Evidence of one case cannot be considered in another case
26
27
28
2002 SCC (Cri) 519 8 Allarakha K. Mansuri v. State of Gujarat 2003 SCC (Cri) 641 15, 18 Amar Singh v. Balvinder Singh & others (2007) 2 SCC (Cri) 382 Rotash v. State of Rajasthan 31, 32, 33
29
30 31
AIR 1975 SC 149 4 Mitthulal and another v. the State of Madhya Pradesh AIR 2006 SC 433 Rajan Rai v. State of Bihar
32
7, 8, 9, 10, Each case is to 11 be decided on the evidence led
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Sr. No. 33
Citation
On the topic
AIR 1994 SC 2623 11 to 15 Hitendra Vishnu Thakur and others v. State of Maharashtra and others 1999 SCC (Cri) P. 692 S. Nalini & Others v. State
Intention, gist of the offence
34
675, 676 & Conspiracy 583.3 Confession Para 7 Lapses of prosecution S. 164 of Cr.P.C. S. 463 of Cr.P.C. and S. 15 of TADA Unjustified arrest
&
35. AIR 1968 S.C. 1292 Sailendranath Bose V/s. The State of Bihar 36. (2009) 3 S.C.C. (Cri.) 543 Mahesh S/o Janardan Gonnade V/s. State of Maharashtra 37. (2009) 3 S.C.C (Cri.) 368 Ahmedhusain Walimohammad Saiyed and another V/s. State of Gujarat 38. AIR 1957 S.C. 857 Mobarik Aliahmed V/s. The State of Bombay
Para 52
Para 53, 55 and 57
Para 19
6.
Learned Advocate Mr. B. M. Gupta for Accused Nos. 1 to 4, 6, 16
to 22, 40 to 44, 55 & 56 (in all 19 accused) has mainly submitted as under: 6.1 The date of the incidence of this case is 3/4/2003. Prior to which, incidence of Tiffin Bomb Blast on 29/5/2002, firing at Mr. Jagdish Tiwari on 11/3/2003 and murder of the then Home Minister Shri Haren Pandya had taken place. These two incidences remain undetected which has tarnished image of police hence, the false involvement of all the accused.
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6.2
Under the name of larger conspiracy the accused have been falsely involved in the crime who in fact have not committed any offence. Some of the accused have even been falsely involved in the previous three incidences.
6.3
The meeting at Parimal Garden as alleged in complaint Exh. 1247 is not probable and that there is absolute absence of any proof of meeting of mind among the accused.
6.4
PW-154, Mr. Tarun Barot is not a credible witness neither the complaint nor Exh. 1248, the report u/s. 154 of Declaration of Offence can be believed. No evidence of any I.B. inputs, fax message, any chance of preconcert, lack of exact date and time of the incident in the deposition of the PW-154, non production of Weekly Diary or Station Diary by PW-154, improbablising factors in drawing of preliminary panchnama on the footpath by the Officer like P.I., lack of finger print on revolver of accused No.1, frequent reply in cross examination like 'I do not remember' and 'I have no idea' are all points to hold that the witness is not dependable and his oral evidence cannot be acted upon. Accused No. 1 to 5 were illegally detained right from 2nd April 2003, the account of which has been given in the F.S., the finger print on the revolver and foot print, finger print or break mark were since not taken from the motorcycle, it shows that the panchnama of the motorcycle has not been drawn, the arrest memo is suggesting violation of principle laid down in D. K. Basu's case, lack of collection of scientific evidence, the PW-154 since apparently seems to be speaking lie, lot many doubts emerge in the initial investigation which is defective, improper and unreliable,
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the recovery of the muddamal from the accused since does not seem to be genuine and that no offencive articles have been seized from A-2 to 5 the prosecution case faces many doubts. 6.5 The complaint Ex. 1247 is based on inadmissible fact which can neither be read nor can be acted upon. 6.6 Exh. 1970, a single page of the Station Diary is a concocted piece of evidence which has not been produced by the prosecution at the initial stage but at a later stage in the cross examination. 6.7 Panchnama Exh. 702 must have been drawn in the crime branch as the PW-154 has stated in paragraph 26 of his deposition that the accused were arrested after drawing of the panchnama. 6.8 The panchnama of the physical state of the accused has deliberately not drawn as while the accused were passing through the roads their vehicles were dashed by the police and they were illegally arrested. Even the family members of the A-1 to A-5 have not been informed which is supporting the argument. 6.9 The police has not used police vehicle but has used private vehicles while going to the Parimal Garden, the R.T.O. number of the said vehicle or the kind of the vehicle has not been mentioned in the panchnama which creates doubt. 6.10 The writer or the typist of the complaint Exh. 1247 has not been examined.
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6.11 In Exh. 1247, certain portion as noted in the deposition of PW-154 should be bracketed as the said part is not admissible piece of evidence. 6.12 The ingredients of S.120-A and 120-B of IPC do not stand satisfied. The said offences are not proved by the prosecution. 6.13. PANCHNAMAS : (a) In none of the case the panchs have identified the accused during their deposition hence, such deposition of the panch witness cannot connect the respective accused with the crime. Moreover, in case of all the panchnama the writer of the panchnama has not been examined as witness which is the additional reason to discard the panchnama. (b) The contents of panchnama Exh. 669 does not stand proved by PW-16. The panchnama Exh.669 dated 12/04/2003 by Mr. Vaghela and Exh. 1809 by Mr. Singhal dated 7/01/2004 are both concocted panchnamas. (c) PW-30 and 16 are one and the same person whose addresses have been shown to be different in panchnama Exh. 669 and 734 who apparently are the stock panch witnesses. (d) The addresses of the panch witnesses shown in both the panchnamas seems to be bogus. (e) Though the panch witness has signed, but as is clear from the cross examination he lacks knowledge on the contents of the panchnama.
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(f)
Help of Scientific Officer or scientific way of investigation has not been done which shows foul play.
(g)
In the light of the above, panchnamas are concocted and not reliable.
6.14 (1)
Exh.814 is the panchnama by which weapons were
exhibited to the Press. PW-46 is the panch. It has been forcefully submitted that upon perusal of the contents of the oral evidence this panch witness cannot be believed to have witnessed the process of the panchnama and that this witness has not aided to the prosecution case. (2) PW-162 has admitted to have not taken photographs, to
have not shooted the panchnama proceedings, and has even not obtained the signature of the panchs which all would collectively mean that the panchnama is not genuine. This panchnama is dated 19/4/2003, it was applied to the Government that the POTA is applicable in which case this panchnama is nothing but a gesture to justify the claim of applying of the POTA. It has been submitted that this panchnama does not satisfy the required procedure hence, it cannot be considered to be genuine as apparently not credible. 6.15 ACCUSED NO.1, 2, 3 & 5 : (1) PW-9 is the panch of panchnma Exh. 651 dated 14/07/2003.
Exh. 1368, the Register of the Star Guest House and Exh. 1369 the Bill Book of the Star Guest House are not shown to have been legally seized. The panch does not know who has produced these
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documents or who has written the panchnama, another panch has not been examined. (2) PW-168, who had been to Kolkata in April 2003, has only
produced the xerox copy of the Register of Star Guest House. At that very point of time, though the Police Officer could have seized the documents but PW-164 the witness is called upon at Ahmedabad later to produce these documents which doubts the procedure adopted. Overall, the panchnama can be held to be not reliable. (3) PW-13 is the hostile witness and PW-29 is Co-panch of Exh.
732 panchama by which Vakalatnama Exh.731 has been seized. In the evidence the panchnama is shown to have been dictated by I.O. Mr. Singhal, and Mr. Vaishnav the Court Officer which is pointing out that it is an illegal panchnama. (4) This panchnama is therefore needed to be held to have not
been proved according to law. ACCUSED NO.2 IN SPECIFIC : (5) PW-11 is the panch witness of Exh. 657 panchnama by
which article 50 to 54 have been seized. The time of the job of the panch witness has been admitted to be 9.30 a.m. to 6.30 p.m. who is not sure of the presence of another panch. In light of this vital fact, the recovery does not stand established hence, the panchnama is not reliable. (6) PW-12 is the panch witness of panchnama Exh.660 by
which Bank Card at Exh. 659 has been seized. PW-48 is Police
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Officer who denies to have taken statement of the Bank Manager whereas, it has been taken as shown in the charge-sheet, this is justifying that the procedure itself is doubtful. 6.16 ACCUSED NO. 1, 4, 22 : (1) PW-1 is the panch witness for the panchnama Exh.445, 446 & 447 which in all involve accused Nos. 4, 22 & accused No.1 according to the prosecution case. The prime submission is that though the accused Nos. 1 & 4 were in custody of the police they were not taken to draw the panchnama of their residence. (2) There is no evidence that the site of the panchnama is
residence of accused No.4 or accused No.1, neither any photography nor videography has been done, no necessary resolution to break-up the lock has been done. The signature of mother of accused No.1 and cousin of accused No.4 has not been taken in the panchnama nor they have been examined by the prosecution. (3) From the residence of the accused No.22, though the Ration
Card has been obtained, but there is no evidence to prove the use, ownership or possession of the site of the offence by the accused No.22 who at the said point of time was wanted accused. (4) The deposition of the panch witness and panchnama have
apparent discrepancy. The recovery or seizure of Muddamal article Nos. 16 to 32 has not been proved. (5) The panchnama Exh.445, 446 & 447 are absolutely not
genuine and have been drawn to falsely involve the accused hence, said cannot be believed.
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6.17. ACCUSED NO.2 : (1) Vide Exh. 696, the panchnama against this accused has
been drawn which has been attempted to be proved through deposition of PW-21. This panchnama is dated 10/4/2003. Vide Exh. 696, Article 55 & 56 have been seized while drawing this panchnama. (2) Prior to this, a search panchnama has been drawn by the
police on 5/4/2003 which was vide panchnama Exh. 657, at this point of time Ration Card etc. were recovered from the residence of accused No.2 and that nothing offensive has been seized at that point of time. It has been emphatically submitted that the accused could have been taken together by the police as the accused was already in custody and that from 3/4/2003. (3) (4) The panchnama Exh. 696 is neither probable nor credible. Upon comparing the same with the Despatch Note at Exh.
904 and more particularly, viewing Item at Serial No.6 it becomes clear that the Muddamal Article is shown in the Despatch Note to have been recovered from the residence of the accused whereas, the panchnama shows it from different places. The accused has not been identified by the Panch. (5) PW-45 & 46 relate to the present accused. It has not been
clarified by any of the witnesses including PW-162, the I.O., as to the weapons have been recovered from the place of whose ownership or that the said place was in possession of which person.
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(6)
In the light of the foregoing discussion, it has become amply
clear that this is a case of clear plantation and that the said panchs cannot be believed. 6.18 ACCUSED NO.2 : (1) PW-8 is the panch witness of panchnama Exh. 648 and
seizure of the Signature Card at Exh.649. (2) PW-10 is the Manager of the Bank. The procedure adopted
to seize the Card has not been properly observed another panch witness has not been examined. The Bank has not been issued the receipt for seizing the Signature Card . Seizure has not been proved properly. (3) PW-48 is the Officer who has recorded the statement of
PW-10 as has been shown in the charge-sheet, but he denies the same in his deposition which is proving that PW-48 to have been speaking lie which should be viewed seriously. 6.19 ACCUSED NO.3 : (1) PW-40 is the hostile witness who is the panch witness of
panchnama Exh.1319. As per the prosecution case, PW-162 has supported and has proved the contents of the panchnama which could be believed. (2) On 5/4/2003, the panchnama has been drawn at which point
of time accused was in custody as he was arrested on 3/4/2003.
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(3)
The discovery has been shown to have taken place from the
wooden cabin, but there is nothing to believe that the said wooden cabin is owned or possessed by the accused, no evidence or statement of the surrounding people, the entry at Serial No.11 & 12 of Despatch Note, Exh. 904 is not tallying with the contents in the panchnama. As a result the said becomes a doubtful piece of evidence and that the panchnama therefore should not be considered at all. It has even been submitted that the panchnama is nothing, but a result of plantation which is a concocted panchnama. 6.20. ACCUSED NO.3 : (1) PW-3 is the hostile panch witness. The co-panch has not
been examined. The panchanma Exh.622 has not been supported by the deposition of the PW-3 who states that he was outside the house where the panchnama was being drawn. Though accused No.3 was in custody he was not taken to the site. (2) In view of all the above, this panchnama cannot be believed
which does not connect accused No.3 with the crime. 6.21 ACCUSED NO. 4 : (1) In the panchnama roping accused No.4 has been
attempted, but neither statement of the neighbours nor any evidence to show ownership or possession of the property - the site of panchnama has been collected. It is not clear as to whose house is this. The issuance of Muddamal Pavti is missing, the signature of the accused could have been taken in the panchnama to establish his presence at the time of panchnama, the Lockup
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Register of the DCB Police Station has not been produced and that there is absolutely no evidence to involve accused No.4 in the crime as even description of the cartridge has not been proved. (2) In light of the above, nothing comes on record against
accused No. 4 as far as panchnamas are concerned. 6.22 ACCUSED NO. 6 : (a) The collective reading of oral evidence of PW-32, PW-56,
Exh. 904 Yadi, Panchnama Exh. 754, the evidence of the I.O. PW162, it becomes clear that the PW-32, the panch witness has frequently stated that he does not know and he does not remember, it seems that only his name and address was taken on the ready made panchnama. (b) In Exh. 904, the yadi in form of despatch note, at Serial No.
13, the muddamal from A-6 is shown to have been recovered from his residence, in panchnama Exh. 754, it is shown to be from Kohinoor Estate which both are not tallying with the deposition of PW-162 at Paragraph 18. These discrepancies grant benefit of doubt by which the seizure of the fire arm from A-6 cannot be believed. (c) (d) The A-6 was arrested without any evidence. The worksheet Exh. 914 and 915 are not believable as it
does not tally with the panchnama. (e) None of the weapon recovered from A-6 is standard weapon
and when place of seizure is not proved and when the PW-56
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Ballistic Expert does not support the prosecution case no case can be held to have been proved against the A-6. (f) PW-75 and 85 are hostile witnesses, the evidence against
A-6 has been collected after 3 years of his arrest which are all concocted and gotup. A-6 has not confessed the crime and case against him has not been proved by prosecution beyond reasonable doubt hence, A-6 needs to be given benefit of doubt. 6.23 ACCUSED NO. 20 : (1) PW-19 and 34 are the panch witnesses of the panchnama
Exh.759 dated 13/5/2003 which has been drawn according to the prosecution case in presence of PW-37 the I.O. The accused is in custody on 13/5/2003, on the date of the panchnama on 5/4/2003 as has been deposed by PW-162 at paragraph 6. While the accused was wanted, his house was searched and said panchnama was prepared. (2) As far as Examination-in- Chief of PW- 34 is concerned,
there is nothing on record to establish that the PW has any talk with the accused. As a result, the present panchnama cannot be termed to be panchnama under Section 27 of the Indian Evidence Act. (3) ACCUSED Nos. 20, 21 & 22 : As has been deposed by PW-
37, accused Nos. 20, 21 & 22 were brought from the custody of the C.B.I., who were in custody from 24/4/2003. The panchnama at Exh. 759 is a planted panchnama. This panchnama cannot be termed to be panchnama under Section 27 for want of disclosure statement therein.
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6.24 ACCUSED NO.21 : (1) PW-4 is the panch witness who was examined to establish
the recovery of Muddamal article Nos. 37 to 46M. The panch witness has deposed that any other panch was not present, he does not remember the things, he cannot say for sure, Muddamal has not been sealed, the procedure has not been properly adopted and the statements of the family members of accused No. 21 has not been taken. In view of the foregoing points, PW-4 does not prove the prosecution case. (2) PW-162 has done pre-arrest seizure at the residence of
accused No.21. About 36 forged documents have been found, but the statement relating to the said document have not been noted down nor any investigation has been done to establish the documents to be forged hence, the said cannot be believed. 6.25 ACCUSED NO.22 : (1) PW-31 & 33 are co-panchs of the panchnama Exh. 736
dated 18/5/2003. Investigating Officer, the PW-35 the panch witness, and more particularly, PW-31 who is hostile witness cannot be considered at all. (2) PW-33 does not speak about the fact as to what has been
kept by the accused and that the accused has shown the place of discovery.
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(3)
In the light of the fact that some persons have been taken as
panchs frequently, the investigation should be termed to be illegal and not supporting to the prosecution case. It has been submitted not to consider the panchnama against the accused No.22. 6.26 ACCUSED NO.20 TO 22 : PW-7 is panch witness of panchnama Exh.643, who states that he has signed in the panchnama already written. This witness has created doubt against the procedure adopted to draw the panchnama at Exh. 643. 6.27 ACCUSED NO.42 : (1) PW-14 is the hostile panch witness of Exh.180 panchnama.
This panch witness is also panch witness in Exh. 669 panchnama who seems to be stock panch witness. This panch cannot be believed. (2) PW-23 is the panch witness of Exh.709 panchnama
wherein, the panch witness has stated that he was called upon at Sabarmati Jail on 05/04/2003, whereas, the panchnma is dated 05/08/2003. The Daily Register has not been produced. The Registers from the High Security Zone to Jailor's Office have also not been produced. There is mention of learned advocate Mr. I.D. Pathan, but there is no signature of the said learned advocate. (3) Specimen signature needs to be proved to have been
genuinely obtained in which case only opinion of Handwriting Expert can be believed hence, in this panchnama the procedure has since not been observed, this panchnama cannot be believed.
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(4)
PW-25 is the panch witness of Exh.714. When for the
second time the specimen signature of the accused Nos.1, 2, 3 & 5 were taken, the specimen signature has not been identified and that being the prime evidence the panchnama cannot be believed and that the specimen signature showed at Exh.713 also cannot be believed. (5) PW-3 is the panch witness of Exh.734 panchnama who is a
stock panch as he is also shown as panch No.2 in Exh.669. (6) PW-36 admits that he plies the Rickshaw by the grace of
police and that he drives 'Shuttle Rickshaw'. This being illegal activity and the witness being pocket panch, panchnama Exh.769 & 777, the specimen signature etc. cannot be believed. (7) Ayyub Dadamiyan is though a star witness, the prosecution
is not examining this witness. Even the 3rd party (the previous learned Special P.P.) has given an application to examine said Ayyub Dadamiyan as Court witness, but the Court has rejected the application who can still be examined. On the application of the 3rd party, this Court has passed necessary order in accordance with law which has not been challenged hence, the said finding has attained finality, no comments needs to be made on the submission which has been finalised. Moreover, the defence is and was at liberty to examine the said Ayyub Dadamiyan, but the defence has not chosen to do so.
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(8)
PW-44 is the panch witness of Exh.806 panchnama. As per
this panchnama, according to prosecution, the accused No.42 has ticked certain photographs, but neither witness is identifying accused No.42 nor is proving the panchnama. He has even expressed his inability to identity the vehicle of the panch No.2 hence, this panchnama cannot be believed. (9) PW-45 is the panch witness of the panchnama Exh.811 by
which accused No.55 has identified photographs of other accused. In the panchnama there is mention of the tick mark having been applied by accused No.55, but PW-45 states that tick mark were made by the Police Officer. This discrepancy is showing that the panchnama is not creditworthy. (10) Moreover, identification of the accused by way of
photographs is not permissible hence, this panchnama cannot be used and for the said reason also both the panchnama at Exh.811 and 806 should not be believed. 6.28 Accused No. 56 : Accused No. 56 has been falsely shown to be wanted accused. This accused has regularly performed his duty and was available throughout, but the police has not made any investigation. Exh. 2047, placed along with the FS shows that from July 2003, the accused was continuously attending at the place of his employment hence, it is not probable and acceptable that A-56 was not available. There is no material against A-56 who therefore needs to be given clean chit.
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6.29 STATEMENTS UNDER SECTION 164 Cr.P.C. : (a) PW-70, 77, 91, 93, 94, 139 & 148 are the hostile witnesses.
In view of the principle that the statements of the witnesses under Section 164 is not substantial piece of evidence but can only be used to corroborate the statements when these witnesses have not supported the prosecution, their statements cannot be read. (b) PW-176, 172, 192, 178, 174, 193, 173, 177, 193 & 174 are
the judge witnesses who have not adopted proper and satisfactory procedure while recording statements. Some of them have not made necessary endorsement, have not given preliminary understanding nor distinguished between the accused and the witnesses. Some have not made proper application of mind, guidelines for Section 164 have not been followed, Witness Summons have not been issued, Yadi of the Chief Metropolitan Magistrate or the forwarding letter is not brought on record, round seal has not been applied, the statement has not been read over and the signature of the witnesses has not been taken over, Rozkam have not been written and the voluntariness has not been properly examined, the statements cannot be termed to be legal which are otherwise not credible. (c) Some of the witnesses whose statements under Section 164
have been written are themselves accused but have not been included as accused, from their cross-examination the probability of the statement being lawful and proper is very feeble, some witnesses have identified the accused for the first time that too after 6 years, some of the witnesses have stated that their statements under Section 164 were recorded as directed by the
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Police and under threat, pressure, coercion. As the requisite under Section 164 Cr.P.C. is not satisfied, these statements cannot be termed to be corroborating to the evidence of the respective witness. (d) The deposition of the I.O. is also not supporting the
prosecution case like PW-199 from paragraph 312 to 322 is clearly revealing that the statement of PW-95 cannot be believed and that lot many doubts have been created against the genuineness of this statement. None of the statements involves any of the accused and that all these statements are not credible and that the need for the investigating agency to record the statements is to pressurize the witnesses and it is for the reason that the investigating officer had no confidence that the witness would help the prosecution. 6.30 EVIDENCE ABOUT RAILWAY JOURNEY OF THE ACCUSED : (a) PW-49 & 50 have not brought on record original Reservation Chart and original Form hence, the presumption under Section 114 (e) of the Indian Evidence Act cannot be said to be applicable. (b) It has not been proved that the Railway Reservation Form
has been filled in whose handwriting and it is signed by whom. (c) The Railway Authority has not been told to preserve the
original record by the I.O. (d) Exh. 860 & 861 are apparently concocted and as the
documents are not original, reasonable doubts can be seen on the record.
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6.31 EVIDENCE OF MOBILE PHONES AND LANDLINE PHONES : (a) PW-63 (Hutch), PW-160, 161, 163 and 167 (all from BSNL)
do not connect the accused with the crime. (b) PW-160 has no personal knowledge. PW-161 & 163 cannot
be termed to be legal evidence. PW-167 does not prove that the Telephone Numbers are of Kolkata STD, PCO and of Hotel. (c) (d) No panchnama of STD, PCO has been drawn. PW-166 has not provided any corroboration to the
prosecution case. In nutshell, neither record of any Mobile Phone nor record of Landline connect the accused with the crime. 6.32 IDENTIFICATION PARADE : The prosecution has only examined PW-190 the Executive Magistrate, but has not examined any panch witness, any dummy person and the dropped witness Ayyub Dadamiyan who has identified accused No. 42 in the panchnama hence, no corroboration has been provided by this insufficient and doubtful evidence. 6.33 EXPERT EVIDENCE : (a) PW-51 has not proved that there was poison in article No.16
whereas, in panchnama Exh.445, five small bottles have been described to have poison within it.
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(b)
PW-55 is Handwriting Expert who is egoistic witness, having
inflated opinion for himself and is not ready to borrow the wisdom from good books on handwriting science. There is mention in all the Yadis' about the Author of the documents sent for the opinion. Exh. 888, Handwriting Expert's Opinion, is dated 1/1/2004, reason for the opinion is of October 2007 which both should have been written together hence, the opinion of the Handwriting Expert is not credible as even enlarged photographs and worksheet also not been produced. (c) PW-56, the Ballistic Expert is not a qualified person, seized
weapons are country made weapons and not standard weapons hence the gravity of the offence would be diluted. In light of the fact that this witness is unable to say anything for sure, has no knowledge of Arms Act, has not taken training of gunsmith or armer and there is no evidence of the test fire have not been done in FSL and that the witness is admitting that he has not done the test fire hence, this witness cannot be taken as an Expert and his oral evidence cannot be believed as desired by the prosecution. (d) None of the weapons can be termed to be prohibited arms
as defined under Section 2(1) of the Arms Act which is even been admitted by the witness in paragraph 30. The witness has since not examined the rust and dust in the weapons and when the I.O. has not adopted proper procedure to seize and despatch the weapons this witness is also not giving any strength to the prosecution case.
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6.34 PW 47, 54, 58, 66, 90 and 158 are all the hostile witnesses who do not connect any of the accused with the crime. 6.35 PW 52 is having hawker's licence, but he does not have a legal stand near Parimal Garden. It is doubtful whether this witness is indeed doing his hawking near Parimal Garden or not. Moreover, his statement has been recorded on 08/04/2003 which should have been taken down on 04/04/2003 itself which makes the witness doubtful. 6.36 PW 139 is not corroborating to the prosecution case. 6.37 PW 140, the Manager of Hotel International, is neither involving nor identifying the A-42. The documentary evidence at Exh. 777 and 1207 are created and forged documents which is a loss page, hence even this witness does not help the prosecution in any manner. 6.38 PW 164 is the witness from Hotel at Kolkatta wherein accused Nos. 1, 2, 3 & 5 have given their true names which shows that they had no intention. The investigating agency ought to have taken the accused alone at Kolkatta. This witness proves that the accused had no intention, hence this non-interested witness should be believed and the register of hotel which has been seized after 4 months should not be believed as apparently seems to be burnt one. 6.39 PW 168 is not a reliable witness who goes in a private vehicle instead of police vehicle, does not inform the local police, does not take TA/DA, reveals very poor investigation, leaves Gujarat
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without permission of his superior which all if seen cumulatively, makes the witness doubtful and not credible one. 6.40 PW 180 does not involve A-42 who has deposed that the signature in the register is that of Zafar which means that not of A42. This witness replies in a very irresponsible manner by stating that he does not know or he does not remember which should be viewed seriously. It seems that in an attempt to book the dropped witness Ayyub Dadamiyan, A-42 has been booked. This witness also cannot be termed to be credible one. 6.41 The Investigating Officer - PW 162, has though served in the house of A-20 on 05/04/2003, nothing was found and on 13/05/2003, revolver was found which is suggestive of plantation. This witness being a primary Investigating Officer, has opined that according to him, POTA was not applicable in the case till 19/04/2003 which, according to him, in spite of his reading recovery panchnama and the complaint. This witness has not given any progress report to Metropolitan Magistrate Court, the investigation is thoroughly illegal, the remand report, complaint, panchnama, etc. are basing upon the statement of the accused, hence the said are not admissible in evidence. The conduct of different Investigating Officers needs to be deprecated. The complaint is based on the whims of the complainant, the offences under any of the sections of the POTA have not been proved, inference under Section 53 of the POTA is not available in absence of fingerprint of the respective accused.
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The sole reason to apply POTA was only to secure confessional statement of different accused. 6.42 PW 168 is not at all a reliable witness, nothing has been brought on record to prove that he had been to Kolkatta. 6.43 PW 180 - Shri V.D. Vanar has not at all taken A-42 to Kolkatta as it appears to be quite doubtful in absence of any material to show that the PW 180 has taken A-42. 6.44 PW 154 has not brought any material on record to establish any IB input, hence the narration in the complaint cannot be believed. 6.45 PW 196 - ACP Shri Muliyana has not proved anything by which A56 can be said to have been involved in the crime which is particularly when even PW 84 has also become hostile. There is even no material to believe that A-56 was ever absconding. There is absolutely no material whatsoever against A-55 and A-56 as none of the witnesses has established the same. 6.46 PW 200 was Joint Commissioner in the year 2003 and that sanction granted by him is invalid as he was not empowered to grant such sanction and that the Commissioner of Police was empowered to grant the sanction. In the case of A-16 to A-19, A-40 to A-44, A-55 and A-56, though arms have not been recovered nor been discovered, sanction to prosecute even these accused under the Arms Act has been granted which is clearly revealing non-application of mind.
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6.47 PW 201 has admitted in his deposition that he used to call the I.O. which is showing non-application of his mind which can even be seen by evasive and irresponsible reply given by the said witness in the cross-examination. 6.48 PW 199 (a) PW 199 has not investigated on the aspect of IB reports, contents of the complaint, any documentary evidence or any oral or circumstantial evidence to establish the allegation of terrorism by the accused. (b) (c) (d) (e) Exh. 1971 and 1972 are though admittedly the same documents, but the discrepancy therein shows concoction. No offence under Section 120 to 123 of IPC is admittedly committed, if para 263 of deposition of PW 199 is read. The confessional statement used in the tiffin bomb case cannot be re-used. The subordinate officer cannot be assigned any investigation, hence the investigation is null and void and unauthorized. (f) The fact of having travelled on a fake passport, getting fake visa, being a member of terrorist organization, connection with banned terrorist organization have not been stated, hence cannot be believed. No evidence about any contact among the accused on landline or mobile. (g) (h) (i) A-6 has been arrested without evidence which is illegal. The evidence has been collected after about three years. The case ought to have been filed only under IPC, there is no material to apply POTA. PW 95 should have been made accused, but on account of his connection with the officers of the investigating agency, he has been given a loose rope.
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(j)
A-42 had to be referred for the medical check up and in the facts and circumstances of the case wherein in the confessional statement, there are dots of white ink, the confessional statement of A-42 needs to be held as not voluntary and truthful, certain confessional statements seem to have been sent to Crime Branch directly instead of sending the same to the Chief Metropolitan Magistrate which is clearly revealing mischief of the investigating agency which is apparently malafide.
(k)
All the accused should have been sent to the judicial custody after verification, but the same has not been done. Hence, the confessional statements are not above dent.
(l)
A-1 to A-4, A-20, A-21and A-22 are the accused in all the cases. In their case, principle of double jeopardy would come to the rescue. They in fact cannot be tried in this case. There are many common witnesses in all the cases and the confessional statement has been considered and appreciated in another case. The said material cannot be allowed to be used again.
(m)
The order of the learned predecessor at Exh. 602 and Exh. 612 would bind this Court to an extent that the proceedings against these accused should have been dropped.
(n) (o) (p) (q) (r)
The recovery of arms is clearly a case of plantation. The discrepancy between despatch note and panchnama is a glaring example. No independent evidence is available to corroborate the contents of confession. None from the Hotel International has been examined so far. No independent support to the contents of the training, no mention of possessing arms in the confessional statement
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or A-21 was unwell at Alipur, the accused having travelled beyond Kolkatta, etc. which is clearly proving that the prosecution case is not proved beyond reasonable doubt. Exh. 2010 and Exh. 1403 related to retraction needs to be read and appreciated in favour of the accused. (s) The time for reflection was too short, inquiry of voluntariness by the Metropolitan Magistrate has not been done, police has taken witnesses for the statement under Section 164 of Cr.P.C., the accused have been returned to the police custody, the Notification under Section 4 of POTA has not been referred by any witness, none of the panch witnesses is worthy to be believed, there is no evidence that the case was not tacklable under ordinary law, mere recovery of the weapon is not sufficient to convict the accused, none of the panch witnesses are believable, the Lock Up Register and I.B. information and the draft charge respectively by PW 154, 162 and 194 have not been given, hence adverse inference against the prosecution is not to be drawn. All the accused need to be acquitted as it is a case wherein prosecution has not proved a single charge beyond reasonable doubt. (t) PW-57 is the Police Officer who has recorded Confessional Statement. According to him he has taken down the statement upon say of the I.O., it has been recorded by the Constable of the Crime Branch, only 5 minutes time for reflection was granted and that the Confessional Statements were given to the PSI of the Crime Branch, in some cases it were given to the writer of the witnesses, but however, the same are found in the custody of the I.O. Moreover, legal aid has not been offered to the accused, nothing about the police torture has been asked, no
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preliminary understanding has been given, no outward number has been given, the cover sent to the Chief Metropolitan Magistrate are not on record, which all would lead to conclude that the Confessional Statements have not been recorded in presence of this witness. (u) PW-65 is the another officer who has recorded the Confessional Statements, who too had talked with I.O. Mr. Singhal. This witness has given time of 30 minutes, A-44 has refused before the Judicial Officer which all show that the Confessional Statement recorded by this witness cannot be believed. (v) The Sanction Authorities have given Sanction without application of mind and that they have not produced the draft Sanction Order hence, this Sanction cannot be treated to be valid. (w) (x) Some of the Confessional Statements have been used in Tiffin Bomb Case hence, cannot be used over here. The L.A. has emphasized on the weaknesses of the oral evidences of the prosecution witnesses involving the respective accused to submit that there is no satisfactory and sufficient evidence against the respective accused. (y) The citations produced by learned Special P.P. Mr. Panchal are irrelevant and are not applicable to the present case as in some of the citations facts are different. In some of the case, citations produced by defence is of larger Bench and is later in point of time and that the prosecution case is well sound to be most improper, all the accused needs to be acquitted.
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7.
Learned advocate Ms. Nitya Ramkrishnan for Learned
Advocate Mr. I.D. Pathan for Accused Nos. 7, 30, 31, 45 & 46 has argued for the above referred accused as under : 7.1 Every act of terror is not waging war as has been held in Parliament attack case. This case cannot be termed to be a case wherein offence under section 121 of IPC can be said to have been proved beyond reasonable doubt. It is clear from the facts of the case that it is solely to take revenge with the Hindu community and that there is nothing on record to hold that the prosecution can be said to have proved that the accused has waged war against the Government of India. This is not the case of insurrection but it is purely a case of settling of personal account with a particular group of persons. It is therefore clear that the requisite of Section 121 of IPC is not satisfied in the case on the hand. Paragraph 269 to 284 of the Parliament attack case has been relied upon. 7.2 Agreement among the accused is the requisite of criminal conspiracy and mere knowledge about conspiracy is not sufficient to establish the offence of criminal conspiracy. One who does an illegal act with reference to criminal conspiracy can only be held liable for conspiracy being totally involved in the offence. Manifestation of agreement among the accused is necessary. Paragraph 85 to 102 of the Parliament attack case has been relied upon. 7.3 A-45 & 46 are brothers of known criminal Rasulkhan Party and that the prosecution has been miserably failed to bring on record
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any material by which their agreement with the other conspirators can be held to have been proved beyond reasonable doubt, not even the conduct of the accused Nos.45 & 46 has been shown to be such by which they were involved in the crime. At the most knowledge to them can be attributed, but then, mere knowledge is not sufficient to establish the offence of criminal conspiracy. There is no recovery or discovery from A-45 & 46 but, however, the only Confessional Statements have been secured by the investigating agency by employment of force, coercion etc. which should not be believed. 7.4 A-7 - In the judgment of another POTA Case and more particularly in the judgment of Tiffin Bomb Case this accused has not been held to be liable for the criminal conspiracy which needs to be considered in this case. The accused has been arrested, as shown by the prosecution, on 15/04/2003 but as a matter of fact this accused was illegally detained by the prosecuting agency from 7/4/2003. The guidelines of D.K. Basu has not been observed by the prosecuting agency in the case of this accused. The order at Exh.2007 and 2008 of the Habeas Corpus Petition filed by the relatives of this accused is clearly creating doubt against prosecution on the record. On 16/4/2003, this accused was produced before the concerned Judicial Officer when vide Exh. 2003 itself the accused has retracted on which date not only the accused has complained for improper treatment by the investigating agency but has even brought on record about his illegal detention from 7/4/2003. Exh.2010 which is dated 19/4/2003 is clearly showing that the accused No.7 was illegally detained.
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Confession of this accused is dated 29/4/2003 and even on 25/4/2003 vide Exh. 2003, paragraph 12 the accused has not shown his willingness to record any kind of confession hence, the Confessional Statement recorded after that is not worthy to be believed. On 30/4/2003, when the accused was produced he has retracted vide Exh. 2011 on the same date which is showing that the retraction was not belated one hence the confession of this accused should not be believed. The panchnama Exh. 676 & 677 cannot be believed since there is no arrest panchnama, the panch witness is a stock panch witness, the panch has not identified the accused hence in absence of proof the procedure of the panchnama before independent witness and when the accused was illegally detained, neither the disclosure nor the discovery can be believed in which case benefit of doubt should be given to the accused. PW-162 at paragraph 60 admits that he has not preparred Arrest Memo of A-7, there is no proof of lawful arrest of A-7 on 15/4/2003, the defence version of illegal arrest from 7/4/2003 which therefore should be believed. 7.5 Confessional Statements of any of the accused do not pass through test of truthfulness and voluntariness. 7.6 PW-57 has admittedly given only 5 minutes for reflection which is obviously insufficient time which is a dent on the Confessional Statement.
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7.7
A-30, 31, 45, 46 & 7 have not signed before PW-57 on their Confessional Statements, but have signed before PW-193 which is creating doubt about the statement to be voluntary.
7.8
PW-193 has not read over the statement before the concerned accused as he has not endorsed the same which creates doubt against the voluntariness of the Confessional Statement. A-30 has retracted vide Exh. 19 & 54-A respectively on 9/8/2003 & 11//2003.
7.9
In the Parliament attack case in paragraph 46 & 47, corroboration to the confession is held to be role of prudence hence, in absence of corroboration the Court should not believe the Confessional Statement.
7.10 A-30 & 31 were also in illegal custody. 7.11 Since there was a notice by Hon'ble Judge Shri Antani, as his Lordship then was, A-30 & 31 were shown to have been arrested on 15/7/2003, but as a matter of fact, they have been illegally detained prior to that. A-31 was PW-48 in Shri Haren Pandya case whose statement was recorded 2/7/2003 hence, it is not probable that the accused was arrested on 15/7/2003 hence the recovery from this accused on 15/7/2003 cannot be termed to be genuine, adverse inference against investigating agency should be drawn as the I.O. has not come out with any plausible explanation. 7.12 A-30 was not a free man on 15/7/2003 hence, it is not probable that he would be walking with A-31 on 15/7/2003. The fact of joint
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arrest of A-30 & 31 itself creates doubt, the benefit of which should be available to the accused. A-30 has not been identified by any of the witness hence, it cannot be believed that A-30 had been to Mumbai to meet Rasulkhan Party and it is he who has shown Hotel to Shri R.B. Joshi. In absence of any corroboration from any of the witnesses and even attempt by the prosecution to get the accused identified, the prosecution version against A-30 cannot be believed. 7.13 The oral evidence of the dropped witness could have been secured by the prosecution, but the prosecution fails to do that hence, adverse inference should be drawn against the prosecution. 7.14 No evidence whatsoever about the telephonic contact by A-31 of the Rasulkhan Party. The STD-PCO owner has not identified the A-31 hence, the prosecution version on this count cannot be believed. 7.15 The reflection time being too little, criminal conspiracy from the Confessional Statement is not available, the conspiracy of all the accused being the same, the benefit under Section 300 of Cr.P.C. is available to the accused, no discovery or recovery of the weapons from any of the accused, no agreement among the accused stands proved and when lot may doubts have been created by the prosecution, the benefit of the same should be granted to the defence hence, all the accused needs to be acquitted accordingly. 7.16 The L.A. has emphasized on the weaknesses of the oral evidences of the prosecution witnesses involving the respective
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accused to submit that there is no satisfactory and sufficient evidence against the respective accused.
8.
Learned Advocate Mr. S.A. Khan for Accused No. 25 has
submitted as under : (a) The accused was illegally detained from 11/05/2003, but thenafter he has been falsely shown to have been arrested on 13/05/2003. (b) The arrest memo Exh. 1995 therefore cannot be believed to be genuine and correct. (c) PW 28 is the panch witness of the arrest panchnama Exh. 727 who has not identified the accused and from the crossexamination, it stands revealed that he was not present while the proceedings of the panchnama were on-going. (d) PW 27, the panch witness of Exh. 1473 panchnama is a hostile witness who is apparently a pocket panch witness of the police whose version cannot be believed. Exh. 2040 is collectively exhibited for 3 of the charge-sheets of another cases produced by the accused along with the Further Statement where in all the charge-sheets, this PW 27 has been shown as witness which is supporting the case of the defence that he is a stock panch witness. Exh. 1473 panchnama is related to revolver and cartridge, the number of the said revolver mentioned in the panchnama and dispatch note is different from the number of revolver deposed by
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the PW 56 in his deposition and in work sheet Exh. 914. Hence the recovery of the said revolver cannot be believed. (e) PW 17 is also a pocket panch witness who has admitted to have not dictated the panchnama and to have not mentioned the measurement of the rifle. In the light of the Schedule-I of the Arms Rules, 1962, in case of rifle, Section 4 of the POTA cannot be said to be applicable. (f) PW 57 has admitted that he has called upon the writer of the Crime Branch, hence the secrecy of the confessional statement is lost and that is showing lack of free atmosphere which therefore cannot be believed. (g) The confessional statement at Exh. 950 is not recorded by PW 57 himself and that after recording of the said confessional statement, the accused has not been sent to the judicial custody. Thus, the confessional statement being in clear violation of Section 32 of the POTA, the said cannot be taken into consideration and even if the said is considered, the retraction made by the accused vide Exh. 49 and vide Exh. 1996, the said statement as was retracted, cannot be held to be voluntary and truthful, hence cannot be believed. (h) PW 62, 79, 84, 87 and 97 are all hostile witnesses who have not supported the prosecution case, hence their statement u/s 164 of Cr.P.C. cannot help the prosecution. Hence, the said witnesses can be termed to have not proved the prosecution case.
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(i)
PW 180 - Shri Vanar is the P.I. who has investigated qua this accused, but in the light of Section 51(b) of the POTA, only A.C.P. can be the I.O., hence the investigation cannot be termed to be legal investigation.
(j)
Exh. 1769, 1770 and 1470 are 3 Yadis issued by PW 199 to different P.Is. which is showing that the PW 199 has only issued Yadis and has not carried out any investigation.
(k)
No evidence against this accused was available to the investigating agency prior to his arrest as has been admitted by the I.O.
(l)
The local residents should have been taken as panch witnesses, but in none of the panchnamas, the local witnesses have been taken as panch witnesses, which is making the proceedings of the panchnama to be doubtful one.
(m)
PW 186 is merely identifying the signature of the then Chief Metropolitan Magistrate who therefore cannot be termed to have proved the confessional statement of the accused.
(n)
In the light of Section 165(5) of the Cr.P.C., the muddamal receipt should be issued for the recovery of the muddamal from the accused and that the said also should be informed to the concerned Magistrate, but it has not been done as has been admitted by PW 180 at para 25.
(o)
PW 194 is not the author of the sanction and that one who has signed the sanction order has not been examined, there is no signature of the Chief Minister of the State in the sanction order,
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hence the sanction cannot be termed to be valid and with application of mind. (p) The PW 200 is a Joint Police Commissioner who is not empowered to give sanction under Arms Act as required u/s 39 thereof. (q) All those who were present at Parimal Garden have not been examined and that independent witnesses have not been examined, hence the prosecution case becomes doubtful. (r) The FIR is belated by 17 hours and there is no explanation to it. The FIR therefore cannot be believed to be an admissible piece of evidence. (s) The confessional statement at Exh. 950 should be recorded by the PW 57 himself as required u/s. 32(1) of the POTA which has not been done. The reflection time given by the PW 57 as has been held in the Parliament Attack case is too short. In the confessional statement, there is no mention of rifle by the accused, the discovery of which therefore becomes doubtful. (t) The L.A. has emphasized on the weaknesses of the oral evidences of the prosecution witnesses involving the respective accused to submit that there is no satisfactory and sufficient evidence against the respective accused.
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(u)
After completion of all the extensive oral arguments, L.A. Mr. Khan has tendered a written submission taken on record vide Exh. 2139, which is in the tune of the oral submissions.
9.
Learned Advocate Mr. K. G. Shaikh for Accused No. 47 has
submitted as under : Vide Exh. 2135, a memorandum of written arguments has been tendered by L.A. Mr. K. G. Shaikh for the accused No. 47 highlighting the submission that no offence against the accused has been proved, the accused has been released on bail even prior to completion of one year, no recovery or discovery has been effected from the accused, the confessional statement has been recorded under coercion which does not help the prosecution and that there is no oral evidence which can book the accused who therefore should be granted the benefit of doubt. The L.A. has emphasized on the weaknesses of the oral evidences of the prosecution witnesses involving the respective accused to submit that there is no satisfactory and sufficient evidence against the respective accused. 10. Learned Advocate Mr. M. M. Shaikh for Accused No. 9, 27
& 48 submitted as under : (a) PW 38 - the panch witness of panchnama Exh. 783 is a stock panch witness and is not a reliable panch, he was even a panch witness in another Sessions Case No. 130/04, the said document has been attached with the Further Statement.
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(b)
The cartridge alleged to have been recovered from the accused in fact does not belong to suit to any of the weapons, hence it is a planted cartridge and that none of the witnesses involve the accused No. 9, hence in the light of the above referred discussion, the accused No. 9 needs to be granted benefit of doubt.
(c)
The accused No. 27 is submitted to have given his confessional statement, on record vide Exh. 978, but as is clear from the deposition of PW 57, the writers of the Crime Branch were present while the Further Statement was being recorded, the reflection time was too less and there was no free atmosphere. It is a case of clear violation of Section 32(5) of the POTA which guides to grant benefit of doubt to A-27.
(d)
The allegation against A-48 is to give firy speeches to provoke others, but then there is no evidence of any audio-video recorded speeches or oral evidence of any person from the audience. The case against the accused does not stand proved. Even confession concocted with coercion has been retracted. Exh. 232, the remand application and Exh. 260 makes it clear that there is absolutely no material whatsoever which can involve the accused No. 48 who also needs to be granted the benefit of doubt.
(e)
The L.A. has emphasized on the weaknesses of the oral evidences of the prosecution witnesses involving the respective accused to submit that there is no satisfactory and sufficient evidence against the respective accused.
(f)
After completion of all the extensive oral arguments, L.A. Mr. M.M. Shaikh has tendered a written submission taken on record vide Exh. 2146, which is in the tune of the oral submissions.
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11.
Learned Advocate Mr. J. M. Pathan for Accused No. 23, 24,
26, 38 and 53 submitted as under : (a) A-23 & A-24 have been falsely roped in the crime, they were shown to have been arrested on 13/05/2003 and have confessed their crime on 26/05/2003, but thenafter they were sent to judicial custody on 03/06/2003. The probability of the confessional statement to be voluntary and truthful is totally out of question. (b) As a matter of fact, both the accused were illegally detained and upon filing the Habeas Corpus vide Special Criminal Application No. 454/03, they were falsely shown to have been arrested to get protection from the Habeas Corpus. (c) Both the accused have respectively retracted vide Exh. 31 and 32 on 21/09/2003. (d) The Panchnama Exh. 719 cannot be believed, the panch witness does not name the accused or even does not identify the accused, the description of the muddamal does not match with the contents of the panchnama and the Court record, the recovery is not credible one, PW 38 admits to be stock panch witness and that the witnesses whose statements u/s 164 of Cr.P.C. were recorded, have not supported the prosecution case. As a result, nothing comes out against accused Nos. 23 and 24. (e) A-26 is the accused whose confessional statement at Exh. 951 has been retracted vide Exh. 49 and against whom none of the witnesses whose statements u/s 164 of Cr.P.C. have been recorded, have supported the prosecution case. Hence, the accused needs to be granted benefit of doubt.
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(f)
There is neither recovery nor discovery nor any oral evidence against A-38 and that the confessional statement obtained with coercion from him on 16/08/2003 has been retracted on 13/08/2003 and 26/08/2003 vide Exh. 33 and 92. The documentary evidence vide Exh 2077 with Further Statement creats doubt, the benefit of which should be granted to the accused.
(g)
In all the cases, there must be collusion between PW 57 and PW 199 and that all the while presence of constable of the Crime Branch is very much with PW 57, hence the confessional statement can never be voluntary. Even the reflection time was too short. Hence, the confessional statement of any of the accused should not be believed.
(h)
There is absolutely no evidence against A-53. The PW 75 has turned hostile whose statement u/s 164 of Cr.P.C. has not been supported by the witness, hence benefit of doubt even to this accused should be granted.
(i)
The L.A. has emphasized on the weaknesses of the oral evidences of the prosecution witnesses involving the respective accused to submit that there is no satisfactory and sufficient evidence against the respective accused. In nutshell, the accused Nos. 23, 24, 26, 38 and 53 need to be acquitted as there is no material against any of them.
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12.
HeardLearnedAdvocateMr.RizwanMerchantforL.A.Mr.
I.D.PathanforAccusedNo.54hashighlightedthefollowingpointsto submitthatA54needstobeacquitted. (a) The bone of the contention of the allegation against A54 is confessionofA42. (b) TheconfessionofA42itselfcannotbereadintoevidenceasitis violatingtheprovisionsofSection32ofPOTAandthatthesaid confessioncannotbeusedagainstthecoaccused. (c) Exh.1464istheconfessionofthisaccusedu/s164ofCr.P.C.In thisconfession,theaccusedhasnotconfessedoradmittedany overtactforwhichhehasbeencharged,mandatoryrequirements underCr.P.C.andevenu/s164ofCr.P.C.havenotbeenobserved, theendorsementbytheMetropolitanMagistratehasbeenplaced attheendwhichhastobeinthebodyoftheconfession,thewhole exerciseoftheconfessionincaseofthisaccusedandincaseof A42 does not appear to be an exercise between recorder and makeroftheconfession,butthereappearspresenceofaperson fromtheinvestigatingagencywhichisdoubtingthevoluntariness and truthfulness of both the confessions, twin tests of the confession of voluntariness and truthfulness since not satisfied, boththeconfessionscannotberegardedasconfessionitself,PW 171theJudgewitness,inpara6ofhisdeposition,hasrevealed to have violated the provisions of Cr.P.C. Hence, no material remainsagainsttheaccused.
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(d)
TheproposaltotheHomeDepartmentandthesanctionissuedby the Home Department are not in tune with each other, proper application of mind is lacking, the sanction is invalid, the note sheethasnotbeenproducedshowingtheapplicationofmindof the State viz. of the Hon'ble Chief Minister of the State or His ExcellencytheGovernorofGujaratandevenrulesofbusinessof theGovernmenthavenotbeenbroughtonrecord,whichareall showingthatthesanctionwhichisfoundationofthiscaseisillegal, invalidandbadinlawwhichvitiatesthetrial.
(e)
Thereferenceoftheword"primafacieevidence"intheorderof sanction,nonmentionofthemateriallinkingtheaccusedwiththe othercoaccusedisrevealingthatthesanctionwasamechanical sanctionandisnotbasedonapplicationofmind.
(f)
The accused has been arraigned for the reason that he is a brotherinlaw of Chhota Shakil. However, the prosecution has evennotprovedthesaidfactandevenifhadbeenproved,the saidfactisnotanincriminatingmaterial.
(g)
Theconfessionisamixtureofnarrationoffact,stateofmindofthe third person and involuntary admission of guilt which itself is suggestivethatsuchconfessionscannotbebasedonthematerial bywhichtheaccusedcanbeheldguilty.
(h)
PW195cannotbetermedtobeacompetentofficertoprovethe sanctionasSection50ofPOTAandSection196ofCr.P.C.require theHon'bleChiefMinisterand/orHisExcellencytheGovernorto accordsanctionwhicharesinceabsent,thesanctioncannotbe
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termedtohavebeenlegallyproved. (i) Noneofthephysicalovertactshasbeenestablishedandeventhe linkamongthedifferentaccusedhasnotbeenestablished.Hence, thethreadofconspiracyisthoroughlymissing,inabsenceofact andomissiontogivemeaningtotheconfession,concertorpre meditationamongtheaccused,theconspiracyremainsapaper allegation which does not prove the case of prosecution to be beyondreasonabledoubt. (j) Para284oftheParliamentAttackcasehasbeenrelieduponto submit that neither the conspiracy u/s 3(3) of the POTA nor offence of I.P.C. u/s 121 has been proved beyond reasonable doubtbytheprosecution. (k) Neitherthechargementionedintheproposalofthesanctionnor the charge itself has been proved by any legally admissible evidenceandthatnoothermaterialoriotaofevidencehasbeen broughtonrecordeventoremotelysuggestthattheaccusedwas involvedinthechargedoffences.
(l)
(m)
The accused needs to be acquitted in absence of any material againsthim.
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13.
LearnedAdvocateMr.L.R.PathanforAccusedNo.32has
submittedasunder: (a) likeincaseofA46,evenA32hasnotsignedbeforePW57and thattheConfessionalStatementofA32andA46areabsolutely not reliable without any corroboration and that they are illegally detainedandquathemSection32ofthePOTAhasclearlybeen foundtobeviolated. (b) ThereisabsolutelynomaterialagainstA32andthatashasbeen arguedbyhislearnedcolleagueMs.NityaRamakrishnanthereis evennomaterialagainstA46. (c) It has been further submitted that though A32 does not know Gujaratilanguage,hisConfessionalStatementhasbeenwrittenin Gujaratiandthattherequisiteofthepreliminaryundertakingdoes notstandsatisfiedevenincaseofthisaccused.Boththeaccused wereillegally detainedandthatPW85andPW86admits their presenceinthecustodywhichwasnotlawful.
(d)
(e)
Consideringtheoverallfactsandcircumstancesofthecase,A32 andA46shouldbegrantedbenefitofdoubtastheConfessional Statementswereapparentlynotvoluntaryasemergesontheface oftherecorditself.
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13-A Different citations have been relied and referred by learned Advocates for the defence to support their respective submissions which all are as under :
Sr. No.
Citation
Relevant Paragraph No. L.A. Mr. B. M. Gupta
On the topic
1.
1962 G.L.R. 107 = 1962(2) H.N. A Cri.L.J. 55 Miyana HasamAbdulla V/s. State of Gujarat 2007(3) G.L.R.2697 H.N. A State of Gujarat V/s. Vikrambhai Nanjibhai Gameti 2009 Cri.L.J. (NOC) 881 (P & H) Mahavir V/s. State of Haryana H.N. B
S. 154, 157 of Cr.P.C.
2.
S. 25 Indian Evidence Act Mere assemblage and recovery of weapon not sufficient Assembly cannot presumed preparation be for
3.
4.
AIR 1979 SC 1412 Para 4 & 5 Chaturi Yadav V/s. State of Bihar
5.
(2009) 3 S.C.C. (Cri.) 66 H.N. B & G Baldev Singh V/s. State of Punjab (1995) 1 S.C.C. 142 H.N. A P.K. Narayanan V/s. State of Kerala JT 2004(2) S.C. 332 Anter Singh V/s. Rajasthan Para 7 State of
Stock witness, need for conspiracy Criminal conspiracy S. 27 of Indian Evidence Act Evidence recovery weapon of of
6.
7.
8.
(2003) 12 S.C.C. 666 H.N. B Lalli alias Jagdeep Singh V/s. State of Rajasthan
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Sr. No. 9.
Citation
On the topic
AIR 1984 S.C. 1799(1) Head Note State of Punjab V/s. Gurnam Singh
S. 25 of Arms Act S. 5 of TADA and S. 25 of Arms Act Appreciation witness Panchnama of
10. AIR 1999 S.C. 49 Para 3 Sans Pal Singh V/s. State of Delhi 11. 2009(2) Crimes 195 (M.P.) Para 7 Hari and Ors. V/s. State of Madhya Pradesh 12. 1961 G.L.R. 664 H.N. D Naginlal Nandlal V/s. State of Gujarat
13. 2007(1) CACC 620 (S.C.) Para 16, 17, S. 27 of Indian Vikramjit Singh alias Vicky V/s. 21 and 24 Evidence Act State of Punjab 14. 1974 CAR 79 (SC) Raghunandan V/s. State of U.P. Para 9 Duty of Court Duty prosecution of
15. AIR 1971 S.C. 1586 H.N. B The State of U.P. and another V/s. Jaggo alias Jagdish and others 16. 1972 G.L.R. 914 H. N. 4 & 6 Ramanlal Madhavlal Kharva V/s. State of Gujarat 17. (2006) 1 S.C.C. (Crim) 600 Para 6 & 7 D. Gopalakrishnan V/s. Sadanand Naik and others 18. AIR 1972 Gujarat 148 Para 8 Soni Vrajlal Jethalal V/s. Soni Jadavji Govindji and Others 19. 1991 Cri.L.J. 2790 Para 13 Ram Lakhan Sheo Charan and others V/s. Stat of U.P. 20 2009(2) Crimes 156 (Bom.) Para 8 Shivaji Gaonkar V/s. State (Quepem Police Station)
Power Court
of
the
Identification by photo Procedural irregularity S. 164 Cr.P.C. S. 164 Cr.P.C. of
of
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JUDGMENT
Sr. No. 21
Citation
On the topic
1982 G.L.R. 116 -Pravinkumar Lalchand Shah V/s. State
Expert evidence
22. 1993(1) G.L.R. 288 Para 18 Zala Krishna Vijaysinh V/s. State of Gujarat 23 1992 Cri.L.J. 919 Para 22 Sampatmall Jain V/s. State of Assam AIR 1972 S.C. 110 Rahman V/s. The State of U.P. Para 21
S. 45 of Indian Evidence Act
Addition of POTA Sections S. 8 of Indian Evidence Act Abscondance of accused Expert evidence
24 25
1974 CAR 145 (S.C.) Para 29 Datar Singh V/s. The State of Punjab JT 1994(2) S.C. 627 Head Note Arjun Marik & Ors. Vs. State of Bihar AIR 1994 S.C. 1349 Head Note Joginder Kumar V/s. State of U.P. AIR 1997 S.C. 610 Ashok K. Johri V/s. State of U.P. Head Note
26
S. 157 Cr.P.C. S. 52 of POTA S. 52 of POTA S. 52 of POTA
of
27 28 29
2008(1) G.L.H. 493 (S.C.) H.N. B Som Mittal V/s. Government of Karnataka 1978 Cri.L.J. 226 (S.C.) Head Note Thomas Leon Harris V/s. State of Oklahama (1999) 5 S.C.C. 226 State V/s. Nalini & Others JT 1991(5) S.C. 373 Chandrakant Chumanlal V/s. State of Gujarat Desai H.N. M Para 5 & 6
30
Double Jeopardy
31 32
Double Jeopardy Confessional Statement Confessional Statement
33
2005(1) CACC 55 Para 2 & 4 Parmananda Pego V/s. State of Assam
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JUDGMENT
Sr. No. 34
Citation
On the topic
1994(3) S.C.C. 569 H.N. J, AQ, S. 5 of TADA Kartar Singh V/s. State of Punjab AS and confession 2005 S.C.C. (Criminal) 1715 No case is -(Only shown in list, but copy is not reported on attached) this page 2008(1) S.C.C. 601 H.N. B State of Rajasthan V/s. Ajit Singh and Others 2002(8) S.C.C. 73 H.N. A Ranjit Singh alias Jita and Others V/s. State of Punjab AIR 1995 S.C. 980 Head Note Shivappa V/s. State of Karnataka AIR 2007 S.C. 429 H. N. B Babubhai Udesinh Parmar V/s. State of Gujarat 1881 S.C.C. (Cri.) 905 Harendra Narain Singh Others V/s. State of Bihar Head Note and Criminal Trial Confession
35
36
37
Confession time
38 39
S. 164 of Indian Evidence Act Legal Aid
40
Criminal Trial
41
2009(2) Crimes 225 (S.C.) Para 8 State of Kerala V/s. Anilachandran @ Madhu and Others 2009(1) S.C.C. (Cri.) 372 H.N. A State of Uttar Pradesh V/s. Punni and Others 2008(1) Crimes 424 (S.C.) Para 8 Pulin Das @ Panna Koch V/s. State of Assam AIR 1990 S.C. 1962 Para 8 Niranjan Singh Karam Singh Punjabi, Advocate V/s. Jitendra Bhimraj Bijja 1994 Supp (2) S.C.C. 93 Head Note Asifali alias Montu Badeali Saiyed V/s. State of Gujarat
42
Inconsistencies
43
TADA
44
S. 3 of TADA
45
S. 3 & 4 of TADA
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JUDGMENT
Sr. No. 46
Citation
On the topic
1992 Cri.L.J. 2711 H.N. C Narendra Govind Mangela V/s. Inspector of Police, Virar Police Station and another AIR 1995 S.C. 1930 Head Note Pradeep Narayan Madgaonkar V/s. State of Maharashtra 2007 Cri.L.J.1386 Javed V/s. State of Maharashtra 1956 Cri.L.J. 226 State V/s. Fulchand AIR 1959 S.C. 707 State of M.P. V/s. Mubarak Ali AIR 1968 S.C. 1413 Gopal Krishnaji Ketkar Mohamed Haji Latif H.N. A
S. 3, 4 & 5 of TADA
47
S. 5 of TADA
48 49 50
S. 122 of I.P.C. of
Para 10 & 12 Proof sanction H.N. A
S. 5A of Prevention of Corruption Act S. 114(G) and 103 of Indian Evidence Act S. 313 Cr.P.C. S. 313 Cr.P.C. of
51
H.N. A V/s.
52
2009(1) G.L.H. 231 Head Note Vijaysingh Shreesudharsing Kusvah V/s. State of Gujarat AIR 2004 S.C. 4421= 2004 AIR H.N. B SCW 4764 Naval Kishore Singh V/s. State of Bihar AIR 2000 S.C. 1759 = 2000 AIR Head Note SCW 1806 State of Rajasthan V/s. Khemraj 2009 Cri.L.J. (NOC) 762 (All.) H.N. A Ram Niwas Shukla V/s. State of U.P. AIR 1974 S.C. 1596 Mattulal V/s. Radhe Lal H.N. B
53
of
54
S. 65 of Indian Evidence Act S. 42 of NDPS Act
55
56
Contradictory Decisions
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JUDGMENT
Sr. No. 57
Citation
On the topic
2006 AIR SCW 1529 H.N. C State of Maharashtra & Ors. V/s. Mana Adim Jamat Mandal
Art. 141 Constitution India
of of
L. A. Ms. Nitya Ramkrishnan for Learned Advocate Mr. I.D. Pathan for Accused Nos. 7, 30, 31, 45 & 46 58. Parliament Attack Case.
Para 272 to S.121ofIPC 282 Para 85 to 102 Conspiracy S.27ofIndian EvidenceAct S.27ofIndian EvidenceAct
59
(2008) 11 SCC 645 Inspector of H.N.B Police, Tamil Nadu v. Balaprasanna. (2007) 13 SCC 284 Keshav v. Para9 State of Maharashtra.
60 61
(1972) 1 SCC 249 Himachal Lastlinesof S.27ofIndian Pradesh (Administration) v. Shri para14 EvidenceAct Om Prakash. (1973) Cri. L. J. page 1023 H.N.A (Himachal Pradesh High Court) Para13 State v. Lavindersingh and Another. (1997) Cri. L. J. 2978 (SC) HeadNote Sahibsingh v. State of Punjab. AIR 2003 SC 4076 Salim Akthar Para8 @ Mota v. State of U.P. L.A. Mr. S. A. Khan for Accused No. 25
62
S. 8 of Indian EvidenceAct S. 25 of Arms Act S.27ofIndian EvidenceAct
63 64
65. 2003 Cri.L.J. 2302 (S.C.) Salim Akhtar V/s. State of U.P. 66. AIR 1983 S.C. 810 Ramji Surya V/s. Maharashtra
H.N. "A", No witness from Para 8 & 10 locality is summoned H.N. "A" of page 2302 Delay in FIR
State
POTA/12/2003
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JUDGMENT
Sr. No.
Citation
On the topic
67. 1997(3) Crimes 232 (S.C.) H.N. State of U.P. V/s. Bhagwan and page 233 Others 68. 1992(2) G.L.R. 1347 Meghaji Godadji Thakore another V/s. State of Gujarat 69 1999 Cri.L.J. 19 Sanspalsingh V.s State of Delhi Page 1347 & Para 3
Nonexamination of all witnesses Delay needs to be explained Lack independent witness of
70
2003(1) GLH-7 S.C. Para 43 & 44 Manner and Bharatbhai @ Jimi Premchand method of doing V/s. State of Gujarat things 2005 Cri.L.J. 3950 H.N. (X) State NCT of Delhi V/s. Navjot Sandhu L.A. Mr. M. M. Shaikh for A-9, 27 & 48 Reflection time
71
72
AIR 2002 SC 3247 H.N. A and Confessional Ranjit Singh alias Jita and others Para 11, 13 Statement V/s. State of Punjab & 20 (2008) 1 S.C.C. (Cri.) 287 H.N. B and Reflection Time State of Rajasthan V/s. Ajit Singh Para 11, 12 and others & 13 1996(3) G.L.R. 593 H.N. A and Sec. 164 Patel Himat Mohanbhai V/s. State Para 7, 9 & Cr.P.C. of Gujarat 10 L.A. Mr. M.C. Hakim for A-50 of
73
74
75
1997 S.C.C. (Criminal) 651 H.N. A Jaskaran Singh V/s. State of Punjab AIR 1995 S.C. 1930 H.N. Pradeep Narayan Madgaonkar, etc. V/s. State of Maharashtra AIR 1984 S.C. 1799(1) H.N. State of Punjab V/s. Gurnam Singh
S. 27 of Indian Evidence Act S. 5 of POTA
76
77
S. 25 of Arms Act
the
POTA/12/2003
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JUDGMENT
Sr. No. 78 79 80
Citation
Relevant Paragraph No. H.N. C H.N. A
On the topic
2005 Cri.L.J. 299 Vijay Singh V/s. State of M.P. AIR 1960 S.C. 490 State of Delhi V/s. Shriram Lohia (2009) 3 S.C.C. (Crim.) 421 Ganesh Gogai V/s. State Assam
S. 27 of Indian Evidence Act S. 164 Cr.P.C. of
Para 21, 24 S. 3 of TADA of & 26 and duty of the Court S. 3 & 4 of TADA Identification by photo
81
2004 S.C.C. (Criminal) 1793 Head Note Hira Bai Chibhabhai Tandel V/s. State of Gujarat 1994 S.C.C. (Crim.) 899 H.N. A C Kartar Singh V/s. State of Punjab para 368
82
14.
Vide Exh. 374, charge against 39 accused who from among
A-1 to A-48 are being tried has been framed u/s 120(B), 120(B) read with Section 121, 121(A), 122, 123, 212, etc. of IPC. The charge has also been framed under Section 25(1AA) and Section 27 of Arms Act. It has also been framed u/s 3(1)(a), (b), 3(3), 3(4), 4, 20, 21(2)(b) of the Arms Act, 1959 read with Section 120(B) of IPC and Section 22(3)(A) read with Section 120(B) of IPC. Vide Exh. 606, charge against A-50, A-53, A-54 and A-55 have been framed for the same section with addition of Section 29 of the Arms Act. Vide Exh. 1636, charge against A-56 has been framed for the same Section. Considering all the above charges, it seems convenient to frame the points for determination as under :
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JUDGMENT
POINTS FOR DETERMINATION : (1) Whether the prosecution proves beyond reasonable doubt that any of the accused has committed offences u/s 121, 121(A), 122. 123 and 212 read with Section 120-B of IPC.? (2) Whether the prosecution proves beyond reasonable doubt that any of the accused has committed any offence u/s 25(1A), 25(1AA), 27 and 29 or any other lesser offence under the Arms Act, 1959? (3) Whether the prosecution proves beyond reasonable doubt that any of the accused has committed any offence u/s 3(4) read with Section 120-B of I.P.C. and Section 10 of the POTA? (4) Whether the prosecution proves beyond reasonable doubt that any of the accused has committed any offences u/s 3(1)(b), 20, 21(2)(b), 22(3)(a), (b) of POTA read with Section 120-B of I.P.C.? (5) Whether the prosecution proves beyond reasonable doubt that any of the accused has committed any offences u/s 3(1)(a), 3(3) and 4 of POTA read with Section 120-B of I.P.C. and u/s 120-B of I.P.C.? (6) For Point No. 1 to 5, if yes, what offence has been committed by which accused?
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15.
My Findings are as under :
FINDINGS : (1) In negative for all the accused (Sections 121, 121(A), 122. 123 and 212 of IPC. read with Section 120-B of I.P.C.). (2) In negative for all the accused for offences u/s 25(1A), 25(1AA), 27 and 29. The accused A-1 to A-4, A-6 to A-10, A-20, A-22 to A25, A-30 to A-33 and A-50 (the nineteen) have been held guilty for commission of the offences u/s 25(1B)(a) read with Section 3 duly sanctioned by Section 39 of the Arms Act, 1959. Thus, the point is answered partly in affirmative and partly in negative. (3) In negative for all the accused (Section 3(4) of POTA read with Section 120-B of I.P.C and Section 10 of POTA). (4) In negative for all the accused (Section 3(1)(b), 20, 21(2)(b), 22(3) (a), (b) of POTA read with Section 120-B of I.P.C) (5) Accused No. 5, 21, and 42 have been held guilty u/s 3(1)(a), 3(3) of the POTA read with Section 120-B of I.P.C and Section 120-B of I.P.C. Accused Nos. 1, 2, 3, 4, 6, 7, 8, 9, 10, 20, 22, 23. 24, 25, 30, 31, 32, 33 have been held guilty u/s 3(1)(a), 3(3) and 4 of POTA read with Section 120-B of I.P.C and u/s 120-B of I.P.C. In the negative for the remaining accused.
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(a)
All the 44 accused have been granted benefit of doubt u/s. 121, 121-A, 122, 123, 212 read with Section 120-B of I.P.C, u/s.
25(1A), 25(1AA), 27, 29 of Arms Act and u/s. 3(4), 3(1)(b), 10, 20, 21(2)(b), 22(3)(a),(b) of POTA read with Section 120-B of I.P.C.
(b-1) A-5, A-21, A-42 are hereby held guilty u/s. 3(1)(a), 3(3) read with Section 120-B of I.P.C. and u/s. 120-B of I.P.C. (b-2) A-1, A-2, A-3, A-4, A-6, A-7, A-8, A-9, A-10, A-20, A-22, A-23, A24, A-25, A-30, A-31, A-32, A-33 are held guilty u/s. 3(1)(a), 3(3) and 4 of POTA read with Section 120-B of I.P.C. and u/s.120-B of I.P.C. The remaining accused except mentioned in (b-1) & (b-2) have been granted benefit of doubt under these sections. (c) A-1, A-2, A-3, A-4, A-6, A-7, A-8, A-9, A-10, A-20, A-22, A-23, A24, A-25, A-30, A-31, A-32, A-33 and A-50 have been held guilty u/s. 27(1B)(a) of Arms Act.
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PART-II
SANCTION, SECTION 52 AND SECTION 32 OF POTA
1. Vide Exh. 174 the then learned Special P.P. has tendered
an application to conduct POTA Case numbers 12/03 and 2/02 as joint trial which was granted by my learned predecessor. 1.1 Vide Exh. 373, the then learned Special P.P. has tendered
the application to conduct POTA Case numbers 2/04, 2/05 & 3/05 along with said POTA Case No. 12/03 by leading common evidence and to dispose of all the cases by the common judgment. 1.2 This application is dated 24/11/2005. Then after, from
16/01/2006 the oral evidence of PW-1 came to be recorded which was recorded as the common oral evidence for all the accused. 1.3 The common charge for all the accused on 1/12/2005 has
even been framed for the joint trial thus, in effect, a joint trial for all the accused has been conducted and all the accused were jointly charged and jointly tried. Thus, joint trial for all the cases against all the accused.
(A) SANCTION BY THE HOME DEPARTMENT :

Since the the case against the accused was for commission of offences against State and of criminal conspiracy, it was necessary to obtain sanction to prosecute the accused u/s 196 of the Cr.P.C. and since the offences have also been committed under the POTA, it was also necessary to obtain sanction, to prosecute the accused, of the State Government as required u/s. 50 of the POTA.
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(I)
(a) PW 197, at present, the principal Secretary of the State of Gujarat was at that point of time Principal Secretary of the Home Department as at that point of time he was holding the said charge as an additional charge. He is very senior officer, was in service from 1974 and has held different charges in the Government of Gujarat as Secretary and has now assumed the position of Principal Secretary of the State of Gujarat. (b) In his oral evidence, this witness has described the procedure adopted in the Home Department for granting the sanction to prosecute. He has deposed that whenever the proposal from the Police Department to grant sanction to prosecute used to send to the Home Department then right from the Deputy Section Officer, Section Officer, Under Secretary, Deputy Secretary, Secretary and then Principal Secretary used to participate in the process as the file moves from each one of them. After the Principal Secretary, the file moves to Minister and then to the Chief Minister of the State. The file used to be returned in the same channel in which it used to be sent. (b-1) The witness has also deposed that even in the present case, the procedure described by him was thoroughly observed, that the witness has received the proposal with accompanying documents, he himself had studied the proposal and the concerned documents, when the proposal was sent to the Minister, the said was satisfying all the requisites to accord sanction, the witness has applied his mind and was satisfied and upon his self
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satisfaction, the file of the sanction in this case was further prosecuted,. the sanction was then granted vide sanction order on record at Exh. 1663, his sanction order was granting sanction to prosecute 19 accused whose names have been mentioned in the attached annexure with the sanction order, the sanction is dated 01/07/2003, the sanction is duly signed by the Deputy Secretary which signature is being identified by the witness. (b-2) It has been further deposed by the witness that the proposal was sent to prosecute 29 accused, but since against the 19 accused, all the requisites were satisfied, the sanction to prosecute was given against the 19 accused (A-1 to A-19). However, for the remaining 10 accused, requisites were since not satisfied, it was sought to be completed. (c) The witness was cross-examined extensively. During the course of the cross-examination, the witness was required to submit the documents from his file. The said documents were the report of the I.O., 8 different papers respectively at Exh. 1697 and 1698, the report of the I.O., FIR, statement A and statement B, the two letters by the Commissioner of Police, all produced from the file have been exhibited as Exh. 1700 to 1705. (d) During the course of the cross-examination, the witness has admitted that along with the proposal, there was report of the I.O. which report was produced on record at the instance of the defence, the witness has further admitted that the documents received prior to the report of the I.O. were the basis for the decision was taken.
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(e)
The witness has also denied the suggestion by the defence that the witness is unable to state with reference to which proposal the sanction was granted. He has volunteered that the letter of P.I. Shri Waghela dated 17/04/2003, the letter of Shri Vanzara, letter of Shri Singhal, were all received along with the letter of the then Police Commissioner and that the decision of the sanction was made with reference to the said letters. These letters wherein the letter dated 18/04/2003, the proposal of the Police Commissioner, letter dated 17/04/2003 of In-charge Joint Police Commissioner Shri Vanzara written to the Police Commissioner, the letter of I.O. to D.C.P., the letter of the then P.I. (the first I.O. before invoking POTA) to his officer, etc. in all 8 letters have been produced at the instance of the defence and have been collectively exhibited as Exh. 1698.
(f)
The witness has denied the suggestion that the letters at Exh. 1698 were not placed before him. He has further deposed that the letter of Shri Tarun Barot, copy of FIR, the letter wherein application of IPC Sections have been mentioned and the letter by which qua 19 accused the POTA was invoked, were all the letters placed before this witness.
(g)
The report of the I.O., FIR, statement A and B and letters of the Police Commissioner dated 23/04/2003 and 09/05/2003 have all been produced at the instance of the defence which all have been respectively exhibited as Exh. 1700 to 1705. The witness further deposed that the proposal for 19 accused was prosecuted by him. The witness has also admitted that decision to grant sanction was dependent on Exh. 1698 letters and Exh 1700 to 1703 documents which are in all 27 pages and are the base for grant of the sanction.
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(h)
During the course of the cross-examination, the information has been elicited that the witness has studied the statement at Exh 1702 and 1703, the railway reservation chart and the register of the Star Guest House etc. have not been placed before him, the letter of the sanction was not read prior to its issuance, the witness has however specified and clarified that he did not find it necessary to call upon the I.O. for getting any requirement satisfied and that he has further volunteered that papers sought by him and supplied to him were found quite satisfactory by him upon which the sanction was granted.
(i)
In the humble opinion of this Court, it is not necessary that the witness before granting the sanction should be provided with all the documents, but what is necessary is that the supplied material satisfied the concerned officer. It is also necessary that the application of mind of the concerned authority should be apparent without which the sanction cannot be termed to be a legal or valid sanction. While perusing Exh. 1697 dated 26/06/2003, it becomes clear that after invoking the POTA, the report had been sent to the Home Department by the I.O. This is the report wherein all the facts have been narrated in great detail and that at the end of the letter, it can be seen that the copy of the complaint, the statements of different witnesses, statements of the accused, the statements of the face marks of the accused and the statements of weapons recovered from different accused was even sent to the sanctioning authority. This document is clearly manifesting that all the necessary material was sent to the sanctioning authority by PW 199, the A.C.P. I.O. after invoking the POTA against the accused.
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Vide Exh. 1698, 8 letters have been brought on record during cross-examination. This bunch of the documents contains letter by the then Police Commissioner of Ahmedabad with the recommendation to add the Sections of POTA, another letter is even by In-charge Joint Police Commissioner to the Police Commissioner to the said effect, the third letter is by DCP to the Joint Police Commissioner to the said effect, a letters by PW 199 the I.O. is also to the said effect and thenafter there is a detailed report of the I.O. Mr. K.M. Waghela, P.I. dated 17/04/2003. This report is containing all the facts of the case, description of the muddamal, relevance of the said description, the fact of recovery of weapons from different accused, the reference of different documentary evidence and the statements of witnesses recorded by the said P.I., the manner of commission of the offence, microscopic details of involvement of all the accused and their tie with banned terrorist organization. (j) In the humble opinion of this Court, this bunch of the documents is stated by this witness to have been gone through by him though these documents are all prior to the date of invocation of POTA, but then all these documents do give background in which POTA was applied and sanction was sought. While application of mind of different authorities at Home Department, recommendations on the Senior Police Officers, contents in all these documents would naturally facilitate the sanctioning authority to perceive the request to accord sanction in more effective way. The above documents cannot be basic but the executive mind cannot brush it aside. Moreover, as has been certified in the cross-examination, the other documents like Exh. 1697 dated 26/06/2003, Exh 1702 and Exh. 1703, etc. were studies by the witness which were basis to accord the sanction. The witness was satisfied upon reading the
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report of the I.O. at Exh. 1697 and the accompanying documents which can apparently said to be quite satisfactory and enough material. (k) The witness has also admitted that he has also based his opinion on Exh. 1700 to 1703. Exh. 1700 is the report u/s 157, Exh. 1701 is the detailed complaint on record at Exh. 1247, Exh. 1702 is a Statement "A" which is describing the role played by different accused in the crime which is for accused No. 1 to 19 whereas Exh. 1703 is Statement "B" which is suggestive of the role played by different accused qua the POTA offences which is for accused No. 1 to 19. This Court is of the humble opinion that the above described and discussed material is more than sufficient for any reasonable and prudent person to come to the conclusion that this is a fit case wherein the sanction as required needs to be granted. (l) The witness has admitted that he did not read Exh. 1704 and Exh. 1705, but then both the said letters are nothing but the forwarding letters of the Police Commissioner. As is clear from the record that even in absence of Exh. 1704 & 1705, the authority concerned can decide whether the sanction should be granted or not. (m) Exh. 1663 is the sanction order dated 01/07/2003. This letter contains annexure wherein the names of accused No. 1 to 19 have been mentioned and the witness has deposed that the sanction order was with reference to accused No. 1 to 19. If the sanction order is perused, the said is found to be of about 5 pages with discussion and description of all the material sent by the prosecuting agency and different concerned Senior Officers. It has
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the description of firearms, ammunition seized, the role of different accused and then in the concluding part as to the sanction has been accorded to 19 accused which all shows application of mind by the sanctioning authority. In the humble opinion of this Court, this sanction qua A-1 to A-19 sounds to be with absolute application of mind, valid and legal one as there does not seem to be any material or during the course of the cross-examination, no information is elicited from the witness by which it can be held that the sanction was not a legal sanction.
(II)
(a) PW 194 was working as Principal Secretary in the Home Department from 2003 to 2006. This witness has proved the sanction to have been accorded to A-20 to A-48 and A-50 and A53 u/s 196 of Cr.P.C. and Section 50 of the POTA. The witness has proved the sanction order at Exh. 1647 to Exh. 1651 for different accused to have been accorded during his tenure by analysing the proposal sent and received by his department, statement of the accused, report of the I.O., FIR, recommendation of the then Police Commissioner and draft charge-sheets. The witness deposed that he did study all the material and found the same to be satisfactory and sufficient, hence by adopting necessary procedure and by thorough application of mind, he has accorded sanction for all the accused. (b) However, in case of A-48, though the sanction order Exh. 1649 has been proved by the witness, but the said was referred as for 4 accused wherein this sanction order upon perusal was found to be only for accused No. 48. This Court is of the firm opinion that
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there seems to be some bona fide error or slip of tongue and that looking to the deposition of this witness in general and on appreciating the totality of the oral evidence of this witness and further noting the fact that A-48 has not cross-examined this witness, as the sanction order at Exh. 1649 qua A-48 has not at all been challenged by A-48 to be without receipt of proposal, the sanction order can be termed to be valid one. As far as examination-in-chief is concerned, all the sanction orders issued by the office of the witness can be termed to be valid, proper and with application of mind. The sanction order can legitimately lead to infer receipt of the proposal in the facts of the case on hand. It is however necessary to appreciate the impact of the crossexamination of the examination-in-chief and the total outcome of the evidence. (c) During the course of the cross-examination, the witness was assailed for not having received fake passport, ticket of IndiaPakistan and for not having called for all the papers to ascertain truth in the papers sent by the I.O. In the opinion of this Court, it is not mandatory for the sanctioning authority to call for all the documents and not to accord sanction without such documents. The test is satisfaction and sense of sufficiency for the material to accord sanction. Hence, the said cannot come in the way of lawful presumption running in favour of the prosecution u/s 114 of the Indian Evidence Act of the official act to have been regularly performed. (d) The witness has stated that he has based his opinion on the report of I.O., other statements and other material. The witness has admitted to have not done checking of the material sent to
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him, but then he volunteered that the sanction is being accorded upon being satisfied from the material sent, confessional statement of the accused and other things. At the instance of defence and during the course of the crossexamination, the documentary evidence from Exh. 1652 to 1664 (except Exh. 1662 & 1663) were brought on the record which were produced by the witness in the Court from his file brought along with him like PW 197. This gesture on the part of both the witnesses is revealing the adoption of fair procedure and the credibility of the witness and the process of their office. The witness was asked and the witness has produced during the cross-examination Exh. 1652, the report of the I.O., Exh. 53 & 54 respectively statement A & B, Exh. 1655 & 1656 statement A & B and letters, Exh. 1657 explaining document, Exh. 1658 to Exh. 1661 different letters related to the proposals and Exh. 1664 Notification showing privilege enjoyed by the witness for not producing noting of the file. (e) As discussed hereinabove, during the course of the crossexamination, the report of the A.C.P. I.O. dated 24/08/2003 at Exh. 1652, 1653 and 1654 as discussed, Exh. 1655 and 1656 the letters of Police Commissioner and of other officers, Exh. 1657 is again the report of the I.O. containing information about 20 accused viz. A-20 to A-39 as explained in the deposition as to how the proposal is to be termed for the remaining accused of A20 to A-39 only, different letters from the Ahmedabad City Commissioner, Joint Police Commissioner, Deputy Police Commissioner, I.O., etc. with reference to the proposal viz. Exh. 1658 to Exh. 1661, etc. shows the propriety of procedure. The witness has confirmed in para 24 that he has based his opinion
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on all the documents obtained in the cross-examination along with Exh. 1653 and Exh. 1654 - statement in addition to the statements of the witnesses and other literature. The witness has also admitted that in case of need of any compliance, the said information was being called for from the investigating agency. As deposed in para 27, all the concerned officers opined in the notings after perusing the papers in the file and these notings were being made in routine course of the office work and the sanction order is based on such notings. The witness further admits that Exh. 1663 is the sanction order for A-1 to A-19 and that Exh. 1647 is the sanction order for 20 accused (which as is clear from A-20 to A-39). The witness has admitted that the sanction of 39 accused was sought, but the sanction for 19 accused was accorded and for the 20 accused, the sanction was not at all accorded. The witness has explained that the said 20 persons mentioned in Exh. 1647 sanction order were not since arrested earlier, the sanction qua them was not granted which the witness has learnt while the process of according the sanction to A-20 to A-39. The witness has also specified that he himself is not sanctioning authority but is merely a processor, the mention of DCB Crime Police Station, Ahmedabad in the letter was explained to have been typed by his office for identifying the case at his office, in para 32, it has been clarified that in the sanction order, there used to be mention of the papers which have been studied, but it has also been volunteered that the papers which are not being mentioned were also studied to decide on the aspect of sanction. (f) The witness has produced the Notification of his Department dated 25/10//2005 at Exh. 1664 revealing the privilege to the Special Branch of Home Department from not producing the
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noting of the file. Hence, no adverse inference for non-production of the notings, as submitted, can be drawn. (g) In the light of para 33, it is clear that according to rule of business, Chief Minister of the State is a sanctioning authority. As has been volunteered, so many persons performing public duty are involved in process of decision making and that all such persons do not sign the sanction order. The sanction order is being signed by the authorized person as per rule of business. This clarification effectively meets with the submission that in absence of signature of the Chief Minister and in absence of signature of the witness in the sanction order, the sanction order cannot be held to have been proved. The witness has stated that the documents sent to him were certified xerox copies and there is no precedent of writing seen or scrutinized on the documents which have been gone through by the witness. These replies in the crossexamination show that the submission to not believe sanction has no merit and the presumption u/s 114 of the Indian Evidence Act continues to operate. (h) The witness has admitted that in the FIR, there was no mention of Section of the POTA, but as per the record, the POTA was not made applicable at the stage of FIR, but it was applied later, which later application of the POTA is a pointer to the fairness and unbias attitude of the prosecution agency. The submission of applicability of POTA not from the date of the FIR therefore finds no favour by this Court. (i) At para 47, the witness has again ascertained that vide delegation of authority and according to rule of business, the officer authorized to sign sanction order has signed the sanction order
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which also fortifies the above reasoning. (j) In case of A-50, the witness has accepted the sanction Exh. 1650 to have been issued after repealing the POTA and that the order is dated 16/02/2005. The point that the sanction order after it was prepared was not placed before the witness and was not been endorsed by the witness, has been clarified by the witness stating that the draft sanction order used to be placed in the file right from the beginning and that the witness and other such officers are seeing such order from the beginning. In the humble opinion of this Court, no information has been elicited from the witness by which the sanction order can be doubted or can be termed to have been suffering from any vices. At the instance of the defence itself, numerous documents have been brought on record. All these documents shall be discussed hereunder, but the fact which requires to be noted is that during the course of the cross-examination, the witness has not resciled from his earlier version, no material has been brought on record, which can be held to be such which comes in the way of according sanction against the accused, the notings of the respective officers in the file have not been produced since the office of the witness enjoys the privilege which therefore does not come in the way of the validity, legality and propriety of the sanction order. No doubt has been created against the appropriate procedure having been adopted in according the sanction. Hence, the presumption of the official act of according sanction to be appropriate continuously runs in favour of the prosecution which has not at all been rebutted by the defence in any manner. The suggestions of the sanction being stereo-type, without application of mind, etc. have been denied by the witness.
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The witness has added to have studied the file properly and he has even justified the sanction order to have been signed by the lawful authority to sign such order, in accordance with rules of business. The defence citation Sr. No. 49 was pressed into service to submit that the sanction cannot be termed to have been validly proved. In the cited case at para 10, it is clear that the signature of the sanctioning authority was admittedly not done in presence of the witness nor the witness was able to identify the signature but in the case on the hand the witness is a Senior I.A.S. Officer who had actively participated in the process and has identified the signature on the sanction order, hence in the facts of the case, this cited judgment at Sr. No. 49 has no application. (k) DOCUMENTS Exh. 1647, 1648, 1649, 1650, 1651 are all the sanction orders qua different accused as prayed by this witness. Upon perusal of all the orders, there appears Annexure in the order or mention in the body of sanction order the names of the respective accused. All the sanction orders spell in great detail the role of the accused, surrounding facts and circumstances, their link with other accused, background of the case, effect and impact of the case which all reveal the thorough application of mind and proper scrutiny of the material at each level. (k-1) In addition to discussion at Point (b) hereinabove, it needs a note at this juncture that as far as A-48 is concerned, the proposal has not been formally proved, but then the body of the sanction order
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does reveal the receipt of the proposal and scrutiny of the material as has been done in the case of the other accused. The concerned I.O. has stated to have sent the proposal as required under the law. The act of according sanction also does fortify the said fact. Moreover, A-48 has not challenged the version of sending proposal for institution of the proceedings against A-48. In light of all the said, it can safely be inferred that the proposal was very much sent even for A-48. Upon perusal of the documentary evidence at Exh. 1740 which is the proposal for other accused, there appears mention of having sent the copy of the complaint, the fact of recovery of firearm and statement A & B with reference to A-1 to A-48 to the sanctioning authority. This is also fortifying the inference that the proposal was sent qua A-48 and that or else the sanction ought not to have been accorded. Moreover, what is necessary is to prove the sanction, the proposal thereof can be inferred the said being official act and since the I.O. states on oath to have sent the proposal and when the said fact is not challenged by A-48. (k-2) Exh. 1652 is the proposal for A-20 to A-39, Exh. 1655 and 1656 are the two letters recommending the proposal to be allowed by the Joint Police Commissioner to Police Commissioner and by DCP to Joint Police Commissioner. Even Exh. 1659, 1660 and 1661 are also such letters which seem to have been written by the Joint Police Commissioner, DCP and I.O. to the Home Department to accord the sanction. Exh. 1657 is the document which as explained by the witness is clarifying that though there is mention of A-1 to A-39 in the list, but since A-20 to A-39 have been renumbered in handwritten manner by cutting it from Sr. No. 20 is the fact proving that the proposal was validly sent only for A20 to A-39.
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(k-3) PW 199 has proved in his oral evidence, his proposal for A-40 to A-47 sent to the Home Department wherein in the last paragraph of the proposal, it has been contended that all the necessary material mentioned in the paragraph including the confessional statement and the statements of witnesses u/s 164 of Cr.P.C. were sent to the sanctioning authority. Exh. 1653 and Exh. 1654 are the two statements titled as statement A & B. In both the said statements, the role ascribed to each of the accused, the evidence against each of the accused, date of the arrest, etc. have been mentioned and that in statement A, the role of the accused qua Sections of the IPC and in statement B, Sections of POTA have been mentioned. (k-4) Exh. 1658 is a letter of recommendation by the Police Commissioner to the Home Department to accord the sanction. Exh. 1740 is effectively a proposal qua A-50 as proved by PW 198 whereas Exh. 1948 is the proposal qua A-53 as proved by PW 199. Both these proposals are inclusive of all the material, background role played, etc. which are detailed proposals. (k-5) This Court has no hesitation to conclude that all the documentary evidence are indeed apparently sufficient to come to the executive conclusion of according the sanction as prayed for.
(III)
(a) PW 195 is the witness who was working as Principal Secretary in the Home Department of State of Gujarat and who deposed to have participated in the process of according sanction in response to the proposals to prosecute A-54 to A-56. The witness
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has specifically stated that upon receipt of the proposal, the file was routed through Deputy Section Officer to the Chief Minister passing through Section Officer, Under Secretary, Deputy Secretary, Secretary and the Minister. The witness has proved Exh. 1667 to 1669, the three sanction orders to have been issued to prosecute A-54 to A-56. (b) During the course of the cross-examination, the witness has deposed that while processing the sanction, he has seen the report of the I.O., statements of different witnesses and relevant literature which all were considered. The sanction as admitted was after repealing of the POTA, the signatories of the sanction order are still in the employment, the fake passports, documents of training, mobile instrument, email, etc. were not brought before the witness, he has however volunteered that he has based his conclusion on the report of the I.O. and other literature. The witness has denied the suggestion that the sanction order was cyclostyled, without application of mind, without evidence and material and was merely based on the contents of the proposal and report of the I.O. (c) In the opinion of this Court, the sanction to prosecute even after repealing of POTA can be granted as discussed hereinabove, the sanction orders can be proved by examining the witness and that the signatory of the sanction order is the signatory on account of rules of business who is subordinate to the witness and since the witness has personal knowledge of the whole process, the nonproduction of muddamal before the witnesses can never be termed to be fatal and since is not the mandatory requirement for according the sanction, the cross-examination on the said counts does not gain anything and that the witness is hereby held to
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have validly proved all the three sanctions as legal, proper, valid and with due application of mind. (d) (1) DOCUMENTS Exh. 1682 to 1684 are the three proposals as deposed by PW196 to be the proposals respectively for A-54 to A-56 all of which have been proved to have been made by PW 196. If all the said proposals are perused, the reference of all the earlier sanction orders, mention of the name of the accused, the witnesses and the fact linking the accused with the crime and their involvement in the conspiracy, seriousness and gravity of the offence, statement A & B to have been sent, statement of the concerned witness u/s 164 of Cr.P.C., the confession of the accused u/s 32 of POTA and confession u/s 164 of Cr.P.C. have all been mentioned in great detail in all the proposals. There is a mention of the relevant detailed material to have been annexed and sent to the sanctioning authority along with the proposal. All the above shows the requisite of the proper proposal and sufficiency of the material which can enable the sanctioning authority to accord the sanction. (2) Exh. 1667 is the sanction order for A-54 wherein the word used as finding of prima facie evidence was argued by the L.A. to be bad in law, but the said submission cannot be accepted in the light of the discussion done hereunder. Paragraph 4 of the order has details of the material qua the accused, the sanction order reveals the material, the reason for grant of sanction, name of the accused and the evidence perused. Exh. 1668 the sanction order for A-55 also satisfies the said needs. Upon perusal of Exh. 1669, the submission cannot be accepted that no material was
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placed before the sanctioning authority qua A-56. In paragraph 4, there is a clear mention about the role of the A-56 to have provided safe shelter in Hyderabad to the absconding accused to achieve the common object. The sanction order is having the mention of the name of the accused along with his role and perusal of the necessary material by the Sanctioning Authority. Thus, all the three sanction orders are found satisfactory and in accordance with law and settled norms.
(IV)
SANCTION UNDER ARMS ACT : Before discussing the point on the Sanction under Arms Act, it seems necessary to deal with the common submission that all the Sanctions viz Exhs. 1983, 1984, 1294, 1296, 2018, 2019, 2020 have been granted by the Joint Commissioner of the Crime Branch who in fact cannot be held to be empowered to grant the Sanction. (a) Section 39 of the Arms Act, 1959 provides that no prosecution shall be instituted against any person in respect of any offence under Section 3 of the Arms Act without the previous Sanction of the District Magistrate. Section 2 (d) defines the District Magistrate wherein it has been provided that in relation to any area if the Commissioner of Police has been appointed then the Commissioner of Police includes Deputy Commissioner of Police exercising jurisdiction over the whole or any part of the area. This is clarifying that the Police Commissioner can grant the Sanction under the Act in the City of Ahmedabad and he includes even Deputy Commissioner of Police, The Joint Police Commissioner is higher then the D.C.P.
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In responding to the cross-examination one of the witness has produced on record the circular at Exh. 2021. This is the circular by the then Commissioner of Police, Ahmedabad City. This circular by the Police Commissioner as contained therein has been issued for the purpose of presenting it in the Court of law in case of inquest. The order of the then Police Commissioner has also been attached in this document as part of the document wherein it has been directed that each Deputy Commissioner in Ahmedabad City shall exercise and perform all the powers, functions and duties of the Commissioner of Police, Ahmedabad under any law. If the circular Exh.2021 along with the order produced on record is seen and read along with Section 39 and Section 2 (d) of the Arms Act, the submission by the defence that the Joint Police Commissioner is not empowered to grant Sanction under the Arms Act is not found in accordance with the Act. The Sanction therefore cannot be said to be bad in law under the Act on this count. (b) PW-200 has proved the Sanction to have been granted by him for accused No's 1 to 47 and that the Sanction Order for accused Nos. 1 to 39 is at Exh. 1983 and that Sanction Order qua accused Nos. 40 to 47 is at Exh. 1984. PW-199 has proved to have sent the proposal for grant of the the Sanction for accused Nos. 1 to 39 vide the proposal Exh.1950 and vide Exh. 1951 for accused Nos. 40 to 47. (c) This witness was cross-examined by the defence wherein the witness has admitted that office of the I.O. and the witness is in
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the same building, there is no mention in the order of any discussion of the witness with the I.O., the witness volunteered it to be routine procedure. The suggestion has been accepted that in the Ahmedabad City area the powers to accord the Sanction to prosecute is with the Police Commissioner, the Sanction to be granted was under Section 39 of the Arms Act. According to the witness, it is not necessary to accord Sanction that if the weapons must have been recovered nor discovered from the accused, the FSL report was not available until the Sanction Order, the I.O. came to the witness along with all the material collected against the accused. The suggestion has been declined that the Sanction Order was not granted with application of mind. (d) This Court is of the opinion that in the light of the discussion made hereinabove, the witness being Joint Commissioner is empowered in law to accord the Sanction under the Arms Act. The witness opines that it is not necessary that if the arms have not been recovered from the accused the Sanction cannot be granted. It is the point which clearly is to show that the witness has acted fairly and without any malice and that the only possible effect of according Sanction to the accused from whom weapons have not been recovered is that the said Sanction would be useless, but that alone does not show lack of application of mind and on this count it cannot be held that the witness has not applied his mind. Moreover, when this is a case of criminal conspiracy and when the prosecution case is that the possession of the weapon is integral part of the conspiracy hatched by all the accused and the weapons in huge quantity have been recovered, the act of according sanction for the accused who were not possessing weapons is properly appreciating the material produced before the sanctioning authority and not non-application
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of mind, hence the sanction is legal and valid. From the crossexamination it emerges that the witness has gone through the material which was brought by the I.O., absence of the FSL report of the weapon does not seems to be of any value as what is primarily important is recovery, seizure or discovery of the weapon and not the condition of the weapon or the FSL report of the weapon for the purpose of according sanction, hence the report of the FSL was awaited is the point which cannot be termed to be a lacuna at all or it is not illegal or showing non application of mind by the Sanctioning Authority. (e) FROM DOCUMENTS : Exh.1950 for accused Nos. 1 to 39, Exh. No.1951 for accused Nos. 40 to 47 have been sent as proposal to accord Sanction as required under the Arms Act. These proposals have been sent by the ACP I.O. which all do have all the details of the case, the conspiracy, the total arms and ammunition having been recovered along with need for grant of the Sanction prayed, along with the gravity and seriousness of the offence committed by different accused. These proposals are also describing respective roles played by the respective accused. (f) Vide Exh.1983 and 1984 the Sanction for accused Nos. 1 to 39 and 40 to 47 have been granted by this witness. Both the Sanction Orders clearly shows the scrutiny of the material and the application of mind by the Sanctioning Officer. The fact that the office of the ACP I.O. and the Sanctioning Officer is situated in one building does not create any doubt in the judicial mind because the said would be rather facilitating the Sanctioning Officer to call upon the I.O. in case of need or the material or the file etc. Both these Sanction Orders are not invalid or illegal in any
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way and are found to be proper, legal and valid on the face of the record. (g) PW-159 has deposed that during the year of 2002 to 2005 he was Additional Police Commissioner in Crime Branch, Ahmedabad, at which point of time, he has received Exh.1293 & 1295 respectively being proposals to accord Sanction against accused No.48 & 50 to prosecute them under the Arms Act. As is clear on perusal both these proposals, as discussed in the point No.(a) are containing sufficient and satisfactory material. In case of Exh.1295 for the accused No.50, it is even been contained that the FSL report has yet not been received, the description about the weapons seized, the panchnama thereto, accompanying documents etc. all have been contended to have been sent to the Sanctioning Officer. Proposal itself specifies the material which can be termed to be sufficient to consider the issue of grant of the Sanction. During the course of cross-examination the witness has been assailed on many counts. What is emerging from the cross-examination is that the witness was Supervising Officer in investigation of many grave and serious offences being Officer of Crime Branch and A.T.S., the witness had an occasion to deal with the conspiracy to murder political leaders, the information by Central I.B. and State I.B. was usually received by H.O.D. and in case on hand the said has been percolated unto the Sanctioning Officer, being the then D.C.P. Crime Branch, the witness has not got any direct information related to this crime, the message of Central I.B. and
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State I.B. is not received through Fax, E-mail or by wireless mode, witness has volunteered that such messages being highly confidential usually comes from I.B. to the H.O.D. and the information received has not been jotted down anywhere which was the oral information. (h) In case of accused No.50, during the cross-examination the witness has stated that he does not remember as to which FSL reports were read by him while according Sanction under Exh.1296, the witness has shown his inability to state as to whether any report was received by him about the working condition of the pistol and cartridge recovered from accused No.50 as admitted. The report Exh.1213 of the FSL was not received at the time of Sanction. The submission of non-application of mind of this witness on the aspect of contention in the Sanction Order about the FSL is not found to be acceptable when the witness has clearly stated that he does not remember as to the FSL report was whether available before 4/6/2005 or not and that FSL report Exh.1213 was not received at the time of granting Sanction. The sentence in the cross-examination in form of opinion to the suggestion that the Sanction against the accused was granted without checking the FSL report cannot be read in isolation, what is needed to be seen is the overall impact of the cross-examination. In the humble opinion of this Court, the overall impact of the cross-examination is that the witness did not remember as to whether the FSL report was received before 4/6/2005 or not and that he is sure about the fact that the FSL report at Exh.1213 was not received at the time of Sanction hence it cannot be accepted that the witness has not applied his mind and has granted mechanical Sanction when
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receipt and consideration of FSL is not too vital. (i) Exh.1294 & 1296 are the Sanction Orders respectively accorded to prosecute accused No.48 and 50 under the Arms Act, Both these Sanction Orders show scrutiny of the material, analysis of the facts and circumstances, consideration of the role played by the accused along with the history and surrounding facts and circumstances on the case to have been considered by the Sanctioning Authority. Upon plain reading of both these Sanction Orders, they neither appeared to be stereotyped nor without application of mind. The judicial conscience is satisfied that the Sanction has been granted in both the cases in a very satisfactory manner and after thorough analysis of the facts. (j) PW-201 is the witness who has proved the Sanction Orders at Exh.2018, 2019 & 2020 respectively accorded to prosecute the accused Nos.53 to 56. PW-199 has sent the proposal of Exh.1949 for the accused No.53. PW-196 has tendered the proposal on record at Exh.1685 for the Sanction to prosecute accused No.54 and Exh.1686 to prosecute accused No.56, PW-196 has also sent the proposal for accused No.56. These are all the 4 proposals respectively sent to the concerned Sanctioning Officer by PW-199 and PW-196 which they have proved in their oral evidence on oath. Since as far as accused No.54 is concerned the Sanction has not been accorded no use of discussing the worth of the proposal, but the fact remains that the proposal even qua this accused was sent.
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(k)
For the remaining 3 proposals it needs to be noted that all the 3 proposals have all the requisites which previous proposals had which describes all the details related to the offence, involvement of the accused concerned the surrounding facts and circumstances of the case and that it is clear that all the necessary material which fortifies the Sanction has been found on record.
(l)
This witness was cross examined by the defence, the witness states that he did study the proposal, discussed with the I.O., the Sanction has been accorded upon satisfying the requisites of Section 39 of the Arms Act, the statement of witness Tanvirkhan recorded under Section 164 of Cr.P.C. was found to be sufficient evidence qua accused No.53 as deposed by this witness in his cross-examination, the witness also states that he might have sought for more material from the I.O., witness admits that in the case of this accused no recovery of any firearms was made.
(m)
The witness was unable to state as to on which date his office had received the proposals Exhs.1686 & 1687, the witness was assailed on the aspect of Date, Inward Number, Outward Number etc., the suggestion based on Exh.1686 was made that the No.722/07 mentioned therein is the Outward Number of the office of the I.O. and that in the case of proposal Exh.1687 the said number is 1352/07 which suggestion has been replied in affirmative by the witness by which it is clear that there were Outward Number and Entry Number in the said proposals.
(n)
This witness was also assailed on his empowerment to accord Sanction, the witness has referred and relied on the Notification (which is on record vide Ex.2021 discussed hereinabove), the
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witness has also volunteered that he made mention of this Notification in his Sanction Order, the witness also admits that no recovery of firearms have been made from accused Nos. 55 & 56, the witness has agreed that in case of firearms the evidence of fingerprints is important and that if provided in the said Act such evidence should be obtained, the witness has specifically stated that the documentary evidence and the statements were received by him from the I.O., necessary documents were called for from the I.O. along with 2 proposals, the complaint, FSL report, the earlier Sanction Orders etc. were sufficient and the other papers were also called for by the witness, decision of according Sanction was not granted only basing upon proposal, but the accompanying literature or the other literature was also required to be seen, the evidence produced along with the charge-sheet was the evidence against accused No.55 & 56, the name of accused No.56 was not there in the complaint. The suggestion by the defence lawyers that the Sanction was accorded in routine course, was without application of mind, was in accordance with the previous draft of the Sanction and were according to the draft Sanction have been denied by the witness. (o) In the humble opinion of this Court, sending the proposal and issuance of the Sanction Order being the official act are presumed to have been done in appropriate way, this presumption unless rebuted the said continues in favour of the prosecution. It is true that in case of the accused from whom the firearms and cartridges were not recovered since cannot be tried under the Arms Act the proposal should not have been sent or the Sanction should not have been granted, but in the humble opinion of this Court the I.O. in sending proposal and on the part of the
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Sanctioning Officer granting Sanction seems to be merely acting cautiously which seems to be aimed to avoid the situation of any kind of technical defects as the accused are facing vicarious liability which liability for the act and commission done by the coaccused also binds the accused and that being so, the act of the Sanctioning Authority of granting Sanction for whom it was sought cannot be termed to be non-application of mind, it is rather to be termed as cautious application of mind, hence the otherwise valid Sanction cannot be thrown away on such grounds. (p) Another submission based on Section 53 of the POTA is to the effect that as required under Section 53(1)(b) the fingerprints has to be obtained, but if Section 53 as a whole is read it is the Section which provides for adverse inference against accused which would be helpful to the Court if report of fingerprint are found on the weapons recovered. The Section nowhere provides that in absence of fingerprint evidence the accused cannot be held guilty hence the submission is found meritless. The fact that the name of the accused NO.56 is not shown in FIR is of no relevance in the present case as it is during the process of investigation, offence against different accused came to be revealed hence just because their names are not been shown in the complaint cannot be said to be sufficient to hold the Sanction to be illegal or invalid. (q) What is important to be noted is no Sanction Order against accused No.54 has been issued hence the proceedings against accused No.54 under the Arms Act would be without jurisdiction and the same needs to be accordingly considered.
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Exh.2018, 2019 & 2020 are the Sanction Orders respectively for accused Nos. 53, 54 & 56. As the Sanction Order on the face of it reveals proper application of mind, analysis and scrutiny of the material against the accused on record, justification and need of according the Sanction etc. is mentioned in the Sanction Orders and the Sanction Orders are proved through oral evidence. (r) Moreover, the Sanction Orders have clearly set out fact constituting the offence, the prosecution proves all necessary material and facts as have been mentioned and as is required for granting Sanction in the proposal which proposal were placed before the Sanctioning Officer, there is clear mention of the name of the accused and the provisions of law under which the accused are to be prosecuted, in case of the accused from whom possession of the firearm was found without valid licence have all been mentioned with detail, the Sanction Orders did have all the material which all have been validly proved by the Sanctioning Officer Witnesses who have been examined by the prosecution. (s) It is true that Sanction under Section 39 of the Arms Act ought to have been granted in case of the accused from whom recovery of the firearms from the possession of the accused without valid licence was found as the Sanction should be granted in case where the accused were found in possession of the firearms without valid licence, but in the opinion of this Court in peculiar facts and circumstances of this case, according Sanction even for remaining accused was out of over cautious approach and as discussed above it cannot be held not to be non-application of mind and even this point cannot be held to be against the prosecution as this point alone is incapable to rebute the presumption running in favour of the accused by which when read
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with all the other material it can be held that the Sanction is valid and legal. (t) Considering all the above discussion, this Court is of the opinion that except in case of accused No.54 the Sanction was granted for all the remaining accused which is however needs to be considered for the accused from whose possession the prosecution proved beyond reasonable doubt to have found firearms without valid licence. In light of the said fact, this Court is fully satisfied that the Sanction Orders under the Arms Act granted in case of the accused who were found to be in possession of the firearms without valid licence was completely lawful, valid, proper, with application of mind and is not suffering from any lacuna hence it is held to be absolutely in accordance with the Arms Act.
(V)
GENERAL FOR THE SANCTIONS UNDER ARMS ACT, UNDER POTA AND UNDER Cr.P.C. (1) It is true that in absence of sanction u/s 196 of Cr.P.C. and Section 50 of POTA, the Court does not have jurisdiction to take cognizance and to try the charged offences. The sanction is a precondition for taking cognizance by the Court. (2) In the instant case, the relevant sanction orders have been produced and proved by credible, clinching, sufficient and satisfactory evidence which shows the material was considered, the sanctioning authority at every level to have applied mind and that the sanction was accordingly accorded which all in fact is sufficient to hold the sanction valid. The plea of defects raised in
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different sanction orders is not worthy to be accepted as the act of according sanction is the act done in executive capacity and not as judicial act. There is indeed no need of deciding legality of the evidence produced before sanctioning authority. The only object for Sanction is to secure that the prosecution should not be frivolous or needless. It is apparent from the sanction orders reading it with the overall material that the prosecution is neither biased nor frivolous nor needless one. (3) L.A. Mr. Gupta for the defence has relied upon the judgment reported at 1956 Cri. L.J. 226 at Sr. No. 49 of defence citation to submit that mere production of the document is not sufficient and that it was necessary to prove the sanction by examining the sanctioning authority. When in the case on the hand, it is an admitted position that in both the cases, viz. sanction by the Home Department and sanction under the Arms Act, the responsible senior officers as sanctioning authority have been examined by the prosecution and through whom the sanction orders have been proved, the cited judgment therefore cannot have any application in the present case as it is not the case of mere production. As can be seen from the record, in all the cases, the proposals were duly sent, the record was scrutinized, the application of mind at all levels is apparent, in case of Arms Act, pre-discussion with the I.O. has been contended, senior IAS Officer working as Principal Secretary have been examined, the sanction is not found to have been granted mechanically, the extensive and detailed cross-examination has not resciled the witness officers from their version, no defence worth considered can be termed as rebuttal to the presumption of propriety to the official act has been brought on record. The proposals contain name of the accused, date of their
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arrest, the other material, the proposals have been routed through proper channel, the concerned officers have deposed of their selfsatisfaction and justification to accord the sanction. The sanction granted under the Arms Act and the sanction granted under the Cr.P.C. and POTA are hereby held by this Court to be valid, proper, legal, with application of mind and not mechanical one, without application of mind, etc. as has been submitted by the defence. While parting on the subject, it sounds fitting to note that the sanctioning authority only needs to decide whether the sanction should be accorded or not and that their self-satisfaction is quite important as the sanctioning authority is not expected to deliver judicial verdict or to judge truth in the material placed before him. All the sanctioning officers therefore have been found by this Court to have done the work satisfactorily, properly, legally and with their thorough application of mind which they were expected to do. All the witnesses were truthfully giving account of the proceeding adopted at their offices. The prosecution is held to have proved the sanction to be with all requisites beyond any reasonable doubt.
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(B)
FINDING ON COMPLIANCE OF SECTION 52 OF POTA:
Medical :1. Exhs. 1906 to 1944 are in all 227 certificates of injuries issued from V.S. Hospital at Ahmedabad when the accused were taken by the I.O. for Medico Legal Check-up while were in police custody as has been directed by the Hon'ble Supreme Court. As is clear upon perusal of these certificates, it seems that the accused used to be thoroughly checked-up by different Doctors on duty, the certificates were then been endorsed as 'verified' by the R.M.O. and even in some of the cases the accused were also referred to different Experts for their ailment. 2. It is worthy to be noted that different Police Officials used to carry the accused. 3. As is clear from these certificates, the accused were properly examined by the concerned Doctors. The specific complaints like Vertigo, Common Cold, Fever, Loose-Motion, Vomiting, DryCough, Depression, Giddiness, etc., usual complaints like Bodyache, Headache, Weakness and even the ongoing complaints for last 2 years as have been mentioned in the medical papers seems to be noted as were reported by the accused and were attended and in the case medical advice was also given to the accused. 4. The note in some of the certificates of 'no external medical treatment is required', 'no external mark of injury', 'no physical injury' and normal temperature, B.P. and Pulse are written.
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In some of the cases, as since were required, the medicines were also prescribed to the concerned accused. 5. In case of accused No.7, the certificate Exh.1912 shows that on 1/9/2004 he was taken to Hospital twice in the morning as well as in the evening and then after on 18/9/2004. 6. Medical certificates upon the direction of the Learned Predecessor have been obtained which are in case of accused No.2 viz. Exhs.129 & 149, in case of accused Nos. 5 & 10 Exh.140, in case of accused Nos.6 & 8 Exh.71, in case of accused No.7 Exh.351, in case of accused No.42 Exh.106, 107 & 114, in case of accused No.17 Exh.114 & 143, in case of accused No.17 & 24 Exh.143, in case of accused No.30 Exh.139. These are all the Medical Certificates in cases when different accused were referred to either Jail Dispensary or were taken to V.S. Hospital for Medico Legal Check-up to comply the direction of the Hon'ble Supreme Court. It is observed that as and when the accused had complaint for any ailment he was examined by the Doctor and the endorsement of no external mark of physical injury has been then recorded. VISIT OF LEARNED ADVOCATES AND RELATIVES :7. Exhs.1851 to 1865 are all the different documents in form of visiting reports or the applications having been made by the Learned Advocates for the accused or even relatives of the accused. These applications are from 6/4/2003 to 11/12/2006 which would show that prior to application of POTA and even after
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POTA and in the tenure of different I.Os., same procedure was adopted. (a) Learned Advocates Mr. J.S. Pandey, Mr. I.D. Pathan, Mr. P.V. Panchal and Mr. Hitesh R. Patel from Mumbai seems to have met different accused as is clear from different visiting reports tendered by these Advocates. (b) Exh.1851 is the visiting report by Learned Advocate Mr. I.D. Pathan, who until the day also represents many of the accused, on 6/4/2003. In this report Learned Advocate states to have visited the accused, to have conversation with the accused, to have guided the accused, to have learnt upon inquiry from the accused that they have no difficulty whatsoever. (c) Exh.1852 by another Learned Advocate, wherein also along with other contents, report that the accused were not subjected to any physical or mental torture has been included. (d) Exh.1853 dated 9/4/2003, Exh.1854 dated 10/4/2003, Exh.1858 dated 12/4/2003 are more or less repeating the contentions in different ways. In some of the applications through these Learned Advocates, accused have expressed their satisfaction and have conveyed that they have no complaint against police. (e) One such visiting report at Exhs.1856 & 1857 is related to accused No.7 who has conveyed to have no difficulties in response to the inquiry by the respective Learned Advocate. (f) Exhs.1866 to 1869 are such reports by relatives of accused Nos.42, 44 & 47 who were Mother-in-law, Father-in-law, Aunty,
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Mother, Mother & Brother, Aunty & Uncle, Wife, Brother-in-law etc. (g) Even in the record of the learned Metropolitan Magistrate Court, many applications of the learned Advocates are found to take visits of the accused. 8. This Court is of the opinion that in response to the submissions before the Learned Metropolitan Magistrate at the time of the Remand, a specific order to the Investigating Agency to allow the Learned Advocates to meet with their clients was passed which fact is clear from Exh.1852, a report by Learned Advocate wherein he has mentioned the same. The above fact reveals that the Learned Advocates, their guidance and thus legal service to the accused was available while they were in police custody on Remand. When the visiting Learned Advocates themselves are clarifying in black and white about no physical or mental harassment to the accused, the submission of illegal detention of any accused coercion, torture etc. does not sound to be probable and this Court therefore cannot believe the same. The Learned Advocates for the accused would have made necessary application had their respective clients been kept in illegal detention or were subjected to coercion or torture. WRITS :9. This Court humbly but firmly believes that mere filing of different Writs and then after withdrawing the same cannot lead to legitimate inference of illegal detention. No doubt is created in judicial mind qua non-compliance of provision of Section 52. The relatives of the accused ought to have taken findings from the Courts in legal proceeding to believe this Court that there was
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illegal detention of the respective accused. 10. It cannot go out of the site that the presumption of the official act to have been done properly when is in favour of the Investigating Agency, it would be unsafe and mocking upon the presumption to believe only upon submission at this stage of final argument that the respective accused was kept in illegal detention etc., there is absolutely nothing on record which can guide this Court that it is probable that the accused might have been kept in illegal detention when relatives and Learned Advocates are freely meeting the accused. The fact of illegal detention of the respective accused or of any other accused would have immediately surfaced had there been illegal detention as complained. CUSTODY / ARREST MEMO :11. Section 52 of the POTA Act is to the effect of preparation of Custody Memo, intimation of right of legal services, intimation of the arrest of the accused should be communicated to family members or to relatives or to any other person by telegram, telephone etc. and that such intimation should be recorded under the signature of the accused and the accused should be permitted to meet his Learned Advocate. 12. At this juncture, it is fitting to note that Learned Advocates for some of the accused have submitted about illegal detention of the respective accused, showing the detention on wrong date, physical and mental harassment to the accused and by way of Further Statements some of the accused have also conveyed this Court about their illegal detention.
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13.
This Court has examined the aspect. It is found that with reference to accused Nos. 1 to 5, 8 to 10, 16 to 27, 30 to 33, 38 to 48, 50 & 53 to 56, the arrest memo is very much on the record which either during the course of cross-examination was exhibited or it is found from the record of Learned Metropolitan Magistrate Court. Even original fax of A-16 to A-19 intimating their arrest, along with receipt, have been produced vide list Exh. 2174. Thus, qua these accused the record of their arrest can be seen as it should be.
13.1 In case of accused Nos. 34 to 36, the compilation at Exh. 5 & 6 and more particularly, Affidavit of the then P.I. Shri Chauhan dated 28/7/2003, is clear that relatives were properly informed as so was stated on oath before my Learned Predecessor by the Police Officer and there is no reason to disbelieve the same. 13.2 In case of accused No.8, Exh.2013 is taken on record during the course of the cross-examination which is the Arrest Memo, wherein, as has been submitted the date and time of the arrest has not been written. The note used by PW-162 during his deposition has been taken in sealed cover on record during crossexamination. This note shows the date and time of the arrest of A8 to be 18/4/2003 between 16:00 to 16:30 hours. This tallies with the Case Diary while taking aid as permitted in Cr.P.C. 13.3 The Arrest Memo of accused Nos. 6 & 7 has even been forcefully submitted to be not on the record. (a) During the course of the cross-examination, documentary evidence at Exh.2009 has been taken on record at the instance of defence. If this document is perused, it is authored by PW-162 which seems to be Production Report
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for A-6 & A-7. In this Production Report, the time of the arrest of A-6 has been shown to be 15:30 hours of 15/4/2003 and the time of the arrest for A-7 has been shown to be 16:30 hours of 15/4/2003. The aid of the Case Diary removes the doubt of the date and time of the arrest of the accused to be other than this. Not only this, but as has been recorded in the Rozkam of this case dated 25/7/2008, the use of note by PW-162 while deposing in the Court as has been clarified in the first line of the cross-examination at paragraph 24, PW-162 has stated that he has used note for his deposition. After this note is perused, it becomes clear that the date and time of the arrest of A-6 & A-7 shown in Exh.2009 totally tallies with this note apart from Case Diary is having the said mention. Further lastly vide list Exh. 2174 certain documents have been placed on record by the prosecution. Though not formally proved, only with the view to search truth, these documents have been perused wherein copy of arrest memos of A-6 and A-7 are found at Sr. No. 1 & 2. These arrest memos seem to be genuine wherein safeguard of Section 52 of POTA are totally found to have been complied, hence no doubt is left in judicial mind qua preparation of arrest memos of both the accused and intimation to family members of arrest under signature of the accused. In the papers sent by Learned Metropolitan Magistrate Court also the application of accused for legal service,
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medical treatment etc. have been found to have been allowed by the Learned Metropolitan Magistrate Court. This exercise therefore thoroughly satisfies this Court that though in the Arrest Memo of A-8 date and time is not written, the same seems to be ministerial error and there does not seems to be any malice or illegality in not writing the same when the same appears to be genuine and correct from the other part of the record. (b) Much reliance was placed on Exh.2009 document and the endorsement made therein by the Learned Metropolitan Magistrate. The Stamped endorsement reveals about no complaint made by A-7, whereas the handwritten endorsement written in the margin shows about improper attitude. The A-7 seems to have made grievance that his arrest was on 7/4/2003. Upon scanning Exh.2007, a copy of the Writ Petition preferred by the wife of A-7 which is Special Criminal Application No.370/03 on record, at paragraph 3 there is mention as to while A-7 was on a walk with his friend, he was taken away by police constable Mehboobbhai and it was informed that A-7 was wanted by the office of the DCP, Gaikawad Haveli Police Station. In the opinion of this Court, in the Writ Petition the name of the said friend has not been contended nor any Affidavit to fortify the contention has been filed. Even along with the Further Statement such Affidavit of said friend has not been filed.
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(c)
Secondly, according to Writ Petition, the A-7 was taken away by the person of the Gaikawad Haveli Police Station, but the arrest of the accused as per the prosecution case on 15/4/2003 was by DCB Police Station. It is different that it is situated in Gaikawad Haveli Police Station, but then this contention without finding of the Hon'ble High Court of Gujarat to the effect or even without any Affidavit cannot be accepted as it is.
(d)
In this very Writ in paragraph 3 itself, the name of the friend Mr. Mufiz Babanbhai Shaikh as friend of the husband of the applicant has been contended who gave the news to the applicant. This friend has even not filed the Affidavit to believe the version.
(e)
In the same way in this Wirt there is mention of a family advocate to have visited Gaikawad Haveli Police Station, but the Affidavit of the said family advocate is not on record. This Court cannot believe that a lawyer by profession would spell DCB Police Station as Gaikawad Haveli Police Station. The said discrepancy between DCB Police Station and Gaikawad Haveli Police Station guide that the illegal detention and highhandedness at the hands of the investigating agency complained of does not seems to be from investigating agency of this case.
(f)
Exh. 2007 has even been brought on record at the instance of the accused.
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Exh.2007 is the order of the said Writ Petition filed, but then the order is clarifying that on 17/4/2003 learned advocate for the petitioner made statement about the production of A-7 on 16/4/2003 and then the said Writ was dismissed by Hon'ble High Court of Gujarat as said petition. In the humble opinion of this Court, there is absolutely no finding of the Hon'ble High Court of Gujarat that the A-7 was illegally detained from 7/4/2003. (g) While dealing with the submission of learned advocate for A-7 on the endorsement on the Production Report Exh.2009, it seems that the verbal communication made by the A-7 has been recorded by learned Metropolitan Magistrate Court on the same date which is suggestive of application of judicial mind on the grievance made. Though not recorded by the learned Metropolitan Magistrate, it is a matter of common knowledge that after receipt of such oral complaint from the accused every judicial mind would satisfy the anxiety by looking at the Arrest Memo and other necessary papers. Even for this reason it cannot be perceived that there was no Arrest Memo for A-6 & A-7 and they were produced without Arrest Memo. These arrest memos are to be original of 2174/1 and 2174/2 which all tally with the prosecution case. (h) As far as the oral submission by the accused is concerned, it is clear that the Writ Petition has been filed right from 10 th April, the ground of such Writ Petition must be within the the other submission made before Their Lordships was dehors of the scope of the
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knowledge of the accused and hence writing such endorsement is nothing but a smart act to bring defence on the record in advance. (i) Moreover, as is clear from the Writ Petition Exh.2007 the applicant is not clarifying that the detention of her husband was by which Police Station on 7/4/2003. In the same way, even this endorsement does not specify and clarify that the accused was detained by investigating agency of this case from 7/4/2003 because the investigating agency of this case is not Gaikawad Haveli Police Station. (j) It is true that the accused is not expected to prove his defence nor inability to prove the defence can be based to convict the accused, but when the accused wish the Court to rely upon the doubt created by the accused on the record the said doubt should be shown to be a reasonable doubt which should in effect improbablise the prosecution version which since does not happen in the case of A-6 or A-7, this Court is not inclined to believe the submission of illegal detention for A-6, A-7 or A-8 or that lack of filling in date and time of the arrest in the Arrest Memo of A-8 can render the arrest of A-8 to be void. (k) Vide Exh.2006, a notarized copy of telegram which seems to have been sent by A-45 and has been brought on record as supporting document to the submission of illegal arrest of A-7, If this document is perused, the telegram seems to have been made on 22:57 hours of 7/4/2003 to Hon'ble the Chief Justice of the Hon'ble High Court of Gujarat wherein it has been contended that A-7 has been illegally detained at
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8:30 p.m. on 7/4/2003. Firstly, the certified copy of the telegram is very much available from the Department of Communication had the said been genuinely sent, but the said has not been produced. Secondly, if at 22:57 hours of 7/4/2003 itself the real brother of A-7 knew about the illegal arrest of 8:30 p.m. then why the wife of A-7 would write in the Writ Petition on 10/4/2003 about the Gaikawad Haveli Police Station instead of DCB Crime. Moreover, as has been contended after the friend of the A-7 had informed that Mehboobbhai of Crime Branch Police Station had taken the A-7 how only within 2 hours and 27 minutes A-45 would conclude that the illegal arrest is by Crime Branch Police Station. All these if read collectively, can be termed to be not fortifying the submission of the A-7 of his illegal arrest. (l) Vide Exh. 351, the application of A-7 dated 18/07/2005 has been received through jail. If this application is perused, then it is contended therein that the accused is in jail from 07/05/2003 and arrest has been shown on 15/05/2003. The A-7 has requested the POTA Court to give copy of this handwritten application to L.A. Mr. I.D. Pathan. The copy of the application was accordingly given to L.A. Mr. I.D. Pathan whose endorsement of 'received copy' is on record, but till the date nothing has been clarified on record about the dates written in this application though even at final arguments, L.A. Mr. I.D. Pathan has represented the A-7 where L.A. Ms. Nitya Ramakrishnan was accompanied by L.A. Mr. Pathan.
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This application is quite systematic, apparently seems to have been drafted by person practising in law field which is revealing the attitude of A-7 of levelling allegations against the system which guides the lack of genuinity in the allegations levelled of illegal detention. (m) In case of accused No. 25, during the course of the crossexamination the Arrest Memo has been taken on record at Exh. 1995, wherein, it is indeed very clear that the nephew of the accused was intimated as noted in Arrest Memo. This Court did not find any non-compliance of Section 52 in case of A-25. (n) Exh. 1996 is the application dated 14/05/2003 tendered by A-25 merely stating that the accused has been falsely detained from 23/04/2003 but as per the prosecution case, the A-25 has been arrested on 13/05/2003, hence this application dated 14/05/2003 is rather probable after the arrest of 13/05/2003, as had one been illegally detained and he himself is to give application, he would not give on 14/5/2003 for the arrest dated 23/04/2003 as it is not probable. This submission cannot be accepted at all it being improbable. 14. Exh.35 is the Writ in case of accused 32 & 33, but then the said is the Writ which has been withdrawn hence, the said documents cannot help the Court or cannot come to the aid of the submissions of the accused that their detention was illegal. 14.1 For A-32 & A-33, the documents produced along with the Further Statement has been relied upon. A-32 has raised plea that he was
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illegally detained from 19/6/2003. The wife of A-32 has filed Habeus Corpus on 13/7/2003 which was Special Criminal Application No.658/03. Order of this Writ Petition is on record vide Exh. 2157. In the Further Statement it has been submitted that on account of this Habeus Corpus, the accused were taken away at strange place by illegal means as a team from Hon'ble High Court of Gujarat was to visit Crime Branch. If the order dated 17/7/2003 passed by Their Lordships is perused, which is on record at Exh. 2156, it is clear that the Hon'ble High Court of Gujarat has held that the accused were not in illegal custody as where on remand on the date of the order. Petition was disposed of as infractuous. 14.2 Vide Exh. 2157, the Writ Petition has been placed on record. On page 5, paragraph 2.9 it has been contended that the A-32 has been illegally detained from 25/6/2003 till the date of filing the application viz. 3/7/2003. This contention does not tally with the written submission placed before this Court as part of Further Statement which has been taken on record at Exh. 2154 wherein illegal detention has been contended from 19/6/2003. 14.3 There is nothing on record including finding of Hon'ble High Court of Gujarat that A-32 was illegally detained by the investigating agency. Neither the order of appointing the team by Hon'ble High Court of Gujarat or Affidavit of any of the investigating officer has been filed in the writ proceedings have been brought on record in support of the serious allegation of illegal detention of A-32. 14.4 Vide Exh.60 a letter seems to have been written by A-32 is on record which is dated 9/9/2003. 14.5 It is clear on record that the A-32 was sent to judicial custody on
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6/8/2003, but even after the said date he has not raised any grievance about his illegal detention. If this document is seen, the A-32 has written a letter to this Court wherein there in nothing about the illegal detention which is a retraction. On the contrary, if this document is carefully perused, on 15/7/2003 as contended, a relative of the accused were intimated by the police to have arrested this accused. The Arrest Memo of A-32 is showing the arrest to be on 15/7/2003. 15. A-33 vide Exh.2149 has submitted to have been illegally detained from 15/6/2003 whose wife has filed a Writ Petition on 3/7/2003 vide Exh.2152, the Writ Petition in on record wherein it has been contended that on 15/6/2003 when A-33 and the petitioner of the Writ were alone in the house of her parents, 2 person came at about 2 p.m. and after giving their identity as Crime Branch Officers took the petitioner's husband viz. A-33. A common order for the Writ Petitions filed for A-32 & A-33 is on record at Exh.35, but there is no finding by the Hon'ble High Court of Gujarat of the illegal detention by the investigating agency of A-32 & A-33. The wife of A-33 has even not filed any Affidavit to support the version of the accused of illegal detention. 15.1 This Court does not find any substance in the submission of illegal detention qua A-32 & A-33. Moreover, there is an application on record vide Exh.4 which is dated 23/7/2003 wherein also A-32 & A-33 have been mentioned to have been arrested on 15/7/2003 by PW-199. In light of all the above facts and circumstances of the case, the submission qua the illegal arrest of A-32 & A-33 does not finds favour of this Court.
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15.2 Exh.14, the report of PW-199 to the POTA Court is on record to render A-32 in judicial custody. This document is dated 6/8/2003. The learned predecessor of this Court has passed necessary order below Exh.14 wherein, there is mention that the A-32 had no complaint to make against the investigating Officer or against any police personnel and then after A-32 was taken into judicial custody. On 6/8/2003 A-32 has produced to this Court to take him into judicial custody, had there been illegal detention, A-32 would have so reported to my learned predecessor at least on the date of his production but he did not do so. 15.3 Exh.10 is the similar report for A-33 wherein in the order dated 4/8/2003, A-33 has informed the Court that he has no complaints to make against the police in response to the inquiry made by my learned predecessor and thus the accused was taken into judicial custody. The A-33 here does not make any grievance of his illegal detention which is showing that the submission made today is not worth believing. 16. It needs to be noted that the illegal detention is directly violating the fundamental right of the accused. The said has in a way great significance, but then the safeguards under Section 32 and the safeguards under Section 52 are not at par. Vide the judgment of D.K. Basu and others, Hon'ble Supreme Court has given certain guidelines to be observed by the Investigating Agency in case of arrest of the accused, but in POTA Act by providing Section 52 all such guidelines have been included as part of the law hence, the compliance of Section 52 if stands proved the said would suffice the purpose.
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FINDING :17. By scanning the record before this Court, the Court has ascertained the worth in the submissions made by the Learned Advocate for the accused and the replies of the accused in Further Statement for non-compliance of Section 52 POTA. Following points are considered. 17.1 The accused has not filed any Affidavit of any of the relative or the witness, who according to the defence were detained in support of submission. 17.2 While preferring the bail applications the accused have not contended their illegal detention and if would have so contended the said bail applications have not been produced before this Court, 17.3 Except by way of the arguments by the Learned Advocates and except by way of answering while Further Statements, the legality of the arrest has nowhere been challenged. 17.4 In each of the case, the Production Report and or Affidavit and or the copy of the telegram sending intimation of arrest and or the Arrest Memo etc. are very much on record. 17.5 Normally speaking no Court would accept the Production Report when the Arrest Memo is not accompanied. In the light of the record of the case also it cannot be perceived that while production the official judicial work and while in police custody the official work of the investigating agency were irregularly performed.
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17.6 In paragraph 163 & 164 of the Parliament Attack Case,cited by prosecution at Sr. No. 9 and defence at Sr. No. 71, it has been clarified that non-compliance of Section 52 would not make the arrest void and guidelines given by the Hon'ble Supreme Court in D.K. Basu (defence citation at Sr. No. 28) and Kartarsingh have been included in Section 52 of the POTA. Thus, compliance of Section 52 would include compliance of the directions in the cited judgments on the subject like defence citation at Sr. No. 27 (Para 27, 28) etc. by Hon'ble Apex Court. The defence has pressed into service the citation at Sr. No. 29 submitting that detention in this case was not bona fide but upon perusal of the record, material, confessional statements, statements and confession u/s 164 of Cr.P.C., it is crystal clear that no arrest is made without reasonable satisfaction and without ascertaining the genuineness of the complaint after the I.O. has secured proper information and material pointing the complexity of the respective accused. This has to be seen with the kind of the case, seriousness of the case, allegations of very grave nature having direct impact on national security. It therefore seems that the requisite of the cited judgment also stands satisfied to the satisfaction of this Court. 17.7 This Court firmly believes that in case of any of the accused there is absolutely no material to hold that the arrest was illegal and the detention was not on the date as shown on the record. 17.8 It is true that in certain Arrest Memos the signature of the relatives who were informed was not obtained, but then the said is not requisite of Section 52 of the POTA, hence the said cannot render
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the arrest void or even in not irregularity. What is needed is giving intimation to relatives, friend or family member under signature of the accused. Arrest Memo and or telegram on record satisfies the requisites which becomes clear on perusal of it. 17.9 In case of accused No.8, date and time of the arrest has not been noted in the Arrest Memo. In case of accused No. 6 & 7 also Arrest Memo has not been found from the record of the Learned Metropolitan Magistrate Court. The submission by Learned Advocates for the respective accused was that since the Arrest Memo is not on the record the arrest has to be rendered void and as a result search, recovery or discovery of the weapon is also nullity, hence the respective accused should be acquitted. As noticed, in case of majority of the accused the Arrest Memos, the Production Report, the Remand Applications, Confessions, Retractions are on record, hence it cannot be believed that the Arrest Memo qua accused Nos. 6 & 7 were not at all prepared. To satisfy the judicial conscience, this Court found it appropriate to examine the Case Diary tendered to this Court. This Court is conscious that the Case Diary cannot be used as evidence in the case, but then in view of Section 172(2) of the Cr.P.C. in any trial a Case Diary can be used to get aid. Upon perusing the Case Diary the arrest of the accused Nos. 6, 7 & 8 for whom submission have been made and remaining accused for whom such submission have not been made were found to be in absolute order and regular hence the judicial
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conscience has been thoroughly satisfied that there was no illegal detention of any of the accused and the detention of different accused were made as have been shown on the record of the case. 17.10 This Court is not required to research as where the Arrest Memo of accused No.6 & 7 have gone when the judicial mind is satisfied upon the scrutiny and Case Diary of record used to get aid and for removal of doubt. It is needless to clarify that the use of the Case Diary was only as aid when otherwise the procedure adopted by the Investigating Agency is found regular and in accordance with law. 17.11 When except for accused Nos. 6 & 7 in case of all the other accused the Arrest Memo is prepared, as official act, Learned Metropolitan Magistrate Court has taken the production of the accused Nos. 6 & 7 as judicial act, which can not be without Arrest Memo, regularity in procedure by the Investigating Agency is contended on oath by respective Police Officer, when the Case Diary comes to the aid to reveal regularity in the official work by the Investigating Agency no doubt is left in the judicial mind even qua accused Nos. 6, 7 & 8 about their detention to be illegal. 17.12 In light of the above discussed evidence, the overall facts and circumstances of the case and oral evidence of different Police Officers, it is clear that the requisites of Section 52 were satisfactorily complied with for all the accused and there does not appear any substance in the submission on violation of provisions and safeguards of Section 52.
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There are sufficient material on record to hold that there was no denial of the safeguards under Section 52. Considering the above discussion, the safeguards of Section 52 of the POTA are hereby held to have been complied with by the Investigating Agency in case of all the accused.
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(C) APPRECIATION OF CONFESSION UNDER SECTION 32 OF POTA:

1. As has been discussed hereinabove, there seems to be satisfactory compliance of the safeguards referred below laid down u/s 52 of the POTA. As has been ruled in the Parliament Attack case, the violation of obligations u/s 52 POTA has relation and impact on the confession. It is ruled in the Parliament Attack case that reasonable facility of establishing contact with a lawyer should be offered to the accused and that in case of request, necessary arrangement should be made for the legal services at the stage of interrogation and that the person in custody should be able to establish contact with a legal practitioner. 2. In the case on the hand, each of the accused was ably assisted by his private lawyer right from the beginning. Upon perusal of the record and proceedings before the Court of learned Metropolitan Magistrate, it can be seen that objection by the accused, disinclination by the accused to give confessional statement in the beginning, affidavit by the accused, application by the accused, effective endorsement by the accused have all been made and that most of them are found on the ledger paper in a typed manner. This itself is clearly suggestive of the availability of legal services to the accused of their private lawyer. None of the accused has come out with the case that they have requested for free legal service and the same was not provided. On the contrary, there are orders of learned Metropolitan Magistrate on the record to have permitted private lawyer to meet the accused which seem to have been complied with by investigating agency. Thus, as discussed hereinabove, in the case on the hand, there seems to be no violation of the safeguards u/s 52 of the POTA while in
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police custody and at the time of production, remand application etc. Hence, there cannot be any impact on the confessional statement as no breach of the provisions u/s 52 of POTA which is even tallying with the record of Learned Metropolitan Magistrate. 2.1 Learned Advocates for the accused have submitted that the confessional statements were pre-recorded, reflection time given was too short, police writers have not been examined, the confessional statements are not in the words of the accused and that the confessional statements were not voluntary and truthful. 2.2 This being a very vital aspect, this Court thought it proper to examine the submission keeping in mind the provisions of Section 32 and the verdict of Parliament Attack case relied upon by the rival parties. 2.3 According to Section 32 of the POTA, the police officer shall warn the accused that he is not bound to give the confession and if he does so, it may be used against him, the confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it. On perusal of the oral evidence of PW-57 and PW-65 both the recording police officers, it is clear that deposed all the above requisites have been complied by them which tallies with the written preliminary understanding on record in case of all the accused whose confessional statement were recorded. Both the witnesses have even given reflection time to the accused which is not found to have been noted in preliminary understanding given to the accused.
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The submission of defence that this version in the oral evidence of witnesses cannot be considered as is amendment does not found favour with the Court as it is not directory or mandatory requirement. As per the cited judgment for defence on the submission, the compliance of mandatory requirement cannot be accepted to have been complied if not found on record and merely added in oral evidence. POTA does not mandate for the reflection time hence the submission cannot be accepted. Detailed discussion on the aspect of reflection time is in point-2.6 hereunder. 2.4 In Parliament Attack case, one of the accused was represented by a lawyer from the free legal services, the provisions of Section 52 were not held to have been complied with whereas in the instant case, as held above, the safeguards of Section 52 have been satisfactorily complied with and all the accused have been represented through the lawyer of their choice at every stage of the investigation and that the accused seem to have been freely able to meet their L.A. at every stage of the litigation even the accused could meet their relatives as well while in the police custody. 2.5 In the Parliament Attack case the reliance was not placed on the confessional statement upon viewing the violation and lapses of procedural safeguards of Section 52 of POTA but, when the said lapses are not found in the case on hand the confessional statements in this case can be safely relied upon and or are not unreliable from the angle of Section 52 of POTA.
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As has been ruled in paragraph 163 of the Parliament Attack case, Hon'ble the Supreme Court was pleased to observed that in the Parliament Attack case, there was non-compliance of the obligation cast on the police officer by Section 52 of POTA. While replying the question as to should these safeguards envisaged in Section 52 be telescoped into Section 32, Their Lordships were pleased to hold that denial of the safeguards under Sub-Section (2) to Sub-Section (4) of Section 52 would be one of the relevant factors that would weigh with the Court to act upon or discard the confession. It has even been ruled that to the above limit, non-compliance of Section 52 plays role to weigh the confessional statement recorded u/s 32 but they are not as clinching as provisions contained in Sub-Section (2) to (5) of Section 32. 2.6 As has been ruled by Their Lordships in the Parliament Attack case in paragraph 184 that another point which would have bearing on the voluntariness of the confession is the fact about giving sufficient time for the reflection. In this paragraph, it has been specifically cleared by Their Lordships that in the Parliament Attack case, the time of 5 to 10 minutes by all standards was utterly found inadequate and that there is no hard and fast rule regarding grant of time for reflection and that the rules and guidelines applicable to a confession u/s 164 Cr.P.C. do not govern the confessional statement u/s 32. (a) It cannot go out of the sight that Their Lordships were pleased to hold insufficiency of reflection time with reference to the facts of the Parliament Attack case. Therefore, this Court also will have to decide the
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sufficiency or insufficiency of reflection time considering the facts of the case on the hand. (b) The concept reflection time is based on Section 164 of Cr.P.C. and the directions given thereunder, but it cannot govern the confessional statement under Section 32 of POTA. Section 32 of POTA is a self contained code and what not provided in the Section 32 of POTA cannot be read in that. The submission to read reflection time in Section 32 therefore cannot be entertained. Many of the cited judgments by the defence on reflection time is based on Section 164 of Cr.P.C. which therefore would have no application in the case on hand. The concept of reflection time is rule of caution. The section has reposed faith in the Senior Police Officer whose satisfaction is important. Nothing has culled out in the deposition that the reflection time given was insufficient. Even the accused either before Learned Metropolitan Magistrate Court or even at the stage of Further Statement have not complained of not giving sufficient reflection time or that they sought more cooling off time and the same request was turned down by the recording police officers. (c) As has been cleared in paragraph 184 of Parliament Attack case there is no hard and fast rule regarding grant of time for reflection. The rules under POTA have not been framed. Rule and guideline applicable to Sec. 164 of Cr.P.C. is not applicable in POTA. There is no mandate of Section 32 of POTA qua reflection time.
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(d)
Looking to the record discussed at the point discussing on Section 52, the subsequent conduct of the accused except the A-50 and A-44 of confirming and signing the confessional statement before the Learned Metropolitan Magistrate Court, not complaining before them about employment of any coercion, threat, influence or promise by the police or that the reflection time given to the accused was less as to adversely affect their voluntariness there are no merits in the submission of the defence.
(e)
As observed by Hon'ble Supreme Court in Parliament Attack case in para 184 reflection time is one way of ensuing that the person concerned gets the opportunity to deliberate and introspect once again when he is brought before prescribed authority for recording confession. In the humble opinion of this court in the fact of the case when both the recording police officials have given reflection time the purpose is served. Sufficiency of reflection time in each case has to be judged in the light of fact and circumstances of each case. In paragraph 184 in which Hon'ble the Supreme Court has held that : "In the present case, the time of 5 to 10 minutes is, by all standards, utterly inadequate." This would mean that the insufficiency of reflection time was held with reference to the facts of the cited case and no general rule has been carved out for all the cases.
(f)
Time of reflection is one of the relevant considerations and not the sole consideration to assess voluntariness in the confessional statement. This court humbly believes that in
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the fact of this case the confessional statement of the accused cannot be thrown away. It is however needed to be further tested keeping in mind provision of Section 32(4) and Section 32(5) of POTA. (g) In the light of all the above reasoning this court is therefore not inclined to hold that the reflection time of five minutes or of thirty minutes was insufficient for which confessional statement should be eschewed from consideration. 2.7 In the same way, as is clear in paragraph 186 of the Parliament Attack case, the delay in retraction of the confession was weighed and viewed by Their Lordships keeping in the mind the violation committed by the police officer u/s 52 of the POTA in the cited case. It is therefore clear that retraction is to be weighed keeping in mind the compliance or non-compliance of Section 52 in the case on the hand. 2.8 As has been ruled in paragraph 164 of the Parliament Attack case, the prescriptions u/s 52 specially those affording an opportunity to have the presence of the legal practitioner are no doubt supplemental safeguards as they will promote the guarantee against self- incrimination even at the stage of interrogation, but these requirements laid down in Section 52 cannot be projected into Section 32 so as to read all of them as a continuing code of safeguards of same magnitude. 2.9 In the Parliament Attack case the appreciation on the aspect of delayed retraction was also with reference to violation of Section
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52 of the Act. In the instant case since Section 52 has been found to have been complied with delayed retraction by the accused should be accordingly considered. 2.10 What has been heavily emphasised by L.A. for A-7 is that the custody memo of the person arrested was not on the record but as discussed earlier, in the peculiar facts and circumstances of the case and in light of the above discussed reasoning, the compliance of even these procedural safeguards have been held to have been complied with beyond doubt as can be seen from the record. 3.1 Section 32(1) requires the confessional statement to be recorded in writing before the police officer not lower in rank than S.P. shall be admissible in trial of such person. 3.2 This would mean that for another person viz co-accused such confession cannot be admissible and even as has been held by Their Lordships in the Parliament Attack case, Section 32(1) clarifies that the confessional statement of the accused cannot be used against the co-accused. 3.3 Section 32(2) requires that before recording the confessional statement such a police officer should give warning, explain to such person in writing that he is not bound to make a confession and that if he does so, it would be used against him. 3.4 The Proviso herein grants right to the accused to remain silent.
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3.5
The confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it.
3.6
The person whose confessional statement has been recorded should be produced before the Court of Chief Metropolitan Magistrate along with the original statement of confession within 48 hours.
3.7
This Section does not require that the confessional statement should be such which should have been signed before the police.
3.8
Chief Metropolitan Magistrate shall record the statement if made by the person so produced and get his signature or thumb impression and if there is any complaint of torture, such person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than an Assistant Civil Surgeon and thenafter he shall be sent to judicial custody. This would mean that the Chief Metropolitan Magistrate should obtain the signature of the accused.
(I)
Oral evidence of PW-57 & PW-65. 4. PW-57 :- The gist of the oral evidence of the witness is as under : 4.1 PW 57 was the then D.C.P. who has recorded the confessional statements of A-1 to A-5, A-7, A-8, A-16, A-17, A-30 to A-34, A-36, A-38, A-40, A-41, A-42, A-45 to A-48 and A-50, has adopted similar procedure for all the accused before recording their
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statement, at the time of recording their statement and after recording their statement. As deposed, the recording of the confessional statement, was done by the witness on 24/04/2003, 29/04/2003, 16/05/2003, 18/05/2003, 25/05/2003, 08/08/2003, 15/08/2003, 05/11/2003, 03/12/2003, 09/01/2004, 11/01/2004, 07/11/2004 and 28/11/2004. The witness has given preliminary understanding as required u/s 32 to all the accused which is corroborated by the confessional statement on record as all the confessional statements are preceded by the written statutory preliminary understanding. 4.2 PW 57 deposed that he was informed by the I.O. that confessional statements are to be recorded. It is but obvious that Investigating Officer would only inform that confessional statements are to be recorded. 4.3 The accused named in oral evidence on the respective dates were brought before the witness along with the concerned officer or official of the Crime Branch. As further deposed the officer of the Crime Branch who brought the accused was kept away by the witness and was asked to sit in another chamber, thenafter the accused were called by the witness in his chamber one by one and at that point of time, the remaining accused were sitting in the chamber of the reader of the witness, the witness has warned each of the accused that they were not bound to give the confessional statement and if the confessional statement would be given by them voluntarily, the same would be used against them, the witness has inquired from each of the accused whether they were ready to give the statement voluntarily and without pressure
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or not, thenafter each accused was given time for reflection. The witness has specified that he has however told to each accused that if they require more time, they can still take more time. 4.4 The preliminary understanding and warning given to each of the accused was recorded by the witness and the witness has signed below the said writing. 4.5 The statement was written by the writer of the Crime Branch. The witness states that he did this procedure in case of all the accused and that the statements were thenafter placed into one cover which was given to the reader, the cover was sealed and the reader was directed to give the said cover to the Chief Metropolitan Magistrate which was the oral instruction of the witness. 4.6 In the cases, when the respective accused did not sign before the witness, the witness has so stated in his oral evidence. 4.7 In the examination-in-chief, the witness has deposed to have satisfied all the requisites laid down u/s 32 of the POTA as far as his role is concerned as he was D.C.P., the confessional statement were preceded by the written preliminary understanding as required in POTA Act, the warning was given to each of the accused which is duly signed by the witness. 4.8 Before switching over to the cross-examination, certain points need to be noted. (a) the witness is a very Senior Police Officer who has no concern whatsoever with the investigation and that he has
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recorded confessional statements of many of the accused. (b) on different dates, the accused in group were sent to this witness, the witness has not given fixed time of reflection of about 5 minutes or so but he has also given liberty to the concerned accused to take more time if they so required and that reflection time was given to each of the accused produced before this witness. (c) There are certain accused who have not chosen to sign before this witness. This is suggestive of the fact that the atmosphere before the witness was a free atmosphere and the atmosphere was not of any inducement, threat or pressure or else the accused would have been compelled to sign then and there only, but that has admittedly not been done. (d) None of the accused has even whisper of any pressure or influence of threat etc. while or before the confessional statement was recorded. (e) When the witnesses were sent in group and when the first accused is given 5 minutes, in that case, the other accused or remaining accused would get ample time which would be the time being taken in recording the confessional statement of the previous accused and in addition to the time given to him for reflection, hence in this case when on a particular date, the confessional statement was not recorded of only one accused, the remaining accused get ample amount of reflection time.
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4.9
During the course of the cross-examination, the witness was assailed as to what was not done by witness like keeping the note of telephone call of the I.O., writing the Rojkam, taking down the minute details,not marking the Jawak numbers or Outward numbers on the confessional statements sent for the Learned Chief Metropolitan Magistrate Court etc. which all sounds nothing beyond irregularity as from this cross-examination, nothing is emerging on record by which it can be termed to be noncompliance of Section 32 of the POTA. It is not important as to what is not done by the witness except what has been mandated by the statute but it is important that what has been done by the witness was satisfying the requisites of Section 32 POTA or not. The reply is in affirmative.
4.10 It has been admitted that, the I.O. has not told anything about the offences of the accused. This suggestion in fact is suggestive of the fact that the witness was not prejudiced or biased against the accused. That no attempt to do anything to suit with the prosecution case can be obviously be therefore not probable to have been made by this witness. 4.11 It has also been assailed that the statement was not taken with mechanical device, but it hardly needs to be clarified that so has not been provided in the statute as the only mode to record the statement and that there is option of taking down the confessional statement even by writing, hence if the confessional statement is manually recorded, nothing is wrong in the said mode. 4.12 In paragraph 48, the witness has replied that he has not done any duty at the Crime Branch and he has not worked as A.C.P. in Ahmedabad City or in Crime Branch. This also would suggest lack
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of interest and neutrality of the witness. 4.13 The witness has admitted that the statement should be taken in free atmosphere. It has been also assailed that the accused were not offered free legal service. In the instant case, right from the beginning, all the accused had their private lawyers and that as can be seen from the record, they were freely permitted to meet the accused. In these circumstances, this question does not lead to any violation of Section 32. It is nobody's case that the legal aid was sought for by the accused but still the said was not given. 4.14 It has been submitted by all the learned Advocates that the writers of the Crime Branch were used to write the confession and this aspect is fatal by which the confessional statement needs to be excluded from consideration. There is nothing on record by which it can be held that the writer who has written the confessional statement was part and parcel of the investigating agency. As is known, the Crime Branch of the City of Ahmedabad is a very big unit and it has so many officials, but all of them might not be connected with the investigation of this case. Nothing emerges from any suggestion or reply by which it can be held that the person who was connected with the investigating agency has written the confessional statement. It is necessary to record that the confessional statement by all means can be termed to have been recorded by the witness and the writer has no concern with the responsibility of recording the confessional statement. He merely does ministerial work.
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4.15 In paragraph 50, the witness has clarified that the writer in his office does not have good handwriting, but as it may be, the fact remains that this cross-examination nowhere leads this Court to conclude that there was any violation of Section 32. There is nothing on record by which it can be held that the writers were the persons who were concerned and connected with the investigating work. 4.16 As can be seen from the overall record, all the assignee officers were upto the rank of PSI and it is but natural that the writer used to be police constable. There is no material on record to perceive that the person concerned with the investigation was sent to write the confessional statement. It has also to be remembered that there is no provision not to take services of the person working in the unit where investigation is going on. After all the practice of doubting every limb is not the way to appreciate the evidence unless reasonable doubt is posed. The writer of the crime branch is also a public servant, he is not I.O., I.O. is A.C.P., there is no presumption against use of writer of another unit and that no reasonable doubt is hoisted on this count. 4.17 In the light of the fact that the requisites of Section 52 were complied with, certain cross-examination related to noncompliance of Section 52 is of no significance. The use of white eraser has been admitted by the accused, but merely that does not lead to hold the confessional statement are bad in law. 4.18 It needs to be remembered that the fact of the statement to have been written in free atmosphere without threat or inducement, recorded after proper preliminary understanding, were written in the language in which the accused had spoken are all the things
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which clearly emerge on record to have been complied with. Further, all the original statements of confession were sent to the learned Chief Metropolitan Magistrate as ultimately all the said confessional statements have been received by this Court from Learned Metropolitan Magistrate Court. 4.19 The witness has been confronted with his previous statement in form of oral evidence in POTA Case No. 7-8/03. Upon carefully perusing and comparing the present deposition and the deposition given before my learned predecessor, nothing is found which can be termed to be contradictory version or the version by which the present deposition cannot be believed. The fact needs notice that the witness in his long career might have discharged many obligations in form of his official duty. Discrepancy in his narration cannot be viewed with doubt when it rather seems very natural. The witness is not expected to give his parrot-like version in both the cases. The spirit of the version needs to be seen when there is passage of time in terms of years. Broadly speaking, both the versions are one and the same and that the change in words in the previous version and this version merely suggests that the omission is innocent when the base is not changed and when it is not prejudicing the interest of the accused. This part of the cross is not effectively or successfully challenging the veracity of the witness and that it is rather certifying that the witness is not a witness who gives parrot-like version or stereo-type deposition. Nothing turns out from this to doubt the version of the officer.
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4.20 The witness has admitted in para 56 about the confidentiality of the confessional statement upon which the submission was made to disbelieve the confessional statement for not maintaining the confidentiality. This aspect is to be understood firstly that the personal opinion of the witness cannot be considered and secondly is that the fact of recording confession can be confidential from public, press or other unconnected people and not from I.O. The contents has to be confidential, but not the fact of recording confession as the duty is impliedly casted on the I.O. by Section 32(4) of POTA to produce the accused before the Learned Chief Metropolitan Magistrate Court within 48 hours to confirm or otherwise. This Court do not find any force in the submission on this count also. 4.21 Moreover, the fate of the accused is not solely based on this witness and the procedure adopted by him is not the concluding event. The confirming job was to be performed by the Judicial Officer and it is the collective effect of the procedure adopted by this witness and the procedure adopted and the safeguards observed by the learned Chief Judicial Magistrate which would decide the weightage to be attached to the confessional statements of the respective accused. In nutshell, the witness is found to be truthful and creditworthy. 4.22 In the humble opinion of this Court, the defence has not successfully created any reasonable doubt by the extensive crossexamination of this witness and that the voluntariness of the accused, the free atmosphere from threat and inducement and observance of any of the safeguards under Section 32 of POTA and the purpose of reflection time cannot be reasonably doubted.
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(II)
Oral evidence of PW 65. 4.23 Like PW 57, this is also another Police Officer who was DCP at that point of time, has also recorded the confessional statements of many of the accused out of whom A-43 and A-44 are being tried before this Court. This witness has introduced himself, has conveyed to the accused that the statement to be recorded is confession, the accused is not bound to give the confessional statement and if given, it can be used against the accused, it was inquired that the witness is not giving the statement out of any inducement or threat, he was giving time to think for about 30 minutes and when the accused was found to be ready to give voluntary statement in form of confession, all the preliminary understanding given to the accused was written and that the writer of the Crime Branch has written the statements, thenafter the statements were sent in a sealed cover and that the sealed cover was given to the officer of the Crime Branch with instruction that this should be presented before learned Metropolitan Magistrate within the time bound. 4.24 The statement of A-43 was recorded on 09/12/2003 and the statement of A-44 was recorded on 20/12/2003 wherein the same procedure was adopted as deposed by the witness. 4.25 This witness was assailed on many counts but there is no material on record to hold that the witness has not complied the safeguards to be complied by the recording officer while recording confessional statement, before recording the confessional statement and after recording the confessional statement.
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4.26 This witness was even assailed on the ground that he did firing from the terrace while the communal riots of the year 2002 were on-going and this witness was alleged to have killed 5 Muslim persons. This suggestion which was denied by this witness which seems to be baseless suggestion. There is absolutely no material yet placed on record to substantiate this allegation in the crossexamination. The said therefore seems to be such which cannot be believed. 4.27 As far as both the witnesses are concerned, this Court is of the opinion that both the officers have discharged their obligation of observing the safeguards u/s 32 in a quite satisfactory manner which can be tested by the other elements and the conduct of the accused even after recording of the confessional statement as the requisite laid down u/s 32(1) to (4) seems to have been observed properly by both the witnesses. There is no material to believe that any of these witnesses have not complied the safeguards u/s 32 to be complied by them before recording the statement, while recording the statement and after recording the statement. The discussion made on various points hereinabove while discussing oral evidence of PW-57 is equally applicable in case of this witness, but to avoid repetition the said is avoided here. 5. Upon perusal of overall facts and circumstances of this
case, evaluating the oral evidence of PW 57 and PW 65 and upon perusal of all the confessional statements recorded by both these witnesses, this Court does not find any circumstance to have been generated on record which creates suspicion against the confessional
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statements to be voluntary and to have been taken without observance of due safeguards for the same. There is nothing to show that before the accused made the statement, their mind was operated with fear or inducement. The PW 57 and PW 65 have no animus against any of the accused or they have even no concern or connection with the investigating agency or with the investigation of the crime. Some irregularities here and there do not take away the positive evidence emerged on record and that the said does not result in non-compliance of Sub-Section (1) to (4) of Section 32 of POTA. The confessional statement therefore seems to be product of free choice of the accused and in due the observance of Sub-Section (1) to (4). 6. This Court now needs to test the compliance of Section
32(4) & Section 32(5) and it is upon satisfactory compliance of the said Sub-Sections of Section 32 of the POTA, it can be held that the confessional statement of the accused can be considered as voluntary and truthful.
Compliance of Section 32(4) of the POTA :

7. This Sub-Section requires the accused whose confessional
statement has been recorded to be produced before the Court of learned Chief Metropolitan Magistrate within 48 hours from recording of the confessional statement along with the original confessional statement of the said accused. The compliance of this sub-section for each of the accused can be seen one by one. PW 186 :7.1 Learned the then Chief Metropolitan Magistrate Shri Raneksha had passed away. He therefore could not be examined as a witness in the case.
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However, his the then Bench Clerk has been examined as PW 186. This witness has stated that Shri Raneksha was a Chief Metropolitan Magistrate in the year 2004 when this witness was a Bench Clerk of the said late Shri Raneksha. The witness identifies signature and handwriting of the said Shri Raneksha, he knows that Shri Raneksha had passed away, the witness has identified signature of said Shri Raneksha as far as the confessional statement of A-7, A-20 to A-26, A-38, A-45 to A-47, etc. are concerned. 7.2 This witness was cross-examined. The witness has admitted that he only knows the signature and the signatures identified by him were not done in his presence, the duty of the witness was from 10.30 a.m. to 2.00 p.m. and from 3.00 p.m. to 6.10 p.m. on the dias and it was on the board, POTA proceedings were not done in presence of this witness, the chamber of the Chief Metropolitan Magistrate at that point of time was away by about 50 to 60 feet. 7.3 The signatures of late Shri Raneksha has since been duly identified by the witness who had numerous occasions to read and see the signature of late Shri Raneksha as he was a person directly working under him, all answers in the cross-examination unless prove that the witness falsely identifies the signature are without any weightage whatsoever. (a) If the confessional statement at Exh. 936 is perused, the confessional statement of A-7 seems to have been recorded by the police officer - PW-57, on 29/04/2003 and on the same date, the statement has been verified by late Shri Raneksha. The signature along with designation of late
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learned Chief Metropolitan Magistrate can also be seen along with his endorsement. (b) Exh. 945 is the statement of A-20 on 18/05/2003 by the police officer which has been verified on 20/05/2003 at about 10.55 a.m. by late Shri Raneksha. Wherein also the adoption of procedure as noted in (a) can be seen. (c) Exh. 946 is the confessional statement of A-21 recorded on 18/05/2003 by the police officer which was verified by late learned Shri Raneksha on 20/05/2003 at 11.20 a.m. Wherein also the adoption of procedure as noted in (a) can be seen. (d) Exh. 944 is the confessional statement of A-22 recorded on 18/05/2003 by the police officer, verified by late learned Chief Metropolitan Magistrate at 10.30 a.m. on the same date. Wherein also the adoption of procedure as noted in (a) can be seen. (e) Exh. 948 is the confessional statement of A-23 recorded on 25/05/2003 by the police officer, verified by late learned Shri Raneksha on 26/05/2003 at 10.30 a.m. Wherein also the adoption of procedure as noted in (a) can be seen.
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(f)
Exh. 949 is the confessional statement of A-24 recorded on 25/05/2003 by the police officer, verified by late Chief Metropolitan Magistrate on 26/05/2003 at 10.45 a.m. Wherein also the adoption of procedure as noted in (a) can be seen.
(g)
Exh. 950 is the confessional statement of A-25 recorded on 25/05/2003 by the police officer, verified by late Chief Metropolitan Magistrate at 11.15 a.m. on 26/05/2003. Wherein also the adoption of procedure as noted in (a) can be seen.
(h)
(i)
Exh. 960 is the confessional statement of A-45 recorded on 09/01/2004 by the police officer, verified by late Chief Metropolitan Magistrate on the same day at 3.15 p.m. Wherein also the adoption of procedure as noted in (a) can be seen.
(j)
Exh. 961 is the confessional statement of A-46 recorded on 09/01/2004 by the police officer, verified by late Chief Metropolitan Magistrate on the same day at 3.15 p.m.
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Wherein also the adoption of procedure as noted in (a) can be seen. (k) Exh. 962 is the confessional statement of A-47 recorded on 11/01/2004 by the police officer, verified by late Chief Metropolitan Magistrate on 12/01/2004 at 10.30 a.m. Wherein also the adoption of procedure as noted in (a) can be seen. (l) There are certain confessional statements wherein the signatures of late learned Chief Metropolitan Magistrate Shri Raneksha have not been got identified by the learned Special P.P. during the examination in Chief of PW-186 itself, but the Court is not helpless for the said bonafide lacking on the part of learned Special P.P. Numerous forwarding letters, yadis, confessional statements with verifying endorsements, signatures of late Shri Raneksha as discussed above are on record as proved documents to the satisfaction of this Court to have been verified, signed by learned late Shri Raneksha as discussed above. Even endorsement of verification in English and Gujarati handwriting can be seen in these proved documents. Most of the documents have stamp revealing designation, of late Shri Raneksha of Chief Metropolitan Magistrate Court, Ahmedabad. It is to be borne in mind that there is lawful presumption to proprietary to the work done by Shri Raneksha as provided in illustration 'e' of Section 114 of the Indian Evidence Act.
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(m)
The case of the prosecution is that even in case of the below mentioned accused also the confessional statements were verified by late Shri Raneksha while the said accused were produced before him for the said purpose at which point of time also the same procedure of endorsement, sign, stamp of designation etc. were adopted as was adopted in case of above referred proved documents of the confessional statements. Invoking the power under Section 73 of the Indian Evidence Act this Court has compared signatures of late Shri Raneksha and or writing of endorsements on confessional statements, on yadi of I.O., on the forwarding letters, covers etc. qua the below mentioned cases and writing of endorsement, signature on confessional statements, yadi of I.O., forwarding letters, cover etc., all purport to have been made by late Shri Raneksha proved to the satisfaction of this Court referred in (a) to (k). Upon this exercise this Court has no hesitation to hold that in case of all the remaining accused also the below mentioned signatures on the forwarding letters, yadis, covers, writing of endorsement on the confessional statement, signature on the same in the cases discussed at (n) to (r) & (t) were verified, signed by late Shri Raneksha and the endorsement are held to be in the same writing and wherein the stamp of the designation of late Shri Raneksha has also been applied. At the cost of repetition it is clarified that signature on the forwarding letters, signature on those letters, signature below the endorsement on yadi, signatures on cover as sender like the signatures below endorsement in the confessional
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statements are also held to be of late Shri Raneksha upon the similar exercise. (n) Exh. 956 is the confessional statement of A-38 recorded on 15/08/2003 by the police officer, which clearly seems to have been verified by late Chief Metropolitan Magistrate Shri Raneksha on 16/08/2003 at 5.45 p.m. Wherein also the adoption of procedure as noted in (a) can be seen. (o) Exh. 979 is the confessional statement of A-32 recorded on 05/08/2003 by the police officer, verified by late Chief Metropolitan Magistrate on 06/08/2003 at 10.40 a.m. Wherein also the adoption of procedure as noted in (a) can be seen. (p) Exh. 937 is the confessional statement of A-8 recorded on 29/04/2003 by the police officer, verified by late Chief Metropolitan Magistrate on 29/04/2003 at 16.15 p.m. Wherein also the adoption of procedure as noted in (a) can be seen. (q) Exh. 978 is the confessional statement of A-27 recorded on 25/05/2003 by the police officer, verified by late Chief Metropolitan Magistrate on 26/05/2003 at 11.00 a.m. Wherein also the adoption of procedure as noted in (a) can be seen.
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(r)
(s)
Upon perusal of the date of recording the statement and date of verification of the statement, there does not remain any doubt on the aspect of production of the accused within 48 hours from recording of the confessional statement and verifying the same by learned late Shri Raneksha.
(t)
Exh. 1008 is the original confessional statement of A-44 wherein also Yadi, forwarding letter, original confessional statement and production of the accused within 48 hours are clearly on record, but in case of A-44, he has denied to sign which shall be dealt later. However, this accused has admitted to have stated the fact voluntarily before the police officer suffice to say here that even in case of A-44, the production of the accused apparently seems to be within 48 hours.
(u)
Needless to add that illustration 'e' of Section 114 of the Indian Evidence Act operates lawful presumption in favour of its proprietary it being judicial act.
7.4
Among all the above referred confessional statements in some of them the signature of late Shri Raneksha have been identified by PW 186. In case of these statements, the typed forwarding letter,
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the Yadi given by PW 199, the endorsement of late Shri Raneksha on the said Yadi fixing the date and time to produce the accused are written wherein signature of late Shri Raneksha along with the stamp of his designation can clearly be seen. There are also covers wherein there is confidential outward number, mention of the present case, signature of late Shri Raneksha as sender, letter to have been addressed to learned predecessor the then Special Judge, POTA Court or to the learned Principal Judge to send it to Special Judge, POTA, are all the documents attached along with different confessional statements which all fortified the presumption under Section 114 of the Indian Evidence Act which all lead the court to hold that all the requisite procedures were properly adopted this being the judicial act. Reflection :7.5 Three of the defence have been relied upon to submit that the sufficient reflection time has since not been given to all the accused the confessional statement should be eschewed from consideration. The settled legal position and the provision of Section 32 POTA make it amply clear that there is no universal mandatory rule of law that a confession recorded without allowing time for reflection must be declared as inadmissible. Section 32 of POTA does not lay down any rule for giving time for reflection for reflection before recording a confession. It is true that at times insufficient reflection time and not providing legal aid can create doubt against the voluntariness of the confessional statement, but it varies fact to fact and case to case.
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In the case on hand, it is held that no reasonable doubt has been created by the defence against the confessional statements. 7.6 In light of the foregoing discussion this Court has no hesitation to hold that in case of all the above referred seventeen confessional statements viz A-7, A-8, A-20, A-21, A-22, A-23, A-24, A-25, A-26, A-27, A-32, A-38, A-43, A-44, A-45, A-46 and A-47 are such wherein the requisite of Section 32(4) of POTA have been duly complied and fully satisfied by producing all the said accused with in 48 hours of their recording of confessional statements before the police officer PW 57. PW-169 :7.7 As deposed, PW-169 was Additional Chief Metropolitan
Magistrate during the period from 2004 to 2006, she was Incharge Chief Metropolitan Magistrate on 8/11/2004 when she has received Yadi Exh.1396 and on the very same day the A-48 was produced before her, whose original confessional statement was received by her in a cover, she did ask A-48 whether the accused has any grievances against the police and whether the statement was voluntary or not. The witness has replied that he has no complaint and the statement was voluntarily given by him. The Judge-witness has then read over the statement to the accused who admitted the same to be true and then after, the endorsement and sign was made and seal was applied, the accused has signed on each page, witness has signed below the endorsement and then the seal was applied. Exh. 963 is the original confessional statement which the Judge-witness sent along with the forwarding letter to my learned predecessor.
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7.8
Exh. 1396 is the Yadi of the I.O. with endorsement of the Judgewitness, her signature and stamp. The confessional statement Exh. 963 is recorded on 7/11/2008, there is signature on each page of the accused, the confirmation proceedings before the Judge-witness took place on 8/11/2004 which shows the production of the accused within 48 hours before the Judgewitness, the forwarding letter is a part of Exh. 963, along with all the formalities as was carried out by decease Shri Raneksha which is also dated 8/11/2004, the cover with confidential outward, signature and statement of witness are on record which if seen cumulatively shows the production of the accused No. 48 within 48 hours of recording the confession before the Judge-witness.
PW-156 :7.9 The confessional statement of A-50 was to be confirmed by this Judge-witness, Exh. 1278 is the Yadi, Exh. 964 is the confessional statement, the part of it is forwarding letter of the Judge-witness, the Yadi by the I.O. to the witness, the confessional statement Exh. 964 dated 28/11/2004 and production before the witness of A-50 is dated 29/11/2004, the forwarding letter along with confidential cover showing the confidential statement to have been sent to this Court are all on record. As is clear, A-50 was also produced within 48 hours before the Court of learned Chief Metropolitan Magistrate. PW-157 :7.10 Among the tried accused, A-16, A-17, A-18, A-19, A-40, A-41 and 42 were all produced before this Judge-witness for the confirmation proceedings of their confessional statements on record.
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7.11 Exhs. 1280, 1281 &1283 are all the Yadis for different accused from among those who are mentioned hereinabove and who were produced before this witness for the confirmation proceedings. The endorsement of the Judge-witness, signature and designation can be seen, Exh. 940 the confessional statement of A-16 dated 16/5/2003 seems to have been confirmed by the Judge-witness on 17/5/2003, Exh. 941 of A-17, Exh. 942 of A-18, Exh. 943 of A19 are all different confessional statements wherein the confirmation proceedings have been done on 17/5/2003 by the Judge-witness for the confessional statements recorded on 16/5/2003. 7.12 Exh. 958 is the confessional statement of A-40 and Exh. 957 is the confessional statement of A-41 recorded on 5/11/2003 and the said accused as emerges on record were produced before the Judge-witness on 6/11/2003. 7.13 Exh. 959 is the confessional statement of A-42 recorded on 3/12/2003 and production of this accused for the confirmation proceedings before the Judge-witness is on 4/12/2003. 7.14 After all the above referred confessional statements of A-16, A-17, A-18, A-19, A-40, A-41 & A-42 are perused it is clear that all these 7 accused were produced before the Judge-witness within 24 hours. They all have confirmed the confessional statements, and signed the said statements. 7.15 The forwarding cover signed and sent by the witness to my learned predecessor is also on record.
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7.16 All the confirmation proceedings of these accused by this Judgewitness was done as were produced within 48 hours of their recording confessional statement before police officer. PW-193 :7.17 This Judge-witness was directed to do confirmation proceedings as was ordered vide Exh. 1626 by the Chief Metropolitan Magistrate on 8/8/2003 on the Yadi. A-30, A-31, A-34 & A-36 were all produced before this witness for the confirmation proceedings of the confessional statements recorded of the accused. These confessional statements were produced before the witness, the statements were read over to the accused, the accused have signed before the witness thenafter, the witness has signed and applied the stamp, the preliminary understanding was given by the witness has even been deposed by the witness. The witness has further deposed that the forwarding letter and all said confessional statements of these accused were sent by the witness. 7.18 Exh. 1626 is on record which is a yadi by the I.O. to the then learned Chief Metropolitan Magistrate, the order of the then Chief Metropolitan Magistrate on back of the Yadi can be seen which is dated 8/8/2003. 7.19 Exh. 1627, the confidential letter by the witness to the learned Chief Metropolitan Magistrate to have recorded the 4 confessional statements and to have sent the same along with production report and the original confessional statements, Exh. 953 is the confessional statement of A-31 dated 8/8/2003 shows to have been produced before the witness on the same date, in case of A30 Exh. 952, in case of A-34 Exh. 954, in case of A-36 Exh. 955
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are all on the record which all confessional statements have been recorded on 8/8/2003 and wherein all the accused have been produced before the Judge-witness for the confirmation proceedings on the same date where in all the cases the confessional statements of the respective accused have been recorded and the A-30, A-31, A-34 & A-36 were produced before the learned Magistrate viz PW-193 within 48 hours of the recording of their confessional statements, PW-170 :7.20 PW-170 has deposed to have been working as Metropolitan Magistrate from June 2000 to June 2003 and that Exh. 1403 Yadi for confirmation proceedings for A-1 to A-5 was received by this Judge-witness who has received the confessional statements in the open cover, A-1 to A-5 were produced at the residence of the witness on 26/4/2003, the confirmation proceedings were done at the residence of the witness, Exh. 931 to 935 are the confessional statements respectively of A-1 to A-5, the witness further deposes that he has given his deposition in another POTA case viz POTA case No. 7-8/2003, this witness has sent all the confessional statements to the learned Chief Metropolitan Magistrate and that the confirmation proceedings were done by the witness. 7.21 During the course of the cross-examination, the witness admits to have not endorsed on the Yadi as to on which date and at what time the I.O. had produced the accused before the Judge-witness, the witness admits recording of the time of production of the accused to be 17:45 hours.
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7.22 Exh. 1403 is the Yadi by the I.O. wherein the endorsement of PW170 is received on 26/4/2003 at 17:45 p.m., vide Exh. 931 to 935 the confessional statements respectively of A-1 to A-5 are on record. Upon perusal of it, it becomes clear that all the confessional statements before PW-57 the recording police officer were recorded on 24/4/2003, the time of recording of the said confessional statements is nowhere mentioned. The confirmation proceedings were admittedly carried out after 17:45 p.m. of 26/4/2003. It is for this reason it is necessary to examine the factor of time of recording of the confessional statements so as to ascertain whether the requisites under Section 32(4) of the POTA was complied or not since the accused should be produced before the learned Judge-witness within 48 hours of recording of their statement. 7.23 It is necessary to take a note of the fact that throughout the deposition of PW-57 it nowhere gets clarified as to at what time on 24/4/2003 the confessional statement was recorded. 7.24 It is to be noted that this very witness viz PW-57 has given his oral evidence in POTA case No. 8/2003 as has been admitted by the witness. His oral evidence of that case is brought on record by defence which which Exh. 983 of this case. The witness was confronted during the course of cross-examination in that case. Exh. 983 earlier oral version of PW-57 has been carefully perused with a view to search truth and to come to just conclusion and to decide point in issue of compliance of Section 32(4) of POTA. Upon perusal of the said deposition of PW-57 at Exh. 983 of the POTA case No. 8/03 this Court finds, particularly perusing page
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No.7 that the witness viz PW-57 herein, the DCP-recording police officer has admitted in that POTA case that A-1 to A-5 were taken to PW-57 on 24/4/2003, page 7 further clarifies that the 5 accused were taken to the PW-57 on 24/4/2003 for the purpose of recording of their confessional statements at about 1:30 p.m. and that they were with the witness between 2 p.m. to 8 p.m. during which the confessional statements were recorded. 7.25 Now, when A-1 to A-5 were with this witness between 2 p.m. to 8 p.m. it is not getting proved on record as to whether the recording of the confessional statement of which of the accused was completed before 17:45 hours because for the compliance of Section 32(4) of the POTA the A-1 to A-5 should have been taken to PW-170 at 17:45 hours of 26/4/2003. The accused must have been taken to the PW-57 within last 48 hours from the said 17:45 hours of 26/4/2003. In the case of A-1 to A-5 it is therefore doubtful whether A-1 to A-5 were produced within 48 hours of recording their statement before the Judge-witness for the confirmation proceedings or not. Section 32 of the POTA is a mandatory, specific, expressed provision and in a self contained code the same should be therefore complied and strictly interpreted. There is reasonable doubt emerged on record about the compliance of Section 32(4) as far as A-1 to A-5 are concerned looking to the time factor of recording confession between 2:00 p.m. to 8:00 p.m. on 24/4/2003 and producing the accused for confirmation proceedings at 17:45 hours of 26/4/2003. Hence, in case of A-1 to A-5 it is held that the confessional statements though from the deposition of PW-57 appears to have been voluntary but the compliance of Section 32(4) of the POTA becomes doubtful. The benefit of the said doubt should go in
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favour of the accused and that for these reasons the confessional statements of A-1 to A-5 has to be eschewed from the consideration because of the reasonable doubt on the record. CONCLUSION :7.26 In view of the foregoing discussion, in case of all the above accused A-7, A-8, A-16, A-17, A-18, A-19, A-20, A-21, A-22, A-23, A-24, A-25, A-26, A-27, A-30, A-31, A-32, A-34, A-36, A-38, A-40, A-41, A-42, A-43, A-44, A-45, A-46, A-47 A-48 & A-50 the requisites under Section 32(4) of producing the respective accused before the learned Metropolitan Magistrate within 48 hours from recording their statements along with the original statement of confessions are held to have been satisfied thoroughly. Whereas, in case of A-1 to A-5 there is reasonable doubt qua the production of these accused within 48 hours of the recording of their confessional statements for confirmation proceedings before PW-170 as required under Sub-section 4 of Section 32 of POTA Act. Hence, in the case of these accused Section 32(4) of POTA is held to have not been proved to have been complied beyond reasonable doubt. Compliance of Section 32(5) of the POTA : 8.1 There is nothing on record to disbelieve the version of the D.C.P. police officers who have been vested power to record the confession of the accused to have recorded the confessional statements lawfully, properly and in strict compliance of the provisions of Section 32 POTA. The oral evidence does not cast any doubt, they have no animus against the accused, they were not interested in investigation and their evidence is found truthful.
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8.2
PW 157 for accused No. 16, 17, 18, 19, 40, 41, 42, PW 193 for accused No. 30, 31, 34, 36 and PW 169 for A-48, have formally proved the procedure adopted while carrying out the confirmation proceedings for the confessional statements of the respective accused which as held above have been found satisfactory qua Section 32(4) of POTA. The confessional statements are found to the utmost satisfaction of this Court to have been properly, lawfully and validly confirmed by late Shri Raneksha in case of accused No. 7, 8, 20 to 27, 32, 38, 43 to 47. To ascertain as to whether the requisites laid down in Section 32(5) stand satisfied or not, it is thought fit to evaluate the oral evidence of the respective Judge witnesses.
8.3
With a view to assess the oral evidence of PW 157 who has proved to have done confirmation proceedings as required u/s 32(5) of POTA, this Court has perused the cross-examination. Before proceeding to peruse the cross-examination, it sounds fitting to take a note of the fact that Section 32(5) of POTA requires the Chief Metropolitan Magistrate, inclusive of the Incharge Chief Metropolitan Magistrate or the assignee Judge witness who has been assigned the said job by the Chief Metropolitan Magistrate to record if any statement is made by the accused and get his signature. If the complaint of the torture is made by the accused, then the accused is required to be sent to judicial custody after the medical examination. Thus, it is clear that while doing the confirmation proceedings, the confirming Judge should be handed over with the original confessional statement with the accused within 48 hours of recording the statement and then upon such production, the Judge should record the
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statement, get the signature of the accused and in case of any complaint of physical torture, send the accused for medical examination and then to the judicial custody. Pausing here for the moment, it needs to be noted that the confirmation proceedings under POTA are solely governed by Section 32 of POTA as held in the Parliament Attack case and the proceedings u/s 32 of POTA cannot be governed by Section 164 of Cr.P.C. There are no rules made under POTA as were made under TADA. What is not written in the Act cannot be read unless by some judgment Hon'ble Higher Court so held. The defence has not produced any statement whereby it can be concluded that the Chief Metropolitan Magistrate is required to do any other procedure other than what is written in Section 32. The said being the situation the confirmation proceedings for all the confessional statements given by the accused will have to be accordingly appreciated and in the same manner,the oral evidence of the Judge witnesses will also have to be weighed. 8.4 The learned counsel Mr. Panchal has emphasized that there is no material by which it can be held that grant of reflection time is the mandate or even grant of the legal aid unless sought for before recording the statements is a mandate and that it is also not mandate that the Judge has to send the accused in the judicial custody after the confessional statement is over though no physical torture is complained. There is nothing on record to hold that the suggestions asked to the Judge witnesses needs to be compulsorily observed which in fact have not been provided in Section 32 of POTA.
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8.5
If deposition of the police officer or Judge witnesses are seen, then the DCP witnesses have deposed to have recorded the confessional statement following the procedure the investigating ACP has informed the DCP to record the confession, the accused were produced within 48 hours from recording their statement before the Judge witnesses except A-1 to A-5, the accused have signed their confessional statement which is a clarifying conduct that the statement by the DCP recording police officer were recorded as were made by the accused, the accused confirms the same, no complaint is made by the accused to the Judge witnesses, the accused were thenafter taken by the police. Thus, satisfaction of both DCP and Chief Metropolitan Magistrate about the voluntariness of the confessional statements of different accused have been deposed by both the witnesses by stepping into the witness box. Both these components are found trustworthy.
8.6
It is clear that no duty is cast upon the Chief Metropolitan Magistrate to record the confessional statement afresh or himself ascertain the nature and circumstances under which the confessional statements were made by the respective accused unless complaint is made by the accused regarding torture etc. It is therefore clear that even if a separate certificate has not been given by the Judge witnesses, the confessional statement can be relied upon and are admissible in evidence.
8.7
In the matter of Devendra Pal Singh relied upon by the prosecution cited at as Sr. No. 6, the similar procedures were adopted and the said confirmation statements were relied upon.
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8.8
It is true that by way of Further Statement and even some of the suggestions in the cross-examination, the accused have denied to have made any confessional statement before DCP and that the accused have further stated by way of their retraction, Further Statement, oral submission, etc. that they were compelled to sign on some blank paper or half written paper under compulsion, threat, etc. and that the entire proceedings of the confessional statement are concocted piece of evidence. Some of them have alleged that they had constant fear in their mind of being killed in encounter and that their family members would be booked in POTA if they do not sign the statement, hence they have signed the statement. These submissions for defence are found by this Court devoid of any merits and after the prosecution has discharged its burden of proving the confessional statements to be voluntary, proper, lawful and truthful the defence has to rebut to prove it otherwise the defence has failed to rebut which is further discussed here in below.
8.9
This Court found the oral evidence of DCP Police witnesses to be satisfactory and convincing and there does not appear lapse on the part of the said recording officer which can be termed to be breach of Section 32 of POTA. Moreover, after recording of the confessional statement by the respective DCP witnesses, the accused had been to the Judge witnesses. Except in case of A-44 and A-50, none of the accused has raised any objection to sign and confirm the contents of confessional statement before the Judge witnesses. Had there been employment of fear, threat, duress, coercion, etc., then it should have been reflected before the Judge witnesses as has been reacted by A-50. Even A-44 has
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in specific told the Judge witness that though before the recording officer, the confessional statement was made voluntarily, but now before the Judge witness, A-44 did not wish to sign, even such a request was conceded to. All the accused, except the above two, have signed before the Judge witnesses without any agitation or objection, they have not complained about any physical cruelty, no sign of physical cruelty has been noticed in case of any of the accused while the medical examination was conducted periodically in case of the respective accused which all would cumulatively exhibit that the atmosphere before the concerned recording DCP officer was free from threat or inducement and that none of the accused has remained silent before the concerned police officer and the concerned police officer have recorded the statement which was voluntarily given by the respective accused to the concerned recording witness and that the confessional statement came to be recorded in the language which the accused speaks which is being tallied from the Further Statement as at the end of the Further Statement the language in which the accused has replied has been noted. In light of the above discussion, this Court is inclined to hold that no reasonable doubt whatsoever has been poised on record to doubt the oral evidence of the respective recording DCP Police witnesses and that the confessional statement of the accused before the respective police officers was apparently voluntary. 8.10 The Judge witnesses have been extensively cross-examined by the defence wherein they have been assailed on the aspect of topography of the Court, doubt of presence of official of the Crime Branch, non-examination of physical state of the accused, not complying the direction of the judgment in the cases popularly known as Rajiv Gandhi assassination and Parliament Attack case,
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having not inquired with the accused whether he desires to have legal aid or not, the statement was not read over to the accused, reflection time was not given, non-compliance of guidelines given u/s 164 of Cr.P.C., not sending the accused to judicial custody, not giving inward number to Yadi, not maintaining Rojkam, not sending to judicial custody, inability to identify the accused in the Court, the statement not having been written in the handwriting of the Judge witness and not knowing the kind of custody of the accused which have all not been found based on requisite of Section 32 of POTA and that they were linked with the cited judgments which were not u/s 32 of POTA and were for the violation of Rule 15 of TADA, etc. In the humble opinion of this Court, different suggestions in the cross-examination including to an extent that by using the power of Judge, the Judge witness has obtained signature on the confessional statement, etc. cannot take away the positive, credit worthy and clinching evidence put forward by the prosecution by which the confessional statement for the accused as held in final conclusion hereinbelow to be voluntary and truthful and that the prosecution has proved all the requisites of Section 32 to have been thoroughly complied in case of the confessional statements of all the accused except A-1 to A-5, A-44 and A-50. 8.11 Before proceeding ahead, it is necessary to note that as has been held in the judgment relied upon by the prosecution at Sr. No. 7, the Chief Metropolitan Magistrate has at the most duty to record the statement of the accused if made regarding harassment, torture, etc. and that it is not obligatory on the part of the Magistrate to question about the voluntariness otherwise.
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8.12 This Court firmly believes that irregularity in recording the statements, different styles of the confirmation proceedings do not make the confessional statement inadmissible or do not lessen the evidentiary value, if the requisites laid down in Section 32, the said being mandatory provision of self-contained code, stands satisfied. 8.13 Each page at the end of the confessional statements have been found to have been signed by the respective accused except in case of A-44 and A-50. 8.14 The DCP witnesses have described the manner in which it were recorded in their oral evidence. The confessional statements have been found to have been recorded in the language known to the respective accused, initial warning as required u/s 32 clearly appears to have been given in writing to the accused which is preceding each confessional statement and that by the oral evidence of the recording police, DCP witnesses and the Judge witnesses, all the confessional statements except in case of A-44 and A-50 and A-1 to A-5 have been thoroughly formally proved with clinching and convincing evidence to be proper and lawful as required under Section 32 of POTA. It is for this reason this Court is not inclined to accept the submission that the confessional statements were never made or have been made on account of employment like fear, threat, duress, etc. 8.15 The judgment cited at Sr. No. 10 is also under POTA which is relied by the prosecution of the year 2008 wherein also in para 10, there is no mention of reflection time.
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8.16 Ultimately, the concept of reflection time seems to have been evolved from the guidelines in form of administrative instructions given in Criminal Manual, to be specific at Para 34 onwards, which is applicable to the confessional statement, if recorded u/s 164 of Cr.P.C. and that as has been held in the Parliament Attack case by Hon'ble the Apex Court, there is no hard and fast rule for grant of reflection time. 8.17 As has been deposed in the examination-in-chief by different Judge witnesses, all the confessional statements except for A-44 & A-50 have been confirmed by recording endorsement below the same which endorsements are clearly suggestive of the fact that no complaint whatsoever about any torture, ill treatment etc. was made by the accused to the respective Judge witnesses and that the confessional statements as were recorded before the respective DCP witnesses were confirmed by the accused before the respective Judge witnesses. This is reflecting satisfaction of the judicial mind on the aspect of voluntariness of the statement and absence of any other element like fear, threat, duress, etc. after which the confessional statements were confirmed. 8.18 It is matter of common knowledge that the judicial officers neither have any animosity against the accused nor they would ever interested in the investigation. Hence, their recording of the statement is clearly and undoubted pointer to the propriety of the procedure adopted by both the limbs the police officer and the Judge witnesses which is getting support from Illustration (e) of Section 114 of the Indian Evidence Act. 8.19 Here, one has to peruse as to what has happened in case of A-50 and A-44. Firstly, in case of both these accused, the Judicial
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Officers were two different Chief Metropolitan Magistrates of the respective time. In case of A-50, he was produced before PW 156 who has received the confessional statement in sealed cover, the contents were read over, when A-50 has stated before the Judge witness that signatures in the papers were taken in coercive manner from him and that he has not given any confessional statement, the Judge witness has made similar kind of endorsement as stated by A-50. The A-50 was questioned by PW 156 whether he had any complaint to be made for physical torture and when the accused denied the same, the confessional statement of the A-50 produced was not confirmed by the Judge witness. Not only that, but PW 156 said the same thing on oath before this Court. The confessional statement without confirmation was duly processed and sent to this Court by sending Yadi Exh. 1278 and that as can be seen on internal page 23 of Exh. 964, the confirmation proceedings were not carried by the Judge witness by writing the endorsement of the report given by A-50 which was signed by the A-50 and that is the case of even A-50. PW 156 has sent along with his endorsement, confessional statement, forwarding letter, Yadi, etc. to this Court which are on record. In the opinion of this Court, this is a glaring illustration of the fair and just treatment been offered to the accused while the confirmation proceedings. 8.20 The case of A-44 was handled by late Shri N.B. Raneksha. The confessional statement at Exh. 1008 and A-44 were produced before late Shri Raneksha on 22/12/2003 for the confirmation proceedings. If the endorsement of late Shri Raneksha is perused,
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it is clearly written that the accused has been produced, no complaint of ill treatment has been made, the statement was read over to the accused who admits to have made it voluntarily, the accused has then stated that but he denies to sign the statement before late Shri Raneksha. The confirmation was not done by the Judge witness and it was endorsed accordingly. The preliminary warning was though signed by the accused and even voluntariness of the contents of the confessional statement have been admitted before late Shri Raneksha he did not confirm the confessional statement. 8.21 Even this is another illustration clarifying on record that unless the judicial mind were satisfied about the voluntariness of the confessional statement beyond any doubt and absence of ill treatment and the elements like fear, force, inducement, etc. while the confessional statements were until confirmed the confession were not being confirmed. The above two illustrations are clearly making out the case of clear application of mind by the respective Judges, fairness of procedure being adopted, the responsible treatment being given to the job assigned to the respective Judges and whole hearted involvement of the respective Judges. Hence, the submission that the Judges have mechanically done confirmation procedure cannot be subscribed. 8.22 At this juncture, it is to be noted that learned Advocate Mr. Panchal, the Special P.P. has submitted in case of A-44 that the voluntariness of the accused is beyond doubt hence, this confessional statement cannot be eschewed from the consideration. But then this Court humbly but firmly believes that the mandatory requisite of Section 32(5) is getting the signature of the accused upon his willingness or unwillingness, as the case
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may be, thus doing the confirmation proceedings. In this case, though there is admitted voluntariness on the part of A-44, but then the proceedings have not been confirmed by the Judge witness and that the accused has not signed the statement adhering to the contents of the confessional statement, it is held that the confessional statement of A-44 cannot be read into evidence. Thus, in nutshell, this Court is of the considered opinion that in case of A-50 and A-44, the requisites of Section 32(5) of POTA do not stand satisfied and that both these confessional statements cannot be read into evidence as the mandatory requirement of Section 32 is not satisfied. To deal with the retraction :9.1 In case of A-6 and A-10, though no confessional statement whatsoever were recorded, the retraction statements were sent after 4 months from the date of the judicial custody of the respective accused. 9.2 In case of A-39, though there is no confessional statement, the retraction statement was sent after one month. What is notable in all the three cases is the retractions have been written on a ledger paper, it is typed and apparently seem to have been drafted by the learned Advocate for the respective accused. This is one of the aspect which is throwing light on the fact as to in what manner the retraction statements were sent as the retraction statements have even been sent in the cases where the confessional statements have not been recorded.
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9.3
A-38, A-43, A-44, A-47 and A-48 have not retracted from their confessional statement made by them.
9.4
In case of A-7, A-20, A-21, A-22, A-23, A-24, A-25, A-26, A-30 and A-31, the retraction statements have been made on ledger paper, it is typed and it clearly seems to have been drafted by the learned Advocate. (a) Apart from this aspect, in case of A-7, an inland letter was also sent to the Court, but in both the cases, the retraction statements were made after 4 months from the date of the judicial custody. (b) In case of A-20, it is made after 3 months from the date of the judicial custody. (c) In case of A-21, it is made after 3 months from the date of the judicial custody. (d) In case of A-22, the inland letter Exh. 45 is also on record and ledger paper retraction is also on record, the drafting of which is similar to A-21, but however, the retraction came after about 2 to 3 months. (e) In case of A-23, it came after about 2 months after judicial custody. (f) In case of A-24, the draft of the retraction is same to that of A-23 which came after 2 months of judicial custody. (g) In case of A-25, the retraction dated 14/5/2003 is on record
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which is prior to sending the accused in judicial custody on 3/6/2003. This is reflecting the fact that the retraction statement came in even before the confessional statement was made. This is also showing a systematic way of sending retraction without any base of the statement. (h) Vide Exh. 49, a retraction statement on ledger paper, typed and apparently seems to have been drafted by a lawyer was sent, which was after about 2 and half months from judicial custody. (i) In case of A-26, a lawyer's drafted retraction at Exh. 50 on 26/8/2003 is on record and another retraction statement came on 8/12/2003. Thus, in any case, the retraction statement was after 2 months from the date of judicial custody of the respective accused. (j) In case of A-30, it is after one month, in case of A-31 also, it is after one month. (k) In case of A-27, a retraction statement written in Gujarati script but of Hindi language has been sent on 11/9/2003 and a letter purely written in Gujarati apparently seems to have been drafted by learned Advocate has been sent on 12/11/2003. Thus, the retraction statement in any case was after 3 months from the date of judicial custody even in case of A-27. (l) In the case of all the above referred accused, the retraction statements firstly are extremely delayed which is very confessional
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unnatural, secondly, have been drafted by the lawyer and hence seem to have been product of counselling by the respective learned Advocate of the accused and that considering the date of judicial custody and the date of retraction the unnatural delay in sending retraction area all clearly seems to be after thought and the retraction are not held to be genuine. (m) In case of A-8, the retraction statement came after about 4 months, in case of A-16 to A-19, it came after about 6 months, in case of A-32, it came after about one month, in case of A-34, it came after about one month, in case of A36, A-40, A-41, it came after about 3 months, in case of A45 and A-46, it came after about 5 months. Had the confessional statement been taken by coercive means and methods, the said should have been objected by the accused at the earliest as the said can only be said to be natural conduct. Here, it is also notable that the confessional statements have been evaluated by this Court considering the work of two different limbs involved in recording and confirming the confessional statement. The different learned Chief Metropolitan Magistrates have also done necessary exercise and after application of their judicial mind and after deriving satisfaction in their mind, they have confirmed the statement. It is noteworthy at the cost of repetition that in case of A-44 and A-50 since the respective accused have denied to have signed before the learned Chief Metropolitan Magistrate, their signatures were not obtained by them. This is clearly reflecting that
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unless the respective accused desired to sign, he would not sign before the respective Metropolitan Magistrate, the accused should have freely reported that the confessional statements have been taken not by his free consent, but that has not been done. Now this delayed retraction will have to be seen in the light of the conduct of the respective accused before learned Chief Metropolitan Magistrate where confirmation proceedings have been done. Here, it is also needed to be noted that in case of A-42, he has clarified that except what has been stated by him in his confessional statement qua A-54, all other contents are truly made by him. This qualified statement has even been recorded. This is reflecting the seriousness with which the judicial mind has worked while undergoing the confirmation proceedings. Therefore, no iota of doubt is left in the mind of this Court that the confessional statements which have been retracted have any element by which they should be eschewed from the consideration. In the light of the settled legal position, in case of retraction, the said confessional statement can be believed, but while believing the said confessional statement, there should be cautious appreciation. While appreciating the totality of the facts and circumstances of this case with all judicial cautions, this Court firmly believes that the confessional statement, except in case of A-44 and A-50 and for the technical reasons, in case of A-1 to A-5, are worthy to be believed, are admissible in evidence and need to be considered as evidence.
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9.5
A-42 has made certain submissions during his Further Statement and through his L.A. about his confessional statement being not voluntary, the police had used coercive techniques and that he was kept under duress and threat.
(a)
Exh. 104 is the report of I.O. to submit the accused in judicial custody on 4/12/2003. When the accused was so produced by the investigating agency, the then learned POTA Judge deemed it fit to make necessary inquiry at the time of production and to record the oral submission made by the accused in form of her order below Exh. 104 as the accused has made some serious allegations about use of third degree by the investigating agency.
(b)
It is also fitting to take a note of the fact that vide Exh. 105, a written application, more or less with the same allegations, seems to have been written by L.A. Mr. J.M. Pathan for A42 along with the retraction statement, has been tendered. As has been recorded in the order below Exh. 104, L.A. Mr. J.M. Pathan for A-42 was permitted to meet the accused and thus, the application Exh. 105 came on the record.
(c)
The learned predecessor of this Court has recorded in her order below Exh. 104 that A-42 has made oral representation at the time of his production in response to the inquiry been made by her. The representation was to the effect that Physical cruelty by officers, whose names the accused does not want to give, has been undergone by him.
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The accused had been to Dubai, Bangladesh, Kolkatta, Hyderabad and other places. As is recorded in the first part of the order, A-42 has stated that he knows Aarif (A-54 in the trial). He knows Guddu and 5 others who were taken to Bangladesh. He has also seen many of the absconding accused. He oraly retracts the confession. In the latter part of the order, it has been recorded that the accused has stated before the learned predecessor of this Court that he does not know Aarif (A-54). What is clearly emerging from this record and the oral representation of the accused is that, in the same submission, in one breath A-42 states that he knows Aarif, but in another breath, he says he does not know Aarif who is brother-in-law of Chhota Shakil. This is revealing the conduct and attitude of the accused to any time embrace the most contradictory versions and to keep on shifting the statements made before the authority who is meant to record such statements.
(d)
The reports of the relative of their visits to A-42 while in the police custody dated 13/11/2003 and 22/11/2003 as part of compilation reveal that before the relatives, A-42 has not made any complaint of police harassment of any other kind on that date.
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(e)
Exh. 105 is the report by the I.O. dated 5/12/2003. Along with this report, there is a compilation revealing the accused to have been taken at the hospital of Mumbai and Kolkatta when he was taken there. This is showing that the investigating agency has taken due care and has complied with the directions to take care of medical treatment.
(f)
As seems on the oral submission at the time of production of the A-42 to judicial custody, the learned predecessor of this Court has passed the necessary order to take A-42 before the medical expert at Civil Hospital which order was passed with reference to application Exh. 105 tendered by A-42 and the production report of I.O. at Exh. 104.
(g)
As emerges from record, the report sent by R.M.O., Civil Hospital has been received as confidential letter in a cover sent to the learned predecessor of this Court which, as seems, is a compliance and action taken report for the order passed below Exh. 104. This confidential report is taken on record at Exh. 107. In this report, it has been specifically stated that the accused has been produced before the Civil Hospital on the same day viz 4/12/2003, who was then asked to be produced on 5/12/2003. The accused was produced on 5/12/2003, accompanying by Court Officer and Jail Authority who was examined by Medical Department, Surgical Department and Ophthalmology Department. The experts opined that no swelling was found on A-42, he was found normal and it has been specifically opined that no unusual findings were noted by any of the experts.
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(h)
In the order below Exh. 106 and 107 it has been noted by the learned predecessor that the report specifying the periodical check up during remand was seen and that the report of the Civil Hospital does not require any immediate steps.
(i)
All these collectively would mean that the team of the expert Doctors at Civil Hospital has examined the accused in presence of the Senior Deputy Regisrar Mr. Vaishnav sent by the learned predecessor of this Court from the Court staff with referennce to the submission made by A-42. It was opined by all the three experts that nothing unusual was found. If all this material is read together, it apparently seems that the version put forth by the accused was thoroughly baseless and it contained allegations for the sake of allegations without any substance therein.
(j)
The report at Exh. 114 dated 9/12/2003 sent by Medical Officer of the jail is on record which also shows that along with the other undertrial prisoners, A-42, as shown at Sr. No. 6, was given treatment and was referred to Civil Hospital.
(k)
Exh. 115 is also the application with the affidavits of relatives alleging against the Doctor and the I.O. The relatives have so stated as they have learnt so from A-42. This is also one more aspect to give strength to the opinion that A-42 is in habit of alleging the persons in authority in whom the Statute has vested great faith. This kind of attitude creates doubt about the truthfulness in the complaints and allegations made by A-42 because it seems
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that A-42 is in habit of levelling baseless allegations. Contrary versions before my learned predecessor in the same presentation, contrary presentation before learned Metropolitan Magistrate Court and learned predecessor on the same date, difference version before relatives while in custody and before Metropolitan Magistrate Court are all providing strength to this observation. (l) In light of all the above discussion, though A-42 has given his retraction on the date of production itself, the same does not seem to be a truthful retraction, but it is rather a part of the conduct revealing the habit of A-42 to speak one thing in one breath and to state contrary version in another breath and to keep on alleging without any substance. (m) Though it is to repeat, but sounds it extremely relevant that this Court is inclined to observe that if the confession of A42 at Exh. 959 is perused, it is making the things very much clarified that it is not usual and simple confirmation proceedings, but the confirmation proceedings seem to be out of the dialogue which A-42 had with PW 157 Shri D.M. Patel, the Judge witness. As has already been held earlier, the confirmation proceedings are held to have been carried out in a very responsible manner and upon deriving satisfaction of the judicial mind and that the same are very much credible. As is clear from the endorsement, A-42 was produced before the learned In-charge Chief Metropolitan Magistrate on 4/12/2003. As has been noted, no complaint about ill-treatment and then the accused has further stated that the person Aarif (A-54 herein) is not involved in the case. Except the involvement of Aarif in the statement, all
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other facts recorded in the statement were admitted by the accused to be true and as noted, then the accused has signed before the Judge witness on each page of the statement. Now on this very day itself, while the accused was produced for taking into judicial custody, he made all the complaints which have been discussed hereinabove before the POTA Judge which ultimately on scrutiny, have been found baseless. There is nothing to disbelieve the oral evidence of In-charge Chief Metropolitan Magistrate Shri D.M. Patel. The endorsement itself are self-speaking that the confirmation proceedings were done after talking with A-42 by the Judge witness. Here again, A-42 is found to have stated before the Judge witness to have no complaint about ill-treatment whereas while at production on the same date, he made all the allegations about the third degree. This tremendous contradictory version, conduct and unreliable behaviour of A-42 is a reflection of his inner personality where A-42 is in habit of speaking white lies. This Court is therefore of the firm and humble opinion that the retraction is ingenuine, unbelievable and is not inspiring confidence of this Court to be truthful. The frequency of A-42 of changing colour cannot take away the positive, convincing and clinching evidence brought on record which is clearly in support of the prosecution case and which has proved the
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prosecution case beyond reasonable doubt against A-42. The role of A-42 in the crime and other things shall be dealt with in the later part of this judgment. It is a case to choose between white lie of A-42 as against the oral evidence of PW 157, his endorsement below the confessional statement, the report of the expert team of medical branch from the Civil Hospital, the genuine compliance by the Court Officer Mr. Vaishnav under the direction of the learned predecessor of this Court and even report of the Jail Authority to have given medical treatment and lastly the report of the investigating agency to have carried out the investigation fairly in compliance of direction of Hon'ble the Supreme Court of India through different judgments. In the light of foregoing discussion the retraction of the A-42 seems to be ingenuine, not truthful, clearly an after thought, product of advise of his counsel when he was produced for judicial custody and as part of strategy of defence to create doubt against the prosecution version which has failed to emerge as reasonable doubt. It is held that after applying rule of caution and upon testing the retraction the confessional statement of the A-42 also sounds to be complying Section 32 of POTA. Final Conclusion : 9.6 Learned Advocates for defence have relied on different citations, but all those citations are for the confession under Indian Evidence Act or Section 164 of Cr.P.C. or under TADA. Under TADA, the Rules have been made. The guidelines given u/s 164
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of Cr.P.C. do not govern confessional statement under POTA. The guidelines for confessional statement under Indian Evidence Act is not applicable for confessional statement under POTA. No Rules under POTA have been made. In all the cited judgments, it is clarified as has been repeated lastly in Parliament Attack case that the question of reflection time is to be decided upon facts and circumstances of each case. The truthfulness and voluntariness of the confessional statement is also to be decided upon facts and circumstances of each case. In nutshell, while appreciating the legality, admissibility, propriety of the confessional statement recorded and confirmed only requisite of Section 32 of POTA is to be kept in mind as this itself is a self-contained Code. Hence, the cited judgments have been accordingly dealt with as are not applicable to the facts of the present case whereas the judgments cited by learned Special P.P. Mr. Panchal are applicable squarely to the facts of the present case and are guiding this Court to treat the confessional statement of A-7 at Exh. 936, A-8 at Exh. 937, A-16 to A-19 respectively at Exh. 940 to 943, A-20 and A-21 at Exh. 945 and 946, A-22 at Exh. 944, A-23 to A-26 respectively at Exh. 948 to 951, A-27 at Exh. 978, A-30 and A-31 at Exh. 952 and 953, A-32 at Exh. 979, A-34 and A-36 respectively at Exh. 954 and 955, A-38 at Exh. 956, A-40 at Exh. 958, A-41 at Exh. 957, A42 at Exh. 959, A-43 at Exh. 1007, A-45 at Exh. 960, A-46 and A47 at Exh. 961 and 962 and A-48 at Exh. 963. Thus, in nutshell, the confessional statements of A-1 to A-5 respectively at Exh. 931 to 935 are eschewed from consideration as are not complying Sub-Section (4) of Section 32 and in case of A-44 at Exh. 1008 and in case of A-50 at Exh. 964 are also the confessional statements which are held to be not admissible as the provisions of Sub-Section (5) of Section 32 have not been
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complied in cases of these accused. All the other confessional statements are believed to be lawful, proper, valid and in thorough accordance of Section 32 of POTA. In the light of foregoing discussion, it is concluded that in case of A-1 to A-5, the requisites as laid down in Sub-Section (5) of Section 32 of POTA are not satisfied. 10. Learned Advocate Mr. J.M. Panchal for the prosecution has relied upon prosecution citation Serial No.6, more particularly, paragraph-34 onwards wherein it has been held that when the retraction comes long after the accused is taken into judicial custody on the ground that the confessional statement was forcibly obtained, it becomes clear case of after thought. When the confessional statement is voluntary, no corroboration for the purpose of its acceptance is necessary (paragraph-34). When the accused was produced before the judge and after he does not make any grievance that his confessional statement was not in fact recorded as claimed or that his signatures were obtained on blank paper is claimed later. Such plea can be held to have been raised after a long passage of time as when the accused was produced in the Court he never made any grievance about any duress or coercion (paragraph-36). 11. A mere statement that requisite procedures and safeguards were not observed or that statement was recorded under duress or coercion is really of no consequences, such a stand can be taken in every case by the accused after having given the confessional statement. One has to show that why the officials would falsely implicate the accused.
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It is not the judicial approach to distrust and and suspect the police officers without any grounds thereto, such an attitude can do neither credit to the magistry to the public, but only run down the prestige of police administration (paragraph-37). 12. Prosecution citation Serial No.7 is emphasized to submit from paragraph-35 that the Magistrate, at the most, can record the statement of the accused if made regarding alleged harassment, torture or the like. If the Magistrate referred to in Sub-section (5) of Rule 15 has to ascertain the voluntary nature of the confessional statement. The purpose of Section 15 authorizes a police officer to record the confessional statement shall stand frustrated it was observed that it is not obligatory on the part of the Magistrate to question the accused as to whether they had made the said statement voluntarily or otherwise and that ought to have been formed as part of the record of the confessional statement. It is also highlighted from paragraph-37 that no duty is cast upon the Magistrate to record the confessional statement afresh or himself ascertain the nature of and the circumstances under which the confessional statement was made unless the complaint is made by the accused regarding torture. From paragraph 7. it is also emphasized that the settled position of law is confession is substantive evidence against its maker. 13. Prosecution citation at Serial No.10 has been relied upon, more particularly, paragraph-10, 12 & 16 by which it is clear that in the cited case the reflection time was not given, confirmation proceedings was done by knowing absence of torture or harassment by the police. It is further emphasized that this judgment is of the POTA case.
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14.
The prosecution citation at Serial No.11, paragraph 50 & 52 have been highlighted to submit that minor irregularities does not vitiate the evidential value of the confessional statement and that it is substantial piece of evidence. Further non-compliance of sending to judicial custody does not mandate to throw-away the confessional statement. When the accused have not put up their case that if they would have been guaranteed to send to judicial custody they would not have confirmed or they would have retracted.
15.
Prosecution citation at Serial No. 12 is highlighting a view that finding minor contradiction is natural, it is showing that the confessional statement is not written nor in mechanical manner.
16.
Prosecution citation at Serial No. 13, more particularly, paragraph 9 & 10 guide this Court that in State v. Nalini (relied upon by the rival sides and by the prosecution as citation at Serial No.34), the Hon'ble Supreme Court held that the confession is a substantiative piece of evidence, but as a rule of prudence, the Court should seek other corroborative evidence to test the veracity of the confessional statement. The crucial question is whether at the time when the accused was giving the statement he was subjected to coercion thereon or any undue influence or was offered any inducement to given any confession. The mere fact that the accused has retracted subsequently is not a valid ground to reject the confession.
17.
Defence citation at Serial No.32 is on the principle that confession cannot be made foundation of a conviction, it can only be used in support of other evidence.
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18.
Defence citation at Serial No.33 was pressed into service to submit that confessional statement was not corroborated by circumstances and medical evidence. Hence, it is not safe to convict solely on the basis of the same.
19.
Defence citation at Serial No.36 is pressed into service for in H.N. 'B' that sufficient cooling time had to be given to the accused. In the fact of the case, there was non-compliance of Rule 15(5) of the TADA Rules in the case on the hand no such Rules under POTA have been made and that the confession as on the hand was not made under Indian Evidence Act or Criminal Procedure Code as has been held in the Parliament Attack case, Section 164 of the Cr.P.C. would govern the confessional statement under POTA. In the light of the non-compliance of POTA Rules has been held in the fact of the cited case which fact is since not the fact of the case on the hand, this judgment is humbly held to be not applicable to the case on hand.
20.
Defence citation at Serial No.37 is also for the submission of that reasonable time should be granted to the accused. Just below H.N. under the title of Held-as is mentioned in paragraph-11 of the judgment it becomes clear that in a case when the officer forms a belief that the accused should be granted some time to think over the matter then reasonable time for the purpose should be granted, but in the same paragraph it has been clearly held thta what time should be granted would be of course depend upon the facts and circumstances of each case. Even in the Parliament Attack case, Their Lordships have been pleased to held that there is no hard and fast rule about the grant of reflection time as has already been discussed. Neither in the POTA Act nor
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in Rules made under the POTA or even through some administrative guidelines reflection time has been made a mandate. However, it is noteworthy that in the case on the hand 2 DCP witnesses have given reflection time. In one case it was 5 minutes, but even in the oral evidence he has clarified that he has told to accused that they may take more time. The other officer has given reflection time of 30 minutes. In the case on the hand, there was satisfactory compliance of Section 52 of POTA and in light of the facts and circumstances, the reflection time cannot be termed to be unreasonable at all. In the opinion of this Court, the cited judgment by the defence at Serial No.27 therefore does not guide that the confessional statement in the case on hand should be thrown away. 21. Vide judgment at defence citation Serial No.70, it was emphasized that if the confessional statements are not recorded in the mode and manner decided then the said becomes inadmissible in evidence. Upon careful perusal of this judgment, it becomes abundantly clear, more particularly, from paragraph-43 & 44 when in the fact of the cited case, Rule 15(3)(b) of the TADA Rules which is mandatory was not complied with and that memorandum required was not made, no contemporaneous record revealed the satisfaction of the recording officer which shows the voluntariness of the maker. In all the said background of the fact of the said case the confessional statement was held to be inadmissible in law as has been repeatedly discussed under the POTA there are no Rules framed, the guidelines in Criminal Manual cannot govern the recording of confession under Section 32 of POTA which itself is a code. Hence, looking to the facts of the cited case being totally different from the case on hand the cited judgment cannot come to the rescue of the accused.
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PART-III
SECTION 164 OF CR.P.C.:
(I)
CONFESSIONAL STATEMENTS OF THE TWO ACCUSED UNDER SECTION 164 OF CR.P.C.: (a) The confessional statement of accused No. 54 & 55 have been recorded in the course of the investigation before the Metropolitan Magistrate which came to be recorded u/s 164 of Cr.P.C. Subsection (2) to (4) of Section 164 of Cr.P.C. read with Paragraph 34 of Criminal Manual and seen with Form No. 35 for recording confession as given in Criminal Manual are in nutshell applicable to the confessions made by the accused. (b) Under Sub-section (2) of Section 164 of Cr.P.C., the Magistrate is first of all required to explain to the accused that he was not bound to make a confession and then if he did so, it might be used against him. Giving this warning to the accused before recording a confession makes the confession valuable, the Magistrate must remove the police from the Court room, the accused needs to be impressed upon that he is no longer in police custody, the Magistrate should ensure that the accused has no complaint against the police, the voluntariness of the accused to make the confession is to be ensured, a note of warning given to the accused should be kept on record, reflection time not less than 24 hours should be given to the accused, the Magistrate must ascertain and should have a positive belief that the confession made by the accused is out of his free will and is voluntary, the confession should be recorded in Form No. 35 of the Criminal Manual and should be recorded in the manner provided in Section
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281 of Cr.P.C. for recording the examination of an accused person and shall be signed by the person making the confession and then the Magistrate shall make a memorandum at the foot of such record, are all the requisites of the confessional statement to be recorded by the learned Metropolitan Magistrate as and when the accused person is presented before the learned Metropolitan Magistrate from the police custody upon the desire of the accused to make confession. (c) It is necessary that the Magistrate must put questions to the accused to satisfy himself that the confessional statement is a voluntary statement, is not product of any pressure or force or such other elements by which exercise the requisite certificate under Sub-section (4) of Section 164 of Cr.P.C. should be given. A satisfactory and faithful compliance of the Section along with the instructions issued by the Hon'ble High Court of Gujarat as noted in Criminal Manual would certainly ensure that the confession is voluntary and in the same way, reflection time of 24 hours would help the Court to conclude that the mind of the accused was freed from fear or other such complexes developed during the police custody which is in form of administrative guidelines. The object is to ensure voluntariness of the maker of the confession. It is nowhere provided that the memorandum or even the confessional statement shall be recorded in the handwriting of Magistrate, but as required by Sub-Section (4) of Section 164, it should be signed by the concerned learned Magistrate. (d) Once the accused retracts his confession, the rule of practice and prudence requires that the retracted confession should be corroborated by independent witness and at least the Court should find out general corroboration in material placed before the Court
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to the retracted confession as the Court should not ordinarily act upon a retracted confession without corroboration. It is however clear that the retracted confession can never be regarded always as involuntary confession and that the retracted confession can be acted upon if can be believed to be true and voluntarily made. As is the settled law, the corroboration should not only confirm the general story of the alleged crime, but must also connect the accused or the co-accused as the case may be. (e) PW 179 & confessional statement of A-54 (Exh. 1464) : PW 179 has been examined by the prosecution in support of its case of having recorded the confessional statement of A-54 in compliance of the settled position of law of recording the confessional statement. (i) PW 179 has deposed that during 13/6/2005 to 15/6/2008,
the witness was working as Metropolitan Magistrate in the city of Ahmedabad, A-54 was produced before this witness on 4/1/2007 in response to a letter Exh. 1463 and the Yadi of the then I.O. dated 29/12/2006, the confessional statement was recorded at about 4.30 p.m. on 4/1/2007 through the Stenographer, the police was not present, the conversation with the accused was in Hindi language who was even knowing Gujarati language, the statement was given by the accused in Hindi language, the translation of the same in Gujarati was dictated by the witness, upon satisfaction on the voluntariness of the accused to give the confessional statement, the statement was recorded by the witness, necessary statutory warning was given to the accused, upon explaining the contents of the confessional statement since the contents were true, the accused has signed in presence of the witness, the witness has also signed, the original confessional statement Exh.
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1464 came to be recorded thus which was sent to learned Special Judge, POTA Court vide Exh. 1465 and thus the original confessional statement was sent to the POTA Court. (ii) This Judge witness was cross-examined by L.A. of A-54 and
A-42, the co-accused to whom this accused involves in his confessional statement. The witness has admitted that the recording of the confessional statement should be in free atmosphere, is a judicial proceeding, the accused was produced from the judicial custody, no sign of any physical cruelty on the body of the accused, no complaint is made by the accused. (iii) It has been assailed that the witness has not taken note in
the confessional statement that there were no signs on the body of the accused about any physical cruelty, that the accused knows Hindi language and that the accused has not given any application that he is desirous to give confessional statement and that the time of one and half hour for reflection was given to the accused. In the humble opinion of this Court, in the facts and circumstances of the case, when the accused has in fact not confessed his own guilt, the reflection time of one and half hour cannot be termed to be less. The Cr.P.C. has not provided of the reflection time. It is since a rule of practice and prudence, it varies from case to case. The clue of reflection time is from the administrative instructions given by Criminal Manual which is not the statutory provision, but is merely administrative instructions which have been given for the guidance of the learned Metropolitan Magistrate. As is clear, in Paragraph 34 of Criminal Manual, the discretion of the learned Metropolitan Magistrate remains unfettered. This instruction cannot take place of statutory provision, it is only guiding the
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manner in which the confessional statement should be noted. If (vii) of Paragraph 34 of Criminal Manual is carefully read, is clearly to the effect that a reasonable time should be given to the accused which should ordinarily not be less than 24 hours, but even this sub-paragraph of Paragraph 34 nowhere states that the reflection time in any case should not be less than 24 hours. Hence, the submission of having not given 24 hours reflection time to this accused cannot come to the rescue of the defence to not consider the confessional statement at all. It is nowhere the case of A-54 whose confessional statement has been recorded that had more reflection time been granted to him, he would not have given at all the confessional statement or would not have given it in the manner in which given at present. This is clear from the final submission of A-54 and even from the cross-examination discussed hereinabove of A-54 of the Judge witness. The learned Metropolitan Magistrate has been guided under Sub-para (xii) of Paragraph 34 of the Criminal Manual that the answer given by the accused should be recorded in the language of the accused and if that is not practicable in the language of the Court, but the learned Metropolitan Magistrate is not required to make a note of it in the statement. It is however different that making such a note would add the quality of transparency in the manner of recording the confessional statement. Thus, the submission of L.A. for the defence of not considering the confessional statement on the above referred counts is not favoured by this Court as it is not supported by the statutory provisions or the administrative guidelines given by the Court. Moreover, as has been guided by the prosecution citation at Serial No.37, the omission made is curable in view of Section 463 of Cr.P.C. when in the fact of this case it has not injured the accused
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in his defence. (iv) This Judge witness has even been cross-examined by L.A.
for A-42. During the course of the cross-examination, the witness has admitted that in the forwarding letter, there is a mention in the subject of the witness, but the statement recorded was that of the accused which escaped the notice of the witness when he signed the forwarding letter. The witness has admitted that he does not recollect as to the accused was produced from which custody, the witness denies to have not done necessary procedure u/s. 281 of the Cr.P.C., the witness was not physically handicapped to record the statement himself, the signature of the accused or the witness has not been done after preliminary questions, the witness denied that he did not know Hindi language. The witness confirms to have taken signature of the accused at the end of the endorsement by the witness, the witness has also denied the presence of the police inside the Court room, the witness volunteers to have recorded the statement inside the chamber and that the accused was under pressure because of the presence of I.O. Shri Muliyana, the statement to have been recorded as per the statement of the accused u/s 161 and that free atmosphere and time to think was not given to the accused. In the opinion of this Court, the mention of the word witness in the forwarding letter hardly reflects a ministerial error which does not take away the confessional statement after lawful formalities, taking signature of the accused after the endorsement at the most is pointing out the irregularity, but merely that does not show any lacuna on the part of the Judge witness, there is indeed nothing on record by which the confessional statement of the accused should be disbelieved.
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(v)
Exh. 1463 is the letter by the witness to the investigating
agency wherein it has been directed to produce the accused in proper custody before him on 4/1/2007 to record the statement. During the course of the cross-examination, the witness has explained that the word proper custody was meant for the proper custody from jail. This letter by the Judge witness has been complied with as the accused was so produced as has been deposed by the Judge witness. (vi) Exh. 1465 is a letter to the then learned Special Judge,
POTA Court by the Judge witness with which forwarding letter, the confessional statement has been sent to the POTA Court. It is true that in the drafting of this letter, instead of word accused, the word witness has been typed, but then it remains the statement u/s 164 of Cr.P.C. The whole Section 164 of Cr.P.C. provides for the confessional statement of the accused and the witness. Hence, this typographical error is merely reflecting the irregularity which should not be given undue weight and in any case it should not be used to throw away the confessional statement. (vii) Exh. 1464 is the confessional statement formally proved by
PW 179. In the Further Statement of this accused also, it has been noted that the accused has replied in Hindi language which was translated by this Court in Gujarati. The said fact is also found in the endorsement made by the Judge witness at the foot of the confessional statement which is pointing to the genuineness of the process. If the initial questionnaire, the Judge witness has clearly satisfied his judicial mind about the willingness of the accused, lack of threat, inducement or pressure on the accused in giving the confession, the necessary statutory warning of the accused being
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not bound to give such a statement and it can be used against the accused is found to be the part of the record. There is a note made by the learned Judge witness to the effect that the accused was produced from the judicial custody. The confessional statement involves A-42. It reveals the role of A-42 in the criminal conspiracy and the knowledge of A-42, the details about the place of arrest of the accused and how he was handed over to the Gujarat police. The accused has signed at the end of the confession above the signature of the Judge witness and after the endorsement made by learned Judge witness. The submission that the signature has not been obtained on each page of the statement and the signature ought to have been obtained before the endorsement and at the end of the confessional statement cannot be considered to be fatal lacuna in recording the confessional statement when the accused has neither retracted the confession nor even at the time of Further Statement has stated that this is not the confession given by him. It is true that the signature of the accused ought to have been obtained on each page and at the end of the confession and before the endorsement. But in light of the fact that the confessional statement has never been retracted by the accused in any manner, these lacuna merely seem to be irregularity which does not take away a very vital element of voluntariness clearly visible from the confessional statement and remained in tact in the oral evidence of PW 179 though he has been extensively crossexamined. The element of voluntariness of the accused does not go away, it is rather getting confirmed when the accused himself does not retract his statement, what is also important to be noted is the witness has signed, put a date of 4/1/2007 along with his signature and has not only plainly signed below the endorsement
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of the Judge witness, but has added to his signature that 'I read my statement and satisfy this statement'. This endorsement of the accused adds strength to the finding of the learned Judge witness reflected in his endorsement and proved through his oral evidence. Hence, the other submissions are simply based on procedural lapses. At the cost of repetition, it needs to be noted that the reflection time of one and half hour as stood revealed from the cross-examination cannot be termed to be less in any manner. The grant of reflection time of one and half hour gets support when as is clear from Exh. 1465, the accused was directed to be produced at 3.00 p.m. and the confessional statement has been started to be recorded at 4.30 p.m. The confessional statement has been ended at 17.30 hours which is also supporting satisfactory involvement of the Judge witness in the process and adoption of satisfactory procedure by the Judge witness. This confessional statement is involving A-42 which contents shall be discussed at an appropriate place in the judgment FINDING : On plain perusal of Exh. 1464, it is clear that it involves A-42, role of him in the conspiracy, identity of A-42, the A-42 to have facilitating some of the co-accused to illegally passing the border of Bangladesh - India. This is confession under Section 164 of Cr.P.C., hence can be read for the co-accused. (f) PW 184 and confessional statement of A-55 (Exh. 1514): The confessional statement of A-55 was recorded by PW 184 who has deposed that during February 2007, he was working as Metropolitan Magistrate in the city of Ahmedabad who received
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Yadi Exh. 1514 along with the order on 19/2/2007, along with the report of the investigating agency of the same date which is on record at Exh. 1515. The witness has also proved his Rojkam for the confessional statement on record at Exh. 1516. The Yadi Exh. 1517 has even been proved by the witness. The witness further states that A-55 was produced before him at 2.45 p.m. of 21/2/2007, the accused was asked preliminary questions, the accused signed the preliminary statement, the witness also signed the said statement, a time of one day to think over was given to the accused though the accused said that he did not require the same, the voluntariness and free will of the accused to give the statement were ascertained by the Judge witness and were taken note of, the statement was recorded in the open Court in Gujarati language of the answer given in Hindi language by the accused, the translation has been certified to be genuine, necessary preliminary warning was given to the accused, the accused gave the confessional statement at Exh. 1518 as proved by the witness, the forwarding letter and cover along with the confessional statement were sent to learned Judge, POTA which are on record at Exh. 1519. Thus, in light of examination-inchief, the witness has proved propriety of the procedure adopted by him and the confessional statement was voluntary and it satisfies the requisites of Section 164 of Cr.P.C. as discussed above. (i) This Judge witness was cross-examined by the L.A. for A-
55. The witness was assailed on the ground that he himself did not write the confessional statement. But in the humble opinion of this Court, as provided in Section 281(2) of the Cr.P.C., the presiding Judge may not write the judgment himself in case of physical or
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other incapacity is suffered by the said Judge witness. The requisite is that in such case, it should be written under his direction and superintendence and should be written by the officer of the Court appointed by the Judge witness in this behalf. It cannot lose our sight that the workload at the Court of Metropolitan Magistrate is too heavy, Ahmedabad being metropolitan city and at times the learned Metropolitan Magistrate will have to handle about 300 cases a day. In such circumstances, this situation would incapacitate the Judge witness to write himself and that if the Judge witness writes the judgment through his Stenographer, this Court does not see any lacuna in adoption of the said procedure when it is clearly so provided in the Section referred above. (ii) During the course of the cross-examination, the Judge
witness admits that he has not made inquiry about the custody of the accused, about the remand of the accused, he admits to have not read POTA, the Judge witness admits to have learnt about another case being pending against the accused at Mumbai, he also admits that on the date of the deposition, he was not able to identify the accused, but he volunteers that many accused have been produced before him and that on account of passage of time, he was not able to identify the accused. The Judge witness admits that he has not taken photograph of the accused, while grant of the reflection time, no instruction to change the custody of the accused was given, the accused was not sent to judicial custody. The witness admits that he has not recorded that the statement was read over to the accused. The witness further admits that he has not inquired about educational qualification of the accused. The normalcy of the accused in gait and way of talking have not
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been noted and the witness admits that the date below the endorsement is noted to be 17/2/2007 which the witness volunteers to have been written by bona fide error instead of 19/2/2007. The above part of the cross-examination is not relevant and does not take the defence ahead and is not destroying the prosecution case in any manner. Not only that, but it is irrelevant when the statement has been admittedly recorded u/s 164 of Cr.P.C., then whether the witness has read POTA or not. The filing of another case against the accused or inability to identify the accused are all absolutely irrelevant and are nowhere provided in Section 164 and 281 of Cr.P.C. and Paragraph 34 of the Criminal Manual which as clarified in para 15 by the accused are basis upon which he has conducted the proceedings. With the above cross-examination, no doubt is created against the genuineness, propriety of the proceedings and against the voluntariness and truthfulness of the confessional statement. Vide para 14, 15 & 16, the witness has deposed that in his opinion, he has complied with the guidelines given by Hon'ble the Apex Court and Higher Courts to be observed before and while recording the confessional statement. The witness has clarified that he based his proceedings on Sections 164 and 281 of Cr.P.C. The witness has stated that he possessed necessary knowledge on psychology and that from the facial expressions of the person, the witness was able to learn whether the person produced before him is freed from fear and is having free will or not. The witness has then admitted that he has not made such a note.
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In the humble opinion of this Court what is important is the knowledge of the Judge, the skill of the Judge witness, the application of the Judge witness of taking necessary precautions before recording the confession and at the time of recording the confession. The irregularity of not recording such a minute detail not provided in law to record can be cured by the oral evidence of the witness as it is nothing beyond irregularity. Para 14, 15 & 16 have positively established the propriety of the procedure adopted by the accused. The above discussion can be more illuminated when it is noted that the accused No. 55 has not retracted his statement and even in Further Statement he did not retract the said. The other documentary evidence which shall be discussed hereinbelow would also come in strong support of the finding that there is nothing on record to doubt the voluntariness and truthfulness of the confessional statement of A-55. Documentary Evidence : (g) Exh. 1514 is the order of the Chief Metropolitan Magistrate directing the Judge witness to record the statement u/s 164 of Cr.P.C. It is true that instead of word accused, the word witness has been typed, but that is hardly an irregularity. Undue weight cannot be given to such trifle things which does not change the very substance. (h) Exh. 1515 is the Yadi by the I.O. requesting the Judge witness to record the statement of the accused u/s 164 of Cr.P.C. On the back side of this document, one finds the order of the Judge witness to produce the accused on 21/2/2007 at 2.45 p.m.
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(i)
Exh. 1516 is the Rojkam written by the Judge witness mentioning the concerned documents and specifying that the accused was produced on 21/2/2007 whose preliminary statement was recorded and thenafter he was called upon 22/2/2007 on which date his statement was recorded u/s 164 of Cr.P.C. in the open Court. This Rojkam tallies with the documentary evidence being discussed herein and with the oral evidence of the Judge witness.
(j)
Exh. 1517 is a Yadi by the Judge witness to the investigating agency to keep the accused present.
(k)
Exh. 1518 is the confessional statement of the accused wherein preliminary question-answers revealing the fact deposed by the Judge witness and more particularly satisfying the requisite of Sub-Section (2) to (4) of Section 164 of Cr.P.C. can be perused, the knowledge of the accused of Hindi language and little bit of English language, the questions to the accused were asked by the Court in Hindi and the true Gujarati translation is certified to have been recorded by the Judge witness, grant of reflection time of 24 hours on 21/2/2007 can be seen as at the end of the said, the signature of A-55 and of the Judge witness on 21/2/2007 can clearly be seen. The further proceedings can be seen to have been recorded after 24 hours where also the voluntariness of the accused has been reconfirmed, the recording of the confessional statement in the open Court can be seen, the clear involvement by name of A-42 and presence of A-5 can be seen, the details of which would be discussed while discussing the culpability of the respective accused. The signature of the accused at the end of the statement and the signature of the Judge witness followed by the
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endorsement as required under Sub-Section (4) of Section 164 dated 22/2/2007 signed by the Judge witness can be seen, the endorsement of the Judge witness to have not written the confessional statement by his hand, but was typed by the Stenographer Shri Chauhan under his personal supervision can be seen below which the Judge witness has signed. Just below this endorsement, the endorsement of the accused that the statement given by him in Hindi has been typed in Gujarati, the Hindi translation of which was read over to the accused which, according to the accused, was the same as spoken by him. (l) Exh. 1519 is a forwarding letter sent to the POTA Judge who, as has endorsed, has received the confessional statement in the sealed cover sent by the Judge witness which is along with the cover for the same. (m) This Court is of the firm opinion that all the requisites for recording the confessional statement u/s 164 of Cr.P.C. are complied with and no reasonable doubt is created by the defence against its propriety which being official judicial act is enjoined by the lawful presumption of its propriety. (n) Neither A-54 nor A-55 has ever retracted their confessional statements including at the stage of Further Statement. They have however not accepted the propriety of the procedure adopted by the respective witnesses and about recording of the confessional statement, they deny the same. These replies in the Further Statement do not rebut the presumption enjoined to the confessional statement which is getting great strength from the oral evidence of the respective Judge witnesses and the documents produced by both of them. It is nobody's case that the
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Judge witnesses were either interested in the investigation or that they had any animosity against the accused, rather the procedure adopted by them is to the satisfaction of this Court, seems to be proper, sound, satisfactory and that the prosecution has proved beyond reasonable doubt that both the confessional statements are worthy to be believed. (o) Both the Judge witnesses seem to have satisfied themselves about the statement to be voluntary, they have added necessary memorandum at the foot of the confession, both the Judge witnesses seem to have treated the recording of the confessional statement to be solemn act and both of them have apparently performed the same with all the seriousness. A strict and faithful compliance with the instruction issued by Hon'ble the High Court ensures that the confessional statements of both the accused were voluntary, creditworthy and are such which can safely be acted upon. There is nothing on record to prove that either of the accused has made the confessional statement under duress and inducement and that such statement could not be relied upon. Both the confessional statements, in the opinion of this Court, are relevant, admissible, product of voluntariness and free will of both the accused. It is however true that the use of such statement can be done according to the provision of the law and that both the confessional statements need to be carefully examined by the Court and should be compared with the rest of the evidence in the light of the surrounding facts and circumstances and probabilities of the case which exercise shall be done at an appropriate place in this Judgment. Suffice it to say at this stage that there is no substance in the submission of the defence based on the Further
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Statement of the respective accused and these confessional statements are evidence worthy to be believed. (p) At the end, it is found proper to repeat that vide the confessional statement of A-54 at Exh. 1464, role and name of A-42 have been revealed as discussed at the finding below Exh. 1464 and vide the confessional statement of A-55 at exh. 1518, the role and involvement of A-42 and presence of A-5 have been revealed. When upon plain perusal of Exh. 1514 it seems that when this accused went to Kolkatta he was given telephone number of one Vicky who was later on revealed to be Javed (A-42 herein). A-42 took the accused in one hotel, photographed him, took away his passport, in taxi the accused was taken by A-42 along with the family of A-42, A-42 took him to Belapur village near Kolkatta Bangladesh border, took the accused for immigration where his passport was stamped, by crossing the Indian border the accused was taken to Bangladesh, Dhaka, at flat on fourth floor at Mahomadpura. (q) The A-42 was also bringing many other persons in the same manner who were Gujarati, from Hyderabad, Bombay etc. The lot of Gujarat has one person named as Captain (A-5 herein), the accused was informed by A-42 that the four Gujaratis have taken training from Pakistan, who have murdered one politician in Gujarat etc. The accused has specified that he never had been to Gujarat. (r) Since both the confessional statements have been recorded u/s 164 of Cr.P.C., though the confessional statements are against the co-accused, the same would be applicable there being no prohibition in Section 164 to read the confessional statement even
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against the co-accused. The cited judgment of Parliament Attack case heavily relied upon by both the sides can have no application qua these two confessional statements as Hon'ble the Apex Court has held of non-applicability of the confessional statement qua the co-accused for the confessional statement recorded u/s 32 of POTA as Section 32 of POTA is not providing for the co-accused as the TADA Act provides. It is for these reasons, these two confessional statements shall have to be considered qua the respective co-accused as well. FINDING : From this confession Exh. 1514, it becomes clear that a very active role of A-42 in the conspiracy has been proved in addition to the fact that A-5 and A-55 have also been to Bangladesh. Qua other accused their name or identity in the confessional statements have not been clarified. Hence, this confession does not raise finger to them.
(II)
STATEMENTS OF THE WITNESSES U/S 164 OF CR.P.C. : 1. Section 164 of Cr.P.C. provides recording of any statement made under Sub-Section (1) of Section 164 which shall be recorded in the manner provided for recording of evidence wherein the Magistrate has been empowered to administer oath to the person whose statement is so recorded and that Sub-Section (6) of Section 164 provides that such a statement should be forwarded to the Court which is to try the case. 1.1 Paragraph 143 of the Criminal Manual is on the words of oath to be administered to different witnesses and that Paragraph 144(1)
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provides that the recording of the evidence of the witnesses should be as per the proforma given in Form No. 46 wherein the deposition begins with oath. 1.2 It therefore seems that the statement of the witnesses should be recorded on oath though it is at the stage of investigation. 1.3 It is a settled position of law that where the witnesses do not support the prosecution story in the Court, then their statements u/s 164 cannot be used as substantive piece of evidence. Like the confessional statement of the accused in case of statement by the witnesses also, the voluntariness and absence of influence of any other external factors on the mind of maker of the statement is necessary like pressure, force, etc. 1.4 The statement recorded u/s 164 of Cr.P.C. should be put to the witness after he is declared hostile. 1.5 While appreciating the evidence of such a witness, the fact that the witness had not complained to any authority either orally or in writing that his statement was recorded under duress or threat and when the witness is hostile, it can safely be presumed that he did so for the obvious reasons and his submission of forcible statement can be held to be nothing but after-thought after he having been won over. 1.6 As emerges from Section 164(5) of Cr.P.C., the statements of the witnesses can be recorded after administering oath to the witness. 1.7 The suggestions that the I.O. was present around (not at the room where recording was done) is of no relevance as it is a matter of
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common knowledge that this kind of statements are being recorded during the course of the investigation and that in such an eventuality, the presence of the I.O. around sounds to be natural and it does not create doubt against the reliability and genuineness of the procedure adopted by the witness. 1.8 The statement u/s 164 of Cr.P.C. can be used for the purpose of corroborating the witness himself. When such a witness does not support the prosecution and when the Judge who is trying the case has reason to believe that the witness has spoken untruth in the Court, by willfully giving false evidence with the intention that such evidence should be used in such proceedings the only use that can be made of such statement u/s 164 of Cr.P.C. is to proceed for perjury against the witness and no other possible use can be made of the statements of the hostile witnesses when the Court is satisfied that it is necessary and expedient in the interest of justice to try the witness under Section 344 of Cr.P.C., the proceedings of perjury can be initiated by issuing notice. 1.9 In case of the hostile witnesses since there are two different versions on the record, it sounds to be in accordance with principles of justice and more particularly criminal justice delivery system that the testimony of such a witness is to be rejected outright in absence of any independent corroboration. 1.10 In case of the witnesses who support the prosecution halfheartedly, their version to some extent can be used if found supporting to the prosecution case and then if other evidence including the circumstantial evidence helps the prosecution case, it is not unsafe to act upon the same.
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1.11 When the Yadi of the I.O. to record the statement is on the record in pursuance of which learned Metropolitan Magistrate has recorded the statement after giving preliminary understanding and after satisfying other requisites and when the endorsement clarifies application of mind, the witness admits to have made no complaint and when learned Metropolitan Magistrate steps into witness box to establish the propriety of the whole procedure, the voluntariness and truthfulness in the statement, the said statement needs to be considered to be true version and the version of such a witness needs to be taken into consideration as the presumption u/s 114 of Indian Evidence Act is always with such a statement. 2. PW 192, 174, 193, 181, 176, 172, 173, 175, 177 and 178 have recorded the statement of different witnesses u/s 164 of Cr.P.C. viz. PW 68, 69, 71, 72, 82, 93, 94, 95, 96, 101, 104 (by PW 192), 77, 148 (by PW 174), 67, 78, 81, 85, 88, 91, 92, 97 (by PW 193), 74, 102 (by PW 181), 64 (by PW 176), 70, 73, 79, 87 (by PW 172), 76 (by PW 175), 80, 84 (by PW 173), 83, 86, 152 (by PW 177) and 75 (by PW 178). 2.1 All the ten Judge witnesses have deposed on oath to have adopted the procedure by which free will and voluntariness of the respective witnesses whose statements were recorded by the Judge witnesses have been deposed in detail. All such statements have been duly sent to the POTA Judge which have all been received and are on record and they have been formally proved by the respective Judge witnesses. 2.2 These Judge witnesses have been extensively cross-examined. The gist of all the cross-examination is pointing out different lacuna in the procedure adopted by the respective Judge
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witnesses. All the cross-examinations have been framed upon Paragraph 34 of Criminal Manual and/or provisions of Sub-Section (2) to (4) of Section 164 of Cr.P.C. and in some of the cases, the cross-examination has been based on Section 32 of POTA which is absolutely irrelevant. 2.3 This Court has carefully perused the provision of Section 164 of Cr.P.C. As is clear from the title itself, Section 164 is related to recording of confessions and statements. The confession and statement are to be recorded by learned Magistrate wherein the confession are of the accused and the statements are of the witnesses. Sub-Section (1), (5) and (6) govern the recording of the statements of the witnesses whereas Sub-Section (1) to (4) and Sub-Section (6) of Section 164 of Cr.P.C. govern the confession. It is extremely clear that the operative Sub-Section qua recording the statements of the witnesses which is not confession of the accused is only Sub-Section (5). Now therefore in the humble opinion of this Court, it is Sub-Section (5) of Section 164 which would govern the statements of the witnesses to be recorded u/s 164 of Cr.P.C. Sub-Section (5) gives ample discretion to the learned Magistrate and the mode of recording the evidence is to be decided by the Magistrate which in his opinion best fitted to the circumstances of the case. This would mean that there is no straight jacket formula by which the statements of the witnesses should be recorded by the Magistrate. It is however true that it should be recorded in the manner of recording of evidence and nothing beyond that. 2.4 It is needless to note that Section 32 of POTA can have no application at all in recording the statements of the witnesses u/s 164 of Cr.P.C.
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2.5
Paragraph 34 of the Criminal Manual has been carefully perused. The Sub-paragraph (i) to (xiv) of Paragraph 34 have been perused. Paragraph 35 to 39 all under the Chapter of Confession have been perused, but there is absolutely no provision, no guidelines, no administrative instruction for the statement of the witnesses. In absence of any such directions, it is only SubSection (5) which would govern the situation wherein no mode or manner has been provided. However, the learned Magistrate must ascertain voluntariness, free will and absence of external forces like fear, threat, duress, coercion, etc. and that the Magistrate must write truthful version as stated by the witness.
2.6
At the cost of repetition, be it noted that the statement of witness is different from confession of accused.
2.7
The deposition including the cross-examination of all the Judge witnesses have been perused. There is nothing on record in the testimony of the Judge witnesses which should be disbelieved or discredited as firstly they are judicial officers and have no reason to falsely implicate any of the accused by inserting any information in the statement of the witnesses produced before him. Just because the respective witnesses, about 30 in number, have not chosen to corroborate their earlier statements for the obvious reason. There is nothing by which the version of the Judges does become doubtful. Moreover, the act of not supporting the prosecution case by such witnesses would not lead to the conclusion that the accused whose names have been revealed along with details of their participation in the crime were in fact innocent. Upon the tenor of the statement, presumption of propriety and appreciating testimony of the Judge witnesses that
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their version before the learned Metropolitan Magistrate Court was truthful and voluntary. 2.8 This Court is aware that the use of the statements of the witnesses can be made to corroborate their version or to contradict their version and there is no other scope to make use of their statements. These hostile witnesses have become hostile in the Court for obvious reasons, hence they should be made to face perjury when they spoke two different versions on oath though the earlier version was at the stage of investigation. There appears prime facie case against all the witnesses who gave their statements u/s. 164 of Cr.P.C. as to have willfully given false evidence with intention that such evidence should be used in this proceeding which is purely to help one or another accused being tried. All these witnesses had to be issued Show-Cause Notice for the prima facie case against them for trial under Section 344 of Cr.P.C. as it is necessary and expedient in the interest of justice to try these witnesses. Those who did not give statement u/s. 164 of Cr.P.C without oath do not face prima facie case u/s. 344 of Cr.P.C. 2.9 Learned Special P.P. Mr. Panchal for the State has cited prosecution citation No. 36 to emphasize the above submission which this Court finds to be meritorious as there is nothing to disbelieve the testimony of any of the Judges who apparently seem to have discharged their duty in a very responsible and proper manner and that the presumption of propriety is also attached to their work.
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In the case of those who have been administered oath at both the places are giving false evidence though are legally bound by the oath to state truth but they make a statement which is false and they do not believe it to be true in any case. 3. PW 193 has recorded the statement of PW 97 which is on record at Exh. 1619 u/s 164 of Cr.P.C. Through this statement, the witness has given minute details about the role of A-20, A-22, A25, A-26 etc. in the crime including the role of key conspirator and absconding accused Mufti Sufiyan. This statement was recorded after administering oath to the witness. 3.1 The witness has been examined as PW 97 who has been declared hostile, but the fact that A-26 is his nephew, A-25 is his brother-in-law, the witness knows the key conspirator Mufti Sufiyan, according to witness, in the city of Ahmedabad, communal riots took place in February 2002 wherein the Muslim community had to suffer loss of life and property, the witness had been to the Court of Metropolitan Magistrate, the statement was shown to the witness who admits his signature and has further explained that he signed because of the threat of the police which fact has not been informed by him to anyone and the said fact has been told for the first time in the Court. In light of the conduct of the witness and in light of the deposition of PW 193, the Judge witness, it is hereby held that the PW-97 is speaking lie after he has been won over by the defence as otherwise the minute details recorded by the learned Judge witness would not have been known to the Judge witness except when the said is stated by the witness himself.
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3.2
No use of the statement of this witness can be made except prosecuting him for perjury as he has spoken lie before this Court on oath and has resciled from his earlier statement on oath before the Judge witness.
3.4
PW 85 has given his statement on oath before PW 193. This witness has stated on oath about the involvement of the absconding accused who has been examined by the prosecution as PW 85. In his oral evidence before this Court, this witness has given details about his family, about his domicile, etc. but he has not stated anything what has been stated in his statement u/s 164 of Cr.P.C. This witness has been declared hostile by the prosecution. The witness has been confronted by the learned Special P.P. basing upon his police statement which has been denied by the witness. What is emerging from this question is that in the police statement, the witness seems to have stated about two key conspirators, about A-24, about the offer to the witness to go for terrorist training at Pakistan, the witness was assigned to bring weapons from A-32, etc.
3.5
During the course of the cross-examination, through the witness the defence has put up a case that the police has applied third degree on the witness who was detained for about two months, who was beaten, the witness is frightened even today and because of the fear, the witness did not complain against the police officers. The witness was however asked about the statement before the learned Metropolitan Magistrate, the witness stated that he went to the Court of learned Metropolitan Magistrate where his statement was recorded and there he stated what he knew and that before the Magistrate, the witness stated that he did not know anything and thenafter he had signed the statement.
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3.6
This Court firmly believes that had the statement been not recorded as stated by the witness, then the involvement as shown in the police statement should have been included in the statement, but so has not been done. The statement is having not the same contents as the contents in the police statement. The witness has not complained to anyone is an admitted position, hence it appears that the witness is speaking lie before this Court and is falsely resciling from his earlier version on oath. The witness therefore needs to be prosecuted for perjury as discussed at point 2.8.
3.7
The witness was even cross-examined by the L.A. for A-30, A-43 and A-46, but no information is elicited by which the statement proceedings can be doubted. The prosecution case has been attempted to be placed through this witness that A-45, A-30, A-31, A-32 and A-33 were carried by the police in the same vehicle along with the witness, but then such a case is put up for the first time and that too it is not having any basis, hence the case as put up cannot be believed and that it seems that the witness has spoken untruth before this Court which is absolutely different from his earlier version on oath. As discussed above at point 2.8, the witness therefore deserves the proceedings of perjury.
3.8
Exh. 1607 is the statement of PW 91 who has been declared to be a hostile witness while his oral evidence was being recorded. In the statement, the witness involved A-22, A-20 and the key conspirator Mufti Sufiyan, the witness was also offered terrorist training according to his statement.
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3.9
This witness has stated to have gone to Magistrate Court where his statement was recorded, the statement was shown to him who admits his signature, but adds that on account of improper mental state, the witness has signed in the statement. During the course of the cross-examination by the prosecution, the witness has been confronted with his police statement, the witness has stated that he had been to the Court room of Magistrate Court where his statement was recorded which was dictated by writer of the Crime Branch which was read by the witness and then the witness had signed the said statement. The witness states that he was feared and he was mentally disturbed, he was called in the Crime Branch for 3 to 4 months and he has not represented before the Metropolitan Magistrate Court about anything nor he has represented at any other place. The witness admits that his brother-in-law was working in the daily known as Gujarat Today. The witness admits to have not informed his brother-in-law working in the press who had good terms with the press management. The witness has further admitted that he gave his oral evidence in POTA Court on 7/4/2004 and while the said oral evidence, the witness has identified A-22 in the Court. The witness admits that he has deposed in the Court that after the incident of Godhra Train in the year 2002, he met A-22 who has given him tiffin bomb with the instruction to keep it in the bus which the witness did not do because his sister's marriage was fixed.
3.10 During the course of the cross-examination, the defence has put up the case that this witness was kept in the Crime Branch for 3 to 4 months who was made to sit throughout the day, the police was not used to give threatening to the witness to come on the next day, the witness himself was feared, the witness states that he gave his oral evidence in POTA Case No. 7/03 and 8/03 because
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of his mental state, the witness has also admitted that he had been to Metropolitan Magistrate Court and was in the Court for about one hour and has signed in the statement out of the fear of the police for which no representation was made anywhere. 3.11 The explanation of mental state or fear cannot carve out any exemption for the perjury proceedings which on account of the conduct of the witness of speaking white lie in the Court, the witness needs to be prosecuted. This witness has given his statement at Exh. 1607 which, according to the Judge witness PW 193, was recorded as spoken by the witness. The truthfulness of the statement has been supported in the earlier oral evidence given by the witness in the tiffin bomb case wherein he has identified A-22 and where his oral evidence was in the tune of his statement on oath before the Magistrate Court. Both these, if read together, it becomes clear that the earlier version of the witness was truthful and for the reasons best known to the witness, he has turned hostile before this Court and that the perjury proceedings need to be initiated against the witness (as discussed at point 2.8). 3.12 Vide Exh. 1613, the statement of PW 67 on oath is on record. This witness has stated on oath in his statement about the fact that he knew A-7, A-45, A-46 and another absconding key conspirator, the contact of the witness with the mentioned accused, the partnership of the witness with the accused in the business, the role of A-31, the contact with A-31, the telephonic contact with the absconding accused, the involvement in the fiscal transaction, etc. have been stated by the witness, but when this witness was examined, he was declared hostile.
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3.13 During the course of the cross-examination by the prosecution, the witness admits that A-7 was his partner from the beginning, in 1999, construction work was started and was completed, transactions were entered into, the business was being run on the name of Akash Builders which was continued upto the year 2000, the witness has signed the papers before learned Metropolitan Magistrate where, according to witness, he signed because of the instruction of the police. The statement was shown to the witness in which he admits his three signatures, the statement was read by the witness, though the police has taken signature on the blank paper, the witness admits that he has not complained anywhere and more particularly before the higher officers, the witness further states that he was kept in the Crime Branch from 6/6/2003 to 15/6/2003, but neither any representation was made nor advice of a lawyer was obtained, neither oral submission or written application was given to the learned Magistrate when he was permitted to meet the relatives and the elder brother of the witness was coming everyday to meet the witness. The elder brother is a businessman, the witness knows the lawyer who has prepared the document while he was in construction business with A-45 and A46. The witness has denied the suggestion that he speaks lie to save A-7 and A-45. The witness states in his cross-examination that he has not administered the oath. The witness has stated that it is not true that the police was tutoring him as to what is to be stated in the statement and were pressurizing to state particular things in the statement. The witness has however stated that he was compelled to sign. 3.14 It does not sound to be probable that a person who knows lawyer, who does business and whose relatives used to come to see him everyday while he was wrongfully detained by the Crime Branch
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and that too when his elder brother is a businessman and in case of PW 91, a close family member is attached to the press who would not be informed by the witness and the said family members would not agitate at all, it is too clear as daylight that both the witnesses are speaking lie on oath and had the earlier version been untrue or concocted by the police, the witnesses would not observe the convenient silence for such a long span of August 2003 to January 2008 till the deposition is given. It therefore seems that this witness has spoken whole falsehood before this Court who also needs to be prosecuted for perjury (as discussed at point 2.8). 3.15 Exh. 1608 is the statement of PW 78 on oath. In his statement, the witness involves A-4, A-8, A-22, etc. in the crime who even adds that after the Godhra mascre, the loss to lives and properties of Muslims was too much. 3.16 In the deposition before this Court, the witness has turned hostile who declined to be knowing A-4 who has corroborated the limited fact that there were riots after the Godhra incident in the city. The witness has also not identified A-22, the witness was shown his statement u/s 164 of Cr.P.C. who admits to have been taken at Magistrate Court where he had signed the statement, the witness after reading the statement denies to have given such a statement and he adds that the police has threatened him of the consequences of involving the witness in POTA if the witness would not sign on the statement. During the course of the crossexamination, the witness admits to have not informed about the threat of the police to the Magistrate as he was afraid and that the copy of the statement has not been obtained and he has not complained about the threat before any authority. The witness
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further states that the Magistrate has informed him that it will be beneficial for him to sign, but for the said also, no representation has been made. The witness has then identified A-22 to whom he has not identified while his examination-in-chief. 3.17 The conduct of the witness does not sound to be natural nor it appears to be probable that the witness would not complain to any authority and even the judicial officer would tempt him to sign the statement. It is too clear that the witness has resciled from his earlier truthful version for the obvious reasons. 3.18 Exh. 1620 is the statement of PW 81 recorded by PW 193 on oath. 3.19 This witness has stated about the role of A-9 and the absconding accused who also states about weapons, fiscal help, etc. in his statement. 3.20 This witness has been declared hostile who in his examination-inchief states in one breath that he has not given any statement before Metropolitan Magistrate, in the another breath, he states that the statement shown to him was signed by him, but the said statement was not given by him and outside the Court, his signature was taken by the officer of the Crime Branch. 3.21 In the cross-examination, the witness was confronted with his police statement which he denies. 3.22 This witness states that he was kept in Crime Branch for two months and the Crime Branch officer Shri Goswami took him to the Metropolitan Magistrate Court, his family members were knowing about the witness been kept at Crime Branch, the
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relatives were visiting the witness, the witness was beaten, the witness was pressurized, all this was informed by the witness to his family members, but the family members have not complained anywhere, no treatment from any doctor was taken, even after two months no complaint or representation was made, the signature in the statement was not made before the Magistrate, but the witness was kept at the tea stall outside the Court compound where many lawyers were passing through, but the witness has not complained to any lawyer that he was made to sign. 3.23 During the course of the cross-examination by the defence after the cross-examination of the prosecution, the witness has stated that because the witness was threatened to get himself involved in POTA, no complaint was made and for the same reason, no complaint was made to any lawyer. 3.24 Appreciating the deposition of the Judge witness and noting the fact that the Judge witness was not in any way interested in the prosecution or to secure the statement or since the Judge witness has no animus against the witness, it is not probable that the Judge witness will write his endorsement "before me" and would sign on the statement as before me though in fact the witness was not brought before him. The cross-examination by learned Special P.P. improbabilize the version put forth by the witness as this cannot be the natural conduct of any such witness. Hence, the story attempted to be put forward for the first time by the witness is not credible at all and that the witness is held to have become hostile to the prosecution case for the other reasons. 3.25 It is however required to be noted that this witness has though made voluntary statement on oath before the learned Metropolitan
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Magistrate and since has spoken lie before this Court, the proceedings of perjury against the witness as discussed at point 2.8 need to be initiated. 3.26 Exh. 1622 is the statement recorded by the Judge witness on oath. This witness in his statement spells about the role of A-31 and absconding accused etc. in the crime. 4. PW 88 did not support the prosecution case in the Court who was declared hostile. This witness has however corroborated to his statement that A-31 is his friend whom he knows and that he did not scold A-31 for working with the absconding accused Rasulkhan Party. The witness has also further admitted that he gave his statement before the Metropolitan Magistrate Court, his statement was shown to him where he admits his signature. He however states that he has not given the statement. 4.1 During the course of the cross-examination by the prosecution, this witness has admitted that he had been to Metropolitan Magistrate Court, Shri Goswami took him to the Court, Shri Goswami came to his residence to carry him, Shri Goswami told him while going to Court that the witness has to sign and the witness has signed before the Magistrate. The witness admits that he did not tell the Magistrate that he has signed because of the fear of Shri Goswami, he has thenafter also not complained to the Magistrate and not complained against Goswami as well. 4.2 During the course of the cross-examination by the defence, the witness has stated that he was made to sit for 6 days at the Crime Branch.
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4.3
During the course of the cross-examination by the prosecution, the witness states that Shri Goswami came to his residence to call him and to carry him to the Court and in the reply to defence, the witness speaks of his 6 days sitting at Crime Branch. In the light of the discrepancy in the version in quick succession by the witness the version which goes with the record should be believed as the version which has been spoken in the Court for the first time is apparently an after-thought and concocted version which cannot be believed. It is also not probable that the witness would not complain anywhere even at a later stage and that he would choose to observe silence throughout and after about 5 years for the first time the witness would break the ice. The conduct of the witness itself improbabilize his version. As against this, the statement Exh. 1622 of the witness read with oral evidence of the Judge witness sounds to be credible one.
4.4
This witness too has given false version in this Court by departing from his earlier version on oath. Hence, the perjury proceedings (point 2.8).
4.5
Exh. 1614 is the statement of PW 92 before the Judge witness on oath where he speaks about the involvement of different persons in the crime and more particularly A-22.
4.6
This witness was examined by the prosecution as PW 92 who was declared hostile wherein the witness has stated that he does not know A-22, he has given statement at Metropolitan Magistrate Court which was taken by coercion wherein the witness has signed the statement.
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4.7
During the course of the cross-examination by the prosecution, the witness has stated that he had been to Metropolitan Magistrate Court where the learned Magistrate has noted the statement as dictated by the witness. The witness has added that he was kept in the Crime Branch for two days. The witness was made to sit for two hours in the Crime Branch. After the statement was noted under coercion uptil the date of deposition, the witness has not given any application or complaint to the Metropolitan Magistrate or before any other authority.
4.8
The witness further admits that he has given deposition in POTA Case No. 7/03 wherein he has stated that it has not so happened that he was called by the Crime Branch and that his reply was recorded on the same date when he was called in the Crime Branch. The witness has also informed while his oral evidence during the conduct of trial of POTA Case No. 7/03 that he gives his oral evidence without any fear.
4.9
This witness is speaking obvious untruth and the difference between his oral evidence in the previous case and the present case cannot be without obvious reasons and that in the light of the oral evidence of the Judge witness, the statement itself and the admitted oral evidence in the earlier POTA Case, this also seems to be a fit case to initiate perjury proceedings against this witness who is obviously speaking lie before this Court (point 2.8).
4.10 Exh. 1609, 1616, 1618 and 1621 are the Yadis by the investigating agency to the Judge witness for recording statements of different witnesses u/s 164 of Cr.P.C.
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4.11 Exh. 1610 and 1615 are Yadis by the Judge witness to the Investigating Officer to keep the different witnesses present on the date and time shown in the Yadi. 4.12 Exh. 1611 and 1612 are the Yadis to send different statements recorded u/s 164 of Cr.P.C. towards the POTA Court. 4.13 The above Yadis are strengthening the presumption to have carried the work of recording the statements of the witnesses u/s 164 of Cr.P.C. quite properly by the Judge witness.
(II)
5. PW 181, the Judge witness has recorded the statement of PW 74 and PW 102 u/s 164 of Cr.P.C. 5.1 The Judge witness has stated that he was working as Metropolitan Magistrate from 1/1/2000 to June 2003 in the city of Ahmedabad, on 12/6/2003 he has received Yadi and production report of PW 74 and PW 102, the statements of the witnesses were recorded u/s 164 of Cr.P.C. in the chamber, police was not present, typist was present, voluntariness of the witnesses was confirmed and the statement was recorded as spoken by the respective witnesses, Exh. 1501 of PW 74 and Exh. 1500 of PW 102 were formally proved by the witness, both the statements were sent in sealed cover to Court No. 11 which had jurisdiction on the Crime Branch. 5.2 The Judge witness was cross-examined on the aspect that he did not write the time to begin and time to end the statement, that he did not write the Rojkam, that he did not note his verification of voluntariness and that the witness has denied the suggestion that
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the statement was readymade upon which the Judge witness has only signed. 5.3 In the humble opinion of this Court, the Judge witness seems to have satisfactorily ascertained the voluntariness of the witnesses and has properly carried out his work of recording the statement u/s 164 and has then sent the original statements to Court No. 11 which have been ultimately received by this Court and are on the record. The suggestion that the statement was readymade and the Judge witness has only signed has been denied and the other admissions about Rojkam, timings, etc. are simply irregularities. It is different that had the said been written, it would have added to the accuracy, but since it is not the statutory requisite, this Court does not find any substance in the cross-examination to disbelieve the genuineness and propriety of the process. 5.4 Exh. 1501 is the statement of PW 74 which has been recorded by the Judge witness on oath. 6. PW 74 was examined as witness who was declared to be hostile as he did not depose in the tune of his statement. The witness has however corroborated to an extent that in March 2002, there were communal riots in Gujarat. The witness has also stated that his statement before the Magistrate was recorded and after reading his statement in the Court while in the witness box, he has stated that he has signed his statement, the Magistrate read over his statement and he signed the statement on the say of the officer sitting outside the Court and the contents in the statement are not true.
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6.1
During the course of the cross-examination, the witness has admitted that he has not made any complaint about any threat or detention by officers of the Crime Branch.
6.2 6.3
The witness has not been cross-examined by the defence. In the humble opinion of this Court, when the Magistrate has read over the statement, the witness was given his statement to read who admits to have signed in the statement and who also admits that the officer of the Crime Branch was sitting outside the Court, it seems that the procedure was quite satisfactory and there does not seem to be any procedural lacuna or shortcoming because of which the Judge witness can be disbelieved. This witness has rather corroborated the Judge witness qua adoption of proper procedure. It cannot be believed that the officer sitting outside would control the witness and the Judge sitting inside the Court doing proper procedure would not be found by a person to record his complaint, if any, against the police. It is very clear that even this witness has become hostile to the prosecution case for the obvious reasons and in no case, this witness can be termed to be speaking truth before this Court. Hence, it appears that this witness has not adhered to his true earlier statement on oath before the Court who therefore needs to face the perjury proceedings (point 2.8).
6.4
Exh. 1500 is the statement of PW 102 who became hostile while was being examined as prosecution witness. The witness has however corroborated his statement to the extent that he knows the absconding accuracy Sohail Khan, A-24 and others. The witness denies to have fiscally contributed which he has stated in his statement. The witness has admitted that he was called at the
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Magistrate Court. The witness has identified his signature and has stated that he signed because he was told by the Crime Branch. 6.5 During the course of the cross-examination, the witness admits that he has not complained either to Magistrate or any other person for taking his signature because he was feared. The witness has denied the suggestion that since accused are neighbours, the witness is speaking lie. 6.6 In the light of the oral evidence of the Judge witness and seeing the statement itself, it seems that all the procedures have been properly observed and the witness has given voluntary statement before the Judge witness. The witness who is alleging for the first time that he has signed because of the say of the Crime Branch seems to be too vague because Crime Branch is a very big unit and the witness ought to have specified a person which the witness would have been able to do had there been really any person or officer of the Crime Branch who might be persuading the witness. In absence of any specification in the allegation and since the allegations are apparently vague, this Court found the same to be not worthy to be believed and are therefore disbelieved. It seems that this witness has also become hostile for the other reasons and deposition of the witness as reason for signing the statement are absolutely not credible one. This witness also since has spoken lie on oath and is since differing from his earlier version on oath should face the perjury proceedings (point 2.8).
(III)
7. PW 173 is the Judge witness who has recorded the statement of PW 80 and 84 u/s 164 of Cr.P.C. This witness has deposed that he was in the Metropolitan Magistrate Court from June 2003 to
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June 2004 in Ahmedabad City, on 25/8/2003 and on 26/8/2003, the statement respectively of PW 84 and PW 80 were recorded by the witness, the said statements were sent to the POTA Court vide forwarding letter Exh. 1429. The statement Exh. 1430 and Exh. 1431 respectively of PW 84 and PW 80 were formally proved to be true by the witness. The witness further deposed that the statements were typed, dictated by the witness, the dictation was based on the contents of the witness, the statements were sent to the Principal Judge, City Civil Court, Ahmedabad. 7.1 This witness was cross-examined on the aspect of topography of the Court, the heavy workload of the Court, the business of the Court at that point of time, the witness having no jurisdiction of the Crime Branch, the witness was not knowing the officer of the Crime Branch, cannot identify the officer in simple dress, the statements were written on the letterhead of the Chief Metropolitan Magistrate, Rojkam was not written, the time to produce the witness was not written, it was not mentioned in the statement that the statement was recorded in the open Court, name of the typist has not been written, endorsement of ascertainment of voluntariness has not been made, etc. 7.2 During the course of the cross-examination, the witness has brought on record that to introduce the witness PSI Shri Goswami came which shows that the Judge witness knew Shri Goswami who brought the witness. Thus, it is out of question that at the time of recording the statement, the officer of the Crime Branch was present. It has been admitted by the witness that for the identification of the witness, his identity card or photograph was not produced, but firstly there is no statutory requisite and secondly, PSI Shri Goswami has introduced the witness. Hence
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this question does not arise. The witness admits that he has not written in his endorsement that the statement was read over and was written truly, but then in the examination-in-chief, the witness states so and that this is hardly a procedural lacuna which gets cured upon oral evidence of the Judge witness. The witness specifies that the statement was typed by Stenographer Purohitben. The witness has denied the suggestion that the statement of the witness was dictated by Shri Goswami to the Stenographer of the Judge witness in his chamber. This is a suggestion which is more than hypothesis and cannot be believed at all. The witness has denied the suggestion that the police was present when the statement was recorded. The witness has also stated that the statement was not in question-answer form, but was as stated by the witness whose statement was recorded. In the light of the fact that Section 164(5) since does not specify the procedure upon which the Judge witness was assailed, this crossexamination in the humble opinion cannot hold the field and does not help the defence to rebut the presumption in favour of the prosecution. The forwarding letter, covers, etc. add to the presumption. This witness has also spoken lie in the Court departing from his earlier version on oath. The perjury proceedings against this witness also need to be initiated (point 2.8).
(IV)
8. PW 175 is the Judge witness who states on oath that he was working as Metropolitan Magistrate Court, Ahmedabad from May 2003 to July 2005. This witness has recorded the statement of PW 76 u/s 164 of Cr.P.C. who further states that the witness was brought by police constable, Crime Branch, preliminary inquiry was made, voluntariness of the witness was ascertained, police was kept outside, the statement was recorded in the chamber on
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17/7/2003 on oath which was written as dictated by PW 76, Exh. 1442 has been formally proved by the witness as statement of PW 76 which statement was sent by forwarding letter Exh. 1443. 8.1 8.2 This witness was not cross-examined. Exh. 1442 is the statement on oath given by PW 76 wherein the voluntariness of the witness is found to have been recorded, preliminary question-answers are also recorded, in the statement involvement of A-9, the another person, fact on the weapons etc. can be read. Exh. 1443, the forwarding letter, two different covers are revealing the statement to have been sent to the POTA Court which all speak about propriety, the Judge witness is found to be truthful and trustworthy who seems to have adopted the procedure in satisfactory manner in recording the statement. 9. PW 76 was examined by the prosecution who was declared to be hostile. The witness states that he has not given any statement, but upon show of his statement, he admits his signature, after reading the statement, he states that he has not given this statement and his signature was made at police station. This witness was declared hostile and in the cross-examination by the prosecution, the witness states that he had been to Metropolitan Magistrate Court for once or twice, no inquiry was made by the Magistrate, he did not make any representation before the Judge witness, he has not complained anywhere for taking his signature in the statement, he admits that the officer of the Crime branch has interrogated him, but has not done any coercion. 9.1 During the course of the cross-examination by the defence, the witness states that he was not called on the next day after thinking
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over by the Magistrate, about 13 to 14 police cases have been registered against the witness and the police was threatening to involve the witness in other cases. 9.2 In the humble opinion of this Court, this witness is speaking white lie and seems to be an obliging witness. He has stated in the cross-examination by the prosecution that the Crime Branch has only interrogated him, but no coercion was employed on him whereas he agrees to the suggestion of the defence that the witness was threatened to be booked in other cases. Secondly, in the examination-in-chief in paragraph 2, the witness states that police has not recorded his reply and in the same paragraph, he states that he has signed in the statement at the police station. What the witness speaks is something which cannot be accepted as truth that the Judge witness would write before him which according to witness was before the police station. In the light of the oral evidence of the Judge witness and upon plain perusal of the statement, it is very much clear that the witness is speaking lie before this Court and is becoming hostile in the Court for the obvious reasons. Noting the fact that the witness has departed from his earlier true version on oath while his deposition in the Court on oath, the consequences of perjury proceedings should result even against this witness (point 2.8).
(V)
10. PW 177 is the Judge witness who has recorded the statement of PW 83, PW 86 and PW 152 u/s 164 of Cr.P.C. This witness has deposed that he was working as Metropolitan Magistrate from 1/4/2003 to 28/1/2004. The witness has verified voluntariness for all the three witnesses, gave them cooling off time of 24 hours, the witness himself has taken down the statement in his own
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handwriting and except the witness and Judge witness there was none else in the chamber of the Judge witness, while the preliminary questionnaire the police was not present in the open Court, the statements Exh. 1450, 1452 and 1043 respectively of PW 152, PW 86 and PW 83 have been formally proved by the witness along with proving Exh. 1451, 1453 and 1454 the forwarding letters. The statements were recorded on oath. 10.1 This witness was cross-examined by the defence. It has been admitted that there is no mention in the statement of PW 86 at Exh. 1452 about administering oath to the witness. The procedure of cooling off time and ascertaining voluntariness is not in writing. After the endorsement, no signature of the witness has been obtained, the statement is not in question-answer form, the situation and topography of the Court, the workload of the Court, the jurisdiction of the Court was all asked. The time of one hour in recording the statement was taken as admitted in the crossexamination, non-mention of the time to start and to end the statement and that the statement was recorded in the chamber were also focused in the Court. 10.2 This Court has perused the statement. It is true that there is no mention of having administered oath to the witness. Thus, the statement of this witness viz. PW 86 cannot be termed to be on oath and to the said extent, the benefit would go to the witness of he having given statement without administering oath. As far as other questions in the cross-examination like the statement is not in question-answer form, after the endorsement at the foot signature of the witness has not been obtained, time to begin and to end have not been noted, etc. are of no significance in absence of any statutory provision. It is however needed to be taken note
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that in the endorsement though signed by the Judge witness alone, the procedure adopted by the Judge witness particularly deciding the voluntariness of the witness, having given cooling off time to the witness, etc. can be seen very clearly and just because the witness has not signed below the endorsement, there is no reason to disbelieve the oral evidence of the Judge witness as at the end of the statement, the witness has signed, which is sufficient. The endorsement at the foot is not the statutory requisite as has been provided in Sub-Section (4) of Section 164 of Cr.P.C. in case of the accused. 10.3 This witness was also cross-examined by another L.A. for defence. The witness was assailed on the ground that the witness came along with the police and the Yadi of learned Chief Metropolitan Magistrate, it is a judicial proceeding, should normally be done in the open Court, the reason for not doing in the open Court has not been noted, the noting of the judicial proceeding is being done, but in the case has not been done, on 13/1/2004, the witness came along with the constable, on 15/1/2004 (when the statement was recorded) the witness came with whom is not known to the Judge witness, the witness came alone, no such note has been made, when for the first time the witness was accompanied with police, the Judge witness did not find any unusual thing, the reflection time was not necessary, the suggestion has been denied that on 13/1/2004 the witness was not ready to give his statement. Therefore he was called on 15/1/2004 and that on account of non-compliance of the procedure, no record has been kept. 10.4 In the humble opinion of this Court, the statement of the witness was since to be recorded as part of the investigation, it sounds
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very usual and natural that someone from the investigating team would accompany the witness, but merely that is not sufficient to cast any doubt on the Judge witness, nothing is to be doubted when the Judge witness preferred to record the statement in the chamber which may be more guaranteeing security to the witness and the witness would feel more easy and free which would help in bringing out truth, though there was no need of reflection time, the Judge witness has given reflection time is clearly exhibiting adoption of more safe procedure for the witness which itself has to be taken positively, even through cross-examination by another L.A. for the defence, nothing has been brought out on record by which the Judge witness becomes incredible. The forwarding letter Exh. 1451, the covers, the original statements, the forwarding letter at Exh. 1453 are again giving strength to the presumption of propriety of the procedure adopted by the Judge witness. In view of the foregoing discussion, the procedure adopted by the Judge witness is found to be proper and satisfactory. 10.5 Exh. 1450 is the statement by the Judge witness which is involving A-7, A-45, A-46, the absconding accused and other relevant facts related to crime. The voluntariness of the witness can very well be ascertained from the words in the endorsement. 11. This witness viz. PW 152 has been declared hostile who has corroborated her statement to an extent that she knows A-7, A-45 and A-46 as they are residing in the same Pole (street in the walled city). The witness states that her statement was not taken in the Metropolitan Court, but her thumb impression was taken on some writing at the Metropolitan Magistrate Court, her thumb impression had been identified by her on the statement. This witness has stated in her cross-examination by the prosecution
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that she did not complain to anyone or told anyone about the fact of taking her thumb impression at the Metropolitan Magistrate Court. The witness denies the suggestion that she is becoming hostile as A-7 is her neighbour. 11.1 As can be seen from Exh. 1450, the statement of the witness and the oral evidence of the Judge witness, it is very clear that the witness is speaking lie before this Court and her statement on oath before the Metropolitan Magistrate Court has been resciled by her for the obvious reason. In the light of the fact that for the first time in the year 2008 she tells the Court about having given her thumb impression in the Metropolitan Magistrate Court without knowing what was written in the statement was the version which does not sound to be probable cannot be accepted as truth and that this witness also needs to face the perjury proceedings (point 2.8). 11.2 Like the statement of PW 86, the statement of PW 83 has even been seen where also there is no mention of having administered the oath. Hence even in case of PW 83, it needs to be believed that the said statement was recorded without administering oath and to that extent, PW 86 and PW 83 needs to be given benefit of doubt of having not been recorded their statements on oath.
(VI)
12. PW 174 is a Judge witness who has recorded statement of PW 77 and 148 u/s 164 of Cr.P.C. This witness has deposed that from June 2002 to May 2004, he has worked as Metropolitan Magistrate, PW 77 and 148 were produced before this witness on 18/6/2003, the Judge witness ascertained voluntariness of both the witnesses, made preliminary inquiry in the open Court, after giving time of 24 hours for reflection the statements were recorded
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in open Court of both the witnesses one by one on oath which was noted by the Bench Clerk of the Judge witness, when none from police was present in the Court the witnesses have signed their statements, the witnesses were with PSI Shri Goswami, Exh. 1435, the write-up of preliminary understanding is in the handwriting of the Judge witness, Exh. 1436 and 1437 as statements of PW 148 and PW 77 have been formally proved along with forwarding letter Exh. 1438. 12.1 This witness was cross-examined on the aspects that the Yadi of Chief Metropolitan Magistrate was not with the statement, the witness was not in police custody, the witness was not inquired as to why he is with police, when the witnesses went out, they went out with the police, on 18/6/2003 the witnesses have not given any application to record their statement, on 18/6/2003 signature of the witnesses were not taken to have explained them about recording their statement, the topography of the Court was confirmed, the note that the witnesses have confirmed their statements has not been made, the time to begin and end the statement were not recorded, the statements of the witnesses were sent to Court No. 11 as Court No. 11 had jurisdiction for Crime Branch, the need of getting the statement typed was not felt. The suggestions that the the Bench Clerk has not written the statements as dictated, but both the statements were dictated to the Bench Clerk by Shri Goswami have been denied by the witness. 12.2 This Court is of the opinion that none of the questions from the cross-examination is suggestive of non-compliance of any statutory provision and there is nothing on record to doubt the propriety of the procedure adopted by the Judge witness and truthfulness in the deposition of the Judge witness. The Judge
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witness has thoroughly proved to have recorded both the statements as stated by the respective witnesses and that there is nothing by which the version of the Judge witness can be doubted. Not only that, but the covers produced on record at Exh. 1435, the written instruction by the Judge witness upon production of both the witnesses fixing the date and time for recording the statement to be 26/6/2003, signed by both the witnesses, is pointing to genuineness of the procedure. Below the said Yadi, endorsement as stated in the oral evidence written by the Judge witness that the time on 26/6/2003 has been given, but on 18/6/2003 both the witnesses have been produced with Shri Goswami who has persuaded to record the statement today itself and that the witness has further endorsed that said Shri Goswami is outside the Court, both the witnesses have been explained one after the another about seriousness of such statement and confirming their voluntariness this document shows the adoption of proper procedure which is being proved by the oral evidence of the Judge witness. Exh. 1438 is the forwarding letter by which the original statements were sent to Court No. 11 who at that point of time had jurisdiction of the Crime Branch which was investigating the crime. This is also the document which is providing strength and corroboration to the oral evidence of the Judge witness by which the presumption of propriety gets strengthened. The Judge witness seeing to be absolutely truthful witness. The fact that an officer of the investigating team would accompany the witnesses and the change of date of recording the statement are not something which can be termed to be unusual and doubtful. This has to be seen in the light of the fact that none of the witnesses has complained that they have been maliciously taken on 18/6/2003 before the Judge witness instead of 26/6/2003 or because they were earlier taken before the Judge witness, the
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truth has not come on record or the voluntariness of the witnesses was adversely affected. Thus, the change of date is not casting any doubt on the genuineness of the recording of statements of both the witnesses. 12.3 Exh. 1437 is the statement of PW 77 which involves A-20, the absconding accused along with mention of the weapons etc. This statement is on oath as is found to have been noted in the statement itself. 12.4 PW 77 has been declared hostile. This witness has corroborated his statement to an extent that while his daughter was sick, he had been to Mufti Sufiyan who gave him magic water which worked wonder. This witness has also deposed that the police took him to Metropolitan Magistrate Court where the Judge asked him to sign in one writing and he signed on two of the papers out of which one is the statement of the witness. The witness does not remember to have signed in the paper for giving him reflection time. The statement was read over in the Court. The witness admits his signature thereon. The witness has further stated that he has not given such a statement. 12.5 During the course of the cross-examination by the prosecution, the witness admits that he does not know the name of the officer who has threatened him to involve him in a POTA Case if the witness would not give the statement, the witness has not complained to the Magistrate about any threat, no complaint to any other officer has been made for obtaining his signature in the statement. The witness has denied the suggestion that since his daughter was cured by absconding accused Mufti Sufiyan and since A-20 is his close aide, the witness speaks lie.
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12.6 During the course of the cross-examination by the defence, the witness states that the officer who has threatened him was of the Crime Branch, Shri Goswami took the witness to the Court, he does not know as to whether he was threatened by said Shri Goswami or not. 12.7 It is extremely unnatural that one does not complain to anyone even after lapse of so many years for having received the threat and that too the threat to give a statement in such a serious crime, it is not probable that the witness would not be knowing as to who has threatened him and whether said Shri Goswami has threatened or not. The kind of the replies given by the witness are clearly conveying that the witness is lying for the obvious reasons. There is no material on record by which the story developed by the witness which is apparently after-thought can be believed. The witness is speaking lie on oath and is falsely departing from his earlier version on oath. 12.8 Exh. 1436 is the statement of PW 148 which involves A-20, A-27, absconding accused etc. duly signed by the witness. 12.9 This witness is declared as hostile witness while being examined as a prosecution witness. This witness has corroborated to an extent that he knows the absconding accused Mufti Sufiyan, the police has taken his reply, the police took him to Metropolitan Magistrate Court where his statement was recorded and he has signed on the same. The statement was shown to the witness who states that because of the threat to book the witness under POTA by the officer of the Crime Branch, he has signed the statement, but he has not complained to the Magistrate for the same, no
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complaint or representation at any other place has been made for the statement by threat. 12.10 The witness was cross-examined by the prosecution where he has denied the suggestions of the prosecution. 12.11 The witness was also cross-examined by the defence where the witness states that he has complained nowhere because of the fear the witness had of being booked in some case as per the threat of the police, the witness was called upon for interrogation at the Crime Branch office where he was kept for 28 days, police has maltreated him, has beaten him, the Magistrate did not ask about beating, the police was present when the statement was recorded. 12.12 In the light of the deposition of the Judge witness who positively states that the police was not present and when the conduct of the witness apparently seems to be unnatural as he has not reported to anyone which he would have done had the threat been genuinely given to him and he would have complained to someone or at least his family members would complained had he really been detained for 28 days and had he been really maltreated. As discussed above in other cases, the witness has become hostile for other reasons and it is held that this witness does not give true account of the fact, rather he speaks lie before this Court though he has given his earlier version on oath and he becomes hostile from his earlier version for obvious reasons. Hence, the witness does not seem to be truthful and credible one. There is no material to disbelieve the Judge witness and to believe this witness.
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12.13 PW 77 and PW 148 therefore deserve to be prosecuted for perjury as discussed at point 2.8. FINDINGS OF (I) TO (VI) 13. As discussed hereinabove, all the Judge witnesses are found to be truthful witnesses, their deposition has been supported by the original statement of the respective witnesses on record. All the witnesses are held to have given their statements before the respective Judges voluntarily and that they all were in a free atmosphere and were apparently enabled to speak freely with the respective Judges, all of them have given their statements on oath, all the statements are found to have been duly recorded and that the statements do not suffer from any of the legal infirmities and that all the Judge witnesses have properly formed their opinion about the statements of different witnesses to be voluntary. However, noting the basic principle that the statement u/s 164 of Cr.P.C. can be used for corroboration and/or contradiction since all the above mentioned witnesses were hostile witnesses, the statements though apparently found to be voluntary and truly recorded statements, they cannot be used to bring home the guilt of the accused, but then, the statements are since on oath and when this Court found it truly recorded and voluntary statements, the respective witnesses cannot be permitted to take their convenient stand as discussed at point 2.8 and as this Court has held earlier, it is just and proper to issue show cause notice to all the witnesses mentioned hereinbelow as to why the respective witnesses should not be prosecuted u/s 344 of Cr.P.C. as there appears prima facie case against all of them of willingly giving
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false evidence and it is necessary and expedient to try all these witnesses in the interest of justice. The witnesses are as under :
PW No. 67 74 76 77 78 80 81 84 85 88 91 92 97 102 148 152
Name Tanvirhussain Sagirhussain Koza Asif Rashidbhai Patel Irfan Rashidbhai Shaikh Kamruddin Kamaluddin Saiyad Shafiqujumma Mohammedaslam Bangdiwala Abdul Rahim Samsuddin Shaikh Mohammed Junaid Mohammedmiya Shaikh Mohammed Rizwan Mehmood Ansari Mohammed Samim Mohammed Idrish Rajput Abdul Sattar Ibrahim Momin Firozkhan Abdul Rashidkhan Mewati Mohammed Sajid Ahmedhussain Shaikh Liyakathussain Badamiya Shaikh Yusuf Allahbebi Shaikh Mohammed Junaid Abdul Aziz Valsadwala Aishabibi Samsuddin Shaikh
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Statements of the witnesses who are hostile, who have not deposed as per the statement and who were not administered oath
14. PW 192 is the Judge witness who has recorded the statement of PW 68, 69, 82, 93, 94, 96, 101 and 104 respectively on record at Exh. 1587, 1589, 1592, 1597, 1588, 1590, 1595 and 1598. 14.1 The appreciation of the oral evidence of the Judge witness as is the same which has been discussed for other judge witnesses. It is notable that all the above referred 8 witnesses have turned hostile while they were examined by the prosecution as its witnesses. The moot point is that the statements of all these witnesses were recorded before the learned Judge as a part of investigation process and that in none of these cases oath was administered to the respective witnesses. Now when in the settled position of law the statement was not on oath and when the witnesses are hostile, no other use of the statement can be made because no corroboration can be searched from it nor it is proper to initiate perjury proceedings in case of these witnesses the two different statements on oath are not there. Hence, benefit can be given to such witnesses. Hence, no fruitful purpose would be served in discussing these witnesses at this stage while deciding worth of their deposition qua the statement u/s 164 of Cr.P.C. 14.2 PW 172, the Judge witness, has recorded the statement of PW 70, 79, 87 which statements are on record vide Exh. 1417, 1038 and 1418 respectively. PW 79 has not been declared hostile but he has not owned his statement u/s. 164 of Cr.P.C. - Exh. 1038 and thus he has not proved the prosecution case against A-26 of he having handed over the weapons to A-25. This gives benefit to A-
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26, but as far as A-25 is concerned, his source of procuring weapon is since not important it does not grant benefit of doubt to A-25. 14.3 PW 178, the Judge witness, has recorded the statement of PW 75 which is on record at Exh. 1459. 14.4 PW 177, the Judge witness, has recorded the statement of PW 86 which is on record at Exh. 1452. 14.5 All these five cases are sailing in the same boat of the eight cases in which the statements were recorded by PW 192, the Judge witness. Hence these five statements are also not required to be discussed as they meet with the same fate and that in this case also, neither perjury proceeding can be initiated nor any corroboration can be searched since these witnesses have been hostile to the prosecution.
STATEMENTS OF WITNESSES WHO HAVE SUPPORTED THE PROSECUTION CASE:
(I)
15. PW 172 has recorded the statement of PW 73 u/s 164 of Cr.P.C. This witness has deposed that he has worked as Metropolitan Magistrate of Ahmedabad City from June 2000 to June 2003, he was assigned the work of recording statement u/s 164 of Cr.P.C. by the Chief Metropolitan Magistrate which statements were accordingly recorded and then sent the said statements to Metropolitan Magistrate, Court No. 11. In paragraph 6 of the deposition, the witness has stated that he has recorded the statement of PW 73, he has ascertained the voluntariness of the
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witness by asking him questions, cooling off time of 24 hours was given after which the voluntariness was reconfirmed, the statement as stated by the witness was recorded through the Bench Clerk, the statement was signed by the witness and by the Judge witness, the endorsement was then made, the said statement is proved by the witness as Exh. 1030. 15.1 This witness was cross-examined. The topography of the Court was confirmed, the conversation in the Court room and chamber was admitted to be heard by the person standing outside, the witness admits that he does not know the officer of the Crime Branch, the witness was cross-examined on the aspect that the summons to any of the witnesses was not issued, the identification of the witness by licence, ration card or photograph was not done, Rojkam has not been written, the witness has not read the police papers before recording the statement, the Judge witness has denied the suggestion that for every proceeding, Rojkam is not essential, the statement u/s 164 should be taken in the open Court, the witness was not presentable. 15.2 As such, no particular cross-examination was done with reference to the statement Exh. 1030 of PW 73 under the discussion. However, to appreciate the witness, the other cross-examination has been seen from which and upon reading the examination-inchief it seems that the witness is a truthful witness, has adopted proper procedure as can be seen in paragraph 6 with reference to the statement under discussion. 15.3 Exh. 1030 is the statement of PW 73 which is not on oath. Upon perusal of the statement, it seems that with reference to Yadi dated 4/6/2003, the witness was produced before the Judge
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witness on 6/6/2003, the witness as noted in the statement was left in the custody of the peon of the Court, the PSI was directed to leave the place, as is noted, the policeman is not present, the witness was informed by the Judge witness that he is not in police custody, the complaint of any ill-treatment by the police was not reported on questioning by the Judge, the Judge witness has ascertained the willingness and confirmed the voluntariness of the witness to give the statement, the witness was informed that he is not bound to give the statement and the same can be used against him and that the Judge witness is a Magistrate after which the cooling off time of 24 hours was given after which the witness was again produced, voluntariness of the witness, absence of fear, pressure, inducement, etc. were confirmed, the physical examination was also done by the Judge witness as recorded upon which the Judge witness did not find any sign of physical injury etc. and when the witness stated that he is desirous to tell the truth, the statement then came to be recorded wherein the witness has stated that after the Godhra incident when the communal riots were on, A-24 - Athar Parvez met the witness and has told that there was loss of life and property of Muslims in the communal riots, to take revenge for the same you be ready to go to Pakistan for training, the witness has declined stating that it is not his cup of tea and that he is a man with children and thenafter the witness been away from A-24. 15.4 After the statement, the Judge witness and PW 73 have signed after which the endorsement has been made by the Judge witness wherein also PW 73 has endorsed that the statement was heard by him and it was written as told by him and that he has signed for the same.
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15.5 The witness has been examined as PW 73 who has stated before the Court that A-24 meets him frequently, they reside in the same locality, he gave his statement before the Magistrate, the statement was read by him while deposing, the witness stated that the contents of the statement are true and that it is as was stated by him, he has identified his signature, the witness then added that he gave the statement out of fear and that he was told by the officers of the Crime Branch to reply in affirmative for whatever is asked to him by the Judge. He has however added that he has not complained against the officer of the Crime Branch. 15.6 This witness was cross-examined who has not been declared hostile by the prosecution. 15.7 During the course of the cross-examination, the witness has stated that he was taken to Crime Branch for about 3 to 4 times, he had to sit at the Crime Branch for hours, at Crime Branch, his name, address and family details were asked and after taking his signature he was allowed to go, since the police was scolding, he was afraid, the police told him that he would be involved in some case if he would not do as directed, A-24 was present at the Crime Branch and he was wrapped with the rope, hence the witness was afraid, there were other persons, he had been to Court and that he was told to speak as was asked by the Judge and he has not stated anything from his willingness and he has signed in the statement because of the fear. 15.8 This witness has in a very clear term told in his examination-inchief that the statement read by him (Exh. 1030) was as spoken
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by him and as dictated by him and there is his signature. The witness speaks this after he read the statement of him at Exh. 1030. 15.9 It seems that the witness desires to oblige the accused, the reason sounds to be quite simple that the witness and the accused reside in the same locality, the witness seems to be embraced the attitude of blowing hot and cold at the same time. He has supported the prosecution case completely by stating on oath that the contents of his statement are absolutely true and as stated by him, but thenafter the witness has told that he was told by the officer of the Crime Branch to reply in affirmative for the questions whichever were asked by the Judge witness. Now if the operative part of the statement is seen, no question has been asked by the Judge witness, but as has been recorded on internal page 4, it is pure and simple version noted in inverted commas that of the witness. Secondly, a Judge witness is not expected to know the prosecution case and to ask anything to suit to the prosecution case. Even when the Judge witness was cross-examined, no cross-examination has been done qua the statement of this witness and even if the general cross-examination is taken, then such a suggestion as stated by the witness that he spoke as was asked by the Judge witness nowhere is found. Thus, the twisted version attempted to be brought on record is not found to be genuine and when the said questions with reference to the statement of PW 73 have not been asked to the Judge witness, it loses the significance and the latter version put forth by the witness does not stand proved in any manner and that it is clearly appearing to be an after-thought and seems to have been told at the instance of A-24 to help A-24.
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15.10 When the witness has proved the statement Exh. 1030 beyond any doubt, the version in the statement stands proved by the oral evidence of the witness. Hence the corroboration from the statement can very well be secured. If the previous proceedings undertaken by the Judge witness are produced, it is spread over in three pages wherein though not required u/s 164(5) of the Cr.P.C., all care have been taken by the Judge witness to ascertain the voluntariness of the statement and truthfulness of the statement has been stated on oath by the witness. It is true that the kind of the oral evidence adduced by PW 73 needs very cautious and careful analysis. Upon doing the same, it is held that PW 73 has supported the prosecution case to an extent that the statement Exh. 1030 is a true and voluntary version of the witness. Above the signature of the witness, the witness seems to have written himself that the statement was heard by him which is as dictated by him. In this eventuality, the statement and the truthfulness of the statement support by the witness to the prosecution case qua voluntariness and truthfulness of the statement have been proved beyond reasonable doubt and that slight twisting by the witness at the instance of A-24 does not change the substance. Hence it is held that this witness has supported the prosecution case through his statement and the oral evidence. FINDING: This witness has proved the role of A-24 in the communal riots after the Godhra incident to provoke the Muslim community to go to Pakistan for training (obviously terrorist training) and to spread that in the communal riots after Godhra incident there is loss of lives and property of Muslims.
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(II)
16. Exh. 1043 is the statement of PW 83 which was recorded by the Judge witness PW 177. The appreciation of the oral evidence of PW 177 has already been done earlier, hence it needs no repetition. 16.1 Exh. 1043, if perused, it is clear that the witness has stated that he gives his voluntary version who knows absconding accused Mufti Sufiyan of Lal Masjid, the witness had been to said Mufti Sufiyan to ask some personal questions, Mufti Sufiyan has learnt that the witness is nephew of one Abdul Latif Abdul Wahab, Rs.35,000/- in May or June of 2002 were given to the witness by said Mufti Sufiyan and the witness was told to hand over the said amount to one Tariq residing at Mastan Maholla. Since Tariq was not found by the witness, he returned the said amount to one Juned and has told Juned that this amount is to be given to Tariq, after one or two days Juned met the witness and told that Tariq has given the weapons and money has been paid to said Tariq, the witness was feared on hearing the talk to weapons who then went to said Mufti Sufiyan to say that the goods had arrived and in turn said Mufti Sufiyan said that the said goods be sent to him and this is not to be told to anyone, then the witness had been to Juned and told that the goods are to be sent to said Mufti who was also afraid, after two to three days, Juned met the witness who said that the goods were delivered to Mufti, having learnt that Tariq and said Mufti are dealing in weapons, the witness has discontinued his relationship with them.
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16.2 The said Mufti Sufiyan is the absconding accused whereas Tariq is being tried as A-9 in the case. 16.3 PW 83 has been examined by the prosecution who has deposed that he does not know Mufti Sufiyan and A-9 but knows Juned who is having shop named as Honest Radiator at Mirzapur, the witness has deposed that he also knows two friends of Juned, Mufti Sufiyan was doing Jehadi talks, was talking to secure weapons and was also telling to take revenge for the communal riots of the year 2002. The witness has admitted to have given statement at the Metropolitan Magistrate Court, his signature therein and Exh. 1043 to be the same statement. During the course of the crossexamination, the witness admits that he is nephew of Abdul Latif and that he has signed the statement under the police pressure. 16.4 The earlier statement of the witness at Exh. 1043 is not on oath and barring some few words here or there about having given the statement before the Metropolitan Magistrate Court that too is not being maintained in the cross-examination, the witness has not at all supported the prosecution case, though this witness has not been declared hostile, this witness cannot be termed to have supported the prosecution case in any manner. It would be extremely unsafe to believe this witness to conclude the guilt of A9. The statement u/s 164 can since be used for a limited purpose, the statement cannot be used to bring home the guilt of A-9. In the peculiar facts and circumstances of the case and more particularly in the light of very weak piece of evidence of PW 83 who has indeed not proved the contents of his statement, it is held that this witness has not helped the prosecution.
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FINDING : PW 83 cannot be termed to have proved any material to prove guilt of A-9.
(III)
17. PW 176 is the Judge witness who has deposed that he was working as Metropolitan Magistrate from June 2003 to February 2005. PW 64 was produced along with the Yadi to record his statement, preliminary questions were put, voluntariness was ascertained, reflection time was given after inquiry with the witness in the chamber, the witness was brought again, when police was not present, voluntariness was reconfirmed, the note in the statement was made, the statement as stated by the witness was noted by the Bench Clerk and the statement was recorded on oath wherein the Judge witness and the witness have signed which as proved was Exh. 1055, the said statement was sent to POTA Court vide the forwarding letter Exh. 1445. 17.1 This witness was cross-examined which was mainly on the procedural aspect of having not noted, giving of reflection time, after the endorsement signature of the witness has not been taken, time to begin and completing the statement has not been written, time of the inquiry has not been noted, the handwriting of the Bench Clerk have not been reflected in the endorsement, the Yadi of the Chief Metropolitan Magistrate has not been attached, Rojkam has not been written, etc. 17.2 In the humble opinion of this Court when and to an extent the PW 64 has supported the prosecution case, the procedural defects highlighted through the cross-examination loses significance which
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is more so when in recording the statement of the witness, there are no statutory provisions or administrative guidelines to so do. The PW 64 seems to have signed in Exh.777, the register of Hotel International, Kolkatta on 3/11/2002 which corroborates his version of he was at Kolkatta at the relevant time. This shows the truthfulness of this witness. 17.3 PW 64 has been examined by the prosecution who has deposed that he hails from village Dhanpura, District Mehsana, the friend of his brother-in-law resides at Meghaninagar to whom the witness knows, prior to 3 to 4 months of June 2002 the witness had a talk with said R.K. Patel to go to America who has informed that one Parag Gandhi at Kalol does the work of sending people to America, the witness met said Parag Gandhi and others at Aaram Guest House at Kalol where he had negotiated with one Javed for the price to go to America which was Rs.60,000/- per passenger and the said R.K. Patel has paid Rs.60,000/- to said Javed. After few days, 5 passengers went from Ahmedabad to Bombay after this payment who have started to reach Kolkatta. they stayed for about 5 days at Mumbai, Guddu gave tickets of Kolkatta, they went to Kolkatta where after 2-3 days, Javed came who was demanding money from other passengers, then Javed managed to cross Bangladesh border from Kolkatta for all the five passengers and took them to Dhaka where the five resided in one hotel and then in flat, at Dhaka Javed asked for more money from the passengers which were since not paid, he returned the witness and others to Kalol as the work of visa could not be done at Dhaka. In October 2002 Javed telephoned to Parag Gandhi who informed that witness and others are ready to go to America, then Javed told to send the passengers at Kolkatta, then the witness
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and others went to Kolkatta in company of Kaka and Guddu from Kalol, Javed kept them at Hotel International, the names were inserted in the hotel register where they have signed and then Javed left the hotel, Javed used to talk with Guddu at the hotel, after 2-3 days Javed came to Hotel and has told that arrangement to take us at Dhaka was made, after few days Javed telephoned from Dhaka and talked about the payment, the co-passenger since did not show readiness to pay money, they were told to return to Kalol whereas the witness and one Guddu were told to stay back, after few days Javed came to hotel along with Jafar, next day Javed came to hotel and the hotel was checked out, the witness and Guddu were taken then to Veeru Lodge, next day Javed came to Veeru Lodge, the witness stayed in the lodge whereas Javed went away for Dhaka, on account of shortage of money ultimately the witness had to return from Kolkatta to Bombay and then to Kalol, the witness has identified A-42 as Javed and has also confirmed his statement and the contents therein were deposed to be true as told by him and the said statement is at Exh. 1005. This witness was cross-examined at length, numerous suggestions have been denied by the witness, the witness has admitted his inability to give description of the Manager or Waiter of the hotel, he knows R.K. Patel, the travelling agent, with whom the deal to go to America was decided for consideration of Rs.16 Lacs which was to be paid after reaching America. The witness has admitted that he knows the route of America to Ahmedabad for which one need not to go to Kolkatta. The witness has volunteered that since he has to go to America illegally through whichever route they are being taken, they had no objection because the purpose was to reach America. The witness admits that he and his co-passengers had no passports. The witness knows many persons who have illegally gone to America and they are sending money to their
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home and that the witness was also tempted to go to America. The witness has admitted that A-42 was taking entry in another country by passport, between October to December 2002 A-42 had been in another country from the border, the witness admits that his statement before the Magistrate was taken on 16/2/2004, in the statement physical description of A-42 is not written, the identification parade of A-42 has not been done, the police has not inquired as to from which point the entry in Bangladesh was made, there was fencing at the border of Bangladesh, there was police, the witness then said that there were trees upto border from Kolkatta they went in taxi from where they walked away, the dense trees were near the border, the witness does not remember the distance and time consumed in reaching to the border from Kolkatta. The witness was taken at Meghaninagar Court by the constable of Crime Branch, an application was not tendered by the witness to give his statement, the recording of statement took about 45 minutes which was between 3 p.m. to 4 p.m. The witness did not remember as to who wrote the name in the register at Kolkatta, in which month the signatures were done. A-42 was not with them while they entered Bangladesh. A-42 is the travelling agent of Bombay, A-42 used to come to border, but was then not making us to cross the border, a boy has shown the way to whom they have followed. 17.4 In the examination-in-chief, this witness has thoroughly helped the prosecution. During the course of the cross-examination, nothing has been elicited by which the version of this witness, role of A-42 ascribed by this witness, identity of A-42 given by this witness can become doubtful. This witness seems to be the victim of network of taking people illegally to America and that the witness sounds to be very natural witness who is not giving any exaggerating
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version. The witness has given a true account of what he has undergone. The inability of the witness to not remember the Manager or Waiter of the hotel cannot be used to doubt the identity of A-42 by the witness. If the investigating agency has not held identification parade of A-42, it does not mean that the identification by this witness in the Court becomes doubtful. Through the cross-examination, the act of A-42 of crossing the Bangladesh border, being travel agent of Bombay and being at Kolkatta at the relevant time is not disputed. This witness has proved the prosecution case beyond reasonable doubt qua the role of A-42 and his involvement in the crime of illegally facilitating people to cross the Indian border from Kolkatta. 17.5 Exh. 1005 is the statement given by PW 64 which is given on oath and it is proved by the witness as well as by the concerned Judge. Upon perusal of the statement, the witness has stated the similar facts as stated before this Court and thus his oral evidence is thoroughly corroborated by his earlier statement on oath wherein mainly the witness has stated that A-42 has kept them at Hotel International, Kolkatta, the names in the hotel register were written, signatures were made, A-42 has managed for tea, snacks, etc., A-42 has contacted the co-passengers from Dhaka, sought more money from them, while A-42 returned from Dhaka, he was accompanied by Jafar, the hotel was checked out under the instruction of A-42, then the witness and others were taken to another hotel, the witness was taken to Dhaka, the witness then returned for paucity of money. 17.6 A forwarding letter at Exh. 1445 by PW 176 and the cover etc. along with the original statement are forming part of the record which all were read with the oral evidence of PW 64. The PW 64
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seems to be quite natural and trustworthy witness who had no reason to speak lie or to falsely support the prosecution case. FINDING : This witness is held to have thoroughly proved the prosecution case against A-42.
(IV)
18. PW 192 is the Judge witness who has recorded the statements of numerous witnesses u/s 164 of Cr.P.C. This discussion is mainly aimed at appreciating the oral evidence of PW 71, 72 and 95 as all the said three witnesses have supported the prosecution case. Keeping in mind the object of appreciating the oral evidence of the three witnesses, the oral evidence of this Judge witness has been taken note of. 18.1 This witness has deposed that she was Metropolitan Magistrate in the year 2003 in the city of Ahmedabad, she was assigned job of recording the statements of different witnesses, after recording such statements, she has sent the same to the POTA Court along with her forwarding letter, she has ascertained the voluntariness of the respective witnesses, inquired about physical cruelty, if any, has warned the person desirous to give the statement that one is not bound to given such a statement and the same can be used against the person, the time of 24 hours was being given after which the voluntariness of the witness was again ascertained and that the statement was being recorded in the chamber, the signature of the witness and the Judge witness was being done, it was examined that the ingredients of Section 164 are present and that lastly the certificate used to be given. As far as PW 72 is concerned, the examination-in-chief is at paragraph 12 and as far
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as PW 71 is concerned, the examination-in-chief is at paragraph 13 and as far as PW 95 is concerned, it is at paragraph 20. The witness has stated that the procedure narrated by her in the beginning was being adopted in all the cases. Thus, in the cases of the three witnesses also, this procedure was adopted. 18.2 She has deposed that Exh. 1027 is the statement of PW 72 recorded on 12/5/2003, Exh. 1025 is the statement of PW 71 and Exh. 1068 is the statement of PW 95 recorded on 27/3/2003. The two covers Exh. 1592 and Exh. 1593 and the forwarding letter at Exh. 1595 have been formally proved by the witness. 18.3 This witness was cross-examined on the aspect of topography of the Court, the register for the statement to be recorded u/s 164 is not being maintained, Rojkam is not being written, the order of the Chief Metropolitan Magistrate has not been attached, the original statement etc. were being sent to the Registrar of the Metropolitan Magistrate Court, all the said were sent to Principal Judge, City Civil Court, Ahmedabad, the inward and outward registers are being maintained in the office of the Registrar at Metropolitan Magistrate Court, normally the police brings the person whose statement is to be recorded, the police used to inform the suitable timing to the witness and accordingly the witnesses were being brought. The suggestion has been denied that the witness was not deriving self-satisfaction about the presence of elements of pressure etc. on the person who comes to give deposition, the signature below the endorsement of the witness has not been obtained, the witness has admitted that she has written that the accused is on bail in case of all those who were produced before her to record the statement. The signature of the respective witnesses that the statement was read over to them has not been
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obtained, the time to begin and to end the statement has not been written, round seal of the Court is not present on the statements. The witness has denied the suggestion that the police used to give the statement taken u/s 161 in advance to the witness and basing upon the said, the statement u/s 164 was being recorded by her and that the police used to give all advance information, the witness has volunteered that the said information was learnt by her through the Yadi of learned Chief Metropolitan Magistrate. It has been admitted that the inquiry on legal aid was not made by the witness, it was denied that the statements of two witnesses used to be written simultaneously. 18.4 As far as PW 72 is concerned, the cross-examination is at paragraph 37. The witness with reference to the crossexamination has volunteered that the statement of PW 72 was taken on 12/5/2003 instead of 10/5/2003 because on 10/5/2003 she was having overload of work and 10/5/2003 and 11/5/2003 might be holidays. The witness has stated that she used to give date and time to record the statement by looking at her schedule and she was not used to give the holiday and that the time of 12/5/2003 also might have been given. It is however admitted that this date has not been written in the statement to have been given to the witness. The witness has denied that the police has produced the witness before her on 12/5/2003, she has volunteered that the witness came to her voluntarily, the witness has also admitted that the point that on 10th and 11th May, on account of paucity of time, the statement could not be recorded has not been noted in the statement. In paragraph 42, the witness has been assailed on the aspect the statements of PW 82 and PW 95 were recorded at the same time. The witness has volunteered that the statement of PW 82 is too short. Hence, after noting the
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said statement, the statement of PW 95 was recorded, but before writing the statement only once the watch was seen. The witness has been further assailed on the aspect that the witness understands the difference between accused and witness. The witness has admitted that she has not obtained any explanation from the investigating agency as to whether the person who comes to record the statement is accused or the witness. The witness admits that she has mentioned everyone as accused. 18.5 It is true that in case of all the statements, the mention of the word "accused" and admission of crime can be seen and that it also seems that there is some misconception in the mind of the witness about the person who has been sent by the investigating agency to record the statement is accused. 18.6 In the humble opinion of this Court that is not much important as what is important is that as a matter of fact the witnesses under discussion at this juncture are the prosecution witnesses and they are not accused. The provision of Sub-Section (5) of Section 164 of Cr.P.C. is applicable in case of all the three witnesses, but by noting even the witnesses as accused, the Judge witness has taken more care than what is required by the statute. For illustration, the reflection time is not required to be given in case of witnesses, but the Judge witness has granted it. The endorsement at the foot of the statement is not required. The preliminary warning to the witness is not required to be given, but the said is given. So, it is clear that the Judge witness has not committed any lapses, but rather additional care has been taken under the misconception that the witnesses are accused. As it may be, but the fact remains that by understanding the witnesses as accused, the interest of the accused is not adversely affected or no
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procedural lacuna or no breach of statutory provisions has been committed. 18.7 At this juncture, we are concerned with the three witnesses i.e. PW 71, 72 and 95. It is the utmost important factor that all the three witnesses have supported the prosecution case while deposing before this Court. Therefore, though there are certain misconceptions in the mind of the Judge witness, though the procedural lacuna have been attempted to be highlighted by the defence during the submissions these are all the points which are losing its significance and which are not remaining very vital in light of the fact that even if in absence of the statement recorded by the Judge witness, the oral evidence given before this Court is sufficient to hold that these witnesses have supported the prosecution case. The role, if any, to be played by the statements of the respective witnesses is only that it can corroborate the oral evidence of the respective witnesses which the statements are providing. Hence, considering the said vital requisite being satisfactorily satisfied, the lacuna emphasised by the defence and mentioning the witnesses as accused, mentioning the statements as confession would hardly make any difference. This Court finds that the witness is a truthful and natural witness and the mention of the wrong word or calling the statement as confession, the substance of it does not get changed. It cannot be forgotten that by changing the name, thing cannot be changed. 19. PW 95 has deposed that he is working at Madressa of Alipur and he used to guard the Madressa at night, once when the witness was at Dabhel and stayed at Dabhel for 18 days, he met the absconding accused Mufti Sufiyan who was imparting education at Madressa, after departure from Dabhel, said Mufti came to the
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village of the witness after 10 to 15 days, along with the Guru of the witness and other persons. On 3/4/2003, the said Mufti came to Alipur, he has telephoned on mobile to the witness that he is coming to Alipur and the witness should come to the highway, the witness went to highway where he met said Mufti along with whom there were 4 other person who all came to village Alipur, they all were housed in the guest house of the Madresa, the witness was informed by said Mufti that since in the city of Ahmedabad, the police is catching hold of the accused with reference to Haren Pandya Murder Case, they have come over here since there is difficulty in Ahmedabad and that they would leave in the morning of next day, the witness stayed back at Madresa, at night one of the boys who was accompanying said Mufti was unwell who was given medicine, upon further deteriorating the health of the said boy since said Mufti has telephoned to the witness, he was admitted in the hospital where treatment was given for which the payment was made by the witness, by this time Mufti was given message to leave the place, Mufti has sought Rs.1,00,000/- as the boy with Mufti was not well, one Rizwan from Ahmedabad came who went away after an hour, the witness arranged for Rs.80,000/and for the car for Mufti and others to leave the city, they have left the city and the arrangement of vehicle upto Manmad was made, the vehicle was arranged by the witness. 19.1 While leaving the said Mufti has given three mobile phones and three adapters to the witness, in the bag there were cards, the said Mufti told that while returning he would take back the bag and thereafter Mufti never returned, the mobile phones, adapters and bag were deposited by the witness with Mr. Singhal and in the said bag there were licence and identity card, Rs.80,000/- were returned by the said Rizwan, the witness has learnt through the
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newspaper that the said Mufti is involved in Haren Pandya Murder Case, hence he switched off his telephone, muddamal article No. 115 to 125 were shown to the witness who identified the mobile phone being article No. 116, the licence being article 119, driving licence being article No. 120 of A-22, driving licence being article No. 121 of A-20 and driving licence and identity card being article No. 122 to 125 for which the witness does not know they belong to whom. The witness has identified A-21 as the boy who was admitted in the hospital and A-22 and even A-21 as the boys who came along with Mufti Sufiyan at his village, the witness has stated that his statement is at Exh. 1068 which is the statement given by him before the Metropolitan Magistrate wherein the witness has identified his signature. 19.2 This witness was cross-examined. The witness has admitted that from 3/4/2003 to 14/4/2003 and from 14/4/2003 to 17/8/2003 the witness did not go outside except his Madresa, on 27/8/2003 the witness had been to the Metropolitan Magistrate Court to give his statement and has not gone anywhere elsse. The witness has been further assailed that Mufti Sufiyan had stayed for two days from 3/4/2003 at the Madresa of the witness, the news of the murder of Haren Pandya was read by the witness on 14/4/2003, from 3/4/2003 to 14/4/2003 the witness has not told the fact of the visit of Mufti and other 4 to anyone. 19.3 In the humble opinion of this Court, there is nothing unusual in this, at least upto 14/4/2003, the visit of Mufti was a very usual thing for the witness and after once the witness has learnt that the witness was helping the person who is involved in the murder case, the witness has switched off his own mobile which conduct of the witness is focusing the fact that the witness was concerned
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and that the act of the witness of not telling the visit of Mufti to anyone sounds to be extremely natural. 19.4 The witness admits that until his statement was recorded, he was not knowing the names of A-21 and A-22. 19.5 This is also tallying with the statement wherein the names of A-21 and A-22 are not written. 19.6 It has been further admitted that no identification parade of both the accused has ever been arranged, the witness had been to Metropolitan Magistrate Court only once and that the witness has not identified the muddamal before the police. 19.7 Unless the police asked the witness to identify the muddamal, where is the question for the witness to identify the muddamal and that it cannot go out of mind that ultimately it is this witness who has produced all the muddamal before the police. The admission that the witness had been to Metropolitan Magistrate Court only once does not seem to be any vital discrepancy as for recording the statement the witness was taken only once, on the first occasion the witness was returned by giving him the cooling off time which is an admitted position, hence this admission does not become a pointer to hold that the witness is speaking untruth before the Court. The witness has admitted that the witness was advised to go to the Court by the investigating agency and it is the investigating agency who brought the witness to the Magistrate Court and has dropped the witness upto the Court room. 19.8 This Court does not find this act to be unusual or no doubt is created from this act of the investigating agency. After all,
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recording the statement is a part and parcel of the investigating process. Hence, accompanying by any member of the investigating team sounds very normal and natural. The witness has further been asked that the witness has told the Judge witness that he is a witness and not an accused. 19.9 As held earlier, this word does not create any doubt about the propriety of the procedure when the three witnesses under discussion have supported the prosecution case. The procedural lacuna and other things become extremely minor things in front of a very major factor that all the three witnesses have supported the prosecution case during the course of their oral evidence. 19.10 The witness has admitted that his brother-in-law is one Hasanbhai who runs the hospital and that police officer Shri Abhay Chudasma is a friend of said brother-in-law at whose instance the witness has given the deposition and the statement. 19.11 in the humble opinion of this Court had this been the truth, then the said police officer would see to it that the whole prosecution case is fully supported through this witness and that if these witnesses under the control of the police could have been used to prove the prosecution case as a whole against all the accused, but if the present deposition is seen, it is only proving some part of the case against A-20, A-21 and A-22 and nothing beyond that. Considering the said discussion, this suggestion also sounds to be baseless.
19.12 This witness has supported the prosecution case to great satisfaction of the Court. The statement of this witness at Exh.
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1068 is on record. If the said is seen, it is totally corroborating the oral evidence of this witness. FINDING : In the light of the oral evidence and the statement of PW 95, it is clear that vide the oral evidence of PW 95 and the identification of muddamal of the driving licence and the identification done by the witness of two of the accused, this witness is involving A-20, A-21 and A-22 as per the prosecution case in the crime which through this witness has been proved beyond reasonable doubt.
(V)
20. PW 71 has given his statement u/s 164 of Cr.P.C. which is on record vide Exh. 1025 which was recorded by PW 192. This witness has stated that he is a businessman having his factory in the city of Ahmedabad who has business relations outside the State wherein transfer of money is also being done. In the beginning of the year 2003, the elder brother (PW 71) of the witness has telephoned this witness that some of the boys of the community had been to Kolkatta for the purpose of work of the community and that is it possible to arrange money for those boys at Kolkatta? The witness in turn talked to one Sunil Jalan (PW 139), the businessman at Kolkatta, who is also dealing in the same business, to arrange for Rs.10,000/-. The said Shri Sunil Jalan has consented. It was then decided that the number of the currency notes will be the identification code for the person who would come to receive Rs.10,000/-. By that time, some persons came and handed over Rs.10,000/- to the elder brother of the witness. Hence, this witness told said Sunil Jalan to pay Rs.10,000/- to whom the currency note numbers were given, thenafter the witness sent Rs.10,000/- by cheque to said Shri Sunil
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Jalan at Kolkatta which cheque is at Exh. 1023. The abstract of the bank account has also been proved by the witness which is at Exh. 1024. This Court has carefully perused Exh. 1023, which is a cheque of Rs.10,000/- of Karur Vysya Bank Ltd. having No. 517078 dated 1/1/2003. Exh. 1024 is the abstract of bank account of Karur Vysya Bank Ltd., Kolkatta of Hawa Engineers Ltd. wherein PW 71 and 72 held very vital position. The transaction of Rs.10,000/- along with cheque number, date etc. get tallied in the bank account and that these two documents when seen together, they show that Rs.10,000/- were sent to Kolkatta where the accused were present during last week of December 2002. According to prosecution case, this is the entry of Havala by which the accused were provided fiscal help through the businessman at Kolkatta. These two documents are thus clearly corroborating the deposition of PW 71 and PW 72. The witness has learnt through newspaper that in Haren Pandya Murder Case, certain boys have been arrested and one such boy named Parvez was working in his factory before 15 years as part-time typist. The witness states that on the date of the oral evidence he was unable to identify Parvez (being tried as A-1 here). The witness states that his statement was recorded before the police as well as before the Court of Metropolitan Magistrate. The statement is as was given by the witness wherein the witness identifies his signature which is at Exh. 1025. 20.1 This witness was cross-examined by the defence. The witness has admitted that the persons who had been to his brother to request him to send money at Kolkatta are not known to the witness and that he has no relation with those boys, it is only out of the religious feeling the said money was sent, no appointment letter to A-1 was given, neither any salary register etc. was maintained for
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A-1, the witness denies that A-1 was never working at his place and he does not know A-1. The witness has stated that his statement was recorded by Mr. Singhal, he was made to sit for 9 days at the Crime Branch, after the statement he was also kept at the Crime Branch, he was permitted to make telephone calls at his residence, the brother of the witness has done fax to the Police Commissioner, but neither that fax message has come nor any complaint has come on record. 20.2 The witness specifically states that he was told by the I.O. that whether the witness is ready to state before the Magistrate what he knows and that I.O. has told him to give the statement before the Magistrate for which the witness has shown his voluntariness, the witness directly went to the Magistrate, Mr. Singhal has told the witness as to which Court he should go and in that Court he went at about 1.00 p.m. where the Magistrate was sitting and the witness directly met the Magistrate, the statement was taken on or about 10/5/2003, the witness has signed on the same date, the witness had been to the Court once, the witness has specifically denied that the witness has given the statement because of pressure or any kind of threat. 20.3 During the course of the cross-examination itself, the witness has clearly and positively established the voluntariness of the witness in giving the statement by clearly deposing that he himself directly went to the Magistrate, he has given the statement because of his voluntariness and it was not given because of any threat or pressure, etc. This itself is suggestive of the fact that the statement satisfies the requisite of Section 164 of Cr.P.C. as it being voluntary and out of free will of the witness. Further, it has also been stated that the witness was told by the A.C.P. to state
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before the Magistrate what he knew, this also would lead to believe that the version told before the Magistrate is a truthful version. Two aspects need to be discussed over here that the statement of the witness is dated 20/5/2003 for which the witness first of all had been on 19/5/2003. This is very much clear upon seeing the statement itself. The oral evidence of the witness has been taken in January 2008 whereas the statement was recorded in the year 2003. Hence it is very much possible that the witness might not be clearly remembering as to which was the date of his statement and the purpose for which he went twice or not. Considering the totality of the oral evidence, this aspect cannot be said to be such which creates any doubt against the voluntariness or truthfulness of the statement of the witness and when this very statement has been thoroughly reproduced in the oral evidence of the witness, the said statement is providing total corroboration to the witness and this witness is giving his oral evidence as per his earlier version before the learned Metropolitan Magistrate Court. 20.4 Certain submissions based on mention of the word "accused", mention of the word "confession of the crime" etc. have also been emphasised in the case of this witness to disbelieve the version given by this witness, but as has been discussed in the earlier case, in which case also, PW 192, the Judge witness, has recorded the statement. The same points would also be applicable over here and that when on oath before this Court the witness has given the version as has been given in the statement, nothing more is to be looked into and that the mention of such words should be ignored in light of the totality of the oral evidence of the witness. Even if the witness is not knowing A-1 on the date, it does not make any difference. The cheque at Exh. 1023 and abstract of the bank account at Exh. 1024 are the two documents which are
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also corroborating the version of this witness, the witness seems to be natural and truthful witness whose oral evidence is corroborate by Exh. 1025, his earlier statement before the learned Magistrate. FINDING : By the oral evidence of this witness (PW 71), a prosecution case against A-1 and A-20 has been proved beyond reasonable doubt.
(VI)
21. Exh. 1027 is the statement recorded by PW 192, the Judge witness, of PW 72. 21.1 PW 72 has deposed that he is a businessman in the city of Ahmedabad and is having business out of the State as well. In the beginning of the year 2003, one Arshad Shahiwala has telephoned to the witness and then came to the residence of the witness and has told him that a friend of the said Arshad had been to Kolkatta for the work of community who is required to be sent Rs.10,000/-, on the next day along with said Arshad one another person came to the factory of the witness and it was decided that a number of the currency note of Rs.10/- is to be given which was given and one who came with the said numbered currency note was given Rs.10,000/-. The said amount of Rs.10,000/- was paid by the witness, thenafter his brother was asked as to how he sent the money, the witness then learnt that the money was then sent to Kolkatta through one Sunil by referring the number of the currency note, the witness does not know said Sunil and he had no talk with said Sunil. The witness then learnt after some months from newspaper that some boys of the community have been caught, the police has interrogated the witness and he was kept for 9 days
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at the Crime Branch where he was not permitted to go to home, he was not permitted to make a phone call and he was not given proper food. The witness has given the statement before the Magistrate Court which was taken by saying that if the statement would not be given, the case under POTA would be filed against the witness. The witness has given the statement to the Magistrate which is as was stated by the witness, he identified his signature and thus Exh. 1027, the statement of the witness, deposed to have been properly written as was told by the witness. 21.2 This witness was also cross-examined wherein he has agreed to the suggestion that like him, his brother (PW 71) was also kept in the Crime Branch for 9 days, the witness does not know Sunil Jalan, because of this witness, Sunil Jalan has not paid Rs.10,000/-, when the witness had been for the first time, his statement was not recorded by the Magistrate as the Magistrate saw some police officer, the Magistrate has inquired whether the statement under threat given by the witness or not, the witness has denied to the Magistrate that he is giving any statement because of threat, thenafter 2-3 days later he was called and then the statement was recorded, the witness was taken at the Metropolitan Magistrate Court by the officer of the Crime Branch and that the witness was informed that if he would not become a witness, he would be involved in a POTA case. 21.3 It was submitted by L.A. that this sentence that he would be involved in the POTA case is a threat and pressure tactic. Hence the statement cannot be considered at all. 21.4 The witness seems to be a businessman doing his business on a large scale. It is not possible that such a person would not file any
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complaint when he or his brother is kept illegally or are maltreated by the police, but neither any complaint or any evidence is put forth. It is merely a statement in the oral evidence that too after 5 years. It cannot be forgotten that PW 71 & 72 were produced before the Magistrate where they have given their voluntary statements, there also none of the witnesses has complained anything about pressure, threat or maltreatment to them or their illegal detention, not only that but on the first date when, as can be seen from Exh. 1027 - the statement, the time for reflection was given, the learned Magistrate, as stated by the witness, asked very specifically as to whether the witness is giving the statement on account of any pressure or not, then also, the witness has denied to have any kind of pressure. Hence, by one sentence in the cross-examination, the threat or pressure cannot be inferred by the Court, that too when it is coming after 5 years, clearly afterthought and for the reason best known to the witnesses. As it may be, but the fact remains that this witness is the witness who has corroborated his earlier version before the Court of learned Metropolitan Magistrate and that there is nothing by which it can be held that this witness has not given his voluntary statement before the learned Metropolitan Magistrate, there does not appear to be influence of any threat or pressure, this witness has also helped the prosecution and that this witness though by name has not involved any of the accused, but ultimately this witness has also helped the prosecution case to some extent and more particularly this witness has more or less corroborated the version of PW 71.
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FINDING : PW 72 has also proved the prosecution case qua A-1 & A-20 and the fact that A-1, A-2, A-3 & A-5 had been to Kolkatta for community work. GENERAL 21.5 As has already been discussed, the statement given by all the witnesses before all different Judge witnesses are absolutely voluntary and giving truthful version, the covers, forwarding letters, etc. are establishing procedural formalities to have been observed properly, none of the witnesses has made any complaint before any authority including before the Judge witnesses who have not recorded the statement about any maltreatment, pressure, threat, etc. and that some of the witnesses have told the same thing for the first time which apparently seem to be after-thought and with some different intention, hence the said cannot be believed. The investigating agency or the Judge witnesses have no animus against the respective witnesses. The Judge witnesses are not interested in the investigation of the crime or in its outcome. This Court is of the firm opinion that the version given by the witnesses is a truthful and voluntary version before the Judge witnesses. Before this Court, the judge witnesses are supporting the prosecution case and the statements of different witnesses which have been discussed hereinabove are corroborating the oral evidence of the respective judge witnesses of their giving statements u/s. 164 of Cr.P.C. This is a case wherein the judge witnesses and some other witnesses have helped the prosecution in proving its case in a satisfactory manner, the cross-examination
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by the defence is not creating any doubt as discussed above and that all such of the witnesses are found to be truthful and trustworthy on the aspect of their oral evidence and to the extent they are supporting the prosecution case. It is different that for some other reasons they have also tried to oblige the defence to some extent, but the said part needs to be ignored as on appreciation it is merely found to be obliging gesture. All the hostile witnesses have highlighted certain facts emphasized by the defence which are now indeed very belated and that becomes version wherein there are clouds of doubt. As against that, the witnesses who have adhered to their earlier version before the Judge witnesses have no such grievances. Hence, such grievances by the hostile witnesses are found to be concocted one. 22. Prosecution citation at Serial No.8 is to the effect that the police officer who are recording confession are not bound to follow any other procedure and that guidelines framed by the Hon'ble High Court for recording a confession by a Magistrate under Section 164 of Cr.P.C. do not by themselves apply to recording of a confession under TADA. 23. Prosecution citation at Serial No. 26 is laying down the principle that the confessional statement of accused recorded under Section 164 of the Cr.P.C. by the Magistrate would be admissible in evidence if the accused are being tried jointly. Here, in the instant case the confessional statement of A-54 & A55 are admissible in evidence since they are being tried with the
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remaining accused. As has been observed in paragraph-19 while dealing with the scope of Section 30 in State v. Nalini, Hon'ble the Supreme Court has held that when more persons than one are being tried jointly, the joint trial for the persons is for the same offence, a confession is made by one of such persons whether being jointly tried then such confession affects the maker as well as the persons who are being jointly tried for the same offence This, though is not applicable in confessional statements recorded under Section 32 of POTA for want of specific provisions in Section 32 this would certainly govern the confessional statements under Section 164 of Cr.P.C. 24. Prosecution citation at Serial No.27, more particularly, paragraph25 clarifies that the confession of the co-accused is permissible to be used upon corroboration. The culpability of A-42 can be decided by beginning with other evidence then to appreciate the confession under Section 164 of the co-accused if it corroborates. The guilt of other accused whose names are revealed in the confessional statements of A-54 & A-55 can also be accordingly decided. 25. On the other hand, the defence citation at Serial No.19, more particularly, paragraph-13 is to the effect that the statement under Section 164 of the code cannot be used as substantative piece of evidence when the witnesses do not support the prosecution story. As discussed in paragraph-12 of this judgment the statement under Section 164 of the Cr.P.C. can only be used to contradict
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and corroborate the statement by a witness given in the Court. In the opinion of this Court, this is a settled position of law. 26. Defence citation at Serial No.20 is also submitted for the same point which is settled position of law. 27. The defence has cited the judgment at Serial No.38 to submit that the confession of the accused recorded under Section 164 of Cr.P.C. cannot be acted upon unless the Court is satisfied the same to be voluntary. This being the settled position of law, no discussion on this citation is required. 28. The defence citation at Serial No.39 is submitted that since no legal aid was provided to the accused, the confessional statement should not be considered. This judgment is with reference to Section 164 of Cr.P.C. The confessional statement of A-54 & A-55 have been recorded under Section 164 of Cr.P.C., but none of them have submitted that the legal aid was sought by them and it was not provided. As discussed above, all the accused in this case have their own lawyers and they have been guided and counseled ably by their personal counselors. Hence, in the fact of this case, this Court nowhere find that legal aid was not available to the accused. The visitation of the representatives, learned Advocates while accused were in custody and at the time of interrogation itself is clarifying that the accused were provided sufficient legal aid. In the fact of the cited case, the accused was given oath, in equal succession of 15 minutes 2 confessional statements were recorded which were found to be inconsistent that the prosecution
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case and that there was no other material to support the confessional statement and it is for this reason it was held that the confessional statement cannot be held to be voluntary. The cited judgment is based on it own facts which fact are not present in the case on hand and that the confessional statement of all the accused except the 2 were under Section 32 of POTA and that 2 confessional statements under Section 164 of the POTA have been found to be voluntary by this Court. In light of the facts and circumstances of this case, therefore, this Court do not find any substance in the submission based on the cited case. 29. The defence citation at Serial No.79 was emphasized to submit that when the contents of the statements recorded under Section 164 is not put up to the witness the said as entire statement is not admissible. Firstly, in the case on hand, the witnesses were given the statements who were permitted to read the said statements and then the deposition and then the said statements were exhibited. It is more important to be noted that these statements have also been proved by the respective judge witnesses. Not only that, Section 80 of the Indian Evidence Act also comes to the rescue of such statements and that the statements are in its presumption of proprietary under the Indian Evidence Act and when the said are read with the oral evidence of the respective witnesses, with the oral evidence of the judge witness and with Section 80 of the Indian Evidence Act, then in such cases the factual matrix of the present case and the factual matrix of the cited judgment are becoming absolutely different.
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Secondly, the statement is to be used only either to corroborate or to contradict the version of the witnesses. Hence, with the help of this cited judgment it would not be just and proper in the background of the facts of the case on hand to not consider the statements at all for the manner adopted by the prosecutor to prove the statements. 30. It is fitting to deal with the prosecution citation at Serial No.36 wherein emphaisis was supplied to paragraph-52 by the learned Special P.P. highlighting the paragraph it was submitted that merely because the prosecution witness whose statement under Section 164 has been recorded if does not support the prosecution case that would not lead to the conclusion that the accused is innocent. The testimony of the judge and the I.O. cannot be disbelieved or discredited. This Court humbly believes in the light of severity of the POTA Act, it seems that it would be to harsh in the factual background of this case to consider the statements recorded under Section 164 except for the purpose of corroborating or contradicting the version of the witnesses. Hence, this Court has thought it fit to make the use of the statements of the witnesses under Section 164 for the limited purpose of corroborating or contradicting their version before this Court. 31. The defence citation at Serial No.74 was highlighted wherein Hon'ble High Court was pleased to hold that the safeguards were not observed, hence the confession cannot be relied upon. But, in the instant case, in the peculiar facts and circumstances of this case, it is clearly proved by the prosecution beyond reasonable doubt that the judge witnesses have observed the safeguards to
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the satisfaction of this Court. Further, in the cited judgment, the seizure of articles were not established as discovered which is not the case here, hence the cited judgment cannot help the defence. FINAL FINDING : (a) Confessional Statement of A-54 involves A-42 - if other evidence corroborates. (b) Confessional statement of A-55 involves A-42 (for conspiracy) and A-5, he himself (to have gone Bangladesh) if other evidence corroborates. (c) PW-73 involves A-24, PW-64 involves A-42, PW-95 involves A20, A-21, A-22, PW-71 involves A-1 & A20, PW-72 involves A-1, A-20. (d) Perjury Notice as discussed at point 2.8, u/s. 344 of Cr.P.C. to PW-77, PW-148, PW-67, PW-78, PW-81, PW-85, PW-88, PW-91, PW-92, PW-97, PW-74, PW-102, PW-76, PW-80, PW84 and PW152 (total sixteen)
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PART-IV
DIFFERENT PANCHNAMAS AND OTHER RELEVANT ORAL EVIDENCES Before switching over to the facts of the case to appreciate the panchnama and other relevant oral evidence, the cited judgments have been preferred to be noted as were submitted by both the sides on the subject. A.1 (1) DEFENCE SUBMISSION :The judgment of privy counsel in pulukuri kotayya v. king emperor reported at AIR 1947, Privy Counsel page 67, various requirements of Section 27 have been discussed which have been summed up in defence citation No.57 the gist of which is as under : (a) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescription relating to relevancy of the evidence connecting it with the crime in order to make the fact recovered admissible. (b) (c) The fact must have been discovered. The discovery must have been in consequence of some information received from the accused and not by the accused own act.
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(d)
The person giving the information must be accused of any offence.
(e) (f)
He must be in a custody of a police officer. The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(g)
There upon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved the rest is in admissible.
(h)
It can seldom happen that information leading to the discovery of a fact forms the foundation of the prosecution case it is one link in the chain of proof and the other links must be forged in a manner allowed by law.
(i)
Though such information is admissible in evidence under Section 27 of the Evidence Act, but admissibility alone would not render the reliable evidence pertaining to the information. While testing the reliability of such evidence the Court has to see whether it was voluntarily stated by the accused.
A.1.1 The defence citation at Serial No. 7 has propounded the same principles mentioned hereinabove, under the head 'Held' which have been duly taken care of. A.2 Defence citation No.59 has been highlighted. In the cited case the fact link in the circumstantial chain was not found to be completed and secondly on the facts of the case voluntariness of the
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confessional statement leading to discovery of relevant facts was held doubtful. The principle is if the voluntariness of the confessional statement leading to discovery of relevant facts is doubtful such statement is not reliable. In the fact of this defence citation No.59 the accused was beaten, signature of the accused were obtained on blank paper, by police etc. The case on hands has no such facts. Hence, the cited judgment is not applicable to the present case. A.3 Defence citation No.60 has been relied upon for the principle that discovery of the thing at the behest of the accused loses its significance if it has no nexus with the crime like. In the cited case discovery in terms of S.27 of the Evidence Act is held to have been admissible in evidence provided the recovery of that of a fact which was relevant to connect the same with commission of crime. Recovery of a weapon at the instance of the accused which has no nexus with the cause of death of the deceased is inadmissible in evidence as the prosecution case in the cited case was that the death of the deceased was caused by inflicting injuries by a hard and blunt substance hence, alleged recovery of a knife was held has no nexus with the cause of death and therefore it was held to be inadmissible in evidence. The case on hands has no such facts. Hence, the cited judgment is not applicable to the present case.
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A.4
Defence citation No.64 and 65 (The same citation) :In the fact of the cited case, a very important aspect needs a note is that firstly, there were 2 public witnesses to the panchnama but out of them only one witness was examined by the prosecution that one witness on the fact of the case was held to be a police tout, was obliged by the police as proved on the record hence, in effect no public witness remained to support prosecution case. In the above circumstance, the place from which the recovery was effected was an open place and a place accessible to all and everyone and thirdly the pistol was not sealed on the spot and fourthly there were the circumstances where from the illegal detention was doubted. Considering all the said things in the fact of the cited case, it was hold that it is not possible to hold that the accused was in possession of the articles alleged to have been recovered from his possession. In the fact of the case on hand neither illegal detention is doubted nor the panch witness is a police tout or has been obliged by the police hence, the consideration has to be according to the fact of this case.
A.5
In defence citation No.62 in the facts of the case the recovery was not relied upon. The case was based on circumstantial evidence, motive of the accused was absent, the recovery of the weapon was not inspiring confidence as has been mentioned in para 27 of the order. The case on hands has no such facts. Hence, the cited judgment is not applicable to the present case.
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A.6
Defence citation at Serial No.61 what makes the information leading to the discovery of the fact is admissible. The discovery from the accused of the thing hidden which the police did not know until the information was furnished to the police by the accused. A accused cannot be said to have discovered if nothing is to be found or recovered from him as a consequence of the information furnished by the accused. (Even apart from the admissibility of the information under S.27 the evidence of the I.O. and the panchas that the accused had taken them to PW-11 and pointed him out which as corroborated by PW-11 himself would be admissible under Section 8 of the Evidence Act as conduct of the accused. The prosecution evidence has been appreciated on this principle).
A.7
Defence citation No.75 Recovery of revolver pursuant to disclosure statement, non-examination of panch witness at the trial, absence of signature or thumb impression of the accused on the disclosure statement, were the grounds upon which it was held that no reliance could be placed upon alleged disclosure statement and the recovery of the revolver and consequently opinion of the ballistic expert connecting the accused. As is clear from paragraph 7, it was also a case of illegal detention of the accused and that the defence version was sounding to be more probable wherein the PW-4 of the cited case has deposed from which discovery and disclosure became suspicious. In the case on hand, the respective panch witnesses have been examined and illegal detention is totally ruled out, hence the cited judgment has no application.
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A.8
Defence citation at Serial No. 10 & 63 No attempt by the police to join with them independent witness from the locality to witness the recovery. The benefit of doubt can be given to the accused. Defence citation Sr. No. 47 is on the fact that witnesses were not for locality which is creating doubt on fairness hence benefit. In the case on hand, independent public witness has deposed for every panchnama.
A.9
Defence citation at Serial No.70 is to the effect that it is the principle that whether the evidence of the I.O. who recovers material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witness did not support prosecution version and that even if panch witness turns hostile, which happens very often in criminal cases, the evidence of the person who effects the recovery would not stand vitiate, but when the prosecution is not able to show that the weapon has been recovered was one which was used for commission of the offence and or there are circumstances which effects the credibility of the prosecution version, the evidence relating to recovery is of no consequence. Inordinate delay in sending the arms and ammunition to F.S.L. raises doubt.
A.10 Defence citation at Serial No.5 The witness if when a police tout, his evidence cannot form foundation of recording the judgment of conviction and sentence and that too in a case of conspiracy (stock witness).
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Upon the principle propounded in the cited judgment, the appreciation of evidence has been done by this Court. A.11 Defence citation at Serial No.77 It is held here that it is unsafe to convict the accused merely on the basis of the uncorroborated evidence pertaining to the alleged recovery of the weapons at the instance of the accused. In the case on hand, unless corroboration has been received, no recovery has been taken as foundation. A.12 Defence citation at Serial No.8 Out of the 2 panch witnesses, one was declared hostile and the another was not examined. The testimony of I.O. was held to be not a supporting evidence. On the basis of testimony of the I.O. without any corroboration, conviction would not sustain. In the case on hand, the oral evidence of I.O. and/or concerned assignee officer has been found dependable one. A.13 Defence citation at Serial No.78 has been relied upon to submit that since there was delay in sending the articles to the ballistic expert and since no explanation is coming from the prosecution as to where the said articles were kept the recovery becomes doubtful. Upon perusal of the whole cited judgment it becomes clear that in the facts and circumstances of the cited case the presence of the accused at the site has been held to be doubtful, the accused was not arrested from the place of the occurrence, but he was called from his village, the articles were not sent in sealed parcel to the
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FSL and that in light of the above doubts the circumstance of unexplained delay in sending the parcel was taken as additional reason and as is clear from paragraph 23 that this is taken as an additional reason. In the case on hand, the facts and circumstances have not been held to be as in the cited case. The cited judgment would be binding, but in change of the circumstances and the facts of this case, it cannot be binding. A.14 The Defence citation at Serial No.13 has been emphasized to submit that in case of discovery of weapon if no further evidence which would lead to discovery of fact in the case then such a panchnama cannot have any evidential value, even though the statement is admissible in evidence. Upon perusal of the judgment it becomes clear that in this case the chain of circumstances was not found to be completed and that in the fact of the case even the material witnesses have turned hostile. What has been held was in the light of fact and circumstances of the case, wherein it was held that the knife was recovered which statement is admissible in evidence but the knife was recovered from the place of incidence without something more which would lead to a discovery of fact, hence it does not have much evidential value. The case on hand has been decided in the light of the facts and circumstances of the case,
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B.
In the matter of Mohammed Ashif G. Shaikh V/s. State reported at 2009(3) G.L.R. page 2214, it has been observed at para 30 as under : "Though, panchas of the panchnama Exh. 9 by which dupatta has been recovered and seized have not supported the prosecution version, there cannot be any doubt about the principle that the said fact can be proved by the I.O. and his evidence should be accepted."
C. C.1
PROSECUTION CITATIONS ON THE TOPIC : The citations relied upon by the prosecution along with their serial numbers in the list mentioned hereinabove and relevant paragraphs have been reproduced hereunder for ready reference with a note that these principles have been borne in mind while appreciating the concerned oral evidence.
C.2
Prosecution Citation at Serial No. 4 :"Paragraph No. 90 : The learned counsel pointed out that before carrying out the raids neither FIR was registered and even after breaking open locks the procedure is not followed. It is true that in this case FIR was registered after carrying out the raids. For this contention, it has been pointed out on behalf of the prosecution that before raids were carried out there was no certainty that arms and ammunition would be recovered. These raids were carried out only on the basis of information received after interrogation of A1 Lal Singh. Secondly, the raid was carried out in the presence of higher officer, namely Mr. A.K.R. Surolia, Dy. C. P. (PW 103). For breaking of locks in the said premises, there is no question of
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different procedure in such cases. For this purpose panchnama was prepared and it is mentioned that after breaking open the locks, search was carried out. Learned counsel further submitted that there was no justifiable reason to deposit the arms and ammunition which were found in the said two premises at the police head quarter. It is the say of the witness that muddamal arms and ammunition were deposited at the police head quarter because of its large quantity. It is quite possible that there may not be sufficient space at the police station where FIR was registered. In any case, for the purpose of safety if the muddamal articles are deposited at the police headquarters, it cannot be said that the recovery is in any way vitiated." C.3 Prosecution Citation at Serial No. 9 :"Paragraph No. 114 : The interpretation of Section 27 of the Evidence Act has loomed large in the course of arguments. The controversy centred round two aspects : (i) Whether the discovery of fact referred to in Section 27 should be confined only to the discovery of a material object and the knowledge of the accused in relation thereto or the discovery could be in respect of his mental state of knowledge in relation to certain things - concrete or non-concrete. (ii) Whether it is necessary that the discovery of fact should be by the person making the disclosure or directly at his instance. The subsequent event of discovery by police with the aid of information furnished by the accused - whether can be put against him under Section 27. These issues have arisen especially in the context of the disclosure statement (Ext. PW-66/13) of Gilani to the police. According to the prosecution, the informant furnished by Gilani on
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certain aspects, for instance, that the particular cellphones belonged to the other accused, Afzal and Shaukat, that the Christian Colony room was arranged by Shaukat in order to accommodate the slain terrorist Mohammed, that police uniforms and explosives "were arranged" and that the names of the five deceased terrorists were so and so are released under Section 27 of the Evidence Act as they were confirmed to be true by subsequent investigation and they reveal the awareness and knowledge of Glani in regard to all these facts, even though no material objects were recovered directly at his instance." C.4 Prosecution Citation at Serial No. 15 :"Paragraph No. 15 : The law of evidence in our country is modelled on the rules of evidence which prevailed in English Law. In Kuruma v. The Queen, 1955 AC 197 an accused was found in unlawfulpossession of some ammunition in a search conducted by two police officers who were not authorised under the law to carry out the search. The question was whether the evidence with regard to the unlawful possession of ammunition could be excluded on the ground that the evidence had been obtained on an unlawful search. The Privy council stated the principle as under : "the test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how it was obtained. " "Paragraph No. 15.1 : This question has been examined
threadbare by a Constitution bench in Pooran Mal v. Director of Inspection, 1974 (1) SCC 345 and the principle enunciated therein
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is as under :"if the Evidence Act, 1872 permits relevancy as the only test of admissibility of evidence, and, secondly, that Act or any other similar law in force does not exclude relevant evidence on the ground that it was obtained under an illegal search or seizure, it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence. Nor is it open to us to strain the language of the Constitution, because some American Judges of the American Supreme Court have spelt out certain constitutional protections from the provisions of the American Constitution. So, neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights can we spell out the exclusion of evidence obtained on an illegal search. So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English Law, and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. Where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out. " "Paragraph No. 15.2 : This being the law, the direction (b) given by the High Court that the confession and alleged recovery has no evidentiary value is clearly illegal and has to be set aside. The effect of the confession and also the recovery of the incriminating article at the pointing out of the accused has to be examined strictly in accordance with the provisions of the Evidence Act." C.5 Prosecution Citation at Serial No. 18 :Paragraph No. 8 : Shri Sinha, learned senior counsel for the
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appellant, has vehemently urged that all the witnesses of recovery examined by the prosecution are police personnel and in absence of any public witness, their testimony alone should not be held sufficient for sustaining the conviction of the appellant. In our opinion the contention raised is too broadly stated and cannot be accepted. The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down. PW11 Pratap Singh has clearly stated in the opening part of his examination-in-chief that ACP Shakti Singh asked some public witnesses to accompany them but they showed their unwillingness. PW10 Rajinder Prasad, SI has given similar statement and has deposed that despite their best efforts no one from public was willing to join the raiding party due to the fear of the terrorists. Exactly similar statement has been given by PW 9 R. D. Pandey. We should not forget that the incident took place in November 1990, when terrorism was at its peak in Punjab and neighbouring areas. The ground realities cannot be lost sight of that even in normal circumstances members of public are very reluctant to accompany a police party which is going to arrest a criminal or is embarking upon search of some premises. At the time when the terrorism was at its peak, it is quite natural for members of public to have avoided getting involved in a police operation for search or arrest of a person having links with terrorists. It is noteworthy that during the course of the cross-
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examination of the witness the defence did not even give any suggestion as to why they were falsely deposing against the appellant. There is absolutely no material or evidence on record to show that the prosecution witnesses had any reason to falsely implicate the appellant who was none else but a colleague of theirs being a member of the same police force. Therefore, the contention raised by Shri Sinha that on account of nonexamination of a public witness, the testimony of the prosecution witnesses who are police personnel, should not be relied upon has hardly any substance and cannot be accepted. C.6 Prosecution Citation at Serial No. 19 :Paragraph No. 24.2 : It was submitted that since the panch witnesses have turned hostile, the Court cannot rely on the evidence of discovery. This submission is erroneous, because, as held by the Supreme Court in Modan Singh v. State of Rajasthan, reported in AIR 1978 SC 1511, if the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version. In a recent decision of the Supreme Court in State, Government of NCT of Delhi v. Sunil, reported in (2001) 1 SCC 652, while considering the provisions of section 27 of the Evidence Act, and section 114 Ill. (e) thereof, the Supreme Court has held that there is no requirement either under section 27 of the Evidence Act or under section 161 of the Criminal Procedure Code to obtain signature of independent witnesses on the record in which statement of an accused is written. The obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code.
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The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. It was held that it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused, the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by the independent witnesses. It was held that if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The Court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. The Court observed that, it is an archaic notion that actions of the police officer should be approached with initial distrust and that it is not a legally approvable procedure to presume the police action as unreliable to start with, and to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions. It was held that when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused, it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. In the present case also, we find that the version given by the police officer about the discovery of the weapons at the instance of the accused persons is reliable and re-assures the
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evidence of the prosecution witnesses who have deposed as to the participation of the accused persons in the crime. Even without these discovery panchnamas, as noted by us hereinabove, there is reliable evidence to connect all these accused with the crime, and, their evidence is sufficient to hold that these accused persons had formed an unlawful assembly and with a view to achieve their common object of intentionally causing death of deceased Hareshbhai they had on 15-9-1992 around 9. 30 in the morning, attacked him with knives and a gupti and caused eighteen incised wounds which resulted in his death." C.7 Prosecution Citation at Serial No. 20 :Paragraph No. 3 : We have heard Mr. K. T. Harindra Nath who has appeared in support of the appeal as also Mr. R. L. Kohli who has appeared for the respondents. It is true that courts of law have to judge the evidence before them by applying the well recognised test of basic human probabilities and that some of the observations made by the Sessions Judge especially one to the effect that 'the evidence of officers constituting the inspecting party is highly interested because they want that the accused are convicted' cannot be accepted as it runs counter to the well recognised principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case. It is equally true that we can ill afford to accept as statement of law the observations of the High Court to the effect that "the mere fact that two sets of accounts which are conflicting are being maintained, it cannot be taken that the account books evidencing less turn-over or profits are false. It
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may well be that the secret accounts are false and the other accounts are true. It is not unusual to find businessmen keeping two sets of accounts, one the correct one and the other showing exaggerated turn over and profits, the purpose of the latter being only to attract investments in dealing with the business." But these observations do not affect the merits of the case. We strongly feel that the present is not a case in which we can justifiably set aside acquittal of the respondents of the aforesaid charges and restore the order of the District Magistrate, Kottayam. The offences with which the respondents were charged have not, in our opinion, been brought home to them. There is absolutely no evidence on the record to prove that the secret books of account, the seizure of which was effected by or under the orders of the Inspecting Assistant Commissioner were recovered from a place which formed part of the business premises of the respondents or was in their exclusive possession and control. The members of the Inspecting Party themselves have admitted that these books were found lying on the table in the room adjacent to the show room of the respondents and they could not say whether that room belonged to the respondents or not. It is also not denied by the prosecution that the said room is accessible through Kallupalam Auto Stores also. That apart, no cogent and convicting proof has been adduced by the prosecution to establish that the secret books of account were maintained by the respondents or that they had any link or connection with them. No witness on behalf of the prosecution has come forward to testify that the secret books of account did not contain any entry relating to the business dealings of Kallupalam Auto Stores which stands registered in the name of Marykutty and which also is housed in the same building in which Kallupalam Lad's Jewellery Mart is housed. It is true that there are certain entries in the secret books of account which tally in certain
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respects with the entries in the books of account intended for official purposes which were produced by the respondents in response to the demand made by the Inspecting Assistant Commissioner which raise a strong suspicion against the respondents but that circumstance alone is not sufficient to warrant their conviction for the aforesaid offences. It is now well settled that strong suspicion, strange coincidences and grave doubts cannot take place of legal proof. To establish the charges against the respondents, it was, in our judgment, essential for the prosecution to establish that the secret books of account related to the business transactions carried on by the respondents and none else. This it could have established in a variety of ways viz. (1) by adducing satisfactory proof to the effect that the place from which the secret books of account were seized formed part of the place of business of the respondents or was in their exclusive possession and control, (2) that the secret books of account were maintained by or under the orders of the respondents, (3) that the said books of account were in the handwriting of either of the respondents or their accountant, or clerk or some other person employed by them. The third method indicated above could have been adopted by following one or more of the ordinary modes provided in the Evidence Act for proving the handwriting i.e. (i) by calling the Accountant or clerk or some other employee of the respondents who is supposed to have posted the entries in the account books, (ii) by calling a person in whose presence the account books were written, (iii) by calling a handwriting expert to testify that the entries in the secret books of account tallied with the admitted specimen writing of the respondents or any of their employees, (iv) by calling a person acquainted with the handwriting of the person by whom the secret books of account were supposed to have been written, (v) by
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having the comparison done in Court of the secret books of account with some admitted writing as provided in S. 73 of the Evidence Act, (vi) by proof of an admission made by any one of the respondents that the secret books of account related to the business transactions carried on by their firm or that any one of them had written the same, (vii) by adducing other unimpeachable circumstantial evidence. No attempt or step seems to have been made or taken in that behalf by the prosecution. The connection of the respondents with the entries in the secret books of account could also have been established by producing some of the customers whose names are admittedly to be found in the secret books of account to testify that the deals evidenced by the entries were transacted by them with the Kallupalam Lad's Jewellery Mart of which the respondents were the proprietors. As the prosecution has failed to resort to any of these methods, they have to thank themselves for the result of the prosecutions upon which it seems to have launched without seeking expert legal assistance. The decision of this Court in Girdharilal Gupta v. D. N. Mehta, (1971) 3 SCR 748 : (AIR 1971 SC 2162) which is heavily relied upon by the learned counsel for the State of Kerala of no assistance to the State. In that case, it was established that the account slips were recovered from the premises of the accused which undoubtedly established their connection with them. Accordingly we do not find ourselves in a position to differ from the conclusions arrived at by the Additional Sessions Judge and the High Court. C.8 Prosecution Citation at Serial No. 22 :Paragraph No. 9 : The only other material on which the prosecution can connect the appellant with the crime is the recovery of the fired cartridge, Ex. 9 and the seizure of the pistol, Ex. 8 and the deposition of the ballistic expert, Prosecution
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witness 9. It is found that the witnesses who have been examined for attesting the seizure have not supported the prosecution version. On behalf of the defence it was submitted that the seizure witnesses were men of status in the village and their not supporting the recovery would be fatal to the prosecution. We would rather not place any reliance on the witnesses who attested the seizure memo. If the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version. According to the investigation officer, Prosecution witness 12, he recovered a live cartridge lying on the ground towards the head of the cot wherein the dead body was found lying and an empty cartridge lying near the cot of that room. The recovery memo was marked Ex. P. 14. The recovery of the pistol, Ex. 8 from the person of Modan Singh was on the 20th December at the police station itself and the recovery memo is Ex. P. 23. An empty cartridge, a live cartridge and a pistol case was recovered from the house of Modan Singh on the 23rd and the seizure memo was prepared but the prosecution failed to lead evidence that the material objects were properly kept till they were sent to the expert on 6-2-1967 by a special messenger. The investigating officers would only say that the material objects were kept sealed upon 14-12-1966. The prosecution is silent as to in whose custody the material objects were till 6-2-1967. Added to all these infirmities, we find that the ballistic expert. Prosecution witness 9 had in his report, Ex. P. 25, stated as follows :"the fired cartridge has been marked C/1 by me. It had been fired from the pistol under reference. The barrel of the pistol is loose for 303 bullets and hence, reliable markings on the test bullets could not be obtained. Therefore, the bullets mentioned above could not be identified in respect of the
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weapon under reference. " In the evidence, no doubt, the ballistic expert stated that he fired test cartridges studied them and found that the markings on the test cartridges were similar to the marking in cartridge, Ex. 9. Though he had referred to his report, Ex. P. 25, which has been extracted above, no question was put to the ballistic expert as to how he was able to fire test cartridges when in his statement he stated that the barrel of the pistol was loose and the bullets mentioned could not be identified in respect of the weapon under reference. It is strange that the witness was not asked to explain the statement in Ex. P. 25; neither the trial Court nor the High Court has referred to this aspect. After reading carefully the evidence of Prosecution witness 9, the ballistic expert and his report, we are far from satisfied that the prosecution has established that the cartridge. Ex. 9 was fired from Ex. 8." C.9 Prosecution Citation at Serial No. 35 :Paragraph No. 7 : The object of the legislature in enacting S. 5-A was to see that the investigation of offences punishable under Ss. 161, 165 or 165A I. P. C. as well as those under S. 5 of the Prevention of Corruption Act should be done ordinarily by officers of the rank of Deputy Superintendent or above. No doubt S. 5-A also provides for an alternative procedure. An officer below the rank of Deputy Superintendent can investigate those offences if he obtains the previous permission of a First Class Magistrate. The legislature proceeded on the basis that except for good reasons the Magistrate would not accord permission for officers below the rank of a Deputy Superintendent to investigate those offences. But exigencies of administrative convenience may require that some of those cases have to be investigated by officers below the rank of Deputy Superintendents. For that
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reason it was provided that in such circumstances the permission of a Magistrate of the First Class should be obtained. This Court has laid down in 1959 Supp (2) SCR 201 = (AIR 1959 SC 707) (supra) that the statutory safeguards under S. 5-A must strictly be complied with for they are conceived in public interest and were provided as a guarantee against frivolous and vexatious proceedings. A Magistrate cannot surrender his discretion to a police officer but must exercise it having regard to the relevant material made available to him at the stage of granting permission. He must also be satisfied that there is reason owing to exigencies of the administrative convenience to entrust a subordinate officer with the investigation. It is further observed therein that it is desirable that the order giving the permission should ordinarily in the face of it disclose the reasons for giving permission. The order giving permission under S. 5-A in this case does not give any reason. On the application submitted by P. W. 17 the learned Magistrate merely ordered "Permission granted". P. W. 17 did not mention in his application any special reason for permitting him to investigate the case unless we consider the statement in the application. "Today is the date fixed for issuing the fit certificate after receiving a bribe money of Rs. 5 from him as impliedly a ground in support of his application. It is surprising that even after this court pointed out the significance of S. 5-A in several decisions there are still some Magistrates and police officers who continue to act in a casual manner. It is obvious that they are ignorant of the decisions of this court. But the legality of the investigation held in this case does not appear to have been challenged in the trial Court. The charge levelled against the appellant is established by satisfactory evidence and therefore all that we have now to see is whether the accused was prejudiced by the fact that investigation of this case was made by an officer
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below the rank of a Deputy Superintendent, as laid down by this court in Munnalal v. State of Uttar Pradesh, AIR 1964 SC 28 and AIR 1964 SC 221 (supra). No prejudice was pleaded much less established. An illegality committed in the course of an investigation does not affect the competence and jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination the invalidity of the preceding investigation does not vitiate the result unless the miscarriage of justice has been caused thereby, see 1955-1 SCR 1150 = (AIR 1955 SC 196) (supra)." APPRECIATION OF PANCHNAMAS AND RELEVANT ORAL EVIDENCE IN THE CASE : (1) (a) PANCHNAMA EXH. 736 PW-31 and PW-33 are the 2 panchas of the panchnama Exh. 736. PW-33 deposed that he was called upon on 18/5/2003 at the Gaikawad Haveli Police Station at about 2 p.m., he was informed that the arrested accused has desired to show something and to be the witness for that, the witness had been to Crime Branch where he saw the accused and other police officers, the police informed the witness that the accused wanted to show something and they shall be going outside along with the accused, they sat in a Government vehicle, marched towards Ellis bridge, had been near the pole of the Ellis bridge, the accused dig near the pole and took out a packet which was opened up where from it country made revolver and 12 cartridges were found , the revolver, muddamal article No.96, was identified by the witness to be the same, the witness identified his signature as panch No. 2.
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This witness was cross-examined by the defence for A-22. During the course of the cross-examination, the witness repeats that he was called upon by the police to be panch, panch No.1 Rasikbhai (PW-31) was not with this witness (which shows that he is a natural witness), the witness does not know the name of the police official who called him (this shows that the witness is not a police tout), the witness does not know the names of the police officers of the Crime Branch, he does not know PW-35, the assignee police officer, the witness has been confronted from the sentence of the panchnama on the names of the bridges in the city of Ahmedabad but, in the opinion of this Court, this cannot be termed to be vital confrontation which would lead to disbelieve the witness all together. On the contrary, this shows that the witness is a natural witness and the truthful witness as well. The witness admits that to go to Ellis bridge, one can go from the road of Sunday market also but since this reply is absolutely true and even the said has been recorded on the backside of the page in the panchnama this cross also does not help the defence. In the light of the para 9 of the cross examination of this witness it has been clarified very specifically by the witness that the police officer has told the driver in the vehicle that wherever the accused leads at that place they were to go. From para 10, the time, the site, signatures in the panch slips etc. get reassured. The denial that it is not true that the witness did not go along with police to the site and the accused has not taken out and shown the revolver and cartridges in the presence of the witness helps the prosecution that all the proceedings were done in presence of the witness. This witness is a genuine witness of the discovery, the seizure, the procedure of sealing, sending the panch slips, all adds to the genuinity and propriety of the procedure along with confirming that the accused has a special knowledge as to where he has hidden
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the weapon and the accused led the whole team of 2 public witnesses, police etc. (b) PW-31 is a hostile panch witness but, he however, corroborated the fact that he was called as panch, the accused wanted to disclose some fact, they had been in the Government vehicle at the said site, the special knowledge of A-22, taking out the bag, signature of the witness, signature on the panch slip etc. (c) PW-35 is the assignee officer who through his deposition has strengthened the genuinity of the panchnama, who is also found to be truthful and creditworthy who reassures the version of panch witness. (d) If panchnama Exh. 736 is perused, it becomes extremely clear that the A-22 has very specifically made the disclosure statement before the public witnesses that he had one country made revolver and cartridges which he had hidden at one place and that he was ready to show the same. Firstly, preliminary panchnama was prepared and then after the panchnama corroborated by the public witnesses and the assignee officer shows that the panchnama is proper and genuine and that upon the information given by the accused in form of disclosure statement. Ultimately, the arms and ammunition were seized, hence the fact is held to have been discovered which was not known to the police prior to it. (e) The submission of the discovery from the public place should not be believed, loses its significance when the panch witness and the I.O. proves the discovery to be genuine, beyond reasonable doubt and that the site seems to be such which was only within special
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knowledge of the A-22 and none else. Considering the said, this Court is of the opinion that the submission of the public place does not found to be meritorious to disbelieve the panchnama. There is no material on record either through cross-examination or in Further Statement of A-22 to perceive that the recovery was compatible with the circumstance that somebody else had placed the weapon and A-22 had acquired knowledge about the whereabout, hence it becomes a clear case of conscious possession of A-22. Another important aspect cannot go out of the sight that the case of the discovery of weapon which has been used in commission of the crime is totally different than the fact in this case. These are the weapons which have been collected as preparation of serious crime against humanity viz. of terrorism. The mentality of the accused who prepared would be not to be caught, hence it is not improbable for such accused like A-22 to select a public place also to conceal the weapon, hence the prosecution version is held to be probable. FINDING : Thus, all the requisites of Section 27 do clearly stand established against A-22. The disclosure of information which by A-22 led to seizure of the weapon and cartridges and the panchnama is thoroughly proved by the prosecution beyond reasonable doubt against A-22. The said is therefore, held to be creditworthy and admissible.
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(2)
PANCHNAMA EXH. 1809 PW-14 is the panch No. 2 of this panchnama. The panchnama needs as such no discussion for the reason that through this panchnama contemporaneous writing of the dropped witness has been obtained vide the panchama. Through this panchnama the prosecution does not lead its case any further as the witness has not been examined, hence benefit of it should go to the defence. FINDING : Not admissible.
(3)
PANCHNAMA EXH. 769 PW-36 the panch No.1 of this panchnama has been examined to prove the panchnama but, this is the panchnama by which the specimen signature of the dropped witness at Exh. 778 has been taken. By this panchnama in presence of dropped panch witness Mohammed Aiyub the relevant page of the Hotel International was shown to the witness which is on record at Exh. 777 but, since the witness Mohammed Aiyub has not been examined as prosecution witness, the benefit should go to the defence and this panchnama Exh. 769, Exh. 778 the specimen signatures and oral evidence of PW-36 does not take the prosecution case further, except on following points :
(a)
The fact that Exh. 777 shows that PW-64 has signed on 3/11/2002 in the register of Hotel International.
(b)
Exh. 777 seems to have been recovered in presence of PW-180 as the assignee officer who has been examined and who has supported the prosecution case.
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(c)
Further, if this document is carefully perused, it shows names of numerous passengers from Dhaka and proceeding to Dhaka and to the said extent the prosecution case gets corroboration that the passengers coming from Dhaka and going to Dhaka used to stay in this Hotel.
(d)
On the perusal of oral evidence of PW-36, it seems quite clear that the prosecution has satisfactorily brought on record the documentary evidence Exh. 776, Exh. 777 and Exh. 778 through this witness by the cross-examination no doubt is created against the oral evidence of the witness but the prosecution did not examine the witness whose hand-writings were taken. On the contrary, the witness sounds to be natural witness and was giving true accounts of the proceedings carried in his presence. FINDING : The prosecution case as such has not been taken forward by the help of this panchnama. The oral evidence of handwriting expert on the aspect of handwriting or signature of the dropped witness also cannot help the prosecution.
(4) (a)
PANCHNAMA EXH. 801 : PW 42 is the panch No. 1. This is the panchnama of the STD booth which has been shown by PW 88 as the STD booth from where A-31 and the PW 88 have talked with wanted accused Rasulkhan Party. The panch witness has stated that on 10/8/2003 in the evening, he was called upon by the police as panch, they sat in the jeep from
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the police station wherein along with the panch, police officials, one another person was present, who all went to a telephone booth named as as Shreeji near Narol Circle on Baroda Highway where PW 88 in presence of the witness has informed the police that he has talked from this booth which was STD booth where the operator was present and about 4 telephones were there. The witness identified his signature in the panchnama Exh. 801. During the course of cross-examination, the witness admits that his father and uncle are working in the Police Department and they were working in Crime Branch at the time of the panchnama. The person who was accompanying the team was handcuffed. The witness denied the suggestion that he had not been to STD booth and had signed on readymade panchnama. As is clear from the record, along with the panch, the witness was accompanying and that the said witness has been examined as PW 88 who was though a hostile witness has himself not stated that he was ever handcuffed. Hence, this sentence seems to have been spoken by the witness corelating some another impression of the witness. Through this witness, it comes up on the record that a person named Abdul (PW 88 herein) has shown the STD booth and panchnama Exh. 801 was drawn in presence of this witness. (b) The panchnama Exh. 801 is to the effect that PW 88 was present at the police station who was ready to show the STD booth in presence of the panch witness from where the chief conspirator was contacted before 5 to 6 months. The person present has told his name to be Abdulsatar Ibrahim Momin (PW 88 herein), preliminary panchnama was drawn along with the mention of RTO
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number of the vehicle and the team to have been led by PW 88 which team traveled as per the route shown by PW 88. The team had been on the route shown by PW 88 who then reached Shreeji Communication, STD booth, where the PW 88 stated before the panchas that on telephone No. 0097150 (must be of UAE), Rasul Party was contacted, the detailed description of the STD booth, telephone number, its size have all been written. (c) PW 180, the assignee officer, has also been examined who has deposed in paragraph 13 that he was given Yadi Exh. 1480 and he has proceeded to prepare the panchnama Exh. 801. This witness has further stated to have given his report of compliance of the Yadi Exh. 1481. From paragraph 13 of the examination-inchief, it seems that the assignee officer too has corroborated the prosecution case who was however cross-examined, but no substantial challenge has been made qua this aspect.
(d)
PW 88 has also been examined. This witness is a hostile witness who has deposed that he knows A-31 who is his friend and he has never corrected or scolded A-31 for working with Rasulkhan Party. The appreciation of the oral evidence of this witness has already been done while discussing the aspect of statement u/s 164 of Cr.P.C. Suffice it to say that this witness apparently seems to have been won over. This panchnama and the oral evidence of PW 42 and PW 180 provides general corroboration to the confessional statement of A31 where at page No. 2, A-31 has specifically confessed that he and others including PW 88 had been to see a godown at Sanand to hide the weapons under the instructions of Rasul Party. He
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further adds that at that point of time, he talked from STD PCO to Rasul Party who in turn advised for alternative site to make the said godown. If the confessional statement is now read with PW 88 and the panchnama, it is crystal clear that PW 88 is speaking lies in the interest of A-31 and that they all have worked together. Needless to add that, since PW 88 is not the co-accused. The confessional statement of A-31 can very well be read to appreciate the oral evidence of PW 88. FINDING : This Court firmly believes that the panchnama Exh. 801 has been proved by the PW 42 the panch witness and the I.O, which is held to be admissible. (5) (a) PANCHNAMA EXH. 727 : This is the panchnama of the personal search of A-25. PW 28 is the panch No. 1 of this panchnama who has stated that on 13/5/2003 in the noon, he was called by police at Jamalpur at the shop in the Flower Market. The witness further states that he was asked to wait outside the shop, told that since the accused is to be arrested, he be a panch witness, the witness consented, the name of the accused informed to the witness by the police was Mohammad Husain (A-25), after some time a man came from opposite direction of the Flower Market who was stopped by the police, who stated his name to be Mohammad Husain and whose personal search was carried out. From the accused in the personal search, certain documents and one mobile phone in working condition were available, muddamal article No. 85 the four credit cards, muddamal article No. 86 abstract of Form 7/12 were identified by the witness along with his signature as panch
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No. 1. The witness adds that a phone was also recovered and the panchnama Exh. 727 was prepared in presence of the witness as panch. This witness was cross-examined who has admitted that he was working in Sheetal Market of Madhupura and his working hours were 10.00 a.m. to 6.00 p.m. on the date of drawing the panchnama, the witness further admits that he was present on his job, the 71 saved mobile telephones (forming part of the panchnama) in the telephone directory were not dictated by the witness in the panchnama, the Flower Market is a dense area, the witness did not know A-25 prior to the panchnama, the panchnama was written by the writer and the witness has signed after the panchnama was prepared without reading the panchnama. (b) The submission of L.A. for A-25 that the witness is not credible since on the date of the panchnama itself, the witness was on his job and his job hours are 10.00 a.m. to 6.00 p.m. and that it is not probable for the witness to be panch witness on account of his job and that he has not dictated the telephone numbers. Hence this witness is not the witness of truth. This submission cannot be accepted. The panchnama should be drawn in presence of public witness which admittedly has been done. The proceedings of the panchnama cannot be doubted to have been not done in presence of this witness. It may be easy approach on the part of the prosecution to have not secured explanation in re-examination as to how the panch witness could remain present though on the date his working hours were conflicting, but the said easy approach does not take away
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substantial, positive evidence of the witness for which there is no room of doubt. It is very much probable for a person to remain as panch witness though on the said date, that person may go on the job. It is nobody's case that at the time of drawing the panchnama viz. 11.30 to 13.00 hours, the panch witness was in his office at Madhupura. Had the said fact was admitted by the witness, then the said improbabilize the presence of the witness as panch witness, but in absence of the said specific information, the general information in the cross-examination cannot take away or rebut the positive evidence of the witnesses. No force is found in the admission that the panchnama was not dictated by the panch as it is not at all required In the considered opinion of this Court, this witness has proved the prosecution case of propriety and legality of the panchnama Exh. 727 beyond reasonable doubt. (c) It is noteworthy that no substantial challenge has been offered to the fact of about 72 telephone numbers found saved in the directory of the mobile instrument recovered from the A-25. This is a chance recovery and that this itself is a pointer to the genuineness of the contents of the panchnama. Undoubted and genuine presence of a public witness proved in substantial evidence read with Section 114(e) of the Indian Evidence Act would lead this Court to believe the contents of the panchnama to be genuine, proper and true. (d) PW 180, the assignee officer, has also corroborated the contents of the panchnama and has added that he was given Yadi to carry out this work vide Exh. 1470 and he has given the report of having carried out the said work at Exh. 1471. This witness has stated to have arranged the watch on 13/5/2003 with two public witnesses, A-25 came at 11.30 a.m. who was identified by the informer,
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whose personal search was carried out from whom 4 credit cards, 7/12 abstract and a mobile phone were recovered. In paragraph 21, at the cross-examination, the witness has deposed that he had the information from the informer of his head constable. The witness admits that he had not made any note in the station diary as such note is being not made. The witness states that he cannot say that on that day at what time he came and at what time he left at the police station, the information was received on the same date at 10.30 a.m., the note has been made in a weekly diary, upto market they had been in the Government vehicle. The witness admits that he does not remember the name of the driver, both the panch witnesses are of Shahibaug area, the witness denies to have taken known person as panch witness, the list of muddamal pavati was not given to the accused. (e) It has been submitted that the panch witness and the panchnama are made up affairs and that they are not genuine, but there are witnesses who have proved the prosecution version in a satisfactory manner beyond any reasonable doubt. In the opinion of this Court, in paragraph 21, the witness has stated that they had been in the Government vehicle, but he does not recollect which that vehicle was and who the driver was. The witness confirms that they did not go in the private vehicle. Now when the panchnama Exh. 727 is perused, there is no mention of either of the vehicles, but then from the Gayakwad Police Station to Jamalpur is a reasonable distance and is not a walkable distance, though not mentioned, it can be inferred that some vehicle must have been used and such vehicle must be a Government vehicle.
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It seems that the panchas have been approached at a very closeby point. In the light of the fact that the PW 180 is an assignee officer and who was directed as subordinate officer to carry out the work mentioned in the Yadi by the I.O. and when the information was received at 10.30 a.m. and when the panchnama has been initiated at 11.30 a.m., the fact that the panchas of other areas were available sounds to be more natural because at such a crucial time the officer is not expected to find out the panchas of the same area because in any case the purpose can be fulfilled by finding out two respectable public witnesses which the witness did. It is true that the Flower Market is a dense area, but then it cannot go out of the notice that after all the accused is a person who has his roots in that area being a shop owner of Shop No. 7 in the market. The assignee officer therefore seems to have acted prudently in securing the presence of the public witnesses who were available instead of finding out the public witnesses from the locality. The independence and neautrality of the public witness cannot be doubted as this Court does not find any material for the same and that the fact that both the public witnesses were belonging to Shahibaug area is not creating any reasonable doubt on the record of this case. This Court therefore does not find the submission as hurdle in credibility of the contents of the panchnama or believing PW 28 as a neutral and trustworthy witness. (f) A very forceful submission was also made for not preparing the list of the documents recovered from A-25, but upon perusal, back side of page 2 of panchnama Exh. 727, there is a clear mention that except the abstract of Form No. 7/12, all the other documents have been returned viz. 4 credit cards to the accused. It is
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therefore clear that when it is returned to the accused, there may not be any list for the same. The 7/12 abstract has been exhibited as Exh. 1488. Non-issuance of muddamal receipt is merely an irregularity and does not take away the credible, positive and substantial evidence clearly emerging on record to believe the contents of the panchnama to be genuine and true. (g) What is also important is the mobile phone recovered from A-25 is at the site itself, the telephone numbers saved in the memory of this mobile instrument have been taken down in the panchnama itself. Upon plain perusal of it, Ameermiyan, Bilal, many numbers of Maulana, Maulvis and Muftis, numbers of wanted accused Mufti Sufiyan, numbers of A-26, A-45, number of Juned, reveals a strong circumstance revealing the link of the accused with many accused of this case including the wanted accused and the religious leaders and clergies. This is to be read with an aspect that this circumstance has neither been challenged in the crossexamination of PW 180 or PW 28. It is the muddamal article No. 87 which is providing a circumstance linking the accused with the other co-accused. (h) Exh. 1488 has been taken on record which is muddamal article No. 86 which is 7/12 abstract of the land at Taluka Matar wherein also there is signature of the panch witness and the assignee officer. FINDING : This Court is of the firm opinion that this set of evidence is satisfactorily proved to be true and genuine and to have been
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properly proceeded beyond reasonable doubt. This panchnama Exh. 727 is held to be admissible. (6) (a) PANCHNAMA EXH. 648 : This is the panchnama by which in presence of PW 10 - the Bank Manager, signature card of A-2 which has been exhibited as Exh. 649 has been recovered by drawing the panchnama. Article 128 is Exh. 649 the card. This signature card from the bank has been obtained as natural signature of A-2. (b) PW 10 the Bank Manager of Memon Cooperative Bank where A-2 had his bank account has been examined who corroborated the contents of the panchnama to an extent that Exh. 649 is the signature card of A-2. The cross-examination of this witness loses its significance when in the Further Statement A-2 admitted Exh. 649 to be his own signature card. (c) PW 8 is a panch witness who was panch No. 2 of the panchnama Exh. 648. The card Exh. 649 has even been signed by this witness. This witness has supported the fair and proper procedure having been adopted by the investigating agency. This witness has not been cross-examined. (d) Vide Exh. 649, it emerges on record that from 9/3/1999, A-2 was holding his bank account as proprietor of Adhar Petroleum at Panchkuva, Ahmedabad.
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(e)
PW 48 is the concerned assignee police officer in whose presence the panchnama was drawn who has stated that he was issued Yadi Exh. 850. The another Yadi of handing over the muddamal to PSO is also proved by PW 48 on record. Vide the oral evidence, the date, time and the procedure adopted by the police witness are on record. The witness has been cross-examined wherein no substantial challenge has been offered to the oral evidence by which the procedure of the panchnama or the contents of the panchnama can be doubted. FINDING : The panch, PW-48 Police Officer and the Bank Manager have corroborated the contents of the panchnama which is held to have been duly proved by the prosecution and is admissible.
(7) (a)
PANCHNAMA EXH. 660 : This panchnama has been drawn by PW 48 while securing the signature card Exh. 659 of A-1 from Amarnath Cooperative Bank to bring on record the natural signature of A-2. PW 12 is the panch No. 1 of this panchnama who states date, time, going to Amarnath Cooperative Bank being a panch in recovering the signature card of A-1 from the Bank, the signature card muddamal article No. 129 has been shown to the witness who identifies his signature which has been exhibited as Exh. 659. In the cross-examination, no substantial challenge has been offered to the panch witness and further in the Further Statement, the accused does not dispute the signature card to be his.
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(b)
Vide this document, it seems that A-1 as proprietor of Hi-value Couriers has opened the account with Amarnath Cooperative Bank from 10/9/1998, the office was situated at Ashram Road. Exh. 659 read with oral evidence of PW 12 and PW 48, the panchnama Exh. 660 is hereby held to have been validly proved. PW 48 has here also proved the Yadi upon which he has acted and the genuineness of the procedure adopted by him and to have handed over the signature card to the concerned PSO etc. FINDING : The panchnama is admissible.
(8) (a)
PANCHNAMA EXH. 674 : This is the discovery panchnama by which muddamal article No. 94 rifle has been recovered from A-25. Upon perusal of the panchnama, the disclosure statement in presence of panchas is found contended in the panchnama wherein A-25 states that he is ready to show the weapons hidden by him. After drawing the preliminary panchnama between 12.15 to 12.45 p.m. of 18/5/2003, the further panchnama has been noted where the accused along with panchas and police have started and have stopped the vehicle, after getting down from the vehicle, the accused has led upto Roza Flats which were under construction, after reaching the first floor, in the flat on the first floor, a weapon wrapped in plastic bag was taken out which was rifle which was given to the panch witnesses. The rifle was examined there itself which was found in working condition. On the rifle, the writing of the Burmingham England was readable. On asking, the accused could not produce any permit or licence for the weapon. The said weapon was recovered by the police.
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(b)
PW 17 has been examined as panch No. 2 of Exh. 674 panchnama who in his oral evidence tallies with date, time, place from where the panch was called, the disclosure statement, the name of the accused, the signature of the panch witness, all had been to one bungalow at Shahpur area from where the rifle was recovered from the 'Malia' a storey like enclosure under a ceiling for storing goods, in the bungalow, the witness admits to have signed in two papers and then to have returned at the police station, he thoroughly proves the panchnama Exh. 674 and identifies his signature in the panch slip. This witness was cross-examined. This witness has admitted that as and when police requires him, he used to go as panch, the witness denies that he knows many policemen, he denies the referred name in the oral evidence of PSI Shri Malik, Shri Patel, Police Head Constables and Constables, he also adds that these names have not been written by him in the panchnama. The witness further admits that he went from his house as panch, he did not know the name of the policeman or he did not know him from beginning who has called him up, the witness denies that the police informed him that to recover the weapon, they are to go at Shahpur Darwaja. The witness adds that the police called me to take my services and the police informed that the accused wanted to show something. The contents of the panchnama have admittedly been not written by the witness but that is never fatal. The witness did not know the name of the police officer present in the police station shows that he is not the police tout. The panchnama was written by the writer of the police.
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The witness has corroborated to the fact that they went by police jeep. The search of the police vehicle and panchas were not made before going for the panchnama is mere irregularity and does not vitiate the procedure, the witness is unable to state as to how many rooms were there on the first floor is the matter of general observation which the witness might not have observed. The witness denied that he has signed after reaching Haveli Police Station shows that he was present while drawing the panchnama at the site. The fact of discovery of the rifle has been thoroughly supported by the witness and the suggestions to disprove the same have been denied. (c) On inquiry, the prosecution has informed that PI Shri A.A. Chauhan had passed away, hence has not been examined. The panchnama was drawn in the presence of assignee officer late Shri A.A. Chauhan. The submission of L.A. for A-25 to place no reliance on PW 17 on the ground of he being stock panch witness and on the ground that he did not speak of disclosure statement and that he is not the author of the panchnama are not found to be acceptable one. This Court humbly but firmly believes that the witness is natural and truthful witness. Every witness who goes to the police station upon call of the witness cannot be titled as stock witness unless it is proved that he was obliged by the police and has reason to please police that too when the testimony of I.O. is found otherwise doubtful. No material whatsoever has been brought on record to doubt testimony of panch witness when the testimony of the police officer is found convincing. There is nothing on record that the police knew about the place where rifle to have been
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concealed. The panchnama allows the information to be proved which relates distinctly to the fact thereby discovered. In the instant case, the police was not knowing the place where the rifle was hidden. It is the disclosure statement in the panchnama which has led to discovery of the fact of the place where the rifle was hidden. The requisites of Section 27 of the Indian Evidence Act stand satisfied. While reading the panchnama in light of Section 114(e) of the Indian Evidence Act, no doubt is left in judicial mind. (d) Usually panchnama is a record of what panchas see and hear. The panch witness is not expected to be able to dictate the panchnama. Therefore, the vital test is whether the panchnama was prepared in presence of the public witnesses, the police, while the accused was in custody and is it record of what panchas see and hear. When the panchnama is duly found to have been proved by proper and necessary evidence by examining the panch witnesses, the same needs to be believed in toto. There is nothing on record to believe that the panch witness is in any way interested and is not respectable and independent and was not offering voluntary help to the investigation. The said being so, this panchnama which is totally proved by the oral evidence of the panch witness is held reliable. The seizure of the article proves the information of the weapon having been hidden by the accused. The disclosure statement has been clearly made in presence of the panch witness. The panch witness is found to be truthful and credible one whose evidence needs to be read along with the denial at the end which would clearly mean that the rifle was recovered and the fact was discovered of hiding the rifle at the instance of A-25. The witness is a rustic witness and is not a sophisticated witness whose evidence needs appropriate scrutiny. Further he has not resciled from his version in the examination-in-
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chief, rather he has to the satisfaction of this Court, has proved the panchnama. FINDING : Exh. 674 is held to have been duly proved and is held admissible. This Court does not find any substance in the submission to disbelieve the panch witness. (9) (a) PANCHNAMA EXH. 759 : This is the panchnama of discovery of the weapons from the residence of A-20. PW 19 & 34 are the co-panch witnesses of the panchnama Exh. 759. (b) PW 19 is the panch No. 1 of the panchnama who has deposed to have been called upon by the police to be panch witness on 13/5/2003 and to have signed panchnama Exh. 759. The witness has admitted his signature on the panch slips Exh. 680 and 681. (c) PW 34 is the panch No. 2 of the panchnama Exh. 759 who deposed the date, time, place, his consent to be panch, etc. The witness further states that he was informed by the police that the arrested accused is desirous to say something for which he has been called to be panch and the accused present has told his name to be Kalim, the witness states to have gone to Gayakvad Haveli Police Station, to have signed the writing of the panchnama, to have gone in Government vehicle on the route shown by the accused near Kalupur Tower from where they had been to residence of the accused by walking, it was the last house with two storeys, they had been to the uptstairs, in the room, there was bathroom and a wooden piece on the wall, removing which
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the accused has taken out one parcel of plastic, upon opening it a revolver and 4 cartridges were found, on the revolver the word Japan has been written, muddamal article No. 89 and 88 have been identified by the witness to have been produced and then recovered at the instance of A-20, the witness identifies his signature on the panchnama, panch slip etc. The witness has been cross-examined. The witness admits that he is a hawker who was called at 4.30 p.m. on that day, he does his business upto 8.00 to 10.00 p.m. The P.I. has introduced the accused as a man who wishes to say something, the witness did not know at which Pole (street in the city) the vehicle was stopped, the witness did not remember the detailed topography, the witness did not know about the luggage in other rooms, he did not know as to how many fans and cupboards were there in a particular room, the witness did not know English, the panchnama was written by the policeman, the witness has not dictated English word in the panchnama which all is not creating any dount in judicial mind. It needs note that the witness admits to have not seen revolver or cartridges prior to this which rules out plantation. At paragraph 7, the witness has specifically stated to have found revolver and cartridges together when the accused has brought out the parcel by his own hands shows clear participation of the A20. In paragraph 8, after the recovery, the plastic box and cloth were called for and until the plastic box came, the revolver and cartridges were with P.I. which is not held to be doubtful. (d) The forceful submission that the panchnama cannot be believed as this witness has not authored the panchnama and that this witness is unable to spell detailed topography of the place and
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details about the luggage in different rooms and that this witness is a got up witness cannot be subscribed upon perusal of paragraph 8, the procedural sanctity while drawing the panchnama. The discovery of the fact of having placed the weapon and cartridges at a particular place in the house, undoubted special knowledge of the accused about the place where the weapons had been placed, are the factors which led the Court to hold that the panchnama is duly proved by the oral evidence of this witness and no doubt whatsoever has been created against the contents of the panchnama. In the country like India, it cannot be expected that each person knows English nor it is essential for the panch witness to dictate the panchnama. What is necessary is throughout presence of the panch witness when the panchnama has been drawn, the accused to be in custody, the accused to have produced the thing, the police to have no knowledge as to where the thing was lying prior to its production by the accused, disclosing information by the accused, the said information results into reaching at the thing and resultant recovery of the same are all the elements read with the denial of the witness where he has specifically stated that it is not true that he did not go to the site and the weapons were not taken out by the accused in his presence and the panchnama Exh. 759 was not drawn in his presence. (e) Upon perusal of the panchnama Exh. 759, the date, time, place and voluntarily informing name by A-20, informing his residential address in presence of the panch witness and the disclosure statement by the accused along with his readiness to bring out the revolver and cartridges from the place at which they are hidden, are all the factors which are proved by the panch witness.
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Preliminary panchnama has been drawn, thereafter all had been to the residence of A-20, the witness has stated about the members residing at different floors of his house who then took everyone to the second floor, they then went to the room of A-20, the bathroom is found to be situated there, the wooden piece has been fixed which was pushed by the accused which was then opened (this act of the accused noted in the panchnama is a relevant conduct of the accused which is admissible in evidence and that it is also revealing the special knowledge of the accused about concealment of the weapons. The accused then took out a revolver wrapped in plastic which was found in working condition along with which 4 cartridges as noted in the panchnama and as proved by the panch witness have also been produced by the accused. As noted in the panchnama, the father of A-20 has remained present during the process of the panchnama. (f) It is true that one of the panch witnesses was hostile, but in light of the oral evidence of another panch witness, it becomes clear that PW 19 was won over and he has not spoken truth. PW 34 is held to be truthful and reliable witness who has provided thorough corroboration to the contents of the panchnama Exh. 759 which is hereby held to have been proved by this panch witness. (g) PW 37 is the assignee police officer before whom the panchnama was drawn who has also supported the prosecution case and has contributed in proving the panchnama. This witness was crossexamined by the defence which cross-examination is not significant in the light of the oral evidence of PW 34, none else but the author of the panchnama.
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Certain admissions by this police witness were made base of the arguments to not believe the panchnama, but in the humble opinion of this Court, the panchnama is satisfying all the requisites of Section 27 of the Indian Evidence Act which have been satisfactorily proved by the panch witness, there is absolutely no need of considering unwanted and careless admissions of the police officer which obviously would not be intentional one. It is however necessary to note that when the assignee police officer PW 37 was confronted, he has sustained the procedural sanctity of the panchnama which is found satisfactory and to the said extent, even this witness has corroborated the contents of the panchnama which is held to have been duly proved. FINDING : Panchnama Exh.759 is held to be admissible in evidence linking A-20 with the crime. (10) PANCHNAMA EXH. 669 : (a) This is the panchnama of discovery of countrymade revolver, 19 cartridges, waist belt, etc. from A-4. (b) PW 16 the panch No. 2 has been examined by the prosecution. This witness has deposed that on 12/4/2003 in the noon, he was called upon by the police as panch when accused Rehan (A-4) was present, the accused has shown his readiness to show something, the witness has further deposed that along with the accused, they had been to Sarangpur Tank, the vehicle was stopped wherefrom the accused took them walking, in one street there was an old house wherein waste material was lying. The accused has taken out one plastic bag by removing the waste
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material, from inside the bag one weapon was produced wherein there was a space for magazine, the waist belt was also produced from the bag from which one more gun and cartridges were found which was a small gun and which was inside the box. The panchnama was drawn, the slip was signed, the panchnama Exh. 669 was signed, muddamal article No. 57 has been identified to be one which was produced by removing the waste material. The witness identified his signature on the slip on the bag as panch No. 2. The slip at Exh. 670, 671 and 672 are the panch slips where the signatures of the witness have been identified by the witness. Muddamal article No. 58 was the revolver recovered from the site, the slip on the said box has even been identified to be with the signature of the witness. Muddamal article No. 58 & 57 have been deposed to be the same kind of two revolvers whereas muddamal article No. 59 is identified to be cartridge. This witness was cross-examined wherein the witness admits to have been staying in New Akhandanand Society even when he became the panch witness, the name of the society had not been written in panchnama Exh. 669 (It is nobody's case that the witness has not written his full address. This is ministerial work of the writer of the police officer for which the witness cannot be doubted). The witness denied the suggestion that because the police knew him from beginning, even in absence of the name of the society, the summons is being served to him, the witness admits to be knowing police constable Himatsinh from the date of service of summons to him. The witness has further deposed that he did not remember as to after this panchnama Exh. 669 whether he had been panch in another panchnama or not and particularly on 21/11/2003 whether he became the panch or not. The witness has admitted to have signed panchnama Exh. 734 as panch No. 2
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which the witness stated to be for some report, the witness declined that he used to become panch as and when called upon by the Crime Branch officer. The witness states that on 12/4/2003, he was doing business, the witness did not remember as to he has communicated to the police as to he deals in what, he has further deposed that he has said to the police that he was doing service, the witness confirms that he was stopped by the police to become panch, police informed him that one accused has been arrested and the witness is required to be panch witness, the witness specifically denies that police has informed him that the arrested accused wanted to show gun and cartridges, the witness further deposed that along with the policemen and accused they have started in one jeep, the witness is unable to state as to the place from which the weapons were recovered is surrounded by whose houses (here it is getting confirmed that the weapons were recovered on that day), the witness did not know as to the names of the surrounding buildings were written by the police or not, the panch admits to have not dictated the contents of the panchnama (which is of no significance), the place where the witness had been was of how many storeys is not remembered by the witness, the time for the panchnama proceedings has been stated of 3 hours by the witness (this is suggestive of sanctity and propriety of the procedure adopted), the witness has agreed to the suggestion that at the office of the Crime Branch, the witness was not knowing as to what the accused wanted to show (it is not clarified at which point of time the witness was not knowing the said fact). If seen in the light of examination-in-chief and the panchnama, it is clear that the accused has only stated before the panch witness that he wanted to show the place where he has hidden the incriminating muddamal, hence in light of this contention, the reply given in the cross-examination that the witness was not knowing
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as to which particular article the accused is desirous to show which appears to be the probable meaning then it shows the truthfulness of the witness. In the cross-examination, in response to the question, the witness has stated that who brought and from where the plastic tins were brought is not known to the witness and after production of the weapon within how much time the said tins were brought is also not known to the witness (this question presupposes the production of the weapon which supports the prosecution case), the witness has denied the suggestion that he wanted to conceal the fact of his signing another panchnama, it has also been replied that the search of the vehicle and the search of panchas etc. were not made before writing the panchnama. (c) In the humble opinion of this Court, the very purpose of carrying out the search of the searching officer and others assisting him before making personal search of the accused is to avoid the possibility of implanting an object to be shown in the search, but this is a discovery panchnama and that when the discovery panchnama is done in the presence of independent and respectable public witnesses and when the information given by the accused in form of disclosure statement results into discovering something which is relatable with the information, it is sufficient, hence not carrying out search loses its importance. (d) The submission of the witness being stock panch witness does not stand proved as there is nothing on record by which it can be believed that the witness is a stock panch witness or is a police tout or was obliged by the police who was required to please police. The panchnama itself is not a substantial evidence, but the panchas are. In the present case, the panchnama Exh. 669 has been proved by proper, necessary and satisfactory evidence of
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the independent panch witness. It is nobody's case that the panch witness was in any way an interested witness or even the police officer in whose presence the panchnama proceedings have been carried out viz. PW 162 has any kind of animus or mala fide to falsely book A-4. There is absolutely nothing on record to believe that the witness was under control or influence of the police and was a police agent. Merely because he has been taken as panch witness in another panchnama as well, it cannot be believed that he is a police tout. The witness has not at all made any attempt to hide that he is panch witness in another case as well which is self speaking. If the substantial evidence of this panch witness is read with the contents of discovery panchnama at Exh. 669 and if the oral evidence of the then I.O. viz. PW 162 is read along with the other material, it becomes the panchnama which is worthy to be believed and that there is no material to disbelieve the panch witness. (e) In the light of settled legal position, the discovery panchnama when is satisfying the requisites of Section 27 of the Indian Evidence Act, the said can also be held to have been proved through the oral evidence of the police officer if the said is found to be truthful and trustworthy. In the instant case, PW 162 has been examined who in his detailed oral evidence at paragraph 16 has corroborated the fact of discovery panchnama Exh. 669 who has even identified muddamal article No. 57 to 60 being weapons, cartridges and waist belt. No substantial challenge has been made qua the panchnama Exh. 669 during the course of the cross-examination
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as can be seen from paragraph 49 of the cross-examination. The witness has denied the suggestion to have concocted the place of discovery of the weapon and that no such discovery has been made. The use of the same panch in two different panchnamas was also the subject matter of the cross, but then as discussed earlier, there is absolutely no material to disbelieve the panch witness and the police officer. Further in light of the contents of the panchnama Exh. 669, it emerges clearly on record that the accused has told his name and address before the panchas, he has also communicated to panchas that he voluntarily wanted to show the place where he has hidden the incriminating muddamal, then A-4 has shown the said muddamal, hence the link required for Section 27 of the Indian Evidence Act has been completed. (f) The fact of drawing panchnama cannot be doubted just because the panchas have themselves not written the same because that merely would not falsify the contents of the panchnama. The description of the panchnama also tallies with the description of the muddamal list more particularly muddamal article No. 58 to 60, muddamal article No. 60 is the waist belt of the military uniform where there are pockets inside to keep two revolvers, the place where the incriminating muddamal was hidden is obviously within the special knowledge of A-4 and there is no reason on record to believe that the police was knowing prior to the discovery of the fact of the place where the muddamal articles were hidden by the A-4. The signatures of both the panchas at the end of the preliminary panchnama and then on each of the pages and on the panch slips, etc. is standing in strong support of the genuineness and propriety of the contents and procedure of the panchnama which has been duly proved by the oral evidence of the panch witness himself and which is even been presumed to be proper by
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the Indian Evidence Act. Thus, in light of the above discussion, the panchnama Exh. 669 is hereby held to be properly and legally drawn at the instance of the accused where upon information by the A-4 the discovery was made and the muddamal articles were discovered at the instance of the accused. (g) The important test is whether by any means the independence of the panch witness seems to be doubtful or not and it is not important that whether he has become panch witness in another panchnama also. Here it is an admitted position that the witness has become panch in two of the panchnamas, but the present panchnama is dated 12/4/2003 and the another panchnama is dated 21/11/2003. Now the possibility of availability of the same person again to the police when they were searching for public witnesses cannot be absolutely ruled out. Hence this submission is not found to be forceful to disbelieve this panch witness. Moreover, what is most important to be noted is Exh. 669 panchnama under discussion herein was drawn before PW 162 whereas another panchnama Exh. 734 was before PW 199. It is therefore but natural that this assignee officer might not be knowing about the fact of the witness being panch witness in another panchnama. Hence, his denial seems to be genuine. FINDING : This panchnama is admissible and links A-4 with the crime.
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(11) PANCHNAMA EXH. 1473 : (a) To prove this discovery panchnama wherein A-25 has discovered the fact of the place where the revolver and cartridge at his residence were concealed. (b) PW 27 the panch witness No. 1 has been examined by the prosecution. PW 27 has deposed that on 13/5/2003 at about 4.30 p.m. while he was going from the Crime Branch office, he was called upon as panch witness. The papers in which he has signed were the papers of having caught the revolver. (c) The witness has been declared to be hostile who has however admitted his signature in panchnama Exh. 1473 and panch slip Exh. 725. During the course of the cross-examination, the witness has agreed to the suggestion that he has remained panch witness for two times. (d) The testimony of this witness has been objected to by the defence on the ground that the witness is a stock panch witness and has remained witness in three of the charge-sheets which has been annexed along with the special reply in response to the questions in Further Statement. (e) While the cross-examination the witness has denied the suggestion to be panch witness for many times, he has stated to have become panch witness twice. When the defence is having a specific case the witness to be stock witness and when the defence has collected the said documents, the said fact and the documents should be put up to the witness in specific. For not so doing, the defence version cannot be believed. This Court is of the
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opinion that the allegation of the panch witness to be a stock panch witness is not finding favour of this Court for the reason that had it been so and had he been influenced or benefited by the police, he would not have become a hostile witness but would have proved the prosecution case with the loyalty, but the witness did not do so. Hence, the witness cannot be held to be a stock panch witness from his conduct of shifting his loyalty. Vide Exh. 2040 in special reply in Further Statement, a chargesheet of First C.R. No. 302/04 of Shaherkotda Police Station of Prohibition Case of the year 2005 and First C.R. No. 163/06 have been placed by the defence on record. But the address of the said person in all the three is shown as Jalampuri-ni Chali. In the oral evidence, L.A. for the defence has not put up the case by crossexamining the witness that his address is Jalampuri-ni Chali. Moreover, there is no material to hold that this witness is a stooge in the hands of Crime Branch and is the one who resides at Jalampuri-ni Chali. This Court firmly believes that there is absolutely no material in support of the submission by L.A. for the defence that this witness is a stock panch witness. (f) It is true that the prosecution could have examined another panch witness, but then in light of the settled legal position, the discovery panchnama if satisfies the soul of this Court can also be proved by the oral evidence of the assignee officer, non-examination of another panch witness is not fatal to the prosecution case. (g) The argument that the witness is not of the locality of A-25 does not get favour of this Court for the reason that even the hostile PW 27 has himself said that he was taken by the police as panch witness while he was passing from the Crime Branch. This would
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mean that it has not so happened that the officer has reached the locality of the residence of A-25 and then found a public witness of another locality and did not make attempt to find out the panch witness of the same locality. (h) PW 180 is the assignee officer in whose presence the panchnama has been drawn. This witness in his oral evidence at paragraph 4 has supported the date, time, receipt of Yadi Exh. 1472 to draw the panchnama, A-25 was desirous to say something, etc. The witness has further deposed that he called upon two panch witnesses and since the A-25 was desirous to show something, primary panchnama has been prepared which was signed by the panchas and the officer. All of them travelled as per the route shown by A-25 in Government vehicle and they had been to Prabhu Park Society at the residence of A-25 which was Bungalow No. 9/A. From the room on back side of the ground floor, the accused took out one plastic bag wherein revolver and 6 cartridges were found. A detailed panchnama Exh. 1473 was drawn for the proceedings adopted and the electric bill and telephone bills were recovered as proof to have gone to the said bungalow. The electric bill was on the name of Haji Gulam Husain and the telephone bill was on the name of Shaikh Ahmed Husain. Muddamal article No. 90 the revolver and 6 cartridges, Exh. 729 the slip, muddamal article No. 91 the two bills exhibited as Exh. 1474 have been identified by the witness, A-25 was also identified by the witness, the report to hand over the muddamal has also been proved as Exh. 1471/1. This witness was cross-examined wherein no substantial
challenge has been offered except the suggestion of the panch witnesses to be police touts, the panchas were of Saraspur area,
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the RTO number of the vehicle and the name of the driver are not known to the witness, the entry in the log book has been made, the topography of the house of A-25, the neighbouring people were called but have not responded, the report to the Magistrate has not been sent and muddamal pavti from Ellisbridge Police Station was not obtained, fingerprint expert was not kept together, the photograph of revolver or cartridges was not taken, the accused was in illegal custody from 11/5/2003 and that this witness has no right to draw the panchnama. In the humble opinion of this Court, all such suggestions in the cross-examination which are not for any mandatory violation or of substantial lapse do not take away very positive and satisfactory evidence of this witness from the record of the case. The panch witness cannot be held to be a stock panch witness, but for the known reason, it seems that the panch witness was won over. No information has been elicited from this witness to create reasonable doubt against the oral evidence of this witness and thereby this witness has validly proved panchnama at Exh. 1473, the right of the witness to draw the panchnama has been upheld and has been discussed in another part of this judgment. Not keeping fingerprint expert or not taking photograph cannot be held to be fatal. The concerned Magistrate as can be seen from the papers of the Court of learned Metropolitan Magistrate has been informed from time to time about the developments of the investigation and that even if formally the Yadi has admittedly not been sent to the learned Magistrate, this cannot be held to be an illegality as interest of the accused has not been prejudiced thereby. The fact that the panch witness was together with the I.O. from the beginning and a resident of the locality was not called for are not the reasons for which the whole proceedings of the
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panchnama can be vitiated. Ultimately the evidence on record to prove the panchnama should be taken on record. (i) Upon perusal of Exh. 1473 the panchnama, the procedure noted therein seems to have been adopted by PW 180 as even he has so deposed on oath. The preliminary panchnama has been drawn, the panchas and the concerned officer have signed. The disclosure statement has been clearly made by the accused No.25 mentioning therein that at his residence he has concealed one revolver and 6 cartridges which he would like voluntarily to show. After the preliminary panchnama, at the residence of A-25, he has shown a plastic bag from where one revolver and 6 cartridges were found in presence of the panch witness. Thus, A-25 himself has shown the incriminating muddamal. Till the date, neither any permit nor any licence for the said revolver has been produced on record. It is therefore clear that when the incriminating revolver was available from the residence of A-25, it was in his conscious possession without any licence or permit. There is no justification offered by A-25 for possessing the weapon. The two bills have also been recovered which are on record at Exh. 1474 which both are having address from where the discovery was made. This Exh. 1474 three documentary evidences are all signed by the panch witness and PW 180 which are also corroborating the contents of the panchnama. The muddamal list also tallies with the contents of the panchnama. FINDING : This Court firmly believes that the panchnama Exh. 1473 has been properly, duly and lawfully proved by the prosecution which is a creditworthy and admissible document.
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(12) PANCHNAMA EXH. 657 : (a) This is the panchnama of the search of the house of A-2 wherefrom certain muddamal have been recovered by the investigating agency. (b) PW 11 is the panch witness No. 1 of the panchnama who has proved the date, time, place and the muddamal article recovered and properly drawing of the panchnama Exh. 657. During the course of the cross-examination, the witness has stated that he did not know 3 to 4 policemen at that time who called the witness to act as a panch, the witness did not remember the direction of the flat, how many stair-cases the witness climbed up, etc. which according to this Court is hardly of any consequence. The witness has stated Sunrise Flats to be a four-storeyed building having 3 to 4 flats on each floor, the policemen were investigating whereas the witness was sitting there, the muddamal article shown to the witness was recovered for which a writing was made on the plain paper, the panchnama was taken down by a policeman, the search of the panch witness before entering the flat was not carried out, the witness is working in a communication company and his working hours were from 9.30 a.m. to 6.30 p.m. and the witness used to reach home by 8.00 p.m. (c) This Court is of the opinion that this witness is inspiring confidence, sounds to be witness of truth from whom no material has been elicited to doubt his version, the timings of his job though been stated to be from 9.30 a.m. to 6.30 p.m., but merely that
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does not mean that on the date of panchnama also, he was on his job. Appreciating the deposition as a whole, this Court firmly opines that the witness has duly proved the panchnama Exh. 657 to be genuine and correct. (d) PW 39 is the assignee officer before whom the panchnama has been drawn who too has corroborated the contents of the panchnama. (e) Upon perusal of the panchnama, it seems that it has been duly drawn as has been proved by the panch witness and the assignee officer. This panchnama being the panchnama of the house of A2, there is all description of the household, the panchnama has been signed on each page by both the panch witnesses and the police officer. From the panchnama Exh. 657, the following points need note : (i) The panchnama has been prepared in presence of mother of A-2 who has identified the photograph on the passport to be of A-2. (ii) Telephone number at that time at the residence of A-2 was 6820917. (iii) The muddamal article No. 50 is the telephone notebook and muddamal article No. 51 is the small diary of the telephone numbers. Upon perusal of muddamal article No. 51, it becomes clear that in the said diary, the telephone numbers of Karachi, number of U.K., Mumbai, Saudi Arabia, Madina, Dubai, etc. along with different addresses have been written which is showing the contacts of A-2.
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(iv)
Muddamal article No. 52 the ration card has been perused wherein the name of A-2 and family members are written, the address is of Panchkuva, Kalupur and thenafter of Juhapura. This is showing root of A-2 at Panchkuva, Kalupur.
(v)
Muddamal article No. 53 is a small telephone pocket diary wherein e-mail Id of Hotmail and Yahoo at least five in number seem to have been created in the year 2003. In the said diary, different numbers other than that of State of Gujarat can be seen. Vide this diary, the activities of A-2 of creating numerous e-mail Id can be seen. It is quite usual for anyone to create e-mail Id, but the A-2 has not created on his name which is a circumstance.
(vi)
Muddamal article No. 54 is the original passport wherein issuance of visa for Saudi Arabia can be seen to have been stamped. There is even entry of A-2 to have visited Saudi Arabia which is in usual course not notable but the circumstance in this case requires it ot be noted. FINDING : The panchnama is admissible.
(13) PANCHNAMA EXH. 463 : (a) PW 2 is the panch No. 1 who has proved the panchnama to be correct and genuine for which no cross has been done. (b) This is the panchnama of the absconding accused Sohailkhan (brother of A-24). While searching his house, the house search seems to have been made in presence of maternal uncle and mother of the absconding accused Sohailkhan. The panchnama is
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duly signed on each page by both the panch witnesses and by the assignee officer PW 39. (c) Vide this panchnama, muddamal article No. 47 the Municipal bill, muddamal article No. 48, muddamal article No. 49 the rationing card etc. have been formally proved and brought on record vide Exh. 464, 465 and 466 respectively. The panchnama Exh. 463 is held to have been duly proved by the prosecution. This accused is one of the key conspirator whose I.D. and driving licence on different names have been produced by PW-95. FINDING : The address of absconding accused Sohailkhan is Block No. 105/522, Gujarat Housing Board, Bapunagar and as the telephone bill of his house dated 6/3/2003 as muddamal article No. 48 at Exh. 465 suggests, his telephone number was 2747420. The panchnama has been held to have been duly proved by the prosecution. (14) PANCHNAMA EXH. 696 : (a) (b) This is the discovery panchnama from residence of A-2. PW 21 is panch No. 1 of this panchnama. This witness has deposed that on 10/4/2003 at about 12.00 noon, he was called upon as panch firstly at Gayakwad Haveli Police Station and then taken at Juhapura Road. At the Crime Branch Police Station, there were policemen and other two persons, the witness has consented to be panch who was informed that they are to go for the panchnama for A-2, they have started from Crime Branch along with A-2 towards Juhapura Road in two vehicles, the
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vehicles were stopped near one
flat near the gate of the
compound wall, A-2 after removing certain stones has taken out one plastic bag containing revolver and cartridge, the revolver has 6 compartments whereas cartridges were 12 to 13 in number, muddamal article No. 55 revolver and muddamal article No. 56 respectively revolver and cartridges have been identified as those which were recovered from the site at the behest of A-2, the signatures in panch slips and panchnama have been duly proved by the witness. This witness was cross-examined by the defence. The witness has been specifically asked that the muddamal article No. 56 shown to the witness is the box of cartridge and that the plastic bag from which weapon and cartridges were available was of white colour and it was not of rose colour. Below the question, there is a note that from the muddamal article No. 55 a rose coloured plastic bag and from muddamal article No. 56, a white coloured plastic bag are found wherein there are slips as well. (c) Here, it needs a special note that in the panchnama, the colour of the plastic bag has not been mentioned, it is only mentioned as transparent plastic bag. Even in examination-in-chief, the colour of the plastic bag has not been deposed and even according to note, in muddamal article No. 56, white bag has been shown. This all would cumulatively mean that the witness is very truthful and reliable witness and neither in panchnama nor in oral evidence any colour of plastic bag is mentioned, hence it is not discrepancy at all. (d) The witness has been further cross-examined wherein he states that A-2 was in his vehicle along with some police officers, the
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witness has expressed his inability in telling the names of the persons accompanying him and knowing the police officers and officials whose names have been mentioned. The witness admits that he has not dictated the names in the panchnama (not relevant indeed). The witness has also admitted that the house where they had been was on the right side of the road and that the proceedings of the panchnama were made at the entrance of the flats, thenafter the witness has denied of he having not gone to Juhapura, the revolver and cartridges were not taken out by A-2 and that the witness has merely signed on the readymade panchnama which denial clearly give strength to the prosecution case. In paragraph 13, PW 162 has also corroborated the contents of the panchnama and the procedures to have been properly carried out in this discovery panchnama upon the work having been assigned to him. (e) The police officer PW-162 has been assailed in the crossexamination on the aspect of having not taken fingerprint expert or photograph though fingerprint evidence is important evidence and though there is arrangement in the Crime Branch to take fingerprint and photography where date and time would also come, the allegation that the assignee officer wanted to do a false panchnama, therefore, he has not done so and has not taken signature of the accused in the panchnama and issued the seizure memo. It has been denied that A-2 has not taken out and produced any weapons and the panchnama was prepared at Gayakwad Haveli Police Station where the signatures of panchas were taken. (f) Firstly, PW 162 is an assignee officer and is clearly not interested witness, in fact he is not concerned with the investigation but has
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carried out only the assigned work. The seizure memo can be issued to the accused on his request u/s 165(5) of Cr.P.C., but such a request has not been made by A-2. Not taking fingerprint expert or photography or not issuing seizure memo cannot be held to be in any way prejudicial to the interest of the accused and are at the most irregularities. (g) The panch witness PW 21 is the witness of truth, he has proved the discovery panchnama to the satisfaction of this Court, he has proved the incriminating material to have been recovered when A2 has taken out the same by unearthing it from where it was hidden by A-2. This special knowledge possessed by A-2 has been clearly deposed by the panch witness which conduct of the accused is covered by Section 8 of the Indian Evidence Act. The defence has not brought any material on record to draw adverse inference against the prosecution which can be termed to be clearly supporting the defence. There is absolutely no material to disbelieve the panch witness who has thoroughly proved the discovery panchnama Exh. 696. What is important is A-2 was in custody and in presence of the public witness, he discovered the fact which otherwise was not in knowledge of the investigating agency. (h) Upon perusing the panchnama, it becomes clear that the panch witnesses were knowing that A-2 is in police custody and is desirous to reveal something relating to the offence and to show something relating to the offence. In presence of the panchas, A-2 told his name and address and A-2 has then stated before the panchas that he was willingly wanting to show the hidden incriminating muddamal (it is true that this sentence has not been deposed by the panch witness, but then it is suggestive of the fact
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that the panch witness is not giving parrot-like deposition or is not under the police influence or is not a man of police, the witness sounds to be very natural witness and hence is credible one. The sentence here or there in the oral evidence is hardly material when the subsequent conduct establishes the requisites of Section 27 of the Indian Evidence Act). The subsequent conduct of A-2 has been deposed by the panch witness of showing by removing the stones, the plastic bag containing incriminating muddamal. This conduct of the accused before the panchas is the most relevant and admissible piece of evidence which guides this Court that the discovery panchnama needs to be held as has been properly drawn and proved by the panch witness and by the assignee officer. The other contents in the panchnama can be found in the deposition of the panch witness corroborated by the oral evidence of the assignee officer. It is the accused who leads the whole team, who is showing the route and who is stopping the vehicle at a particular place, this is showing his special knowledge and a conduct provided in Section 8 of the Indian Evidence Act. Outside Sunrise Flats, near the compound wall, the accused has removed stones, brick pieces by his hand and from the unused dormant pit after removal of the stones, brick pieces, etc., the accused has taken out a transparent plastic bag wherein one countrymade revolver and 13 cartridges were found, the revolver was found to be in working condition which both were recovered at the instance of the accused. As has been further noted, on the Southern side of compound wall, Sunrise Flats has been situated whereas the place from which recovery was made is from the Northern side outside the compound wall, but adjoining to the compound wall near which there is a gate to enter into Sunrise Flats.
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(i)
At the end of the preliminary panchnama and at the end of the panchnama, signatures of both the panchas and the assignee officer have been made.
(j)
The submission of false involvement of A-2 and the submission of plantation of the revolver does not find any favour with this Court for the reason that had it been really planted, it would have been shown from the house of A-2 itself. In the instant case, the house search of A-2 had even taken place. In case of plantation, the revolver could have been planted when the house search was made and not in the fashion shown in the panchnama.
(k)
There is no reason to believe that the place was publicly accessible place as it was a dormant and unused pit and it is only A-2 who would possess special knowledge of having concealed the revolver at this place. It could have been told to be at the publicly accessible place had it been openly and unguardedly lying at the place, had it not been concealed in the pit, had it not been beneath the stones and brick pieces, the care of stones and brick pieces would make it unnoticeable for any person other than one who has concealed the same or the one who would find it by chance for any reason. In the light of the above discussion and for the discussion made at point No.1(e) hereinbefore for the first panchnama (as same was the submission of public place there), this Court is not inclined to accept the submission that since the discovery is from publicly accessible place, the said cannot be believed. It is true that a careful and cautious scrutiny is required by the Court in such cases which exercise this Court has already undergone.
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FINDING : In light of the above discussion, the panchnama Exh. 696 is held to be admissible and have been duly proved by the substantial evidence of the concerned witnesses which involves A-2 in the charged crime. (15) PANCHNAMA EXH. 1490 : (a) This panchnama has been tried to be proved by PW 126, the panch No. 1. This witness has stated that he was called on 21/11/2004 and has signed in the panchnama. In his presence, no amount has been produced by anyone. In the confrontation by the prosecution or from other oral evidence, no material has been brought to hold that the panchnama and the recovery of Rs.5,000/- from PW 147 has been proved. (b) PW 147 is the person shown in the panchnama who has deposited Rs.5,000/- given to him by L.A. Mr. Mohammadali Shaikh on say of A-50 as compensation and to not create any problem. This payment was as stated in the panchnama at the instance of Don Sharifkhan which was recovered by the investigating agency from PW 147. If the deposition of this PW147 is perused, this witness has been declared to be hostile witness. This witness has resciled from his earlier version before police and he states to have not given any statement u/s 164 of Cr.P.C. before the Magistrate and has only signed the said statement at Exh. 1538. This statement has been discussed at relevant part of the judgment. With reference to Rs.5,000/-, there is a mention that the said amount was recovered in presence of panchas which the witness denies to be true and denies to have been stated by him before the investigating agency.
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(c)
In the light of the oral evidence of PW 147 and PW 126 panch, the panchnama cannot be held to have been proved as in the panchnama the transaction has parties like A-50, absconding Sharifkhan, PW-147, learned Advocate Mr. Shaikh as one to have paid to PW-147 but PW-147 denies, no statement under Section 164 of Cr.P.C. or under Section 32 of POTA of A-50 or learned Advocate Mr. Shaikh has been obtained and the transaction virtually remains between PW-147 and learned Advocate Mr. Shaikh which is not getting proved, hence the reasonable doubt.
(d)
The oral evidence of PW 180 at paragraph 20 shows the panchnama to have been proved by the investigating agency, but the contents of the panchnama are firstly not proved by the panch witness who is hostile and secondly, the contents of the panchnama of depositing Rs.5,000/- by PW 147 has been flatly denied by PW 147 to be true. Hence, the panchnama cannot be said to have been proved by the prosecution beyond reasonable doubt. It needs to be noted that in the light of the denial in paragraph 9 of the oral evidence of PW 147, it is very much doubtful as to Rs.5,000/- were ever recovered from PW 147 or not. This is not the panchnama where information by the accused has been proved by resultant discovery, hence it is not safe to believe the panchnama. FINDING : Hence, the panchnama Exh. 1490 is held not to have been proved beyond reasonable doubt by the prosecution.
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(16) PANCHNAMA EXH. 803 : The panchnama Exh. 803 read with oral evidence of PW 43 seems to be a panchnama related to A-11 against whom the proceedings have been dropped. Hence, the panchnama at this stage need not to be discussed as A-11 is not being tried before this Court. (17) PANCHNAMA EXH. 622 : (a) This is the panchnama of the house search of A-3. PW 3 has been examined as panch No. 2 of the panchnama. This witness has deposed that on 5/4/2003 at about 5.30 p.m. he was called by the Crime Branch as panch as one house was to be searched. At that house, inquiry of presence of some person was made, but that person was not present in the house, his father was present. No objectionable muddamal was recovered at that time and that the witness was standing outside the house, the signature on the panchnama has been identified by the witness along with the signature of another panch. This witness has been declared hostile. During the confrontation by the learned Special P.P., the witness has stated that he has read some part of the panchnama. From the house, a few papers, one hard bound notebook were recovered, the witness clarifies that he did not know what was the writeup in the said note, a telephone diary wherein telephone numbers were written was available from the said house, the witness adds that he would be in a position to identify the muddamal if he would be shown the same. The witness further adds that after reading the panchnama, he states that the contents of the panchnama are true which was
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thus exhibited as Exh. 622. This witness was cross-examined by the defence. The witness admits that he was called upon as a panch near Zakaria Masjid. While marching from Zakaria Masjid and while going ahead, Kalupur Police Station would come and on the left hand, Mamu Nayak Pole would come. The police has informed him that they were to go at Navi Mohlat area, they had been to Navi Mohlat area, along with the panchas there were 4 police personnel, the house to be searched was shown by the police, the police entered the house and he stood outside, the another panch witness Kamleshbhai was also standing outside, after coming out, the police told them that no incriminating material was found and the police has shown papers after coming out from the house, after drawing the panchnama the police went away and police has prepared a list of the papers recovered. The witness denies to have signed in the readymade panchnama. In the re-examination, muddamal article No. 33 to 36 were shown to the witness which the witness has admitted to have been recovered from the house where they had been. Thenafter the defence did not cross examine the witness. (b) In the humble opinion of this Court, after the re-examination, since the cross-examination was not done, the vital contents clearly showing genuineness of the contents of the panchnama have remained uncontroverted and unchallenged. The said are therefore deemed to have been admitted by the accused. Thus, it is clear that muddamal article No. 33 to 36 are deemed to have been admitted by A-3.
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Moreover, though the witness has been declared to be hostile, but virtually speaking, this witness has thoroughly proved the panchnama Exh. 622 as it is clear that he was called as a panch witness, there was presence of another panch witness, they physically had been to site, muddamal article No. 33 to 36 were recovered in the presence of the father of A-3, the witness states on oath the contents of the panchnama to be true after reading the panchnama, the information elicited of the panch to have been standing outside loses significance when the panch witness himself identifies all the muddamal articles. In light of the settled legal position, the totality of the oral evidence should be seen. In light of the overall testimony it seems that the witness had some confusion in his examination-in-chief about the muddamal shown to him by the police officer can be stated to be something incriminating or not which has been reflected in his testimony otherwise had he been really disloyal to the prosecution he would not have then identified the muddamal in re-examination. This Court is of the humble opinion that the panchnama Exh. 622 has been validly proved by the panch witness. The date, time and place mentioned by the witness tally with contents and identification of muddamal which is inspiring the confidence of the Court. As submitted by learned Special P.P., the assignee officer in whose presence the panchnama was drawn was Mr. Chauhan who had passed away. This submission is totally proved by the oral evidence of the then I.O. PW-162 Shri Waghela, who has assigned the job of house search of A-3 to Shri Chauhan through Yadi and has received the compliance report from late Mr. Chauhan thereof.
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(c)
In the cross of the panch witness itself, it reveals that the panchnama was drawn at the site which adds to the reliability of the panchnama and is focussing propriety of the procedure.
(d)
If the panchnama is perused, it becomes clear that Mr. Abdulwahid was present at the house searched who states that A3 is his son. The muddamal have been recovered from this house. Muddamal article No. 33 is a notebook. Upon perusal of the same and more particularly reading page No. 5 to 8, it becomes clear that the writeup is dated 17/1/2002 titled as One terrorist speaks. In this writeup the names of terrorist organisations like Jaish-EMohammad, Lashkar-E-Toiba etc. can be read. It is further noted that these terrorist organisations impart training to hundreds of their followers in the camps above the border for shooting, bomb blast, rocket launcher, wireless and radio set etc. were the culture of crusade (Jehad) is being percolated. It is further written that after obtaining a very powerful training they entered the boundaries of India and then are spreading terror in Srinagar, Delhi, Mumbai, Ahmedabad etc. In our dictionary there is no word like mercy or humanity, we have a target of Government office, police station, army camp, airport, TV centre, etc. On page 7, there is a writeup under the head of Aakrosh where it is written that some of the followers of our organisations have attacked on World Trade Centre at New York in America. On page 8 under the heading of Hizbul Mujahuddin, there is mention of attack on Red Fort, Taj Mahal etc. and the only alternative is martyrship.
(e)
Muddamal article No. 34 is a telephone diary wherein on page No. 4 bava sahab ke wahan par murid bana hun uski tarik 4/10/2001 hai. In this diary, the mobile number of A-7 to be 9824272955 has
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been written, the number of A-4 as 2138082 has been written, on page 22 the telephone number of absconding accused Sufiyan has been written which is 5320786. (f) Muddamal article No. 35 are 22 STD phone bills which are respectively dated 4/3/2001, 26/3/2001, 27/3/2001, 28/3/2001, 4/2/2002, 5/2/2002, 6/2/2002 etc. and the numbers therein are of Bombay, Jammu, Baroda, Surat, North Gujarat, Tamil Nadu, Varansi, New Delhi, UAE etc. In the humble opinion of this Court, the contents of the panchnama, the oral evidence of the panch witness, oral evidence of PW-162, Yadi to and the report assignee officer late Shri Chauhan, the proved documents by him and perusal of 4 muddamal articles literature clearly connect A-3 with the charged offences. FINDING : The panchnama is held to have been validly proved and is admissible. (18) PANCHNAMA EXH. 637 : (a) (b) This is the panchnama of the search of the house of A-21. PW 4 has been examined as panch No. 1 of the panchnama. This panch witness has deposed that on 5/4/2003, he was called upon by police, he was asked to be panch witness for the search of the house, the search of one house in Navi Maholat was carried out where one old lady was present wherein certain papers of the bank, papers from the suit case etc. were seized, the another
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panch and the witness have signed the panchnama who were present, the panchnama is at Exh. 637 as has been proved by the witness. Muddamal article No. 37 to 46 and 46(A) to 46(M) were shown to the witness. Some of them the witness has remembered to have been seized and some of them the witness did not remember to have been seized (the panchnama is dated 5/4/2003 and deposition of the panch witness is dated 2/8/2007, hence for some of the articles if the witness did not remember, it gives an impression that the witness is natural and hence becomes more believable). This witness was cross-examined wherein the witness admits that on the date of the panchnama he was doing business of selling fruits, he was hawking at public place, he did not have licence of Municipality, he has paid fine in two of the memos for hawking on the road. The witness denies that to please the police, at times, he has to be panch, the witness further states that when he was told to be panch, there were two constables and one woman constable, the witness has not seen the house searched before the date, the witness did not see any police around the house. At the house, the witness, another panch and police along with woman constable have gone inside and until the panchnama was completed, all of them were present there, the panchnama took 2 to two and half hours, the witness further states that the police has not sealed anything but has seized the same thing, the witness has denied that suggestion that he did not go as panch and in his presence no house was searched and he has signed the readymade panchnama. (c) PW 162 has stated in his oral evidence that he has assigned the work of the search of the house of A-21 to late Shri A.A. Chauhan.
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Yadi of it and report of late Shri Chauhan are proved documents on record by the then I.O. (d) The panchnama has been drawn before late Shri A.A. Chauhan. If the panchnama is perused, it becomes clear that the panchnama was drawn in presence of mother of A-21 and while the panchnama was on, the elder brother of A-21 came in the house. During the course of the cross-examination, the panch witness stated that it took about 2 to two and half hours in the process of the panchnama and the panchnama shows the process to have taken about 3 hours. Thus, the contents of the panchnama during the course of the cross-examination are supported by the panch witness. This shows preference to the panch witness throughout. (i) The panchnama further reveals that A-21 was residing in the house which was searched. The mother of A-21 has introduced herself to be mother of A-21. The police has seized 430 FDRs with the stamp of Union Bank of India, Ahmedabad branch, about 2 Kg. of blank letter-heads of Manubhai Zaveri the Government Approved Valuer, about 350 blank receipts of Special Termed Deposit of State Bank of India, 8 blank letter-heads of M/s. R. M. Shah & Co., Chartered Accountants and about 12 letter-heads of D.N. Bhatt & Co., Chartered Accountants, 100 blank letter-heads of Gujarat Chamber of Commerce & Industries, computer statement of Bank of India, Bhadra for the period of 1/1/2002 to 31/5/2002 for one trading company the account number of which has been mentioned, computer statement of Patel Jayantibhai Bhagwanbhai from January 2000 to September 2000 of Union Bank of India, some photographs and paper cuttings of filmy heros and heroines, from one handbag different paper cuttings for the
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period of March 2003 containing photographs and writeup about the funeral and posthumous ceremonies of former Home Minister late Shri Haren Pandya, visiting card of A-21, the fixed deposit receipt of Union Bank of India with concocted signature and stamp, school leaving certificates, B.E. degree forms, 7 passbooks of saving account of S.B.I. and about 12 different passports. Moreover, blank cheque-book of Siddhi Cooperative Bank, Bombay Mercantile Bank, S.B.I. etc. (ii) It has been noted that while the panchnama was on, the elder brother also came in the house. (iii) It has been noted in the panchnama that all the above referred items were seized in presence of panch (It is notable here that the panch witness has stated in the cross-examination that no articles were sealed in presence of panch which is even not mentioned in the panchnama) which shows the truthfulness of this witness. (iv) In the opinion of this Court, this is the search carried out by the police in presence of public witnesses one of whom has been examined who has thoroughly supported the prosecution. (e) This Court firmly believes that the material seized from the residence of A-21 cannot be taken lightly as it does not speak of his lawful life and lawful activities. The Court is not required to assess every activity of the accused, but when A-21 is facing the charge of criminal conspiracy having been hatched with other coaccused of a very grave and serious nature with the allegation of terrorist activities and wherein the interest of the nation is at stake, the security and public tranquility is under great danger then it is needed to assess the activity of the accused. When the activities
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have been alleged to be searched which takes toll of numerous human lives of innocent persons and many properties, the articles seized have to be viewed from the angle as to whether this seizure do lead the Court to treat it as a very strong circumstance emerging against A-21 to have been whole heartedly and actively involved in the criminal conspiracy. A-21 has failed to put up any plausible explanation before this Court for collecting the press cuttings related to funeral ceremonies of late Shri Haren Pandya. Passports and other related literature lying at the residence of A21 is a circumstance showing that he is involved in facilitating people illegally going abroad. All the documentary evidences in form of articles seized unequivocally and conclusively lead the Court to hold that A-21 is involved in the charged offences and that except the said, nothing else is probable. He can safely be inferred to have been totally linked up with the charged offences. The seized articles reveal the conduct of A-21, it is from the residence of A-21 where he was residing at that point of time. The mother and brother present while drawing the panchnama did not say anything to think otherwise. (f) This Court firmly believes that the pre-arrest search panchnama qua A-21 has been validly, to the satisfaction of this Court and in a clinching manner has been proved by PW 4. Thus, panchnama Exh. 637 is held to be reliable and trustworthy piece of evidence which is providing a circumstance to hold that A-21 is involved in the criminal conspiracy having been hatched with other coaccused as in light of the settled position of law, direct evidence of the criminal conspiracy is seldom available and the Court has to rely upon the probabilities, circumstances, lawful inferences and presumption, if any, can be marshalled on the record which would lead to only one irresistible conclusion of proving the guilt of the
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accused. (g) As such, the assignee officer late Shri Chauhan had already passed away, but the then I.O. - PW 162 through his oral evidence has corroborated the contents of the panchnama and the oral evidence of the panch witness. During the course of the cross-examination of this witness at paragraph 35 onwards, the witness has been crossed on the aspect that the statement of the bank officer was not taken which the witness has denied. He has also been crossed on the aspect that the documents seized from the residence of A-21 have not been sent to FSL for its report for deciding the documents to be forged documents and no criminal case of foregery has been filed, lie detection test of A-21 has not been done, signature of A-21 in the panchnama has not been obtained and that the seizure memo has not been issued. In the opinion of this Court, all the cross-examination does not in any way shake the positive oral evidence of the panch witness who has thoroughly proved the panchnama. Moreover, A-21 has not given any justification for keeping such bundles of documents from which only one irresistible conclusion can be drawn about the unlawful activities of the A-21 directly connected with the charged offences or for keeping such press cuttings. The mother and brother of A-21 present at the panchnama have also not stated or have also not come out with the case that the material seized did not belong to A-21 nor that is the case in Further Statement or suggestion in cross. Even in the cross-examination, A-21 has not disowned all the seized documents. Hence reading all these things collectively, it is clear that the seized material was of A-21.
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FINDING : The panchnama is validly proved and is admissible which links A21 with the crime. (19) PANCHNAMA EXH. 702 : (a) This is the first panchnama in the case which is of chance search of A-1 to A-5 at Parimal Garden. (b) PW 22 is the panch witness of the panchnama Exh. 702 who was panch No. 2. This witness in his oral evidence has proved date, time, place, fact of having drawn preliminary panchnama, the fact of the accused indeed had been a panch, teams in two different vehicles went to Parimal Garden at the date and time mentioned in the panchnama, they all stood in watch for the accused, the confidential informer of the complainant P.I. - PW 154 was present who has identified A-1 to A-5, all the five came on three motorcycles, their personal search was carried out there and the witness has signed in the panch slip in the panchnama and muddamal articles were attached from A-1 to A-5 there, the muddamal article No. 1 to 15 have been identified by the witness to have attached at the relevant point of time. (i) This witness was cross-examined who has admitted that his occupation was driving and explained that when he was coming from his friend's house from Ambawadi and when he was passing through, he was stopped by the police at the main gate of Town Hall from where he joined the proceedings of the panchnama. The witness has further stated that he, another panch, the police officer Shri Barot and informer stood near Hanuman Temple at the
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gate of Parimal Garden. It has been further deposed that the accused were not known to the witness from the beginning whose names the witness has learnt at the time of preliminary panchnama, the witness has not seen any woman with the boys on motorcycle, the revolver seized from A-1 was with the police officer while the proceedings of the panchnama were going on and until a plastic container to keep the same was brought by the constable. (ii) Paragraph 12 of the cross-examination in fact proves the prosecution case about adoption of proper and lawful procedure while drawing the panchnama. The other information elicited during the cross-examination does not shake the confidence inspired in this Court while appreciating the oral evidence of this panch witness about his truthfulness. The witness has replied that he did not know as to after the seizure of muddamal what was done. This was the simplicitor search panchnama to search the accused and to ascertain their identity. There is nothing in the panchnama which creates any doubt. This panch witness is very natural witness. This witness has denied the suggestion that a lady was present in the Crime Branch and she was fiancy of A-4. This tallies with the earlier cross-examination at paragraph 10 of this witness where he has stated that there was no woman with the boys on motorcycles. (iii) As is clear from the oral evidence of the panch witness who is held to have validly proved the panchnama that the weapon and cartridges from A-1 were seized and from other accused other materials were seized. (iv) PW 154 vide his oral evidence at paragraph 2 and 3 has
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satisfactorily corroborated the panch witness PW 22. In the cross-examination of this witness, beginning from paragraph 23, has stated that the information received from the I.B. Branch was not noted in any register to avoid leakage of the same which sounds to be quite logical. The witness has admitted that during the personal search of the accused, evidence like fingerprint, footprint, tyreprint, position of the motorcycle, condition of the motorcycle, explanation of the keys of the motorcycle and mention of all this in the panchnama has not been done. The witness has clarified that he has not taken the signature of the accused in the panchnama but he adds that the copy of muddamal list seized from the accused was given to the accused. This Court does not find any material from the cross-examination to draw adverse inference against the prosecution, rather it becomes clear that the panchnama has been proved to have been properly drawn. Even at paragraph 44, the certified copy of the oral evidence of this witness in another case taken on record vide Exh. 1262 also does not suggest any inconsistency in the oral evidence of this witness. (c) The fact cannot go out of the notice that the seizure of the motorcycle in the year 2003 though is not showing its condition in the panchnama merely seems to be an irregularity, but still however, by passage of time, the motorcycle having remained unused, change in the atmosphere, consequences of transporting it to bring it to the Court as and when required are the factors which can damage the motorcycle, but that fact does not take away the satisfactory and creditworthy evidence of proving the panchnama on record. (d) On the plain perusal of Exh. 702 panchnama, it becomes clear that on each page the panch witnesses and PW 154 have signed,
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different muddamal articles seized from A-1 to A-5 have all been mentioned in great detail, after the preliminary panchnama, subsequent panchnama has been proved by the witness, from the personal search of A-1, a foreign made loaded pistol with magazine wherein 5 cartridges were noticed and the pistol was having a note of Made in China, found in working condition and the live cartridges have been attached from A-1 who was unable to produce any licence or permit for the same. From A-1, a driving licence with his name and photograph and his motorcycle have been seized. From A-2 a motorcycle, from A-3 a mobile phone in activated condition, one sim card of the brother of A-3, from A-4 a motorcycle, a mobile phone in activated condition, his driving licence and a telephone diary have been seized, from A-5 photograph of A-1 and A-4 and the visiting card of A-2 were found and were seized. In light of the above discussion what is emphasized in the cross-examination to have been not done is irregularity. It is important that what has been done by the investigating agency should be legal and proper and other things though if would have been done could be able to add more strength are of no consequence even if not done. (e) As held from the deposition of PW 22, this panchnama has been satisfactorily proved vide which from A-1 incriminating material of foreign made loaded gun and 15 cartridges without licence or permit has been found. In nutshell, the significance of this personal search-cum-seizure panchnama is that the identification of A-1 to A-5 has been validly proved, the recovery of weapon and cartridges from A-1 is a chance recovery, hence no chance of plantation, the genuineness of the panchnama can also be appreciated keeping in mind the
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fact that A-2 to a-5 have not been shown with any incriminating muddamal which is supporting the fact that A-1 has been indeed found with the incriminating muddamal as discussed. FINDING : The panchnama is held to have been validly proved and is admissible. (20 to 22) PANCHNAMA NO. 445, 446 AND 447 : These three panchnamas are respectively panchnamas of the search of the house of A-4, A-22 and A-1. (a) PW 1 is a panch witness in all the three panchnamas which all have been drawn at different times on 5/4/2003 before PW 162 the then I.O. PW 1 has proved date, time and place of the panchnama and the name of the accused where he had been along with the panch witness. All the three panchnamas have been validly proved by the panch witness with a description as to from whose house what was recovered. The panch witness has admitted his signature on the panch slips, on the panchnamas and he has also identified all the muddamal articles. (b) PW 162 vide paragraph 5 and 6 of the examination-in-chief has corroborated the version of PW 1. In paragraph 33 and 34 of the oral evidence of PW 162, cross-examination of this witness has been recorded wherefrom it is clear that though the witness has admitted that the three panchnamas have been written in the handwriting of the same constable, addresses of all the three accused were with the police when they have started for the panchnama, the statements of neighbours except in case of A-22
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have not been recorded, the photograph of the locked house was not taken, some of the muddamal articles were not incriminating but these suggestions in cross are related to the lapses which cannot be held to be substantial, hence the said does not shake in any manner the confidence inspiring version of PW 1 or of PW 162. During the course of the cross-examination, the topography of the houses of all the three accused has been confronted to PW 1, the witness has admitted that he does the repairing of the home appliances, he resides near Navi Maholat - the residences of some of the accused (but no animus of this witness against any of the accused is the case of the defence), while he was passing through Panchkuva Police Chowki, he was called by the police. The contention on the aspect of the way from which the witness was passing was confronted, the cousin of A-22 was called who was residing nearby since the house of A-22 was closed. The search warrant for the house of any of the three accused was not shown to the panch witness (the panch witness is the public witness to witness the panch proceedings, it is the right of the accused whose house was searched and neither duty nor right of the panch to see the search warrant), certain things have been admitted to have not been mentioned in the panchnama which merely shows irregularity. The overall impression is that this witness has thoroughly proved all the three panchnama and has established adoption of proper procedure of the panchnama. This witness has admitted that the resolution u/s 165 of Cr.P.C. before breaking open the lock of A-22 was not done which seems
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to be irregular affairs but since even from the closed house, nothing incriminating has been shown to have been seized the bonafide cannot be doubted. (c) This Court is of the opinion that the said panchnamas need to be held to have been proved as no conduct of the then I.O. shows any reasonable doubt or malice against the accused or any violation of mandatory provision of the procedure to be adopted. (d) Upon perusal of the muddamal from muddamal article No. 17 onwards, it seems that Exh. 455 the two muddamal articles are the number plate of the motorcycle and the red small diary, muddamal article No. 23 is Exh. 456 the telephone bill of Puthawala, muddamal article No. 17 is Exh. 454 a big diary, muddamal article No. 26 is Exh. 459 Municipal bill of Machiswala, muddamal article No. 27 is Exh. 460 Municipal bill of Machiswala, muddamal article No. 25 is Exh. 458, a ration card of Machswala, muddamal article No. 28 is Exh. 461 telephone diary, the other muddamal articles have not been exhibited. All these muddamal articles have been exhibited which show that the respective accused reside at the address mostly of Navi Mholat shown therein. In the telephone diary, the telephone numbers of the co-accused have been shown. These articles have even been identifed by PW 162. Much importance need not be attached to these muddamal articles as they were only showing that the respective accused are residing at the address at which search has been carried out and they are in contact with each other which emerges from the telephone diary.
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FINDING : All the three panchnamas are held to have been validly proved and are admissible. (23) PANCHNAMA EXH. 1723 : (a) This panchnama is the panchnama by which A-50 has shown the place where a weapon was concealed and from where he took out the weapon. If the panchnama is perused, then A-50 has shown readiness to show one place. In this panchnama, the confessional contents have been bracketed. If the panchnama is seen, in the preliminary panchnama, in inverted commas the confession of A50 has been written. The accused, as is clear from the panchnama, was in police custody and he took the panchas and the officer to show the place. Upon say of the accused, the vehicle was stopped which was Green Bungalow as was told by A-50 before the panchas. Below the stair-case, from a secured recess in the wall, closed by stopper, was opened by the accused. Then again the confessional version of the accused which has been bracketed. Thus, in at least two of the places, there are bracketed portions. The panchnama is based on the information given by the A-50 but as a consequence of information nothing incriminating was to be recovered or has been recovered. (b) PW 153 is the sole panch witness examined by the prosecution who has been declared hostile who however admits his signature at the end of preliminary panchnama and at the end of the panchnama. Hence, through this witness, no material is put forth by the prosecution towards proving the panchnama.
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(c)
PW 198 is the I.O. who through his deposition at paragraph 13 and 14 deposed for the panchnama. This witness in the beginning deposed the panchnama to be dated 23/11/2004 which is in fact dated 25/11/2004. However, later on the witness corrects the date of the panchnama in his deposition. Nowhere the witness speaks about other material in the panchnama except the propriety of the procedure and that A-50 to have shown the place. Thus, it is clear that vide this panchnama, the information given by A-50 in absence of resultant recovery of any muddamal becomes merely confession which is not proved by the panch witness. No use of confession before the I.O. Thus, this panchnama which even other than the bracketed portion seems to be confessional in nature since firstly not proved by the prosecution beyond reasonable doubt as the public witness is hostile as far as confessional part is concerned and even if the information in the panchnama is considered, the said is not getting proved as nothing is recovered thereby distinctly joining it to the fact disclosed.
(d)
Even if this panchnama is hold to be proved then also it is not helping the prosecution case to carry it a step forward as the place from where the A-50 has obtained the weapon is not fact in issue but his conscious possession is fact in issue which has been held to have been proved by another panchnama.
(e)
Thus, in the humble opinion of this Court, the panchnama neither satisfies the requisites of Section 27 of Indian Evidence Act nor the confession before I.O. can be held to have been proved and when the public witness has turned hostile, nothing remains.
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FINDING : This panchnama is hereby held to have not been proved beyond reasonable doubt by the prosecution and nothing stands proved by this panchnama. (24) PANCHNAMA EXH. 1120 : (a) This is the panchnama related to A-50. As per the contents of the panchnama, in presence of the panch witness, a witness named Purshottambhai Sajandas Multani PW-125 has identified the photograph of A-50 as the accused who has taken Rs.25,00,000/from the father of the said Purshottambhai on the threat of one Javedkhan, brother of known accused Sharifkhan. (b) To prove this panchnama, panch No. 1 has been examined as PW 121. If the deposition of PW 121 is seen, he has told about the process having been done in the panchnama, but this witness has specifically stated that 10 to 12 photographs were exhibited by the police and the witness does not remembered as to which one from among them was taken out by the PW-125. It has been further stated that the said Purshottambhai was his employer and that even on the date of the deposition he was unable to identify the accused whose photograph was picked up by his employer. (c) This witness has not been declared hostile. By this witness, the panchnama has been exhibited. From this evidence, though the panchnama has been exhibited, it is not not getting confirmed as to whose photograph was identified by PW-125. (d) PW 198 is the police witness who vide his deposition at paragraph 25 has given his oral evidence wherein he has stated that certain
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photographs including the photograph of A-50 were placed for identification, such other photographs were taken from his own office from Central Modus Operandi Bureau. While this deposition was being recorded, L.A. for A-50 has objected recording the oral evidence of the I.O. on the ground that the statement is before the police and the said is not admissible in evidence at which point of time upon giving the finding this Court has recorded the oral evidence subject to the decision at the final stage. (e) It is noteworthy that the panch witness has not proved the involvement of A-50 beyond reasonable doubt, secondly the panchnama does not have a mention as to which other photographs were placed, thirdly the oral evidence of said PW-125 Purshottambhai has been recorded wherein he has stated in terms that in his presence the men of Sharifkhan have not demanded Rs. 25,00,000/- from his father. Even if the abstract of his statement under Section 164 of Cr.P.C. us read as recorded in cross-examination he does not involve A-50, fourthly the panch No. 2 has not been examined and this panch witness has not been declared hostile, fifthly the photo sheet has not been attached with the panchnama or the signatures of the panchas have not been taken on the said photo sheets if any by which it can be shown that many other photographs were placed including which there was a photograph of A-50 as well and lastly the identification parade of A-50 could have been done which was in accordance with law. (f) In the light of all above and more particularly in absence of affixing photo sheets signed by the panchas along with the panchnama, it becomes matter of doubt whether the photograph of A-50 was shown or not or that along with the photograph of A-50 other
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photographs were shown to the PW-125 or not because the panch witness is not identifying A-50 to be one who was identified. In view of foregoing discussion there is a reasonable doubt about the photographs including the photograph of A-50 having been placed before the PW-125 and whether he has identified A-50, considering which this panchnama though exhibited since the panch witness has failed to identify A-50, the panchnama is unable to link A-50 with the crime or to create any incriminating circumstance against A-50. (25) PANCHNAMA EXH. 1118 : (a) This is the panchnama by which the mobile instrument being used by A-50 has been produced by the son of A-50 viz. Vasimi Mustaqali Saiyed. (b) PW 120 is the panch witness of this panchnama who was panch No. 1. If the oral evidence of this witness is seen, it clearly establishes that while the muddamal article - the mobile phone was produced, the panch witness was present and the proceedings of the panchnama were done in the presence of this witness. (c) PW 198 - the I.O. before whom the panchnama has been drawn has also supported the contents of the panchnama vide paragraph 50 of his oral evidence. (d) On the perusal of the panchnama, it emerges that the mobile phone produced by the son of A-50 was being used by A-50, but there is nothing incriminating in use of the mobile phone, secondly if the directory of the mobile phone is seen, then it contains the
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numbers of Abidbhai, Yusuf Memon, Darshan, Bhura and B.W., but none of these persons whose names with numbers have been saved in the directory of the mobile are in any way connected with the charged offences, they are not the co-accused of the case on the hand. Thus, though the panchnama stands proved, but it is not linking A-50 in any way with the crime because neither the use of the mobile phone is incriminating nor saving the numbers of five persons provide any link or any circumstance by which A-50 can be held to have been linked with the crime. FINDING : The panchnama is held to have been validly proved. (26) PANCHNAMA EXH. 1721 : (a) This is the discovery panchnama of A-50 by which A-50 produces two pistols and 50 cartridges before the panch witnesses. The first pistol of foreign made is having the writing therein as "Automatic pistol, Made in Italy" and another one is the pistol wherein "Made in England" is written. In the first pistol, it is also written that "only for Army supply", 50 live cartridges have also been discovered through this panchnama. A-50 has voluntarily made statement according to the panchnama, has taken the panch witness and the I.O. to his residence and has discovered and produced the two pistols and 50 cartridges and that to ascertain that such a discovery was made from the residence of A-50, his electric meter number has been written in the panchnama.
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(b)
PW 103 has been examined as panch witness. This witness has as such been declared hostile and he has not helped the prosecution case except that he has deposed that he has signed the panchnama and the two of the panch slips have been signed by him as a panch witness and that he was called upon at the Crime Branch on 23/11/2004.
(c)
PW 198 is the I.O. who in his oral evidence at paragraph 8 states that on 23/11/2004 at about 3.30 a.m. he has arrested A-50. This would mean that on 23/11/2004 A-50 was in the police custody which is the date of the panchnama Exh. 1721. The I.O. further deposed that during the interrogation of A-50, A-50 has voluntarily expressed his desire to take all away to his residence, the I.O. then called the panch witnesses and the preliminary panchnama was drawn, the mutual personal search was carried out by and between A-50 and panch witnesses, the address of A-50 having gone in the Government vehicle along with panch witness, A-50 has taken everyone to his residence address of E-10, Fifth Floor and has opened up his iron cupboard in the house and has brought out from there a heavy plastic bag, in the said plastic bag there was one pistol made in Italy, automatic, only for Army, wherein there was a magazine, there were 20 cartridges in the said bag which all were sealed, packed and were seized. The I.O. further adds that the electric meter reading of the electric meter of A-50 was noted, the panch witnesses have signed before the I.O. which is being identified by the I.O. The panchnama has then been exhibited as Exh. 1721. The witness has identified the muddamal of two foreign made pistols and 20 cartridges as were seized from the residence of A-50 by adopting the procedure noted in panchnama Exh. 1721, he has even identified the panch slips. The I.O. has identified A-50 in the Court.
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The I.O. in his oral evidence at paragraph 8 has specifically stated to have discovered two foreign made pistols and 20 cartridges from the residence of A-50. In the cross-examination at paragraph 89, this witness has been confronted on the aspect that whether there were any other officers with the I.O. or not and whether he has taken reply of the I.O. or not, at the said point whether A-50 was alone or there was some another person with him, whether the flat was open or not, but in reply to all the said questions, the witness has stated that he did not remember. The witness has admitted that he has not called any surrounding person of the locality, by giving the explanation that it was not required since he has taken panchas with him. The witness has admitted that no investigation was made as to the electric meter, of which meter reading has been noted, is on whose name, the witness has denied that the panchnama Exh. 1721 was made to falsely involve A-50. (d) In the humble opinion of this Court, in light of the settled legal position, only even by oral evidence of the I.O., the discovery panchnama can be believed when the information in form of disclosure is given by the accused is linked with discovering the fact and thereby producing the muddamal and when the oral evidence of I.O. is found convincing. In the instant case, according to panchnama, in presence of panch, A-50 has disclosed the information and the said information has been validly proved by discovering the place where the two pistols and cartridges were kept and that in presence of panchas, the said have been taken out and recovered. To establish the fact that the place from where discovery has been made is the residence of A-50, his meter
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reading has been noted down. Except the bare question in the cross-examination, nothing else has been shown which can doubt the contents of the panchnama. At least A-50 could be in the custody of the electric bill wherein his electric meter number is mentioned. Except the bare statement in form of suggestion, there is nothing on record by which the contents of the panchnama can be doubted. On the other hand, this part of the oral evidence of the I.O. seems to be satisfactory and convincing. Considering the said, this Court is of the opinion that the panch witness PW 103 seems to have been won over and that upon oral evidence of the I.O., the panchnama needs to be held to have been validly proved to which presumption u/s 114 of Indian Evidence Act provides the support and that admission of signatures in the panch slips as well as in the panchnama and presence of panch witness at the Crime Branch Police Station on the same day are also such factors which corroborates the contents of the panchnama, FINDING : It is held that the contents of the panchnama have been proved as discovery panchnama and that the information has been proved by seizing the 2 weapons and 20 cartridges at the behest of A-50. (27) PANCHNAMA EXH. 689 : (a) This is the discovery panchnama of A-8 drawn in presence of the police officers - PW 39 and PW 162. (b) To prove this panchnama PW 20 - the panch No. 1 has been examined by the prosecution. This witness has confirmed date, time and the fact that he was called upon as panch witness for the panchnama. This witness further adds that he was informed by the
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police that Mohammad Zahir - A-8 wishes to reveal something. A8 has given the address of his residence, the witness has consented to be panch witness, the preliminary panchnama was drawn where the witness has signed as a panch witness and both the officers have also signed before the panch witness. (c) The witness further adds that the place which A-8 wanted to show was informed by A-8 and in two different Government vehicles accused, panch witnesses and other police staff went to that place, the vehicle was stopped where A-8 told to stop, thenafter they have gone in one building where they have gone on the first floor, in the wall there was one stone recess, on that stone recess there was a steel jar, behind the steel jar one bag was kept which was taken out by A-8, from the said bag another bag was taken out and in that bag A-8 has shown one pistol, one revolver and 20 cartridges, muddamal article No. 78 to 81 have been identified by the witness, signature on the panch slips and the panchnama Exh. 689 have also been identified by the witness. This witness was cross-examined mainly on the aspect that the witness knows many persons having surname Kahar (this sounds to be very common because the witness himself is also Kahar), the witness admits that about 2 to 3 times he has given deposition as panch witness including in Sessions Case No. 214/05, the deposition of which was placed on record by the defence vide Exh. 619 and the panchnama thereof vide Exh. 692 has also been placed on record. It was admitted by the witness to have been there as a panch witness. The witness has been shown Exh. 639 wherein the witness has not accepted the signature shown to be signature of Shankarbhai Ishwarbhai Kahar to be his signature (which shows in Exh. 639 he was not a panch witness). All the
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members of Kahar community are professional panchas the witness used to go as and when police calls him are the suggestions of the defence denied by the witness. The witness has admitted that on the first floor in the house where they have gone, there were some persons (there is a mention in the panchnama itself that a person named Irshad was present in the house). The witness admits that the panchnama was being written by the writer and was dictated by the police officer. (This itself does not vitiate the panchnama), both the vehicles were searched before starting for the panchnama and that the witness has not seen any container in the vehicle. The witness has further admitted that he cannot remember all the facts when he goes as a panch. He has denied that he gave the deposition after reading the panchnama. The witness denies to have been knowing that Shankarbhai Ishwarbhai Kahar stays in Raikhad area or not. (This reply has no serious implication so as to doubt the testimony which is otherwise found truthful). The witness has denied he to be in the business of the liquor. The witness admits to have been panch witness in the year 2003. The witness also denies that P.I. of the Crime Branch Shri Tarun Barot, Shri Singhal and Shri Goswami know the witness very well and he used to sign the panchnama as and when told by them and used to show his wrong address of the residence. The questions in the cross-examination about the witness doing the business of liquor, is showing false addresses in different panchnamas and signs the panchnama upon the saying of the officers are all baseless allegations and that such baseless allegations cannot create a ground to disbelieve the oral evidence otherwise inspiring the confidence. It is important to know that no
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information has been elicited to show any benefit or obligation were conferred on the witness by the Crime Branch for signing in the panchnama until which it does not sound to be safe to act upon the mere allegation levelled by the defence. (d) In the humble opinion of this Court, the fact that in the year 2003 and then in the year 2005 and in this case in the year 2007 the witness has become a panch witness itself does not create any doubt. However, when such facts have been brought on record, careful scrutiny is required. This Court has therefore carefully scrutinized the oral evidence of the panch witness and that this Court does not find any reasonable doubt created against the oral evidence of this panch witness. (e) It needs to be borne in mind that in case of discovery panchnama, when the accused has given some information and such an information is getting proved by recovery of muddamal and that it distinctly relates with the facts disclosed, the Court can appreciate the panchnama even solely keepig in mind the oral evidence of the respective police officer. In the instant case, PW 39 and PW 162 have given their oral evidence supporting the contents of the panchnama and corroborating the version put forth by the panch witness. (f) PW 39 vide paragraph 4 has deposed in the tune of the contents of the panchnama and the propriety of the procedure in presence of the panchas. The panchnama Exh. 689 has been even proved by this witness. This witness was cross-examined by the defence. Paragraph 9 and 10 of his oral evidence are to be seen wherein the witness
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has stated about the presence of PW 162 who was his senior. The reason for taking this witness along by PW 162 has been given in the cross-examination that he was kept together by PW 162 as Dariapur is a very sensitive area. This witness has denied to have any dialogue with the panch witness and more particularly the dialogue on the aspect whether this witness has been a panch in past for the Crime Branch or not (According to this Court, this is not important. What is important is that by way of substantial evidence of this witness any reasonable doubt is created against the admissibility, relevancy and credibility of the panchnama Exh. 689). The formal denials of the witness are not required to be discussed. (g) PW 162 is the senior police officer who has also deposed vide his oral evidence at paragraph 20. All the details of the procedure adopted, the accused to have taken panchas and police officers to his residence, the accused having entered in his house and has taken out a plastic bag from the stone shelf (chhajli). (Forceful submission has been made that there is difference between the oral evidence of PW 20 and the oral evidence of this witness about the place from where discovery was made but in the humble opinion of this Court, there is absolutely no difference, only words are different. PW 20 has stated that in the wall a stone was fixed and this witness is telling the same thing. It has to be remembered that the way of communication, way of expression are bound to be different, but there should be consistency in the meaning and in the humble opinion of this Court there seems a very satisfactory consistency as far as the meaning is concerned, hence this submission has been found to be baseless), this witness in his detailed evidence has proved muddamal article Nos. 78 to 81 to have been discovered by A-8 from his own house, the procedure
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of the panch slips, the signature in the panchnama etc. have also been satisfactorily established by this witness. During the course of the cross-examination recorded at paragraph 58, this witness has been crossed on the aspect that whether PW 20 was asked had been panch before or not to which the witness has stated that he does not remember the same. This witness has also stated that it is not true that PW 20 is a panch of the panchnama Exh. 689 and that PW 20 is the panch witness of his choice and very frequently is being used. After the denial, the witness has not been further confronted on the aspect by show of the earlier oral evidence and/or earlier panchnama as was shown to PW 20. The witness admits that PW 39 was with him when this panchnama was drawn. Except denial, on no other count, this witness has been further cross-examined. (h) In the humble opinion of this Court, the police officers PW 162 and PW 39 are found to be very truthful witnesses and there is no material in their oral evidence to doubt their version. PW 20 though has been used as a panch at three different occasions as has emerged on record and as is an admitted position, this Court believes that if the oral evidence of PW 20 is carefully scrutinised and then is read with PW 162 and PW 39, this becomes a case wherein it can safely be held that panchnama Exh. 689 has been validly proved by the witnesses which can even be proved by convincing oral evidence of the police officers alone, and that there is nothing on record to doubt the contents of the panchnama in any manner. This panchnama is linking A-8 with the crime to an extent that he was found with weapons and cartridges without permit or licence.
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FINDING : The panchnama has been held to have validly proved and is admissible. (28) PANCHNAMA EXH. 690 : (a) As has been deposed by PW 20, the panch witness and PW 145 the assignee officer upon the assignment of the work, the assignee officer in company of the panch and the informant went at the site upon identifying by the informant, A-23 and A-24 were cordoned from whom no incriminating material was found. Since no incriminating material was found, this panchnama is as such of no significance, but however it has only been discussed to repeat on record that PW 20 is a panch witness of this panchnama as he was a panch witness of the panchnama Exh. 689. While deposing for this panchnama PW 20 has stated that no incriminating material was found from A-23 and A-24 whereas for the panchnama Exh. 689 he has stated that the incriminating material was found. This would mean that except that PW 20 has gone repeatedly to be panch witness, his deposition does not seem to be such which is meant to falsely link the accused wiith the crime. As has already been repeated in case of discovery panchnama, the very material aspect is to be seen by the Court is whether the information disclosed is getting proved by the recovery of the relevant muddamal which has happened in case of Exh. 689. Hence even if it is believed that this panch witness being a repeated panch witness needs to be carefully scrutinised, the deposition of the respective police officer being convincing read with the testimony of panch are held to be sufficient to prove the discovery panchnama Exh. 689.
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FINDING : The panchnama is admissible as has been proved validly. (29) PANCHNAMA EXH. 639 : (a) This is the panchnama of the recovery of the passport of A-34 received through courier. This passport is being produced by PSO Prahladsingh of DCB office in presence of the panch witness. (b) Panch witness PW 5 has not identified muddamal article No. 114 passport to be the same which was presented before him. (c) Upon perusal of muddamal article No. 114, it becomes clear that this is the passport of A-34 wherein it is shown that on nonemployment visa A-34 has travelled from Hyderabad to Saudi Arabia between 7/8/2002 to 21/8/2002. (d) According to prosecution case, A-34 had been to perform Umrah along with the most wanted absconding accused Rasulkhan Party. (e) In the humble opinion of this Court, the passport (muddamal article No.114) is revealing that he had on non-employment Visa travelled at Saudi Arabia from 7/8/2002 to 21/8/2002, but from that no inference permissible in law can be drawn that he was in company of said absconding accused Rasulkhan Party, hence the panchnama does not link A-34 with the absconding accused and there remains doubt about the prosecution case that A-34 and the most wanted accused Rasulkhan Party were together or were in contact or not.
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(f)
The PW-199 through his oral evidence proved the panchnama and the muddamal article No. 114 to be the same as produced but it is not relevant with the case, hence needs no further discussion. FINDING : Panchnama is not relevant.
(30) PANCHNAMA EXH. 641 : This is the panchnama of recovery of the passport of a dropped witness which is muddamal article No. 130. Though PW 6 as a panch witness has been examined, the passport is of the dropped witness who has not been examined, secondly from the passport nothing can be said to be proved. What stands proved is that the person concerned was out of the country, but that is not sufficient to establish the prosecution case, hence this panchnama has no significance or relevance with the prosecution case since the witness himself was a dropped witness and that the said witness has not been impleaded as accused in the case. FINDING : This panchnama has no relevance, hence needs no discussion. (31) PANCHNAMA EXH. 705 : (a) This is the panchnama for the procedure held by the I.O. - PW 199 to obtain specimen signature of A-1, A-2, A-3 and A-5 while they were in the jail. To establish this panchnama, PW 23 has been examined who was panch witness No. 1. This panch witness has validly proved the panchnama by explaining the procedure adopted in detail in presence of another panch, L.A. for the
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accused and other police officers. He has also proved Exh. 704 which are specimen signature sheets. (b) In the Further Statement A-2 has admitted the procedure to have been adopted whereas A-1 has stated that he does not know, A-3 and A-5 have stated the contents to be false. (c) Upon perusal of the cross-examination of this witness, there is nothing by which any doubt can be created against the procedure of the panchnama. (d) Further, PW 199 vide his oral evidence at paragraph 64 has also deposed on oath about the presence of L.A. Mr. I.D. Pathan for the accused, jail officers and he himself along with the panch witness while the panchnama Exh. 705 was drawn as per the procedure noted in the said panchnama. Exh. 704 has been stated to be the specimen signature obtained. FINDING : This panchnama Exh. 705 is therefore held to have been validly proved by the prosecution beyond reasonable doubt with Exh. 707, the specimen signature sheet. (32) PANCHNAMA EXH. 651 : (a) This is the panchnama of recovery of the register and bill book of Star Guest House at Kolkatta produced by PW 164, the Manager of said Star Guest House. (b) PW 9 has been examined as panch witness who is panch No. 2 of this panchnama. In the examination-in-chief, this witness has
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deposed the date, time and procedure of the panchnama and the contents to be true. He has admitted his signature as panch No. 2 and recovery of muddamal article No. 98 and 99 respectively register and the bill book of Star Guest House, Kolkata. During the course of cross-examination of this witness, this witness has admitted to have signed on the relevant page of muddamal article No. 99 and to have signed on the memo book (which makes no difference as that is not the relevant page). He has however admitted to have not signed on the first and last page of the memo book. The witness has denied that he has signed in the readymade panchnama and the register has not been recovered in his presence. (c) PW 199 is the I.O. in whose presence the panchnama has been drawn. This I.O. vide paragraph 62, 83 and 84 in his oral evidence has proved the contents of the panchnama, the muddamal article No. 98 and 99 to have been recovered by him and further he has also stated on oath that muddamal article No. 98 - exhibited as Exh. 1368 and muddamal article No. 99 - exhibited as Exh. 1369 the cash memo (Receipt) were recovered in his presence. As has been deposed by PW 199 and upon perusal of muddamal article No. 98, it becomes clear that on page 705, last entry dated 22/12/2002 shows that A-2 and A-5 have signed to have resided in the said hotel. Page No. 706 the first entry dated 22/12/2002 also reveals the signatures of A-1 and A-3 to have resided in the hotel. (d) Thus, from these muddamal entries, it becomes clear that A-1, A2, A-3 and A-5 have resided in Star Guest House, Kolkatta. Their specimen signatures taken are at Exh. 713 and 714.
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(e)
On perusal of the panchnama, the contents of the panchnama have been thoroughly proved while perusing the oral evidence of PW 164, PW 9, PW 199 and the respective entries Exh. 1368 in the register of Star Guest House and Exh. 1369 in the cash memo. In the panchnama, there is a mention that there are entries related to A-1, A-2, A-3 and A-5 showing that on 22/12/2002 at 6.20 they have checked-in the room No. 52 and 51and they have signed for the same, on 23/12/2002 they have shifted to room No. 1 and they have left Star Guest House on 28/12/2002. The receipt dated 28/12/2002 is of Rs.2,800/- on the name of A-5. The panchas have signed behind the receipt No. 2968 which has even been admitted in cross by PW 9 which is a receipt / cash memo which shows that A-1, A-2, A-3 and A-5 have stayed in Star Guest House at Kolkatta from 22/12/2002 to 28/12/2002. FINDING : The panchnama is held to have been validly and lawfully proved.
(33) PANCHNAMA EXH. 734 : (a) This is the panchnama of opening up a sealed bag which was sent by the FSL for certain lackings to be filled in and that in the presence of the panchas, the procedure to take out the register (Exh.1638), cover, school diary (Exh.722) etc. sent by the FSL for the fulfillment was held. (b) PW 30 is the panch witness No. 1 who has specifically stated in his examination-in-chief itself that there was a bag which was open up from which two registers (Star Guest House and of Amber Guest House) sent by laboratory were taken out. All these
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contentions are thoroughly tallying with the contents of the panchnama Exh. 734. During the course of the cross-examination, this witness has specified that he has signed on the papers and that he waited in the Crime Branch for about 25 to 30 minutes. (c) It has been submitted that this panch witness cannot be believed because he has stated that he has signed on the written paper, but the witness has been very specific for the period he waited at the Crime Branch. Had the witness signed only on the readymade papers, then it would not take more than two minutes, but the witness specifies that he had stayed there for about 30 minutes. The time for the panchnama is 19.00 hrs. to 19.30 hrs. which more goes with the interpretation that throughout the process, the witness was present which he has even told in his examination-inchief and the only meaning that can be attached is that the witness states that he has signed on the written paper (and not blank). Thus, PW 30 has proved the panchnama Exh. 734 to be valid and proper. (d) PW 199 vide his oral evidence at paragraph 77 has also stated about the procedure of this panchnama which corroborates the panch witness. FINDING : The panchnama is held to have been validly proved and admissible.
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(34) PANCHNAMA EXH. 714 : (a) This is the panchnama of the procedure of taking the specimen signature from the Central Jail, Sabarmati, Ahmedabad of A-1, A2, A-3 and A-5 in presence of the panch witness. (b) PW 23 vide another panchnama has proved that on 5/8/2003 the specimen signatures of A-1, A-2, A-3 and A-5 were taken. This is second time when the specimen signatures were since needed by the I.O., the same were taken. (c) PW 25 is the panch No. 1 of the panchnama. This witness has deposed on the aspect of date, time and place of the panchnama which tally with the panchnama. He has also stated about the purpose of the panchnama and the names of accused from whom the signatures were obtained. The muddamal article No. 98 has been identified by the witness which has been exhibited as Exh. 713. During the course of cross-examination, the panch witness was confronted about his presence near Ranip. Upon perusal of the reply, it seems that the panch was genuinely present there and there is nothing to be doubted. Even while detailed crossexamination, the witness has not resciled from his version in his examination-in-chief and through this witness the panchnama Exh. 714 has been duly and satisfactorily proved. (d) Vide paragraph 79 and 80 in the oral evidence of PW 199, the contents of the panchnama have also been proved by the I.O.
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which corroborates the evidence of the panch witness, he has further added that the panchnama was drawn in presence of L.A. Mr. Pathan for the accused which too tallies with the panchnama. (e) Upon perusal of the panchnama, on each page there is signature of the panch witness and that there is a specific mention of having taken specimen signature of the accused. It has also been contended in the panchnama itself that the accused were shown the register of Star Guest House, Kolkatta and were asked to sign in that fashion and to give specimen accordingly. This procedure has been done in presence of L.A. Mr. I.D. Pathan for the accused and upon readiness of all the accused, the specimen signatures have been obtained. FINDING : This panchnama is held to have been validly proved and is held to be admissible. (35) PANCHNAMA EXH. 643 : (a) Vide this panchnama, PW 95 has produced and the I.O. has recovered in presence of panch witness three mobile phones, one charger, two driving licence of absconding accused Sohailkhan along with one election card and one identity card of A.E. Company of the said Sohailkhan. The driving licence of absconding accused Mufti Sufiyan, driving licence of A-20 and A22 have also been produced and recovered. As is clear from the panchnama, all the said things have been produced by PW 95 to the Investigating Officer and that all these muddamal articles were handed over by absconding accused Mufti Sufiyan to PW 95.
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(b)
PW 95 has also been examined by the prosecution who has deposed on the contents of the panchnama.
(c)
PW 7 has been examined as panch witness No. 2 to prove this panchnama. This witness has deposed on the date, time, place, purpose, presence of PW 95 while the panchnama was drawn, he has also identified the muddamal article No. 116 to 125, all produced by PW 95 before this panch witness. The panch witness was cross-examined during which no substantial challenge was offered to the contents of the panchnama. The witness seems to be a very natural witness, the panch witness has proved the presence of PW 95 and even during the course of the cross-examination the muddamal articles were also admitted to be present while drawing the panchnama. The panch witness has stated that he is not able to read and write Gujarati and English, but in the humble opinion of this Court, it does not mean that the panch witness cannot act as a panch witness. The panch witness has denied to have not gone to the police station to perform the job of a panch and was giving a false deposition. During the course of the cross-examination, the witness has admitted that he has been given at times memo by the police for taking more children in his rickshaw. He has signed on the written panchnama (meaning thereby not blank).
(d)
As discussed many a times, the deposition has to be seen as a whole and one sentence here or there cannot be appreciated in piecemeal otherwise it would cause serious prejudice to either of the parties. In light of the oral evidence of this panch witness, it
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becomes amply clear and has been proved beyond reasonable doubt by the prosecution that throughout the procedure of the panchnama, this witness and PW-95 were very much present and they were party of drawing the panchnama. Therefore, when the witness consents that he has signed on the written panchnama, it should be taken in the meaning that the witness wanted to say that he has not signed on the blank papers, otherwise the question should have been that the panchnama was already written prior to the witness came and the witness has only signed on the prepared panchnama, but that is not the question and the reply obviously only revealing the mental state or the perception of the witness that he has distinguished between written and blank papers. (e) Considering the above discussion, this Court does not find any point by which the panchnama cannot be held to have been proved satisfactorily, validly and lawfully by this panch witness. (f) Not only that, even by the oral evidence of PW 95, the production of muddamal articles by PW 95 is also very much clear on record. He thus corroborates the panch witness. (g) PW 199 is the I.O. before whom this panchnama has been drawn. This witness vide his oral evidence at paragraph 66 has supported the contents of the entire panchnama and who has also identified the muddamal article who thus corroborates the oral evidence of the panch witness and of PW-95. FINDING : The panchnama is admissible and held to be validly proved.
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(36) PANCHNAMA EXH. 1319 : (a) This is a discovery panchnama by which A-3 has disclosed some information as a result of which weapons, cartridges, one bag and a letter of one Rukhsana wife of Rasulkhan Party have been discovered. (b) If the contents of the panchnama are seen, it is clear that A-3 was in the police custody and since was desirous to say something related to the crime in question, two panchas have been called for. Before the panchas, A-3 has given his name, address and expressed that he was desirous to show muddamal hidden by him. Along with both the panchas, PW 162 and other police staff started in Government vehicle, at the place shown by A-3 on 13/4/2003 the preliminary panchnama was drawn and thenafter the subsequent panchnama has been drawn, where the accused has told to stop the vehicle was the area of Navi Mohlat near Panchkuva Choki. The accused was followed and that near Street No. 2, the accused stopped near one wooden cabin apparently very old, a small lock was applied on the stopper of the said cabin, A-3 has informed that in this cabin, he has hidden the weapons and he did not remember where the key of the said lock has been placed, ultimately police has broken open the lock and A-3 by opening the stopper has entered inside and took out one big bag which was containing a two countrymade guns, one cover and a writeup in the said cover the author of which seems to be a woman named Rukhsana, A-3 has informed before the panch witness that while A-3 was returning from Karachi, wife of Rasulkhan Party has given this letter and told to give it to A-20 and to send it to her parents through A-31. A-3 has further revealed that he did not give the said chit and has kept the same
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with him. Through the panchnama, the said old bag and two countrymade guns, the chit along with covers have all been recovered in presence of the panch witness and the panchnama was accordingly drawn. The panchnama seems to have been drawn before PW 162, on each page and at the end of the preliminary panchnama and the later panchnama there are signatures of both the panch witnesses and the police officer viz. I.O. (c) PW 40 has been examined as the panch witness who admits his signature in the panchnama and in the panch slips. This witness disowned his knowledge about muddamal articles and has further deposed that his signatures were taken in the panchnama while he was standing at Shahpur. This witness was declared to be hostile witness who has not at all helped the prosecution case. During the course of the cross-examination, the signature of panch No. 2 has even been admitted to have been taken on panch slips, cover and the chit. (d) This is a discovery panchnama, after the disclosure statement and revealation of the fact, the said fact has been proved by producing and recovering the weapons and the chit seems to have been written by Rukhsana. The chit is muddamal article No. 63 wherein the panchas have also signed. (e) Upon plain perusal of this chit, it becomes clear that this a letter written by the daughter to his parents who has been departed from the parents long back and is not hoping to see the parents in near future.
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(f)
The muddamal article No. 61 and 62 have been recovered by the process of the panchnama.
(g)
PW 162 vide his oral evidence at paragraph 17 has thoroughly proved the panchnama who has been cross-examined at paragraph 50. This witness in the cross-examination has denied the suggestion that the place of discovery is a concocted one and no weapon whatsoever has been recovered. The witness has admitted that the resolution u/s 165 of Cr.P.C. has not been done, the lock broken has not been recovered and the cabin was again not locked and that it was not learnt as to who is the owner or in possession of the cabin. This Court firmly believes that vide the oral evidence the I.O. has thoroughly proved the panchnama, the I.O. seems to be a truthful witness, there is nothing on record by which adverse inference against the prosecution can be drawn. In the cross-examination, the question related to the resolution u/s 165 of Cr.P.C. and having not recovered the lock and having not relocked the cabin does not create any doubt as the resolution u/s 165 of Cr.P.C. is merely an irregularity as is a kind of directory provision. All the three questions are clearly revealing irregularity and cannot be termed to be substantial challenge to this panchnama.
(h)
It is true that the I.O. ought to have found out the owner or the person in possession of the cabin, but then looking to the peculiar facts and circumstances of the case, that is not the vital element as the accused at times can have tendency to conceal the weapons at a very unknown and unused place and the place which may not be owned and possessed by the accused, but at a place which remains within the sight of the accused so that he can
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have watch over weapons and still he can escape the liability if so required. This is a place of Navi Mohlat where in fact the accused resides and the other co-accused were also residing. Therefore, it does not seem to be doubtful or improbable that the accused would not conceal at the place from where the weapons and the chit have been recovered, this Court finds the panchnama to have been validly and lawfully proved when the oral evidence of the I.O. is confidence inspiring. FINDING : The panchnama is valid, proper and admissible. (37) PANCHNAMA EXH. 814 : (a) This is the panchnama by which on the date of the application of POTA viz. 19/4/2003, a press conference was called for and as has been noted in the panchnama it was held to inform the public about the activities of the accused and to exhibit the weapons in the press conference. In the presence of the panch witnesses the seals applied were opened up and the weapons seized were taken out for photography and for viewing it by the senior police officers and by the members of the press 27 muddamal articles have been opened up and after completion of the press conference and the observation by the senior police officers and upon completion of photography by the press, the muddamal articles were repacked and then sent to the FSL. The panchnama was drawn in presence of the panch witness and it was drawn by PW 162. (b) PW 46 is the panch No. 1 of this panchnama who has proved the prosecution case on the aspect of date, time, place, object,
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presence of the press and other senior police officers and to have kept all the weapons open for observation by the press which were about 27 boxes and that the panch witness has signed in the panchnama and on different panch slips and all the said muddamal articles were repacked and the panchnama was processed for about 3 hours. (This tallies with the contents of the panchnama thoroughly). This panch witness was cross-examined. During the course of the cross-examination, the panch witness has not resciled from his examination-in-chief and has deposed that he did not have any information about POTA and which new sections were added was not known to the panch witness (this is not essential for the panch to know nor is it requirement to prove the panchnama), the witness does not know the persons of police present at that point of time. The panch witness has expressed his inability to tell about the number of seals and that the witness has denied that he has not gone to the Crime Branch office prior to the panchnama and he has not signed the panch slips in advance (This rules out any tampering). The writings on the muddamal are not known to the panch witness (this is even not essential), the witness has stated that he does not know the difference between pistol and revolver (he was a public witness of the panchnama and nothing beyond that, he is not expected to have any expertise in distinguishing the two weapons), the witness admits that he does not know on the box where the seal was applied, the note has not been made as to from which box which muddamal has been taken out, the witness has however explained that the muddamal taken out from the box were placed beside the box and it were repacked in the same box, the witness has stated that he did not know as to how many officers and policemen were standing beside the table, whether
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they were in simple dress or uniform, the measurements of the room where the weapons were kept were not known to the witness (This is related to observation which is certainly to vary person to person), the photograph and videograph of the weapons were not taken, how many press photographers were there is not known to the witness. The witness has however specified exactly as to where the Crime Branch was situated. The cross-examination of this panch witness does not create any doubt. This panch witness has proved the prosecution case in a satisfactory manner, the witness appears to be a truthful witness and indeed a public witness to the whole panchnama proceedings. Through this witness the prosecution has proved the panchnama Exh. 814 beyond any reasonable doubt. (c) PW 162 vide paragraph 21 has helped the prosecution case who was cross-examined. As has been noted at paragraph 54, the witness admits that prior to the panchnama to show that muddamal was in a sealed position, no photograph or video has been taken during the conference. The presumption of propriety of the official act helps the prosecution, hence no substance is found in this part of the cross-examination. Vide the cross-examination of PW 162, no substantial challenge has been offered to the panchnama which as has been discussed thoroughly proved by PW 46. (d) Certain suggestions made during the cross have been denied like the press conference was called to spread communal disharmony, the weapons placed in the press conference were lying in the Crime Branch from the beginning, the press conference was
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merely to take political benefit etc. which all have been denied by the I.O. witness. This Court is of the opinion that the objects noted in the panchnama and stated by the I.O. seem to be more probable than the objects placed by the defence through suggestions because the press conference was held by the senior police officers who have not to take any political benefit or who have no business to spread communal disharmony. Thus, these suggestions do not create any reasonable doubt in the judicial mind FINDING : The panchnama has been validly and lawfully proved beyond all reasonable doubt. The article No. 1, 2, 3 of A-1, article No. 55, 56 of A-2, article No. 61, 62 of A-3, article No. 57, 58, 59 of A-4, article No. 65 to 75 of A-6, article No. 77 of A-7, article No. 78 to 80 of A-8, article No. 82 of A-9 and article No. 83, 84 of A-10, in all 27 articles containing 28 items, were exhibited in the press conference. (38) PANCHNAMA EXH. 754 : (a) This discovery panchnama is the panchnama related to A-6 wherein in presence of panch witnesses A-6 has discovered pistol, two countrymade tamancha and cartridges etc. which are muddamal article Nos. 65 to 75. (b) As is revealed from the panchnama itself, upon A-6 desired to reveal something relating to crime while he was in police custody, two public witnesses were called for before whom A-6 has given his name, address, etc. in addition to disclosing the fact that he
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has hidden the weapons which he would like to show, then PW 162 and late P.I. Shri A.A. Chauhan and other police personnel along with two panch witnesses and the accused went at the place shown by the accused in the Government vehicle. The accused has shown the roof near Kohinoor Estate he has told to take the vehicle and the vehicle was accordingly taken there. A-6 has led and shown place which was a corner being made by two different walls and it was beneath the tree where A-6 sat and has removed the waste material of wooden pieces etc., he has taken out the weapons shown in the panchnama from the said place. A-6 has further informed before the panch witnesses that Shed No. 361 is the factory of his father and that it has been further written in the panchnama itself that during the process of the panchnama light has been used. The time of the panchnama is 5.00 p.m. to 8.00 p.m. of 15/04/2003. (c) PW 32 is the panch No. 2. In the oral evidence of this witness he has proved all the contents of the panchnama, presence of panch No. 2, to have gone at the site in the Government vehicle along with police and accused, the accused to have discovered there the concealed weapons, muddamal article Nos. 65 to 75 has been identified by the witness. This witness has been cross-examined. During the course of the cross-examination, he has admitted the presence of the panch No. 1 who is his uncle, he has studied upto 7th Standard, he has denied the suggestion that he was often being called by the Crime Branch as panch witness, at paragraph 6 he denied the time during which the panchnama was drawn was late night, the police has called the panch witness on the next day in the police station and then the panchnama was signed. As far as this part of the
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JUDGMENT
cross-examination is concerned, the witness has sustained his version in the examination-in-chief. (d) This witness in a way sounds to be a smart witness who has given the reply during the course of the cross-examination to the effect that he does not know what was the writing in the panchnama, when it was written, on which date and time it was written, at what time he has signed, at which place has he signed, the panch slips were signed together, why the panch slips were signed and in all how many signatures have been done in the panchnama. In the opinion of this Court, the tenor of some of the replies in the crossexamination clearly reflects that the witness was won over. (e) But then it needs to be borne in mind that to the extent the witness helped the prosecution, the said part also can be used. This witness has almost validly proved the panchnama, at least as far as his examination-in-chief is concerned, he has remained with the contents of the panchnama, but somehow during the course of the cross-examination the witness has also tried to oblige the defence, but even in the cross-examination, through some replies the witness has continued helping the prosecution. This witness to some extent has helped to prove the panchnama Exh. 754. (f) Moreover, PW 162 vide paragraph 18 in his oral evidence has very clearly proved the panchnama Exh. 754 to be proper, genuine and credible one. This witness has mentioned that the accused took them to the corner of Sundernagar and removing there the waste things, the A-6 has produced the incriminating material. He has also identified the signature in about 11 panch slips which even the panch witness has also identified.
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PW 162 has been cross-examined which has been recorded at paragraph 51. Upon perusal of the cross-examination, it becomes clear that there is no material by which adverse inference can be drawn against the prosecution case or that the prosecution case put forward through the panchnama Exh. 754 becomes uncreditworthy. This witness was assailed on the topography of the place, the witness has admitted that the weapons were beneath the tree, they had been at the site for about two hours and that it is not true that the panchnama was not drawn with the help of street light and that it is also not true that the place from where the weapons were discovered is on the public street. This is all as can be seen is totally tallying with the panchnama Exh. 754. FINDING : Thus, collectively reading PW 32 and PW 162, the discovery panchnama is held to have been validly and lawfully proved and becomes a creditworthy evidence against A-6. (39) PANCHNAMA EXH. 677 : (a) This is the discovery panchnama by which disclosure statement and resultant discovery of the weapons shown by A-7 has been taken note of in presence of two public witnesses, the preliminary panchnama has been drawn and thenafter at the end of the panchnama at both the places the public witnesses have signed, the discovery of the weapons was done by A-7 in presence of his father at his own residence. (b) As per the contents of the panchnama when A-7 was in police custody he desired to show something, two public witnesses have been called for and that these public witnesses have inquired
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when A-7 has given his name and address and has stated that he voluntarily wanted to say something and voluntarily wanted to show the place where the weapons and incriminating material have been hidden, upon this the two panch witnesses, police officers, accused, etc. have gone in the Government vehicle and that after drawing the preliminary panchnama they have started from the Crime Branch, reached at Dariapur Haveli Apartment where the accused has asked the vehicle to be stopped and accordingly the vehicle was stopped, thenafter, after getting down from the vehicle the accused went to his own residence, the house was open, the father of A-7 was present in the house and after entering into the house, A-7 went to a room beside the drawing room where the wooden cot and wooden cupboard were lying, in the said room there was shelf, from the shelf A-7 has taken down one heavy bag, in the said bag a countrymade revolver with 6 compartments in a working condition was found. This revolver was recovered at the instance of the accused, the description of the remaining part of the house is there in the panchnama which has been duly signed by both the panch witnesses. (c) To prove the panchnama, PW 18 - the panch No. 2 has been examined as panch witness. This witness has proved date, time, place, presence of the accused at the police station, his signature in the panchnama, other formalities having been done about the panchnama, all have gone to the residence of A-7 in the Government vehicle where the father of A-7 was present and where as written in panchnama Exh. 677, A-7 has discovered the revolver from the place it was concealed by A-7, muddamal article No. 77 has been shown to the panch witness who has identified the same along with accepting his signature as panch on the panch slip as well as below the panchnama.
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This witness was cross-examined who has admitted to have passed 4th standard, the witness has specified that another panch had passed away, both of them were working together, on the date of the panchnama they did not go on their duty and in the preliminary panchnama there is a signature of PW 162. On all the counts, the panch witness has helped the prosecution case. To submit not to consider the panchnama the deposition at paragraph 4 of the cross-examination has been highlighted by the defence where the panch witness states that after coming back to the Crime Branch he has signed the panchnama. As far as this aspect is concerned, this Court believes that the testimony in its entirety is to be appreciated. The overall tenor of the deposition of this witness clearly suggests that the witness has corroborated fully the panchnama. It is an established position that the discovery panchnama need not in every case be corroborated by the panch witness, the said can as well be proved by the I.O. himself. (d) PW 162 in paragraph 7 in his oral evidence has thoroughly proved this panchnama Exh. 677. This witness was cross-examined vide paragraph 60 as the cross-examination qua A-7 has been recorded in that paragraph. It has been suggested, but the witness has denied that because the relatives of A-7 have filed the writ petition, A-7 has been shown to have been arrested who in fact was illegally detained prior to that and that Exh. 677 panchnama has been falsely made. The witness has admitted that he did not remember his conversation with the panch qua his occupation and whether he ever remained as panch witness in any other panchnama. The witness also did not remember the name of the writer in whose handwriting the panchnama has been written, the witness denies that PW 18 is the panch of his choice and he is
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being frequently taken as panch witness and the last four lines have been noted to adjust the space. By the cross-examination of the I.O. also, no substantial challenge has been offered to the panchnama and that it is nowhere proved that the place of concealment of the incriminating material was in fact known to the police before A-7 had by his conduct and expressly discovered the same. The fact disclosed by A-7 before the panch witness has been then linked with the discovery of the incriminating material. FINDING : In the opinion of this Court, the panchnama Exh. 677 needs to be termed to have been satisfactorily and validly proved by the prosecution beyond reasonable doubt which is linking A-7 in the crime. (40) PANCHNAMA EXH. 1576 (a) PW-130 is the hostile PW who is panch No.1 of panchnama Exh. 1576. This is panchnama of the house of PW-131 where A-7, A30 and wanted accused Mufti Sufiyan, Rasulkhan Party etc. have held meeting. PW-130 as emerges from the oral evidence is a resident of Mumbai and having his shop in the city of Mumbai. The witness admits his signature as panch No.1 in the panchnama. This witness has not helped the prosecution case. (b) PW-131 is the owner of the house where according to the prosecution case A-7, A-30, one Junaidbhai, wanted accused Mufti Sufiyan, Rasulkhan Party etc. had met, dined and then held their meeting at this place. This witness has also been declared
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hostile by the prosecution who states that he resides at Mumbai and he knows one Junaidbhai the dropped witness of the city of Ahmedabad. (c) PW-191 is the P.I. who was working in the Crime Branch, Ahmedabad at the relevant point of time. This witness has stated that he was given Yadi Exh. 1777 and after carrying out the work assigned to him vide Yadi he gave a report to the I.O. which is Exh. 1575. The witness has deposed that he was informed by the Yadi that A-7, A-30, one Junaidbhai and wanted accused Mufti Sufiyan, Rasulkhan Party etc. have held meeting at Mumbai and that at which place such meetings were held, where they have stayed, were telephone calls have been made etc. be inquired and reported to the I.O. The witness further states that on 6/8/2003, he along with A-30 had been to Mumbai in the Government vehicle, reached Mumbai on 7/8/2003, where A-30 had shown Room No. 404, 4th Floor, Noor Mahal Building, Near Post and Telegraph office, Jogeshwari (West), Mumbai. On ringing the door bell PW131 opened the house, in presence of 2 panchas the panchnama with due procedure was made which panchnama is Exh. 1576 except the bracketed portion of the confessional statement, the contents of panchnama are true. The witness was cross-examined on the aspect that he did not bring his weekly diary in the Court of the day, the case diary is to be prepared by the I.O. and he was merely an assignee officer, Yadi Exh. 1777 was received by him upon which he has acted, he does not recollect the total members of the team, he was instructed through Yadi to carry with him A-30, prior to leaving for
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Mumbai he had a discussion with PW-199 on the aspect as to what is to be investigated, he does not remember the R.T.O. registration number of the vehicle taken, but, however, explained that a big vehicle was taken, he did not remember the name of the driver, the contents of the Log Book and the statement was not taken down by the I.O., he has not drawn the search of the vehicle before starting for Mumbai, the fact of taking over the custody and that then handing over the custody to the I.O. was through the P.S.O. etc. In the humble opinion of this Court, the oral evidence by way of eliciting information in the cross-examination does not falsify the procedure of the panchnama nor does it create doubt against the genuinity of the panchnama, the Yadi and report are showing the assignment of the work to the PW-191 in a proper manner and that PW-191 to have carried the said work properly. Panch witness turning hostile is a common fate of criminal trial, but that alone cannot caste any doubt on the prosecution case when the oral evidence of the police officer is convincing and satisfactory and there is no reason to disbelieve him. (d) If the panchnama Exh. 1576 is perused it becomes clear that PW130 and another panch were the 2 public witnesses, both resident of Jogeshwari (West), Mumbai were called for to witness the panchnama, the panch were explained, the accused A-30 was present who has told his name to the panchas and to have held meeting in May 2002, along with A-7, Junaidbhai, Maulana, Rasulkhan Party and Mufti Sufiyan and that he has further shown his readiness to show the place of his meeting, the description of the place of the meeting is tallying with the oral evidence of PW191 on the backside of the first page of the panchnama there is
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mention of the fact that PW-131 has introduced himself before the panchas, nothing has been recovered from this place. In the light of this fact that A-30 has disclosed in presence of the panchas, his readiness to show the place where meeting was held and ultimately he has led the team and has shown the place which place was otherwise not in notice of the police and it is on account of the voluntary information revealed by A-30 the place of the meeting was found. Thus, the information provided by A-30 has been proved thorough the oral evidence of PW-191 which information relates to the fact of place of meeting. The residence of PW-131, if the deposition of PW-131 is seen, he admits to have been residing at S.P. Road, Jogeshwari (West), Mumbai. Thus, perusing PW-131, PW-191 and the panchnama Exh. 1576, it is getting proved beyond reasonable doubt that the panchnama Exh. 1576 is proper and genuine, was in presence of 2 public witnesses of the locality. PW-130 has become hostile for the known reasons and that the information provided by A-30 has been properly and satisfactorily proved through the police witness who is inspiring confidence of the Court. FINDING : This panchnama is relevant and admissible in evidence. (41 42) (a) PANCHNAMA EXH. 806 & 811:
These two panchnamas are the panchnamas to identify the accused by the co-accused from the photo sheet wherein the photographs of different accused have been fixed.
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(b)
Exh. 806 is the panchnama where A-42 has identified A-1, A-2, A3, A-5, A-17 and A-18 from amongst photographs of different accused annexed along with the panchnama.
(c)
Exh. 811 is also another such panchnama wherein A-55 has identified the photographs of A-1, A-2, A-3, A-5, A-17, A-18 and A42. This identification was from the photo sheet at Exh. 812 annexed with the panchnama.
(d)
In both the cases, the accused have been identified by their coaccused by ticking their photographs as the persons who had been to Pakistan for the training and in case of Exh. 806, A-42 has also stated that all the tick marked accused were facilitated by him to cross India-Pakistan border.
(e)
Both the panchnamas have been as such proved by the oral evidence and respective panch witnesses and/or of the respective I.O. Thus, in nutshell, both the panchnamas are of the photographs tick marking and identification panchnama with the said mode and manner.
(f)
Upon perusal of both the panchnamas, this Court is of the opinion that it is imprudent and unsafe to act upon such panchnamas when it is not provided in law. The admission of the identifying accused in the panchnamas are inseparable nor it sounds to be in accordance with law and settled principles of appreciation of evidence to separate them and then appreciate the same in the peculiar facts and circumstances of the case.
(g)
These panchnamas neither can be used as corroborative, documentary or circumstantial evidence, hence no importance
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can be attached to such identity. It is not safe, not prudent, not in accordance with law to hold the accused guilty upon such identification by the co-accused. Hence, it is hereby held that these panchnamas are not admissible in evidence and are held to be bad in law. (h) This Court is further of the humble opinion that it is even not proper to pick up the circumstance against any accused from the said two panchnamas. (i) The defence citation No. 17 need not be dealt with as both the panchnamas have not been held admissible. FINDING : Both these panchnamas Exh. 806 and 811 are hereby held to be inadmissible in evidence and the same are therefore not considered to hold any of the accused guilty. (43) (a) Panchnama Exh. 1578 : This panchnama has been drawn in presence of two public witnesses and PW 191 the assignee officer. By the said panchnama, muddamal articles have been recovered when A-30 in presence of panchas took the police officer at Hotel Ambar, Mumbai where the accused (A-30) along with others including A-7 has resided in May 2002 according to the prosecution case. (b) PW 129 is panch No. 2 of this panchnama. This witness has been declared hostile.
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From the oral evidence of this witness, it becomes clear that this panch witness was the employee of Hotel Ambar opposite Jogeshwari Railway Station, Mumbai whose owner is Abbas Fatehmiyan Seliya. The witness though is stating that in his presence register from his owner by Gujarat Police has not been recovered, during confrontation by learned Special P.P. the witness in specific identifies and admits muddamal article No. 112 and muddamal article No. 113 respectively register and bill book to be of his hotel. (c) In light of the fact that PW 191 the assignee officer was given Yadi who has given report for the compliance of the assigned work and who in his oral evidence proves to have recovered muddamal article No. 112 & 113 while he along with A-30 and in company of the panch witness was present at Hotel Ambar through the proceedings of the panchnama. (d) Upon perusal of the panchnama Exh. 1578, it seems that both the muddamal articles have been recovered in presence of PW 129 who was witnessing the panchnama proceedings as public witness. The contents of the panchnama seem to be genuine and believable as firstly, the muddamal have been recovered and secondly, none else but PW 129 himself being an employee of the hotel identifies both the muddamal articles to be of his hotel. (e) PW 191 has been cross-examined in great detail on numerous different lacunas, shortcomings in the procedure and even irregularities while the proceedings of the panchnama and shortcomings in the work like not making entry in the log book, not issuing muddamal receipt to Jogeshwari Police Station, to have written wrong date above the statement of owner of Hotel Ambar,
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etc. but this Court firmly believes that all the said irregularities cannot take away substantial positive evidence with the actual recovery of the muddamal which were even identified by the hostile witness and supported by PW 132, the owner of the hotel. This Court does not find any substance in the cross-examination to disbelieve the prosecution version put forth through PW 191 about the proceedings of panchnama Exh. 1578. Here, it needs a note that at page 26 of the oral evidence of PW 191, during the course of the cross-examination, from muddamal article No. 112 - register the relevant entry of 2/5/2002 which is entry No. 2321 has been referred and relied upon by the defence. It is at the instance of defence this entry came to be exhibited as Exh. 1631. Though it is an admitted position that this particular entry has not been signed by the panch witnesses, PW 191 clarifies that what was recovered was the register. In the register, signatures of the panchas can be seen. PW 191 has clarified that in entry Exh. 1631, Sufiyan Patangia is written and Mufti is not written because Mufti is the status conferred by the religion. It has even been clarified by this witness that Sufiyan Patangia and Mufti Sufiyan are the two names of the same person and Rafiq Shaikh in entry Exh. 1631 and name of A-30 are also the names of the same person. (f) During the course of the cross-examination, PW 191 has denied the suggestion that the panchnama Exh. 1578 is not the panchnama u/s 27 of Indian Evidence Act. If the panchnama is seen and when the same is read along with oral evidence of PW 1 and PW 132, it becomes clear that PW 191 had been to Hotel Ambar with A-30.
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(g)
PW 132 is the owner of Hotel Ambar. This witness has deposed that on 7/8/2003 police officers from Crime Branch along with someone came to his hotel when he produced muddamal article Nos. 112 & 113. Now when the owner of the hotel is also supporting the version put forth by PW 191 to have visited hotel and to recover muddamal, it becomes clear that PW 129 was won over.
(h)
This Court firmly believes that the entire tenor of the oral evidence of PW 191 read with the panchnama, it very clearly reveals that on the information given by A-30, in presence of A-30 and the public witnesses, PW 191 had been to Hotel Ambar wherefrom the two muddamal were recovered, hence the panchnama Exh. 1578 does have all the requisites of Section 27 of Indian Evidence Act, hence the said can be believed by oral evidence of PW 191 who is found to be credible and convincing.
(i)
Exh. 1631 is the relevant page dated 2/5/2002 wherein 4 persons i.e. A-7, A-30, dropped witness Mohammad Juned and absconding accused Sufiyan Patangia have been shown to have stayed in the room of the hotel, the prosecution case sounds probable and the fact of A-7 and A-30, both of Ahmedabad, to have resided at Mumbai is getting strengthened when in the column the address is found of Karoda's Pole, Panch Patti, Kalupur, Ahmedabad (It is significant that the PW-58 the brotherin-law of the proclaimed offender Mufti Sufiyan though a hostile witness states that at the Karoda's Pole the Mufti has worked as Mufti, hence even this address has the connection with the said Mufti ).
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(j)
It is true that witness Mohammad Juned has been dropped by the prosecution, but then this relevant entry at Exh. 1631 is providing a very strong circumstance against A-7 and A-30 to had been in company of absconding accused Sufiyan Patangia on 2/5/2002 at Mumbai. FINDING : This Court firmly believes that the panchnama Exh. 1578 has been validly proved and is admissible in evidence and entry at Exh. 1631 is most relevant. Exh. 1631 entry is a pointer to a circumstance against A-7 and A30 to have been with absconding accused Mufti Patangia on 2/5/2002 at Mumbai when they have resided and shared the same room.
(44) PANCHNAMA EXH. 1479 (a) Vide this panchnama, drawn under Section 27 of the Indian Evidence Act, the prosecution has attempted to establish that A31 was in constant touch with principal conspirator Rasulkhan Party by talking to him from different STD-PCO's and that he also used to receive Incoming telephone calls from the said Rasulkhan Party through different witnesses. (b) The panchnama is to the effect that A-31 has voluntarily made the disclosure statement showing his willingness to show different places wherefrom he made telephonic conversation with the Rasulkhan Party. A-31 has taken the panch witness and the assignee officer at Mirzapur Kamal Network, Khanpur Kadiwala
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Telecom,
Sanand
Road
Hotel
Platinium,
Mehsana-Patan
Highway, 14, Amar Complex. From the Hotel Platinum two of the registers have been recovered, wherein, in one of the register, Entry Exh. 1477 and 1478 both as shown in the register were respectively dated 15/10/2002 & 28/11/2002 of telephone No. 00971505175973 can be seen. According to the prosecution case, for these communication payments of about Rs. 1151/- and 202/were made and from this phone even A-30 along with A-31, both had talked to absconding accused Rasulkhan Party. (c) Vide this panchnama the telephone numbers at shops at Shahpur, Vejalpur Road near Ketki Society and at Madhu Mangal Society on the same road have been shown by the A-31 informing that on these phones through dropped witness Mustaq, he used to receive Incoming telephone calls from Rasulkhan Party. (d) The A-31 has also taken the panchas and the assignee officer to the place at Sanand to show godown premises which A-31 had been to see (under the instructions of Rasulkhan Party). (e) As has emerged in the oral evidence, PW-180 who was the asignee officer, has also noted statements of different witnesses like PW-60, PW-118, PW-149, PW-100 and PW-150 etc. (f) Panch No.2 of the panchnama has even been examined as PW99. The panch No.2, PW-99 has admitted his signature as panch witness in the panchnama Exh. 1479 and at the recovery of muddamal register article No. 110 wherefrom 2 different entries (viz Exh. 1477 & 1478) have been exhibited.
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(g)
PW-180 is the assignee officer who was orally assigned the work of making the panchnama of different places which the A-31 was ready to show. PW-180 has proved the contents of panchnama Exh.1479 in his examination-in-chief from para 6 to 12 in the most satisfactory manner and with all the details. The witness was cross-examined with reference to this
panchnama. During the course of the cross-examination, the witness admits that while he received the oral instructions viz Yadi he has learnt as to what investigation has to be done, the witness has ascertained as to the A-31 wanted to show the places and such an inquiry was made for 5 to 10 minutes, thenafter, the panch witnesses were called upon, the preliminary panchnama was prepared, the R.T.O. number of the Government Jeep has been stated by the witness, the witness did not remember as to whether he signed in the log book or not, the witness admits that the local panchas were not called, but the panchas who were called while the preliminary panchas were continued. Along with the general denial that the A-31 has not shown any places nor remained present and the panchnama has not been prepared at the sites, but has been prepared at the crime branch etc., the witness has also admitted that he has not intimated Sanand Police Station about the recovery of the register from Hotel Platinum and that he has not mentioned in the report at Exh.1481 to PW-199 the I.O. that the investigation of this telephone number (00971505175953) is to be done. (h) In the humble opinion of this Court, the panchnama has been made as continuous panchnama for visiting 8 different places. Hence, there is nothing wrong if the said panchas who were called upon for the preliminary panchnama were continued as the
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panchnama is the same. The recovery of muddamal has not been informed to the Sanand Police Station sounds to be mere irregularity, the report Exh.1481 admitted to have been given to PW-199 itself is suggestive that this work was assigned to PW-180 and he has not acted out of his scope. The information seems to have been received by PW-180 is only to go to the sites if the accused is to take. Hence, it cannot be said that the police was knowing in advance the sites to be visited. Moreover, it is admitted in the cross that for 5 to 10 minutes the accused was interrogated by PW-180 and it cannot be believed that the description, address, purpose of the visit etc. for all the places can be stated by the accused within 5 to 10 minutes to the witness. Hence, there is no material on the record to believe that the police had information in advance, there is absolutely no material to disbelieve PW-180. (i) Even if the Yadi is not on record, the oral instruction meaning thereby the oral Yadi has been satisfactorily proved by the prosecution witness No. 180 and it is further corroborated to have been issued as PW-180 gave the compliance report (Exh.1481) only if he has been assigned the job, signature in the log book etc. are the part of the cross which is not creating any doubt as even in the cross the said log book has not been requested by the defence to be produced through the PW-180. (j) PW-119 from whom the register has been recovered did not say in the oral evidence that this register was handed over by him to the police at the crime branch and the witness very clearly states that
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the police had been to the site and the registers were recovered at the site, it cannot be believed that the panchanma was prepared in the crime branch as suggested in the cross. It, therefore, seems that PW-99 has been won over for the obvious reason and is not speaking truth, but however, his not helping the prosecution case would not be fatal for the prosecution as even through the oral evidence of the I.O. the panchnama can be proved. (k) The A-31, as can be seen from the preliminary panchnama, has disclosed as to what he wanted to show only before the panch witness. A-31 has in turn disclosed that he wanted to show different STD-PCO's from where he has telephoned Rasulkhan Party (who is the key conspirator), he has also stated that he wanted to show them were he has received the Incoming phone calls and the places where he had been to see the godowns, there is even mention of the Government vehicle which tallies with the cross-examination of PW-180, this is clarifying that the disclosure statement of the information was made by the A-31 which information was not known to the police, this information has been validly proved when the accused took the police along with the panchas at 8 different sites which all have been recorded in the panchnama. On each of the pages and at the end of the panchnama the panch witnesses have signed and even PW-10 has signed, the panchnama Exh. 1479 is held to have been duly proved by the prosecution and the same is held to be absolutely creditworthy.
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FINDING : Panchnama Exh.1479 qua A-31 is admissible and is validly proved. (l) Panchnama Exh. 1479 and the concerned witnesses : At this juncture, it is fitting to note that PW-60, PW-100, PW-119, PW-149 and PW-150 have also been examined. (i) PW-60 is the hostile witness who has however proved that the residence of Rasulkhan Party is very close by to the house of this witness, A-7, A-45 and A-46 are brothers of the wanted accused Rasulkhan Party. A-31 is residing at the same pole where this witness resides and that he knows A-7, A-31, A-45, A-46 and Rasulkhan Party. He has identified A-7, A-31, A-45, A-46 in the Court, this is showing that A-7, A-31, A-45, A-46 and Rasulkhan Party are neighbours and knowing one another. The PW-60 being the person of the same locality his becoming hostile is quite natural and is not helping the prosecution should be obviously for the reason of his relationship with the 4 accused and the Rasulkhan Party. (ii) PW-100 makes it clear that witness Mustaqbhai named in panchnama Exh.1479 is though a hostile witness he helps the prosecution in proving the non-incriminating fact in the panchnama about the description, area, name of the shop etc. and the telephone number at the site. (iii) PW-119 is the partner doing management of the Hotel Platinum and Guest House at Sanand Highway. This witness has not been cross-examined who has helped the prosecution about the
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existence of Hotel Platinum, STD-PCO there, other description of the site in the panchnama, maintenance of the registers of the phone numbers being contacted from the STD-PCO, the visit of PW-180, at the Hotel recovering the register muddamal article No.110 mentioning the 2 entries in the said register in the handwriting of the witness etc. The witness has stated that he cannot say as to whether A-31 was along with the police on that date because on that particular day he was out of station. He has also stated that he cannot say that on this telephone number who has talked (which is but natural). When the witness was out of station, it is but obvious that the witness would not be in a position to say about the presence of A31, but in the light of the oral evidence of PW-180, who has proved the panchnama Exh. 1479, no doubt is left in the judicial mind about the presence of A-31. Moreover, PW-180 has no other means to know the different sites except the A-31 would show. Moreover, in light of presumption under Section 114 of Indian Evidence Act, when through the oral evidence the panchnama has been proved satisfactorily, the procedures as laid down in the panchnama must have been adopted, it being official act. (iv) PW-119 sounds very natural when he says that he cannot say as to who talked from this telephone numbers because the site is an STD-PCO and is a public place where many persons come and go, but it cannot go out of the notice that it is A-31 who took the PW-180 along with the panchas to different sites with the disclosure that he used this telephone to communicate with Rasulkhan Party which information has been proved when he took the persons to different sites. The telephone numbers mentioned
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at Exh. 1477 and 1478 seems to be telephone numbers of U.A.E., but it is indeed not important. What is important is that A-31 was in constant touch with Rasukhan Party through different STD-PCOs which communications where through Incoming as well as through Outgoing phone calls. The A-31 has not tendered any plausible explanation to talk with the wanted accused Rasulkhan Party, he has rather denied to have talked. This Court, therefore, is inclined to hold that this is satisfactory and clinching evidence and the circumstances against A-31 linking A-31 with the charged crime. (v) At this juncture, it is also fitting that the contents of this panchnama are providing strong corroboration to the confessional statement of A-31. (vi) PW-49 is a hostile witness, but then, this witness has also helped the prosecution in proving many non-incriminating contents in the panchnama, who has not been cross-examined by the prosecution on the aspect of his address, name of brother, telephone number etc. (vii) PW-118 has deposed that he is the partner of Hotel Platinum at Telav village, Taluka-Sanand, the name of the owner is Rasulbhai Rajebhai Cheliya, there is STD-PCO Booth in the Hotel, one Abbasbhai (PW-119) was sitting on the Pan Parlour, the register for the STD-PCO are being kept, the telephone numbers of the Hotel and the columns of the register have been proved. The witness has further deposed that in the year 2003, police came to
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their Hotel when there were other persons with the police who took away muddamal article 110-register, wherein, there are entries of telephone calls which entries are in the hand-writing of PW-119, another muddamal article 111-register has been taken, the statement of this witness was recorded by the police, the witness has repeated the contents of the entries in the register. This witness was cross-examined, who has admitted that as statement was recorded at the site when the employer and his son Abbasbhai were out (this tallies with the oral evidence of PW-119), the witness admits that the note of muddamal article 110 has not been made in his presence. (viii) As discussed hereinabove, what is important is not the entry, but the information which led to discovery of the fact of the telephonic contacts through STD-PCOs between A-31 and key conspirator Rasulkhan Party. Thus, by way of the cross-examination, this witness who has thoroughly helped the prosecution has not been falsified. (ix) PW-150, is the hostile witness like PW-100, has helped the prosecution in establishing of the non-incriminating fact about the details and description of the family, the witness Mustaq (PW-59) used to go to her house, at the relevant time she had a telephone line at her residence etc. Vide Exh.1239, the bill of the telephone number of the residence of this witness has been on record but then this witness does not take the prosecution case further qua A-31. (x) PW-59 is Mustaq Ahmed, who seems to have been referred in the panchnama through whom the A-31 was facilitated to receive the
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Incoming calls of the Rasulkhan Party. This witness has though been hostile has identified A-31 in the Court. This witness has specifically stated that while he was residing at Kalupur he has developed friendship with Gulammohammed whose pet name is Gulal (A-31 herein). This witness, however, deposed that A-31 was manufacturing files, which work he has closed. Thenafter, A-31 was involved in robbery and ransom, who was imprisoned in the year 1991 as was convicted, he was released on bail after 5 years and he used to meet the witness at Dariapur, A-31 used to telephone him sometimes as is suggested by the prosecution. It seems that this witness has become hostile to help his friend A-31. FINAL FINDING : Exh. 1479 the panchnama is held to have been satisfactorily, validly and thoroughly proved by the prosecution and is admissible and has been even corroborated on many counts from the concerned witnesses. (45) PANCHNAMA EXH. 732 (a) This panchnama is for the recovery of the Vakalatnama, wherein, A-1 to A-5 have signed. This Vakalatnama was to be collected to collect natural signatures of A-1 to A-5 with reference to order passed by the then POTA Judge on 30/9/2003. As emerges on record, PW-29 the panch No.2 has thoroughly proved the panchnama to have been validly drawn, whereas, PW-13, the panch witness No.1, though is a hostile witness, he has at least proved that he was called upon as panch in the Court Compound near the office of Registrar. Thus, limited corroboration has even
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been provided by this witness. (b) Article-131 is the Vakalatnama of learned Advocate Mr. M.C. Hakim, recovered by drawing panchnama Exh.732. As seems from the oral evidence of PW-29 the Vakalatnama has been recovered through the panchnama Exh.732 in presence of I.O. PW-199 and Registrar of the Court Shri Vaishnav which has even been reflected in the contents of the panchnama. This Vakalatnama as has been recovered for the natural signatures of A-1 to A-5 has been duly proved by PW-29 which shows panchnama Exh.732 has been validly proved. (c) Exh. 731 the Vakalatnama has been perused which is showing the 4 signatures to have been encircled from N-2 to N-5 to collect the natural signatures which is also corroborating the panchnama. FINDING : This panchnama is admissible, relevant and held to have been validly proved. (46, 47) (a) PANCHNAMA EXHS. 721 & 723
Panchnama Exh. 721 is the panchnama by which specimen of handwriting of dropped witness Mohammed Junaid Shaikh has been taken in presence of PW-199. Exh. 720 is the Specimen signature sheets from B-1 to B-6 signed by both the panchas and PW-199.
(b)
PW-15 is panch No.2 of the panchnama Exh. 721 who has been declared to be hostile, but who has admitted date, time and place, he to have been called upon as panch witness by the police.
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Muddamal article 98 has also been identified by PW-15 which has been exhibited at Exh. 722 which seems to be a school diary of son of said dropped witness Junaid. This panchnama and Exh. 722 diary are not significant when the witness Junaid has not been examined or not impleaded as accused. (c) The panchnama Exh. 723 is the panchnama wherein, PW-15 is panch No.2 which was drawn to recover the school note book for the natural signature and handwriting of the dropped witness, the signature of Mohammed Junaid seems to have been important to be verified for the prosecution for the reason that he is the signatory in the Entry Exh. 1631 of the Hotel Amber at Mumbai. Even this panchnama like Exh. 721 do not bear much significance. FINDING : Panchnama Exh. 721 and Exh. 723 are not significant. (48) PANCHNAMA EXH. 711 (a) This is the panchnama of the recovery of weapon from A-30 and A-31, the panchnama has been drawn prior to the arrest of A-30 & A-31, the police and panchas were in watch for A-30 & A-31 at which point of time, the confidential informant of the assignee officer-PW-162 was present. The A-30 & A-31 had come walking from Sonal Cinema who were identified by the confidential informant. At that time, both of them were caught. In the personal search of A-30, a country made revolver along with 4 cartridges was attached, from the personal search of A-31, a hidden revolver from his waist with 3 cartridges was found, both the accused were unable to produce permit or licence when asked for, the A-31 had
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country made revolver, both the weapons and the cartridges were attached and A-30 & A-31 were arrested.
(b)
PW-24 is the panch witness No.1, who has proved the contents of the panchnama Exh. 711 by his substantial evidence to the satisfaction of this Court. This witness was cross-examined, the witness has admitted that police was writing the panchnama, the witness has signed in panchnama and panch slip together, but he firstly, signed in the panchnama and thenafter in the slip, the witness admits that he and another panch were going to Sarkhej for the work of their vehicle at which point of time the police stopped them (This shows there were public witnesses to witness the panchnama).
(c)
When in the cross-examination it is admitted that both the panchas were sitting on the scooter and the informant was standing nearby and both the accused were coming from Sonal Cinema and the muddamal weapon was seen by the panch, the whole panchnama stands proved and there is absolutely no dent of doubt against the panchnama. In the opinion of this Court, the panch No.1 has duly proved the panchnama by which the fact that A-30 and A-31 were caught with the unauthorised weapon from their conscious possession stands clearly proved. This is since chance recovery, the chance of plantation is totally out of question.
(d)
In the opinion of this Court, the witness is found consistent, is not a stock witness, is a natural witness, no doubt is created against
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the witness, no discrepancy in the oral evidence or cross examination can be found. (e) PW-162, the assignee officer, in whose presence the panchnama has been drawn has deposed that he was issued Yadi Exh. 1326 to be in watch for A-30 & A-31 and that panchnama Exh. 711 has been duly drawn by him. He further states that article 100 to 103 are two revolvers and one cartridge which has been attached from A-30 & A-31. Yadi Exh. 1327 is of handing over the muddamal and accused to the charge officer. (f) In nutshell, the muddamal article No. 100 & 101 were recovered from A-30 which is country made Revolver and 4 cartridges from A-30 and muddamal article No. 102 & 103 the revolver and 3 cartridges have also been attached from A-31. Exh. 707 to 710 are the different panch slips which all tallies with the prosecution case. Upon perusal of paragraph 61 in the cross-examination of A-30 & A-31 of this witness there is absolutely no substantial challenge to the deposition of this witness. It is, therefore, held that the panchnama Exh. 711 by which the weapons have been attached from A-30 & A-31 has been duly proved and the substantial evidence of the panch witness and substantial evidence of PW-162 read with panchnama Exh. 711 clearly book A-30 & A-31 for being in unauthorised possession of the weapons. FINDING : The panchnama Exh. 711 is admissible and link A-30 (article 100 & 101) and A-31 (article 102 & 103) with the charged crimes.
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(49) PANCHNAMA EXH. 1570 (a) This panchnama is the panchnama of Identification Parade of A42 in presence of the Executive Magistrate (PW-190). (b) As emerges from oral evidence of PW-190, the Executive Magistrate, he was working in city of Ahmedabad as Executive Magistrate at the relevant time. This witness received the Yadi in the concerned Crime Register number to hold the Identification Parade, which is Exh. 1567, on which the witness has made necessary endorsement (on perusal dated 13/11/2003). (c) As deposed further, the Identification Parade with reference to the said Yadi was then cancelled (Yadi Exh. 1568 dated 17/11/2003). That thenafter a fresh Yadi vide Exh. 1569 (on perusal dated 20/11/2003) was given by the Investigating Agency on which the witness has fixed the date for the Identification Parade to be 20/11/2003 at 16:00 hours and accordingly, the Yadi was endorsed. (d) As has been further deposed, the Identification Parade was held on 20/11/2003 at 16:15 hours in the Court House where 2 public witnesses were called upon and the proceedings were started by the Magistrate witness, the accused was brought in the Court as per the lawful norms, the dummies alike A-42 were called of the same appearance, age, height etc., the name, address etc. of the accused was taken note of., the accused was permitted to change his clothes, who did so, by removing his jacket. The accused was permitted to stand in the queue at the place of his choice along with dummies. Thenafter, the witness (to identify) was called
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upon, who was explained the procedure of the Identification Parade. The procedure of panchnama was held by the witness. (e) This witness was cross-examined for A-42, wherein, the witness admits that the signatures of the witness (who identified the A-42) or A-42 have not been taken, there was no procedure to keep any record in the register about the identification held, no personal diary for the said purpose was kept, the witness has further volunteered that the file is being kept, which is kept in the custody of the witness which the witness used to carry in case of his transfer for which the note to the superior officer was not been made, the witness admits that the documents produced vide the list that day were carried at Balsar (the place of his present posting), which he has brought today, there was no note whatsoever been made about the presence of A.C.P. As admitted, it was true that the name of the witness to identify was not written in the Yadi (Exh. 1567), the photograph of the suspect or the witness to identify were not given to this witness, the proceedings of verification of the name of the witness and the suspect have not been noted, the dummies were Rickshaw drivers, the Rickshaw stand was close to the Court, the Court of the Executive Magistrate had the other workload also, the witness was knowing that the accused is not from Gujarat State, the Courtroom was closed when the witness came, the topography of the Court has been asked. Moreover, the authority of the witness to hold the test Identification Parade, the discrepancy between the 2 Yadis', and the nonmention of the language known to the accused were posed in the cross-examination, but this Court has no reason to believe from the material elicited in the cross-examination, that the testimony of
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PW-190 is not safe to act upon. In the opinion of this Court, the reply did not shake the very faith reposed in such Identification Parade by the Criminal Procedure Code. (f) If the cross-examination is carefully perused, it does not articulate any material which forms proviso of Section 291-A of Cr.P.C. Moreover, the production of Yadis' Exh. 1567 to 1569, the Rozkam Exh. 1571, all proved and signed and/or endorsed by the witness are clearly corroborating the Exh.1570 panchnama. (g) As far as the above referred cross-examination is concerned, it is clear that no material was elicited from the cross-examination which can create any reasonable doubt against the testimony of this witness, who is in noway interested in the prosecution or has no animus against the accused and has no reason to falsely involve the accused in the crime. Some part of the crossexamination is related to idealism, but the Court should live in the world of realism. Unless, there is violation of any mandatory provision or of the official act for which presumption to have been performed properly is provided in law then the lacuna can be termed to be substantial challenge, but such defence has not been established by the defence. (h) Upon perusal of the procedure mentioned in the panchnama Exh. 1570, it seems that the same stands proved by the PW-190 through his substantial evidence. The identifying witness, in presence of this Executive Magistrate witness, has identified the A-42. Exh. 1571 is the Rozkam of the proceedings.
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The positive and substantial evidence of the Executive Magistrate is found quite convincing one and that no reasonable doubt whatsoever has been created against the testimony of this witness. (i) On account of the statutory provisions in Cr.P.C. of Section 291-A, non-examination of the witness Mohammed Aiyub cannot come in the way of the prosecution. (j) This Court firmly believes that Section 291-A is extremely clear, the Identification Report viz. Exh. 1570 herein can be used as evidence in any trial, even if such Magistrate is not called as a witness except when the proviso is attracted. (k) In this case, the prosecution has examined the Executive Magistrate himself and that it gives strength to the finding that Exh. 1570, the Identification Parade Report, can safely be used as evidence in this trial and that it is admissible in evidence. FINDING : It is hereby held that Exh. 1570, the test Identification Parade Report / Panchnama is thoroughly proved by PW-190, is admissible, relevant, dependable and creditable one. The identifying witness has identified A-42 to have been known to the witness right from Kolkatta. He identified A-42 as a person who came to receive him and the wife of Rasulkhan Party (the absconding accused) at the Hotel and took him and wife of Rasulkhan Party to Bangladesh and after eight days the A-42 again came to Bangladesh to receive him back and then escorted him till Kolkatta and has added that hence he is able to easily
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identify A-42. This panchnama involves A-42 accordingly. (50) PANCHNAMA EXH. 1729 (a) This is the panchnama by which from PW-133 Shri Suresh Nathabhai Patel of the Money Exchanger Firm article 14 and 15 before the I.O. PW-198 were recovered during the investigation. (b) No panch witness of this panchnama was being examined by the prosecution. (c) In the light of the oral evidence at paragraphs 21 to 24 of the I.O. PW-198 in whose presence the panchnama Exh. 1729 has been drawn and in the light of the oral evidence of PW-133 this panchnama needs to be held to have been validly proved which is the panchnama of recovery of Bharatiya Book, wherein, Entry No. 14, as explains in the panchnama, read with oral evidence of PW133 and PW-198, relates to the fact that Rs. 1200/- is figure of commission and Rs. 600/- reveals to have sent Rs. 6,00,000/from Ahmedabad to Mumbai. The entry is Ahmedabad 1200 Mustaqali 600 Thakur. (d) From the oral evidence of PW-133, it becomes clear that the muddamal article No. 14 & 15 were produced by this witness. As stated in his examination-in-chief, that the Entry No. 14 was related to the Entry of Mustaqbhai and Thakurbhai. He states that in the Bharatiya what has been written as Rs. 600 is to be understood as Rs. 6,00,000/- according to the usual practice of his firm. According to this witness, Rs. 6,00,000/- were sent by one Mustaq to one Thakurbhai at Mumbai.
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(e)
During the course of cross-examination PW-133 has admitted that Rs. 6,00,000/- have been paid to Thakur at Mumbai. No proof of identity of the person who sends money through the Money Exchanger is being taken by his firm and that with whatever name the person is introduced, the name of the person is accordingly perceived. Thus, vide the oral evidence of PW-133, it is not proved beyond reasonable doubt that A-50 has entered into transaction of sending Rs. 6,00,000/- to Thakur at Mumbai through the Money Exchanger Firm of this witness. The identity of A-50, being sender, was admittedly not confirmed by the firm of the witness.
(f)
For the purpose of proving the panchnama oral evidence of the PW-198 is sufficient as the consequential recovery is corroborating the contents of the panchnama and even the oral evidence of PW-133 also corroborate the same. FINDING : The panchnama Exh.1729 is hereby held to have been validly proved and is admissible.
(51) PANCHNAMA EXH. 1215 (a) This is the panchnama by which in one of the room near the cupboard at Green Bungalow a write-up of 3 lines seems to be age old has been photographed and has been got examined by the FSL, wherein, according to the prosecution it is written in Gujarati as Bawa and Number 244264.
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(b)
The prosecution has proved this panchnama by the panch witness No.1 who has been examined as PW-142. This panch witness has proved the panchnama which has been corroborated by the I.O. No doubt has been created against the propriety of the procedure of the panchnama, but it needs to be noted that the words which have been photographed and for which FSL observation of the site was arranged have not been explained by the prosecution in any manner. The write-up mentioned in the panchnama is not proved to be incriminating one by any independent evidence and that the identification of Bawa and his telephone number are proved to be not connected with any part of the prosecution case. In the panchnama itself there is mention of it being not legible with naked eyes and about the written contents hypothesis can be drawn. The contents therefore held to be not relevant. Hence, though the contents of the panchnama cannot be doubted and is admissible it has no worth whatsoever. FINDING : This panchnama is therefore held to have not taken the prosecution case forward and no assistance is provided by this panchnama in proving the prosecution case. No relevancy of this panchnama has been proved.
(52) PANCHNAMA EXH. 783 (a) This is the panchnama by which the weapons and or cartridges have been recovered from A-9 & A-10, in presence of PW-162 & PW-154.
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(b)
Panch witness No.2 of the panchnama had passed away and PW38 is the panch No.1 of this panchnama, who has deposed on oath that on 18/3/2003 near Dariapur Dabgarwad at about 9:15 p.m. he was called upon as a panch witness since the accused were to be arrested. After the accused were arrested, it was learnt from them that one was Tariq (A-9 herein) and another was Razasha (A-10 herein), he was informed by the police that the 2 accused are to transact for the weapons were to be arrested, Shri Waghela and Shri Barot (the police officers) who were in watch and another panch Alpesh was with them. After sometime, near Mastan Mohallah from beside the Mosque, a man came slowly walking who was identified, he stood there, after 10 to 15 minutes another person came walking from Dabgarwad, both have talked, both the persons were cordoned, on asking their names, the first man who came and stood has told his name to be Tariq (A-9), in his personal search, from right side of the pocket of his pant, a plastic bag with 10 cartridges were recovered, on asking the name of the another person, he told his name to be Razasha (A-10), his personal search was also carried out, from the right side of the waist part of his pant a revolver with magazine and another revolver was also found from his right pocket which was also recovered. The pistol was in working condition, muddamal article No. 82, cartridges shown to the witness are identified to have been recovered from A-9 Tariq. The muddamal article No. 83 and 84 are also identified by the panch witness to have been recovered from A-10 which are pistol and revolver. Panch slips have also been deposed to have been signed. The panchnama has has been proved by this witness.
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(c)
This witness was cross-examined, where he stated that he is 10th Standard fail, he is not acquainted in writing Gujarati, is originally belonging to Rajasthan, was working in Geetaben Rambia Trust, he is not member of V.H.P., he did not remember any special proceedings or important occurrence on 6/7/2006 and 4/12/2006, the witness denies to have been knowing Anwar or Hamid, he states to be knowing Nabi Ahmed who was imprisoned in brownsugar case, where the witness was a panch witness, the witness has become the panch witness in many cases relating cruelty to animals, the witness admits to have signed in one panchnama of Narcotics and to have singed 4 to 5 panchnamas of crime branch which cases were filed by P.I. Shri Barot and Shri Waghela, the witness did not as to whether Tarun Barot was in crime branch at that time or not. The witness admits his going to crime branch as panch witness where the Muslim accused are there and the muddamal is recovered, the witness is unaware about the terms required for seizure and sealing, the witness admits to have signed in panchnama and panch slips, the witness has not seen the cartridges before, the witness is unable to give physical description of A-9, the witness also did not know the occupation of A-9. At page 5 of the deposition, the witness has denied that he is a special panch witness of the police, the witness has also admitted that he has passed through Dariapur Dabgarwad for many times, he was standing in watch 10 to 15 feet away from the Mosque, another panch Alpesh and P.I. Shri Barot were standing in watch, even P.I. Waghela was also present, another panch had passed away, the 2 ways near the Mosque, one towards Dariapur and another towards Swaminarayan Temple are the two opposite ways, P.I. Shri Waghela was standing in the watch, the panch was knowing the name of the accused.
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(d)
A forceful submission has been made for the defence that this witness is not the witness of truth and that he is a stock panch witness who is often going to crime branch as panch witness and that he being a stock panch of police no importance can be attached to this witness.
(e)
In the humble opinion of this Court, the overall tenor of the deposition of this panch witness shows that this witness has not left a single stone unturned to oblige the defence. It is true that he has proved the panchnama, but at the same time, he has obliged the defence, it would be difficult to title such a witness as stock witness except for the affirmative replies in the cross-examination, there is no other material on record to believe that the witness is frequently going to crime branch, the witness seems to be serving person and that he was serving in Geetaben Rambhia Trust, which is a known Trust working for the cause of cruelty on animals, it is, therefore, clear that his knowledge on the work of the Trust has been used by him to oblige defence where he has said that he was panch witness in many such cases related to animals, but without any material, this fact cannot be believed on its face value looking to the tenor of deposition. Consort of A-9 & A-10 can be seen, as is emerging from the panchnama. The witness has smartly tried to be in a way a qualified hostile witness to oblige the defence. There is no material whatsoever to support the replies given in the cross-examination. If the defence wanted to create a reasonable doubt that it must put on record and show to the witness the material upon which the cross-examination was made until which it becomes a fanciful doubt. This Court firmly believes that the witness has tried to play the trick of blow hot and blow cold while he has proved the
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prosecution the witness has also tried to oblige the defence. Upon relying such cross-examination, the Court could not hold that the panchnama is not creditworthy. If the question in the cross-examination are aimed to raise doubt on the aspects that the witness was also panch witness in brown-sugar cases, in the cases of cruelty on animals, in cases of crime branch filed by Shri Tarun Barot & Shri Waghela and to be panch witness in the cases where accused are Muslims, then the defence was required to undergo more exercise. It is more so when in paragraph 14, the witness has denied the suggestion that he is a special panch witness of the police. (f) Upon perusal of the oral evidence other than as discussed above, no doubt remains in the judicial mind that the panchnama Exh. 783 stands duly proved when there is nothing that the witness was fiscally obliged by the police or was a tout of the police when the panchnama also stands duly proved by two of the police officers and when it was a chance recovery which does not become doubtful inspite of the extensive cross-examination. (g) Had the PW-38 been really a stock panch witness he would not have obliged the defence in a way he has obliged, this Court does not see ring of truth in the cross-examination to disbelieve the panchnama by which proceeding incriminating materials from A-9 and A-10 have been recovered. (h) PW-162 in whose presence the panchnama Exh. 783 was drawn also helps the prosecution who has been cross-examined by learned Advocate for A-9 at paragraph 59, this witness has only been asked that while A-9 was arrested there was no evidence against him which suggestion has been denied by the witness to
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be true. It has been admitted that the investigation about source of the cartridge of A-9 has not been done (which is indeed not necessary also). (i) If the suggestion made to the PW-38 panch witness was genuine, correct and had basis, the said question should have been asked to this witness also which also shows that PW-38 has obliged the defence by admitting that he has signed about 4 to 5 panchnamas of the crime branch which were the cases of PW-162 and PW154. No suggestion to police officer that the panch witness was his man is quite relevant. This smartness on the part of the defence of not asking this question to PW-162 itself is suggestive that the PW-38 has played the game in consultation with the defence by bringing on record certain replies in affirmative which the defence and PW-38 know to be untrue and which were merely aimed to create doubt. (ii) In paragraph 55 of the oral evidence of PW-162, the crossexamination taken for A-10 has been recorded. Upon carefully perusing paragraph 56, it becomes amply clear that the PW-38 has obliged the defence as the relevant cross-examination of PW162 runs as it is not true that PW-38 was known to me from the beginning, PW-38 was called as panch at Sultan Mohallah, no preliminary questions were put up to the panch, the panch was not asked about the factum of being panch in past or not, only name and address was asked, the fact that PW-38 was working with Geetaben Rambhia Trust was not learnt while he was called as panch witness, during the service period at crime branch, I have not investigated any narcotics case and in case of animal cruelty, it is not true that PW-38 is the panch of my choice and he has been frequently used by me - Paragraph 56.
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(iii)
In paragraph 57 also no substantial challenge has been made by the defence which would lead to disbelieve the panchnama and to hold PW-38 as a stock panch witness.
(iv)
In the humble opinion of this Court, when PW-162 has denied the factum of PW-38 to have been used in other panchnamas, the defence having special knowledge of the factum should show the documents concerned to this witness and to satisfy the soul of this Court. In absence of all above, it is not just, proper and right appreciation of the oral evidence to disbelieve the oral evidence of PW-38 by which the panchnama Exh. 783 stands validly proved as it is settled position of law that the part of the deposition can also be read into evidence. The part of the oral evidence, after appreciation and when defence has now posed any substantial challenge, supports the prosecution case needs to be believed when corroboration from oral evidences of two police officers is available.
(i)
PW-154 is the another police officer in whose presence the panchnama Exh. 783 was drawn. This witness has corroborated the contents of the panchnama and the oral evidence of the panch witness vide paragraph 14. At paragraph 48 of the oral evidence of this witness, the cross-examination has been recorded, this cross-examination is also not in the tune of the cross-examination of PW-38. Hence, the discussion made hereinabove, for the cross-examination of PW-162 would clearly be applicable in the case of this witness. The allegation of stock witness (PW-38) or panch of the choice have even not been
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JUDGMENT
suggested. (j) In light of all the above, this Court firmly believes that the PW-38 read with PW-154 and PW-162 the panchnama Exh. 783 stands proved upon reading the oral evidences in its totality. FINDING : The panchnama Exh. 783 is held to be admissible, reliable and relevant. From the personal search of A-9, ten live cartridges and from the personal search of A-10, one pistol from the right side pocket of the pant and one country made revolver in working condition was found which were attached (muddamal article No. 82 to 84). (53) PANCHNAMA EXH. 785 (a) Vide this discovery panchnama, the country made Tamancha was discovered from A-24. (b) PW-38 is the panch witness of panchnama Exh. 785, this witness is panch No. 2 who states on oath that panch No.1 had already passed away, In paragraph 7, this witness has deposed that he was called on 18/5/2003 in the noon at the crime branch as the accused wanted to shown something and this witness was called as a panch at the office of the crime branch, the accused has told the name to be Atthar parvez, the accused was present, P.I. Shri Barot was present, policemen were present, the mutual personal search of panch and policemen was done, nothing was found from either the panch or the policemen, preliminary panchnama writing was done and the witness has signed. The panchas, accused, Shri Barot and police personnel sat in the Government vehicle
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JUDGMENT
who from Gaikawad Haveli went to Bapunagar where near the Mosque there was a cabin of B.S.N.L. where the vehicle was stopped, the accused took all near the Mosque where there was heap of waste material, from the heap of the waste material the accused took out one weighty plastic bag, which was opened up, which had a country made Tamancha, the licence of which was sought from the accused, but he did not have, muddamal article No. 95 was shown to the witness which is identified to be a Tamancha brought out and produced by the A-24, the signature on the panch slips and panchnama have been identified, the panchnama has thus been exhibited as Exh. 785. (c) At paragraph 14, the cross-examination of this witness has been recorded, which reads as under I was called on 18/5/2003 from the office of Mandvi's Pole to crime branch which is at a distance of 2 to 3 Kms, I do not know the name of the police who came to call me, I did not know A-24 from the beginning, I had no conversation with A-24, until the panchnama was completed, the heap of the waste material is outside the Mosque and there is a public road outside the Mosque, it is not true that I am the special panch witness of the police and it is not true that no proceedings of the discovery of the weapon from A-24 was done in my presence. (d) It is clear that the cross-examination has in no way falsified the oral evidence, no reasonable doubt has been created against the prosecution case as proved by PW-38 who has proved the panchnama Exh. 785 and thereby proving the discovery of the fact that the A-24 had concealed the weapon and was in possession of the weapon without licence.
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(e)
As the contents of the panchnama shows the A-24 was desirous to say and show something and that he has informed the panchas his name to be Atthar parvez and has informed the address, the A-24 has also stated the he was desirous to show the weapon concealed by him, the mutual personal search has been noted to have been held of the panch witness and police officials etc., the preliminary panchnama has been drawn, both the panch witnesses have signed it and it was signed by PW-154 along with panchas. The journey was started on the route shown by the accused, the vehicle was stopped where the accused told to stop, beside wall of the Momin Mosque, there was a cabin of B.S.N.L. outside which the heap of waste material was there, after removing the waste material, the accused had taken out a weighty plastic bag from a pit, it was a country made Tamancha. Upon asking the A-24, could not produce any pass and permit for the weapon, as noted in the panchnama the house of the A-24 is very close by, at the end of the panchnama signature of the panch witness and of PW-154 can be seen.
(f)
PW-154, the assignee officer, in whose presence the panchnama has been drawn has been cross-examined which has been recorded in paragraph 53 of his oral evidence, the witness has admitted that in the panchnama the signature of the accused is not obtained and that there is no signature in the panchnama of the accused (this is even not essential), the witness has stated that it is not true that A-24 was illegally detained prior to his arrest and therefore Special Criminal Application was filed and the accused has not been arrested as shown. Many suggestions have been denied by the witness, but mere suggestions and that too when denied, cannot create doubt without any other material.
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JUDGMENT
(g)
In the opinion of this Court, no reasonable doubt whatsoever is created against the panchnama and that looking to the overall facts and circumstances of the case, this Court cannot accept the submission that the country made Tamancha is not probable to have been hidden at such a place, this Court believes that when the residence of the accused is nearby, it does not sound to be absolutely improbable that the accused would not conceal the unauthorised weapon under the heap of the waste material which is within the constant sight of the accused as he was since residing nearby. The other reasoning on this submission are to be dealt with by this Court in conclusion part of this topic, hence it is not being repeated here.
(h)
The weapons concealed by different accused in this case cannot be compared with the incriminating material of other accused in other cases where the accused have in fact used the weapon in committing the crime. In the instant case, the accused have collected the weapon as a part of the criminal conspiracy hatched among them. The object was to strike terror among the people, whereas, in other cases where the weapon has been used to do away someone which is therefore totally on different footing, where the mental state of the accused is to see to it that the weapon is concealed in the manner by which it should not be available to anyone to rope him as such weapon would connect the accused with the crime because of the blood stains etc. Here, in this case, the weapons are unused and the object of possessing it is to use it in fulfilling the illegal agreement entered
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into among the accused persons. Here, the mental state of the accused can be to hide the weapon, but at times the accused may think not to keep it in his house but to keep it away where he could have the watch and still when recovered by someone he could escape from the liability of possessing and concealing the same. Moreover, the time on its use is when not certain and is dependent on instructions from the leaders the mentality of the accused would be why to take a risk of keeping the weapon close to chest when it can be kept at the public place from where it can be taken in the time in need. Considering the said mental state of the accused to be extremely probable in the kind of the offences being adjudicated this Court has no hesitation to hold that there is no substance in the defence version. (i) However, the principle is to be remembered that in case of discovery of the weapon from the public place which is easily accessible more care and more detail scrutiny is required by the Court. Upon so doing and noting the fact that PW-154 is merely a police officer and unless there is reason to believe that the said officer is unreliable witness and or is out to falsely book the accused it is not a right approach to appreciate the oral evidence with initial distrust. (j) The panch witness has thoroughly proved the panchnama, no reasonable doubt is created upon perusal of the oral evidence of the panch witness and the police officer. Merely same panch witness in this panchnama has been repeated it does not seems to be doubtful and when no material has been foisted by the cross-examination to doubt the contents of the panchnama, this
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JUDGMENT
Court is inclined to believe the panchnama to have been properly and lawfully drawn and the contents of the panchanama has been proved by the panch witness and has been corroborated by the PW-154 which panchnama is held to have been validly proved. (k) While drawing the discovery panchnama it is not necessary to take the signature of the accused, what is needed is that the accused should be in police custody, he should voluntarily disclose the fact before public witness, and the disclosed fact results into discovery. These all requisites are held to have been satisfied in the case qua A-24. FINDING : The panchnama Exh. 785 is a reliable, admissible and relevant piece of evidence, validly proved by the panch witness read with the other oral evidence. From A-24 discovery of country made Tamancha in working condition was found. (54) PANCHNAMA EXH. 719 (a) (b) This is the panchnama of discovery of weapon from A-23. PW-26 has been examined as panch No.2 of this panchnama, this witness has deposed that on 13/5/2003, at about 4:30 he was called upon at crime branch, he was informed that some accused wanted to disclose something for which he has to be panch witness, at the crime branch P.I. Shri Barot and other policemen and one accused as well as another panch were present, the accused present there was called by the policewala as Farooq, the accused was desirous to disclose something as was informed by the police, the preliminary panchnama was prepared,
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JUDGMENT
thenafter, in the Government vehicle accused, panchas and others sat and on the route shown by the accused they all had been to one Mosque at Sarangpur, the vehicle was stopped by the accused, all were taken to a pole (street in the walled city area) by the accused, everyone along with the accused went in his house where his sister-in-law was present. They then went on the first floor, near the bathroom something like cage was laid which was pushed and from one cave like hollow a plastic bag was taken out by the accused, this hollow was in the wall, the weighty revolver was lying in the plastic bag where from 47 live cartridges were found. Muddamal article No.92 was shown to the witness, which is weapon which the witness has identified, the panch slips have already been identified to have been signed by the witness as panch, muddamal article No. 93 has also been shown wherein, 36 live cartridges and 11 used cartridges which were recovered from the house were identified, the panchnama Exh. 719, the discovery panchnama has been proved by the witness. (i) This witness was cross-examined mainly on the ground that many times traffic cases were filed against him because the witness was driving Rickshaw and once he has paid the fine (This does not create doubt). Another panch was present in the police station prior to the witness came (This proves the presence of another public witness). Admission that in his presence 36 live and 11 used cartridges were not recovered is the part of the cross which helps the prosecution as the use of the cartridges is while its test at FSL and not by the accused. An attempt to suggest plantation of the weapon is not significant unless asked to the police officer. (c) PW-154 is the assignee officer before whom the panchnama Exh. 719 has been drawn, this witness at Page 7 of the continued
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paragraph 15 has proved the contents of the panchnama Exh. 719, the muddamal article has also been duly identified by the witness who has vide Yadi Exh. 1254 was assigned the job of carrying the panchnama and who vide report Exh. 1255 has given compliance report to the I.O. (i) This witness was cross-examined, at paragraph 53 this witness has admitted that the inward and the outward letters are being noted in their office, it has been admitted that the panchnama Exh. 719 of A-23 has been drawn and panchnama Exh. 785 of recovery of the weapon has also been drawn for A-24 (The witness is the assignee police officer who upon assignment does a job and when such witness has drawn two panchnamas it sounds natural), the witness has clarified that in the panchnama signatures of the accused is not been taken, the suggestion has been denied that in case of accused they were illegally detained for which Special Criminal Application before the Hon'ble High Court of Gujarat were filed. (d) In the humble opinion of this Court, the admission of the panch witness that the plastic bag was not suitable for the muddamal article does not raise any reasonable doubt against the proceedings of the panchnama as it so happened in the FSL, in the Court of learned Metropolitan Magistrate and lastly while producing before the Nazir of this Court and then while trial bringing before this Court, the outer packing even seal is getting disturbed and in case of FSL even if it is sealed it is being opened up and then repacking at FSL is done. Hence, the suitability of the cover or the colour of the plastic bag etc. cannot lead the Court to hold that something is smelling foul, the fact that the vehicle was not searched also is not found of any relevance and is merely an
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JUDGMENT
irregularity there does not seems to be any possibility of the plantation in any case as noted even the ballif sometimes change the cover or container to produce the muddamal on every occasion in the Court. In this case, there are many muddamals, therefore, also the change of cover sounds very probable and natural. Hence, no doubt is created on this aspect. Moreover, the assignee officer has not been cross-examined on the aspect of container or cover of the muddamal revolver. Hence, the cross-examination of the panch witness looses its significance. (e) Moreover, if the panchnama Exh. 719 is carefully read then the recovered revolver was kept in white cotton bag, whereas, the cartridges were kept in the plastic bag. It, therefore, sounds very natural when the panch witness says that the plastic bag of muddamal article No. 92 was not suitable for the revolver. When the panchnama is clarifying that the revolver was kept in cotton bag, this question does not arise and no doubt is created from the cross-examination of the panch witness. (f) It is clear as daylight that the accused was in custody, the assignee officer along with the panch witness after disclosure statement of the accused before the panchas went to the site shown by the accused it was his own house, in his own house there was secret hollow in the wall - which otherwise would not have come to the notice of the police the accused himself took out the incriminating revolver and the said is then recovered. This is clearly establishing all requisites of Section 27 of the Indian Evidence Act and that the A-23 is hereby held to have had not
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JUDGMENT
explained, illegal, unauthorised, unlicenced, conscious possession of the country made revolver article No. 92 and the 47 cartridges article No.93. FINDING : The panchnama Exh. 719 is held admissible, validly proved and relevant by which discovery of muddamal article 92 and 93 of country made revolver and cartridge were effected from A-23. CONCLUSION FOR ALL THE PANCHNAMAS : There are in all fifty four panchnamas been drawn during the investigation by different I.Os. and the assignee officer. In case of all the panchnamas which have been hereinabove held to be admissible and relevant. There are many common factors which have though been discussed hereinabove, in this concluding part they have been repeated to put them in a capsule form. 1. The panch witnesses are found to be independent and impartial witnesses of the discovery of fact and consequential discovery of the muddamal and in any case their presence while drawing the panchnama is not doubtful. 2. Labeling the panch witnesses as stock panch witnesses or the stooges in the hands of the police or the police tout is quite common, but then ultimately, it is the duty of the Court to distinguish between the persons who act as panch witnesses as the reward of the obligation by the police or the panch witnesses who are being fiscally rewarded or in any another manner being
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JUDGMENT
obliged by the police and the panch witnesses who coincidentally for the reason of their easy availability are becoming the panch witnesses. In the case on hands, this Court did not find any material for any of the repeated panch that the said panchas were stooges in the hands of the police or were the police touts, it is found that they were not obliged panch witnesses by the police or were out to falsely book the respective accused. However, as opined repeating the same panch is not a welcome practice but at the same time it is to be remembered that normally people do remain aloof and away from police proceeding and Court proceedings and in this case the word terrorist activity is such which would be a hurdle to secure public witness still however none of the panchnama has been drawn without presence of public witness. The admitted signature of panchas on panch slip and panchnama provide a very strong support to the presumptions u/s. 114 of Indian Evidence Act of propriety to every panchnama it being official act no rebuttal to the presumption has been given in any of the panchnama. No reasonable doubt is also created against its legality and validity. 3. The attesting witnesses of the seizure sometimes may become hostile which now has to be treated as common fate of every criminal trial but merely that can never become decisive factor if convincing oral evidence of police officer concerned is on record, which is in the case for every panchnama. If the fact is discovered which the police did not know prior to its discovery and the fact is discovered at the behest of the accused
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and upon the voluntary information given by the accused, then the said fact discovered is admissible in evidence and that the statement of the accused in such cases is admissible in evidence. This would squarely be applicable in the above referred admissible discovery panchnamas as the accused are found to have voluntarily discovered the facts which were found relevant to connect the accused with the crime. The conduct of the accused is to be seen with Section 8 of the Indian Evidence Act. 4. No circumstances are made out which affect credibility of the version of the assignee officers or the police officer who were working upon the instructions given to them or upon the assignment of the particular work given to them. 5. Section 27 of the Indian Evidence Act nowhere requires that unless the panch witness identifies the accused in the Court, the panch witness cannot be believed. It is true that if the panch witness identifies the accused, the same becomes an additional strength for the prosecution, but merely that cannot be held to be a lacuna which can be treated to be fatal when from other oral evidences, circumstantial evidences, the conduct of the accused, the resultant discovery of the fact, the panchnamas are found to be admissible and the facts discovered were found relevant to link the respective accused with the crime. 6. There is nothing on record to believe that any of the accused at any point of time was in illegal detention as submitted for defence. This point has been dealt with in detail under the discussion for compliance of Section 52 of POTA.
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7.
In cases of all the panchnamas wherefrom the arms or ammunition have been recovered from the accused, it is clear that the accused were found in conscious possession of the said arms or ammunition. None of the accused has produced any licence permit or any justification for keeping the arms or ammunition. The conscious possession of the accused of arms or ammunition has to be seen with the other part of the prosecution case and hence it cannot be taken lightly by the Court.
8.
This Court humbly believes that the police officers are also public servants and prima facie public servants are presumed to act honestly. It is not a good practice to all the while doubt the versions of the police. In case of all the assignee officers and the investigating officers, their versions are found to be reassuring the evidence of the panch witness and/or thoroughly proving the panchnamas and that the said oral version before the Court has been found to be clinching, believable and convincing.
9.
This Court also is required to deal with a very repeated submission wherein it has been submitted that when the discovery is from public place where the easy accessibility to the public is there, it is unsafe to act upon such discovery which are plantation by the police. This Court has pondered over the submission. It is felt that following points need a note :
(a)
What this Court is dealing is not an individual act of any individual accused, planned individually or of the case where the offence has already been committed and thenafter the accused was needed to conceal or hide the weapons and where offence has
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been committed against individual, or the weapon has been concealed after one is done away. (b) This is a case wherein the target is the society as a whole and not the individual. This is a case of organised crime where institutionalised behaviour is to be seen, wherein different roles have been assigned to different accused. The weapons might have been purchased by someone and they might have been given to someone and they might be in conscious possession of the third person. (c) The accused from whom the weapon has been recovered need not be the owner of the weapon nor would it be purchased by the accused. The mental state in such cases is bound to be different from the usual cases. (d) It is true that normally a person owns or possesses something would develop a tendency to keep the said thing close to his chest, but in this kind of cases, the said tendency would obviously be not there because this is a networking strategy. This is the team work. This is not the individual act or omission but it is designed and planned activity by an organised group working for the purpose. In the team work, it is the team which is always responsible. (e) The accused were not doing any official act. Hence they were not expected to act in a specific or systematic manner. Applying basic test of human probability may mislead the Court here because here the human probabilities have not to be seen, but what is to be seen is what a member of the team would do if he acts merely as a member of one team under the guidance and control of its
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leader. (f) In organisational behaviour, it would not be proper to apply the basic test of human probability because there who works is not the individual human being, but there who works is the organisation and it is the objects of the organisation which would govern the organisational behaviour which is the whole test. (g) The arms and ammunition provided to the accused are undoubtedly found in their conscious possession. To understand it as exclusive control of the accused or mental state of the accused in keeping them in the public place has to be seen in the light of the above discussion. (h) In the organised, preplanned crime, the use of the weapon was to be done as and when the target would be given to the respective accused. Until target is given, it is probable that the accused would have tendency to be away from the weapon. If the confessional statements given by the accused are seen, then a one-line story of the confessional statement is that some of the accused have been given terrorist training, but the use of the said terrorist training is to be made as and when the target would be given to them. Therefore, the person who has been given conscious possession of the weapon would always think that why to keep the risk unless the time to realize the target comes this goes with risk aversion mentality in team work. (i) It is very much probable that a person would like to keep it in the public place so as to see that in case the weapon would be found prior to the target is given, one can easily escape and as and
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when one requires, he or the other members of the team can easily acquire the physical control of the weapon. (j) The time when the discovery was made was not a time for target, is an admitted position. Therefore, the mentality of the respective accused is to be understood keeping in mind that this kind of offences are organised crimes, designed by someone, strategy is given by someone and the accused has only to act upon the said strategy. Therefore, usual human probability is not the right test, but the organisational behaviour is the right test in such kind of cases. (k) Each team, each organisation would adopt different modus operandi hence it is not safe or prudent to apply the cited cases to disbelieve the discovery and recovery from public places when the fact, circumstances and the organisation, purpose of it are different. This case has to be decided on its own merits. In the light of the foregoing discussion point 9(a) to (k), this Court does not find any substance in the submission that the weapons which have been recovered from the public place cannot be held to be genuine recovery or discovery. 10. Lastly, it is also an important factor which this Court has considered that there is absolutely nothing on record to hold that the recovery from the respective accused was compatible with the circumstances of somebody else has placed it, somebody else to be in conscious possession and somebody else has somehow planted it and that the accused has somehow acquired the knowledge about the whereabouts of the weapons which again strengthen the findings of the panchnamas in the peculiar facts
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and circumstances of the case. 11. The question of plantation by the police officer sounds to be absolutely improbable. If the plantation has really been done then it would be done by which the prosecution case would become absolute full proof and would be involving all the accused with discovery of weapon. 12. Thus, in nutshell the defence argument are held to be baseless, not credible one, not acceptable one and it does not improbablise the discovery or recovery from different accused from the places shown by the accused and that, at the cost of repetition, it needs to be noted that all the accused mentioned hereinabove have been found to be in conscious possession of arms and ammunition from whom they have been recovered and that all of them have voluntarily given the information in presence of the panchas about the place at where the arms and ammunition are which have been recovered by adopting due and proper process of the panchnama to which Section 114(e) of the Evidence Act is applicable and that information given by the respective accused has been found relatable to the muddamal discovered. All the panchnamas are held to be validly proved, admissible, relevant, credible and dependable. ------xx-------xx--------xx-------
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PART-V
REMAINING PROSECUTION WITNESSES : (A) 1. APPRECIATION OF EVIDENCE OF HANDWRITING EXPERT The prosecution case qua A-1, A-2, A-3 & A-5 is that they had been to receive terrorist training at Karachi, Pakistan. The route they chose was going from Ahmedabad to Kolkatta and then from Kolkatta, after illegally crossing the Indian border going to Dhaka and from Dhaka, going to Karachi. 2. It is further prosecution case that while they were at Kolkatta, they have resided at Star Guest House from 22/12/2002 for which purpose register of Star Guest House has been recovered by the investigating agency. 3. Vide different panchnamas like Exh. 705, 714, 660, 732 and 648, different natural handwritings through securing the muddamal have been collected by the investigating agency and vide some of these panchnamas, specimen signatures of the respective accused have even been collected. 4. The natural handwritings, signatures and specimen handwritings and signatures of the accused have then been sent to handwriting expert to compare it with disputed handwriting of the accused made in the Hotel register. The opinion and reasons for all the above have also been collected by the investigating agency which are all on record. 5. PW 55 is the handwriting expert who has acquired special qualification, is working as Assistant Examiner of Questioned
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JUDGMENT
Documents from January 1978 at Director of Forensic Science, Gandhinagar, Gujarat. This witness states to have experience of examination of many questioned documents. In case of queries, he has returned the documents which have been received by him back by solving the queries for which the documents were returned to the investigating agency. The gist of the oral evidence of this witness is that the disputed handwriting and signatures are tallying with the specimen signatures and handwriting and with the natural signatures and handwriting of the respective accused. 6. Upon perusal of overall oral evidence of PW 55, it seems that the knowledge, experience, education, professional training and continuity in the field of handwriting expert from 1978 are all the factors by which it can safely be held that the witness is the expert on the subject and his opinion is based on his observations, comparison, understanding, study and experience on the subject. The written opinion at Exh. 888 and the reasons for the same at Exh. 891 have been authored by the witness which tallies with his oral evidence and the said had also been validated by Deputy Chief State Examiner of Questioned Documents, F.S.L., Gandhinagar, Gujarat State. Thus, the opinions and reasons can be termed to have been formed by two experienced handwriting experts of the Forensic Science Laboratory of the State of Gujarat. 7. The PW 55 has been cross-examined on the aspect of religion and the witness to be biased because of other terrorist cases, but there does not seem any substance in the said cross-
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examination.
The
cross-examination
on
the
study,
skill,
experience and finding of the two experts has also not helped the cause of the defence. In the humble opinion of this Court, during the course of the cross-examination, no material whatsoever has been elicited to rebut or to doubt the opinion and reasons for the opinion given by two different experts. Hence, it is hereby held that the opinion and reasons put forth by the two handwriting experts are most creditworthy, based on scientific assessment on the subject matter and are derived from personal expertise, knowledge and experience of the experts. 8. At this juncture, it is fitting to note that the defence has relied upon defence citation No. 21 to submit that since the photographs upon which the opinion has been based by the handwriting experts were not given to the defence, this opinion should not be considered. Having perused the contents of the cited judgment, it seems that the facts are different. In the case on hands, vide Exh. 886, the photographs of the handwriting have been placed on record. The defence has access to the said documents, but the defence has neither sought adjournment to study the same, nor sought certified copies of the same nor sought for copies from the prosecution and has nor examined handwriting expert from defence side. Hence, in this case, it cannot be said that the photographs of the handwriting were not available to the defence as the documents on which the prosecution relies upon. The facts being different, the cited judgment cannot be held to be guiding the Court to outright reject the opinion of the handwriting expert.
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9.
In light of the above, it is clear that while conjointly reading the oral evidence of the handwriting expert same opinion and reasons by two experts, it stands corroborated that from 22/12/2002, A-1, A-2, A-3 & A-5 were at Kolkatta and have stayed in Star Guest House where in the Star Guest House register they have signed which is corroborating the prosecution case qua their presence at Kolkatta.
10.
The defence citation at Sr. No. 20 has been relied upon to submit that the report of an expert is merely a piece of evidence which is not conclusive. This is the basic principle which this Court has humbly followed, but it needs to be noted that the principal evidence of the recovery of the muddamal, obtaining specimen signatures and the prosecution case gets due corroboration from the opinion of the handwriting experts. FINDING :
(a)
It is hereby held that A-1, A-2, A-3 & A-5 have resided at Star Guest House and have signed the register of Star Guest House while they were at Kolkatta from 22/12/2002. The PW 55 is held to be most truthful and credible witness who has proved the prosecution case.
(b)
During
the
course
of
the
investigation,
signatures
and
handwritings of some of the dropped witnesses have been recovered and sent for examination to F.S.L., but since these witnesses were dropped, the said opinion and reasons are not significant.
POTA/12/2003
583
JUDGMENT
(B) (1)
FSL OPINION OF BALLISTIC REPORT : As has been discussed above, vide different panchnamas and oral evidence, it stands proved beyond reasonable doubt that from many accused the incriminating arms and ammunition have been recovered at their behest and in some cases in their personal search. In some of the cases, there is mention in the panchnama itself that the weapon was found to be in working condition, but still however, the investigating agency has sent all the arms and ammunition seized or recovered from different accused to the FSL for the ascertainment of and to secure scientific opinion about the weapons whether were in working condition and were used or not and in case of cartridges, the said were found live or not.
(2)
The opinion and other material from the FSL qua all the arms and ammunition has been received which is forming part of the record which shall be discussed hereinbelow. Exh. 904 & 907 are despatch notes, Exh. 906 & 908 FSL opinion, Exh. 905 FSL forwarding letter and Exh. 914 and 915 are worksheets all related to PW-56. In case of PW-141 Exh. 1211-despatch note, Exh. 1212 & 1739 (same document) FSL forwarding letter and Exh. 1213 FSL opinion are all concerned to A-50 are on record.
(3)
Before switching over to oral evidence about ballistic expert and his opinion, it sounds fitting to deal with the submissions made by L.As. for the defence.
(a)
Defence citation at Sr. No. 25 and more particularly paragraph 23 therein has been highlighted to submit that when the report showing no connection between the gun and the cartridges and
POTA/12/2003
584
JUDGMENT
when gun is not sent for examination of fingerprints, it cannot link the accused. In the facts of the cited case, the ballistic expert has not been examined, the defence has examined the ballistic expert, it was a case of murder, hence proof of connection between cartridge and gun was vital. In the case on the hand, the accused has been charged under Arms Act and Section 4 of POTA for the unauthorized possession of arms and ammunition, hence the case in the hand is having absolutely different facts and therefore the requisites are also different. The cited case therefore cannot have application in the factual matrix of this case and in any case, it has only been discussed in the cited case that in the facts of the cited case had there been fingerprint evidence, it should have furnished strong corroborative evidence and nothing beyond that. Hence, it cannot be held in the case that the accused cannot be linked with the crime without there being the opinion of the fingerprint expert. (b) In case of A-50, delay in sending the recovered weapons to FSL has been highlighted to submit that such FSL reports do not genuinely connect the accused with the crime and benefit of doubt should be given to the accused. In case of A-50 the panchnama was drawn on 23/11/2004 and the weapons were sent to FSL on 5/2/2005. The delay could have been consideredl if the charge could be anything other than unlawful possession. The panchnama Exh. 1721 by which the arms and ammunition were seized from A-50 shows that they were sealed there only. Hence there is no material to hold that the
POTA/12/2003
585
JUDGMENT
weapons were likely to be changed. The submission is therefore found without substance. (c) This Court is of the opinion that the facts of this case are on the footing that a larger criminal conspiracy was hatched among the accused and that some of them had been to receive the terrorist training at Karachi, some of them have been found with arms or ammunition from their conscious possession without lawful authority for the same and that they were indulged in doing terrorist acts. If the documents of panchnama, recovery memo, despatch note, etc. are seen, then it becomes extremely clear that in case of every recovery and discovery, the weapons have been duly sealed by the respective Investigating Officer. Not only that, but each of the despatch notes is containing samples of the seals on different parcels, it is not the case of FSL that they have not received the sealed weapons, it is nobody's case that there is any allegation about the weapon to have been used by any of the accused in the charged crime considering which the importance of fingerprint diminishes, doubt about the change of the weapon is not created, identity of the weapon does not remain doubtful which has even not been questioned by the defence. (d) In case of A-50, a very forceful submission was made that mark U & V are the two weapons the measurements of which in the panchnama and despatch note are not same. Upon verification by this Court, no doubt is left in judicial mind about any change in the measurements of the weapons. This submission is baseless.
POTA/12/2003
586
JUDGMENT
(e)
In the facts and circumstances of this case, this Court is fully satisfied about the propriety of the procedure adopted by the investigating agency, oral evidence of the police officers, documents on record, in some cases oral evidence of the panch witnesses and ultimately as all the panchnama reveals the weapons were sealed where there was no chance of tampering and lastly above all, it has also to be remembered that this was a case of larger conspiracy where only one I.O. has not handled the affairs, he has however controlled it and supervised it, but he has taken work from many assignee officers and their staff members of the rank of police constables and police writers. Considering all the said things, such kind of errors seem to be bona fide which need to be ignored in the larger interest of justice.
(f)
Except in case of A-6, no discrepancy in the measurements has been successfully shown. Upon perusal of the panchnama Exh. 754, the measurements have been shown to be 17 cms. for the pistol and 10 cms. for its handle, PW 56 has deposed it to be pistol to be 19 cms. and the handle part to be 11.15 cms., in the worksheet Exh. 914 prepared at the FSL, to be specific on page No. 39, same measurements as deposed by PW 56 have been written.
(f-1) On the back side of page 39, there is a picture of the pistol recovered wherein Automatic Pistol, Made in USA is written and that looking to the sliding shape of the pistol and having typical curvature, it seems extremely probable that the police writer may write down the measurement to be 17 cms. which may be scientifically measured as 19 cms. In the same way, the handle part might be written in recovery panchnama to be 10 cms. and in
POTA/12/2003
587
JUDGMENT
FSL can be written as 11.15 cms. This is not the mistake or lacuna in the humble opinion of this Court, but this Court firmly believes that such thing is probable when the shape of the pistol is such that there are curvatures and sliding shape. In case of sliding shape, it is probable that one measures from the shorter size and another may measure from the longer span. As it may be, but this Court does not find the discrepancy to be serious in nature so as to doubt the change of weapon. (f-2) Moreover, if page 39 of the worksheet is seen, the picture of bird has been drawn which has been mentioned on the back side of page 39. In the same way, all the description in page 39 tallies with the panchnama of recovery of this muddamal perusing which there is absolutely no doubt about the factum that the same weapon which was seized and sealed was sent to FSL. (f-3) Here it cannot be forgotten that it is the case of A-6 from whom about 11 arms and ammunition have been recovered and in case of a peculiar shaped pistol. The discrepancy between the measurement of unskilled writer of the police and skilled scientist seems very natural. It is not a matter of doubt for any prudent and reasonable person. (f-4) In the same way, for muddamal article Mark Q, submission was made but there is absolutely no difference in the panchnama, oral evidence of PW 56 and the worksheet. Hence, no doubt is created against the fact that the weapons which were seized and sealed have only been sent to FSL and none other. (g) It is fitting to note here that the deposition of FSL expert, the worksheets and the panchnamas are consistent with each other
POTA/12/2003
588
JUDGMENT
about the description, minute details and measurements of all the weapons recovered or discovered from different accused. This Court therefore does not find any substance or force to doubt the prosecution case on this aspect. The work done at the FSL, the work done by the investigating agency while drawing the panchnama, the work of preparing despatch note are all official acts and that the presumption of propriety is applicable to all the said. Further, when the oral evidence, documentary evidence of investigating agency and of FSL tally with each other, there is absolutely no question of any doubt. (h) Defence citation at Sr. No. 76 This judgment is having the fact wherein the material submitted by the investigating agency was found doubtful, taking PW 2 & 5 in the raid was found doubtful and the evidence of search and recovery was found doubtful and moreover, one of the witnesses who has given false address was clearly held to be a got up witness which is not the fact in the case on the hand, hence the judgment cannot come to the rescue of A-50. Defence citation at Sr. No. 77 This judgment is based on the fact that the accused was convicted merely on uncorroborated evidence about the recovery of weapon which was held to be unsafe, but that is not the fact in the case on hand. Hence, the cited judgment cannot help A-50. Defence citation at Sr. No. 78 In the cited judgment, the muddamal articles were not sealed and
POTA/12/2003
589
JUDGMENT
that thenafter there was delay in sending the muddamal to FSL and there was no explanation as to where the muddamal was, but in the case on the hand, the muddamal was properly sealed. Hence, it sounds unsafe to rely upon the cited judgment. (4) PW 56 is the Assistant Scientific Officer of the FSL having educational qualification related to his work as ballistic expert. The cross-examination in fact reveals his study, experience, skill and expertise on the subject. This witness through his oral evidence, his worksheet, his written opinion has proved that the weapons seized, recovered or discovered from the eighteen accused viz. A1, A-2, A-3, A-4, A-6, A-7, A-8, A-9, A-10, A-20, A-22, A-23, A-24, A-25, A-30, A-31, A-32 and A-33 were the arms which have been opined to be used and were found in working condition and in case of cartridge, they have been opined to be live cartridges except in case of A-4 and A-8. (5) In both the cases it is countrymade revolver but then it is notable that the recovery from A-4 was of two countrymade revolvers out of which one was opined to be not working and in case of A-8 out of the two guns, countrymade revolver was not working, but in both the cases, the remaining weapons recovered from the respective accused were found working. Hence, as far as involvement of the respective accused is concerned, it does not make any difference. (6) In case of A-50, PW 141 has been examined as Scientific Officer. All the discussion done as above for PW 56 is squarely applicable to PW 141. Both PW-141 & 56 are ballistic experts. There is absolutely no reason to doubt their oral evidence in any manner as there is absolutely no material for the same.
POTA/12/2003
590
JUDGMENT
(7)
Both the ballistic experts have stated on oath that they fired the test cartridges, studied them and found the same to be live test cartridges. In the same way, they also said that the weapons seized, recovered or attached and sent to the Government Scientific Laboratory have been found to be in working condition.
(8)
PW 56 and PW 141 have been extensively cross-examined. They have been assailed on their experience as ballistic expert, method to come to opinion about arms and ammunition, use of instruments while their work, having not taken photograph of the cap of the cartridge, whether the weapons can be termed to be standard weapons or not, the weapons were not smelled, fingerprints were not taken, heat resistance test and examination of rust and dust were not carried out and the handwritings in the worksheet and sketch were of the Assistant of the witness. The witness has admitted that he does not have knowledge of law, but then it is not important, the witness has admitted to have not done course of armour, but then he has clarified that there is a person on the post of armour in his office who has knowledge about the mechanism of the weapon, it has been clarified that the relation of the weapons to be standard or not is related to range of the weapon, but here it is not important. The witness admits that certain cartridges were not suitable for the pistol recovered from the same accused, but then that is not the requisite, the requisite is the accused to be in possession of arms or ammunition unauthorizedly. Another point is related to muddamal article No. 178 and 83 wherein the witness has specified that from such weapon firing can be effected sometimes,
POTA/12/2003
591
JUDGMENT
but sometimes it cannot be effected. When the issue is whether the accused was found in unauthorized possession of arms and ammunition in working condition, it is suffice that the experts have opined the respective muddamal articles to be in working condition and cartridges to be live. In case of A-1, A-8 and A-10 to whom muddamal article No. 178 and 83 belonged have not been found and from them not only one muddamal has been recovered. Hence in any case even this cross-examination does not help the defence in any manner. (9) The cross-examination has not highlighted any major notable departure, contradiction in the work of the expert or even any notable discrepancies which can raise reasonable doubt has even not pointed this Court. Therefore, this Court does not find the contradictions attempted to be shown by way of submissions by the defence to be of any substantial character because of which the prosecution case can be held to be not corroborative. Even after lengthy cross-examination, both the ballistic experts have withstood their opinion that the weapons were used and were in working condition. When the prosecution case is not to the effect that this weapon has been used in commission of this crime and when only limited inquiry about the possession and condition of the weapons were to be made, the lengthy cross-examination is more hypothetical cross-examination than helping the defence in any manner. Suffice it to say that it has been thoroughly proved beyond all reasonable doubt that at least one weapon recovered or discovered from all the mentioned accused was in working condition which is exactly the prosecution case. Hence both these expert witnesses have helped the prosecution thoroughly whose evidence is found to be credible and truthful one.
POTA/12/2003
592
JUDGMENT
(10) After carefully reading the oral evidence of both the experts, perusing the reports, worksheets prepared by them, this Court is fully satisfied that the prosecution has thoroughly secured corroboration the case qua the respective accused to be in possession of weapons and cartridge which were in working condition and live. The oral evidence of both the experts has been found to be authentic, credible and cogent one which is an acceptable, corroborative piece of evidence which thoroughly corroborates the prosecution version. (C) PW 51 the Chemical Examiner : PW 51 is a Scientific Officer who has proved his report at Exh. 867 for the muddamal article of 5 bottles, according to the prosecution case, on which poison was written. Conjointly reading PW 51 and Exh. 867, it becomes clear that the FSL opinion is not supporting the prosecution case. Hence, this set of evidence does not take forward the prosecution case qua A4. (D) (a) PW 145 & Exh. 1223 FSL Opinion : PW 145 is the Scientific Officer at FSL who has visited along with his photographer a room of the Green Bungalow and who has proved the photographs Exh. 1224 and report Exh. 1223. It has been opined that the word Gamaro Lalabhai 244264 was found written with pencil on the wall of one of the rooms at Green Bungalow in three different lines.
POTA/12/2003
593
JUDGMENT
(b)
The prosecution case has not been taken a step forward with this set of evidence as it is nowhere clear as to what the above three lines mean and how do they connect A-50 with the charged offences. Upon perusal of the panchnama qua A-50 no doubt is created for delay in sending the respective muddamal to the FSL. The worksheet, opinion, oral evidence, contents in the panchnama are all satisfactorily tallying with each other and that the panchnama reveals that the muddamal was sealed immediately. Hence, no doubt remains about the tampering or identity of the muddamal. Defence citation at Sr. No. 78 has been highlighted to doubt the delay in sending the muddamal to FSL. This Court is of the opinion that unlike the cited judgment, in the case on the hand, the presence of A-50 at the site is not doubtful and that discovery has been proved to be beyond reasonable doubt and the same is believed by this Court. The delay in sending the muddamal to FSL is indeed not a welcome practice, but in the facts of the case, it sounds to be negligence of the investigating agency or irregularity which cannot become a ground to reject the evidence very clearly emerging on record. It is therefore clear that even in case of A-50, the prosecution has successfully proved beyond reasonable doubt that two pistols in working condition were recovered from A-50 and that the cartridges were live.
(c)
Upon perusal of certain testimonies of different prosecution witnesses, it is held that the said witnesses like PW 53, 66, 117, 151, 163, 165, 166 etc. have not proved the prosecution case in any manner and that they have not rendered any assistance in proving the prosecution case.
POTA/12/2003
594
JUDGMENT
(E) (a)
Telephonic Conversation : PW 63 is the witness who was working in Vodaphone Company at the relevant point of time, different documentary evidence from Exh. 990 to 998 are the subject matter of the oral evidence of this witness which are different Yadis, printout, correspondence, etc. It seems that if the descriptnary part and not the incriminating part of the confessional statement of different accused are same, they have given their mobile numbers in their confessional statements. If the said is seen, there seems to be telephonic conversation and connection between A-1 and A-4, A-21 and A-3, A-4 at Kolkatta while A-1, A-2, A-3 and A-5 were at Kolkatta from 22/12/2002 to 28/12/2002 between A-1 and A-22. In nutshell, these documentary evidences are throwing a light on the inter-se frequent telephonic contact among the accused and more particularly at the relevant time like on the telephone of A-4 about 14 times call from Kolkatta came while A-1, A-2, A-3 and A-5 were at Kolkatta. Though there is nothing conclusive about this evidence, but at least this set of evidence helps the prosecution in proving the inter-se frequent telephonic conversation and connection among the accused so as to show their association at the relevant point of time. In the cross-examination of PW 63, no substantial challenge is found to have been made.
(b)
PW 61 is a hostile witness, but from this witness it is becoming clear that this witness is a maternal father-in-law of the proclaimed offender Rasulkhan Party. This witness knows the wife of
POTA/12/2003
595
JUDGMENT
Rasilkhan Party who, according to him, is Rukhsanabanu and as deposed, this Rukhsanabanu was residing at Ahmedabad with her husband Rasulkhan Party. This witness further clarifies that the witness does not know for long where she had been. This witness knows A-7, A-30 and A-46 and has also stated that the husband of Rukhsanabanu is also known as Rasul Party. Through this witness, the introduction of Rukhsanabanu and Rasulkhan Party gets clarified which probabilize the muddamal chit to have been sent by Rukhsanabanu. (F) (a) Railway Reservation of A-1, A-2, A-3 and A-5 : PW 49 is the Supervisor of Ahmedabad Railway Station who has brought on record documentary evidence Exh. 860 and the compilation at Exh. 861. (b) From the cross-examination of this witness, it has been shown that he has no personal knowledge and for want of inward number and the rubber stamp the document produced by the witness cannot be believed. (c) This Court is of the opinion that the witness has deposed from the office record, presumption of propriety nullifies any doubt attempted to be created on record against the propriety of official record when the signature, office routine of such record and rule of destroying such record within 6 months have been positively stated by the witness. (d) Exh. 861 is the forwarding letter below which all the documents like reservation chart, form etc. have been placed on record in
POTA/12/2003
596
JUDGMENT
response to Exh. 860 Yadi. A reservation form seems to have been filled in from window No. 10 in second shift which is in the afternoon, on 19/12/2002 for train No. 2934, the Karnavati Express for Ahmedabad to Baroda. In the form, names of A-1, A-2, A-3 and A-5 can be seen which seems to have been filled in and signed by A-2. Another reservation form which also seems to have been filled in on 19/12/2002 in the second shift which must be noon hours from window No. 17 for train Ahmedabad-Howrah Express for the journey from Anand to Kolkatta. The station to be elited is shown to be Baroda. Thenafter a reservation chart is on record which is for train No. 2934 Karnavati Express dated 20/12/2002 showing that in coach SC-1, A-2, A-3, A-5 and A-1 have respectively travelled vide Seat No. 7, 8, 9 and 10. There is even reservation chart of Howrah Express which is also showing the accused to have travelled on 20/12/2002 in train No. 8033 as RAC passengers. (e) This Court has perused the documents carefully. For both the journeys from Ahmedabad to Baroda and from Baroda to Howrah, there are two different common PNR numbers, meaning thereby the accused have travelled as a unit and as an association of four persons. (f) None of the accused has explained their purpose of journey of Howrah, they have not explained as to what was the reason for taking such an odd route of going to Baroda in the train which goes to Bombay and then from Baroda marching to Howrah. In
POTA/12/2003
597
JUDGMENT
absence of any explanation, it seems that this kind of journey was charted out to misguide someone if one inquires. The journey of Ahmedabad to Howrah is available directly from Ahmedabad. There is no special reason for the accused to go to Baroda, to book tickets from Anand to Howrah and to plan everything in advance on 19/12/2002 itself. There is no case that the accused did not get any ticket directly for Howrah or they have any reason to go to Anand or Baroda. Putting all these things together, it can lawfully be inferred that the conduct of A-1, A-2, A-3 and A-5 is suggestive of having a foul play and not having plain and simple intentions. With this set of evidence, their denial of having not gone to Kolkatta cannot be believed at all. The only one irresistible that can be drawn is that all the four have started in furtherance of the criminal conspiracy hatched among them. This is again tallying when Exh. 1368 the register of Star Guest House is seen wherein all the four accused have been shown to have arrived at Star Guest House, Kolkatta at 6.20 a.m. All the four accused have signed there, written their names, address is common at Haranwali Pole, Panchkuva. The signature in this register is opined to be of the accused by the handwriting expert. All the four accused, as can be seen from Exh. 1368 the register of the hotel, to have departed from the hotel on 28/12/2002 where again all the four have signed, which according to the handwriting expert, are the signatures of these very accused. Therefore, the above discussed set of evidence, when seen collectively, the only one brilliant probability emerges as evidence on record is that the four accused had been to Kolkatta and have stayed there upto 28/12/2002.
POTA/12/2003
598
JUDGMENT
(g)
In Exh. 861, there is also a chart of 6/3/2003, but in the said chart the names of the accused have not shown to be the same. But then it is a matter of common knowledge that the accused had been arrested from Ahmedabad on 3/4/2003 which is not possible until they returned. Hence, their return to Ahmedabad is a matter of lawful inference.
(h)
The Star Guest House register reveals all the entries to have been written by a common person who has shown the occupation of all the four accused of doing business. The accused have nowhere explained their doing any business together or all the four doing business at all. For the above discussion, their going together without any explanation or purpose by them is to be viewed as part of conspiracy hatched among them.
(G) (a)
Railway Journey of A-32 & A-33 : PW 50 is the Chief Ticket Inspector from Railway Station, Ahmedabad. This witness brings on record the documentary evidence more particularly Exh. 863, 864, etc. connected with the journey of A-32 and A-33 on 15/7/2003 while both the accused were travelling in Delhi Mail from Ajmer to Ahmedabad. Exh. 864 is the reservation chart for the sleeper class revealing A32 and A-33 to have travelled on common ticket with common PNR number from Ajmer to Ahmedabad in S-6 coach of train No. 9106. The prosecution case put up qua A-32 and A-33 is to the effect that they were while travelling together had incriminating arms and ammunition with them which while their personal search were recovered. This case is put up by the two prosecution witnesses read with the Yadi and report of late Shri A.A. Chauhan
POTA/12/2003
599
JUDGMENT
along with the muddamal articles. This oral evidence and Yadi at Exh. 863 read with reservation chart at Exh. 864 strengthen the prosecution case. (b) PW 58 is as such a hostile witness, but this witness has deposed on the following aspects which to the said extent clearly corroborates the prosecution case as far as the role of proclaimed offender Mufti Sufiyan as kingpin is concerned. This witness is a cousin brother-in-law of the said P.O. Mufti, he states that after one year of the marriage, the status of Mufti was acquired by the P.O. Mufti which is conferred after 15 years of the study, the Mufti worked at Karoda Pole, Kalupur (this address is shown at Exh. 1631 of Ambar Hotel, Mumbai when the conspiracy began to hatch at Mumbai), the Mufti had worked at Lal Masjid where he has to resolve religious and social issues, Mufti has started Madresa (a religious school) at Lal Masjid, the Kuran-ESharif was being taught there, the said Mufti used to keep mobile phone, but was not giving his number to anyone (this tallies with the oral evidence of PW 95 who has deposed that Mufti gave mobile phone and charger while his tour at Alipur which in turn were deposited by PW 95, the Mufti had been to Kutch-Bhuj at the time of earthquake along with other social workers when A-5 and A-20 were together (this shows that Mufti was a religious leader and social worker and A-5 and A-22 were working in association with the said Mufti), A-20 is known to me, on 2/4/2003 senior Mufti Saheb was to come from Dabhol and arrangement of snacks was to be made as told by Mufti (this shows religious importance and dominance the Mufti used to enjoy).
POTA/12/2003
600
JUDGMENT
In the opinion of this Court, the prosecution case gets corroboration about the Mufti Sufiyan to be a kingpin, a religious leader, a leading person of the community, used to actively work for religious and social issues, has started Madresa, used to keep mobile phone and A-5, A-22, A-20, etc. were working as per his instructions. (Oral evidence of PW 58) (H) (a) Passport of A-22 and certificate of A-20 : PW 90 is the father of A-22 who is a hostile witness, but brings on record Exh. 1057 the passport of A-22. If this passport is carefully seen, it surprisingly bears stamp of Kenya Immigration Officer and UAE of 8/12/2002 and again both the stamps respectively dated 14/1/2003 and 15/1/2003 which is humanly impossible which is noteworthy to note the conduct of A-22. As clarified by PW-199, the Kenya Embassy has opined the endorsement to be forged one. (b) PW 47 is the Principal of ITI, Ahmedabad who proves on record Yadi Exh. 846 and his certificate Exh. 845 to prove that A-20 was qualified for radio and television mechanism, but according to this Court, that hardly provides any aid to the prosecution qua the conspiracy to be adjudged. (I) PW 182 & EXH. 1504 : PW 182 is the witness operating Al-Imran Guest House at Mumbai. The witness deposed that a page of the register of his Guest House where the entry of Mohammad Mustaq to have checked in his hotel has been recovered by the police. This page is on record at Exh. 1504. This witness was declared a hostile
POTA/12/2003
601
JUDGMENT
witness. The witness has shown his inability to identify the said Mustaq. Upon perusal of Exh. 1504, there appears to be an entry about Mohammad Mustaq, but as has been admitted by PW 191 the assignee police officer in paragraph 35 of his oral evidence, this page has been recovered without drawing the panchnama and that as is clear in paragraph 34, the original passenger register has not been recovered. PW 182 a man from Guest House is hostile, there is no panchnama or the panch witness to witness the recovery, hence in absence of any oral evidence, it cannot be believed that A-30 had checked in by personating his name to be Mohammad Mustaq at Al-Imran Guest House and his name as Mohammad Mustaq has been shown on entry dated 17/9/2002. The oral evidence of PW 182 and the documentary evidence Exh. 1504 therefore do not help the prosecution case qua A-30 on the aspect as it seems doubtful. (J) PW 117 : The witness is an operator of tours and travels doing his business in the name of National Tours & Travels. This witness has categorically stated that he does not know whether the police brought A-30 or not at his Mumbai office. This witness is held to have not helped the prosecution case qua A-30 on the aspect. (K) (a) PW 104 : This hostile witness has admitted to have given his oral evidence even in Tiffin Bomb Case being POTA Case No. 7/03. This witness in paragraph 10 has admitted that he has deposed in Tiffin
POTA/12/2003
602
JUDGMENT
Bomb Case on 3/3/2004. He admits to have stated before the then POTA Court that after the Godhra incident, once A-20 came in the night hours, he carried him to the factory of Hanif Pakitwala (A-39) at about 10.00 or 10.30 who manufactures school bags. When we went, there was Hanif Pakitwala and Habib Hawa. There was red colour powder like the powder of the bricks which was filled in the pipe. It is not known that how many such pipes were there, but they were about 7 to 8. Except the pipe there, nothing else has been seen to be filled in. What was done with the said pipe is not known. Thenafter I immediately started from there, I sat there for half an hour when by a shout, Manekchand was called for. I learnt later that the boy who brought Manekchand was Abdulrahim. (b) In paragraph 5, the witness has denied that he has stated in the oral evidence in POTA Case No. 7/03 as to what he was knowing. He has volunteered that he spoke what was tutored to him. (c) This witness was confronted at paragraph 7 from his police statement and at paragraph 9 from his statement u/s 164. It is true that neither of the statements were on oath, but the fact remains that the witness does not depose in the tune of his earlier oral evidence on oath. Thus, this witness has given two difference oral evidences, earlier in POTA Case No. 7/03 and then before this Court. He has resciled from his version in the earlier case given by him on oath and has stated that he spoke as was tutored. In paragraph 7 & 9 of the oral evidence, this witness does not speak what he has spoken in POTA Case No. 7/03 as he himself testify here at paragraph 5 that he did not speak what he knew but spoke what was tutored. The witness must speak on oath truth and what is personally known to him but the witness did not do that.
POTA/12/2003
603
JUDGMENT
(d)
During the course of the cross-examination, the witness has admitted that A-20 is his friend of childhood, in May 2002 after the Godhra incident violent occurrences took place and curfew was imposed. The witness agrees that no process of preparing Tiffin Bomb as was asked to the witness in the cross had ever taken place. In POTA Case No. 7/03 the witness spoke other way round and that the said deposition cannot be inferred to be out of pressure.
(e)
In the humble opinion of this Court, the witness who has deposed before the Tiffin Bomb case is now resciling from his version. This act of resciling from the earlier version is probable if there is pressure on the witness. It is too clear that on the first occasion when this witness deposed, the consequences of his deposition were not known to him, but since A-20 is convict now, it is now known to the witness and that the witness is admittedly interested in A-20. Hence, this witness has now deliberately turned hostile which is purely only to help A-20. The version put forth by this witness that he was tutored and has deposed as was directed and has deposed under pressure are the contents which cannot be accepted to be true version.
(f)
In the opinion of this Court, the witness is since giving two different versions on oath and the natural corollary would be that either of them is untrue and that there is prima facie case against the PW104 to have knowingly and willingly given false evidence with intention to be used it in the proceeding to protect A-20, hence the witness needs to be issued notice for the offence of perjury u/s 344 of Cr.P.C..
POTA/12/2003
604
JUDGMENT
(g)
At this juncture, this witness is as such not focusing on the contents of larger conspiracy, but then in the description of the case, there comes mention of Tiffin Bomb as one another conspiracy. Hence, the limited use of this witness is only to an extent that at the behest of A-20 the witness has turned hostile which is notable conduct of A-20. Through this witness, the prosecution proves the contents about another conspiracy which is not under judicial scrutiny in the case, hence nothing against A-39 can be termed to have been proved by the prosecution.
(L) (a)
PW 139 : This witness is a merchant from Kolkatta who has deposed that he has business terms with PW 71 for last ten years, PW 71 has telephoned the witness before 4 to 5 years to pay Rs.10,000/- to his relative who was at Kolkatta and who needed fund. The person came to the witness to whom the witness had paid Rs.10,000/- as per the talk with PW 71 and then PW 71 sent a bearer cheque of Rs.10,000/-. The cheque was of Karur Vysya Bank, Kolkatta which was encashed.
(b)
This witness though is a hostile witness has helped the prosecution to an extent that he paid Rs.10,000/- at Kolkatta under the instruction of PW 71.
(c)
PW 71 is involving A-1 and A-3 who have played role in receiving the money while they were at Kolkatta. Hence this witness also proves the prosecution case to that extent.
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(M) (a) (b)
PW 140 and Exh. 1206 : PW 140 is Manager of Hotel International at Kolkatta. Vide Exh. 1207, PW 180 has given a receipt to PW 140 to have recovered page No. 8 and 27 of the hotel register. It has been contended in the receipt that these pages were recovered from PW 140 on 28/11/2003. This document Exh. 1207 shows the pages of the register to have been recovered by giving the receipt. Hence, the point that the pages were recovered without panchnama seems to be without substance. The receipt Exh. 1207 is signed by PW 180 and PW 140, the Manager of Hotel International at Kolkatta.
(c)
This witness has also been examined by the prosecution to bring on record Exh. 1206, entry No. 64, wherein as the witness has deposed on oath and as can be seen from the said pages at Exh. 1206, the name of A-42 and others have been shown as guests to have stayed in the hotel. The witness has further deposed that the address is of Mumbai, that said Javed Siddiqui (A-42 herein) had arrived in the hotel on 30/9/2002 and have stayed upto 2/10/2002. The said Javed Siddiqui and others were allotted Room No. 106 and 111. It has been submitted that the licence number of the hotel is not printed on the page, but in the humble opinion of this Court, that is not important when PW 140 states on oath about the recovery and he himself was a Manager at the relevant time of the said hotel and when Exh. 1207 bears his signature which is also supported by oral evidence of PW 180. The absence of licence number at the
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most shows that the Hotel was not licenced but merely that cannot be the cause to disbelieve the positive oral evidence of the witness. (d) The witness further states that Exh. 777 is another page from the hotel register which too was recovered by the witness. In the light of the oral evidence of PW 64 and PW 180, it becomes clear that A-42 had also stayed Kolkatta at the relevant time and PW 64 was also present at Kolkatta at the relevant point of time. This witness has stated that Exh. 777 is also another page of the register recovered from his hotel. This witness has seen the all accused present in the Court and stated that none of them have stayed in his hotel. This part of deposition is to be read from last line of paragraph 3 wherein the witness has stated that on 3/11/2002, five passengers came together who did not come in his presence or did not go away in his presence. If these two sentences are seen together, it is becoming clear that this witness has no personal knowledge about the page of the register at Exh. 777, but if Exh. 777 is seen with the oral evidence of PW 64 and if it is seen that this witness has stated that Javed Siddiqui has left on 2/10/2002, it seems that the witness is not at all stating that on 3/11/2002, A-42 was in his hotel, even PW 64 has also not stated the said. This witness has therefore corroborated the version of PW 64. (N) (a) PW 158- Father of A-44 : Through this witness the prosecution case attempted to be put up is that A-44 and some of the co-accused, (his friends), have viewed the video cassette wherein violent incidents were shooted
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and that by seeing such a cassette by seeing therein loss to lives and properties of Muslims, a sense of retaliation and revenge was developed in the mind of A-44 and the co-accused. (b) During the investigation, the investigating agency has not collected a single such cassette to prove its case against the accused. It can safely be held that it is indeed doubtful whether such cassettes were been seen by the accused or not. Hence, in light of the settled principles of appreciation of evidence, it is hereby held that this witness has not proved the prosecution case to the said extent. (O) (a) PW 164 Receptionist of Star Guest House, Kolkatta: On perusal of the oral evidence of this witness, the material collected from this witness in form of article No. 98 the register of Star Guest House, Kolkatta (Exh.1368) and article No. 99 the receipt (Exh.1369), this Court is of the opinion that in Exh. 1368 the register of Star Guest House, Kolkatta, it clears that when this witness was on duty on 22/12/2002 at the Guest House, A-1, A-2, A-3 and A-5 arrived at the Guest House and stayed there upto 28/12/2002. (b) Their signatures in Exh.1368 register have been proved to be genuine by the handwriting expert as already discussed. (c) Exh. 1369 is the receipt of Rs.2,800/- which shows the payment for staying was made by A-1, A-2, A-3 and A-5. This witness in the cross-examination itself sounds to be very truthful and natural and there is nothing in his oral evidence to
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doubt his version as during the course of cross-examination, no reasonable doubt whatsoever has been created against the witness whose version sounds otherwise to be very credible one. (d) Through this witness PW 164, the prosecution has proved beyond reasonable doubt looking it with the totality of the evidence that A-1, A-2, A-3 and A-5 have stayed in star Guest House, Kolkatta from 22/12/2002 to 28/12/2002 and that they have signed the Guest House register and have paid the charges. (P) (a) PW 171 & Exh. 1408 to 1410: PW 171 is the retired Police Inspector from West Bengal. This witness has deposed that he was working at Haridaspur Immigration Check Post in November 2003 which was at Bungam Police Station. The witness has received a Yadi from PW 180 at Exh. 1408 for inquiries about A-42. PW 180 has also given another Yadi at Exh. 1409 for inquires about wife and children of A-42. The reply was given vide Exh. 1410. In letter Exh. 1410, there is an entry dated 21/10/2002 showing A-42 to have gone to Bangladesh, but there is no entry of his return. Hence I believe that he must have illegally returned to India. (b) This witness has been cross-examined from which following information has been elicited: The Bangladesh border is 55 kms. away from Kolkatta From Hardaspur Check Post to Bangladesh, the distance is about 150 metres to 200 metres. This Check Post at Bangladesh, is known as Benapur Check Post.
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At Hardaspur, police remains on duty from 6.00 a.m. to 6.00 p.m. only. No police duty at night BSF is performing duty at border No person from army remains on duty There is fencing on the border, but in some parts there is no fencing, but it is open Electric current does not pass from the fencing For illegal entry and exit from Bangladesh, the witness has filed a complaint for which documentary evidence the witness is unable to produce (earlier he has explained that because he is now retired, he cannot bring the documents from his department) The witness has stated that he cannot say as to when illegal entry in Bangladesh was made. The Border Immigration Register, Departure Register, General Register, Foreign Register, etc. were examined by PW 180. This witness has admitted that the computer data entry might mistakenly been not fed (this seems to be with reference to the absence of return entry of A-42 from Bangladesh).
(c)
Exh. 1408 and 1409 are the inquires by PW 180, both dated 27/11/2003.
(d)
Exh. 1410 is the information related to A-42 given and proved by PW 171. From this document, it becomes clear that A-42 has been issued passport from Mumbai on 15/7/2002 who took departure from Mumbai for Bangladesh and arrived in India from Bangladesh through Haridaspur Immigration Check Post on 21/10/2002 arrival not entered in computer again went on 9/11/2002 arrival on 15/11/2002, went Bangladesh on 20/11/2002, arrival on
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21/11/2002, went Bangladesh on 20/12/2002 arrived in India on 25/12/2002 and went Bangladesh on 28/12/2002 arrival on 29/12/2002. (e) In the opinion of this Court, this witness who sounds to be very natural, truthful and reliable official witness, has proved the prosecution case to an extent that it is probable to cross Indian Border from Haridaspur Check Post without any hassles, the oral evidence of the witness read with Exh. 1410 provides a very strong circumstance of A-42 having been involved in facilitating, guiding and encouraging the co-accused to cross the Indian Border and to enter into Bangladesh, A-1, A-2, A-3 and A-5 were when at Kolkatta, even this witness seems to be at Kolkatta from the documentary evidence Exh. 1410, upto 28/12/2002, A-1, A-2, A-3 and A-5 were in Star Guest House, then on that day they left the guest house. On that very day, A-42 left for Bangladesh. This is also a strong circumstance which is linking A-42 and A-1, A-2, A-3 and A-5 in having crossed the Bangladesh Border. (f) The frequency of A-42 of going to Bangladesh itself is a dubtful fact, no plausible explanation came from A-42 for having crossed the Bangladesh Border so frequently in a particular period, A-42 has not shown anything to doubt the prosecution version about involvement of A-42 in the crime. (g) The probability of easily crossing the border to enter into Bangladesh from Kolkatta can be very well accepted from the oral evidence of this witness. (h) The brilliant probability of A-42 to have crossed Indian Border for the purpose of going to Dhaka seems absolute, credible one. It is
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matter of common knowledge that it is easy to go from Bangladesh to Karachi which was once in the recent past a part of Pakistan. (i) In case of trans-border activities, it is not easy, almost impossible to secure documentary evidence as the investigating agency of one country cannot have access to the administration and system of another country. (j) The overall conduct of A-42 and the other accused those who have confessed their crime of having received terrorist training by going through this route stands proved by this set of evidence. (Q) (a) PW 167 read with Exh. 1377 to 1383 : The Vigilance Officer from BSNL, Kolkatta has brought on record all the above referred documents. Through the witness printout of the STD-PCO, of Kolkatta from where according to prosecution, phone calls to A-4 on 22/12/2002, 25/12/2002, 26/12/2002, 27/12/2002, 27/12/2002, 27/12/2002 and at the residence number of A-1 have been made has been proved. The telephone number of A-4 is 9825398516 and the residence phone number of A-1 is 2163946 (Exh.1300). (b) From Exh. 1380, it becomes clear that from the STD PCO, telephone calls to A-4 and at the residence of A-1 have been made, the printout of which from 22/12/2002 to 28/12/2002 is on record. (c) Making telephone calls can never be incriminating, but in light of the facts of entire conspiracy and noting the fact that A-4 did not go to Kolkatta and still has been contacted from Kolkatta so
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regularly when the co-accused were at Kolkatta speaks of their internal association, tie, mental state and involvement of A-4 in the affairs of A-1, A-2, A-3 and A-5 which can be seen from the act of meeting at Parimal Garden on 3/4/2003. In fact, this circumstance shows that though A-4 was not at Kolkatta, he was totally involved in the entire affairs at Kolkatta. (d) No doubt is left out about the mobile number of A-4 when A-4 has himself told his mobile number 9825398516 to be his number which is absolutely non-incriminating information. (e) PW 167 has been cross-examined but the extensive crossexamination does not take away the positive evidence proved through the printout showing frequent number of A-4 as to have been regularly contacted while A-1, A-2, A-3 and A-5 were at Kolkatta. Hence through this set of evidence, the prosecution has proved the contact of A-4 with the co-accused at Kolkatta. (R) PW 160 Exh. 1806, 1361 1362 : As such this set of evidence does not prove any part of the prosecution case beyond reasonable doubt. (S) PW 161 & Exh. 1300 : Through this witness the prosecution has proved that at the residence address of A-1, telephone No. 2163946 was functional at the relevant time. This telephone number can be seen in the documentary evidence proved by PW 167 in form of printout of the STD PCO. The residential address of A-1 tallies with address shown in Exh. 1300 against telephone No. 2163946. This
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evidence is showing that the residence telephone line of A-1 was dialled while A-1, 2, 3 & 5 were at Kolkatta, according to prosecution case. (T) (a) Investigating Officers and Assignee Officers : Different Investigating Officers viz. PW 162, 196, 198 and 199 have clearly supported different aspects of the prosecution and the investigation carried out by them to the satisfaction of this Court. (b) PW 35, 37, 39, 48, 162 (in his that capacity), 168, 180 and 191 are all the Assignee Officers who were assigned different tasks by the respective Investigating Officer who all have been found to have done their respective assigned job to the satisfaction of this Court. Both the above aspects have been discussed at the relevant part of this judgment. Hence it is avoided to repeat here. (c) However, at the cost of repetition, it needs to be noted that during the course of the cross-examination, following points have been focused which are to be dealt with. (c-1) PW 199 has proved to have sent FIR within time and no doubt is created against the compliance of the same, non-production of any documents about information received from the Intelligence Branch does not create any doubt because none of the officers has stated that such information came in form of document. It is however necessary to get support in the oral evidence of receipt of such information which can be seen. Even in light of Section 64 of the Bombay Police Act, it is the duty of the police officer to receive and act upon intelligence
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information. Hence, the base of the complaint seems to be in accordance with the duty of the police. No doubt is also created on the aspect of using private vehicles by the police officers. Looking to the kind of the case which was being investigated by the officers, to maintain confidentiality, the use of private vehicle is necessary and having not kept the record for the private vehicle is not raising any doubt. (c-2) The information elicited in the cross-examination that when accused Nos. 1 to 5 reached Parimal Garden, they were immediately cordoned and they had no opportunity of any concert, cannot be said to be no criminal conspiracy, hence it is the submission which is not acceptable because the requisite of meeting of mind, concert or league, which in the instant case, is obviously prior to reaching at Parimal Garden. Prior to reaching at Parimal Garden, the accused have committed many acts and omissions which have come up on the record as proved facts and that can be related with the concert and the conspiracy. (c-3) Another aspect that the evidence collected by the investigating agency is only upto Kolkatta and not upto Dhaka or Karachi has to be appreciated keeping in mind that Dhaka and Karachi are not the places in India and the police may not have effective access or cooperation from the agencies of the neighbouring country to secure the evidence. It is not probable that the neighbouring country would cooperate India in reaching the truth in such kind of cases. Hence, if satisfactory material is found on record, the Court shall have to draw legal inference. It is needless to add that the accused had been to Karachi is only a part of the prosecution case and not the prosecution case as a whole. Even if it is not believed that they had been to Dhaka, the prosecution case is not at loss.
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(c-4) The information that statements of VVIPs were not taken, need not attach any importance. The evidence of passport in case of A-1, A-2, A-3, A-5, A-21 and A-22 has not been secured and evidence of use of fake passport by them has not been collected, are not the points by which the prosecution case should be doubted. In the confessional statement, use of fake passport by some accused has been clarified. In the kind of the offences, the accused are bound to be too smart not to leave evidence. It is always difficult to secure evidence in the cases wherein the span of the activities was beyond Indian frontier except when the respective Government of another country cooperates the investigators. (There are numerous panchnamas where nothing objectionable or incriminating has been found by the investigating agency. This shows fair play by them.) (c-5) No substance is found in the submission that no evidence has been procured by the investigating agency on the fact that the Indian border from Kolkatta can be passed through by making payment to BSF officials as PW 171, officer at the border, has stated that such complaints have been made which is strengthening the possibility of such thing to have happened. It is a matter of common knowledge that if some work is being done by illegal gratification, the investigating agency cannot get proof of it. It is to be inferred which can be inferred from the oral evidence of PW 171 wherein it has been said that there is no fencing and the overall impact of the oral evidence of the officer is that the border is easily crossable. Now as far as Dhaka to Pakistan is concerned,
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it is also not improbable to go to Karachi from Dhaka which was once part of Pakistan itself. It is again clarified that this is simply to deal with the doubt submitted by defence otherwise the material even barring this material is sufficient to hold the accused guilty. (c-6) The part of the cross-examination where a question of demonstration of bomb blast and ability of the accused of operating firearms has not been taken any time by the investigating agency, is suggested is to travel in the world of unrealism. It is absolutely improbable that the accused would ever give such demonstration. (c-7) Not securing boarding pass, passenger list about the proof of A-1, A-2, A-3 & A-5 of travel from UAE flight to Pakistan is to be seen from the angle that the confessional statement as revealation of having so travelled and in case of A-22, the entries in his passport have been opined by the Kenya Embassy to be forged entry. These all show the probability of the accused to travel illegally. (c-8) A-42 might be going legally to Bangladesh, but merely that does not prove that he was taking others legally. The point here to be appreciated is that A-42 has not justified his visits to Bangladesh and that is the circumstance. (c-9) Exh. 1872 to 1903 are the applications of different witnesses to keep their identity secret. This itself is sufficient to show the seriousness of the case which would go with the terror in the mind of the witnesses. (c-10)It is true that in the confessional statement of A-20, A-21 and A-22, there is no mention of having gone to Alipur and stayed there and
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in case of A-21 to have been unwell there and needed to be treated. If the accused do not confess their offence with other such related descriptions and details, merely that cannot mean that the confessional statement which is otherwise found to be probable cannot be believed. The accused owe duty to explain as to how their licence was found from the custody of PW 95 when there is no reason to disbelieve PW 95. (c-11)In case of A-25, from the cross-examination, it has been emphasised that the name of A-25 is not in the FIR, but it is not necessary. There are numerous objections against the confessional statement of this accused to which this Court only needs to opine that unless any general or specific corroborating evidence was available, this Court has not looked upon the confessional statement of any of the accused. Not only that, but in no case it has been made foundation, hence these points do not hold the field. (c-12)Cross-examination of A-30 is highlighted on the aspect that he was falsely shown arrested because of the notice of the Court, but upon scrutiny of the material, this is not found with any substance. In light of all the above discussion, this Court did not find any substance or force in any of the submissions as far as the guilt of the accused who have been held guilty is concerned.
(U) (a)
Oral Evidence of Panch Witness of Panchnama Mark 433/28 : Before switching over to the panchnama, a background needs to be noted. This panchnama was drawn in presence of late Shri
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A.A. Chauhan. For some reason, this panchnama has not been formally proved, hence not exhibited. It is clarified that the contents of the same are not read in evidence by this Court. (b) PW 199 and PW 162 are the two Investigating Officers who have assigned different work to late Shri A.A. Chauhan. (b-1) Vide the oral evidence of PW 162, Exh. 1308 and Exh. 1322 both authored by Shri A.A. Chauhan came to be proved as the signature of late Shri Chauhan was identified by PW 162. (b-2) PW 199 has proved a document at Exh. 1772 as has been authored by late Shri A.A. Chauhan which is the report of late Shri Chauhan to have complied the work assigned to him of drawing the panchnama marked 433/28. (b-3) All the three documents viz Exh. 1308, 1322 and 1772 have been proved by the prosecution to the satisfaction of this Court to have been authored and signed by late Shri Chauhan. (c) As is permissible u/s 73 of the Indian Evidence Act, this Court has compared the signature of late Shri Chauhan below the document marked 433/28 with the three proved documents discussed above. This Court is thoroughly satisfied that the panchnama, not formally proved and though not used by the Court, the mark 433/28 was signed as drawn before late Shri Chauhan. (d) Exh. 1772 has been perused. This is the document authored by late Shri Chauhan as is report to PW 199 wherein it has been contended that A-32 and A-33 were found upon the information of the confidential informant, on 15/7/2003 while upon the
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information late Shri Chauhan was on his watch along with the police staff at Ahmedabad Railway Station. At about 17.50 hrs. both the accused were identified by the informant who were cordoned in presence of the panch witness and their personal search was carried out and the muddamal was recovered and then at 20.30 hrs. they were arrested, the muddamal Pavti was also issued and necessary formalities were completed. These documents prove the work of the panchnama and recovery while the search of both the accused was in fact carried out by late Shri Chauhan. (e) PW 41 and PW 31 are the two panch witnesses. Their substantial evidence can always be read even though the panchnama has not been formally exhibited. (e-1) PW 41 admits date, time and place and he having been called as panch and he has signed the panchnama as panch No. 2. This witness also admits his signature in the panch slip who has been declared hostile, hence the above limited corroboration offered by this witness has been perused. (e-2) PW 31 is the panch No. 1 of the panchnama marked 433/28. This witness has also been declared hostile. It needs a special note that while the cross-examination of the prosecution, this witness states that on 15/7/2003 he was called outside Ahmedabad Railway Police Station and he has signed the panchnama. At paragraph 10 and 11, this witness admits to have also signed in the panch slips from Exh. 739 to 741. This witness has identified the pistol - muddamal article No. 104, the three cartridges - the muddamal article No. 105 and 8 cartridges
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muddamal article No. 109 to have been seized and sealed in presence of this panch witness. He also states that the police has recovered 121 currency notes, each of Rs.1,000/-, a black wallet, driving licence, telephone diary, visiting card and Rs.3,020/-, the muddamal article No. 106 and 107. The muddamal article No. 108 i.e. Rs.215/-, railway ticket and two visiting cards have also been admitted to have been seized in presence of this witness. PW 31 has not at all been cross-examined, hence the above part of his evidence of recovery of the muddamal has remained unchallenged and uncortroverted. (f) If the entire tenor of the oral evidence of this witness from paragraph 5 to 11 is read along with corroborated part from the oral evidence of PW 41 and if both of them are read along with the oral evidence of PW 162, PW 199 and the report of late Shri Chauhan of having drawn the panchnama and of having seized the muddamal article from A-32 and A-33 while their personal search, it becomes clear as crystal that on 15/7/2003 at the Railway Station, the seizure panchnama was drawn by late Shri A.A. Chauhan. (g) It is true that Mr. A.A. Chauhan had passed away and for some reason the panchnama at mark 433/28 has not been formally proved by the prosecution, but then the moot question is whether the Court is helpless when for some reason this kind of error is committed and when the Court has accountability to the cause of justice and when it is the duty of the Court to find out truth wherever it lies and from whichever document is available. The plain and simple reply to the question is the Court can never be helpless and it owes tremendous pious obligation to be discharged for the cause of justice.
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(h)
Being inspired from the above reasoning, this Court has also seen the muddamal article list, on record vide Exh. 7. As is clear, muddamal article No. 104 is a black coloured automatic pistol, 9 mm, 9 round only, with writing made in USA, as has been seized from A-32 on 15/7/2003 vide muddamal pavati No. 113/03 which was sent to FSL.
(h-1) Against muddamal article No. 105 the three cartridges, name of the person from whom they have been recovered has not been mentioned. (h-2) From A-32, as can be further seen from this muddamal list Exh. 7, Rs.1,21,000/- as muddamal article No. 106, the brown coloured wallet, Rs.3,020/-, driving licence and identity card, small pocket diary, different visiting cards, etc. as muddamal article No. 107 have been recovered on the same date vide the same muddamal receipt. (h-3) Muddamal article No. 108 and 109, as has been clearly mentioned in this muddamal list, were seized from A-33 as it has been noted with the name in specific. These muddamal articles are Rs.215/-, railway ticket from Ajmer to Ahmedabad dated 15/7/2003 of train No. 9106 of H-6 compartment with different details and two visiting cards. Thus, in nutshell muddamal article No. 104, 106 and 107 from A32 and muddamal article No. 108 and 109 from A-33 have been recovered beyond reasonable doubt.
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(i)
Now therefore concluding all the above discussion, even without reading the contents of the unexhibited panchnama mark 433/28, but by only deriving judicial satisfaction that the said was indeed drawn and signed by late Shri Chauhan, it becomes clear that the above referred oral and documentary evidence while conjointly reading is involving A-32 and A-33 in the crime wherein from A-32 a pistol made in USA and from A-33, 8 cartridges have been seized by the police officer for which he has submitted the report to the Investigating Officer (Exh. 1772) and there is mention in muddamal list Exh. 7.
(j)
At this juncture, it is not out of the place to even take a note of a very vital fact that as far as A-32 is concerned, he has given his confessional statement at Exh. 979 wherein he has stated that he was caught along with one pistol, cartridges and they were caught when they were coming from Ajmer to Ahmedabad, which confessional statement is also getting corroboration from the above discussed evidence qua A-32 only. FINDING : A-32 had black coloured pistol and A-33 had 8 cartridges along with other material on 15/7/2003 which were recovered by late Shri Chauhan for which muddamal pavati No. 113/03 was issued and both the above were sent to FSL.
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PART-VI
(I)
ON JUSTIFICATION OF IMPLICATION OF THE ACCUSED IN POTA :
1.
This Court needs to ascertain as to whether is it justified to implicate the accused in POTA or not.
(a)
As far as accused No. 1 to 39 are concerned, they have been implicated in POTA for their act and omission which was relatable with the larger conspiracy came into being when after 28th February 2002, after the incident of Godhra, communal riots on large scale took place in the State of Gujarat where the Muslims had sustained heavy loss to their lives and properties and that the conspiracy as per the prosecution was knitted and was acted upon by the accused in collusion of one another. The involvement of these accused in cross border terrorism, in the light of totality of the evidence on record, the intention of all the accused can safely and legitimately be inferred to cause terror in the people and to threaten unity, harmony, integrity and safety of nation. The evidence on record for the accused who have been held guilty provide corroboration to their confession which spells intention.
Different accused persons have been alleged to have taken part in the conspiracy of creating terrorism in India, striking terror in people, becoming party to criminal conspiracy of ISI of Pakistan to
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disrupt India and as a part of criminal conspiracy, collecting different weapons, taking terrorist training, becoming active members of banned terrorist organizations like Jaish-EMohammad and Lashkar-E-Toiba, preparing for proxy war, making different conspiracies to kill Hindu leaders, doing bomb blasts, murdering the former Home Minister of Gujarat Shri Haren Pandya and in nutshell creating atmosphere of terror throughout the State provoking communal disharmony, ill feeling all around and to provoke the communal riots.
(a-1) As per the complaint Exh. 1247 and FIR Exh. 1341, the period for the entire conspiracy is not before 28/2/2002 and after 3/4/2003.
(a-2) The cause for the entire conspiracy was feeling of retaliation and revenge because of loss of lives and properties of Muslims in the communal riots of February 2002 on very large scale.
(a-3) The purpose or motive according to prosecution case, is to settle the account for the feeling of retaliation and revenge because of loss of lives and properties of Muslims in the communal riots of February 2002 on very large scale by striking tremendous terror, committing offences endangering integrity, security of the nation by terrorist activities. It was to teach lesson to the major community by creating terror and fear in their minds and thereby enhancing the moral of the community persons. The hurt emotions and sense of insecurity impelled to commit the terrorist acts by the accused which all has close nexus with the incidents of communal riots in the State in the year 2002.
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(b)
The POTA came into being on 28/3/2002 following the ordinance POTO 2001 dated 24/10/2001. The Prevention of Terrorism (Repeal) Act, 2004 (for short "the Repeal Act") came into force on 21/9/2004.
(c)
Clause(d) of Sub-Section (2) of Section 2 of the Repeal Act has the influence of Section 6 of the General Clauses Act. It is clarifying that the Repeal Act shall not affect any investigation if already instituted or continued. It is therefore clear that for nonapplicability of the Repeal Act, the prosecution needs to show that the investigation of the FIR, complaint against the accused has been instituted and as was continued before the Repeal Act came into being. Putting it in other words, if any investigation has already been instituted or is being continued, in that case only, the Repeal Act shall not not affect otherwise it would affect the implication of the person in POTA.
(d)
FIR of this case is dated 4/4/2003. The first charge-sheet of 15/03, dated 10/9/2003 is for 39 accused. In this charge-sheet, about 43 accused have been shown absconding.
In the second charge-sheet of 5/04 dated 21/1/2004, 8 accused have been shown in column No. 1 whereas 45 accused have been shown in column No. 2.
In the third charge-sheet of 2/04 dated 27/1/2005, one accused has been shown in column No. 1 and 44 accused have been shown as absconding accused.
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In the fourth charge-sheet of 4/05 dated 19/2/2005, 4 accused have been shown in column No. 1 and 44 accused have been shown in column No. 2 as absconding accused.
(e)
The names of A-40, A-41, A-42, A-44, A-45, A-46 and A-53 and A55 have been shown in the first charge-sheet itself.
(e-1) In the confessional statements of A-40 and A-41, the names of A43 and A-49 have been revealed.
(e-2) In the confessional statement of A-43, the name of A-48 stands revealed.
(e-3) The name of A-54 has been revealed in the second charge-sheet itself and even in the confessional statement of A-42.
(e-4) The name of A-56 has been revealed in second charge-sheet.
(e-5) The name of A-47 is revealed in the statement of the witness u/s 164 of Cr.P.C. As per the prosecution case, he has illegally obtained Rs.3,00,000/- and sent it to co-accused which were used for preparing bombs, purchasing weapons, etc. for the offences committed after Godhra incident.
(e-6) In the first charge, names of A-53 to A-56 have been shown as absconding accused at Sr. No. 3, 38, 7 and 42 respectively.
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(e-7) Thus, in nutshell, the names of A-40 to A-48 and A-53 to A-56 have been revealed either right from the beginning in the FIR or from the first or second charge-sheet as absconding accused, or from the confessional statements of the co-accused etc. to connect the act and omission of the respective accused related to the prosecution case of larger conspiracy as described above for the period of the offence as described above.
2.
The case of A-49 to A-52 is found on different footing. This case of the prosecution is based on the report Exh. 1489 given by PW 180 to the I.O. on 22/11/2004 with reference to the instruction to PW 180 on 3/11/2004.
If this report is perused following points emerges :
(a)
It is on the subject of investigation of the property acquired from the proceeds of terrorism.
(b)
This report is based on statements of different witnesses, recovery and discovery panchnamas, confessional statements and the physical recovery and discovery made from the respective accused and the witnesses.
(c)
This report is an extensive report covering the historical background of the Green Bungalow from about 1924 or so.
(d)
The base of this report is exactly the prosecution case against the four accused and now against A-50 which unfolds the fact that the
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property of Green Bungalow was purchased by the proclaimed offender Sharifkhan in the year 1991. He used the said property to conceal his incriminating material used in committing different offences of murder, prohibition etc. The property was highlighted in many of the cases against the said proclaimed offender, his brother, his close aide etc.
In the year 1993, the said proclaimed offender Sharifkhan absconded by giving slip to the police, since then he is not traceable to the police, his brother A-52 is however serving the sentence in a case of 9 murders known as Radhika Gymkhana case.
(e)
The bone of the allegation is that the trinity of lawyers viz. A-49, the senior lawyer, and A-50 and A-51, his junior lawyers have taken care of, managed and administered the property known as Green Bungalow possessed and purchased by the proclaimed offender, which according to the prosecution, is the property acquired from the proceeds of terrorism.
(f)
Internal page 13 of this report clarifies that, according to prosecution, one Sajid Denny PW 147 was in fact looking after the property, but from July 1993 to February 2002 he was in Central Jail. As been specifically opined that, it is during this period that the three lawyers i.e. A-49 to A-51 who were representing the proclaimed offender Sharifkhan and the members of the gang in the Court cases have held the possession and have dealt with the administration and other affairs of the tenants during this period.
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(g)
As such, after this report, the whole trial has been conducted. The contents of the report (except on the aspect of unlawful possession of arms and ammunition qua A-50), against A-50 have not been proved by the prosecution beyond reasonable doubt.
(h)
Thus, the prosecution case is upto February 2002, the administration and management along with possession of the Green Bungalow was taken care of by A-50 and others.
3.
Vide Exh.333, the report of Central POTA Review Committee, is on record by which A-49, A-51 and A-52 have been exonerated from the POTA charges and that out of the unit of the four accused, the case against A-50 alone subsisted. A-49 had passed away and the case against A-51 and A-52 have been transferred to the Sessions Court for the trial of the offences other than POTA against the A-51 and A-52.
4.
It needs to be noted that as the report clarifies and as has been later on proved by the prosecution, the Green Bungalow was agreed to be sold in the year 1991 for Rs.65,00,000/-, but in the year 2004, vide Banakhaat Exh.1138 the consideration for such a prime property was decided to be Rs.50,00,000/-. This is not probable as after lapse of thirteen years the price of such a prime property, in the heart of the city, would increase and can never be decreased. The conduct of the original owner of not initiating any kind of civil or criminal actions for their rights in the property also sounds very unnatural.
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The Agreement to Sell with late Shri Zala was a camouflage or not need not be decided as his case had been transferred and then he had passed away.
The conduct of the original owners is not natural. Here, at the cost of repetition, it is noted that there is no convincing or positive evidence to believe that A-50 is the person behind the whole affairs, but at the same time, it cannot be believed that the original owners have not sold the property because their conduct shows that they have sold as per the prosecution case.
5.
PW 180 is the author of the report at Exh. 1489 wherein there is mention of the role of A-50 of sending the proceeds of terrorism to proclaimed offender Sharifkhan by sending it to Bittu and Thakur at Mumbai.
(a)
In the report, the details about Bittu, his mobile number etc. have been mentioned, but then no further investigation has been done.
In paragraph 30 of the oral evidence, PW 180 admits that he has secured information about Bittu at Mumbai, but thenafter he has not taken statement of said Bittu or has not done any further investigation about said Bittu. This appears to be quite astonishing. Nothing is on record to perceive that the A-50 was sending money to the proclaimed offender Sharifkhan.
(b)
The fact of recovery of Rs.2,70,000/- and Bharatiya Book from the money changer firm Saumilkumar Arvindkumar& Co. and recovery
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of Rs.5,000/- from PW 147 do not link A-50 with the crime as discussed.
Suffice it to conclude that the oral evidence of PW 180 and his Confidential Report Exh. 1489 have not proved the case against A-50 beyond reasonable doubt and rather it is creating doubt against the prosecution case that the incriminating activities of managing, administering the property of proclaimed offender Sharifkhan was done by A-50.
6.
Exh. 1740 Proposal of I.O. to the Home Department :
(a)
The proposal sent by the I.O. is dated 4/2/2005 wherein the activities of the accused has been contended to be related with Godhra aftermath when in collusion with one another the accused have created Jehadi terrorism and have joined in disrupting India and in proxy war against the nation. The collection of weapons and explosives have also been alleged as a part and parcel of the conspiracy. Here again, it has been clarified that PW 147 was looking after the property, after the proclaimed offender Sharifkhan absconded, the management and administration of the Green Bungalow was done by A-50 and others, the illusory Agreement to Sell Exh. 1138 was executed by A-49 the senior lawyer, A-50 and A-51 were juniors of A-49, the tenants, PW 147 etc. were paid from the fund received by PW 137 to develop the land, Rs.6,00,000/- and Rs.2,70,000/- through money exchanger firm and Rs.5,00,000/- at the time of murder of Shri Haren Pandya were given by the three lawyers to the proclaimed offender.
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As discussed above, nothing of this has been proved by the prosecution beyond reasonable doubt.
(b)
On internal page 6 of the proposal, there is a very specific note that the evidence of telephonic conversation having been done from the mobile phone of A-50 and TATA wireless line from the residence of A-49 with proclaimed offender Sharifkhan have been secured (no such evidence is on record), there is further mention that on 23/7/2004 Agreement with both the juniors was executed by said Shri Zala (no such Agreement on record). As discussed, the jail visits of A-50 with A-52 have been not found to be linking A-50 with the cirme, ransom from the petrol pump is also held to have not been proved, the other allegations in the proposal have even not been proved.
Concluding everything except the illegal possession of the weapons, nothing has been proved.
7.
Exh. 1650 Sanction Order of the Home Department dated 16/2/2005:
(a)
If the sanction order is seen, in paragraph 4, the sanctioning authority has even prima facie found to have not believed the story of A-50 making phone calls to Sharifkhan.
Here also, the prosecution case in fact begins right from 1991 and to be specific from 1992 as contended in paragraph 4 itself. The allegation of extortion of Rs.25,00,000/-, meeting A-52 at jail,
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arranging and managing expenses of A-52 at jail and looking after the property of proclaimed offender Sharifkhan all go back to 1992-1993 onwards. The perception of the prosecution case by the sanctioning authority has rightly been based on the role of A49 who has been exonerated by Central POTA Review Committee.
Even in the proposal, the story of about last 12 years has been highlighted.
8.(a) It is becoming extremely clear upon collective reading of Exh. 1489 the confidential report of PW 180, oral evidence of PW 180, proposal Exh. 1740 for A-49 to A-52 and sanction of the Home Department Exh. 1650 for A-49 to A-52 and then reading it with the oral evidence of different prosecution witnesses examined to prove the case against A-50, that the prosecution has based its case qua A-50 from 1992 to 1993 whereas the C.R. No. of which the investigation was instituted and continued is for the period after the Godhra massacre which is from February 2002.
(b)
Exh.1489 and Exh.1650 are to the effect that the role ascribed by the prosecution to A-50 begins from 1992 onwards where as the base of the FIR in the communal riots and its effects from February 2002.
(c)
There is nothing to hold that when the POTA came the investigation about the offences of A-50 have been instituted or continued which according to prosecution began from 1992-1993, related to the ransom amount, conspiracy with A-52 at jail,
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managing the affairs of the Green Bungalow and sending proceeds of terrorism to the proclaimed offender. It is not just and proper to hold that the role ascribed to A-50 came to be revealed while investigation of the terrorist acts, conspiracy hatched after the Godhra incident in absence of any material for the same.
In the same way there is nothing to hold that on the date of repeal of POTA the offences of the A-50 were being investigated, hence Clause (d) of Sub-Section (2) of Section 2 of the Repeal Act should affect the implication of A-50.
The defence citation at Sr. No. 81 has been treated to have been dealt with in light of the above discussion.
(d)
The names of A-49 to A-52 have not been found revealed during the investigation of the C.R. number in form of showing their names as absconding accused, their names to have been revealed in confessional statements of the co-accused or the statements of the co-accused etc. or in any manner.
(e)
This Court is of the humble opinion that the case against A-49 to A-52 is absolutely different from the case which was being investigated on the date of the Repeal Act.
The fact of the case qua A-49 to A-52 is altogether different than the investigation instituted and which was continued when the Repeal Act came to be passed.
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The date, time of the crime, the purpose, motive of the crime are different in case of all the other accused and A-49 to A-52 from which in the judgment the concern is the case of A-50.
This Court is of the opinion that the provisions of Section 6 of the General Clauses Act and Clause (d) of Sub-Section (2) of Section 2 of the Repeal Act cannot be made applicable to the case of A-50 as on the fact of the case the case of A-49 to A-52, A-50 is not in the tune of the then on-going investigation of larger conspiracy among the accused which began after February 2002 after the spread of communal riots in the State of Gujarat.
9.(a) This Court is aware that it is not necessary that the role of A-50 must have been previously revealed, but then it is very much necessary for the prosecution to show that the investigation of the crime of A-50 has relation with the investigation instituted and been continued on the date of the Repeal Act.
The time of commission of offence is vitally different in case of unit of these four accused and in case of all the other accused. The acts and omission complained of against A-50 of illegal possession of weapons is certainly deplorable but when the case against A-50 on any of the count is not after the Godhra carnage, it would be on different footing.
(b)
Though not required it is clarified that in this part of the judgment, offences of A-50 are only under scrutiny which would not decide the offences of any of the proclaimed offenders.
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(c)
After the full-fledged trial of A-50, it is the time when the Court need to appreciate the proved fact against A-50 and the unlawful possession of arms and ammunition has been proved against A50.
(d)
It is not the case of prosecution that the A-50 began the commission of charged offences from February 2002. It has a case of the beginning of offences from 1992-1993, hence the allegation against A-50 is not found in the tune of FIR, hence it cannot be said that what was instituted was investigation of offences of A-50 before the Repeal Act.
10.
A-50 was arrested on 23/11/2004 and in view of the provisions of the Repeal Act, he can be implicated in POTA, but the condition precedent for the same is that the prosecution shall have to show the period of the offence and other related facts to be suiting with the investigation instituted and being continued in this C.R. number.
In the first charge the name of Sharifkhan has been shown at Sr. No. 24 as absconding accused like it has even been shown in the first charge-sheet. It is notable that in the complaint itself, the name of said Sharifkhan has been shown at Sr. No. 20. It is therefore clear that as far as the case of Sharifkhan is concerned, his investigation was on-going, but nowhere there appears name of A-50 and nothing is shown as to while investigating C.R. number, the name of A-50 was revealed or the time of commission of offence qua A-50 matches with A-50.
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In charge Exh. 606 of A-50, there is a mention of the period of after Godhra incident whereas as per the prosecution case, the offences of A-50 begin from 1992-93. Thus, there remains unexplained discrepancy which creates doubt about the implication of A-50 in the crime. This Court humbly believes that in absence of any such connection been established between the role ascribed to A-50 and the on-going investigation of the crime, it would not be just and proper to hold that A-50 was rightly implicated under the provisions of POTA.
11.
The Repeal Act is obviously to stop implication of the citizens in POTA after the limit shown in the Repeal Act is over. When on the factual matrix of the case, it seems that the Repeal Act shall can benefit the case of A-50, such a benefit should be given to A-50
It also cannot be forgotten that when two interpretations are possible and among them one is favouring the accused, the said should be embraced. The presumption of innocence continuously marching in the system should be appropriately flow in benefit to the accused.
12.
This Court humbly believes that A-50 is indeed found to be indulged into criminal activities by unauthorizedly keeping arms and ammunition, but since the arrest of A-50 is on 23/11/2004 and the Repeal of the POTA is on 21/9/2004 and when the Repeal Act is to affect the implication of A-50 in POTA, A-50 cannot be held guilty under POTA in view of the discussion as above. The A-50 is
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held to be in unauthorized possession of the arms and ammunition on 23/11/2004 as reveals from Exh.1721 panchnama dated 23/11/2004.
The A-50 rightly deserves the benefit of doubt as far as his implication in POTA is concerned.
13.
This Court is aware of the fact that no wrong can be taken lightly and when the violation of the law is by the officer of the Court from whom the expectations are to uphold the rule of law, any act and omission proved by the prosecution beyond reasonable doubt should be viewed seriously, but here in the light of the above discussed facts, the involvement and implication of A-50 do not seem to be justified at all under POTA which implication and involvement certainly are to an extent of keeping arms and ammunition unauthorizedly, without any valid licence, authority or permit, but then the said is after repeal of the POTA and while the investigation of the allegations against A-50 were neither instituted nor on-going. Hence, the Repeal Act would give way to A-50 from his implication under POTA which certainly remains for the other laws than POTA.
14.
As far as all the other accused except for A-49 to A-52 (virtually for A-50) are concerned, the investigation can really be termed to have been instituted and continued prior to the Repeal Act and in their case Clause (d) of Sub-Section (2) of Section 2 of Repeal Act shall not affect.
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Finding : Except A-50 the implication of all the other accused in POTA stands justified.
(II)
ACCUSED No. 50 - MUSHTAKALI ABBASALI SAIYED The A-50 has been charged vide Exh.606. The prosecution has examined different witnesses to prove its case beyond reasonable doubt against A-50. The appreciation of the oral and documentary evidences relied upon by the prosecution qua A-50 are as under : 1. PW 105 - Sitaramdas Sadhu, PW 106 - Munirmiyan Shaikh, PW 107 - Sabirhusain Shaikh, PW 108 - Iqbalhusain Shaikh, PW 111 Abdulsattar Mohammadbhai Saiyed, PW 112 - Pravinbhai Kadela, PW 113 - Mohammad Yusuf Mulla, PW 114 - Niranjan Navinchandra Patel, PW 115 - Harkulan Lopiz, PW 116 Anisuddin Munshi, PW 127 - Mustufamiyan Shaikh are all the 11 witnesses who have been examined by the prosecution to establish different aspects of the prosecution case, but all the said witnesses have been declared hostile by the prosecution who resiled from their statement before the police. 2. (a) OPINION The statement before the police can only be used to contradict the maker of the said statement which use has been made by the prosecution with the permission of the learned predecessor in respect of all the above eleven witnesses but of no avail. (b) All these witnesses have been declared hostile and all of them have been confronted with their earlier statements which is found contrary to the oral evidence given by the said witnesses before
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this Court. Hence, their evidence did not help to prove the prosecution case against A-50. (c) Through these witnesses the attempt to prove that ransom was paid by the administrator of the petrol pump to settle with the proclaimed offender to continue the petrol pump by paying to A-50 on behalf of the proclaimed offender as a member of the gang has been failed. The prosecution case on the said aspect has not been proved against A-50. Even PW-125 the said administrator of the said petrol pump too is a hostile witness. PW-105, 106, 107 and 108 have been examined to prove that Liyakatali Rehmubhai (PW-137) is known to all these witnesses who have financially helped the PW-137 for the development of the land of Green Bungalow and for constructing complex over it but since the witnesses have been turned hostile like even PW137 was, it is held that these PW have not proved this part of the prosecution case beyond reasonable doubt against A-50. (d) PW-111, 112, 113, 114, 115 and 116 are the witnesses who have been examined to prove that the Green Bungalow was sold to the lawyers including A-50 and thenafter A-50 and others became the owners of the bungalow, since then all the management was done including to compensate for vacant possession to the existing tenants by A-50 for and on behalf of the proclaimed offender. All these hostile witnesses have not helped the prosecution in proving this part of the prosecution case against the A-50.
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(e)
PW-127 has been examined to prove that on account of threat been administered by the proclaimed offender the witness had to pay who knows A-50. The A-50 has collected Rs. 25,000/- per month to use it for the expenses of Javedkhan brother of the proclaimed offender which were paid by the witness to A-50 on account of fear of the proclaimed offender. This witness has also been hostile. The prosecution case on this aspect qua A-50 has been under dark shadow of doubt. This part of prosecution case is held to have not been proved beyond reasonable doubt.
3.
PW 146 - Jasvantsinh Lalsinh Rathod is also the witness who has been declared to be hostile. Through this witness, the Power of Attorney Exh. 1227 in the favour of the witnesses and the licence of the petrol pump at Exh. 1228 have been brought on record.
(a)
This witness has deposed that Auto Service Petrol Pump has been situated in the Green Bungalow where the witness was working as Cashier-cum-Manager. Mr. Shaileshkumar Fulchand Jain, Pursottambhai Sajandas Multani, Anish Khimani and Niranjanbhai Babubhai Patel are the partners of the said Auto Service Petrol Pump and that Niranjanbhai has gone to USA and Purshottambhai Multani is looking after the administration and management of the said petrol pump.
(b)
The Power of Attorney in favour of the witness at Exh. 1227 and the contract of licence between the partner Niranjanbhai Patel and Bharat Petroleum Corporation are not the documents which are in any manner proving the case of the prosecution in the light of the discussion made hereinafter. This witness is held to have
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not proved the prosecution case of ransom being taken by A-50 by giving threat of proclaimed offender Sharifkhan. 4.(a) PW 145 is the Scientific Officer who has deposed that on 4th December 2004, he has visited a room of the Green Bungalow along with the photographer where he found writing of "g.m.ro. lalawa[ 244264" to have been written by pencil in three lines. Necessary photographs were taken. He has proved vide his examination-in-chief the photographs having been taken of the said site are on record vide Exh. 1224. (b) Vide Exh. 1223, the opinion by the witness is on record which is to the effect that the Green Bungalow is a very old kind of building and that the writing in question have been found to be very old writing. (c) During the course of the cross-examination, the witness has admitted that he cannot say as to how many years old the writing on the wall was. (d) OPINION Vide the oral evidence of this witness and the opinion along with the photographs given by this witness, there is nothing which can be termed to have been proved on record to link A-50 with the crime. It is an admitted position that the Green Bungalow was originally not belonging to the absconding accused Sharifkhan. The said was purchased before about 10 to 12 years of the visit of the FSL Officer to the site. The writing in question firstly in no way stands explained by the prosecution as to how does it link the present accused with the crime and secondly, the writing does not have any express meaning and thirdly, the writing are admittedly
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quite old which seems to have been written before so many years. Considering the above three points, in the humble opinion of this Court, neither the witness nor the opinion given by the witness link the A-50 to the crime in any manner. This set of evidence is held to have not taken the prosecution case ahead qua A-50. 5.(a) PW 134 is the witness from Kamleshkumar Kiritkumar & Co., which is Money Exchanger Firm. The witness has deposed that he used to do the fiscal work of receiving and paying the money and taking necessary note of the said in the Bharatiya Book. His statement has been recorded by the police, the muddamal article No. 1 has been identified by the witness to be the Bharatiya Book of his firm wherein Entry No. 14 is related to Rs.6,00,000/wherein Rs.600/- have been recorded in short form. The witness clarifies that Rs.600/- is to be understood as Rs.6,00,000/- and that Rs.6,00,000/- were received from the person like one who looks like the accused No. 50. The witness has been shown his statement Exh. 1146. This is the statement under Section 164 of Cr.P.C. (b) During the course of the cross-examination, the witness has admitted that he cannot state for sure that the person who has given him the amount was the accused No. 50 only as the time of 4 years has already been lapsed. (c) Before appreciating the oral evidence of this witness, it is necessary to note that vide Exh. 1731 - a Yadi written to the learned Chief Metropolitan Magistrate for recording the statement of PW 134 u/s. 164 is on record. Vide Exh. 1146, the statement before the learned Metropolitan Magistrate and a forwarding letter to the then Special Judge, POTA Court is also on record by which
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learned Metropolitan Magistrate Court has sent statement to the POTA Court. (d)
the said
PW 183 is the Judge witness before whom the statement of PW 134 u/s. 164 was recorded as it becomes clear upon plain perusal of the substantial evidence of PW 183.
(e) OPINION (e-1) In the substantial evidence, the PW 134 has clearly and satisfactorily corroborated his version under Section 164. (e-2) The PW 134 has not identified A-50 beyond reasonable doubt as a person who had been to his firm of Angadia with Rs.6,00,000/and one has paid the said amount wherein the entry in short form was made of Rs.600/-. Even in Exh. 1146 also the PW-134 has stated that on 17/09/2004 two persons at his office came at about 4:30 pm. One of whom was named as Mustaqali who on inquiry by PW-134 told was carrying on business. (e-4) The A-50 at the relevant time was admittedly lawyer by profession and was not doing business. (e-5) The name of the person was Mustaqali hence it is doubtful as to was he A-50 or not. (e-6) No Identification Parade has been held. In the Court the PW-134 is not sure that, that person was none else but A-50 alone hence doubt qua A-50 for the role. (e-7) The prosecution case that A-50 was managing the affairs of the Green Bungalow and has transacted for Rs.6,00,000/- out of the said fund as a person managing property affairs of proclaimed
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offender Sharifkhan therefore is held to have not been proved beyond reasonable doubt. This witness too has not proved the prosecution case against A-50. 6. The panchnama Exh.1118 by which the son of the A-50 has deposited mobile instrument of A-50 has already been discussed at lenght at the relevant part. It has been held that vide this panchnama and the oral evidence of PW-120 the panch witness of the prosecution has not taken the prosecution case a step forward against A-50 as no part of the prosecution case stands proved vide this set of evidence. 7. PW 141 is the Officer of the FSL through whom the FSL ballistic opinion Exh. 1213 has been proved on the record. Exh. 1213 - the FSL opinion reveal that the muddamal article Pistol having the mark as "Made in Italy" and another Pistol having the mark "Made in England" have been sent to the FSL along with 20 cartridges which all have been discovered at the instance of the A-50. The Pistols have been opined to have been used in past and were opined to be in working condition. This aspect has been discussed at the part of the judgment where FSL opinion has been discussed. Suffice it to repeat here that this witness links the A-50 with the charged offences of having unauthorised possession of two pistols in working condition and cartridges (live). 8.(a) PW 143 is the then Jail Superintendent of the Central Jail, Sabarmati, Ahmedabad. This witness has brought on record Exh. 1218 which is the report of different visits of accused No. 50 at the jail.
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(b)
It is an admitted position that the accused No.50 is a practising lawyer and at that point of time also he was a practising lawyer. As emerges from record, for the high security prisoners, while the visit of the prisoners with relative or the lawyer the jail officer remains present who also overhears conversation with the prisoner.
(c)
In view of the fact that the A-50 is lawyer by profession and that too a lawyer by profession on the criminal side, his visit to jail cannot be linked with the charged offences and rather it sounds quite probable that the A-50 at that point of time must have visited the prisoner for the professional requirement.
(d)
Considering the said fact, this Court is of the opinion that this evidence, viz. the oral evidence of PW 143 read with Exh. 1218 is not sufficient to link the A-50 with the charged crime beyond reasonable doubt as it only proves the visit of the A-50 to the jail but then A-50 was since lawyer of the said Javedkhan hence these visits itself cannot be held to be incriminating.
(e)
The prosecution case against the A-50 to have met Javedkhan, the brother of the proclaimed offender Sharifkhan to pay him money at the jail nowhere stands fortified. The professional meetings of the A-50 with his client at jail can not be accepted as proof of the prosecution case against A-50 without any positive, concluding, clinching and creditable evidence as mere doubt cannot replace legal proof.
(f)
Moreover, on perusal of Exh.1218 the jails visits by A-50 of said Javedkhan is from 1995 as recorded. Had it been for the purpose stated by the prosecution it should be from the 1996-1997 as the
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prosecution alleges the recovery of Rs. 25,000/- for Javedkhan is from that period (vide PW-127). This Court has no hesitation to hold that the prosecution has miserably failed to prove any case against A-50 through this witness as well. 9.(a) PW 144 is the witness who has stated before this Court on oath that he was partner in the Petrol Pump situated in the land of Green Bungalow and known as Auto Service Petrol Pump. This witness has specifically declined the fact of having received any threat from Sharifkhan and demand of Rs.25,00,000/- by Sharifkhan and no threat was ever given by the Sharifkhan to vacant the Petrol Pump. (b) He has owned the statement before the Magistrate which is on record at Exh. 1220 but on oath before this Court he has chosen to corroborate a limited part of his said statement u/s.164 of Cr.P.C. He has not been declared hostile is a point needs note. (c) During the course of the cross-examination, this witness has admitted that prior to 1994, what had happened in the petrol pump is not known to the witness, he has not lent Rs.5,00,000/- to his partner Shri Purshottam Multani and that the said Shri Purshottam Multani has not informed him that Rs.25,00,000/- is to be paid to Sharifkhan, the father of Shri Purshottam Multani has also not demanded Rs.5,00,000/- from him. (d) The part of the statement that : " a close aide of Javedkhan and Sharifkhan named as Mushtak came and has threatened and on being afraid of this threatening, Sajandas had decided to give the money and the said fact was informed to the witness. The witness has then stated that he
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became partner in the year 1994, hence he cannot be responsible, but ultimately, considering the fact that the petrol pump is fetching good business, Rs.5,00,000/- were collected from relatives and the said help of Rs.5,00,000/- was provided to Sajandas Multani " is not forming part of the oral evidence of the witness. (e) This statement u/s.164 of Cr.P.C. is useful to find corroboration to the deposition of the witness. When the witness is speaking dire opposite to what he has stated by way of the statement or when his statement is contrary to the deposition, it is hardly of any relevance to consider the present statement. (f) Moreover, in the statement there is only mention of the name Mustaq to be close aide of Sharifkhan which also this witness did not depose, hence even identity of A-50 has not been proved. (g) This Court is of the considered view that this witness has also not helped the prosecution case against A-50. 10.(a)Upon the plain perusal of the panchnama Exh.1721, read with oral evidence of PW-103, the panch slips, PW-198 - the I.O. the discovery at the instance of the accused from the residence of the accused has been effected and from the possession of the A-50, these articles including two Pistols were taken out and the said were seized in presence of Panchas. (b) This panchnama has been discussed at length at the relevant part suffice to say here that it links the A-50 with crime.
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11. (a)
Exh. 1723 - Panchnama : As has been discussed at the relevant part of the judgment this panchnama does not bear much relevance to prove the prosecution case against A-50.
(b)
In the opinion of this Court, it is not important from which source, from which person or from which particular place, the accused has obtained the weapons and how the accused became in possession of the weapons. What is vital is whether the accused was in possession of the weapons at the relevant point. As discussed hereinabove, in the light of the panchnama Exh. 1721, the accused has been held to be in unauthorised possession of the weapons.
(c)
Hence, this panchnama is of no worth and does not require to be given any weightage and even without this panchnama, the panchnama Exh. 1721 can safely be believed.
12. (a)
PW 125 As a matter of fact PW-125 is related to the allegation against the A-50 to have collected Rs.25,00,000/- from the father of the PW 125 as close aide of Sharifkhan.
(b)
It clearly emerges from the oral evidence of the said PW-125 Purshottambhai Sajandas Multani that he has no personal knowledge about the fact of collection of Rs.25,00,000/- from his father by the man of Sharifkhan. He further clarifies that in his presence his father has not paid Rs.25,00,000/- to Sharifkhan or to his man and such transaction in the year 2001 has not taken
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place. This witness virtually proves no role of A-50 in the charges offence. (c) This Court firmly opines that through this witness no part of prosecution case against A-50 has been proved at all. 13. PW 194 is from Home Department - as the sanctioning authority, Sanction orders of the Home Department, Sanctioning Authority under the Arms Act viz. PW-159, the sanction orders under the Arms Act, different judge witnesses, PW-57 - the confession recording officer, weightage to the confessional statement of the A-50 have all been discussed at length. Suffice it to say here that the sanction orders under the POTA, Cr.P.C. and under the Arms Act have been held to be valid, proper and legal qua A-50. 14.(a)PW 136 is the then Manager of Kamleshkumar Kiritkumar & Co., the MOney Exchanger Firm, Mumbai. This witness has deposed that he has received a phone call from his Ahmedabad office wherein he was informed that one party has deposited Rs.6,00,000/- which is to be paid to Thakur at Mumbai. On 18th September 2004, the said Thakur came to the firm of the witness at Mumbai to receive Rs.6,00,000/- who was paid Rs.6,00,000/and the receipt to the said effect was taken from the said Thakur which is at Exh. 1153 wherein according to the prevalent practice in the Angadia firm, Rs.600/- is written as the last three zeros are not being written in the Angadia firm and only the first figures are being written. Accordingly, though Rs.600/- have been written, it is in fact Rs.6,00,000/-. He has further added that he has given his statement at the Metropolitan Magistrate Court which statement is
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at Exh. 1154. (b) In the humble opinion of this Court, the substantial evidence of this witness very clearly establishes the fact that Rs.6,00,000/were paid to Thakur at Mumbai for which necessary receipt has been received. The statement of this witness u/s. 164 of Cr.P.C. has been taken on oath is tallying with the substantial evidence of this witness. Hence, the corroboration to the oral evidence of this witness can very well be found. (c) The role ascribed and assigned to the A-50 was as sender of the amount of Rs.6,00,000/- through the Havala to Thakur at Mumbai which amount was to send to Sharifkhan, fetched by A-50 while administering affairs of the Green Bungalow for and on behalf of Sharifkhan. (d) Neither through the oral evidence nor through the statement under Section 164 of Cr.P.C. the prosecution has proved the identity and involvement of the A-50 in the incriminating transaction. Receipt of Rs.6,00,000/- by Thakur cannot prove role of A-50 as sender of the amount. The investigation agency has not investigated anything from the receipt Exh.1153 about Thakur at Mumbai etc. (e) In the opinion of this Court, the deposition given by PW 136 appears to be very truthful and very reliable. There is nothing on record to disbelieve the version of the witness and that through this witness it becomes amply clear that the amount of Rs.6,00,000/- was received by Thakur, but it in noway proves to have been sent by A-50.
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In the light of the above discussed facts, it sounds to be just and proper to hold that this witness has not established the role of A50 in the charged crime. 15.(a)PW 155 is the person who has got the property of Green Bungalow in inheritance as member of the joint family. This witness has stated to have given his statement at Exh.1271 u/s.164 of Cr.P.C. (b) During the course of the cross-examination, the witness has stated that the property of Green Bungalow has not been sold to Sharifkhan the proclaimed offender and even as on the day he is the owner of the Green Bungalow. (c) This witness states that his father has purchased the property of Green Bungalow in 1939 and the partners in the property were joined in 1949. The property was being taken care of by his accountant. (d) In the year 1991 the bargain of the property was through Ramzanali Abdul Karim Shaikh which was an oral agreement for 60 to 65 lacs with the businessman of marbles but further transaction then was not done. (e) In the opinion of this Court, this witness is trying to suppress the material fact from the Court as to the bargain was with whom in the year 1991. It is never important as to through whom the bargain was. This intentional and planned suppression coupled with subsequent conduct of the witness and his partners led to only one irresistable conclusion that the oral agreement to sell the
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Green Bungalow was with Sharifkhan the proclaimed offender or else the witness should have come with clean hands by naming the person. The prosecution case to the said extent is held to have been sold the Green Bungalow to Sharifkhan proved beyond reasonable doubt. Needless to add that merely this fact cannot hold the A-50 to be close aide of Sharifkhan and to have been looking after or managing this property without there being any specific and positive evidence on record. This witness therefore is eld to be not joining the A-50 with crimes. 16. PW 137 - Liyakat Husain has been discussed who deposed to have been not told by A-50 to develop the property of Green Bungalow and for the said he has not received any finance or given any promissory note. This hostile witness has not proved the prosecution case against A-50 that A-50 tried to develop the property of Green Bungalow through PW-137. 17.(a)PW 109 is the another hostile witness who has also not proved the prosecution case of A-50 to be managing affairs of Green Bungalow. (b) This witness has also not fortified the prosecution case against A50 to be a person who was looking after the affairs of tenants of Green Bungalow, to give them compensation to vacate, to negotiate with them and to have purchased alternative accommodation for this witness.
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18.(a)PW 122 is the witness of the Money Exchanger Firm who is working as Mehtaji (Accountant) in the said firm. This witness has deposed that on 3/11/2004, while he was on his duty, a phone call came from one Mustaq Vakil which was attended by him. The Mustaq has inquired about the address of his firm and his name by further informing that the money is to be sent at Mumbai. (b) Then after one Mr. M.G. Shaikh came to pay Rs.2,70,000/- with instruction to send it to Mumbai. After the said, the said amount was seized by the investigating agency, the witness has given his statement u/s. 164 of Cr.P.C. before the Court of learned Metropolitan Magistrate, Rs.2,70,000/- has been seized as muddamal article No. 1, whereas the receipt No. 2601 given to the said person who came to deposit the money is at Exh. 1124 (article No.2). (c) During the course of the cross-examination this witness has admitted that he can not say as to a person came to deposit the amount was whether M.G. Shaikh, Mustaq Vakil or not. (d) His firm does not seek for identity of the depositor. The witness has specified that he did not meet Mustaq Vakil in person and he did not remember if any such transaction entered into by the said Mustaq in past or not. (e) This witness has not proved beyond reasonable doubt of the involvement of A-50 in the transaction of sending Rs.2,70,000/- to Bittu to which extent this witness has also not helped prosecution case.
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19. (a)
PW - 123 : This witness has stated that he is partner in the money changer firm known as Saumilkumar Arvindkumar Angadia. On 03/11/2004, one M.G. Shaikh has deposited Rs.2,70,000/- to change the said money to one Bittubhai at Mumbai. The necessary receipt was given, but then the police officer of the Crime Branch has seized the amount, the direction to stop payment at Mumbai was issued. The witness further deposed that thenafter one Mustaqali Vakil telephoned to his firm for 2 to 3 times which was attended by the witness and that the said Mustaq did inquire as to why the money has yet not been received at Mumbai and that the said money is of Sharifkhan. The witness owns his statement at Exh. 1126.
(b)
During the course of the cross-examination, the witness admits that he sits at the Manekchowk Branch and the telephone at Saraiya Pole was attended by the person who sits in that office. The telephone calls of the said Mustaq has been admitted to have been received at Saraiya Pole Branch and that this witness was intimated on telephone. The witness admits that he does not know the said Mustaq Vakil and he had no talk whatsoever with the said Mustaq on the phone.
(c)
The overall impact of the oral evidence of this witness is that he deposed in the tune of his statement but has nothing to say from his personal knowledge. There is no substantial variation in the deposition and statement. As is clear, this witness does not seem to have personal knowledge about telephone conversation by the said Mustaq Vakil or identity of the Mustaq. This witness has learnt the said fact through hearsay.
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(d)
Considering the same, it seems that this witness has not helped the prosecution case, establishing the link between the A-50 and the charged offences by proving his role in sending Rs.2,70,000/to Bittu and persuading the same to be handed over to the said Bittu at the earliest. The prosecution case has not been proved through this witness.
20.(a)PW 124 is the witness who has been declared to be hostile witness. There is glaring discrepancy between the statement u/s. 164 of Cr.P.C. and the oral evidence. The only use of this statement can be made is to use it for corroboration or contradiction. (b) The prosecution case through this witness is that "the A-50 was a man of Sharifkhan, the tenants were compelled to vacant by threat or money, A-50 was introduced as the original landlord, to be new purchaser of the Green Bungalow and on payment of Rs.3,50,000/- this witness has vacated his possession from his part." It is more than clear that this hostile witness has not proved this part of prosecution case in any manner. No case against A-50 has been proved through this witness. 21.(a)PW 110 is the lady witness who has been declared to be hostile. This witness was in Sabarmati Central Jail as convict in some another case. (b) This witness through her oral evidence has not at all supported the prosecution case that this witness was providing tiffin to
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Javedkhan, brother of Sharifkhan for which Rs.5.000/- per month was paid by A-50, A-50 was administering fund of Javedkhan and the affairs of Green Bungalow and that Javedkhan also told this witness that she might take money from A-50 should she require as the A-50 had got Rs.25,00,000/- from Petrol Pump for him and Sharifkhan. No case against A-50 has been proved through this witness. 22. The PW-120, 121, 126, 142 & 153 are the panch witnesses respectively for the panchnama Exh.1118, 1120, 1490, 1215 & 1723. These panchnamas have been discussed at length at the relevant part. Suffice it to say here that these panchnamas have not linked the A-50 with the charged crime. 23. PW-147 has also been discussed in the discussion of panchnama Exh. 1490 who has also been held to have not helped the prosecution qua A-50. 24. (a) PW 138 : This hostile witness has deposed that Green Bungalow is his family property, he is a co-owner of the said property, in the year 1991, one Ramzanali brought merchants of marble with whom oral agreement to sell the Green Bungalow was entered into, the total consideration was decided to be Rs.65,00,000/-, Rs.1,00,000/- part consideration was paid, thenafter remaining consideration was not paid. (b) Because of the tenants, there was an account of Green Bungalow in the books of accounts maintained by the witness. The witness has given his statement u/s 164 of Cr.P.C.
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(c)
The witness further states that in the year 2004, through Iqbalbhai and Nitin Patel Agreement to Sell for the Green Bungalow was entered into on 20/7/2004, the Banakhat Exh. 1138 was executed, the amount came in the share of the witness is shown in Exh. 1165 which amount was then returned to said Shri Zala on 24/7/2006.
(d)
This witness has further stated as under : No contract with Sharifkhan has been done for the Green Bungalow. I do not know if Sharifkhan has introduced bogus tenants in the property, for the last 20 years I was never going to the property, (A-50 was introduced by Nitin and Iqbal, A-50 told that they had talk with Sharifkhan, the property is to be now transferred on the name of Zala this is the prosecution case), I do not remember whether in the year 2003, foreign liquor was available from the Green Bungalow and my statement was recorded, I do not remember whether I have stated before police that before 10 to 12 years, the headstrong Sharifkhan has attempted to possess the property or not.
(e)
This witness has further brought on record different accounts like Muh Bola Account (for the oral agreement of Green Bungalow), Account of Hazratkhan, Bharat Petroleum, etc. which are all from different account books from the year 1990 to 2004 which are on record as Exh. 1168 to 1175, 1177 to 1188 and passbook Exh. 1191, two letters of Bharat Petroleum Exh. 1192 and 1193, income-tax return at Exh. 1196, document of another property on the name of the son of the witness at Exh. 1197, bank's certificate Exh. 1209, etc.
(f)
From all the documentary evidences formally proved and produced through this witness and from the oral evidence of this
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witness, it becomes clear that in the year 1991 an oral agreement as Agreement to Sell was executed between the witness and his other partners with said Sharifkhan. This is clear even though the witness has neither admitted nor shown in the books of accounts any account being maintained in the name of said Sharifkhan. This Court has taken note of the conduct of the witness and his other partners of not going to the property for 10 to 12 years which is only possible if the said property has really been sold. (f-1) It is also to be noted that every partner witness states in the Court that the oral agreement was done through Ramzanali, but that is never of any importance. What is important is with whom the contract was in fact been executed. On this aspect, all the partners are observing convenient silence and are only repeating negative assertion to have not sold it to Sharifkhan, but then it is only within the special knowledge of these witnesses as to if not to Sharifkhan, to whom they have sold the Green Bungalow. Their silence on this aspect would become a clear pointer to the fact that the partner witnesses of Green Bungalow have indeed sold it to Sharifkhan and that they have received the consideration as per the prosecution case for which reason they have waived every right on the bungalow. (f-2) It is to an extent that they have admitted to have not gone to the bungalow for about 10 to 12 years which is not at all showing the natural conduct of the genuine owners. (f-3) This witness has told that he does not remember as to his reply was recorded in the year 2003 for the foreign liquor to have been seized from his bungalow or not is indeed astonishing and sounds very unnatural.
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(f-4)
The witness in one breath states that he is a businessman, in another breath, he even does not know that police has recorded his reply for searching the incriminating material from the property on their name. Both these things together is not probable and does not reveal natural conduct.
(f-5)
Viewing the overall conduct of the witness himself and his other partners and while reading their oral evidence between the lines, it becomes clear that there is substance in the prosecution case about the transaction to have been entered into between the witness and his other partners and Sharifkhan in the year 1991, and the receipt of the remaining consideration for the bungalow, the possession to have been handed over to Sharifkhan and he was using the property.
(f-6)
Even the fact of another Banakhat on 20/7/2004 with Mr. Zala and return of the part consideration on 24/7/2006 goes with the prosecution case more.
(g)
It is true that the prosecution case to the above extent stands proved for which from the conduct of the witnesses a lawful inference can be drawn, but merely that does not mean that this witness has helped the prosecution in proving any case against A50 and more particularly the case of the prosecution that A-50 has represented before the witness and his partners to transfer the property on the name of Mr. H. N. Zala under the instruction of said proclaimed offender Sharifkhan. It cannot be held to have been proved beyond reasonable doubt, as nothing emerges from the oral evidence of this witness and voluminous documentary evidence produced by this witness on record that the A-50 has
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played a role as representative of proclaimed offender Sharifkhan in the whole transaction. 25. PW 125 has been discussed at length at the relevant part who has not linked A-50 to the charged offences as per the prosecution case. 26. (a) PW 128 : PW 128 is a Notary Public who has entered in his Notary Register - Exh. 1138 Banakhat between the joint owners of the Green Bungalow and Mr. H.N. Zala on 20/7/2004. (b) This witness has also brought on record three of the entries from his register. One of the three entries is of one Banakhat viz. Agreement to Sell seems to have been executed between the coowners of the Green Bungalow and Advocate Mr. H.N. Zala (Exh.1138). (c) Exh. 1138 the Agreement to Sell for the Green Bungalow dated 20/7/2004 has been perused. In this document, neither as a person to purchase stamp nor as signatory or witness or in any manner there appears any involvement or presence of A-50. (d) Exh. 1135 is the notarising entry of Banakhat Exh.1138 in the notorial register of the witness at Sr. No. 427. Here also, there is no presence or mention of A-50. (e) Exh. 1136 is at Sr. No. 428 dated 20/7/2004. This entry seems to be between the joint co-owners and Mr. H.N. Zala which is about one another agreement, but there is no mention of presence or involvement of A-50 even in this transaction.
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(f)
Exh. 1137 is entry No. 430 dated 23/7/2004 which seems to be notarisation of one agreement between Advocate Mr. M. G. Shaikh, A-50 and learned Advocate Mr. H.N. Zala. This is the agreement notarised between the two junior advocates with their senior advocate witnessed by one Ashok J. Dabhi and H. C. Parmar.
(f-1)
This is the entry concerning A-50, but no material whatsoever has been collected to prove that this agreement was related to some incriminating contents.
(f-3)
The investigating agency has neither investigated nor obtained the document nor has examined the witnesses of the documents to prove any material against A-50. There is absolutely nothing except this entry in the notary register concerning A-50.
(f-3)
It needs to be noted that from the notary register, in all three entries have been formally proved through this witness, but out of the three entries, the document of the agreement of only one entry has been secured by the investigating agency which is at Exh.1138. Upon perusal of the three entries and the Agreement to Sell Exh. 1138, there does not appear any material to join A-50 with the crime as a person who was managing the affairs of proclaimed offender Sharifkhan.
(g)
PW 128 has clarified that as far as Exh. 1138, the Agreement to Sell, is concerned, Mr. H.N. Zala was introduced by learned Advocate Anil Kapkar, the witness has stated that on 20/7/2004
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when he had been to the residence of Mr. Zala, certain persons were present there, among whom the witness knows Mr. Zala and Mr. Mohammad Ali. This part of the evidence does not show even presence of A-50 while the document Exh.1138 was executed. (h) As far as the transaction dated 23/7/2004 is concerned, the witness has specified that from the parties of the entry Exh. 1137 (where name of A-50 has been shown), the witness knows Advocate Mr. Zala and Mr. Mohammad Ali. The witness has further added that he does not know A-50 since he was not practising in the compound where he was practising as a lawyer. (i) Though the presence of A-50 has not been proved on 20/7/2004, the witness has further specified that he does not remember whether on 20/7/2004 A-50 was present there or not because he did not know A-50. (j) This witness has been declared hostile and has been contradicted from his earlier version, but nothing fruitful comes out. (k) The witness has clarified in the cross-examination that as far as document of Exh. 1137 the entry No. 430 in his register (where name of A-50 has been mentioned), he has not kept any copy of the contract. (l) In the light of the totality of the oral evidence read with documentary evidence brought on record by this witness, there does not seem to be any material by which it can be held that A50 has played pivotal role in the Agreement to Sell of the Green Bungalow and has represented the interest of proclaimed offender Sharifkhan.
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There is in fact no material to infer that A-50 was present on 20/7/2004 while the Agreement to Sell Exh. 1138 was executed. This Court therefore humbly opines that this witness has also not helped the prosecution case and more particularly has not brought on record any material to link A-50 with the crime. The prosecution case against A-50 has even not been proved by this witness. 27. PW-133 : As has been discussed while discussing panchnama Exh.1729, this witness has not linked the A-50 with the charged offence beyond reasonable doubt as the identity of A-50 as sender of Rs.6,00,000/- through Money Exchanger Firm vide Havala transaction has not at all been proved by this witness. This witness has also not helped the prosecution case. 28. PW-180, REPORT EXH.1489 : This Court has discussed at length while discussing justification of implication of A-50 in POTA to hold that it is not justified to implicate A-50 in POTA. As is clear from Exh.333, the report of the Central POTA Review Committee that from the unit of A-49 to A-52 of the three accused except A-50 have been exonerated from POTA. In the light of the discussion, the A-50 needs to be held to have not been implicated in POTA in accordance with the Prevention of Terrorism (Repeal) Act 2004. Finding : In the light of what has been discussed hereinabove and what has been discussed in another portion of the judgment qua the
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justification of implication of A-50 in POTA, it is held that except the charge with respect to being in unauthorised possession of arms and ammunition, no other part of charge stands proved against A-50 beyond reasonable doubt. His implication in the POTA has not been proved by the prosecution beyond reasonable doubt which is not found to be lawful in the light of the Repeal Act and in the light of the peculiar facts and circumstances of the case. Except the under Section 25(1-B)(a) of Arms Act. The guilt of A-50 does not stand proved beyond any reasonable doubt, hence qua the charge under all the sections, the A-50 is entitled to be granted benefit of doubt.
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PART-VII GENERAL
1. Issue Estoppel, Double Jeopardy and conspiracies in different POTA Cases
It has been urged by learned Special P.P. Mr. Panchal that the conspiracies in all the cases are different whereas all the learned Advocates for the defence have vehemently submitted that though different names have been given to the conspiracies, but then ultimately, conspiracy upon which different cases have been filed are same. (a) In case of tiffin bomb, there were in all 21 accused. That case was based on a particular conspiracy of making the bomb and planting the bomb in the AMTS buses so as to strike terror. This conspiracy was limited of striking the terror by blast of tiffin bombs in the AMTS buses. Vide Exh. 2004 and 2005, the charge of POTA Case No. 7/03 and 8/03 are on record. If these charges are carefully perused, the main allegation is related to hatching the direct or indirect conspiracy to take the toll of innocent human lives and to damage the public property by using and blasting the tiffin bombs. To put the conspiracy into action, live tiffin bombs in different AMTS buses, in route No. 46 and 49 were planted. Three of the persons of Bomb Disposal Squad were seriously injured because of the diffuser of the tiffin bomb in AMTS route No. 49. The charge was under POTA, I.P.C. and Explosive Substances Act. The charge furthers with the allegation that some of the accused were expert of electronic devices, use of timer, use of timing circuits, etc. and that the tiffin bombs were prepared, the
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tiffin boxes were purchased and other material was also purchased. The charge of POTA Case No. 10/03 produced by the defence vide mark 627/1 has also been perused. Upon perusal of the charge, it seems that this case was against 19 accused. As the charge goes, it seems that the conspirators met at Jaliwali Masjid where the first target to strike the terror was decided to be Shri Jagdish Tiwari of V.H.P. The accused went to the shop of said Jagdish Tiwari where he was fired in which said Jagdish Tiwari was injured. Thenafter the conspirators met at Jumma Masjid and the next target was Shri Haren Pandya, the leader of B.J.P. and former Home Minister for which necessary preparation was made and on 26/3/2003, said Shri Haren Pandya was murdered. Some of the accused have escorted the other accused. The charge was u/s 302 read with Section 34 of I.P.C., u/s 307 read with Section 34 of I.P.C., under POTA, under Arms Act, etc. (b) In case of Hasmukh Lalwala, the conspiracy was to strike terror by assaulting Shri Lalwala wherein firing also took place and serious face injury of bullet has been resulted. All the three cases have been tried and decided. (c) In the present case, the conspiracy is on a large scale, deep rooted conspiracy, there are in all 56 accused out of which 44 accused have been tried. In this case, Explosive Substances Act is not in the picture, the murder of individual leader is not in the picture, in this case as the charge is clarifying, all the accused have hatched conspiracy to strike terror and to take revenge for the death and loss of property of Muslim community, to get the
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training from the neighbouring country Pakistan by the banned terrorist organizations like Jaish-E-Mohammad and Lashkar-EToiba and to facilitate and encourage more and more Muslim youth to receive such training and to be in readiness to act as per the target given to the person who have been imparted the terrorist training. The terrorist training was given at Pakistan for which Indian border was illegally crossed from Kolkatta and by use of fake passport the journey was completed. As a part of systematic campaign, the accused have collected different weapons, unauthorizedly obtained and possessed the said weapons and that the accused have committed terrorist acts. The use of arms and ammunition was to be made before which the conspiracy stood revealed. (d) In the present case, there is larger conspiracy whereas in other cases, the conspiracies were limited which were successfully implemented. In this case of larger conspiracy, the conspiracy could not be realized except acquiring and possessing the arms and ammunition by different accused unauthorizedly. (e) The issues raised and adjudicated in the above three cases are in a way different from the present case as in previous three cases, the issue of larger conspiracy by receiving the terrorist training has neither been raised nor been adjudicated. It can happen that the narration of history or mention of certain facts or description of the intention of the conspiracy may be seen, but that is not the sole base to decide the issue. Unless the earlier judgment is in respect of the charge framed in this case, the conspiracy cannot be held to be one and the same. By plain reading of charge of all the cases, it becomes clear that the points for determination in all the cases were not same.
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(f)
L.A. for the defence has submitted that against two of the accused the proceedings were dropped by my learned predecessor entertaining an application u/s 300 of Cr.P.C. As against that, leader Special P.P. has submitted that Criminal Appeals against the said are pending before Hon'ble the High Court which were admitted vide Criminal Appeal No. 167/08 qua A-11 and Criminal Appeal No. 174/08 qua A-12. In the humble opinion of this Court, since the Appeals have been preferred, the order passed by my learned predecessor has not attained finality. Not only that but the stages when my learned predecessor decided the application u/s 300 of Cr.P.C. and the stage of today when the matter has only been kept for judgment are also different. After full-fledged trial of these cases, this Court does not find any material to hold that the issues involved in the decided cases and in these cases are same and that the accused are being tried for the same offence for having entered into similar transactions. These are not the cases of same offence, same transaction, same issue and same charge. No Court has yet given any decision on the issue of larger conspiracy and receiving terrorist training as part of it involved in this case. Reference of some fact or mention of some history or even the period of the offence can never be equated with same issue and it is for this reason when the conspiracies of all the four cases are different, facts of all the four cases are different, issues involved in all the four cases are different, some of the accused in all the four cases are different, the prosecution case against the accused in all the cases are different, the outcome of the conspiracies in all the cases are different, it cannot be held that the principle of double jeopardy or issue estoppel is applicable to the case on the hand
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and in light of Section 300 of Cr.P.C., the accused need to be held to have been tried for these issues in past and that now in this case, the accused cannot be tried again and/or cannot be penalized again. (g) Learned Special P.P. Mr. J.M. Panchal has relied upon 3 judgments which are at Sr. No. 1, 2 & 3 of the prosecution citations. As has been held in paragraph No. 19 in the citation No. 19 : "In order to invoke the rule of issue estoppel, not only the parties in the two trials must be the same, but also the fact in issue proved or not in the earlier trial must be identical with what is sought to be reagitated in the subsequent trial." There is nothing on record to hold that the conspiracies in all the cases are identical and that the issues which have been determined in earlier cases have been reagitated. In POTA Case No. 10/03, the fact in issue was who caused the murder of Shri Haren Pandya and who caused the serious injuries to Shri Jagdish Tiwari. In another case, the fact in issue was who caused the serious injuries to Mr. Lalwala. In the same way, in the tiffin bomb case, the fact in issue was who have planted and/or blasted the tiffin bombs in AMTS buses whereas the fact in issue in these cases is that who are the conspirators of the large scale conspiracies and who have done preparation for the proxy war etc. which were never fact in issue in any of the earlier cases. In the earlier cases, the individual acts were mainly in focus whereas in the present cases, larger conspiracy with the other accused is in focus. In all the cases, nature of offences are different, some factors may be common, but that does not mean that the cases are identical.
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What is being tried is mode and manner and not the Sections. Hence, even if in all the cases POTA Sections have been applied, it cannot be said that the fact in issue are identical. The previous conspiracies were in a way limited conspiracies whereas these are larger conspiracies. The defence has not shown any material by which it can be held that the conspiracies in the previous cases are same in substance and truth. FIR in all the cases are different, even the investigating agencies are different in all the cases, in the present cases, the investigating agency has collected the material in form of confessional statements of numerous accused under the POTA and for two of the accused u/s 164 of Cr.P.C. There is even the material in form of statements of about 35 witnesses before learned Metropolitan Magistrate u/s 164 of Cr.P.C. Thus, even the material collected by the investigating ageny are also absolutely different. This Court therefore firmly believes that the conspiracies in all the cases cannot be termed to be same and that the larger conspiracy in these cases has so far not been tried or adjudicated and the fact in issue in this larger conspiracy is not identical to any of the earlier cases. As the title of Section 300 of Cr.P.C. suggests, the persons once convicted or acquitted should not be tried for the same offence. If all the illustrations given u/s 300 of Cr.P.C. are seen, then the illustrations are basing on the same fact, but as discussed in the present cases, the facts are not at all similar, not at all identical. The principle of double jeopardy is that no man shall be punished or put in jeopardy twice for the same offence. But in the instant cases, since the facts are different and as discussed above, there are many different dimensions of these cases which were not present in the earlier cases, this cannot be termed to be the trial of the same offence.
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(h)
Learned Special P.P. Mr. Panchal has relied upon the prosecution citation at Sr. Nos. 1, 2 & 3. This Court humbly but firmly believes that all the three citations referred and relied upon by the prosecution are squarely applicable to the facts of the present case and that as has been guided by all the three judgments, it is clear that in the facts of these cases, neither Section 115 of the Indian Evidence Act nor Section 300 of Cr.P.C. is applicable and that the facts in issue in this case are held not to be identical with any of the cases which have already been tried, may be as POTA Case No. 7/03, 8/03 or 10/03 or the case of Mr. Lalwala. This Court therefore opines that the submission made by the defence on the aspect that the investigation is vitiated in light of the provision of Section 115 of Indian Evidence Act and Section 300 of Cr.P.C. does not find favour with this Court.
(i)
L.A. Mr. B.M. Gupta for the defence has heavily emphasized upon the defence citation at Sr. No. 30 and 31 to submit that the accused cannot be tried again as they have already been convicted for greater crime, murder, and that the conspiracy being tried is since a lesser crime, they should not be convicted. Upon perusal of the judgment, it is of Hon'ble U.S. Supreme Court and that the very base of the judgment is whenever many charges grow out of a single criminal act or occurrence, the said different offences should not be dealt separately, but as discussed hereinabove, in the facts of the present case, the offences being tried and the cases having been already adjudicated are not growing from the same transaction and/or from the same act and that the facts in issue are since different, the judgment cited cannot have any application.
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The judgment at Sr. No. 31 of defence citations and more particularly paragraph 235 to 239 have been pressed into service for the said submission. Upon perusal of the said paragraphs, it becomes clear that the second trial is barred on the same set of facts, but as has been discussed, the facts of different cases are not identical and by giving most beneficial interpretation to the facts of all the cases, it cannot be held that all the cases have grown from the same set of facts. It cannot go out of sight when the accused involved themselves in multi-facet activities for the similar object and when they had more than one act or omission and that too in different transactions, they shall have to face different litigations and in all such cases, the principle of issue estoppel or the principle of double jeopardy cannot come to the rescue of the accused. In light of the foregoing discussion, the submission of the defence fails as held earlier.
2.
ADDITION OF POTA SECTIONS :

Defence citation at Sr. No. 45 is on the fact when the provision of the stringent law was subsequently added and in the circumstances of the cited case, the Court has expressed dissatisfaction on inclusion of offences under TADA, but in the case on the hand, such question does not arise because in the facts and circumstances of the case, the subsequent addition of POTA in fact shows bona fide on the part of the prosecuting agency and in the facts and circumstances of the case, there is no material by which it can be held that the POTA has been invoked wrongly or mala fidely.
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In the light of the cross-examination of PW-199, the I.O., it is clear that he was posted as ACP Crime Branch on 6/4/2003, he was directed to take up the investigation on 20/4/2003, on 19/4/2003 an application was moved by the then I.O. to add POTA sections. Para 232 and onwards this witness clarifies that being ACP, he was discussing with PW-162, the then I.O., and he knew that POTA should be made applicable in the case. But, it was decided to apply POTA only after supporting evidences are available, the information received was confirmed and after getting evidence the POTA was applied. After about three months provisions of POTA had been made applicable, by that time major investigation was over. Hence, the submission of defence that the object of the investigating agency to secure confessional statement of the accused cannot be subscribed. In the opinion of this Court, the delay in applying POTA cannot be seen with suspicion, but it should be seen as due care and caution taken by the investigating agency. The reply in the cross of the ACP I.O. shows the bona fide of the investigating agency. Quoting Hon'ble the Apex Court, this Court humbly hold that it is not good practice to raise doubt against everything done by the investigating agency. The reason demands to view the action of the investigating agency in this case as taking due care and caution which rules out any malice or intention of false involvement of any of the accused. Except in case of A-50, in case of all the accused as has already been discussed, implication of POTA has been justified to the satisfaction of the Court. Hence, the defence citation at Sr. No. 45 does not help the defence in any manner. In the facts of the case, subsequent invocation of POTA provision has been found to be
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proper and satisfactory and after due application of mind of the investigating agency. Hence, this Court does not find any material for dissatisfaction on inclusion of offences under POTA.
3. (a)
Application Exh. 1988 and cognizance of POTA Sections : It has been forcefully submitted by defence that it is the learned Metropolitan Magistrate who has taken the cognizance of addition of POTA Sections in the case on 19/4/2003 who since does not have lawful authority to do so, his action is illegal and that no POTA Case can be said to have been lawfully made out against the accused. Since the cognizance of POTA was without jurisdiction, the said would amount to no cognizance at all, hence the whole trial is vitiated.
(b)
To appreciate the submission, it sounds fitting to note a background of the entire matter.
(b-1)
On 19/4/2003, the application at Exh. 1988 was tendered by PW 162 as the I.O. at that point of the time.
(b-2)
As per the oral evidence of PW 199, he was directed to take up the investigation of the case from 20/4/2003 being A.C.P. and as provided in POTA, only A.C.P. can investigate the crime.
(b-3)
The application Exh. 1988 is with all necessary details as the material upon which the POTA was decided to apply.
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(b-4)
As per the oral evidence of PW 199 and as discussed in the above point, the belated application of POTA is not creating any doubt against the investigating agency, rather it shows bona fide and fair play of the investigating agency. During the course of the cross-examination of PW 199 at para 307, this issue has been highlighted wherein the defence itself has suggested that on 19/4/2003, a report to POTA Court to add POTA Sections was given. Thus, no doubt is left out in judicial mind that such a report was not firstly tendered to the POTA Court and the order of my learned predecessor referred to hereinabove is nothing but the order on the same application. It has been further suggested that on application Exh. 1988, the Hon'ble Court did not grant the permission, but has only written "to be kept with F.I.R.". This fact also suggests that even the defence has perceived that the permission to add POTA was not granted by the learned Metropolitan Magistrate, but only order "to be kept with F.I.R." was passed. Ultimately during the course of the cross-examination, upon reliance of the defence, Exh. 1988 came on record from the papers attached with the charge-sheet. This is also a very vital factor to hold that in fact no order has been passed by the learned Metropolitan Magistrate.
(b-5)
Below Exh. 1988, learned Metropolitan Magistrate, Court No. 11, has passed the order "kept with F.I.R." on 19/4/2003.
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(b-6)
Exh. 1 is the original file No. 1 of the case papers sent by the Court of learned Metropolitan Magistrate Upon perusal of the Rojkam of 19/4/2003, it becomes clear that it has been noted that the application to add POTA Sections as an additional report has been received which has been kept in the papers.
(b-7)
On page No. 425 of this file, there seems to be an order passed by the learned predecessor of this Court as Special Judge, POTA as she then was. The order is dated 19/4/2003 at 2.00 p.m. Upon perusal of this order, it becomes clear that the Special POTA Judge has passed the specific order that her appointment is a case specific viz. for the Godhra Railway Police Station First C.R. No. 9/02 only and that in the matter placed on that day before her in First C.R. No. 6/03, D.C.B., Ahmedabad (this case) she cannot exercise any power under POTA. It seems that the police officer who has tendered the application before the then POTA Judge was not entertained, but however, the transitional provision of Section 35 of POTA was stated and it was directed to place the matter before the appropriate Court under the Code.
(b-8)
It seems that the police officers were right in taking up the matter to the learned Metropolitan Magistrate as that is the appropriate Court under the Code until committal of the case.
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(b-9)
It seems that the kind of application as Exh. 1988 was also placed before my learned predecessor which could not be entertained for want of vesting of the power in that Court under the POTA, but in the Code, the learned Metropolitan Magistrate has power.
(b-10) In the humble opinion of this Court when learned Metropolitan Magistrate states to keep it with F.I.R., it can hardly be termed to be a judicial order as it is routine kind of order as until the committal whatever reports are produced are necessarily to be kept with F.I.R. for the perusal of the Sessions Court, hence no illegality has been committed by learned Metropolitan Magistrate or it cannot be said that he has taken cognizance of POTA Sections. What he merely did is accepting the report and filing the same. (b-11) In File No. 2 of Exh. 1, the Notification of Government of Gujarat dated 27/6/2003 on page No. 781 can be seen and on page No. 784 & 785 application by PW 199 can also be seen. This application is dated 2/7/2003 by which PW 199 has informed the learned Metropolitan Magistrate about Notification,appointment of the learned predecessor of this Court and request for sending the material to the Court. On page No. 779 also, a request to send all the papers related to this case has been made.
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(b-12) If the Rojkam dated 2/7/2003 is seen, it is found that on account of the appointment of the Special Judge under the POTA, all the papers and the report (including Exh. 1988) have been sent to the POTA Court. (b-13) The cognizance of POTA can be termed to have been discussed technically taken when the Special POTA Court numbers the case as POTA Case. In the humble opinion of this Court, that is called taking cognizance and it is then and there the report Exh. 1988 can be termed to have been accepted for all purposes. (b-14) In light of the above discussion, this Court is of the considered view that the cognizance of POTA has been taken by the Special Judge, POTA after her appointment upon due Notification by Government of Gujarat under the POTA, this Court absolutely does not find any illegality to have been committed by the learned Metropolitan Magistrate Court. (b-15) It is true that the transitional power u/s 35 of POTA could have been invoked, but when the order of the Additional Sessions Court has directed the police officer to go to appropriate authority under the Code, the act on the part of the police and even passing the order by the learned Metropolitan Magistrate to keep the report with F.I.R. merely seems to be an irregularity which needs to be
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ignored in larger interest of justice. As a matter of fact, the learned Metropolitan Magistrate has not adjudicated upon any of the rights or duties of any of the parties, he has simply filed the report and sent the same along with all the material which was obviously for the necessary action at the end of the learned predecessor of this Court. No substance is therefore found in the submission.
(b16) The defence citation at Serial No.23 is in the case where learned Metropolitan Magistrate has mechanically passed the order. In the case on hand, after the order of my learned predecessor,theInvestigatingOfficerhadbeentothelearned MetropolitanMagistrateCourt,theappointmentofthelearned predecessorofthisCourtwascasespecificanditwasnotthe appointmentasPOTAJudgeforallthecases.Inthecasethe cognizance has not been taken by learned Metropolitan Magistrate, but the cognizance of addition of POTA Sections canbetermedtohavebeentakenwhenthematterwassentto POTA Judge after her appointment and when the case was orderedtobenumberedasaPOTAcase.Thus,thecognizance hasbeentakenbytheCourtwhichhasjurisdiction,theorderof learnedMetropolitanMagistratetokeepthereportwiththeFIR wastheorderwhichthelowestCriminalCourtneedtopass. Thus,thecitationsinceisnothavingthesimilarfactasthiscase is having, it cannot be held to be in anyway helping the prosecution.
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4.
(a)
DELAY IN FILING COMPLAINT :

During the course of arguments, delay in filing the FIR Exh. 1341 of about 12 hours has been emphasised by some of the learned Advocates for the defence.
(b)
It is a matter of record that neither the complainant nor the I.O. has ever been cross-examined on the aspect of delay in filing the complaint. Not even a suggestion has been put to the complainant or even the I.O. during the course of the cross-examination about the delay in complaint. This Court humbly believes that without affording opportunity to the witness and by raising the point only at the time of arguments, it would not be proper for the Court to hold against the investigating agency since the witnesses have not been offered any opportunity to explain or even to deny the suggestion.
(c)
This Court however humbly but firmly believes that as it may be, but this Court owes a duty to examine the aspect of delay in filing the complaint by ascertaining whether any material is available on record to establish that the delay in filing the complaint was fatal to the prosecution case. Following points have been considered by this Court :
1.
It is an admitted position that the Panchnama was initiated on 03/04/2003 after about 9.00 p.m. and was completed at 12.00 midnight. Thus, the Panchnama can be termed to have been completed on 04/04/2003 at midnight itself. Normally it is
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expected that the complaint should be immediately filed. The object behind filing the complaint immediately is (i) to avoid any kind of insertion, amendment, embellishment in the complaint and (ii) to avoid any kind of situation wherein the complainant makes any kind of variation in the story etc. In the instant case, the complainant is a P.I. of the Crime Branch who was leading the team, went at Parimal Garden upon the information received by the Intelligence Branch and upon the instructions given to him by his higher officers. This kind of information is always very confidential, serious in nature, secret, of public interest, of cognizable offence. The whole operation at the Parimal Garden cannot be said to be such which can be done after filing of the complaint, it has to be confirmed and verified whether the information received has any substance or not. 1.1 When the complainant in company of other police officials went to Parimal Garden, he found the 5 accused as has been narrated in the complaint. 1.2 PW 52, the hawker, at the Parimal Garden has provided corroboration to the fact that the said fact has happened at the Parimal Garden and the 5 accused came by 3 different motorcycles. 1.3 It is to be noted that in the case the complainant is not private person but is a Police Inspector himself, had been to Parimal Garden, did the operation, completed the panchnama at about 12.00 which panchnama is hand written panchnama and which took about 3 hours to complete.
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1.4
It is a matter of common knowledge that the complaint was not a usual complaint but was of larger conspiracy against the nation. That the complaint is a typed complaint. Hence, after the dictation of the complaint, it would take some time to transcribe the same complaint. In the cross-examination, it has been answered by the complainantthat the dictation took about one and half hour, but it is a matter of common knowledge that the said dictation would be transcribed within another one and half hour, thenafter carrying out the correction, if any.
1.5
After recording the complaint, the police would obviously prepare the report u/s 157 of Cr.P.C. which is on record at Exh. 1248. As can be seen, even this is also a typed report, which also must have taken some more time. If this report is seen, it is inclusive of the names of the 5 accused arrested at the site and the names of the 15 wanted accused. If in this report, the muddamal articles are seen, they are 15 in number. Hence, it is also but natural that preparing muddamal receipts for these muddamal articles would also consume some time.
1.6
After the muddamal receipts, before the PSO, the accused would be produced, entry in the Station Diary would be made, the face marks statement of the accused would be prepared, the entry in the register of the face marks would be done, entry in the lock-up register would be done, the offence would be registered, the intimation to relatives or friends or family members of the accused would be given, the complaint would be reduced in the form of FIR and then the investigation of the complaint would be assigned to Investigating Officer. Here what is most important to be noted is
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much of the time of the complainant must have been invested in eliciting information from accused along with the details of the conspiracy as this was not a usual complaint. Here the complainant has also to perform an additional responsibility to ascertain whether the information received from I.B. has any base or not as the responsib dropped le officer should find out that first before recording the complaint. In absence of any material, the Court can say as to what time this exercise might have consumed, but the fact remains that these all unique feature justifies the filing of the FIR at 12.00 noon. 1.7 If the form of FIR itself would be seen, then it is 12 hand written pages on one side. Some time in taking down the complaint in the form of FIR which is on record at Exh. 1341 would also take a long time. 1.8 In the humble opinion of this Court, considering the fact that no information has been elicited to doubt any malice, embellishment, amendment, insertion by the complainant, it is not sounding safe to believe so and that considering the above discussion, peculiar facts and circumstances of the case, the FIR to have been presented in the Court of learned Metropolitan Magistrate at about 12.00 noon within 12 hours sounds to be absolutely justified as even this rather seems to be case where the complainant officer has taken care to not register the complaint without ascertaining truth in the I.B. information. 1.9 At this juncture, a point cannot go out of the notice that the person who has visited the Parimal Garden and did the procedure of the panchnama is the same person who is the complainant. Hence, considering the human limitations, when the panchnama was
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completed at about 12.00 midnight, consumption of another 12 hours does not sound in any way to be a maliciously delayed complaint in the peculiar facts and circumstances of this case. 1.10 Moreover, the combined reading of S. 157 and 159 of Cr.P.C. would show that these provisions are to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberation and consultation. In absence of any suggestion or even submission that any improvement or distortion was done by the investigating agency or even by the complainant, the judgment cited at Sr. No. 26 by L.A. for the defence would not be applicable to the case on the hand to give less weightage to the contents of the complaint or to disbelieve the same. 1.11 It is true that there are certain contentions in the complaint wherein same contents have been inserted which were disclosed by the accused. Though such disclosure is prior to filing of the complaint, the same would be covered by Section 162 of Cr.P.C. and that the said cannot be read into evidence. It is however needed to be noted here that the said part which can be termed to be disclosure has not been bracketed with red ink. However, there is a note for doing the said considering which and even otherwise, in light of the settled position of law, this Court is of the opinion that the part which can be termed to be disclosure by the accused in form of admission before the police officer cannot be read in evidence and cannot be considered as part of complaint while appreciating the complaint. The said care has been taken by this Court. To that extent, this Court finds force in the submission of the defence.
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1.12 The defence citations at Sr. No. 66 and 68 need perusal. In the facts of the citation at Sr. No. 66, there was suppression of the version of eye witness wife, there were different versions on lodging of F.I.R., then the delay in lodging the complaint of 24 hours remained unexplained, hence it was doubtful. In the case on hands, there are no different versions, no suppression, the complainant is a Police Officer and not a private person, and the delay is of about twelve hours which in the facts of the case stands explained from the record, hence the cited judgment being different on facts, is not applicable. The judgment cited by defence at Sr. No. 68 is on the facts of having delay of 15 days in lodging the complaint, the FIR was lodged on confession of the accused who were arrested on suspicion but in the case the arrest was not on suspicion but on information supported by the seizure in the raid and then the complaint where the delay is not of 15 days but of 12 hours which is satisfactorily explained in the light of record, number of accused, the raid to ascertain the information etc., hence this judgment is also not applicable on the facts of the case. 1.13 This Court firmly believes that it is nobody's case that the delay was malicious or even fatal to the prosecution case otherwise so should have been suggested to the concerned witnesses which has not been done. If the submission would be subscribed, it would amount to extra technical without any material, playing in the hands of police officers and administering the justice basing upon honest officer
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committing bona fide mistake or dishonest police officer wanted to favour the accused by creating such lacunas. The time taken for filing the complaint can hardly be called even irregularity when nothing adverse is brought on record. This Court therefore holds that there is no force or merit in the submission that the complaint was delayed in totality of the facts and circumstances of the case.
5.
(a)
PROOF OF F.I.R. :Vide the defence citation at Serial No.1, it has been submitted that the complaint does not become evidence automatically. Complaint entered in the prescribed book under Section 154 of Cr.P.C. is not a complaint. Entries in book may be relevant under Section 35 of the Evidence Act.
(b)
Section 91 of the Evidence Act provides that when any matter is required to be reduced to the form of documents no evidence shall be given in proof of the terms of such matter except the documents itself. The complaint reduced into writing under Section 154 of Cr.P.C. can be used for the purpose of corroboration. The entries in the book prescribed under Section 154 of Cr.P.C. needs to be proved when a document is written by one person and signed by another. The handwriting of the former and the signature of the later have both to be proved. in view of Section 67 of the Evidence Act, it has been submitted that the complaint cannot be believed because of discrepancy in the time. This Court has as such dealt with in detail about the discrepancy in time in the Case Diary, but suffice it to note here that the discrepancy of the time as discussed above is too minor and insignificant and that no importance can be given to such discrepancy as the totality of the evidence should be seen.
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The cited judgment would not be applicable to throw-away the complaint as the law requires the information to be reduced in writing which has been accordingly reduced and that the complaint Exh.1247 is a typed complaint and it is not a complaint wherein handwriting needs to be proved. In the cited judgment, it has been held that when one person writes and another signs, both shall have to prove the document, but in the case on hand, officer who has signed the compliant has been examined as PW154 and since the complaint is not handwritten, not examining the police writer will not come in the way of the prosecution. This Court, therefore, holds that by examining the only PW-154, being the complainant, of the typed complaint no bar would be applicable and that the cited judgment therefore would not come to the rescue of the defence, the fact being different. (c) The defence citation at Serial No.18 is submitted to submit that in the complaint Exh.1247, certain portion was to be bracketed as has been noted in the oral evidence of PW-154, but the same has not been bracketed. This Court humbly believes that even if it is not been bracketed by the Predecessor Court, this Court owns its duty to read the complaint in strict compliance of law applicable. Hence, the judgment is held to be applicable, the complaint shall be accordingly read. (d) Vide Sr. No. 21 of the prosecution citation it has been submitted that when the investigation is not causing any prejudice or bias against the accused, then such an investigation is a valid investigation. In paragraph 2, it is clear that the prosecution witness, the Inspector prepared F.I.R. after conducting search and the case came to be registered basing upon the statement of the said complainant officer.
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The point emphasized by the defence here is that PW-154 in the case on hand is himself complainant and he himself has conducted some part of the investigation which is illegal and that the entire investigation of the case is vitiated on this aspect alone. In the humble opinion of this Court, no part of the investigation was ever carried by the the complainant PW-154, he was merely assigning officer who was assigned to do a particular task by the I.O. he being subordinate officer to the I.O. The defence in the case on hand, has not brought any material by which it can be held that the interest of the accused was adversely affected and that fair and impartial investigation was absent. As has been observed on page 231 from the another judgment of Hon'ble the Supreme Court, it is clear that there is no principle which says that the moment the competent officer, on the basis of information received, makes out an F.I.R. incorporating his name as informant, forfeits his right to investigate. There is no broad and unqualified proposition that investigation cannot be conducted by the complainant officer. As has been noted in the cited case in paragraph 3, even in the case on hand PW-154 in his official capacity gave the information, registered the case and as a part of his official duty later on did the assignee job. There is nothing to suggest that the complainant P.I. was in any manner interested in the prosecution case or was bias.
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Applying the above discussion in the case on hand, the submission of the defence is not found meritorious that the investigation was vitiated. (e) The prosecution citation at Serial No. 28 is related to the aspect of defective investigation. It was submitted by the defence that there are numerous defects in the investigation which creates doubt on the record, benefit of which should go to the accused. In paragraph 8 on page 526, it has been observed that : the defects in the investigation holding it t be shaky and creating doubts also appears to be result of the imaginative thought of the Trial Court. Otherwise also, the defective investigation by itself cannot be made ground for convicting the accused. Trial Court was also not justified in holding that the statement of the witnesses under Section 161 of Cr.P.C. were recorded late by the police and that there was no chance of manipulation. F.I.R. is proved to have been recorded within 15 minutes of the occurrence and its copy furnished to the Magistrate within 24 hours, which rules out possibility of manipulation. Contradiction in the evidence of the witness referred to in the judgment of the Trial Court are of very minor nature which instead of discrediting their testimony strengthens the case of the prosecution. All the witnesses being truthful as they were not shows to have made parrot-like statements. The critical examination of the judgment of the Trial Court shows that the view taken by it was uncalled for, not based upon the fact of the case or the legal evidence tendered in the case and it was result of conjectures, imagination and hypothesis.
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JUDGMENT
In the case on hand also the FIR has been proved to have been recorded at the earliest and the copy was also provided to the Magistrate within 24 hours of recording the same. It needs to be borne in mind that the case is a very big case wherein the information of the police is based on the information of I.B. and that to verify said information reveals fairness on the part of the Investigating Agency. There is nothing doubtful on the part of the Investigating Agency in recording the FIR as has been recorded. (f) It has been submitted by the defence that the FIR is containing confessional statement of the case before the police authorities and that the said part is hit by Section 162 of Cr.P.C., the said should therefore be bracketed. In the oral evidence of PW-154 the note has been recorded by the learned predecessor of this Court, but then, ultimately the said part was never bracketed nor the defence has drawn the attention of the learned predecessor of this Court to act upon the note made in the deposition. However, in the light of the discussion made hereinbelow and in the light of the note made by learned predecessor of this Court, it is thought just, proper and lawful to not consider the confessional part of the complaint. It needs to be noted that the F.I.R. itself is not a consolidatory evidence against the accused, it is merely in form of recording the information received by the police officer as his official act. In light of Section 64 of the Bombay Police Act which is casting duty upon the police office to obtain and act upon the Intelligence information hence, the complainant officer is absolutely at liberty to receive the Intelligence information and to act upon the said
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which the complainant officer did. It is notable that firstly, on 1/3/2003 only accused Nos. 1 to 5 were arrested and that the statement contained in the FIR furnished by the 5 accused cannot in any manner be used against another accused. Moreover, even against accused Nos. 1 to 5 the statement if is inculpatory should be used as has been held in Bheru Singh S/o Kalyan Singh v. State of Rajasthan, 1994(2) SCC 467 that : A confession or an admission is evidence against the maker of it so long as its admissibility is not excluded by some provision of law. Provisions of S. 24 to 30 of the Evidence Act and of Section 164 of the Code of Criminal Procedure deal with confessions. By virtue of the provisions of Section 25 of the Evidence Act, a confession made to a police officer under no circumstance is admissible in evidence against an accused. The section deals with confessions made not only when the accused was free and not in police custody but also with the one made by such a person before any investigation had begun. The expression "accused of any offence" in Section 25 would cover the case of an accused who has since been put on trial, whether or not at the time when he made the confessional statement, he was under arrest or in custody as an accused in that case or not. Inadmissibility of a confessional statement made to a police officer under Section 25 of the Evidence Act is based on the ground of public policy. Section 25 of the Evidence Act not only bars proof of admission of an offence by an accused to a police officer or made by him while in the custody of a police officer but also the admission contained in the confessional statement of all incriminating facts relating to the commission of an offence. Section 26 of the Evidence Act deals with partial ban to the admissibility of confessions made to a person other than a police officer but we are not concerned with it in this case. Section 27 of the Evidence Act is in the nature of a proviso or an exception,
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which partially lifts the ban imposed by S. 25 and 26 of the Evidence Act and makes admissible so much of such information, whether it amounts to a confession or not, as relates to the fact thereby discovered, when made by a person accused of an offence while in police custody. Under Section 164 Criminal Procedure Code a statement or confession made in the course of an investigation, may be recorded by a Magistrate, subject to the safeguards imposed by the section itself and can be relied upon at the trial. It is clear that the proof of the confession given to the police officer is prohibited by Section 25 of the Indian Evidence Act. Only the part of the statement which is permitted by Section 27 is permitted. It needs to be noted that the complainant himself has been examined. Therefore, the part which is not inculpatory in the complaint needs to be considered. (g) The delay in lodging FIR is not always fatal. As held in 2009(3) GLH 260 (S.C.) in the matter of Gowrishankar Swamigalu V/s. State of Karnataka and another, noted in para 17, H.N. (B) is squarely applicable to the present case to hold that the delay in the FIR need not be seriously noted in the light of peculiar facts and circumstances of this case. Each case must be judged on its own facts. Para 17 runs as under: "Delay in lodging of a First Information Report although by itself may be a ground to disbelieve the entire prosecution case, but each case must be judged on its own facts. If the story of PW-1 is to be accepted at its face value, the Court may not take serious
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notice of delay in lodging the First Information Report. But, for the said purpose, the entire facts and circumstances of this case must be taken note of. The offence was said to have been repeated for seven days at about the same time. It is wholly unlikely that a student of a school of the Mutt, where compulsorily prayer has to be offered on a clean cloth and as apart from two pairs of lungi and two pairs of school uniforms he did not have anything else, had been putting on the same lungi at least for about seven days while visiting the appellant at his call."
6.
PERJURY :
In the instant case, the PW-67, 74, 76, 77, 78, 80, 81, 84, 85, 88, 91, 92, 97, 102, 104, 148 & 152 have administered the oath before learned Metropolitan Magistrate while their statements under Section 164 of Cr.P.C. was being recorded. In the same way, all the said witnesses have also administered the oath before this Court while giving their oral evidence. In both the cases, all the said witnesses were legally bound to make a declaration upon the subject or the fact for which they were either produced before the learned Metropolitan Magistrate and or summoned before this Court. The witnesses have given contradictory versions before the learned Metropolitan Magistrate and before this Court and when they gave their oral evidence did not depose as was declared by way of the statements on oath under Section 164 of Cr.P.C. The act and omission on the part of the witnesses was intentional one, it cannot be believed that the earlier statements under Section 164 were given by the witnesses under any kind of pressure. The witnesses have deliberately given false evidence. In view of the 2 contradictory versions on oath, there seems to be prima facie case for setting the machinery of criminal law in motion. In case of the witnesses who have deposed on oath in both the Courts have
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clearly, cautiously and deliberately given false evidence, because of the act and omission of the witnesses cause of justice has adversely hampered which is apparently to mislead and or deceive the Court which is clearly the crime against public justice. In both the cases the witnesses were bound by expressed provision of law to state the truth, the statement is nothing but declaration of certain facts which the witnesses were bound by law to state the truth. In case of the statements without oath there since seems to be reasonable doubt, it would not be proper to prosecute the witnesses for perjury as benefit of reasonable doubt should be granted to the witnesses even while necessitating the prosecution for perjury, but in case were both the statements are on oath it seems that there is quite strong case for perjury. The statements under Section 164 and the oral deposition before the Court which necessarily and irreconcilably contradictory of each other which as at least in any case one of the statement is false and the said is the false evidence given intentionally by the witnesses. It is expedient in the interest of justice that the complaint should be made. It is true that in the larger interest of justice the opportunity must be given to the witnesses to explain as to why 2 apparent contradictory statements were made by the witnesses. The attention of the witnesses is to declare falsehood at least at either place even if every possible presumption of goodself in favour of witnesses is made the fact remains that both the statements are on oath and in any case one of it is false evidence. All the witnesses were given their earlier statements who have opportunity to read the same while in the witness box and still contradictory statements were made. Thus, an opportunity to reconcile the statements with the true state of things were permitted to be given therefore, it is clear that the witnesses gave intentionally false evidence. The witnesses have given their
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statements before the learned Metropolitan Magistrate Court from their personal knowledge about the involvement of different accused in the crime hence, when they deposed otherwise they had knowledge that they are speaking false and are not speaking truth. The perjury can never be neutralized by admission of the witnesses in the cross-examination about the previous statements to be false when this Court is of the opinion that the witnesses have knowingly given false evidence to let it be used in the proceedings. This Court is satisfied that it is necessary and expedient in the interest of justice to try the witnesses for giving false evidence as so emerges prima facie on record. In light of the above discussion it seems necessary to prosecute the witnesses under Section 344 of Cr.P.C. who hence needs to be issued notice for the same.
7.
(a)
THE DROPPED WITNESSES :It has been submitted that the prosecution has dropped 4 witnesses and that though the application was tendered by an outsider, who was the previous Special P.P., the Court did not entertain the prayer and has not examined the said 4 witnesses. This has prejudiced the defence. It was the duty of the Court to examine the said 4 witnesses. At the stage of the argument it was emphasized that even at this stage of the argument the Court can call upon the 4 witnesses to examine them as the Court witnesses to offer fair trial to the accused. In support of this submission citations at Serial Nos. 14, 15, 16 & 51 were relied upon.
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(b)
The Court has examined this aspect. Following points have been jotted down from the said exercise. (i) After the Court has rejected the application Exh.1735 filed by the earlier Learned Special P.P. of this case on 13/4/2009, the order has not been challenged which has hence attained finality. Had the defence been prejudiced, the defence could have preferred some proceedings at the High Court to struck the balance, but it has not been done. (ii) Vide Exh.2022 a Closure Purshis has been filed by the prosecution on 3/7/2009. It has been specifically contended that certain witnesses mentioned in the charge-sheet have been dropped by the prosecution on account of the specific instructions that if these witnesses would be examined they would not only likely to not support the prosecution but would also depose against the interest of the prosecution for which reason the prosecution is not desirous to examine the said witnesses. This Closure Purshis was shown to all the Learned Advocates for the defence. None of them has raised any objection against the contents of the Purshis and all of them have endorsed as 'seen'. The contents of the Purshis are therefore deemed to have been admitted by the defence. (iii) On and after the date of the Closure Purshis, this Court has not been requested to examine the dropped witnesses as Court witnesses. Nothing has been said even in the Further Statements by any of the accused and then abruptly, during the course of the argument oral submission was made to the effect that the Court should examine the dropped
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witnesses right now. Hence, this submission is clearly an after thought and is not tenable at law. (iv) The defence had opportunity to examine the said witnesses as defence witnesses, but it has not been done. (v) It is true that the Court has wide powers to call upon the witnesses, but then such discretionary powers should be used in a case when the Court considers it to be necessary in the interest of justice. The powers under Section 311 are to be used when the Court finds oral evidence of the said witnesses essential for the just decision of the case. In the facts and circumstances of this case, this Court never found the same. (vi) In the humble opinion of this Court, the Court should weigh the evidence which has already been adduced and Court should not consider what evidence ought to have come on record. (vii) No case was made out to examine the witnesses by the Court. (viii) Considering the above discussion this Court does not find any substance in the submission of the defence on this count and that the cited judgment therefore do not come to the rescue of the accused. In the humble opinion of this Court no prejudice is caused to the accused by not examining the dropped witnesses either by the prosecution or the Court.
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(ix)
The defence citation at Sr. No. 14 (para-9), 15 (para-16), and 16 (para 4 & 6) do not come to the rescue of the defence as the facts of cited case are totally different than the case on hand of criminal conspiracy where direct evidence is seldom available and when this Court has not reached to the conclusion that the evidence of dropped witnesses is necessary for just decision of the case. In the same way, defence citation at Sr. No. 51 would not have application as the prosecution has to prove its case and dropping witnesses cannot be said to be withholding the best evidence when the prosecution has revealed through its purshis about its apprehension of the witnesses to shift their loyalty and likely to be hostile to prosecution. It is fitting to note that the prosecution citation at Sr. No. 29 at para-18 is also giving strength to the submission of the prosecution on the aspect.
8.
DISCREPANCY IN STATION DIARY :Another point which has been highlighted during the course of the submission is that the discrepancy in the carbon copy and original of the station diary produced on record vide Exh.1970 & Exh. 1971 are the two documents which raises serious suspicion about the genuity of filing the complaint and sending the FIR to the concerned Ld. Magistrate.
(a)
In the opinion of this Court, the lapses do not affect the very substance of the prosecution case because of the variation of time in both the documents. The document Exh. 1971 as can be
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apparently seen is half handwritten and the first half is carbon copy. This is possible when the carbon placed before the original is either slipped or remained folded. Upon comparison of both the documents at Exh.1970 the original and Exh.1971 as the carbon though in fact half handwritten, there is no substantial change in the contents of both the documents and that change in the time which is 20 10 hours in the original at Exh.1970 and 20 15 hours at Exh.171 in the carbon is the only difference which sounds to be a ministerial error or irregularity that it is at the line where the carbon effect has stopped which as stated seems to be only for the reason that for some reason the carbon paper did not remain from this line. This is further clear when one sees backside of the original where it shows from this line itself the carbon below the original. (b) It is more logical when until the end of the trial both the documents were in custody of the investigating agency and it is only during the course of the cross-examination of PW-199 when on 11/6/2009 Thursday (para-241 of the oral evidence) the witness has shown his readiness to produce the Station Diary and then on the next adjournment on 15/6/2009 Monday when the witness has produced the same in the Court the witness had ample opportunity to correct the mistake and at least in any case the witness had time from Friday 11/6/2009 to Monday 15/6/2009, but the document have been produced as they were even though the documents were produced on the same date but another date. This mistakes sounds to be bonafide and lack of concocting attitude on the part of the investigating agency because had it been not so and had there been malice, the prosecution could have produced the same after making correction hence this Court
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humbly opines that this shows fair play of the investigating agency on this aspect. Lastly, the other contents except time are same in both the documents. The discrepancy of time merely seems to have been caused while reconstructing the document in the case where the carbon copy might not have been placed properly. There is nothing shown by the defence as to what the investigating agency was to gain by writing 20 15 in the carbon copy. In absence of this no reasonable doubt is created. In light of the foregoing discussion this Court does not find any merit in the submission and on the contrary, this shows bonafide of the investigating agency.
9.
ARREST WITHOUT EVIDENCE :It has been submitted that the investigating agency has arrested different accused without any evidence and in some of the cases the arrest was made first and evidence was created later.
(a)
Upon perusal of the overall facts and circumstances of the case, noting the gravity and seriousness of the case and considering the powers vested by the system in the police and looking to the evidence and documents against the accused and the coaccused, the fact disclosed in the confessional statements of coaccused directly and indirectly involving the accused and the kind of criminal conspiracy hatched upon which the whole case is based it seems that none of the accused has been arrested in routine manner. The arrest of all the accused seems to have been effected after reasonable satisfaction reached and after notable investigation to support genuineness of the complaint was done.
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It cannot go out of the mind that in such cases where national security, integrity, unity are at stake, fear of mass destruction of life and property is the issue, preparation to a terrorist act is found to be in progress instead of personal liberty the protection of interest of nation is in the center has the genuineness of the complaint should be examined which has been done by the investigating agency. (b) In the view of this Court, this submission is found devoid of merit.
10. NON-EXAMINATION OF ALL WITNESSES OF THE CHARGE-SHEET :Another submission that all the witnesses shown in the chargesheet have not been examined hence, adverse inference against prosecution should be drawn. This submission cannot be accepted as the prosecution has burden to be discharged of proving its case. The benefit of presumption of innocence is always in favour of the accused and the prosecution has to rebut the same. It is therefore clear that the principle of fair trial demands, which can never be termed for the accused only and not for the prosecution that the prosecution also should be at liberty to examine witnesses which the prosecution thinks necessary to prove the prosecution case. It is true that the prosecution should put up all the fact and evidence before the Court, but that does not mean that even though the prosecution has reason to believe that the particular witness in no case is going to support the prosecution case, still he should also be examined.
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It is therefore held that this is not a fit case to draw adverse inference against the prosecution case and the principle of best evidence cannot be applicable in the manner desired by the defence in the facts and circumstances of this case, or else the principle fair trial would not be said to have been granted to the prosecution as well. None of the parties can compelled to examine particular witness when the benefit of non-examination can very well be fetched by the other sides. 11.
INVESTIGATION BY THE A.C.P. :It has been forcefully submitted that the investigation was in fact not carried out by the ACP himself which is requisite of the POTA Act and that the ACP has given his investigating work to another officers hence, though not provided in POTA Act the investigation being illegal, the prosecution case needs to be thrown away.
(a)
Upon scanning the overall facts and circumstances of the case it is clear that the investigating officer after application of the POTA should be ACP as provided in Section 51(b) of POTA Act. As is clear from the oral evidence of PW-199, the investigation was in fact been handed over to ACP Mr. Singhal as soon as the investigation agency has decided to apply POTA. The investigation was handed over to PW-199 from PW-162 the I.O. before invoking POTA.
(b)
In the opinion of this Court, there is no occasion to have been proved on record when it can be said that the investigation was handed over by A.C.P. to any other officer as the investigation had continuously remained with the ACP.
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It is true that some of the works were assigned to different officers subordinate to the I.O., but in every case the control has always remained with the ACP concerned. (c) As is provided under Section 165(3) read with Section 100 Cr.P.C., it seems that the ACP was lawfully empowered to assign work to his subordinate officers. The only test is whether at any point of time the control over investigation has ever been lost by the officer or not. The reply in this case is in negative. (d) Numerous Yadis' on the record shows merely assignment of particular work and not the investigation to the subordinate officers, The subordinate officers have reported of having carried out the work assigned are the documents which are clearly supporting the fact that the control over investigation had always remained with the ACP. (e) In the light of the prosecution citations at Sr. No. 14 (para 13, 14, 16) and 16 (para 5) relied upon by the Learned Advocate Mr. Panchal, it is also clear that investigation by the officer who is even not authorised in law cannot vitiate the trial. It would be merely termed to be irregularity. It is however different that in the case on hand in the humble opinion of this Court there is even no such irregularity, it is either Mr. Singhal, Mr. Amin or Mr. Muliyana, all the three ACPs were conducting the investigation actively and absolutely within their control. (f) Defence citation at Sr. No. 50 has been emphasized focusing on para 5 & 6.
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In the cited case the investigation should not be started before obtaining permission of the Magistrate under Section 5A of the Prevention of Corruption Act, but it was started hence there found contravention of the mandatory provision, but in the fact of the case on hand such contravention is not found hence the cited judgment has no application in the case. (g) There is absolutely no illegality shown in the investigation, at no point of time the interest of the accused seems to have been prejudiced. The ACP I.O. seems to be within his right when he took assistance of his subordinate who can only be termed to be assignee officer and not I.O. All the charge sheets have been filed by the respective ACP which is also supporting the statement that the investigation was by the ACP. Nothing emerges from the detailed cross to hold it otherwise. (h) The submission on this count therefore is found devoid of any merits and hence, the same cannot be considered as worth considering.
12.
SOME OF THE WITNESSES BE TREATED AS ACCUSED :A forceful submission that certain witnesses should be in fact be made accused and that their deposition should not be considered at all.
(a)
The Court is required to take cognizance of the offence and not of the offender, the I.O. has not come out with the case that any of the accused has been granted any immunity.
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There is nothing to show positive involvement of the person who has been examined as witness, this is not a case of any unauthorized immunity by the I.O., in the light of Section 29 of POTA, this Court is the Court of original jurisdiction and there was no committal of any Court, this is for the first time such a submission has been made before the Court which clearly appears to be after thought, the matter has been traveled upto Hon'ble the High Court of Gujarat and upto Hon'ble the Supreme Court, but in no case any direction has ever been issued to implead any person as accused nor there was any such prayer or even submission ever made before the higher forum. (b) There is nothing emerges even during the cross-examination which reveal any kind of animosity of the said witness against the accused. None of the witnesses has whispered qua the involvement of any of the witnesses as accused which all if cumulatively seen is to convey the Court that this submission does not have any substance at all. (c) Taking the case in its entirety and looking to the conduct of the witness against whom submission has been made to treat them as accused cannot be accepted.
13.
NOT RECORDING STATEMENTS OF THE PERSONS NAMED IN FIR :-
(a)
The defence citation at Sr. No. 67 is emphasised submitting that the contents of the FIR itself are doubtful as the statements of the eye witnesses have admittedly not been recorded.
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(b)
In the case on the hand, the statement of the eye witness about the proceeding on 03/04/2003 at Parimal Garden has been recorded who has been examined as PW 52 who is however outside the garden whose presence is quite natural. The persons named in the FIR are different police officials forming the raiding team under the leadership of the complainant and they are not the eye witnesses as such, hence in any case the cited judgment does not aid the accused to challenge the authenticity of the contents of the FIR on this Court. The above thirteen topics have been emphasized by the defence during their submission which were found suitable to be discussed under the head of General with the relevant citations which have been accordingly discussed and decided as above.
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PART VIII
CULPABILITY OF ACCUSED (I)
(1) Culpability and the material weighing with the ingredients of the Sections Upon overall scrutiny of the record, oral evidence of different prosecution witnesses, documentary evidences relied upon by both the sides and even circumstantial evidences on record, there emerges many doubts on the involvement of the accused with reference to some of the offences in all the charges. On evaluating the evidence as per settled norms following points have been considered by this Court qua all the accused against whom this trial was conducted. (A) (a) POINT NO.1 SECTION 121 OF IPC : The prosecution case has been based on criminal conspiracy hatched among the accused and preparation for different offences. Section 121 of IPC is about waging or attempting or abetting waging of war against Government of India. It can safely be held that the prosecution has not proved the case of waging or attempting or abetting war against Government of India by any of the accused. Hence, all the accused need to be granted benefit of doubt for the charge u/s 121 of IPC as it would not be attracted.
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(b)
SECTION 121-A OF IPC : Section 121-A of IPC would not be applicable as Section 121 of IPC has not been attracted. This Section has relation with conspiracy to commit offences punishable by Section 121 of IPC. For charge u/s.121 of IPC as held above the accused are entitled to benefit of doubt. Hence, for the charge under this section also the accused are entitled for benefit of doubt.
(c)
SECTION 122 OF IPC : The prosecution has not proved that the accused have collected arms or ammunition to wage war or as preparation to wage war against the Government of India. The prosecution has not shown any material to prove the intention of the accused of waging war or preparing to wage war against Government of India and that the intention which can legitimately be inferred is the intention of striking terror to settle the account and to satisfy the sense of revenge impelled on account of the after Godhra incident. This Court therefore humbly opines that Section 122 of IPC would not be attracted against any of the accused. All the accused are therefore entitled to benefit of doubt.
(d)
SECTION 123 OF IPC : This Section is connected with Section 122 of IPC wherein the ingredient is that the accused are concealing the existence of a design to wage war against the Government of India to facilitate design to wage war. When the intention of waging war against the Government of India is not proved beyond reasonable doubt, in the facts of the case, this section also would not be attracted against any of the accused. Hence, benefit of doubt to all the accused on the count.
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(e)
SECTION 212 OF IPC : In the facts of the case, none of the accused has been held to have harboured or concealed any co-accused or any person who was offender with the intention of screening the co-accused or any other person from legal punishment. Hence, in the facts and circumstances of the case, the requisites of Section 212 of IPC have since not been proved, this Section is also held to have been not attracted against any of the accused. FINDING : All the accused are granted benefit of doubt u/s.121, 121-A, 123, 212 of IPC. In light of the above discussion Point No. 1 for determination has been answered in negative.
(B) (f)
POINT NO.2 SECTION 25(1-A) and 25(1-AA) OF THE ARMS ACT, 1959 : To constitute the offence the accused must acquire, possess or carry prohibited arms or ammunition. But, in the facts and circumstances of the case, from the material proved on record, it is clear that many of the accused have been found in possession of different arms and ammunition, but for attracting Section 25(1A) and 25(1-AA), the said arms and ammunition should be prohibited arms as defined u/s 2 of the Arms Act. But, on perusal of the oral evidence and report of the ballistic expert, none of the arms and ammunition recovered or discovered from the accused can be termed to be prohibited arms as defined in the Act. Hence, Section 25(1-A) or 25(1-AA) are held not attracted against any of the accused. Therefore, all the accused need to be granted benefit of doubt qua the charge.
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(g)
SECTION 25(1AAA) OF THE ARMS ACT, 1959 : This Section is lesser than the above Section. Hence, even in absence of charge, if the facts so require, this Section can be attracted, but for application of this Section, notification u/s 24A of the Act is required which is not on record. Hence, even this Section though is of lesser punishment cannot be applied against any of the accused.
(h)
SECTION 27 OF THE ARMS ACT, 1959 : As the title suggests, this Section provides punishment for using arms, etc. But it is not the case of prosecution that any of the accused has used arms in the facts of this case. Hence, this Section also cannot be attracted against any of the accused. Hence, all the accused are required to be granted benefit of doubt for the charge under the section.
(i)
SECTION 29 OF THE ARMS ACT, 1959 : The charge under this Section is against A-50 against whom there is no case of having purchased any arms from unlicenced person or to have delivered arms to the person not entitled to possess. The prosecution has not proved A-50 to have purchased or delivered the arms. Hence, the ingredients of Section 29 cannot be termed to have been satisfied in case of A-50. Hence this Section is also not attracted against A-50 who is therefore entitled to benefit of doubt. FINDING : Benefit of doubt to all the accused u/s.25(1-A), 25(1-AA), 27, 29 of the Arms Act 1959.
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(j)
SECTION 25(1B)(A) OF THE ARMS ACT, 1959 : This Section can be held to have been attracted where the accused is found to have in his possession or carrying any firearm or ammunition in contravention of Section 3 of the Act. Section 3 provides that no person shall acquire or possess firearms or ammunition unless he holds a licence issued in accordance with this Act and the Rules made thereunder. There is Proviso which is not attracted in this case, hence need not be discussed. In case of accused whose case has been mentioned hereinafter in the para have been found to be in possession of the firearms or ammunition without licence, authority or permit for the same. All the said accused have been found to be in exclusive and conscious possession within their control and knowledge. Hence, their act and omission of unauthorizedly and illegally, but consciously possessing arms or ammunition is attracting Section 25(1B)(i) read with Section 3 of the Arms Act. Not only that, but in case of all the said accused, the sanction u/s 39 has been obtained which is found to be legal, valid and proper sanction. Thus, in nutshell, A-1, 2, 3, 4, 6, 7, 8, 9, 10, 20, 22, 23, 24, 25, 30, 31, 32, 33 and 50 have been found to be guilty for having committed offence u/s 25(1B)(a) read with Section 3 duly sanctioned by Section 39 of the Arms Act. There is no charge under the above Section, but then it being lesser offence, it is permitted to hold the accused guilty if the facts and circumstances so require and when the guilt of the above
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mentioned accused stands proved beyond reasonable doubt by the prosecution. In light of the above discussion Point No. 2 for determination has been answered partly in affirmative and partly in negative. (C) (k) POINT NO.3 : SECTION 3(4) OF PREVENTION OF TERRORISM ACT, 2002 : Section 3(4) of POTA provides punishment for the accused who voluntarily harbours or conceals or attempts to harbour or conceal any terrorist person, but in the facts and circumstances of the case on the hand, such ingredients have not been proved by the prosecution beyond reasonable doubt against any of the accused. Hence, all the accused need to be granted benefit of doubt for the said charge. FINDING : Benefit of doubt to all the accused u/s.3(4) of the POTA. In light of the above discussion Point No. 3 for determination has been answered in negative. (D) (l) POINT NO.4 : SECTION 20, 21 & 22 OF THE POTA :
(l-1) The charge against different accused is also u/s.20 of POTA. Upon perusal of all the material put forth before this Court and held admissible by this Court and the overall conduct of the accused, there does appear many doubts that the accused are
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belonging to terrorist organisation, but it cannot be forgotten that however strong doubt may be it cannot replace the legal proof which the prosecution is held to have not secured. That being so, the requisites u/s 20 of POTA do not stand proved. Hence, all the accused are entitled to be granted benefit of doubt u/s 20 of POTA. It is true that in case of some of the accused, they have confessed that they have become members of the banned terrorist organisation Jaish-e-Mohammed, but on account of technical reasons, such confessional statements have not been held to be admissible in evidence. FINDING : Benefit of doubt to all the accused u/s.20 of POTA. (l-2) It is true that some of the accused have met at Karachi and have confessed to have been imparted terrorist training. If the Explanation given u/s 21 of POTA is seen, then it becomes clear that the accused going there and meeting each other and the other members of the banned terrorist organisation imparting the training at Pakistan would come within the purview of the Explanation given under this Section. Their act of taking training is also such which can safely be inferred to be activities to support a terrorist organisation and to further the activities of a terrorist organisation. But upon viewing the overall material, it seems that though there are certain such contentions in the confessional statements of the accused, but there is no independent corroborative evidence to this fact. This is not the section were only mens rea is important there has to be something more considering which all the accused need to be granted benefit of
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doubt for the charge framed u/s 21(2)(b) of POTA as the prosecution has not proved the charge beyond reasonable doubt. (l-3) The charge u/s 22(3)(a) and (b) of POTA has also been framed. This mainly seems to be against A-32, A-33, A-47 and A-50 looking to the facts of the case. As is clear, A-50 is held to have not been justified to be implicated in POTA and against A-47 no incriminating material to involve him can be seen. Hence, charge u/s.22(3)(a) or (b) of POTA cannot be held to have been proved against A-47 and A-50. Both of them need to be granted benefit of doubt under the charge. In case of A-32 though numerous facts have been proved and even in the confessional statement there is mention of Rs.1,25,000/- to have been recovered from this accused while from him revolver was recovered, but the requisites of Section 22(3)(a) is that the accused should have provided money or other property or he must have reason to suspect knowledge that the money may be used for the purpose of terrorism. From the material on record, the muddamal list, report of late Shri Chauhan at Exh.1772, confessional statement of A-32, oral evidene of panch withesses of panchnama (Mark 433/28 not exhibited) no such ingredient stands proved beyond reasonable doubt. In case of unauthorized possession of arms and ammunition, such are not requisites, hence that aspect has been dealt differently. Although there are ample doubts about commission of this offence by A-32 and A-33, but again they cannot be termed to be legal proof. Therefore, the A-32 and A-33 are also entitled for the benefits of doubts from this charge also. Moreover, in the light of paragraphs 3, 4, 5 of the oral evidence of PW-199, wherein, I.O. has admitted that no evidence of any of the accused to have been member of banned terrorist
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organisation or its agent was available. It seems that in the light of all the above discussion, and that considering this additional factum the proof against charge becomes doubtful. Thus, considering the same, all the accused also need to be granted benefit of doubt for the charge u/s 22(3)(a) and (b) of POTA. FINDING : Benefit of doubt to all the accused u/s. 20, 21(2)(b), 22(3)(a) and (b) of POTA. (m) SECTION 3(1)(B) AND SECTION 10 OF POTA : It is an admitted position that in the case on the hand the accused have hatched the conspiracy and that as a matter of sheer fortune before the accused translate the conspiracy into total reality and before they could complete the preparation or while they were in process of preparation the whole conspiracy was caught. S.3(1)(b) requires the accused to be a member of an association declared unlawful under the Unlawful Activities (Prevention) Act, 1967 or voluntarily aiding or promoting the objects of such association and then having unauthorized possession of unlicenced firearms etc. and commits any act which results into loss of life or injury or committed a terrorist act. Section 10 in the charge seems to be typographical error as it is provision of Appeal, hence needs no discussion. In the light of the above discussion, point for determination at Point No. 3 is answered in negative. loss to property which is said to have
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In the humble understanding of this Court this section requires some act to be done which should be entailed with result of loss of life or property or injury. In the instant case, though the accused have done many acts and omissions but the result of loss of life, injury or property is not there. In view of the totality of the fact the accused can be doubted to be member of the association declared unlawful, but the said doubt cannot be read as legal proof. Considering the above discussion, the outcome has to be grant of benefit of doubt to all the accused qua charge under this section. FINDING : All the accused qua the charge of Section 3(1)(B) of POTA have been granted benefit of doubt. In the light of the above discussion, point for determination at Point No. 4 is therefore answered in negative.
(II)
(2) (a) BENEFIT OF DOUBT QUA CERTAIN ACCUSED : While scanning the material against each of the accused, it seems that in case of certain accused the investigating agency seems to have got only the confessional statement of the respective accused, but the moot question is can the confessional statement alone be treated as sufficient evidence though it has been held for numerous times to be substantial piece of evidence? This Court humbly believes that the reply is in negative as noting the settled
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position of law by Hon'ble the Apex Court, it would be prudent, proper and just not to solely rely upon the confessional statement in a case where corroboration to the said confessional statement is not available from any of the materials on record. As has been held by Hon'ble the Apex Court, the confessional statement should not be made foundation, it should be called into aid after marshaling the material against the respective accused. (b) The Defence citation at Sr. No. 32 is on the principle that confession cannot be made foundation of the conviction, it shall be used in support of other evidence. (c) The prosecution citation at Sr. No. 13 and 24 are also on the principle that the confession is a substantive evidence but as a rule of prudence the Court should seek other corroborating evidence to test its veracity. (d) This Court cannot forget the basic principle that the prosecution has duty to prove the guilt of the accused beyond all reasonable doubts and when the prosecution fails to do so, the benefit of the said situation should be granted to the concerned accused. (e) There may be stray circumstance doubting the involvement of the respective accused, but mere doubt or suspicion cannot replace the need of legal proof. It is however true that when the prosecution proves the case against the accused beyond reasonable doubt, including the circumstance pointing to the irresistible conclusion of guilt of the accused, then it can certainly guide the Court and that would then act to fasten the guilt on the respective accused. (f) It has also been taken care that if the accused merely possessed knowledge of the conspiracy or about different facts of the larger
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conspiracy, then such knowledge alone cannot be termed to be evidence unless the intention of the accused can be seen. (g) It has been borne in mind that normally in case of availability of evidence against the accused, his conduct of abscondance would strengthen the evidence, but if the prosecution does not prove the offences against the accused beyond reasonable doubt, then a single circumstance of abscondance of the accused alone cannot be held to be incriminating circumstance or evidence. Keeping in mind all the above points, the material against different accused mentioned hereinbelow have been considered : (i) In case of A-16, the confessional statement of the accused at Exh. 940 though is proved on record, the contents of it are raising doubt about the involvement of the accused in the charged offences, but it is not corroborated by any evidence or circumstance. Hence, A16 deserves to be granted benefit of doubt. (ii) The panchnama Exh. 806 and Exh. 811 are on record which have been held by this Court to be not admissible in evidence for want of statutory provisions as the A-17 and A-18 here in these two panchnamas have been identified by identifying their photographs. In case of A-17, the confessional statement of the accused at Exh. 941 though is proved on record but, is not corroborated by any evidence or circumstance. (iii) In case of A-18, the confessional statement of the accused at Exh. 942 though is proved on record, the contents of it are raising doubt about the involvement of the accused in the charged offences, but it is not corroborated by any evidence or circumstance.
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In light of the above discussion both A-17 & A-18 deserve to be granted benefit of doubt. (iv) In case of A-19, the confessional statement of the accused at Exh. 943 though is proved on record, the contents of it are raising doubt about the involvement of the accused in the charged offences, but it is not corroborated by any evidence or circumstance. Hence, A19 deserves to be granted benefit of doubt. (v) In case of A-26, the confessional statement of the accused at Exh. 951 though is proved on record, the contents of it are raising doubt about the involvement of the accused in the charged offences, but it is not corroborated by any evidence or circumstance. PW 79 has though not been declared hostile has virtually not proved the prosecution case. Hence, this witness also does not involve A-26 in the crime which give rise to doubt about the involvement of the accused. Therefore, A-26 deserves to be granted benefit of doubt. (vi) In case of A-27, the confessional statement of the accused at Exh. 978 though is proved on record, the contents of it are raising doubt about the involvement of the accused in the charged offences, but it is not corroborated by any evidence or circumstance. Hence, A27 deserves to be granted benefit of doubt. (vii) In case of A-34, the confessional statement of the accused at Exh. 954 though is proved on record, the contents of the confession and association of this accused with kingpin are doubtful but since not corroborated by any evidence or circumstance the case qua this accused is held to have not been proved beyond reasonable doubt. Hence, A-34 deserves to be granted benefit of doubt.
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(viii) In case of A-36, a panchnama has been drawn from his residence, but has not been formally proved by the prosecution and upon perusal of other evidence can be held to be not of incriminating material (recovery of shoes etc.).The association of this accused with the key conspirator is doubtful. The confessional statement of the accused at Exh. 955 though is proved on record, the contents of it create doubt about involvement of this accused but since it is not corroborated by any evidence or circumstance, the case qua this accused is held to have not been proved beyond reasonable doubt. Hence, A-36 deserves to be granted benefit of doubt. (ix) In case of A-38, the confessional statement of the accused at Exh. 956 though is proved on record and the contents are creating doubt about involvement of the accused but since it is not corroborated by any evidence or circumstance, the case qua this accused is held to have not been proved beyond reasonable doubt. Hence, A-38 deserves to be granted benefit of doubt. (x) In case of A-39 (the convict of tiffin bomb case), PW 104 is held to be speaking untruth, but then his oral evidence as it is or any other material does not connect this accused with the charged crime in this case though the totality of evidence create doubt about the involvement of this accused, even in case of this accused benefit of doubt needs to be granted as the prosecution has failed to prove the case against the accused beyond reasonable doubt. (xi) In case of A-40, the confessional statement of the accused at Exh. 958 though is proved on record and its contents raise doubt about the involvement of this accused it is not corroborated by any evidence or circumstance. The case qua this accused is therefore
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held to have not been proved beyond reasonable doubt. Hence, A-40 deserves to be granted benefit of doubt. (xii) In case of A-41, the confessional statement of the accused at Exh. 957 though is proved on record and the contents of it raise doubt about the involvement of this accused but it is not corroborated by any evidence or circumstance. The case qua this accused is therefore held to have not been proved beyond reasonable doubt. Hence, A-41 deserves to be granted benefit of doubt. (xiii) In case of A-43, the confessional statement of the accused at Exh. 1007 though is proved on record and its contents raise doubt about involvement of this accused in the charged offence but it is not corroborated by any evidence or circumstance, the case qua this accused is held to have not been proved beyond reasonable doubt. Hence, A-43 deserves to be granted benefit of doubt. (xiv) In case of A-44, the confessional statement of the accused at Exh. 1008 has not been duly signed by the accused before learned Chief Metropolitan Magistrate and that no other material worth believing has been proved by the prosecution to prove involvement of this accused on record. The case qua this accused is therefore held to have not been proved beyond reasonable doubt. Hence, A-44 also deserves to be granted benefit of doubt. (xv) In case of A-45, the confessional statement of the accused at Exh. 960 though is proved on record, the contents of which are raising doubt about the involvement of the accused in the charged offences but it is not corroborated by any evidence or circumstance. Though there is oral evidence of PW 60 identifying A-45 in the Court as a person known to the witness and residing in the same locality, but merely that cannot be termed to be evidence
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against the accused to prove the case beyond reasonable doubt. Hence, A-45 deserves to be granted benefit of doubt. The case qua this accused is therefore held to have not been proved beyond reasonable doubt.
(xvi) In case of A-46, the confessional statement of the accused at Exh. 961 though is proved on record, the contents of which are raising doubt about the involvement of this accused in the charged offences but it is not corroborated by any evidence or circumstance. Though there is oral evidence of PW 60 identifying A-46 in the Court as a person known to the witness and residing in the same locality, but merely that cannot be termed to be evidence against the accused to prove the case beyond reasonable doubt. Hence, A-45 deserves to be granted benefit of doubt. The case qua this accused is therefore held to have not been proved beyond reasonable doubt. (xvii) In case of A-47, the confessional statement of the accused at Exh. 962 though is proved on record, the contents of which create doubt about the involvement of the accused in the crime but it is not corroborated by any evidence or circumstance, the case qua this accused is held to have not been proved beyond reasonable doubt. Hence, A-47 deserves to be granted benefit of doubt. (xviii) In case of A-48, the confessional statement of the accused at Exh. 963 though is proved on record but is not corroborated by any evidence or circumstance. The case of A-48 has in a way a very peculiar kind of fact. As can be seen from the record, more particularly the oral evidence of PW 198 who had been to Hyderabad to arrest A-48 and upon perusal of his report at Exh. 1720, it becomes clear that at the time of
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lawful arrest of this accused, the law and order situation had worsened and the police who had gone to Hyderabad to arrest this accused had to open fire on the mob which was gathered to resist the lawful arrest of this accused. This aspect read with the aspect that the mob has attacked on the team of the Crime Branch, Ahmedabad who went to arrest A-48 under the leadership of PW 198 and upon specifically noting the fact that the mob could manage to get back A-48, but thenafter however on account of the awareness of the Crime Branch team and since they have acted at the risk of their lives, the firing had to be done and ultimately the accused was arrested by the Crime Branch team and that it has been admitted by PW 198 in the cross-examination that a complaint against him at Saifabad Police Station was also recorded. Hence, putting all these things together, it seems that A-48 has gained tremendous reverence in his community. While reading some of the parts of his confessional statement also, it stands proved that A-48 was a leader and to that extent the prosecution gets corroborated from these factual details. In the background, It is not a matter of surprise that neither a CD nor a cassette of provoking speeches of A-48 nor any kind of oral evidence is forthcoming which can prove to be independent evidence to provide corroboration to the confessional statement of this accused. It is not out of place to mention that the most dangerous aspect that culls out from the contents of the confessional statement of this accused is that Osama Bin Laden is his ideal and he is impressed by Taliban. It is therefore though clear that the overpowering speeches of this accused must have succeeded in brain-washing of Muslim youth, which can pose a serious kind of threat to peace and harmony of the nation. The
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judicial mind believes that it would be a surmise and not strong circumstance or evidence against the accused, though the confessional statement do say so. This Court is conscious and is duty-bound that the confessional statement cannot be made a foundation for convicting any of the accused as the same is not prudent. In absence of any independent evidence, this Court feels constrained to give benefit of doubt even to A-48. The allegation against the accused of delivering provocative and firy speeches after the post Godhra riots inciting Muslim boys and developing sense of revenge in them has not been proved by the prosecution beyond reasonable doubt and no such audio or video cassette could be procured by the investigating agency or a witness from audience has been examined to prove the allegation. Hence, these allegations are also held to have not been proved beyond reasonable doubt. Therefore, A-48 as discussed deserves to be granted benefit of doubt. (xix) In case of A-53, the statement u/s 164 of Cr.P.C. of one of the witnesses has been relied upon by the prosecution, but then since the said witness has not corroborated in his oral evidence his statement u/s 164 of Cr.P.C. and since there is no other incriminating material against the accused, the case against A-53 cannot be held to have been proved beyond reasonable doubt as it would not be proper to make use of statement taken u/s. 164 of Cr.P.C. when the witness has not supported the prosecution case, A-53 deserves to be granted benefit of doubt. (xx) In case of A-54, his own confessional statement u/s 164 of Cr.P.C. is on record at Exh. 1464, but the accused has not confessed any of his guilts. He has however disclosed his knowledge about the conspiracy, but merely that cannot be held to be sufficient
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clinching evidence to prove the charged offences against the accused. In this statement, he reveals the role of A-42 and that as seems it involves A-42, but it is not sufficient evidence to involve this accused. Looking to the entire tenor of his confessional statement, it seems that A-54 has expressed his grievance against A-42 by stating that he has been trapped for deeds of A-42. In the confessional statement of A-42, A-42 has involved this accused before the recording police officer, but then before the learned Metropolitan Magistrate, A-42 has specified in the verification proceedings that except the contents against A-54, he confirmed his confession. This provides an additional support and rather this clarification of A-42 read with the confession of A-54 where A-54 has stated in terms that he has been involved because of other co-accused guides to believe that A-54 is really involved in the crime for his knowledge of the conspiracy and his knowledge about the deeds of A-42. Merely these aspects cannot be held to be incriminating unless something more than to involve the accused in the crime is proved by the prosecution beyond reasonable doubt, but the prosecution has miserably failed. Hence, the involvement of A-54 becomes doubtful, A-54 deserves to be granted benefit of doubt. (xxi) In case of A-55, the panchnama at Exh. 811 and Exh. 812 photo sheet, the confessional statement of the accused at Exh. 1518 are on record, but no evidence in corroboration of this confessional statement has been proved by the prosecution on record wherein A-55 has admitted to have gone to Bangladesh as was facilitated by A-42, but that it is from confessional statement which should not be made foundation. It is imprudent to hold the circumstance
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against the A-55 from his confessional statement alone without corroboration. The panchnama for want of statutory provision has not been held to be admissible and then no weightage can be given to photosheet when photo identification has not been held lawful and proper. The case qua this accused is therefore held to have not been proved beyond reasonable doubt. Hence, A-55 deserves to be granted benefit of doubt. (xxii) In case of A-56, he faces the charge of harbouring the proclaimed offender and absconding offenders, but by no evidence the said allegation has been proved by the prosecution. Though there are reports of the police officers against this accused qua his availability and role, but merely that cannot be held to be proof beyond reasonable doubt against the accused considering which A-56 deserves to be granted benefit of doubt. FINDING : In light of the foregoing discussion A-16, 17, 18, 19, 26, 27, 34, 36, 38, 39, 40, 41, 43, 44, 45, 46, 47, 48, 53, 54, 55 & 56, in all twenty two of the accused have been granted benefit of doubt for the charged offences against all of them.
(III)
(3) (A) (a) POINT NO.5 : Section 4 of POTA : Vide Exh. 2102, a notification dated 28/2/2002 as required under Section 4 of POTA is on record which in the light of the Repeal Act is in operation even after the Repeal Act which would be
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applicable to the cases where the investigation was in fact initiated and that should cover the cases of the accused against whom the investigation was initiated and continued, in this case . (b) The requisite for Section 4(a) of POTA is the notification of the notified area to be in operation which is on record vide Exh. 2102 dated 28/2/2002, the whole area of the State of Gujarat is a notified area for the purpose of Clause (a) of Section 4 of POTA read with Section 64(2) of the Act. As has been held earlier, the oral evidence of the assignee officers and of the Investigating Officer and in the case of death of Assignee Officer Shri Chauhan, his report and other supporting evidence are found to be satisfactory and confidence inspiring. (c) As has been held earlier while discussing different panchnamas and the oral evidence of ballistic experts, A-1, A-2, A-3,A-4, A-6, A-7, A-8, A-9,A-10,A-20, A-22, A-23, A-24, A-25, A-30, A-31, A-32 and A-33 were in unauthorized possession of arms or ammunition in the notified area of the State of Gujarat under POTA. The said unauthorized possession of arms and ammunition has been proved to be illegal and unauthorized possession of the accused which have been proved to be used weapon and were in the working condition (at least one of the recovered arms was found to be working in case of each of the above referred accused, the cartridges found in illegal possession of the accused were opined to be live), that none of the accused has proved or submitted its possession of the arms or ammunition to be with any other purpose not related with criminal conspiracy or for the use in the terrorist act or activities and that the possession in any manner has not at all been justified. In the light of the Section 4 of POTA, unauthorized possession of
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arms
and
ammunition
in
notified
area
attracts
statutory
presumption under Section 4 which in the opinion of this Court none of the above referred accused has rebutted as there is absolutely no material on record of such rebuttal. The possession in all the cases of the above referred accused is held to be with intention to use it for terrorist act. (d) To decide the culpability u/s 4 of POTA, it is necessary that the accused should have been found in unauthorized possession of any arms or ammunition specified in column No. 2 & 3 of category I or category III(a) of Schedule I to the Arms Rules, 1962. (e) If Schedule I is seen, then it is clear that in category I(a) to (d) and category III(a) are all the arms and ammunition mentioned in the Schedule which are covered u/s 4 of POTA. (f) All the above referred 18 accused were found in unauthorized possession of arms and ammunition mentioned in the Schedule. The recoveries are chance recoveries from the person of the accused which is obviously intentional, exclusive and conscious possession of the respective accused. (g) The discovery have been made at the instant of the accused as discussed in the section where panchnamas have been discussed. This valuable piece of evidence shows the conscious possession and exclusive control on arms and ammunition of the respective accused which can only be with the intention. Their act of concealing is sufficient to hold their knowledge and intention to use it for terrorist act and illegal activities in the fact of the case. No other purpose or intention of possession of these weapons and cartridges have been culled out from the proved facts,
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circumstances and evidence and the totality of the facts and circumstance of the case lead to the only lawful inference that the accused have collected the same to strike terror in the people with reference to large scaled conspiracy hatched by all of them to strike terror in the people. The act of unauthorized possession of arms and ammunition as above can safely be presumed to be terrorist act as provided in Section 4 of POTA. (h) Hence, all the 18 accused need to be held guilty for the offence punishable u/s 4 of POTA. Seeing all these things cumulatively, the following clear findings can be given as in the case ingredients of Section 4 of POTA are totally satisfied and when the implication of the accused under POTA is held to be justified, following clear findings can safely be given as it has been proved beyond reasonable doubt against the accused : FINDING : A-1, A-2, A-3, A-4, A-6, A-7, A-8, A-9, A-10, A-20, A-22, A-23, A24, A-25, A-30, A-31, A-32 and A-33 the eighteen accused are hereby held to be guilty u/s 4 of POTA. (B) Section 25(1B)(a) read with Section 3 of the Arms Act : As has been discussed while discussing the role of A-50, the POTA cannot be made applicable to A-50. But however A-50 has been found in conscious possession of the arms and ammunition which he possessed without any valid licence or authority for the same as required u/s 3 of the Arms Act for acquisition and possession of firearms and ammunition. In case of the above referred 18 accused and A-50, the prosecution has proved conscious and unauthorized possession of the arms or ammunition by the respective accused in contravention of Section 3 beyond any reasonable doubt. It is for this reason, all the 19
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accused also need to be held guilty under the provisions of Section 25(1B)(a) of the Arms Act read with Section 3 of the Act for whom as held lawful, proper and valid sanction u/s. 39 of the Arms Act has been given. Hence following final finding : FINDING : A-1, A-2, A-3, A-4, A-6, A-7, A-8, A-9, A-10, A-20, A-22, A-23, A24, A-25, A-30, A-31, A-32, A-33 and A-50, all these 19 accused are hereby held guilty for the offence punishable u/s 25(1B)(a) read with Section 3 of the Arms Act, 1959.
(IV) (4) SECTION 3(1)(a), 3(3) OF POTA AND SECTION 120(B) OF IPC : As part of their submissions both the sides have referred and relied upon following citations. (A) (a) PROSECUTION CITATIONS : Prosecution citation at Sr. No. 23 has been relied upon highlighting the discussion at paragraph 9 which is reproduced hereinbelow : "( 9 ) The offence of criminal conspiracy under S. 120-A is a distinct offence introduced for the first time in 1913 in Chap. V-A of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There
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must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes mis-fire or over-shooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. The significance of criminal conspiracy under S. 120A is brought out pithily by this Court in E. G. Barsay v. The State of Bombay (1962) 2 SCR 195 at p. 229 : (AIR 1961 SC 1762 at p. 1778) thus : "the gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under S. 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable".
It is to submit that as soon as the concert among the accused is found and there appears common goal of all the accused, the conspiracy can be held to have been proved. (b) Prosecution citation at Sr. No. 24 is to submit that the agreement among the accused can be proved by necessary implication. (c) Prosecution citation at Sr. No. 25 along with paragraph 88 onwards in Parliament Attack case has been emphasised to
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submit that : A conspiracy is the continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts so long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made but it is not a thing of the moment. It does not end with the making of the agreement. Along with the above submission, paragraph 8, 10, 11 and 24 have been pressed into service the gist of which is as under: The conspiracies conceived as having three elements (i) agreement, (ii) between two or more persons by whom the agreement is effected and (iii) a criminal object which may be either the ultimate aim of the agreement or may constitute the means or one of the means by which that aim is to be accomplished. The gist of the offence is an agreement to break the law. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are coparticipators in the main object of the conspiracy. It is substantive offence and each member of a conspiracy may not be knowing all the details of the conspiracy. (d) Prosecution citation No. 33 has been pressed into service to highlight that the intention is sole of the offences under the discussion of POTA. Paragraph 11 to 15 relied upon have been highlighted. It has been submitted that nothing but panic and terror was intended by all the accused. The taking of terrorist training by learning at Pakistan use of mass killing weapons, preparing and
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using bombs, acquiring unauthorized weapons, becoming member of a terrorist organisation are all very clearly pointing out the brilliant probability of the intention in the mind of the accused of striking terror in a specified section of the society. The charged offences against the accused have been proved beyond reasonable doubt. (e) Vide prosecution citation No. 5, learned Special P.P. Mr. Panchal has highlighted the purpose and object of POTA. The relevant paragraph viz. paragraph 4 to 9 is noted hereunder : "4. In deciding the point of legislative competence, it is necessary to understand the contextual backdrop that led to the enactment of POTA, which aims to combat terrorism. Terrorism has become the most worrying feature of the contemporary life. Though violent behaviour is not new, the present day 'terrorism' in its full incarnation has obtained a different character and poses extraordinary challenges to the civilized world. The basic edifices of a modern State, like - democracy, State security, rule of law, sovereignty and integrity, basic human rights etc. are under the attack of terrorism. Though the phenomenon of terrorism is complex, a 'terrorist act' is easily identifiable when it does occur. The core meaning of the term is clear even if its exact frontiers are not. That is why the anti-terrorist statutes - the earlier Terrorism and Disruptive Activities (Prevention) Act, 1987 (TADA) and now POTA do not define 'terrorism' but only 'terrorist acts.' (See : Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602). AIR 1994 SC 2623 : 1994 AIRSCW 3699 : 1995 CriLJ 517 5. Paul Wilkinson, an authority on terrorism related works, culled out five major characteristics of terrorism. They are: 1. It is premeditated and aims to create a climate of extreme fear or terror. 2. It is directed at a wider audience or target than the immediate victims of violence. 3. It inherently involves attacks on random and symbolic targets, including civilians. 4. The acts of violence committed are seen by the society in which they occur as extra-normal, in literal sense that they breach the social norms, thus causing a sense of outrage; and 5. Terrorism is used to influence political behaviour in some
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way - for example to force opponents into conceding some or all of the perpetrators demands, to provoke an over-reaction, to serve as a catalysis for more general conflict, or to publicize a political cause. 6 .In all acts of terrorism, it is mainly the psychological element that distinguishes it from other political offences, which are invariably accompanied with violence and disorder. Fear is induced not merely by making civilians the direct target of violence but also by exposing them to a sense of insecurity. It is in this context that this Court held in Mohd. Iqbal M. Shaikh v. State of Maharashtra, (1998) 4 SCC 494, that: AIR 1998 SC 2864 : 1998 AIRSCW 1741 :1998 CriLJ 2537 "...it is not possible to give a precise definition of terrorism or to lay down what constitutes terrorism. But... it may be possible to describe it as a use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. ... if the object of the activity is to disturb harmony of the society or to terrorize people and the society, with a view to disturb even tempo, tranquillity of the society, and a sense of fear and insecurity is created in the minds of a section of society at large, then it will, undoubtedly be held to be terrorist act..." 7. Our country has been the victim of an undeclared war by the epicenters of terrorism with the aid of well-knit and resourceful terrorist organizations engaged in terrorist activities in different States such as Jammu and Kashmir, North- East States, Delhi, West Bengal, Maharashtra, Gujarat, Tamilnadu, Andhra Pradesh. The learned Attorney General placed material to point out that the year 2002 witnessed 4038 terrorist related violent incidents in JandK in which 1008 civilians and 453 security personnel were killed. The number of terrorist killed in 2002 was 1707 out of which 508 were foreigners. In the year 2001 there were as many as 28 suicide attacks while there were over 10 suicide attacks in 2002 in which innocent persons and a large number of women and children were killed. The major terrorist incidents in the recent past includes attack on Indian Parliament on 13th December 2001, attack on Jammu and Kashmir Assembly on 1st October, 2001, attack on Akshardham temple on 24th September 2002, attack on US Information Center at Kolkatta on 22nd January 2002, Srinagar CRPF Camp attack on 22nd November 2002, IED blast near Jawahar Tunnel on 23rd November 2002, attack on Raghunath Mandir on 24th November 2002, bus bomb blast at Ghatkopar in Mumbai on 2nd December 2002, attack on villagers
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in Nadimarg in Pulwama District in Jammu Kashmir on the night of 23rd-24th March 2003 etc. There were attacks in Red Fort and on several Government Installations, security forces' camps and in public places. Gujarat witnessed gruesome carnage of innocent people by unleashing unprecedented orgy of terror. People in Bihar, Andhra Pradesh, and Maharashtra etc. have also experienced the terror trauma. The latest addition to this long list of terror is the recent twin blast at Mumbai that claimed about 50 lives. It is not necessary to swell this opinion by narrating all the sad episodes of terrorist activities that the country has witnessed. 8. All these terrorist strikes have certain common features. It could be very broadly grouped into three. 1. Attack on the institution of democracy, which is the very basis of our country. (By attacking Parliament, Legislative Assembly etc). And the attack on economic system by targeting economic nerve centers. 2. Attack on symbols of national pride and on security / strategic installations. (eg. Red Fort, Military installations and camps, Radio stations etc.) 3. Attack on civilians to generate terror and fear psychosis among the general populace. The attack at worshipping places to injure sentiments and to whip communal passions. These are designed to position the people against the government by creating a feeling of insecurity. 9. Terrorist acts are meant to destabilize the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralize the security forces, to thwart the economic progress and development and so on. This cannot be equated with a usual law and order problem within a State. On the other hand, it is inter-state, inter-national or crossborder in character. Fight against the overt and covert acts of terrorism is not a regular criminal justice endeavour. Rather it is defence of our nation and its citizens. It is a challenge to the whole nation and invisible force of Indianness that binds this great nation together. Therefore, terrorism is a new challenge for law enforcement. By indulging in terrorist activities organized groups or individuals, trained, inspired and supported by fundamentalists and anti-Indian elements were trying to destabilize the country. This new breed of menace was hitherto unheard of. Terrorism is definitely a criminal act, but it is much more than mere criminality.
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Today, the government is charged with the duty of protecting the unity, integrity, secularism and sovereignty of India from terrorists, both from outside and within borders. To face terrorism we need new approaches, techniques, weapons, expertise and of course new laws. In the above said circumstances Parliament felt that a new anti-terrorism law is necessary for a better future. This parliamentary resolve is epitomized in POTA." (f) 1994 SCC 5 410 is the judgment of the constitution bench of Hon'ble the Supreme Court in the matter of Sanjay Dutt V/s. State (through CBI) wherein Their Lordships have been pleased to hold that in case of Section 5 of TADA (Analogous to Section 4 of POTA), the prosecution is required to prove that the accused was in conscious possession, unauthorizedly in a notified area of any arms and ammunition specified in column No. 2 & 3 of category I or category III(a) of Schedule I to Arms Rules, 1962 or Bombs, Dynamite or other explosive substances. No further nexus with any terrorist or disruptive activity is required to be proved by the prosecution in view of the statutory presumption indicated earlier. The defence in his defence is entitled to prove the non-existence of a fact constituting any of these ingredients. As a part of his defence, he can prove by adducing evidence, the non-existence of facts constituting the third ingredient as indicated earlier to rebut the statutory presumption. The accused is entitled to prove by adducing evidence that, the purpose of his unauthorized possession of any such arms and ammunition etc. was wholly unrelated to any terrorist or disruptive activity. If the accused succeeds in proving the absence of the said third ingredient, then his mere unauthorized possession of any such arms and ammunition etc. is punishable only under the General Law by virtue of Section 12 of TADA Act and not u/s 5 of the TADA Act. (f-1) In the opinion of this Court, this judgment has clarified the position
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as crystal clear. In absence of the accused showing the purpose of his unauthorized possession the statutory presumption would be operative. In other words, while the notification of the area being notified is in operation, the prosecution is required to only prove the unauthorized possession of the accused of the arms and ammunition. The accused is entitled to prove the purpose of his possession specifically or else the purpose of the possession is to be understood as provided in the TADA Act. (f-2) In the opinion of this Court, same situation of law would prevail in case of Section 4 of POTA. (g) Prosecution citation No. 17 where the judgment of Sanjay Dutt has been followed has also propounded the similar principle with further clarification that if the evidence of the police officer is inspiring confidence and when there is no reason why the police personnel should falsely implicate the accused, the conviction can be based solely on their evidence. As is clear from Head Note (C) of the prosecution citation at Sr. No. 17, mere conscious possession of unlicenced firearms in a notified area attracts punishment u/s 5 of the TADA Act which in the case is to be understood for Section 4 of POTA. (h) In light of the above discussion, the defence citation at Sr. No. 46 of the Hon'ble Bombay High Court reported at 1992 Cr.L.J. 2711 wherein to attract Section 5 the unauthorized possession should have some nexus to terrorist act or disruptive activity has been held to be necessary should be understood in the light of the above judgment of the Hon'ble Apex Court.
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(B) (a)
DEFENCE CITATIONS : Defence citation at Sr. No. 2 has in fact been dealt with while discussing and deciding that the extra judicial confession before the police, forming part of the FIR in the case where the information culled out from the accused have been noted which have been held inadmissible in evidence by this Court.
(b)
Defence citation at Sr. No. 3 is to submit the principle from the cited judgment that mere assemblage and recovery of firearms do not prove the charge in absence of any evidence that it were assembled for the purpose of commission of crime and were preparing for the crime. In the case on the hand, in the peculiar facts and circumstances of the case, from oral evidence and confessional statements the intention and purpose of the act and omission of the accused clearly reveal the purpose of assemblage of the weapons. Hence, it cannot be said that there is no evidence. From the report of the ballistic expert, it also stands proved that the prosecution case has been duly proved. In the cited judgment as has been held in Head Note (C), due proof of alleged pistol that it could be used as a weapon of offence or defence is held to be necessary to hold the accused guilty u/s 25 of the Arms Act. In the instant case, as discussed through the report of the ballistic expert the prosecution has already proved that the weapon was capable to be used as a weapon of offence or defence as the ballistic expert has opined it to be in working condition. Therefore, this citation will not help the accused when the accused are being tried under POTA for assemblage of the weapon.
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(c)
The defence citation at Sr. No. 4 has a fact wherein there was no legal evidence to support the charge, but in the case on the hand, so is not the situation. Hence, the cited judgment cannot come into aid to the defence.
(d)
In the defence citation at Sr. No. 11 the point that where the witnesses make two inconsistent statements in their evidence, the testimony of such witnesses become unreliable and unworthy of credence and in absence of special circumstances no conviction can be based on the evidence of such witnesses has been relied upon. This Court firmly believes that this principle is in fact applicable in favour of the prosecution case as the prosecution has carved out special circumstances to believe the accused to have hatched criminal conspiracy and the accused to be guilty u/s 4 of the POTA. Hence, the citation does not help the defence. It is however clarified that this submission was also made to disbelieve PW 154 the complainant. But then, in the cited judgment the complainant was a hostile witness and was private individual. As against that, in the case, the police officer, complainant, is neither hostile nor an individual complaint. There is no reason to disbelieve this witness. At the cost of repetition, it needs to be clarified that the principle has been thoroughly complied with by this Court.
(e)
Defence citation at Sr. No. 6 has been based on the basic principles of criminal justice delivery system that on mere suspicion and surmises or inferences any of the offences cannot
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be believed to have been established unless supported by cogent evidence. In some of the offences discussed above for all the accused where the facts proved were not proving prosecution case, these principles have been applied by this Court. The cited judgment has to be applied where suits to the facts of the case. (f) Defence citation at Sr. No. 72 and 73 are repetition of respectively Sr. No. 37 and 36. Hence, need no discussion. (g) Defence citation at Sr. No. 82 has been submitted to object the identification of the accused on the basis of photograph. This judgment has to be treated as dealt with as this Court has not held the panchnamas admissible wherein the accused have been identified by their photographs. (h) Defence citation at Sr. No. 9 is on the principle that it is unsafe to convict the accused on uncorroborated evidence. This is a settled position of law and that the appreciation of evidence has been done on the principle by this Court. (i) Defence citation at Sr. No. 34 : The emphasized Head Note (J) is on the principle that unless there is some material to show that the person who was possessing the weapons was intending it to be used for terrorist activities, one should not be held liable u/s 5 of TADA. (i) In the facts of this case, the requisites under Section 4 as held are satisfied. Hence, the principle in the judgment is applicable to hold the accused guilty.
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(ii)
Head Note (AQ) is for the confession u/s 24 to 30 of Indian Evidence Act. Since there is no such confession u/s. 24 to 30 of Indian Evidence Act to be appreciated on record in the facts of the case and the confession which have been taken in the case are u/s 32 of POTA. Hence, this judgment will not help the cause of the defence. In the complaint the part forming confession has been ignored and not considered.
(iii)
Head Note (AS), paragraph 386, wherein it has been held that : "No hard and fast rule could or should be laid down as to the procedure which would be adopted when an accused is brought before the Magistrate to record his confession." In paragraph 388, it has been held that the provisions of Section 164 are mandatory and it is the duty of the Magistrate to follow the procedure strictly. In the facts of this case, the discussion at paragraph 386 has been kept in mind while appreciating the facts and evidence in this case. It needs to be noted that while appreciating the evidence in form of confession u/s 164 and oral evidence of the witnesses, strict compliance of the provisions of Section 164 have been taken care of by this Court. This judgment has therefore been fully applied on the facts of the case.
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(j)
Defence citation at Sr. No. 22 is emphasised to submit that the report of an expert is merely a piece of evidence which is not conclusive. The opinion of the expert u/s 45 of the Indian Evidence Act is to be used to corroborate other evidence. It is settled position of law and in the instant case, while appreciating the evidence this principle has been taken care of.
(j-1) While emphasizing the defence citation at Sr. No. 22, defence citation at Sr. No. 52 and defence citation at Sr. No. 53, it has been submitted that examination of accused u/s 313 is not an empty formality. It is the duty of the Court to question the accused properly and fairly and putting before him the exact case he has to meet and material sought to be used against him and that defect in the Further Statement would prejudice the right of the accused. In the Further Statement taken by this Court, all the evidence emerged against the accused and all the circumstances emerged against the accused have been put to the accused. None of the accused has ever given any application or have made any oral submission for their inability to understand the question. At the end of Further Statement, the detailed endorsement is made by the Court showing the care taken by the Court. In the Rozkam, the presence of the L.A. present for the accused has been noted. All the accused have replied all the questions and that they were permitted to answer the questions in the language suitable to them. The questions in such cases were translated by the Court, the relevant questions directly concerning the accused were only asked though on certain common points, a common question was framed as it cannot go out of the sight that this is the case of criminal conspiracy and in criminal conspiracy, act of one accused
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makes the other accused also liable. Hence, the Further Statement has been accordingly prepared. Before recording the Further Statement the accused have been given ample time to meet their lawyers, the learned Advocates were present throughout the F.S. and during the stage of the F.S., neither any oral submission nor any written application has been tendered to the Court and that the principles in the citations have fully been complied with by this Court. This submission is nothing but an after-thought on the part of the accused. Hence, no importance can be given to such attempt. (k) Defence citation at Sr. No. 48 is with reference to Section 122 of IPC. The said needs to be treated as already dealt with since this Court has granted benefit of doubt to all the accused for the said charge. (l) Defence citation at Sr. No. 40 & 41 are on the cardinal principle of criminal jurisprudence as to where two reasonably possible views exist in the circumstances the Court should adopt the view in favour of innocence of accused and that the prosecution cannot rely on absence of defence to sustain the guilt. These principles are the cardinal principles of criminal
jurisprudence, the same have been obviously adopted by this Court while deciding the matter on hand. (m) Defence citation at Sr. No. 42 : Paragraph 11 has been highlighted wherein it has been held that in a case when the Court finds the prosecution has not examined the witnesses for reasons not tenable or proper, the Court would be justified in drawing an adverse inference against the prosecution.
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In the facts and circumstances of this case, the prosecution has given a purshis with the reason for not examining the dropped witnesses which was not objected by the defence and which this Court has found just and proper, this Court did not find the reason to be not tenable at law. These reasons are quite probable looking to the type of the case and there is no material to disbelieve the reasons. Hence, this is not a fit case wherein adverse inference can be drawn in the humble opinion of this Court. The cited judgment has been dealt accordingly. (n) Defence citation at Sr. No. 43 is to highlight the requisite to be proved for the charge u/s 3 of TADA to submit that the said would also be applicable for the charge u/s 3 of POTA. In paragraph 9, it has been observed as under : "In light of Section 3(1) of the TADA, an activity which is sought to be punished u/s 3(1) of TADA has to be such which cannot be classified as a mere law and order problem or disturbance of public order or disturbance of even tempo of the life of the community of any specified locality, but is of the nature which cannot be tackled as an ordinary criminal activity under the ordinary penal law by the normal law enforcement agencies because the intended extent and rich of the criminal activity of the terrorist is such which travels beyond the gravity of the mere disturbance of public order even of a virulent nature and may at times transcend the frontiers of the locality and may include such anti-national activities which throw a challenge to the very integrity and sovereignty of the country in its democratic polity. The designated Court must not act mechanically and record conviction without examining whether or not from the evidence led by the prosecution, an offence u/s 3(1) is made out." (n-1) In the humble opinion of this Court, in light of the proved facts in this case, this is a classic example of the case which does not involve mere law and order problem, but it is far far beyond that. In
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the case, in light of the proved facts, the accused have illegally transcended the Indian frontiers from Kolkatta-Bangladesh border, they had been to Pakistan to obtain terrorist training, after return from there they have acquired different weapons some of which are having label "only for army use", some of the accused are involved in other such conspiracies and are already convict in other POTA cases, the close tie among some of the accused, the deep routed criminal conspiracy apparently to be on larger scale, unity of object of all the accused, their clear intention to strike terror in people are all the points which clarify that this is a fit case wherein Section 3(1) of POTA is clearly attracted. This Court is of the opinion that as discussed hereinbelow the offence u/s 3(1) is very clearly made out when about twenty two of the accused have done some act which can be linked with the intention in their minds to strike terror in the people and to threaten unity, integrity and security of India and that there is not a simpliciter reference of the activities of the accused. There is a very specific case against the accused. Hence, the cited judgment since is different on the facts, will not be applicable to the facts of this case. (n-2) In the cited case, Their Lordships were pleased to hold that the prosecution has miserably failed to establish the charge levelled against the accused, but in the facts of the instant case, it emerges clearly on record that for the offences for which the respective accused have been held guilty by this Court, the prosecution has proved its case beyond reasonable doubt and for the charge where the prosecution has failed, this Court has accordingly dealt the case. Hence, where the prosecution has miserably failed to prove the charge, this judgment has been thoroughly made applicable by this Court.
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(o)
In the light of Defence citation at Sr. No. 44, it is to be noted that the fall out of the act of the accused has not been held to be intention of the act. Paragraph 11 has been highlighted to submit that the fall out of the violent act cannot be held to be intention of the perpetrator of the crime. In the facts of the case, the intention of the accused was clearly to eliminate the rival and not to strike terror in the people or section of the people, but in the case on the hand, it is clear that the intention in the mind of the accused is as discussed above as the accused have been clearly found to have hatched criminal conspiracy on larger scale and the action of all the accused more or less reveals their intention, their close association and unity of the intention in their mind. Thus, this case is totally different on the factual aspects from the cited case.
(p)
Defence citation at Sr. No. 46 is on the principle that in case of unauthorized possession of arms in notified area, the said possession must have some connection or nexus to the terrorist act. In the facts of the case to be discussed here onwards, there is indeed a connection or nexus having been established by the prosecution beyond reasonable doubt.
(q)
Much emphasis has been laid by the defence on the aspect of defective investigation, but as has been highlighted by prosecution citation at Sr. No. 30, defective investigation would not lead to total rejection of the prosecution case and that the evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view, every defective investigation need not necessarily result in
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the acquittal, the only requirement is of extra caution by the Court at the time of evaluating the evidence. This due care has been taken by this Court.
(C)
PRINCIPLES AND APPRECITATION OF EVIDENCE FOR S.3(1) (a), S.3(3) BOTH OF POTA AND S.120-B OF IPC. The principles for appreciation of evidence and the fact proved on record beyond reasonable doubt and the facts, the matter of common knowledge have been capsulised hereunder.
(a)
Motive is after all the emotion felt and the prosecution may not be able to show to what extent the evil swelled in the mind of the accused which impelled him to commit the crime as it is almost impossible to prove the full dimension of the mental state of the accused. The motive therefore can be inferred by the Court. In the case on hand, the facts of the case as stands supported by many of the confessional statements of the accused and the oral evidence on record which shows the motive of the accused to teach lesson to the majority community.
(b)
Prosecution may be unable to translate the motive of the accused into evidence, but then the Court must appreciate and weigh the entire evidence placed before the Court. The offence of conspiracy can only be largely proved by inferences drawn from acts and illegal omission committed by conspirators in pursuance of common design.
(c)
As comes in the confessional statements to enhance morale of Muslims and to terrorise the people and particularly Hindus, the
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act and omission complained of by the prosecution seem to have been done and that this part of prosecution case sounds to be quite probable. (d) The seizure either by recovery or discovery of pistols, revolvers, cartridges etc. is clearly revealing the fact that accused have successfully hatched the criminal conspiracy and it were acquired to use the same for the larger scale criminal conspiracy which itself is terrorist act. It is different that before the same conspiracy could have adverse effect on the society and before the said conspiracy becomes successful in striking the terror, the said conspiracy has been revealed, but what is necessary for the present facts and circumstances of this case is that the intention and preparation by the action of collecting, possessing and concealing the weapon are such which is clearly establishing that there existed criminal conspiracy which was aimed to terrorise people and spreading terror in common man and more particularly the people of particular community for which community the accused have developed animus and the said was perceived by the accused on their belief that the perpetrators of the crime against the person and properties of his community were the persons of particular community. (e) It can be inferred as normal human conduct that the loss of lives and properties of Muslim community created sense of revenge and retaliation which led the accused to decide to terrorise the Hindu community and this is well clear on record. The conduct of the accused is reflecting their state of mind as clearly comes up on the record.
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(f)
The manner in which the conspiracy was hatched and preparation began, the reverence enjoyed by the kingpin Mufti Sufiyan and his role of the clergy, his social position, his influence, spread of feeling of revenge and retaliation because of loss of lives and damage to the property suffered by the Muslims, probability of having intention to terrorise the people of major community cannot be ruled out. The clear picture emerges that terror was intended to be spread which stands supported from the judgment of AMTS Bomb Blast case on record vide Mark 2066/1. and from the judgment at Mark 627/2 of the murder of the late Home Minister Shri Haren Pandya where again a similar objective can be noticed. The motive to commit crime get confirmed.
(g)
The submission of doubting the prosecution case needs tobe dealt with the principle that smelling imaginary doubts and to raise flimsy grounds are not permissible. The proof beyond reasonable doubt is not proof beyond shadow of doubt. Presumption of innocence must be concept of a reasonable man.
(h)
As per the prosecution case, this is a case of larger conspiracy to do away with the popular Hindu leaders, Police Officers and to strike terror in the people for which terrorist training was imparted to the accused by the banned terrorist organizations. During the course of investigation of this case the police found a clue of different POTA cases for different conspiracies which were translated into reality like tiffin bomb case, murder of late Home Minister etc. This aspect is suggesting that had the larger conspiracy been translated into reality the amount of terror and panic could have been terrific.
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(i)
In the matter of Shivnarayan Laxminarayan Joshi v. State of Maharastra AIR 1980 SC page 439. as held - "A conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from the acts or illegal omission committed by the conspirators in pursuance of a common design". Wherever, there is difficulty in supporting the charge of conspiracy with direct evidence, the prosecution necessarily will have to rely upon the circumstantial evidence and a clear link will have to be established. Even if some of them have not actively participated in commission of the offences and if they are found to have joined in agreement of unity of object, each of the person can be held liable for the acts done by the co-conspirators. The very fact of conspiracy constitutes an offence and it is immaterial whether anything has been done in persuasion of the unlawful agreement. Considering the difficulty in adducing the direct evidence in respect of the agreement to do an illegal act, the same can be proved by necessary implication". This is squarely applicable to the case on hand.
(j)
From the proved fact and the evidence on record it is clear that 2 or more accused pursued the same unlawful object of disrupting the nation with intention to strike terror to threaten unity, integrity and security of the nation after the communal riots in Gujarat upon similar perception of tremendous loss to have been caused to lives and property of Muslim community by the major community in the riots, there was meeting of minds, a consensus to effect an unlawful purpose. It is not however, necessary that each conspirator should have been in communication with every other.
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(k)
As held : Privacy and secrecy are more characteristic of a conspiracy, then of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available, offence of conspiracy can be proved by either direct evidence or circumstantial one. It is not always possible to give affirmative evidence about the date of the information of the criminal conspiracy, about the person who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference".
(l)
Sec. 10 of the Evidence Act makes admissible act of one accused qua other accused when reasonable ground exist to prove criminal conspiracy. This section confirms principle of agency in criminal matters to the acts of co-conspirator within the period during which it can be said that the acts were in reference to their common intention i.e. so to say, things said, done or written while the conspiracy was on foot and in carrying out the conspiracy. Where the charge specifies the period of conspiracy, evidence of acts of co-conspirators outside the period is not receivable in evidence (AIR 1957 SC 747).
(m)
Neither the judicial prudence demands nor the principle of common sense supports the submission that the minute details and chronology of each event should be known to the investigating agency or recording police officer as it cannot be forgotten that chronology of each event and the most minute detail of every occurrence mentioned in the confessional statement of the accused is possible for the investigating agency
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to know when even the motive has to be inferred from the facts and circumstances of the case. As is known the criminal conspiracies are hatched in secrecy and direct evidence is seldom available. (n) After the Godhra incident in February 2002 and then the communal riots in Gujarat has made the Muslim community suffered tremendous loss of lives and property as a result the sense of insecurity prevailed, sense of revenge and retaliation was provoked by proclaimed offenders and religious leaders like kingpin Mufti Sufiyan and those who firmly believed that the account needs to be settled. It is, therefore, probable that the provoked Muslim youth were used by some of the co-accused by persuading and preparing them for taking terrorist training to effectively and successfully strike terror among the persons of majority community. (o) Many conspiracies were hatched like murder of the then Home Minister, planting tiffin bombs, attacks on Hindu leaders like Tiwari, Lalwala etc. and that there also hatched a larger conspiracy to strike terror with intention to threaten the unity, integrity, security of India and to strike terror in the majority section of people in a manner where injuries and death are likely fall out. (p) S.3(1)(a) defines the act and omissions with intent to threaten the unity, integrity, security of India, to strike terror in the people as terrorist act. In the light of peculiarity of the fact and circumstances of this case, it is clear that it has trans-border ramification and when it has come up on record that the accused were indulged into trans-
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border terrorist activities it is not only necessary but it is expedient duty of the judicial system to punish those who have been indulged into terrorist activities. While dealing with the case, with the sincerity and sensitivity, the facts of the case deserve and upon being conscious towards the responsibility of this Court to the system it is felt that this case does not have fact of simple law and order problem, hence this case does not deserve light approach but it deserves the fitting approach keeping in mind national safety, security, national interest, unity and integrity as the paramount considerations. (q) The large scale conspiracy hatched by the accused is of very serious and grave nature and in the event of its success, panic, terror, tragedy would have been of far reaching consequences. (r) The submission of the defence that after all in the fact of the case, no loss to life or property has been caused, hence the case is making mountain out of molehill is not worthy to be entertained as it was sheer fortune that the conspiracy could be caught on time. The result of success of other conspiracies like tiffin bomb, murder of Home Minister, Akshardham etc., it is clear that what is important for the Court to consider is, was the conspiracy likely to cause death of or injuries to, any persons or not. The requisite of S.3(1)(a) of POTA does not require actual death or injury to any person, mens rea of the accused is the test for application of the section. The intention of the accused to be in unauthorized possession of the weapon, to go or attempt to go for training, facilitating those who have gone for terrorist training by illegally crossing Indian
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border are the act and omission for which the accused can have only one intention in their mind of striking terror and to threaten the unity, integrity and sovereignty of India. There is no other material to infer any other intention. (s) If the confessional statements of the accused are seen, some of them have admitted to have taken terrorist training (viz A-1, A-2, A-3, A-16, A-17, A-18, A-19, A-21, A-22, A-40, A-41 and A-44), some have arranged for the funds, some of them have acquired the weapons, they have learnt use of mass killing weapons, preparing the bomb and blasting the bomb, some of them have confessed to have become member of banned terrorist organization Lashkar-e-Toiba, one of the accused has even confessed that his hero is Osama Bin Laden and he has skill of giving provoking and over powering speeches, which can safely be inferred to be capable of brainwashing and provoking the Muslim youth. Here, it is clarified that the confession of A-1, A-2, A-3 and A-44 is eschewed from consideration for technical reason and A-16, A-17, A-18, A-19, A-40, A-41 have been granted benefit of doubt as the confessional statement alone cannot be base to hold the accused guilty. (t) Here, it needs to be clarified that Section 121 to 124 of IPC is related to waging war. which as discussed does not stand proved beyond reasonable doubt, but however the intention of doing the act complained of is with intent to threaten the security and or sovereignty of India and to strike terror in people, hence the said act falls within Section 3(1)(a) of the POTA.
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JUDGMENT
The definition under the POTA is, if anyone with intent to threaten the unity, integrity, security or sovereignty of India or strike terror in the people of any section of the people by firearms or by any other means whatsoever, in such a manner so as to cause or likely to cause death of or injuries to any person or loss of or damage to or destruction of property is said to be committing terrorist act wherein, possessing weapons is one of the act which possession reveals the intention and that considering the said their terrorist act to have been proved to have been committed. The accused who have attempted to take terrorist training but could not take like A-5, the accused like A-21 whose activities and smartness were such where his illegal journey can only be inferred, the muddamal at his house shows his intention and deep interest in the terrorist act, and A-42 to have knowingly facilitated the commission of the act of taking terrorist training which was preparatory to the terrorist act. All the accused who have been held guilty have been found actively involved in the larger scaled criminal conspiracy hatched by them. In the same way, they have been found to have done terrorist act and criminal conspiracy as defined in POTA. The meeting of minds of the accused among his group members and having unity of purpose among all the accused as the persons marching under the same banner is very easily and apparently visible. When the extent and reach of the crime transcends the local barriers and the effect of the criminal act has the potential of that result being felt throughout the nation the provisions of Section 3 (1) of POTA would certainly be attracted.
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JUDGMENT
(u)
It is settled position, the commission of the crime with the intention to achieve the result is important to attract Section 3 of POTA and the consequences or the result of the crime cannot attract Section 3. If a crime was committed with the intention to cause terror or panic or to alienate a section of the people or to disturb the harmony or the unity it would be punishable and would attract Section 3 even if no one is killed or injured or no damage has been caused to the property.
(v)
From the entire fact of the case, it is also clear that the proclaimed accused Mufti Sufiyan, Rasulkhan party, Sharifkhan and many more were at the helm of the affairs and that they were the kingpins.
(w)
As culled out from the description part of the confessional statement and not the confession in the statement, all the accused held guilty have done different acts assigned to them and were ready to take up any target given to them by the higher-ups. All of them were working for the same cause, for the same goal and with the similar intention. Some of them are close friends from the childhood and were residing at Navi Mohallat or nearby area. Most of them were visitors of Lal Masjid and they all are in one way or another in contact with and under influence of at least one of the kingpins. The Navi Mohallat and Lal Masjid can be seen to be epic centre of all the terrorist activities and the conspiracies hatched.
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758
JUDGMENT
(x)
The accused have been found to be doing illegal act and that, it very clearly emerges on record that they have agreed to do the terrorist act with at least one of the co-accused which satisfies the requisite of S.120-A of IPC and that all the accused held guilty can be safely inferred to have hatched criminal conspiracy with knowledge and intention. Their participation seems to have been proved beyond doubt.
(y)
In the facts of the case, the accused by unauthorizedly possessing arms and ammunition have done the terrorist act and have knowingly done preparatory to a terrorist act. The conspiracy as has been provided in S.3(3) of the POTA, and u/s.120-A of the IPC, and the commission of terrorist act u/s. 3 of POTA by all the accused who have been held guilty stands proved beyond reasonable doubt.
(z)
The illegal association among the different group of accused, their intention for the commission of terrorist act proved by the prosecution beyond reasonable doubt, their act of intentional and knowingly collection of arms and ammunition, absence of any justification or valid reason for the same, their conscious and exclusive possession of the same are the facts by which three offences under the discussion clearly stands proved to have been committed by the accused.
(z-1) The point that the accused have never translated their conspiracy into action has to be seen with the concept that conspiracy itself is an offence which is suggestive of the fact that it need not to be resulted into something further for the Court to convict the accused.
POTA/12/2003
759
JUDGMENT
If the accused have not been found to do something pursuant to the conspiracy, that would not necessarily mean that they never wanted to do something. It has to be seen in the light that since the conspiracy was caught at a time when their ill-design was not translated into the act of endangering safety and security of the nation and the citizens and that the conspiracy per-se is actionable wrong. (z-2) The act of the relevant accused of actively and knowingly mixing with the group of miscreants and intentionally joining those indulging into illegal activities is a strong circumstance by which a lawful inference can be drawn that the unauthorized possession of the arms and ammunition and or association of the accused with the miscreants are not innocent or innocuous as claimed by the accused. The lawful inference can certainly be drawn that the respective accused were involved in commission of offence under POTA and under IPC under the discussion. (z-3) Even numerous hostile witnesses have admitted like PW 97 etc. that the key conspirator Mufti Sufiyan is known to him, communal riots in February 2002 took place in the State of Gujarat, the Muslim community had to suffer heavy loss of lives and property, the Mufti Sufiyan did religious study for about 15 years, was a clergy in Lal Mosque, place shown by the prosecution for hatching many conspiracies, and in another Mosque at Karoda Pole. Oral evidence of PW 58 being discussed while discussing A 5 is also revealing the reverance enjoyed by the kingpin Mufti Sufiyan and his association with the Muslim youth, many of the coaccused to have been frequently meeting the Mufti Sufiyan and were working as per his instructions for the community. The close
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JUDGMENT
aides of Rasulkhan Party have revealed that he used to bear expenditure for the terrorist training at Karachi and even role of Sharifkhan is on record. (z-4) The Court has to live in the world of realism. No investigation can be foolproof. Error or lacuna of investigation cannot be given overweightage unless it has proved that serious prejudice was caused to the accused thereby. Otherwise, it would amount to playing in the hands of erring police officers. (z-5) The unauthorized possession of the arms and ammunition by the accused undoubtedly emerge as part of the conspiracy to use the said for Jehadi activities. (z-6) To prove the charge under Section 3(1) of POTA, it is sufficient if the accused have been found of doing any activities to strike terror in the people or in any section of the people or to adversely affect the harmony amongst different sections of people by which it can be held to have committed terrorist act punishable under the Section. (z-7) The terrorist act in the facts of the case cannot be classified as mere law and order problem or disturbance of public order or disturbance of even tempo of the life of the community of any specified locality, but it is of the nature which cannot be tackled as an ordinary criminal activity under the ordinary penal law by the normal law enforcement agencies. The anti-national activities throw a challenge to the very integrity and sovereignty of the country. In the above fact, the offences under Section 3(1) can be termed to have been made out against
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JUDGMENT
the accused held guilty for the same. (Z-8) From the evidence discussed above, there seems to be a very solid tie being existed among the accused. (i) (ii) They seems to be directly involved in the activities. There seems to be tremendous sense of revenge and retaliation in the mind of the accused on account of the aftermath of Godhra incident, wherein, it is perceived by all that there was tremendous loss of lives and properties of the Muslims in the communal riots which took place in the State of Gujarat in the year 2002. (iii) Tremendous sense of insecurity has been developed in the background of the situation arose after the communal riots. It can safely be inferred that the Muslim youth was provoked and was persuaded to settle the account with the major community, as is probable to happen. (z-9) It is settled position of law that the phrase benefit of doubt means a just and reasonable man's moral acceptance about the particular circumstance adversely affecting the prosecution case in connecting the accused with guilt of which the accused have been alleged to have committed. As far as a very weak and feeble doubt is concerned, it has to be remembered that it is of course possible, but that the said is not in the least round of probability and that if what is possible is not probable, then it can be held that the prosecution has not proved its case beyond reasonable doubt.
POTA/12/2003
762
JUDGMENT
It is the reasonable doubt and not imaginary trivial or merely possible doubt, the doubt must be based on reason and common sense of a just person. Prosecution is not required to meet with any and every hypothesis put up by the defence. What the prosecution needs to prove is the case beyond reasonable doubt which in the case the prosecution has proved. (z-10)Section 10 of the Indian Evidence Act can be invoked as there being enough material on record and since there exists reasonable grounds to hold that all the accused have conspired to commit illegality and that there clearly appears to be bond in the nature of agency, hence anything done or said by others becomes relevant against another for proving existence of conspiracy as well as to prove that these accused were party to the whole criminal conspiracy hatched among all the accused. (z-11) The conduct of the relevant accused to discover the facts is covered by Section 8 of Indian Evidence Act. (z-12) The citation of the prosecution are squarely applicable to the case on hand. (5) In the above background of facts of this case and law on the subject, the culpability of the following accused needs to be decided by noting the glimpses from the material discussed and decided in the judgment against each of the accused held guilty.
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763
JUDGMENT
(A) (i)
A-21 : Through the Further Statement and otherwise the accused has put up defence of denial, ignorance, and claimed his innocence. He has stated that he has no concern with the muddamal material available from his house but none of the family member has owned the same, filed any affidavit to support the defence and the muddamal is clearly linkable with the activities of the A-21. There is no dispute that the site was not his residence, hence the prosecution version is not doubted and the defence is held to be not genuine. Each case has to be decided on its merits, it is not necessary for this Court to disbelieve the document viz confession if is disbelieved by the predecessor when in the facts of this case, it is credible one.
(ii)
A-21 is identified by PW 95 as the person who with the kingpin Mufti Sufiyan came to Alipur while the atmosphere of the Ahmedabad city was very much tensed on account of the terrorist act of the murder of the then Home Minister. PW 95 has produced the muddamal given to him by Mufti Sufiyan while parting from Alipur wherein the genuine driving licence of A-20, A-21 & A-22 were found. None of them have explained as to how the driving licence of them went to PW 95. Normally, driving licence is something which a person moves with. It is quite probable that as identified by PW 95, A-21 had been to Alipur along with the proclaimed offender in company of A-20 & A-22. The act of A-21 of being with the proclaimed offender who thenafter was not tractable till now is showing the conduct and connection of the A21. A man is to be known by the company he keeps is aptly applicable to A-20 to A-22.
POTA/12/2003
764
JUDGMENT
(iii)
Certain defects in the investigation has been attempted to be shown, in the cross examination of PW 199, but the said cross examination does not take away the positive evidence of PW 95 and his identification in specific of A-21. The A-21 has taken a stand of denial and claiming his innocence but that is usual for any accused.
(iv)
It is true that the passport of A-21 has not been obtained, proof of his air travels has not been obtained, the identification parade of him has not been held and he was not interrogated to examine the truth in the statement of PW 95 (paragraph 316, 518, 319 of PW 199) but these are all lapses or inabilities or even limitation of the investigation. The said are never sufficient to grant benefit of doubt to the accused when a positive, credible evidence involving the accused in the crime is put forth.
(iv)
The telephonic contact and conversation of this accused with the co-accused at the relevant point of time can be seen from the documentary evidence Exh 990 to 998 on the record. The telephone number of the accused can be tallied from their confession.
(v)
The defence version that the prosecution has not proved that the A-21 has traveled by the fake passport needs to be seen with the bundle of evidences available from the residence of A-21 in presence of his mother and brother on 5/4/2003. About 800 F.D. Receipts of the nationalised banks, the letterheads of the approved valuer, of the chartered accountant, of the Gujarat Chamber of Commerce and Industries, Computer statements of different bank accounts, bank account on the name of different
POTA/12/2003
765
JUDGMENT
persons, blank school leaving certificates, blank degree forms, about one dozen different xerox passports (not of his family members, but of quite different persons), cheque books and slip books of the different banks are all the material which is making it believable that A-21 can travel illegally without creating any evidence on his name. All these material and the concerned oral evidence provide very strong corroboration to the confessional statement of the A-21. (vi) From the house of the A-21, paper cuttings of 26/3/2003 and 27/3/2003 of different newspapers have also been found which are all related to funeral ceremony, condolence meeting etc. of the late Home Minister as news item of the period when the murder of late Shri Haren Pandya was committed. This activity of the A-21 is a very strong circumstance connecting him with the larger scale criminal conspiracy hatched among the accused. (vii) It is true that no weapon has been recovered or discovered from this accused. But then, it is hardly material to decide the charge of criminal conspiracy and of committing terrorist act. The material available from the house of A-21 is clearly showing that he is the person who is totally interested and who has intention to threaten the unity, integrity, security of India and to strike terror in the people. (viii) With the above background and corroboration which is sufficient material against A- 21, if the confessional statement of A-21 is seen, he confesses to have been staying at Navi Mohallat, Ahmedabad, A 1,2,3 4, 20 and 22 to be his close friends, on 26/11/2002, he went to Bombay, then had been to Dubai, from Dubai to Karachi where he met the kingpin Rasul Party. He
POTA/12/2003
766
JUDGMENT
confesses to have taken terrorist training at the training camp near Islamabad, Pakistan. This training according to A-21 was for 20 days where he has been taught the mechanism and operation of mass killing weapons and knowledge of different chemical and gun powder and how to use liquid chemical for fire etc. He has even stated the name of his trainers and about his return journey. He has confessed his meeting with the kingpin Mufti Sufiyan and different co-accused at Ahmedabad who had persuaded him to go for training. (ix) In light of all the above, it is clear that A-21 has committed the offence u/s.3(1)(a) and 3(3) of the POTA and u/s. 120-B of IPC. Since this is the case wherein this accused with the other coaccused can lawfully be inferred to have committed the three offences under the discussion. FINDING : A-21 is hereby held guilty u/s. 3(1)(a) and 3(3) of the POTA and 120-B of the IPC. (B) (i) A-5 : Through the Further Statement and otherwise the defence of A-5 is denial, ignorance and claiming innocence, but in view of the below noted facts the defence does not seems to be genuine. (ii) On 3/4/2003, A-5 came at Parimal Garden along with A-1 to A-4, has a photograph of A-1 and A-4 in his pocket and visiting card of A-24 which shows his closeness and association with A-1 to A-4 and A-24.
POTA/12/2003
767
JUDGMENT
(iii)
He had been to Kolkatta along with A-1, 2 and 3, stayed at Star Guest House, wrote in hotel register his address, and was at Kolkatta from 22/12/2002 to 28/12/2002. The receipt of the Star Guest House shows his stay there with A1, A-2 and A-3.
(iv)
Panchnama Exh 651 read with oral evidence of PW 9, PW 164, PW 55, and the respective I.O. proves that A-1, 2, 3 and 5 have resided at Star Guest House, Kolkatta.
(v)
PW 49, read with Exh. 861 - the railway reservation chart shows the conduct of the accused to have chosen very unusual route to reach at Kolkatta which has been discussed in detail.
(vi)
The oral evidence of PW 58 shows A-5 to be working as per the instruction of kingpin Mufti Sufiyan, a clergy and a leading person of community who used to actively work for religious and social issues of the community and who has started the Madressa. The confession u/s.164 of Cr.P.C. of A-55 at Exh.1518 reveals that A-5 was at Bangladesh at the relevant time. This confession of A-55 can be used against A-5 since it is corroborated from the evidence against A-5. His reason to go to Bangladesh can only be viewed from the prosecution case as he has attempted to get terrorist training by going from Bangladesh route in absence of any specific case put up by the defence except denial.
(vii)
The evidence against A-42 that he is a person who is facilitating people to cross Indian border for going to Dhaka and further noting that it is a matter of common knowledge that it is easy to
POTA/12/2003
768
JUDGMENT
go from Bangladesh to karachi which was once a part of the neighboring country Pakistan and further perusing the oral evidence of PW 171, the prosecution case against the A-5 of intentionally, knowingly, hatching the conspiracy with the intention to strike terror etc. with the other co-accused seems to be absolutely probable and credible one. (viii) The A-5 is clearly found involved in the criminal conspiracy hatched by all the accused and to have done terrorist act with intention as provided in S.3(1)(a) of POTA. (ix) The A-5 has given confessional statement which is not considered for technical reason. In the humble opinion of this Court, there is ample material in form of oral, documentary and the circumstantial evidence to link the accused with the three offences under the discussion. As emerges in the prosecution case, the A-5 being of slightly advance age was returned without imparting training from Pakistan. As it may be but the fact remains that his reason to go to Kolkatta from there to Dhaka is as was discussed above. FINDING : A-5 is hereby held guilty to have committed offence u/s.3(1)(a) and 3(3) of POTA and S.120-B of the IPC. (C) (i) A-42 Through the Further Statement and otherwise, the defence put forth by this accused is his false involvement, denial and claiming his innocence.
POTA/12/2003
769
JUDGMENT
Vide the Written Statement along with Further Statement, the accused has stated that his signatures on the register of Hotel International were taken by employment of coercion, physical and mental cruelty. This defence cannot be believed as sounds to be baseless and vague. Neither any date, time or place has been told for taking such signatures, no such point has been raised while cross-examining the I.O. and even no application whatsoever has been tendered at the relevant point of time. Looking to the overall conduct of the accused and more particularly his retraction and the allegations with the retraction against the police (which subsequently were not fortified), the accused seems to be quite awakened person who claims his all rights. Hence, it cannot be believed that such accused would observe silence though his signatures have been obtained forcefully as claimed. The accused has claimed his innocence, but in the light of the material against the accused, the defence does not sound to be genuine. (ii) There is ample material to hold that the A-42 has played very active role in facilitating many persons to illegally go to Pakistan to receive terrorist training from the route of Kolkatta-Dhaka-Karachi. (iii) Vide identification parade, panchnama Exh. 1570 and through the oral evidence of PW 190, it is confirmed that this accused has been identified as a person who has managed illegal passing through the Bangladesh-India border near Kolkatta by which the family of proclaimed offender had passed through.
POTA/12/2003
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JUDGMENT
(iv)
PW 171 supports the probability of illegally passing through the border.
(v)
Section 291-A of Cr.P.C. provides to read the identification parade into evidence even without examining the witness who has identified the accused.
(vi)
The oral evidence of PW 64 and his identification of A-42 read with register of Hotel International proves the prosecution case against A-42 and his role in the criminal conspiracy. The oral evidence of PW 140, documents Exh. 1207, 1206, 777 show at least the two visits of A-42 at Kolkatta after the Godhra incident. The medical certificate of A-42 of Kolkatta Hospital is on record which is tallying with oral evidence of PW 180 to have taken A-42 at Kolkatta for investigation.
(vii)
The accused is found involved in trans-border illegal activities and it is almost impossible to secure documentary evidence against the accused for lack of access to the administration and system of another country and many more reasons.
(viii)
The confessional statement of A-55 and A-54 at Exh. 1464 clearly involves this accused and confirms his role in the crime which is since u/s 164 of Cr.P.C., the said needs to be believed when it is corroborated from the evidence against A-42. The confessional statement reveals that A-42 has facilitated certain boys to cross the Indian border.
POTA/12/2003
771
JUDGMENT
(ix)
After marshaling the above evidence, the confession can be called in aid. Vide Exh. 959, the confessional statement of A-42 is on record which shows his business and roots in the city of Mumbai. There is no plausible explanation for A-42 for the need to go at Kolkatta and Dhaka. This circumstance also proves the prosecution case when even A-42 has stated in his Special Statement along with Further Statement that he had been to Dhaka with his family.
(x)
From the confessional statement, this accused seems to be conversant with the field of tours and travels which circumstance gives strength to the prosecution case.
(xi)
In the confessional statement the oral evidence of PW 64 also gets tallied. The contents of the confessional statement are thoroughly getting supporting from the prosecution case and are showing the knowledge of A-42 that the boys to whom he has facilitated crossing the border had been to Pakistan to take the terrorist training and one of them has murdered the then Home Minister of Gujarat State.
(xii)
The proceedings u/s 70 of Cr.P.C. had to be initiated against this accused is also a circumstance in addition to above material.
(xiii)
Cumulatively all the above reveal the accused has been clearly involved in all the three offences under the discussion and the same is therefore held to have been proved by the prosecution beyond reasonable doubt.
POTA/12/2003
772
JUDGMENT
FINDING : A-42 is held guilty u/s. 3(3) and 3(1)(a) of POTA and u/s. 120-B of I.P.C. (D) (i) A-1 : Through the Further Statement and otherwise, this accused has mainly put forth his defence of his innocence on certain aspects, his ignorance on certain aspects and his denial for almost whole of the prosecution case. (ii) The accused has however admitted that telephone No. 2163946 was telephone number of his aunt at relevant point of time. Vide Exh. 2051, the Special Statement, the accused has repeated the above referred defence and has added the plea of his false involvement. (iii) This accused is found to be a proprietor of Hi-Value Couriers from at least 10/9/1998 (from Exh. 659 the signature card of the bank), his reason to be at Kolkatta in company of the co-accused is nowhere explained. (iv) On 3/4/2003, this accused had been to Parimal Garden to meet the other accused after the terrorist training. This shows his association with A-2 to A-5. (v) As discussed while discussing evidence against A-5, the register of Star Guest House proves the presence of this accused at Kolkatta between 22/12/2002 to 28/12/2002. (vi) In the personal search of this accused vide Exh. 702 panchnama, a foreign made loaded gun and 15 cartridges have been seized
POTA/12/2003
773
JUDGMENT
from illegal possession of this accused which were found working and live respectively from the evidence of ballistic expert. (vii) Exh. 651 panchnama, PW 9 (panch), PW 199 (I.O.), PW 164 Manager/ Receptionist of Star Guest House, Kolkatta, PW 55 the handwriting expert, Exh. 1368 register of the Hotel, Exh. 1369 the cash receipt of the hotel, Exh. 814 panchnama, the recovery of the motor-cycle in which the accused had been to Parimal Garden are all the documentary and oral evidence proving the linkage of the accused with the charged offences. (viii) Further Exh. 1300, 990 to 998, oral evidence of PW 63 and 167 are all revealing the tie and close association of the accused with different co-accused on telephone. (ix) PW 49 the Railway Reservation Official read with Exh. 861 the railway reservation chart and the odd route to go to Kolkatta selected by the accused in company of the co-accused is clearly proving a very active and enthusiastic role played by this accused in the crime. (x) PW 71 & 72 prove to have sent Rs.10,000/- at Kolkatta at the request of A-20 received by A-1 which can be read from the oral evidence of PW 139 and the documents of cheque etc. (xi) The circumstance that A-1 to A-4 have also given their confessional statements is notable. It is however different that for technical reason the said have been excluded from consideration. In view of all the above factual background, clear and direct involvement with intention and knowledge of A-1 in the three
POTA/12/2003
774
JUDGMENT
offences under discussion is held to have been satisfactorily proved by the prosecution beyond reasonable doubt. Finding : A-1 is held to be guilty under the three offences. Note :The fact of visit at Parimal Garden, staying at Star Guest House, Kolkatta, telephonic conversation, signing at hotel register, opinion of handwriting expert, hotel manager, panch witness, hotel register, cash receipt, railway official, reservation chart, oral evidence of ballistic expert, oral evidence of PW 71 & 72 for providing fund of Rs.10,000/- read with the concerned documents, etc. are all common features of the case of A-1, A-2, A-3 and A-5. (E) (i) A-2 : Through the Further Statement and otherwise, this accused has mainly put forth his defence of his innocence on certain aspects, his ignorance on certain aspects and his denial for almost whole of the prosecution case. (ii) In case of A-2 to A-4, they have based their defence on denial, allegation of their false involvement, their ignorance and their innocence. (iii) From Exh. 649 the bank signature card of A-2 has been admitted by A-2 to be true in the Further Statement. This accused is proprietor of Adhar Petroleum from at least 9/3/1999. No plausible explanation is put forth for his visit to Kolkatta in company of the co-accused and that too by choosing the unusual
POTA/12/2003
775
JUDGMENT
route wherein the railway reservation form seems to have been filled in by this accused which shows his leading role in the criminal conspiracy hatched. (iv) Muddamal article No. 52 the ration card showing his address and tie at Navi Mohlat, is the circumstance strengthening the probability of linkage of the accused with the conspiracy. (v) Panchnama Exh. 696 with oral evidence of PW 21 and PW 162 shows conscious, exclusive and intentional possession of arms and ammunition as discussed in detail which were in working condition and live respectively. (F) (i) A-3 : Through the Further Statement and otherwise, this accused has mainly put forth his defence of his innocence on certain aspects, his ignorance on certain aspects and his denial for almost whole of the prosecution case. (ii) Panchnama Exh. 622 is for the recovery of muddamal from the residence of A-3 in presence of his father. Muddamal article No. 33 is a notebook having a write-up titled as One terrorist speaks wherein names of banned terrorist organisations have been written, the details of the writing clearly join A-3 with the Jehadi activities, another write-up under the head of Akrosh with the mention that the followers of the organisation have attacked on WTC, New York, page 8 has heading of Hizbul Mujahuddin with mention of attack on Red Fort, Taj Mahal etc.
POTA/12/2003
776
JUDGMENT
(iii)
In muddamal article No. 34, the telephone diary, has mention on page No. 4 bava sahab ke wahan par murid bana hun, uski tarikh 4/10/2001 hai. This shows the tie of the accused with different activities which, if seen with the write-up in the diary, seems total inclination to the terrorist activities, even prior to Godhra incident. In this diary, the mobile number of A-7, A-4, telephone number of proclaimed offender Mufti Sufiyan are noted.
(iv)
The muddamal articles reveal mental state of A-3, his ties with the co-accused and his involvement in the terrorist activities.
(v)
Vide Exh. 1319 panchnama and oral evidence of PW 162, two countrymade guns and one chit to have been written by Rukhsana, wife of proclaimed offender Rasulkhan Party are also linking the accused with the crime and his visit at Pakistan.
(vi)
Exh. 990 to 998 shows the telephonic contacts of this accused with the co-accused A-21.
(vii)
There are other common factors with co-accused A-1, A-2, A-4 and A-5 which need no repetition.
(G) (i)
A-4 : Through the Further Statement and otherwise, this accused has mainly put forth his defence of his innocence on certain aspects, his ignorance on certain aspects and his denial for almost whole of the prosecution case.
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JUDGMENT
(ii)
Exh. 669, the discovery panchnama, shows two revolvers, cartridges and the waist belt made up of military uniform having pockets to keep two revolvers.
(iii)
Muddamal article No. 34, the telephone diary recovered, shows mobile telephone number of A-3, A-7 and of proclaimed offender Mufti Sufiyan which are revealing the inter se connection among all these persons and their involvement in the criminal conspiracy. The cartridges and the weapon have been opined to be in working condition and live.
(iv)
The mobile telephone number of A-4 has been told by A-4 at the confessional statement which is only a description and not confession.
(v)
Appreciating oral evidence of PW 63 read with Exh. 990 to 998, there seems to be telephonic conversation and the contacts of this accused with A-1, A-4 and A-22. From Exh.991, it becomes clear that at the relevant time of 22/12/2002 to 28/12/2002, the A-4 has been contacted from Kolkatta for 14 times while A-1, A-2, A-3 and A-5 were there which is quite eloquent of the involvement of the A-4 in entire conspiracy right from the beginning. Common finding for A-1 to A-4 : The defences raised by all the above referred accused are apparently not found to be genuine and acceptable one. All the four accused are hereby held guilty in the three of the offences under discussion as proved beyond reasonable doubt by the prosecution.
POTA/12/2003
778
JUDGMENT
(H) (i)
A-6 : Through the Further Statement and otherwise, this accused has mainly put forth his defence of his innocence on certain aspects, his ignorance on certain aspects and his denial for almost whole of the prosecution case. This accused has also put up his case that even his father was kept by the Crime Branch who was subsequently freed. Vide panchnama Exh. 754 read along with oral evidence of PW 32 and PW 162, muddamal article No. 65 to 76 were seized from A-6 from beneath the tree outside Shed No. 361, Kohinoor Estate of his father. The incriminating material was (i) automatic silver pistol made in USA with magazine containing live cartridges, (ii) countrymade tamancha loaded with live cartridges, (iii) countrymade tamancha in working condition, (iv) 14 live cartridges, (v) 15 small live cartridges, (vi) 16 small size cartridges of yellow metal, (vii) 5 live cartridges, (viii) 15 copper like cartridges, (ix) 40 cartridges in two different tins. It was without permit.
(ii)
The oral evidence of PW 56, the ballistic expert, is showing the arms and ammunition from A-6 to be in working condition and live.
(iii)
No justification whatsoever has been put forth by this accused for his unauthorized custody of the muddamal arms and ammunition. Looking to the fact that the arms and ammunition of such a large quantity included one pistol made in USA is clearly showing the intention of the accused to have acquired the same for the use of the same in the terrorist act and to use the same as and when the target is given to the accused from the higherups.
POTA/12/2003
779
JUDGMENT
(iv)
About the other defence qua the credibility of panchnama Exh. 754, this Court has dealt with it at great detail in relevant part of this judgment. Hence the same needs no repetition. Suffice it to say that the conduct of the accused of unauthorizedly possessing large number of weapons, concealing the same, discovering at his instance from his exclusive and conscious possession are all quite strong evidences to believe the prosecution case against the accused. It sounds quite probable that this accused is indulged in terrorist activities and has acquired large number of arms ammunition solely with a view to strike terror in the notified area under POTA.
(v)
The accused has not come out with any justification or has even not rebutted the presumption u/s. 4 of POTA for his unauthorized possession of the arms and ammunition.
(vi)
Considering all the above, this Court has no hesitation to hold that this accused needs to be held guilty under the three of the offences under discussion. Finding : In light of the above discussion, the defences raised by this accused are not found to be genuine and acceptable one. A-6 is hereby held guilty under the three offences.
(I) (i)
A-7 & A-30 : Through the Further Statement and otherwise, both these accused have mainly put forth their defence of their innocence on certain aspects, their ignorance on certain aspects and their denial for almost whole of the prosecution case.
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Additionally A-7 has also stated that he was illegally detained and since his family members have proceeded before Hon'ble the High Court, he has been further falsely involved in the weapon. This accused has also put forth his defence through Exh. 2006 to 2011 which all have been discussed at the relevant part of this judgment which have been not found to be acceptable one by the Court. This accused has also put up his further defence that since he is the brother of the proclaimed offender Rasulkhan Party, he is being harassed and concocted evidences are created against him though he has not done any confession. This Court is of the opinion that there are other two accused who are also admittedly brothers of Rasulkhan Party. In their case, the material collected by the investigating agency is not similar one which shows that nothing has been concocted against the accused just because he is brother of the proclaimed offender. (ii) In case of A-30, over and above the usual defences, he has raised the defence in Further Statement that his signature in 100 blank papers and thenafter added that more than 100 blank papers have been obtained by the Crime Branch, he has further stated in the Further Statement that he was illegally kept at the Crime Branch for 110 days, thenafter he said that he was kept for 85 days (in the Special Statement with Further Statement, he has given in writing that he has been kept for 81 days), he has given his deposition in another POTA Case regarding murder of late Home Minister. In the humble opinion of this Court, variation in statement in very quick succession can be taken note of along with unbelievable
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exaggeration in the allegation against police. The accused states that signature of him in more than 100 blank pages have been taken is the allegation unacceptable and exaggerated version which can never be true as can be seen from tenor of the allegation. The accused has stated so for the first time only in the Further Statement which is pointing to alleging attitude and typical conduct of the accused. Even the accused who is telling his illegal confinement to be 110 days in one breath and in another breath he states it to be 85 days and in writing in a Special Statement along with the Further Statement he states it to be 81 days, are the discrepancies which also show the conduct of the accused, whose defence obviously cannot be held to be genuine. The fact that the accused was a witness in another POTA Case for another conspiracy and in this case he has been involved as an accused shows the fairplay on the part of the investigating agency. (iii) In case of both these accused, the prosecution has proved beyond reasonable doubt that in the month of May 2002, after the Godhra incident, they had been to Mumbai to hold meeting in pursuance of the criminal conspiracy hatched among A-7, A-30, proclaimed offender Rasulkhan Party, Mufti Sufiyan etc. Another meeting was held at residence of PW 131. A-30 has voluntarily shown the place of meeting for which necessary panchnama has been drawn. (iv) From the oral evidence of PW 60, it seems that A-7, A-30, A-31, A-45, A-46 and proclaimed offender Rasulkhan Party are known to the witness and were residing in the same locality. This shows the probability of hatching criminal conspiracy among the
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accused. (v) Vide Exh. 1578, the register and bill book of the hotel at Mumbai, as article No. 112 & 113 have been recovered, from the said register, the relevant entry at Exh. 1631 can be seen which shows that A-7 & A-30 have shared and have resided in Room No. 404 of Hotel Ambar at Jogeshwari, Mumbai on 2/5/2002 wherein the address has been shown to be of Karoda Pole, Panchpatti, Kalupur, Ahmedabad (Karoda Pole is the address of a mosque where the proclaimed offender Mufti Sufiyan was rendering his services). (vi) Muddamal article No. 113 is the bill book wherein bill No. 1577 of Rs.515/- can be seen. These documents have been proved to be true by PW 132, the owner of the hotel. All these documents and the oral evidence show the role of both the accused in the criminal conspiracy. (vii) Vide panchnama Exh. 734, the register of Ambar Hotel was recovered wherein A-7 & A-30 have stayed. There is nothing on record to show the justification of the journey of A-7 & A-30 at Mumbai other than holding the meeting with the proclaimed offender and others in pursuance of the criminal conspiracy. (viii) The inter se connection between these accused, proclaimed offender Mufti Sufiyan, A-3 and A-4 can be seen from the telephone diary recovered from the house search of A-3 which reveals their inter se connection with one another.
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(ix)
In case of A-7, the discovery panchnama Exh. 677 read with oral evidence of PW 18 and PW 162, it is clear that in presence of father of A-7, one countrymade revolver was discovered from the residence of A-7 which in the opinion of ballistic expert was in working condition and used one.
(x)
The confessional statement of A-7 at Exh. 936 reveals that he resides near Navi Mohlat, the in-laws' house of proclaimed offender Rasulkhan is at Navi Mohlat, the proclaimed offender along with his wife resides at Karachi, Pakistan who is wanted in several criminal cases. The proclaimed offender Rasulkhan was a close aide of notorious Latif who was involved in Radhika Gymkhana Murder case, this accused met the proclaimed offender Rasulkhan Party at New Delhi, the accused was involved in other conspiracies, the accused has constantly remained in contact with the proclaimed offender Rasulkhan Party.
(xi)
The communal riots broke out in city of Ahmedabad from 28/2/2002 wherein tremendous loss of lives and properties of Muslim community was caused, hence it was decided to take revenge as the hatred was developed against Hindu community, the proclaimed offender Mufti, the clergie of Lal Masjid, has contacted the accused, upon whose saying this accused has contacted the proclaimed offender Rasulkhan Party.
(xii)
In May or June 2002, after having talked with the proclaimed offenders Mufti and Rasul Party, it was decided to go to Mumbai, A-7, the Mufti, co-accused and others had been to Mumbai by Shatabdi train, resided there at hotel, had been to somebody's place for dinner, had attempted to contact with Rasulkhan, at the dinner the discussion of loss of lives and properties to Muslims
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and taking revenge etc. was decided and it was further decided in the meeting that for the purpose with the help of Rasulkhan Party and Mufti, it is necessary to go to Pakistan and to prepare Muslim youth for going to Pakistan. Fund of Rs.50,000/- was given by Mufti to Rasul, thenafter the accused returned and met the coaccused. (xiii) All the material against A-7 provide corroboration to the confessional statement of A-7 from which also the active and direct role of A-7 in the conspiracy can very well be seen. (xiv) In case of A-30, vide panchnama Exh. 711 and the FSL report and the oral evidence, it is proved beyond reasonable doubt that A-30 was in unauthorized possession of working countrymade revolver and 4 live cartridges. (xv) Exh. 1631 entry of hotel links both the accused with the crime. Their reason to go together at Mumbai and meeting with proclaimed offenders is not explained by them. (xvi) The above proved facts and circumstances show the involvement of A-7 & A-30 in the crime. (xvii) The confessional statement of A-30 at Exh. 952 is to the effect that this accused was involved in notorious Latif gang and was working with proclaimed offender Rasulkhan Party from 1992, he was involved in 5 different cases of murder, kidnapping, etc. since was working with Latif, has been released from the Central Jail in February 2002, in February 2002 he has started going to Dariapur Lal Masjid to study Kalam Pak which was being taught by proclaimed offender Mufti, in February 2002 after the Godhra
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incident there were communal riots in Gujarat and in Ahmedabad where Muslim community has sustained losses. While the accused was going to Mufti he saw the Muslim youth visiting him, who was giving overpowering and provoking speeches to inculcate Jehad, there was discussion of taking revenge and to arrange for funds to purchase arms and ammunition, he had been to Bombay on say of Mufti along with the co-accused and others where Mufti has told about the loss to Muslims in the incidents of Naroda Patia, Gulberg, Bapunagar, etc., the accused used to be in contact with both the proclaimed offenders and other coaccused who also revealed his knowledge about other conspiracies, the accused had been to Hyderabad on the say of Rasul Party, the role assigned to him was done in another criminal conspiracies, the accused has knowledge that under the guidance and help from ISI, Lashkar-E-Toiba, Jaish-E-Mohammad, a network has been created and the co-accused have been sent for terrorist training at Pakistan, the arrangement to impart training to Muslim youth and giving them target in India was being handled by the accused. This accused also confesses that he had been to Sanand Highway in search of a safe and unused place as godown for keeping the weapons. The accused further confesses that he used to do the role assigned to him in Jehadi movement and he and the co-accused were caught with arms and ammunition while they were together. (xviii) The submission that since the confessional statement has been used in one of the POTA cases cannot be used again is not working to be accepted in absence of any statutory ban for its reuse.
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(xix) All the above referred points undoubtedly and clearly link A-7 & A30 with the three of the offences under discussion. Finding : In light of the above discussion, the defences raised by these accused are not found to be genuine and acceptable one. A-7 & A-30 are hereby held guilty under the three offences. (J) (i) A-8 : Through the Further Statement and otherwise, this accused has mainly put forth his defence of his innocence on certain aspects, his ignorance on certain aspects and his denial for almost whole of the prosecution case. (ii) Vide Exh. 689 panchnama, oral evidence of PW 20, 39 and 162, a foreign made gun, countrymade revolver and 20 live cartridges opined by the FSL to be respectively in working condition and live have been recovered from this accused. The unauthorized possession of this accused clearly shows his conscious and exclusive possession of the arms and ammunition to have been kept by the accused with an intention to strike terror and to use the same as and when the target is given to him by higher-up. (iii) The accused seems to be a hawker on the road side selling the cosmetic items. There is no justification for this accused for keeping the arms and ammunition which can clearly be linked with the criminal conspiracy. (iv) In confessional statement at Exh. 937, this accused states to be staying near Navi Mohlat at Prem Darwaja and was involved in
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selling the arms and ammunition. This accused has confessed that in February 2002, there were incidents of communal riots and there were loss on large scale to the Muslim community and the sense of retaliation and revenge was provoked in Muslim community. This accused has confessed to have learnt that many Muslim youth had been to Pakistan for terrorist training and that the payment for the weapons was made by the co-accused and the delivery was to be made to another co-accused and that the delivery of the weapons was made to different co-accused by this accused. (v) In light of the facts and circumstances and the proved fact, it is clear that this accused was involved in the criminal conspiracy hatched among the accused and that his involvement in sale of weapons cannot be with any other purpose other than his involvement in the terrorist activities. His intention can clearly be inferred to strike terror in the people. This accused also needs to be held to be involved in the three offences under the discussion. Finding : In light of the above discussion, the defences raised by this accused are not found to be genuine and acceptable one. A-8 is hereby held guilty under the three offences. (K) (i) A-9 & A-10 : Through the Further Statement and otherwise, both these accused have mainly put forth their defence of their innocence on certain aspects, their ignorance on certain aspects and their denial for almost whole of the prosecution case.
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(ii)
A-9 has raised the defence that since he has denied to be witness, he was illegally detained for 7 days and thenafter he was falsely involved in the case. He has relied upon the deposition of Sessions Case No. 130/04 produced by A-24.
(iii)
In the humble opinion of this Court, the defence raised by A-9 does not seem to be genuine as A-9 has come out with this kind of case at a very belated stage and that for the question in the Further Statement that he was arrested on 18/4/2003, he has only denied the said fact, but has not put up the case which also shows it to be after-thought.
(iv)
As far as the deposition in Sessions Case No. 130/04 is concerned, this Court has discussed at length about the deposition of the panch witness which does not require repetition. Suffice it to say here that the oral evidence of the witness need not to be doubted in addition to it assignee officer and the Investigating Officer has inspired the confidence of the Court and that there is no reason to doubt their version. Hence this defence does not push the prosecution case in any manner.
(v)
The defence raised by A-10 of his false involvement and ingenuine recovery of the weapons is not found supported by any other material. Hence the defence raised by both the accused is not found to be genuine and able to create doubt against the prosecution case.
(vi)
In case of both these accused, vide panchnama Exh. 783, ten cartridges from A-9 and one countrymade revolver and one English pistol from A-10 have been recovered which were found to be live and in working condition respectively and that none of
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the accused has given any explanation or justification for his unauthorized possession which was since recovery of personal search, no doubt can be created against it and that it was recovered from exclusive control and conscious possession of both the accused. Both the accused are therefore found involved in the three offences under the discussion. Finding : In light of the above discussion, the defences raised by these accused are not found to be genuine and acceptable one. A-9 & A-10 are hereby held guilty under the three offences. (L) (i) A-23 : Through the Further Statement and otherwise, this accused has mainly put forth his defence of his innocence on certain aspects, his ignorance on certain aspects and his denial for almost whole of the prosecution case. This accused has given a purshis of pleading guilty which during the course of Further Statement, he did not maintain.
(ii)
This accused has raised a further defence that his brother was kept in the Crime Branch who was released when the accused came and that his brother has applied before Hon'ble the High Court of Gujarat (but nothing has been supplied to this Court. Hence, this defence is not found to be genuine one as had such application been filed, the accused should be able to provide the copy thereof).
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(iii)
Along with purshis at Exh. 2068, a handwritten submission has been given to this Court on which though this Court has passed specific order to supply the typed copy, till the date the typed copy has not been submitted.
(iv)
As it may be, vide this submission, the accused has mainly represented on the conduct of the investigating agency and the fact that an application in the High Court was preferred, but again, the said application has not been produced. It is submitted that he has been falsely involved in the crime.
(v)
This Court did not find any substance in the submission which is not being fortified by any documentary evidence.
(vi)
Vide panchnama Exh. 719, oral evidence of PW 26, PW 154, one countrymade gun in working condition and 47 cartridges have been recovered which were found to be in unauthorized but exclusive and conscious possession of the accused wherein the ballistic expert has opined it to be in working condition and live.
(vii)
From the above evidence, and more particularly the accused who has a business of selling readymade clothes has no justification for keeping the weapons with him, it seems that the conduct of the accused is suggestive of having intention to strike terror and that he was actively participating in the criminal conspiracy hatched by the accused of this case.
(viii)
Vide Exh. 948, confessional statement of the accused is on record wherein he states about the communal riots of March 2002, loss to the Muslim community, all the Muslim youth were going to proclaimed offender Mufti who was doing very provocative
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discussion on the loss to the Muslims, the sense of revenge was developed, all the Muslim youth have become united, Mufti was considered as priest and was enjoying the reverence, the knowledge of the accused and involvement of the accused along with involvement of the co-accused in another conspiracy, the accused had been to Hyderabad, Kolkatta, etc. and that the weapon produced by him was given to him by proclaimed offender Mufti. (ix) In the light of all the above points, there appears clear involvement of the accused in the criminal conspiracy hatched. Hence this accused needs to be held guilty for the offences under the discussion. Finding : In light of the above discussion, the defences raised by this accused are not found to be genuine and acceptable one. A-23 is hereby held guilty under the three offences. (M) (i) A-24 : Through the Further Statement and otherwise, this accused has mainly put forth his defence of his innocence on certain aspects, his ignorance on certain aspects and his denial for almost whole of the prosecution case. (ii) This accused has submitted that he was arrested because proclaimed offender Sohailkhan is his brother, on 4/4/2003, the police came to his house, drew the panchnama, inquired about Sohailkhan, sought the cooperation from the accused, the accused had been with A-23, who is his friend, to the Crime
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Branch, the accused was subjected to torture, the brother of A-23 has filed habeas corpus, hence A-23 and A-24 were arrested, their signatures have been obtained on the blank papers, he has been penalised for his brother. (iii) Vide another written submission at Exh. 2069, he has repeated the same submission in addition of production of one deposition of one of the panch witnesses for which the discussion while discussing about A-9 has already been done. Hence no need to repeat the same. (iv) In the same way, while discussing for A-23, it has been discussed that without production of any petition under habeas corpus, such submission cannot be believed. The defence does not seem to be proper, genuine and reliable. (v) The panchnama Exh. 785 proves recovery of countrymade tamancha from this accused who has not given any explanation or justification for his illegal possession of this weapon and for his conscious and exclusive possession of the weapon. (vi) PW 73 has pointed out the role of this accused in communal riots after the Godhra incident to provoke Muslim youth to go to Pakistan for terrorist training and to spread that in the communal riots in Gujarat after the Godhra incident, there is loss of lives and properties of Muslims. (vii) Vide Exh. 949, this accused has given his confessional statement who confesses that he was in close contact of proclaimed offender Mufti, used to go to meet him at Lal Masjid, he is operating one institution for community service, while at one such
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meeting, proclaimed offender Mufti has told about the position of Muslims world over, the position after the communal riots, information as to who the Hindu leaders are, the role of America in creating atmosphere against Muslims and that their religion is under great danger, Mufti asked whether they are ready to take revenge to which this accused has consented. the accused confesses his role in another conspiracy of attack on Jagdish Tiwari, his frequent meetings with different persons connected with the conspiracy including the key conspirators and that he further confessed that he has concealed the weapons and showed the same to police which were given to him by his brother proclaimed offender Sohailkhan. (viii) There does not seem to be any truth in the defence raised and the above discussed material satisfactorily and beyond reasonable doubt establish the involvement of the accused in the crime. Finding : In light of the above discussion, the defences raised by this accused are not found to be genuine and acceptable one. A-24 is hereby held guilty under the three offences. (N) (i) A-25 : Through the Further Statement and otherwise, this accused has mainly put forth his defence of his innocence on certain aspects, his ignorance on certain aspects and his denial for almost whole of the prosecution case. (ii) The main defence raised by this accused is that all panchnamas are bogus and created against him which have been dealt with in
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great detail while discussing the panchnamas. Another defence is about stock panch witness for which documents have been produced by this accused which have also been dealt with. The third defence is about retraction of the accused which has also been dealt with. (iii) Vide panchnama Exh. 727, a mobile phone of A-25 has been recovered wherein the number of proclaimed offender Mufti Sufiyan, A-26 and A-45 have been found saved along with numerous numbers of different Muftis and Maulvis. (iv) Panchnama Exh. 674 and 1473 have been validly proved to be admissible panchnamas and vide these panchnamas different weapons and cartridges have been discovered at the instance of this accused which were found to be in unauthorized, exclusive and conscious possession of this accused without any justification to keep the said weapons and cartridges. (v) This accused, as emerges from the record, is having his shop in the name and style of AG Flower Mart at Flower Market, Ahmedabad. The number found saved in the mobile phone and the activities of being in unauthorized possession of the weapons do not tally with the kind of the business he does. There is no even explanation for this conduct. (vi) This accused vide Exh. 1966 application has contended that he was falsely arrested from 23/4/2003, during the course of the cross-examination and while the statement in specific along with the Further Statement, he has put up the defence that he was illegally detained from 11/5/2003. This discrepancy shows conduct of the accused which have been discussed in detail.
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(vii)
On 14/5/2003 when the accused was produced before learned Metropolitan Magistrate, he was duly represented by two of the lawyers of his choice, but in the application at Exh. 1996, no allegations have been levelled against the investigating agency or no grievance has been made about wrongly drawing the panchnama by the police with reference to discovery and other investigating procedure. This shows that the allegations made later on during the trial and in the reply in the Further Statement have no substance and are not genuine.
(viii)
Certain other objections and material etc. have been dealt with in detail during discussion.
(ix)
In absence of any justification for the unauthorized possession of number of weapons, it is clear that such possession can only be related to the charged offences and it is clear that the accused was thoroughly involved in the criminal conspiracy and he did all acts and omissions with an intention to strike terror.
(x)
Vide Exh. 950, A-25 has given his confessional statement. In this confessional statement, A-25 has confessed that since the house of his in-laws at Haranwali Pole, Panchkuva, he used to go frequently there. He has financed Rs.50,000/- to someone by keeping pistol of that person, the accused has confessed to have been invited along with Mufti Sufiyan for religious discussion, he has further confessed that while the communal riots in the city of Ahmedabad, he has received one weapon for which he had been to Kanodar along with his friends, the said pistol was selected by him by going to Kanodar and then ultimately the said pistol was given to kingpin Mufti Sufiyan, one another weapon which was
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point to point rifle which was purchased by the accused as confessed, the countrymade revolver and rifle the accused confessed to have been shown by him to the police, he further confessed that the rifle against which he has financed Rs.50,000/was ultimately given to kingpin Mufti. (xi) All the above circumstances and the proved facts and the evidence on record very clearly and undoubtedly prove clear linkage of the accused in the criminal conspiracy hatched among all the accused and the acts and omissions done by the accused were purely with the intention of striking terror and doing the preparatory acts. There cannot be any other intention other than as required u/s 3(3) and 3(1)(a) of POTA of the accused of keeping unauthorized possession of such weapons. (xii) In light of all the above points and the points discussed in detail, it is clear that the accused needs to be held to have been involved in the three offences under discussion. Finding : In light of the above discussion, the defences raised by this accused are not found to be genuine and acceptable one. A-25 is hereby held guilty under the three offences. (O) (i) A-20 : Through the Further Statement and otherwise, this accused has mainly put forth his defence of his innocence on certain aspects, his ignorance on certain aspects and his denial for almost whole of the prosecution case.
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(ii)
The accused has stated in Further Statement that his licence (which according to prosecution was produced by PW 95 and according to prosecution case, while along with the proclaimed offenders Mufti Sufiyan, Sohailkhan and others, A-20, A-21 and A22 had been to Alipur after the murder of Home Minister, these licences were kept by Mufti Sufiyan with PW 95). was recovered at the Crime Branch.
(iii)
No such defence has been raised so far and neither by way of cross-examination or by any other application this defence has been put forth by the accused. Hence this defence does not appear to be genuine.
(iv)
Exh. 759, 1319, 643 with oral evidence of PW 162, 7, 95 etc., it emerges on record that from the unauthorized, exclusive and conscious possession of this accused, the weapons have been recovered and the facts have been discovered. These facts show involvement of the accused along with noting the fact that PW 95 has produced three mobile phones, one charger, driving licences of proclaimed offender Sohailkhan on different names, identity card and election card of the proclaimed offender Sohailkhan, driving licence of proclaimed offender Mufti and driving licence of A-20 to A-22. The prosecution case is that when the three accused being tried along with the proclaimed offenders have jointly visited the place known as Alipur, while parting from the said place, all these material was deposited by proclaimed offender Mufti to PW 95 which PW 95 has produced before the investigating agency.
(v)
This is the strong circumstance to show that A-20 to A-22 were with the proclaimed offender at the relevant point of time. As has
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been discussed in case of other accused, it is clear that the driving licence is something which usually a person would always keep with oneself and unless the person has personally gone somewhere, the possibility of depositing the driving licence is out of question, that too when the driving licence has been deposited along with the driving licences of other co-accused and proclaimed offenders, it shows that the three accused being tried and the proclaimed offenders wanted to conceal their identity in case of their arrest anywhere. (vi) It is true that PW 95 could not identify this accused, but merely that does not mean anything, but it would mean only one thing that PW 95 is a natural witness and he is not out to falsely involve any accused. (vii) The defence raised is that the Crime Branch has obtained the driving licence, but this is not believable one for the reason that the accused has never made any grievances for having taken away licence from him by the crime branch, it is for the first time by way of Further Statement this new case has been put up and it being an after-thought, cannot be said to be a genuine defence. (viii) The unauthorized possession of the weapons itself is sufficient evidence and when the said were discovered at the instance of the accused, it clearly shows that all these weapons were acquired by the accused to be used for terrorist act and to strike terror. That being so, the intention of the accused can safely be inferred as is clear from the facts and circumstances of this case. (ix) The intimacy of the accused with proclaimed offender and the kingpin religious leader Mufti Sufiyan, Sohailkhan, etc. can also
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be clearly revealed. (x) The importance of proclaimed offender Mufti Sufiyan as a key conspirator can be read from the oral evidence of PW 58 and many such other witnesses. (xi) The opinion of FSL can clearly be seen to have been linking this accused with the crime. (xii) PW 104 is another such witness who spoke lie on oath at the instance of A-20 as can be clearly seen on record. (xiii) Confessional statement of this accused at Exh. 945 is on record upon perusal of which it becomes clear that the accused was running a shop known as Hitech Electronic wherein he was doing the work of repair of tape, T.V. etc. This would suggest that the accused has no business in which he needs to keep any kind of weapons or he needs to develop any kind of intimacy with the proclaimed offenders or the principal conspirators. This is also the circumstance which links the accused with the crime. (xiii) In the confessional statement the accused has further confessed that he knows the proclaimed offender Mufti Sufiyan of Lal Masjid who runs Madresa there and who was residing in his street previously, the accused and Mufti Sufiyan have brought up together which all show the strong circumstance of probability of closeness and intimacy between the accused and the principal conspirator and kingpin Mufti. (xiv) He has further confessed that Mufti is an expert person in giving religious education, his speech is very greeping and overpowering
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and the accused has constantly remained in close contact with said Mufti. (xv) So many Muslims youth used to come to meet Mufti like the accused, Mufti used to say all about the attack by America on Muslims, he used to give many speeches and was always provoking the people to join Jehad and was talking to save the Muslim community and that because of the lectures of the said proclaimed offender Mufti, there was provocation and sense of revenge, retaliation and Jehad among the Muslims. (xvi) The accused has further confessed that in April 2002, the proclaimed offender Mufti called him and other co-accused and told to bring umbrella bomb and the said were then arranged, the frequent meetings have been confessed at Lal Masjid to settle the account and to take revenge for the loss suffered by the Muslim community during the riots, the participation of this accused in other conspiracies have even been confessed, the fact of the unauthorized possession of the weapons has also been confessed in a way that the weapons were given to him by proclaimed offender Mufti which he gave to somebody else and the said pistols were kept by the accused with him, the accused was also told to be ready to go for terrorist training and then ultimately he had been for terrorist training from the route of Ahmedabad to Bombay, Bombay to Dubai and Dubai to Pakistan. The terrorist training was taken by the accused in November 2002. The accused has also knowledge about the networking of the proclaimed offender Rasulkhan Party with ISI, Lashkar-EToiba, Jaish-E-Mohammad etc., it has been further confessed that to teach lesson to Hindus he was told to persuade other Muslim youth and the accused has worked as a main person for the
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campaign to send Muslim youth for the terrorist training, the accused has also confessed that he was admired for doing good work with reference to the terrorist act, the accused has confessed his role as far as sending Rs.10,000/- by Havala at Kolkatta through PW 71 & 72 (this tallies with the oral evidence of PW 71 & 72 and the bank document, this is with reference to the visit of A-1, A-2, A-3 & A-5 at Kolkatta), the accused has confessed that he was given training of operating and working of mass killing weapons like AK-47 and training for blasting the bomb, on say of the proclaimed offender Mufti Sufiyan, this accused has also kept one motor-cycle which was the goods of theft, in February 2003 the accused had been to Surat on say of proclaimed offender Mufti in company of the co-accused wherefrom also he has received two of the weapons, the fact about different conspiracies has also been confessed, the frequency of receiving the weapons and handing them over to the person told by proclaimed offender Mufti has been repeatedly found, the role of the proclaimed offender Sohailkhan has also been stated by the accused, the accused has further confessed that frequent meetings were held, frequent planning for terrorist activities was made, his role in murder of Haren Pandya has also been confessed along with confession about the knowledge and role in other conspiracies. (xvii) In light of all the above glimpses from the confessional statement of this accused, it becomes extremely clear that this accused was clearly linked with the criminal conspiracy along with other offences. The circumstances so strongly point out the role and participation of this accused in the crime. This Court has therefore no hesitation to hold that this is also one of the accused who is clearly involved and linked with the criminal conspiracy hatched
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by the accused in this case. Finding : In light of the above discussion, the defences raised by this accused are not found to be genuine and acceptable one. A-20 is hereby held guilty under the three offences. (P) (i) A-22 : Through the Further Statement and otherwise, this accused has mainly put forth his defence of his innocence on certain aspects, his ignorance on certain aspects and his denial for almost whole of the prosecution case. (ii) Exh. 736 and Exh. 643 respectively are panchnama of revolver and cartridges recovered at the instance of A-22 and PW 95 to have produced all the material discussed in case of A-20 and A21 which as discussed is showing a strong link between this accused, other accused and the proclaimed offenders. All the discussion in case of A-22 qua the panchnama is also applicable to this accused. (iii) The recovery of the weapon being without any explanation and justification for conscious and exclusive possession of A-22 is the circumstance which is clearly revealing that the unauthorized possession of this accused of the weapon and cartridges can only be linked with his intention to strike terror and having done the terrorist act in addition to the fact that this accused is also directly and clearly involved in criminal conspiracy hatched among the accused. As per the FSL report, the weapons and cartridges were in working condition and live.
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(iv)
The oral evidence of PW 63 read with Exh. 990 to 998 shows the telephonic conversation between A-1, A-4 and A-22 which shows their tie.
(v)
PW 90 is the father of this accused who brings on record Exh. 1057 passport of A-22. The rubber stamps on the passport of Kenya Immigration Officer and UAE of 8/12/2002 and thenafter the said both stamps of 14/1/2003 and 15/1/2003 are pointing to the conduct of A-22 and his illegal activities. In para 264, PW-199 has clarified that the endorsement of Kenya embassy were forged as conveyed by Kenya embassy.
(vi)
A-22 has also given confessional statement at Exh. 944 wherein his mobile phone number, the fact of his doing business of belts is clearly revealed. This mobile number can be seen in the printout of the relevant time to have been dialed by A-1, A-4, etc. which shows their contact. The retail business of selling the belts is not such wherein the accused is required to be in contact with proclaimed offenders or to do any journey with them or to keep weapons in his possession. Moreover, the accused has not given any justification for keeping the weapons.
(vii)
The accused has confessed that he came in contact with the proclaimed offender Mufti of Lal Masjid. He used to attend the programme of 9 p.m. to 10 p.m. at Lal Masjid of offering Namaz and then reading the Kuran and lecture by proclaimed offender Mufti, he used to travel and frequently meet proclaimed offender Mufti who used to give religious lectures and was criticizing the torture on Muslims anywhere in the world and was provoking to
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JUDGMENT
oppose the said cruelty on Muslims, after February 2002 the communal riots broke out wherein there was tremendous loss of lives and properties of Muslims, the daughters and sisters of Muslims were molested, police and politicians were not with Muslims and as said by Mufti, it was time for Jehad. The proclaimed offender Mufti was giving call for help for all these causes and was provoking Muslims. (viii) The proclaimed offender Mufti told in the month of April 2002 to the accused that to frighten and terrorize Hindus and to take the morale of Muslims high, tiffin bombs have been prepared and upon asking the accused has shown his readiness to plant the bomb. (ix) The accused has confessed about having kept revolvers and cartridges and such transactions with the co-accused in the distribution for the same. (x) This accused also admits to have called for terrorist training and his connection with the proclaimed offender Rasulkhan, to have taken training of weapons, chemical powder, liquid, etc. and the fact that bogus passports were ensured to be arranged and certain accused to have gone to Pakistan illegally via Kolkatta. The accused has also confessed in great detail about his involvement in different conspiracies including to do away with senior police officers, use of code word message, active role in other conspiracies of the POTA cases and securing financial help and help of weapons from different persons. and his involvement in many transactions of weapons and cartridges and
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JUDGMENT
(xi)
There does not seem to be any truth in the defence raised and the above discussed material satisfactorily and beyond reasonable doubt establish the involvement of the accused in the crime. Finding : In light of the above discussion, the defences raised by this accused are not found to be genuine and acceptable one. A-22 is hereby held guilty under the three offences.
(Q) (i)
A-31 : Through the Further Statement and otherwise, this accused has mainly put forth his defence of his innocence on certain aspects, his ignorance on certain aspects and his denial for almost whole of the prosecution case.
(ii)
This accused in his Further Statement at page 8 alleges to have been kept in the Crime Branch for 3 months and on page 21 he states to have been illegally detained for 3 months and then immediately he corrects it and states that he was kept in illegal detention for 4 months. Though this already has been discussed, it is here noted to highlight the conduct of this accused of levelling untrue allegations. In the written reply with the Further Statement, he states to have been in the illegal custody from 8/5/2003. At the same time, he states that the confessional statement dated 8/8/2003 is not genuine. Noting the discrepancy in the period of illegal detention as stated by the accused in two different breaths and in view of overall material emerging on record against the accused, the defence of the accused does not seem to be genuine one.
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JUDGMENT
(iii)
In light of oral evidence of PW 88, 42, 180 and panchnama Exh. 801, it seems that A-31 has constantly remained in telephonic contact through STD PCO with key conspirator and proclaimed offender Rasul Party.
(iv)
Exh. 1479 is the panchnama through which at the instance of this accused, 7 different sites from where the accused had talked through PCO to Rasulkhan Party stands proved on record.
(v)
Vide the panchnama, A-31 has also discovered the fact that he has seen the godown which he had gone to see under the instructions of Rasulkhan to hide the weapons.
(vi)
Vide panchnama Exh. 711, a countrymade revolver and 3 cartridges have been recovered from A-31 which were in conscious and exclusive possession of A-31 which was not supported by any permit, licence, etc. This unauthorized possession can only be with the intention in the charged offences.
(vii)
From the oral evidence of PW 162 and panchnama Exh. 1319, the chit written by Rukhsana, wife of proclaimed offender, was brought by A-3 from Karachi which was instructed to be given to A-20 and then to A-31. This is also revealing that A-31 was close aide of Rasulkhan Party.
(viii)
The FSL expert has opined the weapons to be in working condition and cartridges to be live.
(ix)
The confessional statement at Exh. 953 corroborated by the above material has even been perused. From this it seems that the accused has confessed that originally he was in employment
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JUDGMENT
of Don Abdul Latif which employment was arranged for him by proclaimed offender Rasulkhan in the year 1992, the proclaimed offender Sharifkhan and other co-accused were introduced to the accused who were in Latif gang. This accused has been involved in 15 contested cases like Radhika Gymkhana, Rauf Valiullah murder case and cases of bomb blast. He has confessed of his close contacts with certain co-accused, his involvement in the fiscal transaction connected to the proclaimed offender, his involvement of the incident after the communal riots and his sense of revenge for the loss suffered by the Muslims in communal riots and his commitment to work for the community, he confesses to have talked with the proclaimed offender which tallies with the prosecution case of this accused being in constant contact with the proclaimed offender. (x) This accused has admitted to have gone to see and decide the place of godown near Sanand to conceal the weapons and his involvement in the chit in February 2003, to have been an instrument in managing for payment to proclaimed offender Mufti obviously for the offences, he also confesses to have been arrested (as per the prosecution case which throws on ground his claim of illegal detention) and at the time of his personal search to have illegal custody of revolver and cartridges and to be in company of the co-accused. (xi) Putting all these things together, only one irresistible conclusion can be drawn that this accused is actively involved in the criminal conspiracies for which he has been charged and all the acts and omissions he did were with the sole intention to strike terror and doing terrorist act.
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JUDGMENT
(xii)
There does not seem to be any truth in the defence raised and the above discussed material satisfactorily and beyond reasonable doubt establish the involvement of the accused in the crime. Finding : In light of the above discussion, the defences raised by this accused are not found to be genuine and acceptable one. A-31 is hereby held guilty under the three offences.
(R) (i)
A-32 & A-33 : Through the Further Statement and otherwise, both these accused have mainly put forth his defence of their innocence on certain aspects, their ignorance on certain aspects and their denial for almost whole of the prosecution case.
(ii)
In case of A-32, he has further submitted that he was illegally detained, his wife has filed a writ petition before Hon'ble the Gujarat High Court because of which they were shifted to some another place, the accused were brought by flight and not by train, the documentary evidence of writ petition, its order, the character certificate by the D.M., Poonch (J & K) for the accused etc. have been produced along with Further Statement.
(iii)
In the discussion at the relevant place in this judgment, this document have been dealt with. The character certificate cannot provide any valid defence. It is held that it s not the case of illegal detention and that the defence to the said extent has not been found to be with any substance.
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(iv)
In case of A-33, more or less same defence has been raised which has also been dealt with.This Court does not find any substance raised in the defence by this accused.
(v)
In the light of oral evidence of PW 31, 41, the report of late Shri Chauhan, the oral evidence of I.O. and the muddamal list, it is clearly emerging that from A-32 a pistol made in USA and from A33, eight cartridges have been seized by the police during their personal search, while both the accused came from Ajmer to Ahmedabad, the muddamal description is very much on record along with the name of the respective accused, the FSL report also ties the accused with the crime in as much as the pistol was in working condition and the cartridges were found live. There is no justification or plausible explanation by either of the accused for unlawful custody of the weapons and cartridges which can only be concluded with the intention to strike terror and being part and parcel of the criminal conspiracy hatched, the illegal custody of weapon and cartridges does not go with their occupation.
(vi)
If all the above things collectively seen and read, there can be only one conclusion that the accused are involved in the three offences under the discussion.
(vii)
As far as A-32 is concerned, his confessional statement at Exh. 979 is on record which shows his business to be of fruits and transport and he belongs to Jammu & Kashmir. It is also clear from the statement that A-33 is a foreman. Thus, the occupation as discussed above of both the accused has nothing to do with the act and omission complained of against them.
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(viii)
The accused confesses that after the Godhra incident, while the communal riots were broke out, A-32 started a factory near his house which was damaged and sabotaged by Hindus and in the same way the garage of A-33 was also broken in the communal riots, because of this position, both the accused along with their families had been to native place, Dist. Pooch at Jammu & Kashmir where the accuse met with one person who was constantly talking about loss to Muslims and that the sense of revenge developed in the mind of this accused, he further confessed that the person at his native place has connection with Jash-E-Mohammad and Lashkar-E-Toiba at whose residence terrorists used to visit. The accused further confessed that after the normalcy in the city, they have returned from Jammu & Kashmir, the accused learnt about Mufti of Lal Masjid and talk of revenge, the accused met Mufti who told about need of money and weapons for the community, thenafter the accused met Mufti frequently, the accused therefore gave weapons brought by him from J & K to the co-accused, these weapons were given to him by a person at J & K. This accused was told to take away with him two cartons of weapons with the apples in the truck with him which he did not bring. This fact speaks of his intimacy with such persons who were dealing in weapons. The accused admits to have been handed over Rs.1,25,000/-, weapon and cartridges while starting from J & K with which he along with the co-accused was caught by police.
(ix)
The confessional statement of A-32 gets corroboration from the above referred facts which strengthen the prosecution case.
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Finding : In light of the above discussion, the defences raised by these accused are not found to be genuine and acceptable one. A-32 & A-33 are hereby held guilty under the three offences. (S) (i) A-50 : Through the Further Statement and otherwise, this accused has mainly put forth his defence of his innocence on certain aspects, his ignorance on certain aspects and his denial for almost whole of the prosecution case. (ii) As has been discussed in great depth, this accused has not been justly implicated in POTA. It has been held that it is not lawful to apply POTA in the case of A-50. Thus, the charges against this accused as far as POTA Sections are concerned have obviously to be held to have been failed. (iii) The specific prosecution case against this accused is to have hatched criminal conspiracy with A-49, A-51 and A-52, but against all the three accused the POTA case did not sustain as they have been exonerated from the POTA charges. Thus, in nutshell, from the group of 4 accused, only this accused remains. For the charge of criminal conspiracy, at least two accused are required, but this accused is alone. Hence the vital requisite for criminal conspiracy does not stand satisfied. Hence this accused cannot be held guilty for the criminal conspiracy with A-49, A-50 and A-51. (iv) The prosecution has not shown an iota of evidence against this accused to have entered into any agreement to do any illegal act or an act to constitute criminal conspiracy with any other accused
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JUDGMENT
other than A-49, A-51 and A-52. Hence the requisites u/s 120-A of IPC against this accused does not stand satisfied. Hence the accused in any case cannot be held guilty for the charge u/s 120B of IPC and for Section 3(3) of POTA (even if applicable). (v) There is no other material to hold the accused guilty to have committed terrorist act. Hence the accused cannot be held guilty u/s 3(1)(a) of POTA (even if applicable). (vi) The only one evidence proved beyond reasonable doubt against this accused is of having illegal possession of weapons and cartridges for which the accused, as discussed earlier, has been held guilty under the Arms Act, but there is nothing on record in form of oral evidence, documentary evidence or even circumstantial evidence to hold the accused guilty under any of the Sections under the discussion. (vii) The act and omission for which the accused has been held guilty under the Arms Act appears to be clearly his individual act and omission and there is nothing to join him in concert or league or collective wrong with the remaining accused being tried. (viii) Considering all the above, this Court is inclined to hold that the A50 needs to be given benefit of doubt under all the three Sections under the discussion. Finding : A-50 is hereby held to be entitled to and granted accordingly benefit of doubt for the charge under all the three offences under the discussion.
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JUDGMENT
FINAL CONCLUSION : (a) Having given the bestowed consideration to the entire facts and circumstances of this case, this Court is of the opinion that looking to the systematic, deliberated and pre-meditated conspiracy hatched by all the accused, the preparation made and the amount of the accused proves it to be clearly a larger conspiracy which was directed to a wider target. No doubt is left in the judicial mind about the intentions in the mind of the accused of striking terror in the people, threatening the unity, integrity, security and/or sovereignty of India and that all the preparations were aimed to realize those intentions. As has been discussed, over devotion to the principle of benefit of doubt would amount to entertain untenable doubts and unrealistic possibilities. The defence through the Further Statement as well as through the crossexamination and submissions have been held to be devoid of merits in case of the accused who have been held guilty. Considering the fact that the terrorism has become a challenge for the whole world, the acts and omissions of the accused in this case cannot be taken lightly when in all human probability, it is clear beyond any reasonable doubt that the charged offences for which the accused have been held guilty must have been committed by these accused. (b) There does not appear any vital or serious infirmity in the prosecution case. It is true that our investigating agencies now need to be more trained, more equipped and more leaning to take aid of professionals and scientists in the investigation of crime, but merely because such aid has not taken to an extent desired by the defence the offences proved against the accused cannot be taken
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JUDGMENT
light heartedly because after all safety of the society and worth of human person are very important components. (c) About 42 accused are absconding and that all the accused are facing charge u/s 120-B of the IPC and u/s 3(3) of the POTA, hence it does not sound to be just and proper to pass any order as far as muddamal the case properties of this case is concerned. (d) In the light of the fact that the case against the absconding and proclaimed offenders is yet to be tried, it is necessary to give direction to the registry for keeping certified copy of R & P. (e) While passing the order below Exh. 469, the property known as Green Bungalow has been attached which clearly seems to be owned and possessed by proclaimed offender Sharifkhan though the property has been shown on the name of original owners which merely seems to be a camouflage. Since the objections raised by the objectors original owners of the Green Bungalow vide Criminal Misc. Application No. 3266/07 have been decided by this Court in favour of the prosecution, it seems necessary to give effect of the said order in the case. It is however clear that the forfeiture of the property can be ordered only in case of conviction, but the attachment needs to be finalised. (f) Considering all the above discussion and the final findings about the guilt of the accused and about grant of benefit of doubt, the following final order is necessitated :
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FINAL ORDER
(a)
All the 44 accused have been granted benefit of doubt u/s. 121, 121-A, 122, 123, 212 read with Section 120-B of I.P.C, u/s.
25(1A), 25(1AA), 27, 29 of Arms Act and u/s. 3(4), 3(1)(b), 10, 20, 21(2)(b), 22(3)(a),(b) of POTA read with Section 120-B of I.P.C.
(b-1) A-5 (Munawar Baig @ Captain Yakub Baig Mirza), A-21 (Shahnawaz @ Shanu Mohammed Hussain Gandhi), A-42 (Javed Hamidullah Siddique) are hereby held guilty u/s. 3(1)(a), 3(3) read with Section 120-B of I.P.C. and u/s. 120-B of I.P.C. (b-2) The following accused have been held guilty u/s. 3(1)(a), 3(3) and 4 of POTA read with Section 120-B of I.P.C. and u/s.120-B of I.P.C. : A-1 (Mohammed Parvez S/o Abdul Kaiyum Shaikh), A-2 (Mohammed Yunus Abdul Rahim Sareshwala), A-3 (Mohammed Riyaz @ Goru S/o Abdul Wahid Sareshwala), A-4 (Rehan Abdul Majid Puthawala), A-6 (Afzalkhan @ Babu Murtuzakhan Pathan), A-7 (Idrishkhan Yakubkhan Pathan), A-8 (Mohammed Zahir Mohammed Iqbal A-9 (Mohammed Tariq Faridbhai Shaikh), A-10 (Mehmood Razasha Saiyed), A-20 (Kalim Ahmed @ kalimullah S/o. Mohammed Habib Karimi), A-22 (Anas Abdul Machiswala), A-23 (Mohammed Farooq @ Haji Farooq Usmangani Shaikh), A-24 (Atthar Parvez Siddiq Mohammed @ Manjukhan Pathan), A-25 (Mohammed Hussain Gulam Hussain Shaikh), A-30 (Mohammed Rafiq @ R.D. Majidkhan Pathan), Shaikh),
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JUDGMENT
A-31 (Gulammohammed @ Gulal S/o. Abdul Kadar Shaikh), A-32 (Abdul Latif @ Kashmiri Lala Mohammed Hasan Pathan), A-33 (Aiyubkhan Mohammed Rafiq Pathan) The remaining accused except mentioned in (b-1) & (b-2) have been granted benefit of doubt under these sections. (c) The following accused have been held guilty u/s. 25(1B)(a) of Arms Act : A-1 (Mohammed Parvez S/o Abdul Kaiyum Shaikh), A-2 (Mohammed Yunus Abdul Rahim Sareshwala), A-3 (Mohammed Riyaz @ Goru S/o Abdul Wahid Sareshwala), A-4 (Rehan Abdul Majid Puthawala), A-6 (Afzalkhan @ Babu Murtuzakhan Pathan), A-7 (Idrishkhan Yakubkhan Pathan), A-8 (Mohammed Zahir Mohammed Iqbal A-9 (Mohammed Tariq Faridbhai Shaikh), A-10 (Mehmood Razasha Saiyed), A-20 (Kalim Ahmed @ kalimullah S/o. Mohammed Habib Karimi), A-22 (Anas Abdul Machiswala), A-23 (Mohammed Farooq @ Haji Farooq Usmangani Shaikh), A-24 (Atthar Parvez Siddiq Mohammed @ Manjukhan Pathan), A-25 (Mohammed Hussain Gulam Hussain Shaikh), A-30 (Mohammed Rafiq @ R.D. Majidkhan Pathan), A-31 (Gulammohammed @ Gulal S/o. Abdul Kadar Shaikh), A-32 (Abdul Latif @ Kashmiri Lala Mohammed Hasan Pathan), A-33 (Aiyubkhan Mohammed Rafiq Pathan) and A-50 (Mustaqali Abbasali Saiyed) Shaikh),
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JUDGMENT
All the learned Advocates for the parties are hereby directed to argue out on quantum of the sentence to be given to the accused.
This Court has already expressed a specific opinion that the prosecution witnesses mentioned hereinbelow have knowingly and intentionally given false evidence in the proceedings and that it is expedient, necessary and in the interest of justice that these witnesses be tried for perjury u/s 344 of Cr.P.C. as it seems prima facie that they have committed the offence of giving false evidence. The registry is hereby directed to issue show cause notice to all the witnesses mentioned hereinbelow as to why they should not be punished u/s 344 of Cr.P.C., returnable on 18/2/2010.
LIST OF WITNESSES LIABLE FOR PERJURY
Sr. No. 1 2 3 4 5
P.W.No. 67 74 76 77 78
Name of Witness Tanvir Hussain Sagir Hussain Koza Mohammed Arif Sikanderbhai Mansuri Irfan Rashidbhai Shaikh Kamruddin Kamaluddin Saiyad Shafiqujumma Mohammed Aslam Bangdiwala Abdul Rahim Samsuddin Shaikh Mohammed Junaid Mohammed Miya Shaikh
6 7
80 81
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JUDGMENT
Sr. No. 8 9 10 11 12 13 14 15 16 17
P.W.No. 84 85 88 91 92 97 102 104 148 152
Name of Witness Mohammed Rizwan Mehmood Ansari Mohammed Samim Mohammed Idrish Rajput Abdul Sattar Ibrahim Momin Firozkhan Abdulrashidkhan Mewati Mohammed Sajid Ahmed Hussain Shaikh Liyakat Hussain Badamiya Shaikh Yusuf Allahbebi Shaikh Abdul Hamid Abdul Rahim Shaikh Mohammed Junaid Abdul Aziz Valsadwala Ayishabibi Samsuddin Shaikh
Pronounced in open Court at Central Jail, Sabarmati, Ahmedabad on 12th day of January 2010.
(Dr. Smt. Jyotsnaben Yagnik) Special Judge under POTA, , Ahmedabad
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FURTHER FINAL ORDER 1. Heard learned Special P.P. Mr. J. M. Panchal for the State
who has mainly submitted that while imposing the sentence, the intention of the legislature needs to be seen and that it should be borne in mind that the punishment imposed should achieve the goals set out by the legislature. The factors which can affect on the sentence are repentance, misconception, force, allurement, etc., but in the case on the hand, such factors have neither been pleaded nor borne out from the record of the case. He has further submitted that if the offence as a whole is to be seen, it is nothing but intentional, systematic and collective drive by all the accused to commit terrorist act. This is the offence which is the offence against the society at large and it is not aimed against the individual. It cannot go out of the mind that the impact of terrorism has created a situation wherein no festivals are being celebrated without any kind of sense of terror and botheration for safety and peace. The object of punishment is to deter the accused and since the crime committed by the accused is most serious and grave in nature, it should be appropriately handled so as to set an example in the society. Some of the accused herein were imparted terrorist training by banned terrorist organisations like Lashkar-E-Toiba, Jaish-EMohammad, etc. and that it is the need of the hour that a loud and clear message must be sent to all those who wish to disrupt India that India would no more take terrorist act. This is possible only by imposing maximum punishment of life imprisonment provided in the law. Upon submitting that the principles laid down in the judgment reported at 2005 S.C.C. (Cri.) 1947 in the matter of State of M.P. V/s. Bala @ Balaram, learned Special P.P. Mr. Panchal has emphasised the principles laid down in para 12, 13, 15 and 16 to submit
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that the impact of the offences in society, the social needs, the gravity of the offence are all the factors which should be borne in mind while deciding the quantum of sentence. The punishment imposed should be fit to the crime committed and that it is the duty of the Court to impose proper punishment depending on degree of criminality. Improper and insufficient punishment can seriously undermine respect for law and that the proper and adequate punishment in the case is only life imprisonment, the maximum punishment provided in the respective Section. He has urged to impose the maximum punishment. 2. Heard Mr. B.M. Gupta, L.A. for accused No. 1 to 4, 6, 20,
21, 22 and 42, Mr. M. I. Laliwala, L.A. for accused No. 5, 7, 8, 10, 30, 31, 33, Mr. M.M. Shaikh, L.A. for accused No. 9, Mr. J. M. Pathan, L.A. for accused No. 23 and 24, Mr. S.A. Khan, L.A. for accused No. 25 and Mr. M.C. Hakim, L.A. for accused No. 50. 3. The learned Advocates for the accused have mainly
submitted as under : (a) All the accused held guilty are Indian nationals and that they belong to minor community. After the incident of Godhra, they have witnessed tremendous loss of lives and properties of Muslims. The circumstances are the important factors while commission of the crime. It has been forcefully submitted that after the loss of lives and loss of property of Muslim community after the Godhra incident there ignited sense of revenge and that the said has ultimately lead them to decide that they were required to do something and it is that sense which has played pivotal role in commission of crime. This needs a special consideration. This Court has pondered over both the submissions. In the humble
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JUDGMENT
opinion of this Court, no suffering is potent enough to justify taking law into one's hand. The act and omission of the accused amount to self-judging the cause which is a serious threat to rule of law and that it is for the said reasons such excuses are incapable to justify the offences committed by the accused and particularly cannot be accepted as mitigating circumstances. (b) It has been submitted that in the offence, no one has been injured, no one has been assaulted, no one has been killed and there is absolutely no report for loss of any property whatsoever. In the humble opinion of this Court, the Parliament in its wisdom did not provide any requisite in form of ingredient to prove the offences either u/s 3(1)(a) and 3(3) of POTA. It cannot go out of the mind that actual death or injury is not at all required to hold the accused guilty for Section 3(1)(a) and 3(3) of POTA. It is only the mens rea of the accused which is a vital test which, as held, stands satisfied in the case on hand. (c) The submission has been put forth that some of the accused have family responsibility, they have their family, small kids, wife, unmarried sisters and that they are businessmen and this is their first offence. This Court humbly but firmly opines that position of the dependents of the accused and the social status of the accused can never play any role once he is held guilty and more particularly looking to the peculiar facts and circumstances in which the crimes have been committed, and viewing the gravity and seriousness of the crimes, grant of the prayed sympathy would be thoroughly misplaced and unwarranted.
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JUDGMENT
(d)
The submission that the offences were concocted by the officers of the Crime Branch and that the weapons were nothing but plantation made by the concerned officers was also emphasised. This Court is of the opinion that this allegation at this stage is such which has neither been pleaded nor proved, hence merely remains an allegation for the sake of allegation and does not carve out a point for consideration as far as imposing the sentence is concerned.
(e)
The submission of some of the accused to have been convicted in the case of murder of late Home Minister Mr. Haren Pandya, the tiffin bomb case and other POTA Cases is not a matter of consideration. As already held, the conspiracies are totally different. In a case when the accused participates in more than one crime, he has to be accordingly adjudged and no special treatment can be given to the person who is convicted of some other crime except to an extent provided in law. Further, this Court is conscious that no two cases can ever be similar on the facts, hence no similar treatment can be offered for the purpose of conviction or while imposing the sentence.
(f)
The contradiction on record, the plantation of weapons and other serious discrepancies on the record need a special consideration is also one of the submissions. This Court is of the opinion that as far as discrepancies, contradictions and plantation are concerned, these are all the points related to merits of the case and while imposing the
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JUDGMENT
punishment, the facts of the case or the arguments advanced at the final stage cannot have any room to decide the quantum of punishment. (g) A forceful submission has also been made that since Section 4 of POTA also provides to impose fine as alternative, this is a fit case wherein only fine should be imposed. This Court is of the opinion that as already held, the accused have been found in conscious, unauthorized and exclusive possession of the weapons, they have neither justified nor carved out a case to the effect that the said weapons were kept by them for the purpose of their own protection or to protect their personal interest and/or it was merely unintentional, temporary possession, that being so, this Court humbly believes that this cannot be termed to be a fit case for imposition of fine alone as far as the guilt u/s 4 of POTA is concerned. (h) Some of the learned Advocates for the defence have urged for bare minimum sentence provided in law. This Court is of the opinion that in the peculiar facts and circumstances of the case, it would amount to mockery of the justice delivery system as the Court cannot forget the gravity and seriousness of the case. 4. While appreciating the settled position of law, principles of
criminology, penology and growing international concern for human rights, following points need a note :
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(a)
Intensification of cross border terrorist activities is a matter of deep concern for the nation.
(b)
Terrorism has acquired global dimension and it is a challenge to the whole world.
(c)
To prevent and suppress terrorist act is the need of every civilized society and that there is a unanimous expectation of the citizens of this nation that the judicial system should curb it with iron hands.
(d)
In the light of the above factual position, the sympathy prayed for by the defence, if granted, would term as misplaced and unwarranted sympathy when the accused have been held guilty for the offences threatening unity, integrity, security of our nation, the activities of the guilty accused were intended to strike terror in the people, the accused have hatched criminal conspiracy of doing and preparing for terrorist act and when most of them had been held guilty for unauthorized and illegal conscious possession of the arms and ammunition in notified area under POTA. The said cause and omissions cannot be taken lightly by the Court.
(e)
The punishment should be tallying with the purpose for which POTA was enacted.
(f)
Quoting the Hon'ble Supreme Court today democracy, state security, sovereignty, integrity and basic human rights are under attack of terrorism and offences against humanity, unity, integrity, secularism are challenges to the civilized society.
POTA/12/2003
825
JUDGMENT
(h)
While considering and bearing in mind the above points, it is necessary at the same time to consider the young age of most of the accused, the time this trial has taken and considering that by afflux of time, circumstances and socio-political reasons must have changed, this Court should also balance between reformative and punitive objects of the punishment.
(i)
Considering all the above points and giving cumulative effects to the above points, following further final order is necessitated : FURTHER FINAL OPERATIVE ORDER
(1)
For the offence u/s 25(1B)(a) of the Arms Act, the following nineteen accused shall undergo rigorous imprisonment for 3 (three) years and shall pay the fine of Rs.5,000/- (Rupees Five Thousand only), in default in paying the fine the accused to undergo simple imprisonment for 3 (three) months. A-1 (Mohammed Parvez S/o Abdul Kaiyum Shaikh), A-2 (Mohammed Yunus Abdul Rahim Sareshwala), A-3 (Mohammed Riyaz @ Goru S/o Abdul Wahid Sareshwala), A-4 (Rehan Abdul Majid Puthawala), A-6 (Afzalkhan @ Babu Murtuzakhan Pathan), A-7 (Idrishkhan Yakubkhan Pathan), A-8 (Mohammed Zahir Mohammed Iqbal Shaikh), A-9 (Mohammed Tariq Faridbhai Shaikh), A-10 (Mehmood Razasha Saiyed), A-20 (Kalim Ahmed @ kalimullah S/o. Mohammed Habib Karimi), A-22 (Anas Abdul Machiswala), A-23 (Mohammed Farooq @ Haji Farooq Usmangani Shaikh), A-24 (Atthar Parvez Siddiq Mohammed @ Manjukhan Pathan),
POTA/12/2003
826
JUDGMENT
A-25 (Mohammed Hussain Gulam Hussain Shaikh), A-30 (Mohammed Rafiq @ R.D. Majidkhan Pathan), A-31 (Gulammohammed @ Gulal S/o. Abdul Kadar Shaikh), A-32 (Abdul Latif @ Kashmiri Lala Mohammed Hasan Pathan), A-33 (Aiyubkhan Mohammed Rafiq Pathan) and A-50 (Mustaqali Abbasali Saiyed) (2) For the offence u/s. 3(1)(a) of POTA read with Section 120-B of I.P.C., the following 21 (twenty one) accused shall undergo rigorous imprisonment for 9 (nine) years and shall pay the fine of Rs.9,000/- (Rupees Nine Thousand only), in default in paying the fine the accused to undergo simple imprisonment for 6 (six) months. A-1 (Mohammed Parvez S/o Abdul Kaiyum Shaikh), A-2 (Mohammed Yunus Abdul Rahim Sareshwala), A-3 (Mohammed Riyaz @ Goru S/o Abdul Wahid Sareshwala), A-4 (Rehan Abdul Majid Puthawala), A-5 (Munawar Baig @ Captain Yakub Baig Mirza) A-6 (Afzalkhan @ Babu Murtuzakhan Pathan), A-7 (Idrishkhan Yakubkhan Pathan), A-8 (Mohammed Zahir Mohammed Iqbal Shaikh), A-9 (Mohammed Tariq Faridbhai Shaikh), A-10 (Mehmood Razasha Saiyed), A-20 (Kalim Ahmed @ kalimullah S/o. Mohammed Habib Karimi), A-21 (Shahnawaz @ Shanu Mohammed Hussain Gandhi), A-22 (Anas Abdul Machiswala), A-23 (Mohammed Farooq @ Haji Farooq Usmangani Shaikh), A-24 (Atthar Parvez Siddiq Mohammed @ Manjukhan Pathan), A-25 (Mohammed Hussain Gulam Hussain Shaikh), A-30 (Mohammed Rafiq @ R.D. Majidkhan Pathan),
POTA/12/2003
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JUDGMENT
A-31 (Gulammohammed @ Gulal S/o. Abdul Kadar Shaikh), A-32 (Abdul Latif @ Kashmiri Lala Mohammed Hasan Pathan), A-33 (Aiyubkhan Mohammed Rafiq Pathan) and A-42 (Javed Hamidullah Siddique) (3) For the offence u/s. 3(3) of POTA read with Section 120-B of I.P.C., the following 21 (twenty one) accused shall undergo rigorous imprisonment for 9 (nine) years and shall pay the fine of Rs.9,000/- (Rupees Nine Thousand only), in default in paying the fine the accused to undergo simple imprisonment for 6 (six) months. A-1 (Mohammed Parvez S/o Abdul Kaiyum Shaikh), A-2 (Mohammed Yunus Abdul Rahim Sareshwala), A-3 (Mohammed Riyaz @ Goru S/o Abdul Wahid Sareshwala), A-4 (Rehan Abdul Majid Puthawala), A-5 (Munawar Baig @ Captain Yakub Baig Mirza) A-6 (Afzalkhan @ Babu Murtuzakhan Pathan), A-7 (Idrishkhan Yakubkhan Pathan), A-8 (Mohammed Zahir Mohammed Iqbal Shaikh), A-9 (Mohammed Tariq Faridbhai Shaikh), A-10 (Mehmood Razasha Saiyed), A-20 (Kalim Ahmed @ kalimullah S/o. Mohammed Habib Karimi), A-21 (Shahnawaz @ Shanu Mohammed Hussain Gandhi), A-22 (Anas Abdul Machiswala), A-23 (Mohammed Farooq @ Haji Farooq Usmangani Shaikh), A-24 (Atthar Parvez Siddiq Mohammed @ Manjukhan Pathan), A-25 (Mohammed Hussain Gulam Hussain Shaikh), A-30 (Mohammed Rafiq @ R.D. Majidkhan Pathan), A-31 (Gulammohammed @ Gulal S/o. Abdul Kadar Shaikh), A-32 (Abdul Latif @ Kashmiri Lala Mohammed Hasan Pathan),
POTA/12/2003
828
JUDGMENT
A-33 (Aiyubkhan Mohammed Rafiq Pathan) and A-42 (Javed Hamidullah Siddique) (4) For the offence u/s. 120-B of I.P.C., the following 21 (twenty one) accused shall undergo rigorous imprisonment for 9 (nine) years and shall pay the fine of Rs.9,000/- (Rupees Nine Thousand only), in default in paying the fine the accused to undergo simple imprisonment for 6 (six) months. A-1 (Mohammed Parvez S/o Abdul Kaiyum Shaikh), A-2 (Mohammed Yunus Abdul Rahim Sareshwala), A-3 (Mohammed Riyaz @ Goru S/o Abdul Wahid Sareshwala), A-4 (Rehan Abdul Majid Puthawala), A-5 (Munawar Baig @ Captain Yakub Baig Mirza) A-6 (Afzalkhan @ Babu Murtuzakhan Pathan), A-7 (Idrishkhan Yakubkhan Pathan), A-8 (Mohammed Zahir Mohammed Iqbal Shaikh), A-9 (Mohammed Tariq Faridbhai Shaikh), A-10 (Mehmood Razasha Saiyed), A-20 (Kalim Ahmed @ kalimullah S/o. Mohammed Habib Karimi), A-21 (Shahnawaz @ Shanu Mohammed Hussain Gandhi), A-22 (Anas Abdul Machiswala), A-23 (Mohammed Farooq @ Haji Farooq Usmangani Shaikh), A-24 (Atthar Parvez Siddiq Mohammed @ Manjukhan Pathan), A-25 (Mohammed Hussain Gulam Hussain Shaikh), A-30 (Mohammed Rafiq @ R.D. Majidkhan Pathan), A-31 (Gulammohammed @ Gulal S/o. Abdul Kadar Shaikh), A-32 (Abdul Latif @ Kashmiri Lala Mohammed Hasan Pathan), A-33 (Aiyubkhan Mohammed Rafiq Pathan) and A-42 (Javed Hamidullah Siddique)
POTA/12/2003
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JUDGMENT
(5)
For the offence u/s. 4 of POTA, the following 18 (eighteen) accused shall undergo rigorous imprisonment for 10 (ten) years and shall pay the fine of Rs.10,000/- (Rupees Ten Thousand only), in default in paying the fine the accused to undergo simple imprisonment for 10 (ten) months. A-1 (Mohammed Parvez S/o Abdul Kaiyum Shaikh), A-2 (Mohammed Yunus Abdul Rahim Sareshwala), A-3 (Mohammed Riyaz @ Goru S/o Abdul Wahid Sareshwala), A-4 (Rehan Abdul Majid Puthawala), A-6 (Afzalkhan @ Babu Murtuzakhan Pathan), A-7 (Idrishkhan Yakubkhan Pathan), A-8 (Mohammed Zahir Mohammed Iqbal Shaikh), A-9 (Mohammed Tariq Faridbhai Shaikh), A-10 (Mehmood Razasha Saiyed), A-20 (Kalim Ahmed @ kalimullah S/o. Mohammed Habib Karimi), A-22 (Anas Abdul Machiswala), A-23 (Mohammed Farooq @ Haji Farooq Usmangani Shaikh), A-24 (Atthar Parvez Siddiq Mohammed @ Manjukhan Pathan), A-25 (Mohammed Hussain Gulam Hussain Shaikh), A-30 (Mohammed Rafiq @ R.D. Majidkhan Pathan), A-31 (Gulammohammed @ Gulal S/o. Abdul Kadar Shaikh), A-32 (Abdul Latif @ Kashmiri Lala Mohammed Hasan Pathan) and A-33 (Aiyubkhan Mohammed Rafiq Pathan)
(6)
Upon finally deciding and disposing of Criminal Misc. Application No. 3266/07 and upon giving effect of the said application by attaching the order passed below the Criminal Misc. Application along with Exh. 469 in the case, the order of attachment passed in the property vide Exh. 469 for the property known as Green
POTA/12/2003
830
JUDGMENT
Bungalow situated in District Sub-District Ahmedabad, in city of Ahmedabad in the area of Mirzapur bearing City Survey No. 1452 to 1464, the Northern side of which is Mirzapur Court Complex, on the Southern side is Roopmati Mosque and on the Eastern side, Mirzapur Nahar Commercial Centre is hereby continued to be in attachment until the trial against proclaimed offender Sharifkhan gets over on the following terms : (i) The Registrar of this Court and the Deputy Registrar Shri R. D. Goswami of this Court (Shri Goswami, at present working at CBI Courts of City Civil Court, Ahmedabad) are hereby appointed as Receiver and Co-Receiver respectively for the Green Bungalow. (ii) The transfer of Green Bungalow to anyone in any manner until the trial against proclaimed offender Sharifkhan gets over is hereby injuncted. (iii) The Receiver and Co-Receiver shall be paid the remuneration of Rs. 500/- and Rs. 250/- per month respectively for the performance of their duties as Receiver and Co-Receiver, who both shall have all the rights and shall perform all the duties in accordance with Order 40 of the Code of Civil Procedure, 1908. (iv) The Court Receiver shall maintain proper accounts for the income and expenditure of the property, shall take due care to protect the interest of the property in accordance with law and by following due procedure. (v) Yadi of this Court shall be sent to the office of Sub-Registrar, Ahmedabad City, to the Collector of Ahmedabad City and to the Principal Secretary, State of Gujarat, Gandhinagar for their knowledge, necessary action and for compliance of the order passed hereinabove.
POTA/12/2003
831
JUDGMENT
(7)
The prosecution has given application Exh. 2179 to submit that the case properties in this case shall not be disposed of noting the fact that two of the Sessions Cases which have been transferred by this Court require the said properties. Moreover, noting the fact that about 42 accused are still absconding including the proclaimed offenders and that two Criminal Appeals are pending before Hon'ble the High Court of Gujarat arising from the order passed in this case by the learned predecessor of this Court. Considering all the said aspects, it seems that the case properties the muddamal of the case would be needed for the above pending litigations as all the above accused are facing charge u/s 120-B of I.P.C. and Section 3(3) of POTA. The Registry is therefore directed to preserve all the case properties of this case.
(8)
The investigating agency has tendered original case diary, the same shall remain as part of the record in a sealed cover.
(9)
In view of the fact that about 42 accused are absconding including the proclaimed offenders, the Registry is also hereby directed to keep one set of certified copies of entire R & P except the exemption applications and adjournment applications to use the same while the trial of the absconding accused and or the proclaimed accused etc.
(10)
Vide Exh. 1727, this Court has passed the order of keeping the letter box for the undertrial prisoners of this case. Since the case has been finally disposed of today, it is hereby declared that the said order ceases to be in operation. The Sheristedar of this Court shall hand over the key of the said letter box to the Jail Authority.
(11)
All the sentences for every accused shall run concurrently and the
POTA/12/2003
832
JUDGMENT
time spent by the undertrial prisoner shall be given set off to each of the convict accused. (12) In case of the accused who have been convicted in other POTA Cases, the sentences imposed to them shall run concurrently with the previous sentence imposed on them in other POTA Cases. (13) The bail bonds of A-21, A-25 and A-50 shall stand cancelled and they are ordered to be taken into judicial custody forthwith to serve their remaining sentence. (14) The bail bonds of A-34, A-36, A-47, A-48 and A-56 are also ordered to be cancelled. (15) A-16, 17, 18, 19, 26, 27, 34, 36, 38, 39, 40, 41, 43, 44, 45, 46, 47, 48, 53, 54, 55 and 56 have since been granted benefit of doubt, all of them are hereby ordered to be set at liberty forthwith except for the accused who are facing other criminal cases either at Andhra Pradesh or in some other Court. The jail authority shall make necessary arrangement to return all the said accused to the Court where their previous criminal litigations are impending for the trial from where they have been brought for the trial in the case and that in case where these accused are not facing any impending trial and/or if they are not required for any other offence, they shall be set at liberty forthwith. (16) All the accused who have been held guilty and those who have been granted benefit of doubt have been explained in Hindi about the order stated hereinabove.
POTA/12/2003
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JUDGMENT
(17)
This Court records its appreciation for valuable assistance rendered by learned Special P.P. Mr. J. M. Panchal and his team for the State and by all the learned Advocates for the defence and their team members.
(18)
This being a common order for 8 POTA Cases, the copy of this judgment shall be kept on the record of each case mentioned in the title. Dictated and pronounced in open Court at Central Jail,
Sabarmati, Ahmedabad on 12th day of January 2010.
(Dr. Smt. Jyotsnaben Yagnik) Special Judge under POTA, , Ahmedabad

Gujarat ISI Conspiracy Case POTA Court Judgement

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POTA/12/2003

POTA CASE No. 2 OF 2004

POTA CASE No. 2 OF 2005

POTA CASE No. 3 OF 2005

POTA CASE No. 1 OF 2006

POTA CASE No. 1 OF 2007

POTA CASE No. 2 OF 2007

16. 17. 18. 19. 20.

21. 22. 23. 24. 25. 26. 27.

30. 31. 32. 33. 34. 35.

Abdul Latif Gulamali Patel (On bail)

POTA CASE No. 2 OF 2005 48. Mohammed Nasiruddin @ Maulana Nasiruddin

POTA CASE No. 1 OF 2007 54. Arif Abubakar Shaikh

34. 35. 36. 37. 38. 39. 40. 41. 42.

have been arraigned are as under :

444 Mohammed Habib Ahmedmiya Shaikh (Rajput)

Hostile 621 Manishbhai Josephbhai Macwan

636 Bharatbhai Kantibhai Patni

638 Narendra Bechardas Kahar

640 Laljibhai Sakarchand Soni

642 Mohammed Salim Akbarbhai Shaikh

647 Nazir Ahmed Mohammed Hanif Ansari

650 Girishbhai Kanaiyalal Panchal

658 Rajendrabhai Kantilal Patel

Hostile 661 Ravi Muljibhai Malhotra

Hostile 664 Jayeshbhai Vasantlal Shah 665 Biren Jagdishchandra Soni

668 Dixit Jitendrakumar Nayak

673 Prahladbhai Bechardas Thakore

676 Dhirubhai Ranchhodbhai Makwana

Hostile 679 Yunusbhai Valibhai Mansuri

Panch Witness of panchnama Exh. 759, discovery of weapon from A-20

716 Rajeshbhai Lavjibhai Rana

Hostile 724 Kishansingh Durgasingh Tomar

726 Sureshbhai Viraji Mali

730 Anees Ahmed Mohammed Pasina Ansari

733 Mukeshbhai Jaykrushna Tripathi

Hostile 735 Rasikbhai Kantilal Parmar

758 Govindbhai Kanjibhai Solanki

765 Hareshkumar Prafulchand Agrawat 768 Chandubhai Dalsukhbhai Thakore

770 Jaysinh Gulabsinh Parmar 779 Shivabhai Laljibhai Yadav

Hostile 798 Jayantibhai Savdasbhai Sadhu

800 Sabatkhan Mustufakhan Pathan

810 Bharat Pratapbhai Thakore

813 Manubhai Ishwarlal Rathore

FSL (for five bottles)

Person from M. K. Travels

Witness concerns A-31

Hostile 1015 Wasim Yasinbhai Mansuri

Hostile 1019 Irfan Abdul Kadar Khanwala

Hostile 1020 Salim Hasambhai Memon

Hostile 1031 Mohammed Arif Sikanderbhai Mansuri

Hostile 1033 Tanvirkhan Imtiyazkhan Pathan

Hostile 1034 Irfan Rashidbhai Shaikh

Hostile 1035 Kamruddin Kamaluddin Saiyad

Hostile 1039 Abdul Rahim Samsuddin Shaikh

Hostile 1046 Mohammed Samim Mohammed Idrish Rajput

Hostile 1048 Abdul Majid Abdul Kadar Shaikh

Hostile 1051 Jungkhan Sikanderkhan Pathan

Hostile 1053 Abdul Sattar Ibrahim Momin

Father of A-22 to prove passport Exh. 1057

Hostile 1065 Mohammed Samir Siddiquebhai Shaikh

Hostile 1069 Mazhar Mehmood Kansara

Hostile 1070 Liyakat Hussain Badamiya Shaikh

103 Hostile 1082 Abubhai Bodabhai Desai