2014 (5) TMI 1161 - SC - Indian Laws

Attack on the Akshardham temple in Gandhinagar - section 120 of Indian Penal Code - It is the case of the prosecution that the confessional statements of the accused persons were recorded by the Superintendent of Police Sanjaykumar Gadhvi (PW-78) as provided Under Section 32 of the POTA by following the mandatory procedure - constitutional validity of Section 15 of the TADA Act - validity of confessions. Held that - adequate time had not been given to any of the accused as they had been in police custody for almost 45 days in each case. We also observe that there is no evidence on record to suggest that the special report envisaged Under Sub-rule (5) of Rule 15 had been submitted to the Magistrate. The confessions cannot therefore be taken into account for any purpose. In the facts and circumstances of the present case the grant of half an hour to the accused to think over before recording their confessional statement cannot be held to be a reasonable period. We do not think that is safe to base conviction on such confessional statements. Further on the facts of the present case conviction cannot be maintained on the sole testimony of two police officials - 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.

Summary

Issues Involved:
1. Validity of sanction under Section 50 of POTA.
2. Admissibility and procedure of recording confessional statements under Section 32 of POTA.
3. Reliability of accomplice testimony.
4. Authenticity of Urdu letters found on fidayeens.
5. Connection of A-4 to the Urdu letters.
6. Evidence against A-6.
7. Independent evidence apart from confessions and accomplice statements.
8. Guilt of A-2 to A-6 under Section 120B IPC for criminal conspiracy.
9. Scope of interference with concurrent findings of lower courts under Article 136 of the Constitution.

Analysis of Judgement:

1. Validity of Sanction under Section 50 of POTA:
The sanction granted by the Home Department of Gujarat for prosecuting the accused under POTA was found to be void due to non-application of mind. The Principal Secretary, Home Department (PW-88) admitted that not all documents were reviewed, and there was no independent analysis or discussion with investigating officers, rendering the sanction invalid.

2. Admissibility and Procedure of Recording Confessional Statements:
The confessional statements were recorded in violation of the mandatory procedural safeguards under Section 32 of POTA. The police officer (PW-78) did not provide adequate reflection time, and the accused were not assured that non-confession would not affect their well-being. The CJM (PW-99) failed to send the accused to judicial custody after recording their statements, as required. Consequently, the confessions were deemed inadmissible.

3. Reliability of Accomplice Testimony:
The testimonies of accomplices (PW-50, PW-51, PW-52) failed to meet the twin test of reliability and corroboration. Their statements were vague, contradictory, and not corroborated by independent evidence. The delay in recording their statements further cast doubt on their reliability.

4. Authenticity of Urdu Letters Found on Fidayeens:
The Urdu letters (Ex. 658) found on the fidayeens were not accepted as evidence due to inconsistencies and improbabilities. The letters were spotless despite the blood and bullet holes on the fidayeens' clothes. The prosecution failed to prove that these were the same letters recovered from the fidayeens, and key witnesses like Brigadier Sitapati were not examined.

5. Connection of A-4 to the Urdu Letters:
The prosecution's claim that A-4 wrote the Urdu letters was based on his confessional statement and the opinion of a handwriting expert (PW-89). However, the expert's opinion was not conclusive, and the procedure followed was flawed. Thus, it was not proven beyond reasonable doubt that A-4 wrote the letters.

6. Evidence Against A-6:
The evidence against A-6, including the seizure of an ambassador car, was found to be unreliable. The car was registered in another person's name, and no independent evidence linked A-6 to the car or the crime. The prosecution failed to produce the original panchnama and seizure memo from the Jammu and Kashmir police.

7. Independent Evidence Apart from Confessions and Accomplice Statements:
There was no independent evidence to corroborate the retracted confessional statements of the accused. The prosecution's case relied heavily on these confessions and accomplice statements, which were not supported by any independent material evidence.

8. Guilt of A-2 to A-6 under Section 120B IPC for Criminal Conspiracy:
The prosecution failed to establish a common object or agreement among the accused to commit the attack on Akshardham. The confessional statements were contradictory, and there was no independent evidence to prove the conspiracy. Thus, the charge of criminal conspiracy under Section 120B IPC was not proven.

9. Scope of Interference with Concurrent Findings of Lower Courts under Article 136 of the Constitution:
The Supreme Court held that it could interfere with the concurrent findings of fact by lower courts if the findings were perverse, based on inadmissible evidence, or resulted in a grave miscarriage of justice. In this case, the Court found that the lower courts had erred in law and fact, leading to a miscarriage of justice.

Conclusion:
The Supreme Court set aside the judgments of the Special Court (POTA) and the High Court, acquitting all the accused of the charges framed against them. The Court expressed its anguish over the incompetence of the investigating agencies and the wrongful conviction of innocent individuals. The appeals were allowed, and the accused were ordered to be released if not required in any other case.