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TMI Blog2008 (11) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... ) whereby they were acquitted of charges under Section 3 and 5 of The Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short `the Act') but were held guilty of different offences under the Indian Penal Code (for short `IPC') and sentenced to life imprisonment. Appellant Nos.A-5 and A-8 were also convicted under Section 27 of the Arms Act, 1959 and sentenced to three years rigorous imprisonment and a fine of Rs. 3,000/- and in default to undergo rigorous imprisonment for a further period of six months. They were also convicted under Section 135 of the Bombay Police Act. 2. Background facts (i) On 3.8.1992, Hansraj Trivedi, an alleged supplier of illicit liquor and eight others were gunned down at Radhika Gymkhana Club, Ahmedabad. Although the Police registered Criminal Case No. 254 of 1992 in connection with that incident but effective steps were not taken to arrest Abdul Latif and his gang members, who were perceived as the culprits. There was public outcry against the police inaction. This compelled the concerned officers to intensify their efforts to arrest the accused. In the wake of this development, Abdul Latif and members of his gang planned surrepti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, Section 120B read with Section 302 IPC, Section 302 read with Sections 34 IPC, Section 302 read with Section 114 IPC, Section 302 IPC and Section 27 of the Arms Act. The case was committed to Designated Court and was numbered as TADA Case No. 176 of 1993. Subsequently, two more charge-sheets were submitted and the same were numbered as TADA Cases No. 25 of 1996 and 32 of 1996. All the cases were consolidated and were tried together. (iv) The charges were framed on 2.7.1998 against 11 accused. All of them pleaded not guilty. The prosecution examined 124 witnesses and produced 147 documents, which were duly exhibited. Thereafter, statements of the accused were recorded under Section 313 of Code of Criminal Procedure (Cr.P.C.). They alleged that the police has foisted false cases against them to avoid embarrassment for having failed to solve the mystery surrounding the murder of Rauf Valiullah and that confessions were extracted from them by using coercion and threats. 3. After analyzing the evidence produced by the prosecution and considering the confessions made by the appellants except appellant No. A- 11, under Section 15 of the Act as also the statements made by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants could not have been convicted by relying on confessions ignoring that the same were not voluntary. Learned Counsel extensively referred to the statements made by the appellants under Section 313 Cr.P.C. to show that they were subjected to physical torture for the purpose of extracting confession and submitted that the same should have been rejected by the trial Court because, (i) All the appellants were brought from Ahmedabad to Delhi within 24 hours of their arrest and they were compelled to make confessions without giving them adequate time to ponder over the consequences. (ii) The appellants were throughout kept in the custody of Shri O.P. Chatwal, Deputy Superintendent of Police and Investigating Officer (for short `the Investigating Officer') and were deprived of the legal assistance. (iii) The appellants were produced before Shri A.K. Majumdar, PW- 104 and Shri Harbhajan Ram, PW-103 (both Superintendent of Police, CBI) for the purpose of recording their confessions despite the fact that they were directly supervising the investigation and were in a position to dominate the will of the appellants. (iv) After preliminary questioning, the concerned Superintenden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the appellants are liable to be rejected because both Shri A.K. Majumdar and Shri Harbhajan Ram, Superintendents of Police, CBI, who were actively supervising the investigation, had successfully tutored the minds of the appellants and induced them to make confessions. Shri Dave submitted that all the accused were kept in the custody of the Investigating Officer for 10 days before their confessions were recorded but this aspect has been ignored by the trial Court while deciding the issue of voluntary character of the confessions. Shri Dave pointed out that appellant No. A-10 retracted his confession on 25.7.1996 itself when he was produced before Chief Judicial Magistrate, Delhi and argued that the trial Court committed serious illegality by relying upon the retracted confession. Dr. Sushil Gupta argued that there is no evidence to link accused with the conspiracy allegedly hatched by Rasool Party and the learned Trial Judge committed serious error by convicting them. In support of their arguments learned Counsel relied upon the judgments of this Court in Raja Khima v. State of Saurashtra 1956CriLJ426 , Sarwan Singh Rattan Singh v. State of Punjab 1957CriLJ1014 , Shankaria v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 302 read with Section 120B IPC cannot be faulted on the ground that they were acquitted of the charge under the Act. In the end, he argued that para 2 of the guidelines laid down by this Court in Kartar Singh's case which requires that the person who makes confession under Section 15(1) of the Act should be produced before the Chief Metropolitan Magistrate or Chief Judicial Magistrate to whom the confession is required to be sent under Rule 15(5) of the Rules along with original statement of confession, is not attracted in the present case because confessions of the appellants except appellant No. A-10 were recorded prior to 11.3.1994 i.e. the date of judgment and insofar as appellant No. A-10 is concerned, he was produced before the Chief Judicial Magistrate, Delhi on the date his confession was recorded i.e. 25.7.1996. 8. We have given serious thought to the entire matter. Section 15 of the Act, as amended by Act No. 43 of 1993 and Rule 15 of the Rules which have bearing on these cases read as under: Section 15 of the Act Certain confessions made to Police Officers to be taken into consideration- (1)Notwithstanding anything in the Code or in the Indian Eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n my presence and hearing and recorded by me 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. Sd/- Police Officer (4) Where the confession is recorded on any mechanical device, the memorandum referred to in Sub-rule (3) in so far as it is applicable and a declaration made by the person making the confession that the said confession recorded on the mechanical device has been correctly recorded in his presence shall also be recorded in the mechanical device at the end of the confession. (5) Every confession recorded under the said Section 15 shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Designated Court which may take cognizance of the offence. 9. The challenge to constitutional validity of the Act was rejected in Kartar Singh's case. While doing so, the Court took note of the apprehension expressed by some of the learned Counsel that the provisions of the Act are likely to be m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents in the Act and the Rules, necessary amendments have not been carried out so far. 11. The question whether a confession recorded under Section 15 of the Act can be used for convicting an accused for an offence under other enactments like IPC despite his acquittal of the charge framed under the Act, was considered and answered in negative by a two-Judges Bench in Bilal Ahmad Kaloo v. State of A.P. 1997CriLJ4091 . The same view was reiterated in Rambhai Nathabhai Gadhvi v. State of Gujarat 1997CriLJ4806 and Gurprit Singh v. State of Punjab 2002CriLJ2978 . However, in Nalini's case, a three-Judges Bench held that if a person is tried simultaneously for offences under the Act along with other enactments his acquittal in respect of an offence under the Act is not sufficient to discard the confession recorded under Section 15 of the Act and the same can be used for conviction under other enactments. The three-Judges Bench referred to the earlier judgments in Bilal Ahmad's case (supra), Rambhai Nathabhai Gadhvi's case (supra), Gurprit Singh's case (supra) and observed: Section 12 of TADA enables the Designated Court to jointly try, at the same trial, any offence und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence with which the accused may be charged under CrPC at the same trial. The only embargo imposed on the exercise of the power is that the offence under TADA is connected with any other offence being tried together. Further, Section 12(2) provides that the Designated Court may convict the accused person of offence under that Act or any rule made thereunder or under any other law and pass any sentence authorised under that Act or the Rules or under any other law, as the case may be for the punishment thereof, if in the course of any trial under TADA the accused persons are found to have committed any offence either under that Act or any rule or under any other law. 36. The legislative intendment underlying Sections 12(1) and (2) is clearly discernible, to empower the Designated Court to try and convict the accused for offences committed under any other law along with offences committed under the Act, if the offence is connected with such other offence. The language "if the offence is connected with such other offence" employed in Section 12(1) of the Act has great significance. The necessary corollary is that once the other offence is connected with the offence under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence 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. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. Their Lordships think that the view which has prevailed in most of the High Courts in India, namely that the confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction, is correct. (emphasis supplied) 17. The same view was reiterated in Raja Khima's case, and it was held that confession made by a person accused of an offence can be relied upon for convicting him only if the Court is satisfied that the same was made voluntarily. Applying this principle in Bharat v. State of U.P. (1971)3SCC950 , the Court observed that "the voluntary nature of the confession depends upon whether there was any threat, inducement or promise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act, the legislature designedly made a departure from the provisions of the Cr.P.C. and 1872 Act and declared that confession made by a person before a police officer of the rank of Superintendent of Police or above, shall be admissible in the trial of such person as also the co-accused, abettor or conspirator for an offence under the Act or rules made thereunder. In order to ensure that this provision is not misused for extracting confession from a person accused of committing an offence under the Act, the legislature also specified certain safeguards in Sub-section (2) of Section 15 of the Act and Rule 15 of the Rules. In Gurdeep Singh's case, this Court interpreted the provisions of Section 15 of the Act in contra-distinction to Section 25 of the 1872 Act and held: 15. The legislature has conferred a different standard of admissibility of a confessional statement made by an accused under the TADA Act, from those made in other criminal proceedings. While under Section 15 of the TADA Act a confessional statement by an accused is admissible even when made to a police officer not below the rank of Superintendent of Police, in other criminal proceedings it is not admissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew decisions on the question of interpretation of Sections 3 and 30 of the Evidence Act, foremost being that of the Privy Council in Bhuboni Sahu v. R. and though we note this decision, it would not be applicable because of the view which we have taken on the exclusion of Section 30 of the Evidence Act." In his concurring judgment Quadri, J. highlighted the distinction between Section 30 of the 1872 Act on the one hand and Section 15 of the Act on the other hand and observed that while under the former, the Court is given discretion to take into consideration the confession against the maker as well as against those who are being tried jointly for the same offence, the latter provision mandates that confession of an accused recorded thereunder shall be admissible in the trial of the maker or co-accused, abettor or conspirator provided that each of them is charged and tried with the accused in the same case. His Lordship then held that in view of the express exclusion of the application of Sections 24 to 30 of the 1872 Act to a confession recorded under Section 15(1) of the Act, the requirements of Section 30 of 1972 Act cannot be read into Section 15 of the Act. Some of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding the Privy Council and the Supreme Court on Section 30 of the Evidence Act but chose to frame Section 15 differently obviously intending to avoid the meaning given to the phrase "the court may take into consideration such confession as against such other person ..." used in Section 30 of the Evidence Act. On the language of Section 15(1), it is clear that the intention of Parliament is to make the confession of an accused substantive evidence both against the accused as well as the co-accused. 21. In S.N. Dube v. N.B. Bhoir and Ors. 2000CriLJ830 , the Court referred to the judgment of the Constitution Bench in Kartar Singh's case and observed that Section 15 is an important departure from the ordinary law and must receive that interpretation which would achieve the object of that provision rather than frustrate it. 22. In Lal Singh's case, the Court referred to the earlier judgments in Kartar Singh's case, Nalini's case, S.N. Dubey's case and held: 23. ...Custodial interrogation in such cases is permissible under the law to meet grave situation arising out of terrorism unleashed by terrorist activities by persons residing within or outside t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rregularities here and there would not make such confessional statement inadmissible in evidence. If the legislature in its wisdom has provided after considering the situation prevailing in the society that such confessional statement can be used in evidence, it would not be just reasonable and prudent to water down the scheme of the Act on the assumption that the said statement was recorded under duress or was not recorded truly by the officer concerned in whom faith is reposed." 24. In Devender Pal Singh's case majority of three-Judges Bench made a reference to Gurdeep Singh's case, Nalini's case and held that whenever an accused challenges the voluntary character of his confession recorded under Section 15(1) of the Act, the initial burden is on the prosecution to prove that all the conditions specified in that Section read with Rule 15 of the Rules have been complied with and once that is done, it is for the accused to show and satisfy the Court that the confession was not made voluntarily. The Court further held that the confession of an accused can be relied upon for the purpose of conviction and no further corroboration is necessary if it relates to the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the confessional statement in the facts of the case creates any doubt as to the genuineness of the said confessional statement. [Emphasis supplied] 26. In Abdulvahab Abdul Majid Shaikh's case, this Court rejected the argument raised on behalf of the appellant that the confession made by him cannot be treated as voluntary because the same had been retracted and observed: ...The police officer was empowered to record the confessional and in law such a confession is made admissible under the provisions of the TADA Act. The mere fact that A-9 Musakhan @ Babakhan retracted subsequently is not a valid ground to reject the confession. The crucial question is whether at the time when the accused was giving the statement he was subjected to coercion, threat or any undue influence or was offered any inducement to give any confession. There is nothing in the evidence to show that there was any coercion, threat or any undue influence to the accused to make the confession. 27. The ratio of the above noted judgments is that if a person accused of an offence under the Act makes a confession before a police officer not below the rank of Superintendent of Police and the same is reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded the confession and was examined as PW 21, stated that he gave 10 days time to the appellant for reflection. By making a statement in writing before the committing court, he stated that while in jail, the police had coerced him to make confessional statement. He was frightened that if he would not confess the crime, the police will beat him and, therefore, he made false confession as per the dictates of the police. A similar statement was made by him under Section 342 Cr.P.C. 1898, which is equivalent to Section 313 Cr.P.C. This Court discarded the confession by making the following observations: The appellant was sent to a Magistrate at 8 p.m. on the 21st for the recording of a confession but the Magistrate did not record it till the 3rd of June. He was examined as PW 21 and explained that he gave the appellant ten days for reflection. The length of time is unusual but no objection about its fairness to the accused could reasonably have been raised had it not been for the fact that the judicial lock-up is in charge of a police guard which is under the direct control, orders and supervision of the very Sub-Inspector who had conducted the investigation and had earlier sus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement the Sub-Inspector went to the Magistrate's room and also that even though there were injuries on the person of the appellant, the Magistrate did not inquire about the same and held: There can be no doubt that, when an accused person is produced before the Magistrate by the investigating officer, it is of utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and the effective way of securing such freedom from fear to the accused person is to send him to jail custody and give him adequate time to consider whether he should make a confession at all. It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Shankaria had, as a matter of fact, about 38 or 40 hours in judicial custody, immediately preceding the confession and this was rightly considered sufficient to secure freedom from fear or influence of the police to him (Shankaria). 31. Aloke Nath Dutta's case was not arising out of prosecution under the Act. The argument of the counsel for the appellant which found favour with this Court was that the confession had not been recorded in accordance with law and in any case, in the absence of any corroborative evidence, the confession of a co-accused could not be made basis for conviction. 32. In Ajit Singh's case, the Court referred to the judgments in Kartar Singh's case, Jameel Ahmed's case and held that the confession of the co- accused cannot be relied upon for reversing acquittal of the respondents because none had admitted that they were aware of the involvement of respondent No. 1 in the terrorist activities. 33. In the light of the above, we shall now deal with the arguments of the learned Counsel for the appellants that confessions made by their clients were not voluntary and the learned trial Judge committed grave error relying upon the same for convic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mdar recorded the following note: From the above questions and answers, I am satisfied that the accused Mohd. Farukh Allah Rakha Sheikh is making his confession voluntarily. However, I give him more time till 30.5.1993 again to think over whether he wants to make the confession. 35. On 30.5.1993, appellant No. A-4 was again produced before Shri Majumdar, who repeated the question whether he was desirous of making confession. In turn appellant No. A-4 reiterated that he was making confession voluntarily. Shri Majumdar then recorded his satisfaction that the accused was ready to make confession voluntarily. The question and answer as well as the note recorded by Shri Majumdar on 30th May, 1993 read as under: Q1. What have you thought about giving confession, do you still want to make confession? A. I have considered thoroughly about giving my confession. I wish to give my confession voluntarily. Read over and admitted to be correct." Note: I am satisfied that accused Mohd. Farukh Allah Rakha Sheikh is ready to make his confession voluntarily without any fear, coercion and allurement. Hence, I proceed to record his confession under Section 15 of TADA(P) Act, 1987. 36. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven thought about making confessions and getting reply that they wish to make confessions voluntarily, the concerned officer recorded their statements. 38. In his detailed statement, appellant No. A-7 disclosed the background in which he joined the business of spurious country liquor and came in contact with Latif and Gang, Rasool Khan @ Rasool Party and his associates including Sajid Ali (appellant No. A-6), Gulal (appellant No. A- 11) and Mohd. Pehalwan alias Mohd. Umar Majid Pathan (appellant No. A- 5) and the hideout of Rasool Khan alias Party at Baluchawad. He further disclosed that he knew Rauf Valiullah, a Congress leader belonging to the Muslim community and that he was called by Rasool Party through Gulal (appellant No. A-11) five-six days before the murder of Rauf Valiullah and asked to remain with Azamkhan (appellant No. A-10) and Sajidali (appellant No. A-6), who had been instructed to attack him (Rauf Valiullah) with knives; that he along with appellant Nos.A-10 and A-6 pursued Rauf Valiullah at various places but he could not attack him at Kalupur because of presence of his family members and at Lal Darwaja due to procession of Hindus; that on 9.10.1992 he was instr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e compound of the flat. Upon this Sajid asked me not to stop the scooter and told me to keep moving the scooter. From there we went to Nehru Bridge and from there reached Baluchawad.... ...It was a Friday on 9.10.1992. As soon as I reached my house at 1.30 p.m., after reading Namaj of Jumma, Gulal came to my house and told me that Rasool is calling me. At that time I was having Scooter No. 2797 belonging to Farukh Baba. Both of us went to Rasool in Baluchawad on the said scooter. Rasool told me to go with Iqbal alias Lala Dhobi. I cam to Iqbal and thereafter took him to Rasool in Baluchawad. We met him in the Press of Rasool and so far I remember Gulal too was there. Rasool told me that Rauf Valiullah has gone to Madhuban Building situated near Ellis Bridge, Under Bridge and told us to go there. He also told that he has already sent Mohd. Pahalwan and Sajid on a scooter for killing Rauf Valiullah. He also told us that Mohd. Pahalwan will fire that shot. Rasool gave one revolver to Iqbal Dhobi also instructed him that if Mohd. Pahalwan does not succeed in killing Rauf Valiullah, then Iqbal Dhobi will shoot and kill Rau valiullah.... ...Both of us left Baluchawad on the scooter w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 which belonged to Rasool. Azam hurriedly said Rauf Valiullah has been killed. He also said S.P. Anarwala has perhaps seen him and his scooter at the spot. Upon this Rasool asked Gulal to immediately remove scooter from there. Gulal asked me to take away the scooter. But I refused him. Thereafter both of them left from there on Scooter No. 2797 and I dropped Iqbal near his house. After some time Gulal came to me on the Scooter of Rasool and asked me to keep the scooter. I refused to do so and thereafter Gulal went away from there on the scooter. Later on, I came to know that this scooter was given to Yunus Ijjat Khan Pathan Foreman for changing the colour. Iqbal had told me that Mohd. Pahalwan had fired the shot upon Rauf Valiullah and after firing the shot he left from there on an auto rickshaw.... ...My name too had come in the Police records along with names of other persons of the company in the murder case of Audhav. Therefore, all of us feared our arrest by police and decided that the members of the gang should leave Ahmedabad for some days. I along with Farukh Baba, Iqbal and Mohd. Ejaj took a Taxi from Ahmedabad and came to Baroda. My in-laws are living in Baroda. We we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement read as under: 9.10.1992 was a Friday. At about 1.30 p.m. after I had read my Namaj, Mohd. Amin alias Choteli who is an employee of the Company came to me on Scooter No. 2797 of Farukh Baba and told me that Rasool Khan alias Party is calling me. I went to Rasool Khan in the Press in Baluchawad along with Choteli on the scooter. So far I remember Gulal was also present there along with Rasool Khan. Rasool Khan gave a revolver to me which was loaded with 6 bullets. He told me that I have to murder Rauf Valiullah. He also told me that Rauf Valiullah has gone inside Madhuban Building situated near Under Bridge, Ellis Bridge. He further told me that he has already sent Sajid and Mohd. Pahalwan for murdering Rauf Valiullah. Rasool told me that myself and Choteli should go to that place on the scooter and if Mohd. Pahalwan fails in killing Rauf Valiullah, then I should shoot and kill Rauf Valiullah. Choteli was to drive the scooter. Rasool told us to cover the number plate of the scooter by applying grease on it after going out of the Mohalla.... I saw that Sajid was sitting on his gray colour scooter on the side of Madhuban Building. Scooter was parked in a stand and Sajid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Scooter No. 515 to Choteli, but Choteli refused to take it. Thereafter both left from there on brownish colour scooter No. 2797. Choteli dropped me near my house. Thereafter I remained inside my house. I did not see Rasool party thereafter.... Since my name had appeared in this murder, therefore, I stopped sleeping in my house and started sleeping on the roofs of other persons. After some days, I came to Bangalore on a train along with Mohd. Yunus Usman Bhai who is residing in Lakhota Pole, Dariapur. Both of us stayed in Hindustan Guest House which is near Railway Station, Bangalore. We stayed there for some days. From there we went to Mysore and Ooty also. From Bangalore we came back to Bombay and lived in the house of Yunus's brother Anis in Boriwili for 7-8 days and tthereafter we came back to Ahmedabad.... In the evening of 17th February, 1993, Musharaf asked me to come to the house of brother-in-law of Khurdas namely Ghani Bhai and told me that he had a talk with Latif Seth on telephone and Seth has ordered that Musharaf and myself should surrender before the police in connection with the murder case of Rauf Valiullah and also said that we should confess our crime. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Cinema hall in Sarangpur and meet Gulal there.... Gulal met me outside Rosy Cinema. When I reached near him, he asked me to park my motor cycle nearby on one side and thereafter took me to the office of a transport company nearby.... ...After about 5-10 minutes, Rasool called on the said telephone. Firstly Gulal attended the said phone and thereafter Gulal gave the receiver to me. Rasool Khan asked me whether I have seen the under bridge behind Mangaldas Town, Ellis Brdige. I told him that I have seen this bridge. Thereupon Rasool told me that Gulal will give me something and I should take that something and go to under bridge and give it to Azam Khan and one other boy who are on a scooter and will meet me at Teen Rasta near Gujarat College ahead of the under bridge. I knew Azam from before because he used to come to Lal Darwaja for swimming. Rasool also told me that I should hand over that something to the boy accompanying Azam and also hand over my motor cycle to Azam. Rasool told me that the said boy will execute the work and I should drive the scooter and after the work is over, I should leave the place with the said boy on the scooter. However, Rasool did not tell as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f driver side and sat inside and the person wearing white kurta-pyjama walked behind the car and reached the left side door of the car and put something in his mouth. By that time, I had reached very near to him and immediately on reaching there I took out the revolver which I had tucked in the belt of my pant below my shirt and fired three rounds continuously on the head of the person wearing white kurta pyjama. In fact, I was so nervous at that time that I could not even count the shots which I fired. Suddenly Sajid brought the scooter from front and I immediately sat on the back seat of the said scooter and both of ran away from there on the scooter towards Ellis Bridge.... After running away from there, we passed via Ashram, ITO Crossing, Wise Crossing, Subhash Bridge, Under Bridge, Girdhar Nagar Bridge, Dariapur and reached Kakoriwala Ki Pole to meet Rasool Khan. Rasool Khan and Gulal were sitting in the Press at that time. After reaching there, Sajid parked his scooter outside the Press and thereafter went inside the Press and told Rasool that the work has been executed.... The relevant portions of the statement of appellant No. A-6, Sajidali, are extracted below: I was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the Trust. He told me that the person for whom we are searching, is not there.... On the next day, I along with Azam again went out on my scooter for keeping a watch. Azam again gave the knife to me. First of all we went to the Trust where Azam went inside and thereafter we went to Congress Bhawan and when we found that the car is not there also, we went behind Gujarat College and saw that Fiat car was standing inside the Compound of the house.... We kept watch upto 4.00 p.m. and thereafter came back and again Azam Khan gave a report of our watch to Rasool Khan. Similarly on third day also I and Azam first went to Trust and thereafter Congress Bhawan and thereafter behind Gujarat College and again took tea there. We again saw that the car was standing there upto afternoon. Thereafter both of us came back for eating our meals. I dropped Azam at the Pole of Mujahid and thereafter went to my house for taking my meals.... After some time Azam came there hurriedly and told me that the said person has come to the Karora Ki Pole. After saying so, he went inside the Kankori Wala Ki Pole near Rasool Khan. After some time, Rasool Khan signaled me and called me inside. By that time G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the side of the driver in the front seat. Azam asked me to chase the car. I immediately started my scooter and chased the car. The car after taking under bridge route, stopped in the parking on the road outside one 7-8 storey building. I took my scooter on one side and parked it there. We saw that the bearded man was wearing shirt pant whereas Rauf Valiullah was wearing a white kurta-pyjama and he was holding a packet in his hand.... After about 30-45 minutes one Mohd. Fighter came to us on a motor cycle.... Azam had told me his name. Mohd. Fighter had come on a black colour Bullet motor cycle.... After Mohd. Fighter reached there, Azam took his motor cycle and left Fighter there and went towards Gujarat College. Fighter was wearing pant shirt and white colour sports shoes on that day.... Fighter sat with me on the scooter after Azam left us. I had told him that the person who is to be eliminated has gone inside the building and he is wearing a white kurta- pyjama and one bearded person is also with him and both of them had come here in blue colour Maruti car.... While we were sitting on our scooter, then we saw Rauf Valiullah and the bearded man coming out of the building ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntarily making confession after having thought about it. Thereafter, Shri Harbhajan Ram recorded satisfaction about the voluntary character of the statement made by appellant No. A-10 expressing his desire to confess his role in the crime. Appellant No. A-10 was again produced before Shri Harbhajan Ram on 25.7.1996. He reiterated his wish to voluntarily make the statement. At that stage, Shri Harbhajan Ram recorded note as per the requirement of Rule 15 of the Rules. Thereafter, Appellant No. A-10 made statement disclosing his acquaintance with Abdul Latif and his gang, Rasool Khan @ Rasool Party, Mohammad Farukh (appellant No. A-4), Mohmed Umar @ Mohammad Pahelwan @ Mohammad Fighter (appellant No. A-5), Sajidali @ Danny (appellant No. A-6), Mohmed Amin @ Amin Choteli (appellant No. A-7), Iqbal Hussain @ Lalia Dhobi (appellant No. A-8) and Gulam Mohmed @ Gulal (appellant No. A-11), who were members of Rasool Party gang and were accomplices of Abdul Latif in the business of illicit liquor. He further stated that about 7-8 days prior to the killing of Rauf Valiullah, Rasool Party called him and told about the decision to eliminate Rauf Valiullah because he was creating hurdles in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminated i.e. killed and handed over the scooter to Rasool Party. Rasool Party asked me to go home and instructed me not to discuss/talk with anyone about murder of Raufwaliullah.... In June, 1993, after arrest of Mohd. Fighter by the Police, I went to Bombay for some days to avoid my arrest and in Bombay I stayed in Gujarat Momin Guest House near Central Arbi Hotel. After the pressure of Police and CBI subsided, I came back to Ahmedabad and mostly lived in the Masjid of my locality and Imambara of Babaji. On 13.7.1996, when I was in Dani Limra, Ahmedabad, ATS of Gujarat Police came there and arrested me.... 42. From what has been noticed above, it is crystal clear that before recording confessions of appellant Nos.A-4 to A-8 and A-10, the two officers viz. Shri A.K. Majumdar and Shri Harbhajan Ram explained to each of them separately that he is not bound to make confession and that if he does so, the same may be used as evidence against him. The concerned officers also recorded their satisfaction that the appellants were making confessions voluntarily and that no threat or allurement was given to any of them and nobody had coerced them to make confession. Each of the six appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e does so, it may be used as evidence against him. The concerned officers also recorded their satisfaction in writing that the accused was making confession voluntarily. The statements of the confessing appellants were recorded in a room where no one except the concerned Superintendents of Police, CBI and stenographers were present. After completion of recording, statement made by the individual accused was read over to him and he appended the signatures after finding that the recording was correct. Thereafter, the concerned officers again noted that the confessions have been made voluntarily, appended their signatures and sent confessional statements to the Chief Metropolitan Magistrate, Delhi for being forwarded to the Designated Court at Ahmedabad. Appellant Nos.A-4 to A-8 were not produced before Chief Metropolitan Magistrate because their confessions were recorded before the judgment of Kartar Singh's case but appellant No. A-10 was so produced on 25.7.1996 as per the guidelines laid down in Kartar Singh's case. It is thus evident that there was total compliance of the mandate of law in recording the confessions of six appellants. 44. The question whether confession m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such cases is permissible under the law to meet grave situation arisen out of terrorism unleashed by terrorist activities by persons residing within or outside the country. In S.N. Dube's case, the Court observed: In this case there is nothing on record to show, except that the confessions were recorded by Shinde in the police station, that they were not recorded in a free atmosphere. No other person was allowed to remain present at that time and all the accused were given time to reconsider their willingness. After they were produced again Shinde had ascertained whether they were still willing to make confessions. All the accused were previously told that they were not bound to make a confession. Each one of them was warned that if he made a confession then it could be used against him.... Shinde had tried to ascertain if any threat or inducement was given to them or whether they were ill-treated or pressurised. All the accused had categorically stated that no such thing had happened. From the answers given by the accused it can be said that Shinde had good reason to believe that the accused were making confessional statements voluntarily.... It was not even the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or coerced by the Investigating Officers or supervising officers or that any allurement was given to him to make confession. (vi) All the confessing appellants were facing trial in number of other cases [this is evident from the statement of PW-100, Mr. Satyakant, the then Deputy Inspector General of Police, CID, Crime (Exh.430)] in which they were duly represented by advocates but till the recording of the statements under Section 313 Cr.P.C., neither they nor their advocates made a grievance regarding denial of legal assistance or alleged that any threat was given to either of them or they were subjected to physical or mental torture or that undue influence was exercised by the Investigating Officers or the supervising officers or any allurement was given for the purpose of making confession. 47. Both the Investigating Officers, namely, Shri R.K. Saini (PW-122) and Shri O.P. Chatwal (PW-123) were subjected to lengthy cross- examination. Shri R.K. Saini denied the suggestion that appellant No. A-10, Salimkhan was never willing to give any confessional statement and his statement was not recorded. He also denied the suggestion that appellant No. A-10 had complained to the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be discarded because the same had been retracted on the first available opportunity. As mentioned above, the only statement made by appellant No. A-10 before Chief Metropolitan Magistrate, Delhi on 25.7.1996 was that he had not made any confession. However, he did not contest his signatures on the confessional statement made before PW-103, Shri Harbhajan Ram. When the appellants were produced before the concerned Magistrate at Ahmedabad, none of them gave out that he had not made confessional statement or that his signatures had been obtained on the blank paper or that he was made to sign on the prepared statement or that he had been subjected to torture, or any threat or allurement was given to him to make confession. While they were in jail, none of the confessing appellants made any application to the Court that he wants to retract the confession. 50. In the bail application dated 21.10.1994 (in paragraph `L'), filed on behalf of appellant Nos.A-4, A-7, A-8 and Abdul Khurdus Abdul Ganikhan Shaikh, under Sections 437 and 439 Cr.P.C. read with Section 20(8) of the Act, it was averred that the only evidence against them is in the nature of confessional statements which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions when they were produced before the Magistrate at Ahmedabad and thereafter despite the fact that they had access to legal assistance in more than one way. Therefore, we hold that the trial Court did not commit any error by relying upon the confessions of appellant Nos.A-4 to A-8 and A-10 and we do not find any valid ground to discard the confessions of appellant Nos.A-4 to A-8 and A-10. 52. The stage is now set for considering whether the prosecution succeeded in establishing the charge under Section 302 read with Section 120B IPC. However, before adverting to the evidence adduced by the prosecution, we consider it proper to notice the definition of criminal conspiracy and its interpretation by the Court. Section 120A IPC, which defines criminal conspiracy, reads as under: When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. It is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offence.... Sections 120A and 120B make conspiracy a substantive offence and render the mere agreement to commit an offence punishable. Even if an overt act does not take place pursuant to the illegal agreement, the offence of conspiracy would still attracted. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. The unlawful agreement and not its accomplishment is the essence of the crime of conspiracy. The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, not in attempting to do it, nor in inciting before others to do it, but in the forming of the scheme or agreement between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2797 for him in 1989, colour of which was, later on, changed. He has also spoken about the meeting held at the residence of Abdul Latif, the decision taken to eliminate Rauf Valiullah and assigning of the task to Rasool Party. In his statement before PW 104, appellant No. A-7 narrated the background in which he joined the business of spurious liquor and how he came in contact with Abdul Latif gang and Rasool Party and his associates which included appellant Nos.A-5, A-6 and A-11 and also about the hide-out of Rasool party at Baluchawad. He then stated that Rasool party called him through appellant No. A-11 and instructed him to remain with appellant Nos.A-6 and A-10 who were instructed to follow Rauf Valiullah and kill him with knives. Appellant No. A-7 disclosed how he along with appellant Nos.A-6 and A-10 followed Rauf Valiullah at various places including Kalupur and Lal Darwaza and why the latter failed to attack Rauf Valiullah at the two places. He then disclosed that on 9.10.1992, Rasool Party asked him to go on scooter with appellant No. A-8 to Madhuban building with an indication that appellant Nos.A-5 and A-6 have been sent to kill Rauf Valiullah and also that appellant N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im, as also the actual murder of Rauf Valiullah on 9.10.1992. Each of the confessing appellant has candidly acknowledged that he acted as per the instructions and directions given by the Rasool Party for achieving the object of killing Rauf Valiullah and how they get in collaboration with each other for accomplishment of the task. Although, appellant No. A-11 has not made confessional statement, his role as a collaborator of Rasool Party and his participation in the conspiracy to kill Rauf Valiullah and as also his role in the actual incident of killing Rauf Valiullah are proved from the confessions of appellant Nos.A-5, A-6, A-7 and A-8 which, as mentioned above are candid and unambiguous. Therefore, keeping in view the provisions of Section 15 of the Act as interpreted by this Court in Gurprit Singh's case, Nalini's case, S.N. Dube's case, Lal Singh's case, Devender Paul's case and Jameel Ahmad's case, we hold that the appellants are guilty of offence under Section 302 read with Section 120B IPC and no independent corroboration is required for sustaining their conviction. 57. De-hors the above conclusion, we find that the prosecution has produced suffic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lah while he was sitting on the car. In the Test Identification Parade held on 19.8.1993, he identified appellant No. A-6. PW 29, Raju Bhai Nayak, who was working as a labour at construction site of Western Hotel opposite to Madhuban building stated that he saw firing of bullets by a person who was earlier sitting on the pillion of the scooter and then fleeing away of two persons on the scooter. He also saw that the person with bullet injuries fell down on the ground and was taken to the hospital. PW 11, Parijat N. Damania is the typist to whom Rauf Valiullah had given papers for typing in the office of Dairy Den India Private Ltd. PW-49, Govind Bhai Babu Bhai is the person who sold Bullet Motorcycle No. GAC-6005 to appellant No. A-5 in 1991. He identified appellant No. A-5 in the Court. PW 55, Rajender Singh Prem Singh Chawla, PW 88, Rajesh Rajender Nath Mehta, PW 116, Susharta Dutta, General Secretary of Union Power Lifting Federation have given evidence that appellant No. A-5 was not a member of the power lifting team which visited Durgapur and yet he came to the venue of championship on 14.10.1992. Learned Counsel for the appellants could not point out any serious infirmity in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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