TMI Blog2014 (5) TMI 1161X X X X Extracts X X X X X X X X Extracts X X X X ..... onviction on such confessional statements. Further, on the facts of the present case, conviction cannot be maintained on the sole testimony of two police officials - enough time was not given to the accused persons to record their confessional statements, particularly in the present case since they were making confessions after 11 months of the incident. Neither the police officer recording the confessional statements nor the CJM followed the statutory mandates laid down in POTA Under Sections 32 and 52 while recording the confessional statements of the accused persons, and we hold that the confessional statements made by A-2, A3, A-4 and A-6 Under Section 32 of POTA are not admissible in law in the present case. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing. Appeal allowed - decided in favor of appellant. - Criminal Appeal Nos. 2295-2296 of 2010 and 45 of 2011 - - - Dated:- 16-5-2014 - A.K. Patnaikand V. Gopala Gowda, JJ. For Appearing Parties: K.T.S. Tulsi, Amarendra Sharan and Ranj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Additionally, A-2 had been charged with offence Under Section 452 of the Indian Penal Code (for entering Akshardham illegally). 7. Additionally, A-6 had been charged Under Section 135(1) of the Bombay Police Act, 1951 (for illegally possessing arms and explosives despite notification, in force, issued by Gandhinagar District Police Official). The Special Court (POTA) framed the aforesaid charges and convicted and sentenced the accused persons as per nature of offences detailed hereunder: Altaf Malek (hereinafter 'A-1') Gathered the Indian Muslims who had gone to Saudi Arabia. Associated with banned organizations like Lashkar-e-Toiba. Collected funds from Jaish-e-Mohammed. Convicted and sentenced under: Section 22(1) of POTA. Rigorous Imprisonment for 5 years with a fine of ₹ 5,000/- and in default of payment of fine, simple imprisonment for 6 months. He was acquitted of rest of the charges. Adambhai Ajmeri (hereinafter 'A-2') Talked to locals to get idea about city, and to get idea about lodging etc. They took him to A-4 and A-5. Received money through Havala. Meeting on 24.06.2002 with witness at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 10,000/- and in case of default, simple imprisonment for 2 years. Section 3(3) read with Section 5 of POTA, Rigorous imprisonment for 10 years and a fine of ₹ 5,000/- and in case of default, simple imprisonment for 1 year. Section 20 of POTA-Rigorous imprisonment for 5 years and fine of ₹ 20,000/- and in case of default, rigorous imprisonment for 1 year. Section 21(2)(b) of POTA-Rigorous imprisonment for 10 years and a fine of ₹ 10,000/- and in case of default, simple imprisonment for 1 year. Section 22(1)(a) of POTA-Rigorous imprisonment for 10 years and a fine of ₹ 20,000/- and in case of default, simple imprisonment for 2 years. Section 120B Indian Penal Code read with Section 4 of Explosive Substances Act-Rigorous imprisonment for 10 years and a fine of ₹ 10,000/- and in case of default, simple imprisonment for 2 years. Section 120B Indian Penal Code read with Sections 3 and 6 of Explosive Substances Act-life imprisonment and fine of ₹ 20,000/-. Section 120B Indian Penal Code read with Section 302 Indian Penal Code-life imprisonment till his natural life (till he is alive) and a fine of ₹ 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 5,000/- in default of payment of fine, a simple imprisonment for 6 months. Section 120B Indian Penal Code read with Section 27 Indian Penal Code of Arms Act, Rigorous imprisonment for 7 years and a fine of ₹ 10,000/-, in default of fine a simple imprisonment for 1 year. Section 120B Indian Penal Code read with Section 121A Indian Penal Code Rigorous imprisonment for 10 years and a fine of ₹ 5,000/- in default of payment of fine, a simple imprisonment for 1 year. The accused was acquitted of the rest of the charges. Accused-5 Abdullamiya Yasinmiya (hereinafter 'A-5') Member of Jaish-e-Mohammed and Lashkar-e-Toiba. Gave shelter to the fidayeens. Dropped them near Kalur Railway Station, had also put them in an ambassador car to take them to the temple. Convicted and sentenced Section 3(3) of POTA-Rigorous imprisonment for 10 years and a fine of ₹ 10,000/- and in default of payment, simple imprisonment for 2 years. The accused was acquitted of the rest of the charges. Accused-6 Chand Khan (hereinafter 'A-6') Met the dead terrorists, also bought an ambassador car worth ₹ 40,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned judgment and order dated 01.06.2010 in Criminal Confirmation Case No. 2 of 2006 along with Criminal Appeal Nos. 1675 of 2006 and 1328 of 2006. 4. Aggrieved by the said impugned judgment and order of the High Court of Gujarat, all the accused persons except A-1 have appealed before this Court challenging the correctness of their conviction and sentences imposed upon them, urging various legal and factual grounds in support of the questions of law raised by them. 5. Certain relevant facts are stated herein below for the purpose of examining the correctness of the findings and reasons recorded by the High Court in the impugned judgment and order while affirming the findings and reasons recorded in the judgment and order passed by the Special Court (POTA). The facts of the incident leading up to the case, the arrest of the accused persons and their trial and conviction are detailed below: On 24.09.2002 at about 4.30 p.m., two persons armed with AK-56 rifles, hand grenades etc. entered the precincts of the Swaminarayan Akshardham temple situated at Gandhinagar, Gujarat from gate No. 3. They fired indiscriminately towards the children, games and rides and started ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offences punishable Under Sections 120B, 302, 307, 153A, 451 of the Indian Penal Code by PW-126. A Report Under Section 157 of the Code of Criminal Procedure (hereinafter 'Code of Criminal Procedure') was also prepared. The same was lodged against the unknown persons aged between 20 to 25 years and the investigation was handed over to Police Inspector Mr. V.R. Toliya (PW-119) of the local Crime Branch, Gandhinagar. It is the case of the prosecution that some articles were received from Brigadier Raj Sitapati, Head of the NSG, which were collected from the clothes of the dead bodies of the fidayeens, and according to them, these articles included two letters written in Urdu language, allegedly found in the pocket of each one of the fidayeens. 8. The investigation of the crime continued for sometime under the said Police Inspector and thereafter, the Anti Terrorist Squad (ATS) was directed by the Director General of police, State of Gujarat to take over the investigation of the case. The investigation continued but nothing fruitful came out of the attempt of the investigating officer to trace the accused persons who were involved in the conspiracy and other offences com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The details of the names of the prosecution witnesses and the dates of examination and the marking of exhibits to them are described in the judgment passed by the Special Court (POTA) and the same need not be adverted to in this judgment as it is unnecessary. 12. The Special Court (POTA) had formulated 8 points for its consideration and answered the same in the judgment by accepting the case of the prosecution and passed an order of conviction against all the accused persons and sentenced A-2, A-4 and A-6 to death, A-3 to life imprisonment, A-1 to rigorous imprisonment for 5 years and A-5 to rigorous imprisonment for 10 years. 13. A reference was made to the High Court of Gujarat Under Section 366 of the Code of Criminal Procedure for confirmation of the death sentence imposed upon A-2, A-4 and A-6. All the accused persons appealed before the High Court against their conviction and sentences imposed on them. 14. The Division Bench of the High Court, after adverting to the charges framed against each one of accused persons under the provisions of POTA, Explosive Substances Act, Arms Act and Indian Penal Code, and the punishment imposed for each one of the offences under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the injured witnesses were examined, which is also adverted to in the impugned judgment and the High Court stated that the casualties are also proved by the postmortem notes Exs. 170 and 171 and by examining various doctors and prosecution witnesses. 17. The High Court in the impugned judgment also noted that there is a reference made to the injuries sustained by the individuals which is proved by the medical certificates and the same have been proved by the doctors. The High Court also referred to handing over of the list (Ex. 524), recovered from the bodies of fidayeens, including notes in Urdu, by Maj. Jaydeep Lamba (PW-91) to PW-126 under Panchnama (Ex. 440) and the same is proved by the Panch-Vinodkumar Valjibhai Udhecha (PW-74). Reference of recovery of white coloured AD Gel pen from the scene of offence under Panchnama (Ex. 650) is proved by the Panch-Hareshbhai Chimanlal Shah (PW-11: Ex. 649). The said pen was sent to the Forensic Science Laboratory (in short 'FSL') under Panchnama (Ex. 621). The FSL report (Ex. 668) confirmed that the Urdu writings (Ex. 658) were in the same ink as that of the muddamal pen. There was also reference made of recovery of muddama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covery of Railway ticket(Ex. 589) from Ahmedabad to Mumbai dated 22.04.2002, communication regarding cancellation of ticket dated 22.04.2002, telephone charge slips and the expense account for mattresses, fan, petrol, food and hotel from the residence of A-2 has been proved by the Panch-Navinchandra Bechardas Kahaar (PW-103: Ex. 585). There is also seizure of the Accounts Diary from Mehboob-ellahi Abubakar Karim (PW-82) to prove receipt of ₹ 10,000/- and ₹ 20,000/- sent from Riyadh and paid to the A-2 under the Code JIHAD under Panchnama (Ex. 481), which is proved by the Panch-Bharatbhai Babulal Parmar (PW-102: Ex. 584). There is recovery of natural handwriting (Ex. 613) of A-4 from a diary identified by him, which was recovered under Panchnama (Ex. 309) and proved by the Panch-Ashok Manaji Marwadi (PW-49:Ex. 308). Collection of the specimen writing (Ex. 698) of A-4 under Panchnama (Ex. 334) is proved by the Panch-Arvindbhai Jehabhai Chavda (PW-58: Ex. 333). The High Court stated that the handwriting expert Jagdishbhai Jethabhai Patel (PW-89: Ex. 507) has proved that the disputed writings marked A/5/A and A/5/B (Urdu writings Ex. 658) were the same as the natural h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 68) under Panchnama (Ex. 131) proved by Panch-Bhupatsinh Andaji Waghela (PW-5: Ex. 129). 18. From paragraph 75 onwards in the impugned judgment, the Division Bench of the High Court has referred to the judgments of this Court. Reliance was placed on the cases of S.N. Dube v. N.B. Bhoir and Ors. (2000) 2 SCC 254 and Lal Singh etc. etc. v. State of Gujarat and Anr. (2001) 3 SCC 221 which made reference to the confessional statement recorded Under Section 15 of Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter 'TADA'), wherein this Court rejected the contention urged on behalf of the accused persons that the confessional statements were inadmissible in evidence because (a) the statements were recorded by the investigating officer or the officers supervising the investigation (b) the accused persons were not produced before the judicial Magistrate immediately after recording the confessional statements and (c) guidelines laid down in the case of Kartar Singh v. State of Punjab (1994) 3 SCC 569 were not followed. Reliance was also placed by the High Court on the case of State of Maharashtra v. Bharat Chaganlal Raghani and Ors. (2001) 9 SCC 1, wherein thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , A-5 and A-4 advised A-2 to go ahead with the plan and gave telephone number of one Nasir Doman to A-2. He identified A-2, A-4 and A-5 in the court. 22. The High Court also placed reliance on the statement of Abdul Wahid (PW-56: Ex. 325), who admitted that on 24.04.2002 he had gone to Hyderabad with A-2 and that they had met Khalid (absconding accused No. 16) there. According to this witness, the said Abdul Raheman @ Abu Talah @ Khalid had made arrangement for their lodging at Hotel G-Royal. He also admitted to having met Ayub (absconding accused No. 23) at Hyderabad. He further admitted the disputed signature in the hotel register (muddamal article No. 129) and the specimen signature (muddamal article No. 131) as that of his own. He also identified A-2 in the court. 23. The High Court also placed reliance on the statement of Mehboob-e-llahi Abubakar Karimi (PW-82) who has admitted to transfer of money through him. He also admitted the payment made to A-2 and identified the muddamal Diary (article No. 106) and the entries (Ex. 477) and (Ex. 478) made in respect of the aforesaid transfer of money. The High Court further placed reliance on the statement of Sevakram Bulaki (PW- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... POTA, after careful examination of the above provisions of Section 32. The High Court opined that Sub-sections (4) and (5) of Section 32 do not make it mandatory for the Police (Recording Officer) to send the accused to judicial custody after recording his confessional statement Under Section 32 of POTA. 27. The High Court came to the conclusion that the Chief Judicial Magistrate is obliged to send the accused to judicial custody only in case the accused persons complain of ill-treatment or torture by the police. All the accused persons who made confessional statements appeared before the CJM (PW-99), and they made no complaint against the police and they had also admitted the statement made by them. The Division Bench of the High Court held that the aforesaid facts tend to prove that none of the accused persons making the confessional statement had been ill treated by the police or had been oppressed or lured to do so. 28. Therefore, the High Court has concluded at paragraph 131 of the impugned judgment that the prosecution had proved that the confessional statements of all the six accused persons were properly recorded and procedural requirements under the statute were comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not made voluntarily. The High Court opined that in present case, each accused making confessional statement was granted time of around 15 minutes to reflect over his decision to make confessional statement, and the High Court stated that there is no evidence on record to suggest that 15 minutes time was inadequate so as to render the confessional statements inadmissible in evidence or unreliable as none of the five accused persons while making the confessional statement had asked for further time. None of them had made a complaint of inadequacy of time before PW-99 and on the other hand, admitted the confessions made by them. 31. The High Court further stated that the contention made by the learned Counsel for the accused persons that they were kept in police custody for around 45 days before the official date of arrest, is absolutely unbelievable. Further, sending the accused persons to judicial custody after recording the confessional statement is a matter of prudence and not a statutory requirement. PW-99 had made a specific note on the writings (Exs. 453, 455, 457, 459 and 461), that each of the accused person was asked whether he had suffered ill-treatment at the hands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt examined the evidence in respect of the letters written in Urdu (Ex. 658), which is a vital incriminating evidence against A-4. According to the defence, these letters were planted by the police at a later stage, and they placed reliance on the evidence of PW-42 (Ex. 266), the inquest Panchnama(Ex. 267) of the bodies of the deceased fidayeens, the post mortem notes (Ex. 492 and Ex. 493) and the muddamal clothes of the fidayeens and submitted that since both of them died of bullet wounds sustained during the counter attack by the NSG commandos, the bodies were wounded and soiled in blood, and their clothes were tattered by the bullet holes and the splinters. There were holes in the clothes of the fidayeens particularly on the pockets of their trousers. In the aforesaid circumstances, it is not possible that the letters recovered allegedly from the pockets of the trousers of the fidayeens were unsoiled and in perfect condition, and therefore, the expert opinion (Ex. 511) is not very accurate and is not reliable. The High Court stated that it is true that the Urdu letters recovered from the bodies of the deceased fidayeens were in perfect condition in spite of the multiple injurie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns on behalf of the prosecution We will first examine the contentions urged on behalf of the prosecution represented by Mr. Ranjit Kumar, the learned senior Counsel appearing on behalf of the State of Gujarat who has advanced the following arguments to establish the guilt of the accused persons: The procedure Under Section 50 of POTA was followed by the State Government while granting sanction: 36. It was contended by the learned senior Counsel that on completion of the investigation, PW-126 forwarded a complete set of papers and his report through official channel recommending prosecution against all six accused persons under the provisions of POTA. The sanction granted by the Home Department was given under the signature of the Deputy Secretary of the said department, Mr. J.R. Rajput by sanction No. SB.V/POTA/10/2003/152 (Ex. 498). All the papers were received by the sanctioning authority on 12.11.2003 and the section officer put up the file to the Under Secretary on 13.11.2003 and after proper application of mind, the sanction was approved by Kuldeep Chand Kapur, Principal Secretary, Home Department (PW-88) on 15.11.2003 and it was sent back to the Minister for State (H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signed by him. Reliance was also placed by the learned senior Counsel on the evidence of PW-89 who had opined that the letters (Ex. 658) had been written by A-4. The learned senior Counsel also submitted that PW-91 deposed before the court, and that in his cross examination, he was not questioned regarding the 'condition' of the letters written in Urdu, as recovered from the two fidayeens. Similarly, even PW-126 was not cross examined by the Counsel for the accused persons on the condition of the letters. On being questioned by us as to why the letters did not have any blood stains on them, the learned senior Counsel submitted that the panchnama stated that the trousers were stained with blood and not soaked with it. Their trousers became wet due to the oozing of blood which has gone to the back of the trousers because of gravity as the bodies were lying on their back after shooting. The link of accused persons to Akshardham attack has been established. 39. The learned senior Counsel had relied upon the confessional statements of the accused persons to draw the link between them and the attack on the Akshardham temple. He had submitted that the confessional stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held at Jiddah, Riyadh, Hyderabad and Kashmir. A-2 was contacted by his brother who ensured supply of finance, weapons and trained terrorists. A-4 and A-5, who were running relief camps and were also religious leaders, accepted to garner local support and thus money was sent through havala. A-2 and the two fidayeens visited various places in Ahmedabad and finally chose Akshardham temple in Gandhinagar as the site for the attack on 24.09.2002. A-4, at the instance of A-5, wrote the two Urdu letters and gave them to the fidayeens. A-5 took the fidayeens to the railway station, from where they took a taxi to the Akshardham temple. The arms and ammunitions were brought from Kashmir by A-6. Concurrent findings of the courts below 43. It was further submitted by the learned senior Counsel for the prosecution that the Special Court (POTA) as well as the Division Bench of the High Court, after proper appreciation and analysis of evidence, gave concurrent findings of fact and thus the conviction and the sentences ordered by the courts below ought to be upheld. 44. The learned senior Counsel for the prosecution thus submits that it has proved beyond reasonable doubt that the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf of A-2 and A-4 and A-3 and A-5 respectively, that the prosecution had not complied with the statutory provisions Under Section 32(5) of POTA, though they produced the accused persons before the learned CJM PW-99, within 48 hours as provided Under Section 32(4) of POTA. It is contended that after recording their statements, CJM (PW-99) failed to discharge the vital obligation of sending them to judicial custody and thus, committed a grave error in remanding them back to police custody which was a clear violation of Section 32(5) of POTA and Article 20(3) of the Constitution. It was submitted that the Division Bench of the High Court had erroneously made an observation in the impugned judgment in this regard with reference to Section 32(5) of POTA, stating that the Chief Judicial Magistrate has the power to send a person to a judicial custody only when he complains of ill treatment and torture by the police. The aforesaid finding is contrary to the law laid down by this Court in NCT v. Navjot Sandhu (2005) 11 SCC 600. 48. Further, the learned senior Counsel placed reliance on the deposition of PW-99 to contend that it leaves no manner of doubt that he was neither mindful of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e upon the decision of this Court in the case of Sidhartha Vashisht v. State (NCT of Delhi) (2010) 6 SCC 1. 49. Further, the learned senior Counsel on behalf of the accused persons contended that there were serious infirmities with regard to the manner in which the alleged confessional statements of the accused persons were recorded without sufficient time being given for reflection, which was in violation of the principle laid down by this Court in the cases of Ranjit Singh @ Jita and Ors. v. State of Punjab (2002) 8 SCC 73, Navjot Sandhu case (supra) and State of Rajasthan v. Ajit Singh and Ors. (2008) 1 SCC 601. It was further urged that the courts below had failed to take into consideration the element of fear of further torture by the police, in the minds of the accused persons which was bound to be present, especially when their confessional statements were recorded by PW-78 in his office without them being assured of being sent to judicial custody immediately after making their statements. These above important facts had certainly vitiated the confessional statements made by the accused persons, making them highly unreliable and unnatural. Therefore, the courts below shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the accused persons by the examining doctor and subsequent disappearance of the X-ray plates from the records, raised a series of doubts regarding the manner in which the confessional statements were recorded. In support of this contention the learned senior Counsel placed reliance upon the decision of this Court in the case of Chandrakant Chimanlal Desai v. State of Gujarat (1992) 1 SCC 473. The learned senior Counsel further contended that in the present set of facts, there was sufficient proof that the confessional statements were not made voluntarily and in the light of the above, the courts below were duty bound to corroborate the confessional statements with other independent evidence to test their veracity. Learned senior Counsel Mr. K.T.S. Tulsi representing A-2 and A-4 and learned Counsel, Ms. Kamini Jaiswal representing A-6 have reiterated the same and submitted that there had to be independent evidence corroborating the confessional statements of the accused persons if they had been retracted. Evidence of accomplices. 52. The learned senior Counsel Mr. K.T.S. Tulsi submitted that the learned senior Counsel for the prosecution had placed reliance on the evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erting to Sections 133 and 114, Illustration (b) of the Evidence Act has held that the said provisions strike a note of warning cautioning the court that an accomplice does not generally deserve to be believed. 55. He then drew our attention to an unreported judgment of this Court delivered by one of us, A.K. Patnaik, J. in the case of State of Rajasthan v. Balveer (Crl. Appeal No. 942 of 2006 decided on 31.10.2013) wherein this Court observed, while referring to illustration (b) of Section 114 of the Evidence Act, and observed that the Court will presume that an accomplice is unworthy of credit unless he is corroborated by material particulars. 56. It was further urged that the learned senior Counsel on behalf of the prosecution had strongly relied on the statement of PW-51, whereas the aforesaid deposition was virtually rendered useless during cross examination before the Special Court (POTA). The version given by the said witness in his cross examination was more credible, natural and casts a serious doubt about the manner in which the evidence was sought to be fabricated by police officer, D.G. Vanzara whose entrusting of the case to the Crime Branch on 28.08.2003 suddenl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various discrepancies in the statements of the two important witnesses in relation to the letters, i.e. of PW-91, Lt. Col. Jayadeep Lamba, who, according to the prosecution, had recovered them from the pockets of the trousers of the fidayeens, but whose statement was not recorded Under Section 161 Code of Criminal Procedure and that of PW-121, the translator of the letters. It was claimed by the prosecution that PW-91 was not examined by the investigation officer Under Section 161 Code of Criminal Procedure since the NSG had refused to grant permission to its personnel to disclose any information regarding their operation with respect to the attack. The prosecution had placed reliance upon a letter dated 11.02.2002 by the Ministry of Home Affairs to prove the same. The learned senior Counsel contended that the prosecution had however, relied upon the statement made by this witness, PW-91 before the Special Court (POTA), who was a chargesheet witness although his statement Under Section 161 Code of Criminal Procedure was never recorded and thus, the accused persons had been naturally deprived of an opportunity to effectively cross-examine the witness and thereby they were very much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same by the courts below vitiated the finding recorded that the accused persons are guilty, and the same is liable to be set aside. There was delay in recording the statement of PW-52 and PW-56 which is evident from the record that PW-52 had stated that his statement was recorded on 07.09.2003, while PW-56 stated that his statement was recorded in the 7th or 8th month of 2003. Thus, there was a delay of almost of a year in recording the statement of the aforesaid witness by the Police. Failure of prosecution to establish a nexus between the accused persons and the crime as well as link between the fidayeens and the accused persons. 62. The learned senior Counsel Mr. A. Sharan contended that for the prosecution to invoke common intention Under Section 34 Indian Penal Code or common object Under Section 149 Indian Penal Code, it is required to establish beyond reasonable doubt the connection between the accused persons and the common intention/object of the crime with which they are charged. In this regard, it was submitted that all the main prosecution witnesses, i.e. PW-50, PW-51, PW-52 and PW-56 upon which strong reliance had been placed by the learned senior Counsel on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 153. Alternative stories put forth by the prosecution. 66. Further, it was contended by the learned senior Counsel Mr. A Sharan that alternative stories had been put forth by the prosecution. It was borne out from the confessional statement of A-4 that the two fidayeens, i.e. Doctor 1 (Murtuza/Hafiz Yasir) Doctor 2 (Ashraf/Mohd. Faruk) belonged to Lahore and Rawalpindi respectively. As per the confessional statement of A-6, the names of the two fidayeens were Sakil and Abdullah, who belonged to Jammu and Kashmir and had travelled along with A-6 to Gujarat. It was observed from the deposition of Maj. Jaydeep Lamba (PW-91) that it was written in the two Urdu letters that the two fidayeens were from 'Atok' region of Pakistan. It was submitted that the prosecution had come forth with three different versions insofar as the origin of the two fidayeens was concerned. Even the prosecution was not certain as to which of the three versions was true. It was submitted that therefore, in the presence of these major discrepancies in the prosecution story, and the non-reliability of the confessional statements of the accused persons, they were entitled to acquittal. Conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record. He was also said to have recorded the statement of PW-69, Minhaas Ashfaq Ahmed who had stated that A-6 got the ambassador car repaired at Das Motors and also the statement of one Dr. Sudhanshu Arya (PW-93) who had stated that the accused came to him for treatment of his child. However, it is contented that none of these incidents in any way connected the accused to the attack on the Akshardham temple. Some other evidence which the prosecution sought to rely on to establish the guilt of A-6 were the deposition of the owner of Gulshan Guest House, Yusuf Gandhi, (PW-57: Ex. 328), Panchnama of specimen signature of A-6 in the register of the guest house (Ex. 683), recovery of the ambassador car from the custody of the J K Police (Ex. 672) and the report of the RTO regarding the ownership of the said ambassador car (Ex. 672). It was submitted that the register of the Guest House, which was seized around 27.08.2002 and 28.08.2002, was never sealed, and that the pointing out of the signature by A-6 while being in custody of the police was not admissible in evidence. It was further submitted that with regard to the ownership of the ambassador car, the report of the RTO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were written by A-4? 6. Whether there is any evidence apart from the retracted confessional statement of A-6 which connects him to the offence? 7. Whether there is any independent evidence on record apart from the confessional statements recorded by the police, of the accused persons and the accomplices, to hold them guilty of the crime? 8. Whether A-2 to A-6 in this case are guilty of criminal conspiracy Under Section 120B Indian Penal Code? 9. Whether the concurrent findings of the courts below on the guilt of the accused persons can be interfered with by this Court in exercise of its appellate jurisdiction Under Article 136 of the Constitution? 10. What Order? We will now proceed to answer each point in detail. 73. Justice Vivian Bose while dealing with the incipient constitution in the case of State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75, made an observation which is very pertinent to be quoted herein, which reads thus: 90. I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trak-A and B other two Patraks. (q). Did you notice while granting sanction against the accused that no explosives substance has been seized from any of the accused? (a). Explosive substances and firearms were found at the site. I agree that from these six accused, no explosive substance had been recovered. I do not know that A-summary had been filed earlier. (q). Whether there were any papers of investigation by Crime Branch, Ahmedabad conducted at Jammu and Kashmir? (a). As far as I know, there was no investigation by Crime Branch, Ahmedabad at Jammu and Kashmir Police. Therefore, I cannot say whether there were no papers to my knowledge to that effect and it was the police of Jammu and Kashmir who had intimated the Gujarat Police about the whereabouts of Chand Khan from Jammu and Kashmir Police by following due process of law. I was not supplied the papers of investigation carried out by Jammu and Kashmir police. Therefore, I cannot say whether there were any such papers or not. Witness volunteers that in my opinion those papers were not relevant for me to come to the conclusion for permitting the prosecution to prosecute against the accused. I hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the process of granting sanction under POTA and could throw light on the aspects taken into consideration while granting sanction. He was the only prosecution witness who was examined by the court in this regard and it is apparent that he had not applied his mind for the same, which is clearly visible from the inherent contradictions in his statement as shown above. 75. It has been held by this Court that all the relevant documents required for granting sanction shall be presented before the sanctioning authority so that the sanction can be granted on the basis of relevant material information and documents collected during the course of investigation with respect to the crime. In the case of Rambhai Nathabhai Gadhvi and Ors. v. State of Gujarat (1997) 7 SCC 744, this Court, while examining a similar sanction Order as provided Under Section 15 of TADA (repealed), has held as under: 8. Taking cognizance is the act which the Designated Court has to perform and granting sanction is an act which the sanctioning authority has to perform. Latter is a condition precedent for the former. Sanction contemplated in the Sub-section is the permission to prosecute a particular person fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent seeking permission or sanction. No doubt in that letter to the Director General of Police the Superintendent of Police had narrated the facts of the case. But we may observe that he did not send any other document relating to the investigation or copy thereof along with the application. Nor did the Director General of Police call for any document for his perusal. All that the DGP had before him to consider the question of granting sanction to prosecute were the copy of the FIR and the application containing some skeleton facts. There is nothing on record to show that the Director General of Police called the Superintendent of Police at least for a discussion with him. (Emphasis laid by this Court) It was further held by this Court in the case of Anirudhsinhji Karansinhji Jadeja and Anr. v. State of Gujarat (1995) 5 SCC 302, as under: 15. The aforesaid is however not all. Even if it be accepted that as an additional safeguard against arbitrary exercise of the drastic provisions, the State Government had provided by administrative instructions an additional safeguard whereunder the DSP was required to obtain the sanction/consent of the State Government, we are of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant of sanction and the Minister had simply signed the proposed note as a mark of approval. PW-88 further stated that he had not discussed anything with the I.O. about granting sanction in the present case. However, the Special Court (POTA) erroneously justified the granting of sanction on the ground that the learned Counsel for A-2 and A-4 before the Special Court (POTA), Mr. R.K. Shah, did not insist on examination of the internal note and at no stage was such a request made in writing. 76. In the case of Mansukhlal Vithaldas Chauhan v. State of Gujarat: (1997) 7 SCC 622, it has been held by this Court as under: 19. Since the validity of sanction depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discreti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in Section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect: I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed) A.B. Magistrate. (5) Any statement (other than a confession) made Under Sub-section (1) shall be recorded in such manner herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an accused given to police as incriminating evidence stems from Article 20(3) of the Constitution which provides that no person shall be compelled to be a witness against himself. However, POTA makes a departure from the above principle through Section 32 which reads as under: 32. Certain confessions made to police officers to be taken into consideration.- (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical or electronic device like cassettes, tapes or sound tracks from out of which sound or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or the rules made thereunder. (2) A police officer shall, before recording any confession made by a person Under Sub-section (1), explain to such person in writing that he is not bound to make a confession and that if he does so, it may be used against him: Provided that where such person prefers to remain silent, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s confessional statement before the Magistrate shall be used in evidence; that the Magistrates cannot be used for mechanically putting seal of approval on the confessional statements by the police; that, therefore, the Section has to be nullified. Validity of this Section was defended by the learned Attorney General by forwarding the arguments that the provisions relating to the admissibility of confessional statements, which is similar to that of Section 32 in POTA was upheld in Kartar Singh case; that the provisions of POTA are an improvement over TADA by virtue of enactment of Sections 32(3) to 32(5); that the general principles of law regarding the admissibility of a confessional statement is applicable under POTA; that the provision which entails the Magistrate to test and examine the voluntariness of a confession and complaint of torture is an additional safeguard and does not in any manner inject any constitutional infirmity; that there cannot be perennial distrust of the police; that Parliament has taken into account all the relevant factors in its totality and same is not unjust or unreasonable. 64. At the outset it has to be noted that Section 15 of TADA that was simi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of General Act. Since the constitutionality of the POTA was declared as valid by this Court, its provisions would prevail over Code of Criminal Procedure However, considering the stringency of the provisions of POTA and the grave consequences that misuse of the Act might carry i.e., violation of right to life and personal liberty, we need to ensure that the guidelines laid down in the Act are rigorously observed while recording the confessional statements of the accused persons. We will examine herein the various mandatory provisions to be followed while recording the confessional statements and whether the same have been followed in the instant case. 80. The learned senior Counsel appearing on behalf of A-2, A-3 and A-4 submitted that the mandatory provisions laid down in Section 32 were not followed by PW-78 Mr. Sanjaykumar Gadhvi while recording their confessional statements. It was argued by the learned senior Counsel that Section 32(2) had not been complied with since the accused persons were not statutorily informed in writing that they were not bound to make confessional statements and their statements, if made, shall be used against them. The learned senior Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdeep Singh Sohal and Ors. v. State of Punjab through CBI (2004) 11 SCC 612 that the police officer recording the confessional statement under TADA is required to give in writing at the end of the statement, that the accused was informed that the confessional statement he has voluntarily decided to make, can be used against him as evidence and also the fact that the accused after fully knowing the consequences has decided to make the confessional statement. The relevant paragraphs of the judgment can be read as under: 16. The constitutional validity of Section 15 of the TADA Act was challenged. A Constitution Bench of this Court in Kartar Singh v. State of Punjab upheld the constitutional validity of the said provision. The contention urged in Kartar Singh case was that the procedure in the TADA Act is the antithesis of a just, fair and reasonable procedure and this power could be abused to extort confession by unlawful means by using third-degree methods. This plea was rejected on the ground that sufficient safeguards have been made in the Rules as to the manner in which the confession is to be recorded. Rule 15 extracted above would show that confession shall be in writing an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Though the case mentioned supra dealt with TADA, the Rules of which cannot be imported into POTA, the main objective behind mentioning this case was that the underlying safeguards which were required to be taken while making confessional statement to the police cannot be compromised with. 82. The intimation letters of caution written by PW-78 fail to prove that the process of intimation preceded the recording of confessional statements as a continuous process. On the other hand, the letters of intimation and the confessional statements exist as disjunctive evidence, failing to prove the required chain of procedure, i.e., that the letters of caution precede the confessional statements and not vice versa. Further, in the instant case, the CJM (PW-99: Ex. 568) during cross examination before the Special Court (POTA) by the learned Counsel for the accused persons, on being asked about sending the accused to judicial custody after confession, stated: I had not sent him in judicial custody. I did not feel that I should send him in judicial custody I had not asked the accused about how many days of his remand are left. I had not told him that he will not be sent to police cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sked to the accused persons before recording confessional statement that since how many days they were in custody prior to the recording of the confessional statement. I had not informed the accused persons that if they do not give confessional statement they will not be sent back to the Crime Branch custody. I have not made any note with regards to the fact that I had sent back the Crime Branch Officer along with vehicle. It is true that I had also not written the fact at any place with regards to the instruction given by me to return after around three hours and only when called by me. I had also not made any note with regards to the fact that I had got the accused persons seated in my P.A.s room. The fact that I had informed accused persons in writing that they are not bound to make statement and if they make then the same can be used against them, with regard to the said fact, I have not kept any copy with me. On asking me about how I had reached to the conclusion as stated by me with regards to the language of Mohammad Salim, I state that that he was speaking fearlessly and whatever facts were stated by him, its point were clear. There was no sign of fear in his expression and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is confessional statement. (translation extracted from the Additional documents submitted on behalf of the State of Gujarat) Reverting to the requirement of Section 32, the police officer recording the confessional statements is required to explain in writing to the accused that he is not bound to make confessional statement and once such statement is made, the same can be used against him. Further, it is imperative that the accused is assured that if he does not make the confessional statement, it will not jeopardize his well-being while in police custody and also to ensure that such statements are made before a competent police officer in a threat-free environment. The deposition of the police officer PW-78 who had recorded the confessional statements of the accused persons however, reflects otherwise. He admitted to the fact that he did not assure the accused persons that not making the confessional statement will not put them in adverse position. 85. Further, there is nothing available on record to show that reasonable reflection time was given to the accused persons before making the confessional statements, though the prosecution claimed to have given them 15 minut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12) 10. According to the deposition of PW 3 in cross-examination, the accused were in police custody 18-20 days prior to recording of their confessional statements. PW 3 has deposed that he gave the requisite warning to the accused that they were not bound to make the confessional statement and if they make it will be used as evidence against them, but despite the warning they were prepared and willing to make the statement. After recording the introductory statement in this behalf in question-answer form he still considered it proper to give them some time for rethinking and for this purpose they were allowed to sit in a separate room for some time and were brought to him after about half an hour and expressed their desire to make statement and thereafter the confessional statements were recorded. 11. Before adverting to the facts said to have been narrated by the accused as recorded in the two confessional statements, it deserves to be noticed that in case the recording officer of the confessional statement on administering the statutory warning to the accused forms a belief that the accused should be granted some time to think over the matter, it becomes obligatory on hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecomes obligatory on him to grant reasonable time for the purpose to the accused. In other words, the cooling time that is granted has to be reasonable. What time should be granted would of course depend upon the facts and circumstances of each case. At the same time, however, when the time to think over is granted that cannot be a mere farce for the sake of granting time. In a given case, depending on facts, the recording officer without granting any time may straightaway proceed to record the confessional statement but if he thinks it appropriate to grant time, it cannot be a mechanical exercise for completing a formality. 13. This Court further held: However, speaking generally, it would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded. In our opinion, in the circumstances of this case it is impossible to accept the view that enough time was given to the accused to think over the matter. 20. In the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to more than 15 pages could be read back to them within half an hour. The statement of PW-99 on examination in chief and also on cross examination has been mentioned above and it is clear that he did not enquire about the basic compliances he was required to make himself aware of, to ensure fair investigation against the accused persons. His conduct in recording of statement Under Section 32(5) of POTA merely resembles that of a passive reluctant officer involved in some procedural formality. 87. It is pertinent to note here that while POTA makes a departure from Code of Criminal Procedure in that it makes confessional statements made before a police officer admissible, the procedural safeguards therein are not a mechanical formality. On the other hand, it should be able to inspire confidence to show that the procedure has been scrupulously followed while recording confessional statements particularly because of the grave consequences which follow such statements, which might result in deprivation of life and personal liberty of the person, which is a fundamental right guaranteed by the Constitution that can be taken away only by following the procedure established by law. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he DCP before recording the confession, gave the statutory warning and then recorded the confession at a place away from the police station, gave a few minutes time for reflection and only on being satisfied that the accused Afzal volunteered to make confession in an atmosphere free from threat or inducement that he proceeded to record the confession to the dictation of Afzal. Therefore, it is submitted that there was perfect compliance with Sub-sections (2) (3). The next important step required by Sub-section (4) was also complied with inasmuch as Afzal was produced before the Additional Chief Metropolitan Magistrate-PW-63 on the very next day i.e. 22.12.2001 along with the confessional statements kept in a sealed cover. The learned Magistrate opened the cover, perused the confessional statements, called the maker of confession into his chamber, on being identified by PW-80-ACP and made it known to the maker that he was not legally bound to make the confession and on getting a positive response from him that he voluntarily made the confession without any threat or violence, the ACMM recorded the statement to that effect and drew up necessary proceedings vide Exts.PW63/5 and PW63/6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fzal to police custody. This contention cannot be sustained on deeper scrutiny. 179. The clear words of the provision do not admit of an interpretation that the judicial custody should be ordered by the Chief Judicial Magistrate only when there is a complaint from the 'confession maker' and there appears to be unfair treatment of such person in custody. As already stated, the obligation to send the person whose alleged confession was recorded to judicial custody is a rule and the deviation could at best be in exceptional circumstances. In the present case, it does not appear that the ACMM (PW63) had in mind the requirement of Section 32(5) as to judicial custody. At any rate, the order passed by him on 22.12.2001 on the application filed by PW80 does not reflect his awareness of such requirement or application of mind to the propriety of police remand in the face of Section 32(5) of POTA. Compelling circumstances to bypass the requirement of judicial custody are not apparent from the record. 89. Apart from Section 32 of POTA, Section 52 also lays down certain guidelines which are to be strictly adhered to while recording the confessional statements of an accused pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch speaking through Krishna Iyer, J. in Nandini Satpathy v. P.L. Dani. It was pointed out by the learned Judge that the area covered by Article 20(3) and Section 161(2) Code of Criminal Procedure is substantially the same. Section 161(2) of the Code of Criminal Procedure is a parliamentary gloss on the constitutional clause --it was observed (SCC p. 434, para 21). This Court rejected the contention advanced on behalf of the State that the two provisions, namely, Article 20(3) and Section 161, did not operate at the anterior stages before the case came to Court and the incriminating utterance of the accused, previously recorded, was attempted to be introduced. Noting that the landmark decision in Miranda v. Arizona did extend the embargo to police investigation also, the Court observed that there was no warrant to truncate the constitutional protection underlying Article 20(3). It was held that even the investigation at the police level is embraced by Article 20(3) and this is what precisely Section 161(2) means. The interpretation so placed on Article 20(3) and Section 161, in the words of the learned Judge, brings us nearer to the Miranda mantle of exclusion which extends the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. This cautionary provision incorporates a rule of prudence because an accomplice, who betrays his associates, is not a fair witness and it is possible that he may, to please the prosecution, weave false details into those which are true and his whole story appearing true, there may be no means at hand to sever the false from that which is true. It is for this reason that courts, before they act on accomplice evidence, insist on corroboration in material respects as to the offence itself and also implicating in some satisfactory way, however small, each accused named by the accomplice. In this way the commission of the offence is confirmed by some competent evidence other than the single or unconfirmed testimony of the accomplice and the inclusion by the accomplice of an innocent person is defeated. This rule of caution or prudence has become so ingrained in the consideration of accomplice evidence as to have almost the standing of a rule of law. 9. The argument here is that the cautionary rule applies, whether there be one accomplice or more and that the confessing co-ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... range cassette at Salimbhai's place on Thursday night, it was done by Salimbhai, and we had seen the cassette over there, in which Muslim children were burnt alive. There was mass killing of Muslims. Huge mobs of Hindus had come and they used to attack on Muslims, and there were mass burial ceremonies. We had also seen interviews of relief camps. Thereafter, there were two maulanas (priests) at Salimbhai's place, among them one was named as Faradullah Ghauri alais Abu Sufiyan and Saukatullah Ghauri who was brother of Abu Sufiyan. They had said their speech before us that this much has happened in your Gujarat, despite this you do not awake from your sleep and you are engaged in playing carom. We are from Hyderabad and have come to help you. There were also talks over there that Lashkar-e-Toiba is having huge fund but is not having network and Jaish-e-Mohammed does not have fund but is having manpower as well as it is having network, and hence, both these groups will work together, therefore you just give donation. On that night many persons gave donation, donation of about 12 to 13 thousand Riyals was given. We were taken to the program by Rashidbhai Ajmeri and Salimbhai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Answer: It is true that he was not present in Saudi at the time of Godhra carnage. Witness voluntarily states that he was present at Saudi at the time of Akshardham. We had watched the cassette in the following month of Godhra carnage. It is true that the cassette in the following month of Godhra carnage. It is true that the cassette (C.D.) which was watched regarding the incidences of Post Godhra carnage, the said were watched at the house of Salimbhai. There is television and VCD player at the house of Salimbhai. Question: The money which was collected in Saudi Arabia, the said money was utilized for running relief camps? Answer: We used to give money to Salimbhai and we had not asked him about what he did with money nor did he say to us about what he did with the money. I had given maximum of 500 Riyal to Salimbhai, it is ₹ 5000/-. Besides me, there were my other friends who also used to meet at Salimbhai's place on every Thursday. Except me, all other used to ask Salimbhai about what he did with the money. Salimbhai used to say that this money has been collected for taking revenge. Since he didn't say anything everybody had stopped giving money. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the hall. I had said to them about what Adam had said, and in a way as if they already knew about it. Thereby, they replied that we know it and had assigned me the responsibility of arranging house for the guests who would come for the work of this carnage, and I had agreed .. As Adam informed about the talk having taken place at Saudi Arabia, and he having informed that phone call will come at Doman Nasir's place, Mufti Ayub and Maulvi had asked to four of us to go and discuss at Nasir's home. But phone did not come. Thereafter, we and Adambhai had departed after deciding to talk to Saudi from opposite of Kalupur Railway. . After two to three days, I and Adam had gone to Kalupur Darwaja on my scooter, and Nasir Doman had also come along on his scooter. From STD/ISD booth named Kohinoor Telecom, Adam had dialed number at Saudi Arabia and firstly he had done all the talk in Arabic language, and thereafter to give us assurance, he had talked in Hindi language and asked to exchange greetings with the people involved with me in work. By saying this, Adam handed over the receiver to me . I was asked from the other side in Gujarati, 'brother, what you need,'. Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had asked me to do arrangement for house and other arrangements speedily, and therefore, I had agreed and thereby we had departed. ..And Adam had informed that the guests will arrive from Hyderabad in one or two weeks. But nobody had arrived. During June 2002, Adam had said to me that your mobile phone for contact is switched off. Therefore, the guests arriving from Hyderabad while arriving at Ahmedabad had contacted from Kheda, but since mobile phone was switched off, contact could not be made and thus, it seems that they have returned. . I had informed him that if the phone is switched off, I will get it switched on I felt that Adam must have assured about the other phone given to me if it is switched off or switched on. And since the phone was continuously switched off, he has made story about the guests having returned from Kheda, just to reprimand me. But I did not come to know if the guests may have come up to Kheda or not. After about a week or 10 days, Adam met me at Dariapur and had said to me that the carnage persons have returned back after coming to Bareja-Narole as contact could not be made. Therefore, there is no meaning keeping the mobile phone with you. By h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me for carnage, those guests have arrived, and God willing, victory will be ours in short time . Some days earlier I had dispute with Maulvi Abdullah and Mufti regarding dissimilarity of dowry in the marriage of refugee girls in camp and since there was no arrangement for distribution of sewing machines. Therefore, I had not given interest in their say. Thereafter, some days later, while I was sitting at my traders place at Gomaji complex, Pankornaka, Tran Darwaja, I got the news that terrorists have attacked Akshardham Temple. Therefore, I got the doubt that this work may have been done by the persons who have come from Hyderabad to do carnage. Because, these people have said to me the persons for carnage have arrived. (Emphasis laid by this Court) Finally, we are extracting the relevant excerpt from the statement made by PW-52 (Ex. 315). The excerpt from his statement reads as under: When the relief camp for Muslims had started at Dariapur Bawahir Hall, at that time Muslim youths of our area used to gather over there. All used to sit and talk. Abdul Rehman Panara was the organizer of the camp. Since he had business by name of Panara Garments, I knew him. The main admin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrive have arrived, and you will hear in sometime about the work which is to be done. And therefore, I had got afraid and had left, and had said don't say it to me. Guest means terrorist. After sometime, I got to hear the news of Akshardham incidence. Police had taken my statement with regards to the facts mentioned by me today. I was taken to Gandhinagar court for statement. Since I had not seen the court, I asked the police to take me along Immediately after April 2002 that is after about one month, I did not reveal to anybody that such carnage is going to happen. I don't have relations with any police personnel. I know Crime Branch Officer Mr. Singhal. I came to know him when he called me for the first time for statement. My friends are in garage profession. After I came to know regarding this carnage, I was not afraid at any time that I may be implicated in this carnage. Witness himself states that I don't know anything about it so why should I be afraid? I was suddenly called at Crime Branch on 6.9.2003. It is true that next day, on 7th, my statement was recorded. It is not true that I was kept for one month at Crime Branch. I have never met any body after this. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording with reality is likely to save it from being rejected brevi manu. Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the court may be permissible. Ordinarily, however, an approver's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based. (Emphasis laid by this Court) A perusal of the evidence of all the three accomplices in the present case shows that all of them intended to absolve themselves of the liability for the conspiracy with respect to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion must be from an independent source. One accomplice cannot corroborate another, see Bhiva Doulu Patil v. State of Maharashtra and R. v. Baskerville. In this light we shall examine the case of each Appellant separately. Therefore, in the light of the case mentioned above, we begin with examining in detail the evidence of PW-50. He has stated in his deposition about watching videos of riots and killing of Muslims in Gujarat in the house of A-3 at Riyadh, which act, by itself does not constitute a criminal offence. On being asked during the cross examination before the Special Court (POTA) if the money donated by the gathering in Saudi Arabia to A-3, was used for running the relief camps in Gujarat, he was not able to answer for what purpose exactly the money was collected. Therefore, at the most, even if his evidence is taken to be true for the sake of argument, some suspicion, if at all, can be cast on the involvement of A-3 in some sort of illegal activity at the most. But culpability of a person in as grievous an offence as this, cannot be premised on mere suspicion without knowledge of the nature of the illegal activity. 94. Next, with respect to PW-51, the evidence is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them, on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. (Emphasis laid by this Court) 95. Thus, as can be seen from the above mentioned case, the evidence of the accomplices at the most, raises suspicion and conjectures but the same cannot be construed as legal evidence against the accused persons, relying solely on which they can be convicted, as has been done by the courts below. Moreover, it is a settled principle of law that the confessional statements of accomplices form a very weak form of evidence, to prove the culpability of the accused persons if the guilt of the accused cannot be proved, independent of the statements of the accomplices. Therefore, the same cannot be used to corroborate the confessional statements of an accused. Instead, there should be independent evidence to corroborate the evidence of the accomplice to establish the culpability of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... robative value. But all these are only rules of prudence. So far as the law is concerned, a conviction can be based on the uncorroborated testimony of an accomplice provided the judge has the rule of caution, which experience dictates, in mind and gives reasons why he thinks it would be safe in a given case to disregard it. Two of us had occasion to examine this recently in Rameshwar v. The State of Rajasthan Cri. App. No. 2 of 1951AIR 1952 SC 54). It follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed. As the Privy Council observe in Bhuboni Sahu v. The King 76 Ind. App. 147 at p.157: The tendency is include the innocent with the guilty is peculiarly prevalent in India, as judge have noted on innumerable occasions, and it is very difficult for the court to guard against the danger The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates such accused. 12 We do not doubt that a rickshaw was used because rickshaw tracks were discovered by the well lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below. The learned senior Counsel for the accused persons have contended that there has been a delay of around a year from the time of the attack on Akshardham in recording the statements of the accomplices which shrouds the case of the prosecution. We have to accept the contention of the learned senior Counsel for the accused persons in this regard as there is an inordinate delay in recording of the statements of the accomplices and this casts a grave suspicion on the reliability of the testimony of the accomplices. It has been held by this Court in the case of State of Andhra Pradesh v. Swarnalatha and Ors. (2009) 8 SCC 383 as under: 21. It stands accepted that the statements of PW 3 and PW 6 were recorded only on 31-1-1998. The investigating officer did not assign any reason as to why so much delay was caused in recording their statements. A panchnama in regard to the scene of offence was conducted. PW 6 was admittedly not present at that time. The statements of PW 3 and PW 6 were recorded Under Section 164 of the Code of Criminal Procedure much before their recording of their statements Under Section 161 thereof. 22. In Ganesh Bhavan Patel v. State of Maharashtra th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hir Hall, at that time Maulana Abdullahmiya and Mufti Abdul Qaiyum met me, had exchanged greetings and they also said that the guests have arrived and God willing in some days victory will be ours, the said facts have been stated by me falsely Also on cross examination by Adv. Shri R.K. Shah for A-2 and A-4, PW-51 said: It is true that around 700 people lived in the said camp. I don't know if except for me, many other workers were taken by the Crime Branch personnel and there were protest in this regard. The witness states that Khalid Sheikh was taken from our place. The witness himself states that I was kept blind folded (by tying strip on eyes) and therefore, I don't know. I was questioned about identification of accused No. 2 and 5. I do not know after how many days these accused persons were brought when I was taken by the Crime Branch personnel because I could not make out about dates and days. It is true that I was released after two months by the crime branch and remand of the accused had completed prior to the time when I was released. It is true that when I was taken to the magistrate, I was told that this confession could be used against me in the Court ..I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was a serious attempt on the part of the investigating agency to fabricate a case against the accused persons and frame them with the help of the statements of the accomplices, since they had not been able to solve the case even after almost a year of the incidence. 97. Therefore, we hold that the evidence of the accomplices cannot be used to corroborate the confessional statements of the accused persons in the absence of independent evidence and the delay of more than one year in recording their statements causes us to disregard their evidence. Therefore, we answer this point in favour of the Appellants. Answer to point No. 4 98. The two Urdu letters were mentioned for the first time in the list of Muddammal articles (Ex. 524) collected from the fidayeens by Major Lamba (PW-91) and handed over to PW-126 by Panchnama drawn up for the same(Ex. 440). In the same, the mention of the two Urdu letters comes as under: (7). Two white papers upon the same some writing have been made in Urdu language estimated price of the same can be assumed at ₹ 0.00 Further, the receipt voucher of articles recovered from the body of the fidayeens and handed over to the I.O. by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has been obtained on Exhibit 524. .. Both the two chits, which I state to have been found, were found from pocket of pant of terrorists. The search of both of them was carried out by one Junior Commissioned Officer and two Jawans, wherein Junior Commissioned Officer was carrying out search and both the jawans were collecting the articles found. On suggesting me to give name of any junior Commissioned Officer, I state he was Subedar Suresh Yadav. He was expired at that time. I handed over all those articles and dead bodies to the police. I handed over the same in Akshardham temple itself. They were checking as per list of Exhibit 524 and they had prepared voucher thereof and in that manner they had seized the articles. The Maulvi was called in Akshardham temple itself. He came during period of 8:00 AM to 9:00 AM. I don't remember certain time. I cannot give his name. His signature is not obtained at any place. When we had seized the articles of Exhibit 524 from the terrorists, at that time no police officers were present, because, that premises was in our possession. I don't know as to where Shri Singhal kept all those items after I handed over to him. I don't ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o cross examine such witness. It was held in the case of Ram Lakhan Singh and Ors. v. State of Uttar Pradesh (1977) 3 SCC 268 as under: 37. It is true that no enmity or grudge is suggested against this witness, but we find that this witness was not even examined by the police nor was he cited in the charge sheet. In a grave charge like the present, it will not be proper to place reliance on a witness who never figured during the investigation and was not named in the charge sheet. The accused who are entitled to know his earlier version to the police are naturally deprived of an opportunity of effective cross-examination and it will be difficult to give any credence to a statement which was given for the first time in court after about a year of the occurrence. We cannot, therefore, agree that the High Court was right in accepting the evidence of this witness as lending assurance to the testimony of other witnesses on the basis of which alone perhaps the High Court felt unsafe to convict the accused. The legal principle laid down by this Court in the aforementioned case renders the case of the prosecution with respect to the recovery of the alleged letters from the dead bodi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I have not done any translation. It is not true that I don't know difference between Arabic and Urdu language. There are similar writings in both the papers, but as per my opinion the writer is not the same, writer has changed. The statement of PW-121 as per the documents submitted on behalf of the prosecution, to the extent of contradiction, reads as under: I was told to read two letters from an envelope and to translate them. I read both the letters which were in Arabic language, then entire matter was in Urdu language. I translated Arabic language to Urdu language into Gujarati language. There was a writer appointed by Shri Tolia. I stated and he typed them. My statement was taken by the police on the day I did the translation. 100. We are therefore, not inclined to accept any of the contradictory versions of either of the parties. It is pertinent to mention here that the poor translation of the documents from Gujarati language to English submitted by both the parties have majorly inconvenienced us. Therefore, instead of relying on either of the versions, particularly the aspect of the statement of the translator, since the same has been majorly contested befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue that the two dead bodies which I had seen, all of their cloths were stained with blood, I had questioned Major Lamba, but I had not recorded his statement. It is true that it has happened that the seized papers were not kept in sealed covers. It is true that there is no description of the said papers in panchnama except for the description that the said papers were written in Urdu language. It has not happened that the said papers were seized by any other officer before me. It is true that panchnama of dead bodies of two terrorists which I stated to have been done, its videography was done. I presently don't remember as to who had done the said videography. After getting the videography done, I have not received it cassettes or CD, because immediately thereafter investigation was handed over to another officer. It is true that my statement which is recorded by P.S.I. Shri Padheriya has no clear mention about Urdu papers. The order to hand over the investigation to Shri Tolia was not of Shri Singhal, but of Shri Brahmbhatt. He further stated during the examination by the Judge of the Special Court (POTA): I am being shown signature of Brig. Raj Sitapat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will have to go to Akshardham separately, therefore Adam be called at noon time before Johar's prayer with rickshaw to take me, and keep ready by writing two chits in Urdu to the effect that this massacre is committed as a revenge of torture beyond limit committed on Muslims, and as writer of that chit name of group taking revenge on Gujarat i.e. tehrik-e-qisas Gujarat be written On that night at late hours, in my office of Zankar sound by closing shutter, I and Maulvi Abdulla made discussion and I wrote two chits in Urdu in my handwriting wherein we wrote that violence on Muslims in Gujarat due to which feeling of revenge is spread in Muslims, now blood of Hindus, police will come out and now Shiv Sena, VHP and temple will be burnt and due to that Muslims will get relief and called upon all Muslims to take revenge by shaking shoulders, and if you want to live, live with pride and if you want to die, then die with pride. This gift of massacre is for Advani and Modi .by saying to give both these chits and pen to fidayins on next day, I had given it to Maulvi Abdullah we performed two rakat fazal namaz, and as I called upon both fidayins to state their real names to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expert, we shall refer to the statement of the evidence of the hand writing expert, Jagdish Bhai (PW-89: Ex. 507) who had assigned the following reasons for recording his finding in his report that the hand writing of A-4 matches with the letters allegedly found from the pockets of the trousers of the fidayeens: Pictorial appearance of all the disputed specimen and natural writings are similar. All these writings are written freely with speed showing natural variation among themselves. They agree in the writing habits such as movements, slants, spacing, relative size and proportion of characters, line quality, alignment of characters; manner of accommodation etc. They also show similarities in the execution of various commencing, terminal and connecting strokes. However, during cross examination by the learned Counsel on behalf of A-2 and A-4 while deposing before the court, he has stated as under: Question: Hand writing science is not a perfect science. Answer: It is also not imperfect science. It can be called developing science. Question: What basic knowledge of Urdu you have? Answer: The Urdu language is written from right to left, the said fact a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the aid of a book. 106. We state that considering the seriousness of this case and the gravity of the offences, it was the duty of the handwriting expert to seek opinion of other experts which he claimed to have done. PW-89 stated that he requested the Director of FSL to seek the service of the Central Government Laboratory, and the photocopies of the documents were sent to the Government Examiner of Questioned Documents(in short 'GEQD'), Ministry of Home Affairs, Hyderabad for the preliminary examination. Accordingly, Assistant Government Examiner, Shri A.K. Singh and Shri R.K. Jain, the senior most GEQD of the Central government had arrived at the FSL of Gujarat. It was further stated by PW-89 that the officers from Hyderabad had worked independently and prepared their opinion. Accordingly, PW-89 formed a final opinion based upon the opinion of the aforesaid officers (Ex. 511). The senior most officer, Mr. R.K. Jain, sent certificate via fax on 14.09.2003 in which he had stated that he was in consent with the opinion of PW-89. However, objection was raised by the Counsel for the accused persons at the Special Court (POTA) for taking this certificate on record, sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activities outside Jammu and Kashmir, which was recovered by the Jammu Kashmir police from the workshop under the name of 'Chand Motor Khanabai Anantnag' as stolen property, Under Section 550 of the Jammu and Kashmir Code of Criminal Procedure. Thereafter, the car was subsequently handed over to Gujarat Police, on their requisition, for investigation in the present case which was registered vide FIR 314 of 2002. In this regard, we shall examine the statements of Police Inspector Shabbir Ahmed (PW-123), Sub-Inspector, Gulam Mahammed (PW-124) who are from the Jammu Kashmir Police and Ibrahim Chauhan, Police Inspector of Crime Branch, Ahmedabad (PW-125). 109. The statement of PW- 123 is extracted as under: the car was seized in our police station limit. The car was seized in September 2003. I do not remember exact date. There may be letters of seizing car in our police station. I did not seize the car, but investigating officer of the case did it. The car was seized by Gulam Mohammad Dar. I do not know if there were documents of the car. It is true that this car was seized by our police station and then by the Gujarat Police by Exhibit 671. During this course, I sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police of Jammu and Kashmir, it was for them to hand over the car from their custody to the Gujarat police. No panchnama or document of seizure of the car had been produced before us to show that the car was recovered from the workshop/garage of A-6 or even that the garage/workshop from which the car was allegedly recovered belongs to A-6. Therefore, we cannot see how the car can be linked to A-6 in the absence of any independent evidence other than his confessional statement which had been subsequently retracted. 111. It is also of the utmost importance for us to mention the statement of PW-125, Ibrahim Chauhan, Crime Branch, Ahmedabad regarding the seizure of the car since it is reflective of how casually and with what impunity the investigation has been conducted in the instant case by the investigating officer. PW-125, who was a part of the investigation of this case in Kashmir, and who was also responsible for escorting A-2, A-4 and A-5 to Srinagar, Kashmir, states as under: After knowing the facts of seizing car in the case 130/ 2003, I had no occasion to ask for papers regarding vehicle seized, because I was engaged in other works. It is in my view that panchnama reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her independent evidence is the blue ambassador car in which A-6 was alleged to have brought the fidayeens and the weapons to Ahmedabad through Bareilly from Jammu and Kashmir. We have already ascertained while answering the point about the above letters that neither the two letters produced before the Special Court (POTA) nor the procedure by which the ambassador car was seized by the Gujarat police, inspires confidence in our minds to show that these are genuine evidence to implicate the accused persons in the offence. The only other material evidence on record on the basis of which the prosecution had argued the involvement of the accused persons, are the confessional statements given by A-1, A-2, A-3, A-4 and A-6 before the Gujarat police Under Section 32 of POTA. We have already mentioned that the confessional statements had not been recorded as per the strict statutory mandate provided for Under Section 32 of POTA, which made their confessional statements inadmissible as evidence. However, we also intend to record certain other reasons as to why the conviction and sentencing of the accused persons by the Special Court (POTA), which was upheld by the High Court in the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 177 at p.178 : I.L.R. 54 Mad. 75 at p.77) Reilly, J., observed that the provision of Section 30 goes not further than this, where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence. In Bhuboni Sahu v. The King 76 Ind App 147 at p.155 AIR 1949 PC 257 at p.260) the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that, a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of evidence contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis laid by this Court) 115. Again, in the present case, there is nothing on record other than the statements of the accomplices (of which PW- 51 retracted from his confession) and the confessional statements of the accused persons which were retracted and this aspect of the matter was required to be considered by the courts below while recording the findings on the charges framed against the accused persons. The retraction of the confessional statements of the accused persons A-2, A3, A-4 and A-6 and that of PW-51 revealed that they were tortured by the police to extract their confessional statements. Therefore, the confessional statements of A-2, A-3, A-4 and A-6 cannot be relied upon for this reason also i.e. they have been retracted vide Exs. 779 (A-2), 780 (A-4), 33 (A-3) and 32 (A-6). A-2 had retracted his confessional statement vide Ex. 779, wherein he had detailed the account of how he was detained on the charge of 'auto rickshaw theft' and was brought to the Crime Branch, Ahmedabad and forced to confess regarding the crime of attack on the Akshardham temple. He had stated that he was put to intense physical and psychological torture and the police threatened him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efits. Then they beat me in such a way that I became unconscious and fell down ..When I became conscious I was near Vanar Saheb office. I suffered much difficulty. I was weeping. It was night. At that time one constable came and told me that superior sahib was calling. I had no strength to walk or stand. I was caught and taken to Vanzara Saheb office. All four officers were present there. They told me to agree the crime, otherwise I shall be encountered. But I did not believe. Then they brutally beat me. There was bleeding in back portion .They gave me currents. Then I told them, sir, have mercy on me. I am not culprit. Pardon me. Please don't make me criminal wrongly. I do not know anything in this regard. They threatened me to harass me and my family members. Even though I have not committed any crime, they wanted to agree Akshardham crime. (Emphasis laid by this Court) (translation extracted from the Additional documents submitted on behalf of the State of Gujarat) A-2 further stated: One day Singhal Saheb called me to office and asked me to do as we say. I know that you are a good congress worker. The relief materials received from congress at the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Then they told me that we also know that you are innocent .. I reached to Ahmedabad on 9-9-03 .Then I was taken to POTA Court. Prior to it Singhal and Vanar Saheb told me that I was to be taken to the Court. If you complain, you shall not be kept alive. You might not be knowing what we can do. We can take out prisoner from the Central Jail and encounter him, while you are with us. Latif was in jail. We brought him out and killed. What can you do against us. I was not allowed to speak anything in the Court I was taken on 23-9-2003 with strips on my eyes. I was told that Doctor had come for my treatment I was given two injections on my right hand .On the next day I told them that I have many difficulties on account of your injections. Then Vanar Saheb and Patel Saheb told me that our work is over and I am not required now. On 25-9-03, Vanar Saheb, Singhal Saheb and other officers seated me in a jeep and took me to old high court. Singhal Saheb and vanar Saheb informed me that here in big judge. You should sign where he says, otherwise you know what we can do. Here court is ours, Govt. is ours, polices is ours and judge sahib is also ours. I was taken to judge sahib room. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/8/03, at noon and at night, that is two to three times a day I was taken to the office of Singhal Vanzara sir. Vanar sir also remained present there. They presented a story of Akshardham before me and asked me to repeat that story before senior officer and confess it. I refused and so mental and physical torture was effected on me. I was beaten with a stick everyday on my backside, feet and palms. They used to beat me so badly that I fell down on the floor. Sometimes, lips were attached on my hand fingers and current was given to me. Pins were pierced below the nails of my finger tips. Such inhuman torture wad done on me for about ten days from 17/8/03 to 29/8/03. I was illegally kept in the Crime Branch office and tortured and threatened ..Later on 29-8-03, Friday at 3.00 pm noon, on officer (whose name I learnt later) PI RI Patel called my father and me too. My and fathers signatures were taken on some papers. Neither do I or my father know what was written on those papers. But we were helpless and had to sign them. At about 3-4 o clock many photographers came and made me cover my face with a bukha (cloth) and clicked photographs. That day at about 10.00 pm night Singhal Sah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. At this DIG K Rajendra answered me that they would not let any trouble fall upon my family, if I told the truth. I was impressed with his words and started owning loudly. Due to his humanitarian approach, I gained confidence and told him that I was innocent and knew nothing about Akshardham. They answered me that they would not let injustice happen to innocent as they had arrested the person involved in this scandal . .Later on 9-9-03 I was brought again to Ahmedabad I was brought to Crime Branch on 14-9-03, Vanar Saheb called me he was writing something on some papers Then he gave those papers to me(which he was writing). He asked me to read those papers. In them, I was accused of crime and falsely trapped in Akshardham case by these officers. After reading, I pleaded and requested Vanar saying that I was innocent and such allegations must not be charged on me .He asked me to read those papers in same way and confess in front of live camera, as they had written my role in those papers. At about 10.00 pm they compelled me to tell the false story in front of video camera .I used to forgot and make mistakes in telling the written story. At this PI Vanar used to sign me and rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In re. Kesava Pillai AIR 1929 Mad 837) (B) : ILR 53 Mad 160 that if the reasons given by an accused person for retracting a confession are on the face of them false, the confession may be acted upon as it stands and without any corroboration. But the view taken by this Court on more occasions than one is that as a matter of prudence and caution which has sanctified itself into a rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated one of the latest cases being 'Balbir Singh v. State of Punjab AIR 1957 SC 216 (C), but it does not necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated nor is it essential that the corroboration must come from facts and circumstances discovered after the confession was made. It would be sufficient, in our opinion, that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession. In this connection it would be profitable to contrast a retracted confession with the evidence of an approver or an accomplice. Thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er' and death of their loved ones. All the accused persons speak of torture by beating, especially on the legs and this corresponds to their complaints of pain 'under the feet'. 117. Further, A-5 also made a statement as per Ex. 778 that he was tortured in police custody and that he had no role in the conspiracy to attack the Akshardham temple and he was being framed in the case. The statements of retraction also referred to the repeated entreaties by accused persons before the Special Court (POTA) as well as by A-2, A-4 and A-5, before the DIG of Police at Jammu and Kashmir, Mr. K Rajendra Kumar to transfer the case to the CBI for an independent investigation and enquiry. 118. Further, A-6 had also retracted his confessional statement (Ex. 32), wherein he had also alleged severe torture and beating by the Srinagar police as well as the Crime Branch, Ahmedabad and he alleged that he was arrested at Nagpur and sent to Srinagar and a compulsory confession had been extracted from him in order to implicate him in the crime. 119. Further, with respect to the two Urdu letters, which were purportedly written by A-4, upon which the prosecution placed such an unflinchin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that although retracted confession is admissible, the same should be looked with some amount of suspicion - a stronger suspicion than that which is attached to the confession of an approver who leads evidence to the court. (Emphasis laid by this Court) 121. Thus, for the above reason also, the confessional statements of the accused persons cannot be relied upon and the case of the prosecution fails. Accordingly, we hold that there is no independent evidence on record to prove the guilt of the accused persons beyond reasonable doubt in the face of the retractions and grave allegations of torture and violation of human rights of the accused persons against the police. We accordingly answer this point in favour of the Appellants. Answer to point No. 8 122. The accused persons have been found guilty of the offence of criminal conspiracy by both the courts below. It was contended before us by the learned senior Counsel for the prosecution that the accused persons in the instant case are guilty of criminal conspiracy and though the accused persons did not know each other, it is not a prerequisite for establishing the offence of criminal conspiracy provided Under Section 120- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement. (Emphasis laid by this Court) 123. The ingredients necessary to establish the offence of criminal conspiracy have been discussed by a three Judge bench of this Court in the case of Ram Narayan Popli and Ors. v. Central Bureau of Investigation (2003) 3 SCC 641 in a portion of the below para, as under: 342. ....The elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements: (1) agreement; (2) between two or more persons by whom the agreement is affected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished..... 124. In the present case, the prosecution had relied upon the information contained in the confessional statements of the accused persons in order to set up the plea that the offence of criminal conspiracy had been committed by each one of them. A careful examination of this information will reveal that this claim of the prosecution does not hold water. 125. To punish an accused Under Section 120B of the Indian Penal Code, it is essential to establish that there was some common object to be achieved and that there was an agreement by the accused persons to achieve that object i.e. there was a 'meeting of minds'. In the present case, it cannot be said that the conspiracy was hatched by the accused persons in furtherance of some common object. The common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roles and are not able to identify the role of any other conspirator. But that is not the case here. It is not the case here that the knowledge of the conspirators is limited to their role. Each accused claims to have complete knowledge of the conspiracy, while contradicting the other's version of the same events to constitute the act of criminal conspiracy. 128. Therefore, the confessional statements of the accused persons and the accomplices do not complement each other to form a chain of events leading to the offence. Rather, the depositions of the prosecution witnesses were contradictory and disrupt the chain of events and turn it into a confusing story with many discrepancies, defeating the roles of each of the accused persons which have been allegedly performed by them. Also, none of the events of the alleged criminal conspiracy was supported by independent evidence that inspires confidence in our minds to uphold the conviction and sentences meted out to the accused persons. 129. Hence, we hold that the prosecution has failed to prove beyond reasonable doubt, the guilt against the accused persons, for the offence of criminal conspiracy Under Section 120B of the Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly and only when injustice is perceived to have been perpetuated. But in any view of the matter there is no jurisdictional lock which cannot be opened in the face of grave injustice... (Emphasis laid by this Court) Further, this Court has explained the circumstances in which it can interfere with the findings of the fact recorded by the courts below. In the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217, it was held by this Court that: 5. .......Such a concurrent finding of fact cannot be reopened in an appeal by special leave unless it is established: (1) that the finding is based on no evidence or (2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissible evidence, which evidence, if excluded from vision, would negate the prosecution case or substantially discredit or impair it or (4) some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or wrongly discarded.... More recently, in the case of Ganga Kumar Shrivastav v. State of Bihar: (2005) 6 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on level to the granting of sanction by the state government to prosecute the accused persons under POTA, the conviction and awarding of sentence to the accused persons by the Special Court (POTA) and confirmation of the same by the High Court. We, being the apex court cannot afford to sit with folded hands when such gross violation of fundamental rights and basic human rights of the citizens of this country were presented before us. The investigation process post Akshardham attack happened as under: The incidence of Akshardham happened in the intervening nights between 24.09.2002 and 25.09.2002. An FIR was registered by PW-126 on 25.09.2002. According to the instruction of Superintendent of Police, the investigation of the complaint was handed over to Police Inspector Shri V.R. Tolia (PW-113). The investigation was then handed over to the Anti Terrorist Squad on 03.10.2002. The investigation was thereafter handed over to the Crime Branch which was assigned to PW-126 on 28.08.2003 at 6:30 p.m. The statement of PW-50 was taken at 8 p.m., on the same night of 28.08.2003, after receiving verbal instruction from higher officer-D.G. Vanzara in the morning. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that there was no complaint made by them. Secondly, the courts below held that the fact that A-1 to A-5 did not know A-6, does not disprove the theory of criminal conspiracy, rather it displays the extreme caution with which the conspiracy was hatched. We are unable to bring ourselves to agree with this reasoning of the courts below, as in the instant case, not only did A-1 to A-5 not know A-6 and vice versa, but also A-2, A-4 and A-6 had narrated different versions of the same story, each of which contradicted the other and was actually fatal to the case of the prosecution. The courts below mechanically and without applying their mind, discarded this contention of the learned Counsel on behalf of the accused persons. Thirdly, the two Urdu letters purported to have been recovered from the pockets of the trousers of the fidayeens (Ex. 658), did not have even a drop of blood, mud or perforation by the bullets, whereas on physical examination of the trousers by us, which are marked as mudammal objects, we found that the clothes on the pockets of the fidayeens were perforated with bullets and smeared with dried blood even after 12 years of the incident. The Special Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple. All these people were taken before eight to nine days of the rally. In Cross Examination by Special P.P. Shri H.M. Dhruv for the state, DW-3 states as under: ....... I had given the names of the boys who were arrested under POTA to Nazneenben. Boys were talking in Mohalla. Maulvi Ahmed resides in Kalupur. It takes five to seven minutes if we go to Kalupur on foot from my house which is situated at Dariyapur. Maulvi Abdullah resides at Baluchawad Moti Haveli in Kalupur area. Mufti Kayum resides in Dariyapur and his house is situated at a distance of two to three minutes from my house. It is true that there may not be any occasion for me to visit houses of these people, only we meet on the way. It is true that Nazneen Ben told for arranging the rally in respect of their arrest under POTA. It is true that boys were saying that Maulvi Abdulla, Mufti Kayum and Maulvi Ahmed had been taken away by arresting them under POTA. It is not true that I had stated falsely that Mufti Abdulla, Mufti Kayum and Maulvi Ahmed were taken before 8 to 9 days of 25.8.2003. They were not my kin or kith out of the persons who have been arrested in POTA. We reside in one Mohalla and we belong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent evidence. Rejection of the defence case only by reason thereof is far too strict and rigid a requirement for the defence to meet -- it is the prosecutor's duty to prove beyond all reasonable doubts and not the defence to prove its innocence -- this itself is a circumstance, which cannot but be termed to be suspicious in nature. (Emphasis laid by this Court) Also, in the case of State of U.P. v. Babu Ram (2000) 4 SCC 515, this Court held as under: 21. Shri N.P. Midha, learned Counsel for the Respondent submitted written submissions over and above the oral arguments addressed by him. One of the contentions adverted to by the learned Counsel is pertaining to the evidence of the defence witness (DW 1 Moharam Ali). Counsel contended that if the evidence of DW 1 Moharam Ali can be believed it is sufficient to shake the basic structure of the prosecution evidence. Shri N.P. Midha invited our attention to the following observations contained in the decision of this Court in Dudh Nath Pandey v. State of U.P.: (SCC p. 173, para 19) Defence witnesses are entitled to equal treatment with those of the prosecution. And, courts ought to overcome their traditional, instinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down by this Court, we are convinced that accused persons are innocent with respect to the charges leveled against them. We are of the view that the judgment and order of the Special Court (POTA) in POTA case No. 16 of 2003 dated 01.07.2006 and the impugned judgment and order dated 01.06.2010 of the High Court of Gujarat at Ahmedabad in Criminal Confirmation Case No. 2 of 2006 along with Criminal Appeal Nos. 1675 of 2006 and 1328 of 2006 are liable to be set aside. Consequently, the sentences of death awarded to A-2, A-4 and A-6, life imprisonment awarded to A-3, 10 years of Rigorous Imprisonment awarded to A-5 are set aside. Since we are acquitting all the accused in appeal before us for the reasons mentioned in this judgment and also, since A-1 was convicted and sentenced on the basis of the same evidence which we have already rejected, we also acquit A-1 who is not in appeal before us, of the conviction and sentence of 5 years Rigorous Imprisonment awarded to him by the courts below, exercising the power of this Court Under Article 142 of the Constitution and hold him not guilty of the charges framed against him. We are aware that he has already served his sentence. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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