REPORTABLE    

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NOS.  2295-2296  OF 2010  

Adambhai Sulemanbhai Ajmeri & Ors.            …Appellants    

Versus  

State of Gujarat                     ...Respondent  

WITH  

CRIMINAL APPEAL NO. 45 OF 2011  

J U D G M E N T  

V.GOPALA GOWDA, J.  

These appeals are filed by the convicted accused-

appellants as they are aggrieved by the conviction and  

sentences awarded to them by the Special Court (POTA),

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and confirmed by the High Court of Gujarat for the  

offences punishable under the provisions of the Indian  

Penal Code, 1860 (hereinafter ‘IPC’), the Arms Act,  

1959, the Explosive Substances Act, 1908 and the  

Prevention of Terrorism Act, 2002 (hereinafter ‘POTA’)  

as per list in para 2 below, for the attack on the  

Akshardham temple in Gandhinagar between the afternoon  

of 24.09.2002 and early morning of 25.09.2002,   

wherein 33 people were killed and more than 85 people  

were injured.  

2. The following list outlines the charges against  

each of the accused and the conviction and sentences  

meted out to them by the Special Court (POTA),  

Ahmedabad, and upheld by the High Court of Gujarat.  

Accused no.1 is not in appeal before us. The appellant  

nos. 1-5 before us will hereinafter be referred to as  

per their position as accused i.e A-2 to A-6.  

Appellant no.4, Abdullamiya Yasinmiya Kadri (A-5) has

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already undergone 7 years out of the 10 years of  

sentence awarded by the learned Judge, Special Court  

(POTA) and by order dated 03.12.2010, this Court  

directed him “to be released to the satisfaction of  

the trial court.” The following list outlines the  

charges, conviction and sentences awarded to each of  

the accused-appellants.   

All the accused persons had been charged with offences  

under the following sections by the learned Judge,  

Special Court (POTA):  

1. Section 120B of the IPC.  

2. Section 120B of the IPC read with Sections 121,  123, 124A, 153A, 302 and 307 of the IPC.  

3. Section 120B of the IPC read with Sections  25(1AA) 27 and 29 of the Arms Act.  

4. Section 120B of the IPC read with Sections 3, 4  and 6 of the Explosive Substances Act.  

5. Section 120B of the IPC read with Sections  3(1)(a) and (b), 3(3), 4, 20 and 21(2) (b) of the  POTA.

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6. Additionally, A-2 had been charged with offence  under Section 452 of the IPC (for entering  Akshardham illegally).  

7. Additionally, A-6 had been charged under Section  135(1) of the Bombay Police Act, 1951 (for  illegally possessing arms and explosives despite  notification, in force, issued by Gandhinagar  District Police Official).  

The Special Court (POTA) framed the aforesaid charges  

and convicted and sentenced the accused persons as per  

nature of offences detailed hereunder:  

Altaf Malek (hereinafter ‘A-1’)  

• Gathered the Indian Muslims who had gone to Saudi  Arabia.  

• Associated with banned organizations like  Lashkar-e-Toiba.   

• Collected funds from Jaish-e-Mohammed.  

Convicted and sentenced under:  

Section 22 (1) of POTA. Rigorous Imprisonment for  5 years with a fine of Rs.5,000/-  and in default  of payment of fine, simple imprisonment for 6  months.  He was acquitted of rest of the charges.    

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Adambhai Ajmeri (hereinafter ‘A-2’)  

• Talked to locals to get idea about city, and to  get idea about lodging etc. They took him to A-4  and A-5.  

• Received money through Havala.  • Meeting on 24.06.2002 with witness at G Royal  

Hotel, Hyderabad. Absconding accused gave him Rs  3,500  

• Picked up the two assailants (hereinafter  referred to as the ‘fidayeens’) from the railway  station and gave them shelter.  

• Moved around in an auto rickshaw and showed the  fidayeens places around the city, where strikes  could be done and also arranged for their night  stay at his brother’s place.  

• Was present at Akshardham at the time of the  incident and exited when the firing started.  

Convicted and sentenced under:  

Section 3 (3) of POTA- Life imprisonment and a  fine of Rs.10,000/- and in case of default,  simple imprisonment for 2 years.  

Section 3 (3) read with Section 5 of POTA-  Rigorous imprisonment for 10 years and a fine of  Rs.5,000/- and in case of default, simple  imprisonment for 1 year.  

Section 22 (2) (a) and (b) of POTA - Rigorous  imprisonment for 10 years and fine of Rs.20,000/-  and in case of default, simple imprisonment for 1  year.  

Section 120B IPC read with Section 4 of Explosive  Substances Act - Rigorous imprisonment for 10

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years and fine of Rs.10,000/- and in case of   default, simple imprisonment for 2 years.  

Section 120B IPC read with Sections 3 and 6 of  Explosive Substances Act - life imprisonment and  fine of Rs.20,000/-.  

Section 120B IPC read with Section 302 IPC –  Death penalty (hanging by neck till death) and  fine of Rs.25,000/-.  

Section 120B IPC read with Section 307 IPC – life  imprisonment and fine of Rs.20,000/- and in case  of default, simple imprisonment for 1 year.  

Section 120B IPC read with Section 27 of Arms  Act- Rigorous imprisonment for 7 years and fine  of Rs.10,000/- and in case of default of fine,  simple imprisonment for 1 year.  

The accused was acquitted of the rest of the  charges.  

Mohammed Salim Hanif Sheikh (hereinafter ‘A-3’)  

• Gathered Indian Muslims working in Saudi Arabia  at his home and showed them instigating videos.  

• Is a member of Jaish-e-Mohammed and Lashkar-e- Toiba.  

• Made instigating speeches with the intention of  endangering the unity and integrity of India.  

• Became a member of Jaish-e-Mohammed and took  funding from them.  

 Convicted and sentenced under:  

  Section 3 (3) of POTA- Life imprisonment and a  fine of Rs.10,000/- and in case of default,  simple imprisonment for 2 years.

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Section 3(3) read with section 5 of POTA,  Rigorous imprisonment for 10 years and a fine of  Rs.5,000/- and  in case of  default, simple  imprisonment for 1 year.  

Section 20 of POTA - Rigorous imprisonment for 5  years and fine of Rs.20,000/- and in case of   default, rigorous imprisonment for 1 year.  

Section 21 (2) (b) of POTA - Rigorous  imprisonment for 10 years and a fine of  Rs.10,000/- and  in case of  default, simple  imprisonment for 1 year.  

Section 22 (1) (a) of POTA - Rigorous  imprisonment for 10 years and a fine of  Rs.20,000/- and in case of  default, simple  imprisonment for 2 years.  

Section 120B IPC read with Section 4 of Explosive  Substances Act - Rigorous imprisonment for 10  years and a fine of Rs.10,000/- and in case of   default, simple imprisonment for 2 years.  

Section 120B IPC read with Sections 3 and 6 of  Explosive Substances Act - life imprisonment and  fine of Rs.20,000/-.  

Section 120B IPC read with Section 302 IPC – life  imprisonment till his natural life (till he is  alive) and a fine of Rs.25,000/-.  

Section 120B IPC read with Section 307 IPC – life  imprisonment and fine of Rs.20,000/- and in case  of default, simple imprisonment for 1 year.  

Section 120B IPC read with Section 121A IPC  Rigorous imprisonment for 10 years and a fine of  Rs.5,000/- and in case of default, simple  imprisonment for 1 year.  

Section 120B IPC read with Section 153A IPC  Rigorous imprisonment for 3 years and a fine of  Rs.5,000/- and in case of default, simple  imprisonment for 6 months.

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Section 120B IPC read with Section 27 of Arms  Act, Rigorous imprisonment for 7 years and a fine  of Rs.10,000/-, and in case of default, simple  imprisonment for 1 year.  

The accused was acquitted of the rest of the  charges.      

Abdul Qaiyum Muftisaab Mohmed Bhai (hereinafter ‘A-4’)  

• Gave shelter to the fidayeens.  • Wrote the two Urdu letters recovered from the  

fidayeens, which spoke of instigating violence  and atrocities and communal riots.  

Convicted and sentenced under:  

Section 3 (3) of POTA- Life imprisonment and a  fine of Rs.10,000/- and in default of payment,  simple imprisonment for 2 years.  

Section 3 (3) read with section 5 of POTA -   Rigorous imprisonment for 10 years and a fine of  Rs.5,000/- in  default of payment of fine, simple  imprisonment for 1 year.  

Section 120B IPC read with Section 4 of Explosive  Substances Act - Rigorous imprisonment for 10  years and a fine of Rs.10,000/- in  default of  payment of fine, simple imprisonment for 2 years.  

Section 120B IPC read with Sections 3 an 6 of  Explosive Substances Act - life imprisonment and  a fine of Rs.20,000/-, in default of payment of  fine to recover the amount in accordance with  law.  

Section 120B IPC read with Section 302 IPC –  Death penalty (hanging by neck till death) and a

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fine of Rs.25,000/- in default of payment of fine  to recover the amount in accordance with law.  

Section 120B IPC read with Section 307 IPC – life  imprisonment and fine of Rs.20,000/- in default  of payment of fine, a simple imprisonment for 1  year.  

Section 120B IPC read with Section 153A IPC  Rigorous imprisonment for 3 years and a fine of  Rs.5,000/- in default of payment of fine, a  simple imprisonment for 6 months.  

Section 120B IPC read with Section 27 IPC of Arms  Act, Rigorous imprisonment for 7 years and a fine  of Rs.10,000/-, in default of fine a simple  imprisonment for 1 year.  

Section 120B IPC read with Section 121A IPC  Rigorous imprisonment for 10 years and a fine of  Rs.5,000/- in default of payment of fine, a  simple imprisonment for 1 year.  

The accused was acquitted of the rest of the  charges.  

Accused-5 Abdullamiya Yasinmiya (hereinafter ‘A-5’)  

• Member of Jaish-e-Mohammed and Lashkar-e-Toiba.  • Gave shelter to the fidayeens.  • Dropped them near Kalur Railway Station, had also  

put them in an ambassdor car to take them to the  temple.    

Convicted and sentenced    

Section 3 (3) of POTA- Rigorous imprisonment for  10 years and a fine of Rs.10,000/- and in default  of payment, simple imprisonment for 2 years.  

The accused was acquitted of the rest of the  charges.

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Accused-6 Chand Khan (hereinafter ‘A-6’)  

• Met the dead terrorists, also bought an  ambassador car worth Rs 40,000 and made secret  compartment for storing weapons and explosives.  

• Came from Ahmedabad to Bareilly with explosives,  moved the fidayeens in an auto, and helped to  transfer the weapons.  

• Received Rs 30,000/- from Zuber (a dead  terrorist, killed in a separate encounter)  

Convicted and sentenced under:  

Section 3 (3) of POTA- Life imprisonment and a  fine of Rs.10,000/- in default of payment of  fine, simple imprisonment for 2 years.  

Section 3 (1) of POTA, life imprisonment and a  fine of Rs.25,000/- in  default of payment of  fine, the same shall be recovered in accordance  with law.  

Section 3 (3) read with Section 5 of POTA,   Rigorous imprisonment for 10 years and fine of  Rs.5,000/- in  default of payment, simple  imprisonment for 1 year.  

Section 120B IPC read with Sections 3 an 6 of  Explosive Substances Act - life imprisonment and  a fine of Rs.20,000/-, in default of payment of  fine to recover the amount in accordance with  law.  

Section 120B IPC read with Section 4 of Explosive  Substances Act - Rigorous imprisonment for 10  years and a fine of Rs.10,000/- in  default of  payment of fine, simple imprisonment for 2 years.

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Section 120B IPC read with Section 302 IPC –  Death penalty (hanging by neck till death) and a  fine of Rs.25,000/- in default of payment of fine  to recover the amount in accordance with law.  

Section 120B IPC read with Section 307 IPC – life  imprisonment and fine of Rs.20,000/- in default  of payment of fine, simple imprisonment for 1  year.  

Section 120B IPC read with Section 25 (1AA)   of  Arms Act - rigorous imprisonment for 7 years and  a fine of Rs.10,000/-, in default of fine a  simple imprisonment for 2 years.  

The accused was acquitted of the rest of the  charges.  

3. The aforesaid sentences imposed upon each accused  

person were ordered to run concurrently.  The accused  

persons were allowed to set off the sentences for the  

time spent in custody, wherever applicable.  

 Various sentences of rigorous imprisonment, life  

imprisonment and death sentence as detailed in the  

list above were passed against the accused persons by  

the Special Court (POTA) in POTA case No. 16 of 2003  

by the judgment dated 01.07.2006, which was affirmed  

by the High Court of Gujarat at Ahmedabad by the  

impugned judgment and order dated 01.06.2010 in

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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

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accused persons and their trial and conviction are  

detailed below:   

     On 24.09.2002 at about 4.30 p.m., two persons  

armed with AK-56 rifles, hand grenades etc.  entered  

the precincts of the Swaminarayan Akshardham temple  

situated at Gandhinagar, Gujarat from gate No.3. They  

fired indiscriminately towards the children, games and  

rides and started throwing hand grenades.  While  

continuing the attack, they reached gate No. 2 of the  

temple and fired at the worshippers, devotees,  

volunteers and visitors and then proceeded towards the  

main building. Since the main door of the temple was  

locked, they moved towards the Sachchidanand  

Exhibition Hall, killing and injuring women, children  

and others. Thereafter, immediately CRPF personnel,  

Deputy Inspector General (DIG), Gujarat State and  

other senior police officers along with SRP commandos  

rushed to the place of offence to return the fire.   

Ambulances were called and other police forces were

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also urgently called at the place.  The team led by  

Mr. V.B. Rabari - Inspector General of Police, Mr.  

R.B. Brahambhatt - Deputy Superintendent of  

Police, Gandhinagar and four other special reserve  

police commandos climbed on the roof.  By that time,  

the terrorists (fidayeens) once again started firing.  

A fierce gun battle ensued, and there was also a bomb  

blast.  

6. In the meantime, a team of National Security Guard  

(NSG) commandos was summoned from New Delhi. They  

arrived by a chartered flight and took control at  

about 12.00 at midnight.  After understanding the  

topography of the area, they began the counter attack  

against the fidayeens.  Exchange of firing continued  

and lasted for nearly 5 hours which went on into the  

wee hours of 25.9.2002.  Eventually both of them were  

killed in the early morning hours as they succumbed to  

the injuries received in the said operation.  It is

Crl.A.Nos.2295-2296 of 2010         -15-  

the further case of the prosecution that a large  

quantity of fire arms and explosive substances were  

carried by the two fidayeens. Some of the explosives  

were seized along with other articles from the  

premises.   The attack resulted in the killing of 33  

persons, including NSG commandos, personnel from the  

State Commando Force and three other persons from SRP  

group. Nearly 86 persons, including 23 police officers  

and jawans were grievously injured.  Those who were  

injured or killed during the attack were removed to  

Sola Civil Hospital and to Civil Hospital,  

Ahmedabad.        

7.  A complaint was lodged by the then ACP Mr. G.L.  

Singhal, (Prosecution Witness (hereinafter ‘PW’)-126)  

on 24.09.2002 at the Gandhinagar Sector 21 police  

station. After the possession of the temple premises  

was handed over from NSG Commandos to the state  

police, an FIR was registered being Ist CR No. 314 of

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2002 on 25.09.2002 for the offences punishable under  

Sections 120-B, 302, 307, 153-A, 451 of the IPC by PW-

126. A Report under Section 157 of the Code of  

Criminal Procedure (hereinafter ‘CrPC’) was also  

prepared.  The same was lodged against the unknown  

persons aged between 20 to 25 years and the  

investigation was handed over to Police Inspector Mr.  

V.R. Toliya (PW-119) of the local Crime Branch,  

Gandhinagar.  

     It is the case of the prosecution that some  

articles were received from Brigadier Raj Sitapati,  

Head of the NSG, which were collected from the  

clothes of the dead bodies of the fidayeens, and  

according to them, these articles included two letters  

written in Urdu language, allegedly found in the  

pocket of each one of the fidayeens.    

8. The investigation of the crime continued for  

sometime under the said Police Inspector and

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thereafter, the Anti Terrorist Squad (ATS) was  

directed by the Director General of police, State of  

Gujarat to take over the investigation of the case.  

The investigation continued but nothing fruitful came  

out of the attempt of the investigating officer to  

trace the accused persons who were involved in the  

conspiracy and other offences committed by two  

fidayeens.  The investigation of the case was  

transferred to ACP Singhal (PW-126) of the Crime  

Branch who was the complainant in the case, on  

28.08.2003 at the direction of the DGP from Mr. K.K.  

Patel of ATS with 14 files, each with index.      

9. On 29.08.2003 at 2 p.m., A-1 to A-5 were arrested  

by PW- 126 and the matter was investigated further.  

The prosecution alleged that the criminal conspiracy  

was hatched at Saudi Arabia, Hyderabad, Ahmedabad and  

Jammu and Kashmir by some clerics, along with a few  

others, as they had become spiteful after the

Crl.A.Nos.2295-2296 of 2010         -18-  

incidents of riots which had taken place in the state  

of Gujarat after the Godhra train burning incident in  

2002.    

Subsequently, A-6 was also taken into custody and  

arrested by the Gujarat police on 12.09.2003 from the  

State of Jammu and Kashmir.  It is also the case of  

the prosecution that after investigation, the matter  

was concluded and the charge sheet was filed against  

all the six accused persons by the Crime Branch, after  

obtaining necessary sanction from the State Government  

for the purpose of taking cognizance of the offence in  

compliance with Section 50 of POTA. In the said charge  

sheet, 26 persons were shown as absconding accused.    

 The five accused persons, who were arrested on  

29.08.2003, remained in the police custody, which had  

been sought from the Judicial Magistrate, Gandhinagar  

on 29.08.2003. Provisions of POTA were invoked by the  

police on 30.08.2003. The chargesheet was filed before  

the designated Court constituted under Section 23 of

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POTA, on 25.11.2003.  It is further the case of the  

prosecution that the chargesheet was filed by the  

Investigating Officer after obtaining necessary  

sanction order as required under Section 50 of POTA  

from the government of the state of Gujarat vide  

sanction order dated 21.11.2003 [Exhibit (hereinafter  

‘Ex.’)498].   

10. It is the case of the prosecution that the  

confessional statements of the accused persons were  

recorded by the Superintendent of Police, Sanjaykumar  

Gadhvi (PW-78), as provided under Section 32 of  

the POTA by following the mandatory procedure.  

11. There were 376 witnesses shown in the  

chargesheet. Out of those, 126 witnesses were examined  

by the prosecution to prove the charges against the  

accused persons. The prosecution witnesses were  

examined on various dates and through them, various

Crl.A.Nos.2295-2296 of 2010         -20-  

Exs. namely, 117 to 679 were marked. The details of  

the names of the prosecution witnesses and the dates  

of examination and the marking of exhibits to them are  

described in the judgment passed by the Special Court  

(POTA) and the same need not be adverted to in this  

judgment as it is unnecessary.  

12. The Special Court (POTA) had formulated 8 points  

for its consideration and answered the same in the  

judgment by accepting the case of the prosecution and  

passed an order of conviction against all the accused  

persons and sentenced A-2, A-4 and A-6 to death, A-3  

to life imprisonment, A-1 to rigorous imprisonment for  

5 years and A-5 to rigorous imprisonment for 10 years.  

13. A reference was made to the High Court of Gujarat  

under Section 366 of the CrPC for confirmation of the  

death sentence imposed upon A-2, A-4 and A-6. All the

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accused persons appealed before the High Court against  

their conviction and sentences imposed on them.  

14. The Division Bench of the High Court, after  

adverting to the charges framed against each one of  

accused persons under the provisions of POTA,  

Explosive Substances Act, Arms Act and IPC, and the  

punishment imposed for each one of the offences under  

the aforesaid provisions of the Acts and Code,  

confirmed the order passed by the Special Court  

(POTA).   

Briefly stated, the High Court held that the attack  

was an act of retaliation against the incidents of  

communal riots which took place in the State of  

Gujarat in the months of March and April, 2002 during  

which several Muslim persons had lost their lives and  

properties. The High Court stated:  

“Therefore, the terrorist attack was  conceived by some unknown persons of foreign  origin presumably of Pakistan and Saudi  Arabia. The Indian Muslims residing in Saudi

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Arabia were instigated to retaliate for the  incidents which happened during the months  of March and April, 2002 and were enticed to  fund the terrorist attack. The Fidayeens  were recruited by the said masterminds who  traveled to Ahmedabad by train from Kashmir  via Bareily and they were provided with  rifles, hand grenades, gun-powder and other  weapons. The said accused persons joined  them in providing necessary hide-outs in the  city of Ahmedabad and also provided them  transport to go in and around the city of  Ahmedabad and helped them in selecting the  place and time for carrying out the attack.  The accused persons also helped in giving  them last rites of namaaz for their well  being (Hifazat).”  

15. The High Court further held that a criminal  

conspiracy was hatched to strike terror amongst the  

Hindus in the State of Gujarat. The accused persons  

and the absconding accused, were in connivance, had  

gathered the Indian Muslims working in the towns of  

Jiddah, Shiffa and Riyadh of Saudi Arabia at the  

residence of A-3. A-1, A-3 and A-5 and the absconding  

accused Nos. 3 to 5 and 12 to 22, who at the instance  

of the ISI of Pakistan became members of the terrorist

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outfit “Jaish-e-Mohammad”, and collected funds for it  

to spread terror in the State of Gujarat. They showed  

the cassettes of the loss caused to the Muslims in the  

State of Gujarat and the gruesome photos and the  

videos of the dead bodies of Muslim men, women and  

children, at the residence of A-3; distributed the  

cassettes and made enticing statements to damage the  

unity and integrity of India and to cause loss to the  

person and property of Hindu people. It was also  

observed by the High Court that to carry out the  

criminal conspiracy, the absconding accused No. 16  

visited the relief camps run at Ahmedabad during the  

communal riots.   

16. The statements of the injured witnesses were  

examined, which is also adverted to in the impugned  

judgment and the High Court stated that the casualties  

are also proved by the postmortem notes Exs. 170 and  

171 and by examining various doctors and prosecution  

witnesses.

Crl.A.Nos.2295-2296 of 2010         -24-  

17. The High Court in the impugned judgment also noted  

that there is a reference made to the injuries  

sustained by the individuals which is proved by the  

medical certificates and the same have been proved by  

the doctors. The High Court also referred to handing  

over of the list (Ex.524), recovered from the bodies  

of fidayeens, including notes in Urdu, by Maj. Jaydeep  

Lamba (PW-91) to PW-126 under Panchnama (Ex. 440) and  

the same is proved by the Panch-Vinodkumar Valjibhai  

Udhecha (PW-74.) Reference of recovery of white  

coloured AD Gel pen from the scene of offence under  

Panchnama (Ex.650) is proved by the Panch-Hareshbhai  

Chimanlal Shah (PW-11 : Ex.649). The said pen was sent  

to the Forensic Science Laboratory (in short ‘FSL’)  

under Panchnama (Ex.621). The FSL report (Ex.668)  

confirmed that the Urdu writings (Ex. 658) were in the  

same ink as that of the muddamal pen. There was also  

reference made of recovery of muddamal articles in the  

afternoon of 25.9.2002 (84 in number) from the temple

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precincts under Panchnama (Ex.396) which is proved by  

panch-Prakashinh Ratansinh Waghela (PW-71 : Ex.395).  

There was further reference of recovery of empty  

bullet of Rifle-303, Rifle Butt No. 553, disposal of  

left out hand grenades, recovery of empties from the  

fire arms of the SRP Jawans, the empties produced by  

I.G. Shri V.V. Rabari, production and sealing of  

Dongri of the police constable, recovery of bullets  

from the injured witnesses, production of clothes of  

injured PSI-Digvijaysinh Chudasama and injured  

witness, the splinters of hand grenades and bullets  

recovered from the injured and these are proved by the  

panchnama Exs. 553, 106, 121, 107, 596, 108 597, 109,  

110, 111 and 160. Also, the reference of recovery of  

the disputed signature of witness-Abdul Wahid (PW-56)  

in the entry register of Hotel G. Royal Lodge,  

Naampalli, Hyderabad and the collection of his  

specimen signature collected under Panchnama (Ex.583)  

is proved by Panch-Manubhai Chhaganlal Thakker (PW-

Crl.A.Nos.2295-2296 of 2010         -26-  

101:Ex.581) and collection of the natural signature of  

the witness Abdul Wahid (PW-56) under Panchnama  

(Ex.684) is proved by the investigating officer ACP  

Singhal (PW-126 : Ex.679). Reference was made to the  

Panchnama (Ex.682) proved by Panch-Dipakshinh  

Ghanshyamsinh Chudasama (PW-62: Ex.344) regarding  

seizure of Auto-rickshaw No. GRW-3861 wherein the  

fidayeens visited various places and the route they  

had taken in Auto-rickshaw on 22.09.2002 and the route  

to Akshardham Temple on 24.09.2002, was traced by A-2.  

Reference was also made of the house of Abbas (the  

brother of A-2) in which fidayeens and Ayub  

(absconding accused No. 23) were provided lodging, was  

identified by A-2 under Panchnama (Ex.580) proved by  

the Panch-Jignesh Arvindbhai Shrimali (PW-100  

:Ex.579). There is also reference of seizure of  

Panchnama (Ex.336) of the Passport and a piece of  

paper  containing telephone numbers, a telephone diary  

and electricity bill of February, 2003 of A-2 proved

Crl.A.Nos.2295-2296 of 2010         -27-  

by the Panch-Santosh Kumar R. Pathak (PW-59 :Ex.335).  

The panchnama (Ex.446) of collection of the natural  

signature of A-2 is proved by the Panch-Mukeshbhai  

Natwarlal Marwadi (PW-75:Ex.445) and recovery of  

specimen handwriting of A-2 under Panchnama (Ex.448)  

is proved by Panch-Dineshbhai Chunaji Parmar (PW-

76:Ex.447). There is also panchnama of seizure of  

recovery of Railway ticket(Ex.589) from Ahmedabad to  

Mumbai dated 22.04.2002, communication regarding  

cancellation of ticket dated 22.04.2002, telephone  

charge slips and the expense account for mattresses,  

fan, petrol, food and hotel from the residence of A-2  

has been proved by the Panch-Navinchandra Bechardas  

Kahaar (PW-103 : Ex.585). There is also seizure of the  

Accounts Diary from Mehboob-ellahi Abubakar Karim (PW-

82) to prove receipt of Rs.10,000/- and Rs.20,000/-  

sent from Riyadh and paid to the A-2 under the Code  

“JIHAD” under Panchnama (Ex.481), which is proved by  

the Panch-Bharatbhai Babulal Parmar (PW-102 : Ex.584).

Crl.A.Nos.2295-2296 of 2010         -28-  

There is recovery of natural handwriting (Ex.613) of  

A-4 from a diary identified by him, which was  

recovered under Panchnama (Ex.309) and proved by the  

Panch-Ashok Manaji Marwadi (PW-49 :Ex.308). Collection  

of the specimen writing (Ex.698) of A-4 under  

Panchnama (Ex.334) is proved by the Panch-Arvindbhai  

Jehabhai Chavda (PW-58 : Ex.333).   

The High Court stated that the handwriting expert  

Jagdishbhai Jethabhai Patel (PW-89 : Ex.507) has  

proved that the disputed writings marked A/5/A and  

A/5/B (Urdu writings Ex.658) were the same as the  

natural handwriting and the specimen writing of A-4.  

The report (Ex.511), which is the opinion of the  

handwriting expert, is also confirmed by the expert  

report (Mark-T) of R.K. Jain, Directorate of Forensic  

Sciences, Hyderabad and in the presence of the Panch -

Bhikhaji Bachuji Thakore (PW-6: Ex.343). Under  

Panchnama (Ex.681), A-4 and A-5 identified the place  

where the last namaaz was performed for the fidayeens

Crl.A.Nos.2295-2296 of 2010         -29-  

and the place where the weapons were packed. The  

witness identified A-4 and A-5 in the court. Reference  

was made to the recovery of muddamal-ambassador Car  

No. KMT-413 from the compound of SOG Camp, Srinagar,  

J&K. The existence/disclosure of concealed cavity  

under the rear seat of the car in Panchnama (Ex.671),  

is proved by the Police Inspector-Shabirahmed (PW-123  

: Ex.670) and the Assistant Sub-Inspector Gulammohamad  

Dar (PW-124 : Ex.673). Reference was made of the  

disputed handwriting of Yusufbhai Valibhai Gandhi (PW-

57) from entry No.81 dated 23.09.2002 and his natural  

handwriting from entry Nos. 224, 225 and 226 of  

24.05.2003 and 26.05.2003 from the passenger register  

of Gulshan Guest House in Panchnama (Exs.317 and 319)  

which have been proved by the Panch-Poonambhai  

Narshibhai Parmar (PW-54: Ex.318) and Panch-Ashok  

Sahadevbhai Kahaar (PW-53: Ex.316) respectively. The  

Panch-Poonambhai Narshibhai has also proved recovery  

of the disputed signature of A-6, from column No.13 of

Crl.A.Nos.2295-2296 of 2010         -30-  

the aforesaid entry No.81. The collection of specimen  

handwriting of Yusuf Gandhi (PW-57) in Panchnama  

(Ex.321) is proved by Panch-Sajubha Adarji Thakore  

(PW-55:Ex.320). The High Court has made further  

reference that A-6 identified STD booths used by him  

during his stay in Ahmedabad on 23.09.2002 and  

24.09.2002 under Panchnama (Ex.342) proved by Panch-

Prahlad Bagadaji Marwadi (PW-60 : Ex.341). Further,  

there is reference to A-6, who identified the places  

visited by him, and the way to Gulshan Guest House  

from Railway Station under Panchnama (Ex.591) proved  

by Panch-Natwarbhai Fakirchand Kahar (PW-104 :  

Ex.590). Reference is also made by the High Court of  

the Taxi Driver, Rajnikant (Rajuji) Thakore, who  

identified the dead bodies of the fidayeens under  

Panchnama (Ex.130) which is proved by Panch-Bhupatsinh  

Chandaji Waghela (PW-5 : Ex.129). The route of the  

fidayeens from Kalupur Railway Station to Akshardham  

gate no.3 is identified by Taxi driver Rajnikant

Crl.A.Nos.2295-2296 of 2010         -31-  

Thakore (PW-68) under Panchnama (Ex.131) proved by  

Panch-Bhupatsinh Andaji Waghela (PW-5:  Ex.129).  

18. From paragraph 75 onwards in the impugned  

judgment, the Division Bench of the High Court has  

referred to the judgments of this Court. Reliance was  

placed on the cases of S.N. Dube v. N.B. Bhoir & Ors.1  

and Lal Singh etc.etc. v. State of Gujarat & Anr.2  

which made reference to the confessional statement  

recorded under Section 15 of Terrorist and Disruptive  

Activities (Prevention) Act,1987 (hereinafter ‘TADA’),  

wherein this Court rejected the contention urged on  

behalf of the accused persons that the confessional  

statements were inadmissible  in evidence because (a)  

the statements were recorded by the investigating  

officer or the officers supervising the investigation  

(b) the accused persons were not produced before the  

judicial Magistrate immediately after recording the                      

1 (2000) 2 SCC 254  2 (2001) 3 SCC 221

Crl.A.Nos.2295-2296 of 2010         -32-  

confessional statements and (c) guidelines laid down  

in the case of Kartar Singh v. State of Punjab3 were  

not followed. Reliance was also placed by the High  

Court on the case of State of Maharashtra v. Bharat  

Chaganlal Raghani & Ors.4, wherein this Court held the  

confessional statements of the accused persons to be  

admissible in evidence. The Court further held that  

confessional statements having been proved to be  

voluntarily made and legally recorded, can be used  

against all or some of the accused persons in the  

light of other evidence produced in the case.   

19. The High Court referring to the broad principles  

covering the law of conspiracy as laid down in the  

case of State of Tamil Nadu v. Nalini & Ors.5, and  

also referring to Section 120-A of IPC which  

constitutes the offence of criminal conspiracy, held  

3 (1994) 3 SCC 569  4 (2001) 9 SCC 1  5 (1999) 5 SCC 253

Crl.A.Nos.2295-2296 of 2010         -33-  

that the acts subsequent to achieving an object of  

criminal conspiracy may tend to prove that a  

particular accused person was a party to the  

conspiracy. Conspiracy is hatched in private or in  

secrecy and it is rarely possible to establish a  

conspiracy by direct evidence. Usually, both the  

existence of the conspiracy and its objects have to be  

inferred from the circumstances and the conduct of the  

accused persons.  

Further, reference was also made to the judgment in  

the case of State of W.B. v. Mir Mohammad Omar &  

Ors.6, wherein it was held that the courts should bear  

in mind the time constraints on the police officers in  

the present system, the ill equipped machinery they  

have to cope with and the traditional apathy of  

respectable persons towards them.  

6 (2000) 8 SCC 382

Crl.A.Nos.2295-2296 of 2010         -34-  

The High Court also relied upon the case of Rotash v.  

State of Rajasthan7, wherein this Court held that the  

investigation was not foolproof but that defective  

investigation would not lead to total rejection of the  

prosecution case. Further, reference of State of M.P.  

v. Mansingh8 in the case of Rotash (supra) in support  

of the aforesaid proposition of law.  

20. The Division Bench of the High Court also referred  

to the evidence of Asfaq Abdulla Bhavnagari (PW-50:  

Ex.312) who had worked at Riyadh in Saudi Arabia and  

whose statement was recorded by the police, which  

according to the prosecution, led to the revelation of  

the entire conspiracy.  

21. The High Court further placed reliance upon the  

statement of Mohammed Munaf Hajimiya Shaikh (PW-52 :  

Ex.315) who gave evidence against A-2, A-4 and A-5  

7 (2006) 12 SCC 64  8 (2003) 10 SCC 414

Crl.A.Nos.2295-2296 of 2010         -35-  

regarding running of relief camp in the State of  

Gujarat and against his brother Abdul Rashid  

Sulemanbhai Ajmeri (absconding accused No. 4).    

According to the witness, A-5 and A-4 advised A-2 to  

go ahead with the plan and gave telephone number of  

one Nasir Doman to A-2. He identified A-2, A-4 and A-5  

in the court.  

22. The High Court also placed reliance on the  

statement of Abdul Wahid (PW-56 : Ex.325), who  

admitted that on 24.04.2002 he had gone to Hyderabad  

with A-2 and that they had met Khalid (absconding  

accused No. 16) there. According to this witness, the  

said Abdul Raheman @ Abu Talah @ Khalid had made  

arrangement for their lodging at Hotel G-Royal. He  

also admitted to having met Ayub (absconding accused  

No.23) at Hyderabad. He further admitted the disputed  

signature in the hotel register (muddamal article no.  

129) and the specimen signature (muddamal article no.

Crl.A.Nos.2295-2296 of 2010         -36-  

131) as that of his own. He also identified A-2 in the  

court.  

23. The High Court also placed reliance on the  

statement of Mehboob-e-llahi Abubakar Karimi (PW-82)  

who has admitted to transfer of money through him. He  

also admitted the payment made to A-2 and identified  

the muddamal Diary (article no. 106) and the entries  

(Ex.477) and (Ex.478) made in respect of the aforesaid  

transfer of money. The High Court further placed  

reliance on the statement of Sevakram Bulaki (PW-97 :  

Ex.563), owner of Hotel G. Royal Lodge, Hyderabad, who  

supported the prosecution version and admitted to  

having allotted Room No. 322 to two persons namely  

Abdul Shaikh and A.S. Shaikh who came from Ghatkopar,  

Bombay on 26.04.2002. He further admitted entry  

(Ex.326) made in the entry register.   

24. The High Court further referred to the statement  

of A-1 (Ex.456) recorded before the Deputy

Crl.A.Nos.2295-2296 of 2010         -37-  

Commissioner of Police Zone-IV, Ahmedabad under  

Section 32 of POTA, who admitted that he and other  

Muslims from Gujarat, working at Riyadh used to meet  

at the residence of A-3 and also admitted that one  

Karim Annan Moulvi (absconding accused No. 20), who  

was a native of Pakistan, also used to attend the  

meetings. He also stated that he used to collect funds  

in the name of Islam and was connected with Pakistani  

Jihadi group “Sippa-e-Saheba” and had also become a  

member of “Jaish-e-Mohammed”.  The High Court also  

stated that the confessional statement made by him is  

supported by the evidence of Abdul Raheman Panara (PW-

51:Ex.314)  

25. In paragraph 19 of the impugned judgment, the  

Division Bench of the High Court examined the  

admissibility of the confessional statements made by  

A-1, A-2, A-3, A-4 and A-6 and their probative value  

and held that the confessional statements were made by  

the accused persons under Section 32 of POTA before

Crl.A.Nos.2295-2296 of 2010         -38-  

Sanjay Gadhvi, Deputy Commissioner of Police (Zone-IV)  

(PW-78: Ex.452), Ahmedabad, who had been examined by  

the prosecution. He had deposed before the Special  

Court (POTA) about the manner in which the  

confessional statements of the accused persons were  

recorded.  He also identified and proved their  

confessional statements (marked as Exs. 454, 456, 458,  

460 and 462). He stated before the court that the  

provisions of POTA were explained to the accused  

persons before their statements were recorded, and  

further stated that he had warned them that their  

statements may be used against them and that they were  

not bound to make such statements before him.   

26. The contention of the counsel for the accused that  

the aforesaid statements have been recorded  

mechanically by PW-78, without following the mandatory  

procedural safeguards provided under Section 32 of  

POTA, was rejected by the Division Bench of the High  

Court, which held that the same have been recorded

Crl.A.Nos.2295-2296 of 2010         -39-  

after following the mandatory procedural safeguards  

provided under Section 32 of POTA, after careful  

examination of the above provisions of Section 32. The  

High Court opined that sub-sections (4) and (5) of  

Section 32 do not make it mandatory for the Police  

(Recording Officer) to send the accused to judicial  

custody after recording his confessional statement  

under Section 32 of POTA.   

27. The High Court came to the conclusion that the  

Chief Judicial Magistrate is obliged to send the  

accused to judicial custody only in case the accused  

persons complain of ill-treatment or torture by the  

police.  All the accused persons who made confessional  

statements appeared before the CJM (PW-99), and they  

made no complaint against the police and they had also  

admitted the statement made by them. The Division  

Bench of the High Court held that the aforesaid facts  

tend to prove that none of the accused persons making

Crl.A.Nos.2295-2296 of 2010         -40-  

the confessional statement had been ill treated by the  

police or had been oppressed or lured to do so.  

28. Therefore, the High Court has concluded at  

paragraph 131 of the impugned judgment that the  

prosecution had proved that the confessional  

statements of all the six accused persons were  

properly recorded and procedural requirements under  

the statute were complied with.  

The Division Bench of the High Court further recorded  

the concurrent finding at para 132 of the impugned  

judgment that if the statutory safeguards are properly  

followed by the police officer and the CJM, and other  

facts and evidence on record indicate free will of the  

accused persons in making the confessional statement,  

such statement is admissible in evidence and can be  

relied upon as a truthful account of facts of the  

crime.

Crl.A.Nos.2295-2296 of 2010         -41-  

29. The High Court further examined the evidence of  

Suresh Kumar Padhya CJM (PW-99 : Ex.568) who had  

recorded the statement of A-1 and A-3 on the request  

of PW-78, DCP on 18.09.2003, i.e a day after their  

confessional statements were recorded. A-2 and A-4  

made their confessional statements before PW-78 on  

24.09.2003 and were sent to PW-99 on 25.09.2003. A-6  

made his confessional statement on 05.10.2003 and was  

sent to PW-99 on 06.10.2003. PW-99 had stated before  

the Special Court (POTA) that accused persons had  

stated before him that they were not ill treated by  

the police. Their statements were read over to them.  

With regard to cross examination of PW-99, he admitted  

that he had not inquired from the accused persons as  

to how long they were in the police custody nor did he  

send them to judicial custody after recording their  

statements. He deposed that he did not think it  

necessary to send the accused persons to the judicial  

custody. He has also admitted that he had not recorded

Crl.A.Nos.2295-2296 of 2010         -42-  

a specific statement that the accused persons had made  

confessional statement of their own volition.  

30. The High Court considered the evidence of PW-99  

and came to the conclusion that the procedural  

safeguards provided under Section 32 of POTA have been  

followed by PW-78 to record the statements of the  

accused persons as per the guidelines issued by the  

Apex Court in various judgments particularly State of  

Tamil Nadu v. Nalini & Ors.(supra) and Jayawant  

Dattatraya Suryarao v. State of Maharashtra9. The High  

Court came to the conclusion that this Court in the  

case of Devender Pal Singh v. State of NCT of Delhi10  

held that the initial burden is on the prosecution to  

prove that all the requirements under Section 15 of  

TADA and Rule 15 of TADA Rules were complied with.  

Once that is done and the prosecution discharges its  

burden, then it is for the accused to satisfy the                      

9 (2001) 10 SCC 109  10 (2002) 5 SCC 234

Crl.A.Nos.2295-2296 of 2010         -43-  

court that the confessional statement was not made  

voluntarily. The High Court opined that in present  

case, each accused making confessional statement was  

granted time of around 15 minutes to reflect over his  

decision to make confessional statement, and the High  

Court stated that there is no evidence on record to  

suggest that 15 minutes time was inadequate so as to  

render the confessional statements inadmissible in  

evidence or unreliable as none of the five accused  

persons while making the confessional statement had  

asked for further time. None of them had made a  

complaint of inadequacy of time before PW-99 and on  

the other hand, admitted the confessions made by them.  

31. The High Court further stated that the contention  

made by the learned counsel for the accused persons  

that they were kept in police custody for around 45  

days before the official date of arrest, is absolutely  

unbelievable.  Further, sending the accused persons to  

judicial custody after recording the confessional

Crl.A.Nos.2295-2296 of 2010         -44-  

statement is a matter of prudence and not a statutory  

requirement. PW-99 had made a specific note on the  

writings (Exs. 453, 455, 457, 459 and 461), that each  

of the accused person was asked whether he had  

suffered ill-treatment at the hands of the police and  

that none of them had complained of ill-treatment by  

the police. The Division Bench held the confessional  

statements of the accused persons to be admissible in  

evidence in order to prove their guilt, relying on  

various decisions of this Court.  

32. After recording such findings, the defence  

evidence was also examined. Defence witness  

(hereinafter ‘DW’) Nos. 1 to 7 have given evidence and  

the same have been adduced by the defence to support  

their claim that the accused persons were arrested  

long before the official date recorded and that they  

were tortured by the police to make the confessional  

statements. The aforesaid evidence of DW-3 referred to  

A-2 and A-3. The High Court referred to all the

Crl.A.Nos.2295-2296 of 2010         -45-  

defence witnesses, except DW-3 to hold that none of  

the aforesaid evidence remotely supports the defence  

version that A-2 and A-3 were arrested long before  

29.08.2003, i.e the dates of arrest as mentioned in  

their arrest memos. The High Court held that the  

evidence of the doctors also does not prove the police  

atrocities allegedly committed upon the accused  

persons during the period they were in the police  

custody. All the six accused persons, in their  

retraction statements, complained of having been  

beaten up by ACP Singhal (PW-126), V.D. Vanar and R.I.  

Patel, because of which they could not stand up on  

their feet. On denying their complicity in the  

Akshardham attack, they were threatened of being  

encountered. Each accused persons said that every day  

they were called either by Singhal, V.D. Vanar or by  

R.I. Patel and were forced to admit their complicity  

in the Akshardham attack. On 05.11.2003, the accused  

persons were produced before the Special Court (POTA)

Crl.A.Nos.2295-2296 of 2010         -46-  

from the judicial custody. Each one of them was given  

audience before the judge of the Special Court (POTA)  

wherein, they all made an oral complaint of police  

atrocities during the police custody and also  

complained of having been in police custody for long  

time. According to each accused person, he was made to  

sign the confessional statement prepared by the police  

under coercion and duress and had not made the same of  

his own free will.  

At paragraph 144 of the impugned judgment, the  

Division Bench of the High Court had recorded its  

finding that the aforesaid retractions are ex facie  

unbelievable, without giving any reason.  

33. At para 145 of the impugned judgment, the High  

Court examined the evidence in respect of the letters  

written in Urdu (Ex.658), which is a vital  

incriminating evidence against A-4.  According to the  

defence, these letters were planted by the police at a

Crl.A.Nos.2295-2296 of 2010         -47-  

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

Crl.A.Nos.2295-2296 of 2010         -48-  

injuries received by the fidayeens and assigned the  

reason in paragraph 189 of the impugned judgment as  

“But then the truth is stranger than fiction” and that  

it is not possible to disbelieve that two Urdu letters  

(Exh.658) were recovered from the bodies of the  

fidayeens. It was stated by the High Court that both  

the letters were signed by Brig. Raj Sitapati of NSG.  

The recovery of these letters is recorded in the  

muddamal articles as per list (Ex.524) which were  

received by ACP G.L Singhal (PW-126) in the premises  

of Akshardham temple itself under Panchnama (Ex.440),  

signed by the Police Officer Shri Prakashchandra Mehra  

(PW-105 : Exh.592). The evidence and the opinion  

(Exh.511) of the handwriting expert J.J.Patel (PW-89:  

Exh.507) was relied upon to prove that the said  

letters were written by A-4.  

34. The argument advanced by the learned counsel for  

the accused persons regarding the subsequent planting  

of letters was rejected by the High Court, stating

Crl.A.Nos.2295-2296 of 2010         -49-  

that if this argument was to be accepted, then the  

aforesaid evidence adduced by the prosecution has to  

be disbelieved and it has to be held that the police  

had such presence of mind that in the:   

“milieu of the aftermath of the terrorist  attack, the police thought of creating the  evidence, found out a person who knew Urdu,  got them to write the write-ups in handwriting  that would match the handwriting of accused  no.4, Abdul Kayyum, made Lt.Col Lamba and  Brig. Raj Sitapathi their accomplices and that  the two officers of the NSG readily agreed to  be the accomplices. SO did the panch witness,  Vinod Kumar(PW-74) and Dilip Sinh (PW-1). This  possibility is too far-fetched to believe.”  

The High Court therefore held that the accused persons  

had committed offences for which they had been charged  

and confirmed the conviction and sentence, i.e. death  

sentence awarded to A-2, A-4 and A-6, life-

imprisonment to A-3, five years Rigorous Imprisonment  

to A-1 and ten years Rigorous Imprisonment to A-5 and  

the appeals of the accused persons were dismissed.

Crl.A.Nos.2295-2296 of 2010         -50-  

The correctness of the impugned judgment and orders  

passed by the High Court is under challenge in these  

appeals by the accused – appellants, in support of  

which they urged various facts and legal contentions  

before this Court.   

35. The rival legal contentions urged on behalf of the  

accused persons and the prosecution will be dealt with  

as hereunder:  

Contentions on behalf of the prosecution  

We will first examine the contentions urged on behalf  

of the prosecution represented by Mr. Ranjit Kumar,  

the learned senior counsel appearing on behalf of the  

State of Gujarat who has advanced the following  

arguments to establish the guilt of the accused  

persons:  

The procedure under Section 50 of POTA was followed by  

the State Government while granting sanction:

Crl.A.Nos.2295-2296 of 2010         -51-  

36. It was contended by the learned senior counsel  

that on completion of the investigation, PW-126  

forwarded a complete set of papers and his report  

through official channel recommending prosecution  

against all six accused persons under the provisions  

of POTA. The sanction granted by the Home Department  

was given under the signature of the Deputy Secretary  

of the said department, Mr. J.R Rajput by sanction no.  

SB.V/POTA/10/2003/152 (Ex.498). All the papers were  

received by the sanctioning authority on 12.11.2003  

and the section officer put up the file to the Under  

Secretary on 13.11.2003 and after proper application  

of mind, the sanction was approved by Kuldeep Chand  

Kapur, Principal Secretary, Home Department (PW-88) on  

15.11.2003 and it was sent back to the Minister for  

State (Home) who approved it on 18.11.2003 and  

received back these papers from the Minister on  

19.11.2003 and thereafter sanction order was issued on  

21.11.2003. It was further submitted that the

Crl.A.Nos.2295-2296 of 2010         -52-  

procedure for granting sanction by the Home Department  

was followed as per the Gujarat Government Rules of  

Business, 1990. It was submitted that the sanction  

order was passed by the State Government after proper  

application of mind by the competent authority.  

The learned senior counsel also submitted that the  

learned counsel for A-6, Ms. Kamini Jaiswal placed  

reliance on the case of Ramanath Gadhvi v. State of  

Gujarat11 qua the sanction under Section 20-A (2) of  

TADA, which has been declared per incuriam by a 5  

Judge Bench in the case of Prakash Bhutto v. State of  

Gujarat12 and therefore the judgment has no relevance.  

Confessions of A-1, A-2, A-3, A-4 and A-6 are valid:  

37. The learned senior counsel contended that the  

procedure for recording of the confessions as under  

11 (1997)7 SCC 744  12 (2005)2 SCC 409

Crl.A.Nos.2295-2296 of 2010         -53-  

Section 32 of POTA was scrupulously followed. The  

accused persons did not make any complaints of  

beatings or ill treatment by the police when produced  

before the CJM for remand on different dates. When the  

complaints were made later, a medical examination was  

carried out in which none of the complaints were found  

to be true. The learned senior counsel also submitted  

that the confessional statements of A-2 and A-4 were  

recorded on 24-09-2003, that of A-3 on 17-09-2003 and  

that of A-6 on 05-10-2003. A-5 did not make any  

confession at all. The retraction to these  

confessional statements came around five weeks later.  

He contended that it is clear that these retractions  

are mechanical as even A-5, who had not made any  

confessional statement, sent his retraction.  

The Urdu letters were collected from the dead bodies  

of the two fidayeens:

Crl.A.Nos.2295-2296 of 2010         -54-  

38. The inquest panchnama was drawn of the dead bodies  

of the two fidayeens by Police Officer Shri  

Prakashchandra Mehra (PW-105: Exh.592), who in his  

statement has confirmed the collection of the two Urdu  

letters. PW-91, Maj. Jaydeep Lamba, who was the  

commander of the task force, also stated that two Urdu  

letters were found from the dead bodies of the  

fidayeens by him and Brig. Raj Sitapati, and that they  

contain the signature of Brig. Raj Sitapati at the  

bottom and that a list was prepared of the articles  

recovered (Ex.524) which` was signed by him.  

Reliance was also placed by the learned senior counsel  

on the evidence of PW-89 who had opined that the  

letters (Ex.658) had been written by A-4.   

The learned senior counsel also submitted that PW-91  

deposed before the court, and that in his cross  

examination, he was not questioned regarding the  

‘condition’ of the letters written in Urdu, as

Crl.A.Nos.2295-2296 of 2010         -55-  

recovered from the two fidayeens. Similarly, even PW-  

126 was not cross examined by the counsel for the  

accused persons on the condition of the letters. On  

being questioned by us as to why the letters did not  

have any blood stains on them, the learned senior  

counsel submitted that the panchnama stated that the  

trousers were stained with blood and not soaked with  

it. Their trousers became wet due to the oozing of  

blood which has gone to the back of the trousers  

because of gravity as the bodies were lying on their  

back after shooting.  

The link of accused persons to Akshardham attack has  

been established.  

39. The learned senior counsel had relied upon the  

confessional statements of the accused persons to draw  

the link between them and the attack on the Akshardham  

temple. He had submitted that the confessional  

statements would clearly go to show how each one of

Crl.A.Nos.2295-2296 of 2010         -56-  

the accused persons had a different and  

compartmentalized role from the procurement of arms  

and ammunitions to providing the logistics to the  

fidayeens for carrying out the operation and the  

motivation provided for the attack.  

The role of A-6 has also been proved.  

40. The learned senior counsel submitted that A-6  

played a crucial role in bringing the weapons from  

Kashmir to Bareilly- in his ambassador car bearing  

registration no. KMT 413, in a secret cavity made  

underneath the back seat, and thereafter he carried  

the weapons, concealed in the bedding in the train and  

accompanied the fidayeens to Ahmedabad.  

The Navgam Police Station at Jammu & Kashmir had  

arrested A-6 in offence registered in FIR: CR no. 130  

of 2003, and it was during the interrogation in the  

above said offence that he had disclosed his  

involvement in the Akshardham attack. A fax message

Crl.A.Nos.2295-2296 of 2010         -57-  

was received by the Gujarat ATS from the IGP Kashmir  

regarding the same on 31.08.2003. The investigation  

was conducted by PW-126 who was the then ACP and was  

authorized to do so as per section 51 of POTA. A team  

was formed under the proper authorization for  

collecting materials from different places during  

investigation. I.K Chauhan (PW- 125) was asked to go  

for inquiry to Jammu & Kashmir.  

It was submitted that there were many other evidences,  

other than his confessional statement, including the  

testimony of Yusuf Gandhi, owner of Gulshan Guest  

House, (PW-57) who had stated before the Special Court  

(POTA) that A-6 stayed there, and also the panchnama  

of the ambassador car KMT 413 (Ex.671).  

Delay in cracking the case.  

41. The learned senior counsel submitted that  

initially the investigation was conducted by V.R Tolia  

(PW-113) of the Local Crime Branch, Gandhinagar, and

Crl.A.Nos.2295-2296 of 2010         -58-  

thereafter by K.K Patel of the ATS. The investigation  

was then handed over to G.L Singhal, ACP Crime Branch  

(PW- 126) on 28.08.2003. It was on 28.08.2003, that  

Ashfaq Bhavnagri (PW-50) was interrogated, who  

revealed the entire conspiracy as well as the role of  

A-1 and A-3 in committing the dastardly offences.  

The Conspiracy.  

42. It was further submitted that it has been proved  

that the accused persons, along with the absconding  

accused hatched a conspiracy to create terror and take  

revenge on the Hindus on account of the Godhra riots.  

For this purpose, secret meetings were held at Jiddah,  

Riyadh, Hyderabad and Kashmir. A-2 was contacted by  

his brother who ensured supply of finance, weapons and  

trained terrorists. A-4 and A-5, who were running  

relief camps and were also religious leaders, accepted  

to garner local support and thus money was sent  

through havala. A-2 and the two fidayeens visited

Crl.A.Nos.2295-2296 of 2010         -59-  

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

Crl.A.Nos.2295-2296 of 2010         -60-  

doubt that the accused persons were involved in the  

conspiracy for the attack on the Akshardham temple and  

the sentences meted out to them by the Special Court  

(POTA) and confirmed by the High Court must be upheld  

by this Court as the concurrent findings of fact  

recorded on the charges framed against the accused  

persons does not warrant any interference by this  

Court.  

Contentions on behalf of A-2 & A-4 and A-3 & A-5.  

45. We will now examine the contentions urged on  

behalf of A-2 and A-4 who are represented by learned  

senior counsel, Mr. K.T.S Tulsi and thereafter A-3 and  

A-5, who are represented by learned senior counsel,  

Mr. Amarendra Sharan. Subsequently, the contentions  

urged on behalf of A-6 who is represented by learned  

counsel, Ms. Kamini Jaiswal will be dealt with. The  

contentions will be dealt with topic wise.  

Crl.A.Nos.2295-2296 of 2010         -61-  

That the Sanction required under Section 50 of POTA  

was not obtained in a proper manner.  

46. Section 50 of POTA provides that “no court shall  

take cognizance of any offence under the Act without  

the previous sanction of the Central Government or as  

the case may be by the State Government.” The  

prosecution has relied on the testimony of Kuldeep  

Chand Kapoor (PW-88) to prove that the sanction was  

granted in accordance with the law.  

It was contended by the learned counsel for A-6 that  

the perusal of the statement of PW-88 would show that  

all the documents pertaining to the investigation were  

not placed before the sanctioning authority and it was  

only on the approval of the Minister that the sanction  

was granted. The sanction was granted without due  

application of mind. Thus the said sanction is not a  

proper previous sanction, on the basis of which the  

court could have taken cognizance of the offences.

Crl.A.Nos.2295-2296 of 2010         -62-  

Evidentiary value of confessions:  

47. All the three learned counsel have similar  

submissions with respect to the reliance placed by the  

courts below on the confessional statements made by  

the accused persons to hold that the accused persons  

are guilty of the offences they are charged with. They  

submitted that the concurrent findings of fact  

upholding the conviction of the accused persons on the  

basis of their confessional statements is erroneous,  

keeping in mind that there is no admissible or  

reliable evidence on record which connect them with  

the offences.    

It is contended by both the learned senior counsel Mr.  

K.T.S. Tulsi and Mr. A. Sharan on behalf of A-2 and A-

4 and A-3 and A-5 respectively, that the prosecution  

had not complied with the statutory provisions under  

Section 32(5) of POTA, though they produced the  

accused persons before the learned CJM PW-99, within

Crl.A.Nos.2295-2296 of 2010         -63-  

48 hours as provided under Section 32(4) of POTA. It  

is contended that after recording their statements,  

CJM (PW-99) failed to discharge the vital obligation  

of sending them to judicial custody and thus,  

committed a grave error in remanding them back to  

police custody which was a clear violation of Section  

32(5) of POTA and Article 20(3) of the Constitution.  

It was submitted that the Division Bench of the High  

Court had erroneously made an observation in the  

impugned judgment in this regard with reference to  

Section 32(5) of POTA, stating that the Chief Judicial  

Magistrate has the power to send a person to a  

judicial custody only when he complains of ill  

treatment and torture by the police. The aforesaid  

finding is contrary to the law laid down by this Court  

in NCT v. Navjot Sandhu.13   

13 (2005)  11 SCC 600

Crl.A.Nos.2295-2296 of 2010         -64-  

48. Further, the learned senior counsel placed  

reliance on the deposition of PW-99 to contend that it  

leaves no manner of doubt that he was neither mindful  

of his obligations under Section 32 of POTA nor did he  

make any enquiry regarding fear or torture likely to  

have been faced by the accused persons while making  

their confessional statements. On the contrary, he  

mechanically sent the accused persons back to police  

custody after recording their statements. It was  

further submitted that the CJM had failed to perform  

the most important duty of informing himself about the  

surrounding circumstances for making the confessional  

statements by the accused. Remanding the accused  

persons to judicial custody has been considered as the  

most significant safeguard and protection against  

torture by police, which was thrown to the wind by the  

CJM, thereby he had violated the fundamental rights  

guaranteed to the accused persons under Articles 20(3)  

and 21 of the Constitution. It was further contended

Crl.A.Nos.2295-2296 of 2010         -65-  

by the learned senior counsel that there was a failure  

on the part of the courts below in not considering the  

evidence of doctors who work in Government Hospitals  

and who deposed in the case on behalf of the accused  

persons that A-2 to A-6 had complained of having  

received severe beating by the police prior to  

recording the confessional statements. The said  

evidence is clear from the depositions of DW-

2(Ex.731), DW-4(Ex.736), DW-5(Ex.737) and DW-

7(Ex.744). From the evidence of DW-2, it is revealed  

that the X-ray plates and case papers of A-4 were  

found missing and from the aforesaid evidence, the  

only conclusion that can be drawn is that once the  

accused persons had complained of having received  

severe beatings by the police prior to their making of  

their confessional statements, the credibility of such  

confessions became doubtful as the same had not been  

made voluntarily before PW-78 by them. Therefore, it  

had been urged that neither the Special Court (POTA)

Crl.A.Nos.2295-2296 of 2010         -66-  

nor the Division Bench of the High Court should have  

placed reliance upon the said confessional statements  

to record the finding of guilt against the accused  

persons. The courts below should have considered that  

there was a statutory obligation upon the prosecution  

not to suppress any evidence or document on record  

which indicates the innocence of the accused persons.  

Thus, in the light of evidence of DW-2, the conduct of  

the prosecution in the facts and circumstances of the  

case becomes unjustified. The learned senior counsel  

in support of the said contention placed reliance upon  

the decision of this Court in the case of Sidhartha  

Vashisht v. State (NCT of Delhi)14.  

49. Further, the learned senior counsel on behalf of  

the accused persons contended that there were serious  

infirmities with regard to the manner in which the  

alleged confessional statements of the accused persons  

14 (2010) 6 SCC 1

Crl.A.Nos.2295-2296 of 2010         -67-  

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 & Ors. v. State of Punjab15, Navjot Sandhu case  

(supra) and State of Rajasthan v. Ajit Singh & Ors.16.   

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 should not have placed reliance on the same to  

15 (2002) 8 SCC 73  16 (2008) 1 SCC 601

Crl.A.Nos.2295-2296 of 2010         -68-  

record the finding of guilt against the accused  

persons. The remaining evidence on record placed on  

behalf of the prosecution, does not establish even  

remotely that they were party to any of the material  

ingredients of the conspiracy of the attack on  

Akshardham temple. In support of the said contention,  

the learned senior counsel invited our attention to  

concurrent findings of fact of the courts below  

contending that the same are liable to be set aside as  

they have relied solely upon the confessional  

statements made by the accused persons while upholding  

their conviction. The courts below had gravely erred  

in not considering the very important legal aspect of  

the matter, that a trial court cannot begin by  

examining the confessional statements  of the accused  

persons to convict them. It was contended that it must  

begin with other evidence adduced by the prosecution  

and after it has formed its opinion with regard to the  

quality and effect of other evidence, only then, the

Crl.A.Nos.2295-2296 of 2010         -69-  

court must turn to the confessions in order to be  

assured as to the conclusion of guilt, which the  

judicial mind is about to reach, based on the said  

other evidence. In support of the aforesaid legal  

submissions he had placed reliance upon the judgment  

of this Court in the case of Haricharan Kurmi v. State  

of Bihar17 and the Navjot Sandhu case(supra).  

50. Further elaborating their submissions, the learned  

senior counsel urged that the confession of an accused  

person has been regarded by this Court as fragile and  

feeble evidence which can only be used to support  

other evidence. In support of this contention he  

relied upon the judgment of this Court in the Prakash  

Kumar v. State of Gujarat18. The approach of the  

courts below to record the finding of guilt against  

the accused persons, should be to first marshall  

evidence against the accused persons excluding their                      

17 (1964)6 SCR 623  18 (2007) 4 SCC 266

Crl.A.Nos.2295-2296 of 2010         -70-  

confessions and see whether conviction can safely be  

based upon it.   

Retracted confessions.  

51. The learned senior counsel Mr. A. Sharan appearing  

for A-3 and A-5 had further contended that the courts  

below had failed to take into consideration that the  

confessional statements made by the accused persons  

had been retracted at the earliest possible  

opportunity available to them. The evidence of the  

doctors that the sustained fracture being found on the  

bodies 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

Crl.A.Nos.2295-2296 of 2010         -71-  

v. State of Gujarat19 . 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  

19 (1992) 1 SCC 473

Crl.A.Nos.2295-2296 of 2010         -72-  

prosecution had placed reliance on the evidence of PW-

50 as substantial evidence against the accused  

persons. He contended that a careful reading of the  

evidence of  PW-50 showed that the said witness had  

clearly admitted that he was an accomplice in as much  

as he admitted to having contributed money, even when  

A-3 informed them that the money was to be used for  

taking revenge. It was further contended that a court  

should not rely on the evidence of an accomplice to  

record finding of guilt against the accused persons  

and to buttress the said submission, he placed  

reliance upon the judgment of this Court in the case  

of Mrinal Das v. State of Tripura20. In support of the  

said submission, he had further placed reliance upon  

the judgment of this Court in the case of Bhiva Doulu  

Patil v. State of Maharashtra21   

20 (2011) 9 SCC 479  21 AIR 1963 SC 599

Crl.A.Nos.2295-2296 of 2010         -73-  

Further elaborating his submission in this regard, he  

placed reliance upon another judgment of this Court in  

the case of Mohd. Husain Umar Kochra v. K.S.  

Dalipsinghji22, wherein this Court had further stated  

with regard to the combined effect of Sections 133 and  

114, Illustration (b) of the Indian Evidence Act, 1872  

and held that corroboration must connect the accused  

persons with the crime.   

53. The learned senior counsel relied upon the case of  

Sarwan Singh v. State of Pubjab23, wherein this Court  

has laid down the legal principle that the courts are  

naturally reluctant to act on such tainted evidence  

unless it is corroborated and that independent  

corroboration should support the main story disclosed  

by the approver apart from a finding that the approver  

is a reliable witness. The accomplice evidence should  

satisfy a double test, i.e. he is a reliable witness                      

22 (1969) 3 SCC 429  23 AIR 1957 SC 637

Crl.A.Nos.2295-2296 of 2010         -74-  

and that there is sufficient corroboration by other  

evidence to his statement. This test is special to the  

case of weak or tainted evidence like that of the  

approver.  

In support of the said principle, he further  

placed reliance on the cases of Ravinder Singh v.  

State of Haryana24, Abdul Sattar v. U.T. Chandigarh25,  

Narayan Chetanram Chaudhary v. State of Maharashtra26,  

Sheshanna Bhumanna Yadav v. State of Maharashtra27 and  

Bhuboni Sahu v. R.28.  

54. The learned senior counsel specifically referred  

to the case of K. Hashim v. State of Tamil Nadu29  

wherein this Court, after adverting to Sections 133  

and 114, Illustration (b) of the Evidence Act has held  

that the said provisions strike a note of warning                      

24 (1975) 3 SCC 742  25(1985) Suppl (1) SCC 599  26 (2000) 8 SCC 457  27 (1970) 2 SCC 122  28 (1948-49) 76 IA 147  29 (2005) 1 SCC 237

Crl.A.Nos.2295-2296 of 2010         -75-  

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

Crl.A.Nos.2295-2296 of 2010         -76-  

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 suddenly resulted in feverish  

activity, whereupon the accused persons were arrested  

and their confessional statements were recorded.  

The learned senior counsel for the prosecution had  

relied upon the deposition of PW-52 who had stated in  

his evidence about sending money through A-3, as well  

as the weapons for the carnage and had also identified  

A-2, A-4 and A-5 before the Court. The learned senior  

counsel, Mr. K.T.S Tulsi submitted that the said  

statement of this witness was exculpatory as he had  

stated that no work was assigned to him.  Therefore,  

such statement can neither be considered to be  

reliable nor worthy of acceptance without  

corroboration in material particulars from independent  

sources.  In view of the test laid down by this court  

in a catena of judgments referred to supra, upon which

Crl.A.Nos.2295-2296 of 2010         -77-  

strong reliance had been placed by the learned counsel  

based on the presumption contained in illustration (b)  

of Section 114 read with section 133 of the Indian  

Evidence Act, it was submitted that provisions of the  

Evidence Act are of no avail to the prosecution case.     

Letters purportedly recovered from the pockets of the  

fidayeens cannot be relied upon:  

57. Both the learned senior counsel, Mr. K.T.S Tulsi  

and Mr. A. Sharan contended that it was not possible  

to believe that the letters were recovered from the  

pockets of the two fidayeens, mainly on the evidence  

from the post mortem of the dead bodies of the  

fidayeens which showed that the bodies had 46 and 60  

external injuries, respectively, due to multiple  

bullet shots and the panchnama of the clothes of the  

assailants clearly demonstrated that their clothes  

were full of blood and mud and therefore, it was  

highly improbable and difficult to believe that the

Crl.A.Nos.2295-2296 of 2010         -78-  

alleged letters were recovered in a perfect condition  

from the clothes of the fidayeens. The High Court had  

failed to reconcile the fact of absence of bullet  

holes on the letters with the presence of multiple  

bullet holes on the pockets of the trousers, from  

which the letters were purported to have been  

recovered.  With regard to the letters being in a  

perfect condition, the High Court merely observed that  

“Truth is stranger than fiction” and it was submitted  

that the courts below ought not to have relied upon  

such a document to record their findings of guilt  

against the accused persons on the basis of the same.  

58. The learned senior counsel also referred to  

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 CrPC and that of PW-

Crl.A.Nos.2295-2296 of 2010         -79-  

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 CrPC 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 CrPC 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 prejudiced.   

59. The learned senior counsel also contended that the  

claim of the prosecution that the letters were found  

in a pouch which was present in the pocket of the

Crl.A.Nos.2295-2296 of 2010         -80-  

trousers of the fidayeens cannot be believed as there  

is no evidence to support the same and on the  

contrary, the receipt voucher of the articles  

collected from the fidayeens only listed two  

‘handwritten letters in Urdu’ and there was no mention  

of the pouch whatsoever.  

Delay in recording statements of accomplices and  

confessional statements of the accused persons.   

60. The learned senior counsel, Mr. A. Sharan had  

submitted that the preliminary investigation of the  

case was initially carried out by the police from  

27.09.2002 and thereafter, the investigation was  

handed over to the ATS on 03.10.2002. After the matter  

was investigated for a year, it was transferred to the  

Crime Branch on 28.08.2003 and surprisingly, on the  

very next day i.e, 29.08.2003, all the accused  

persons, except A-6 were arrested and on 30.08.2003,

Crl.A.Nos.2295-2296 of 2010         -81-  

the provisions of POTA were invoked by the Crime  

Branch against them.  

61. It was further contended by him that this made the  

prosecution story highly improbable and the fact that  

the accused persons were apprehended a year after the  

incident made the conduct of the prosecution highly  

doubtful and totally unreliable.   

It was further contended by him that it is a well  

settled principle of law that there should not be an  

inordinate delay in the recording of the statements of  

the accomplices by the police. PW-50, PW-51, PW-52 and  

PW-56 had stated in their depositions that their  

statements were recorded around the 7th or 8th month of  

2003. Thus, this inordinate delay leads one to draw an  

adverse inference and also leads one to believe that  

the police had sufficient time to fabricate the story  

and rope in the accused persons falsely in this case.  

Reliance was placed by the learned senior counsel on

Crl.A.Nos.2295-2296 of 2010         -82-  

the case of State of Andhra Pradesh v. S.Swarnalatha &  

Ors.30, wherein even 26 days delay in recording  

statements of prosecution witnesses was not allowed by  

this Court.  The learned senior counsel also referred  

to the case of Jagjit Singh @ Jagga v. State of  

Punjab31 in support of the above position of law.   

It was contended that the delay in recording the  

statements of the accused and witnesses by police and  

reliance placed upon 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  

30 (2009) 8 SCC 383  31 (2005) 3 SCC 689

Crl.A.Nos.2295-2296 of 2010         -83-  

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 IPC or common object under Section  

149 IPC, 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 behalf of  

the prosecution, had failed to show and establish the  

nexus either with common intention or object, or the  

cumulative effect of the proved circumstances, to

Crl.A.Nos.2295-2296 of 2010         -84-  

establish any connection between the accused persons  

and the conspiracy of the attack on Akshardham.  

Further, it was contended that the courts below had  

grossly erred in placing strong reliance upon the  

evidence of above prosecution witnesses to hold that  

there was a link or connection between the fidayeens  

and the accused persons, and that it was on the  

failure of the prosecution to establish such  

connection, that they had been subsequently roped in.  

63. Further, it was contended that even from the  

confessional statement of A-6, wherein he had narrated  

as to how the two fidayeens were brought from Jammu &  

Kashmir to Gujarat, there was no mention of A-1 to A-

5. Therefore, the prosecution had failed to establish  

the connection between A-6 and A-2, A-4, A-3 and A-5  

and this important aspect of the matter had not been  

considered at all by the courts below while recording  

the finding of guilt against the accused persons and  

the same cannot be allowed to sustain.

Crl.A.Nos.2295-2296 of 2010         -85-  

Defence Witnesses to be given same weightage as  

prosecution witnesses.  

64. The learned senior counsel also contended that the  

courts below should have given same weightage to the  

evidence of the defence witnesses as that of the  

prosecution witnesses and in support of this  

contention, he placed reliance upon the cases of   

Munshi Prasad v. State of Bihar32, I.C.D.S. Ltd. v.  

Beena Shabeer & Anr.33 and State of Uttar Pradesh v.  

Babu Ram34  

Suppression of material witness draws an adverse  

inference against the prosecution.  

65. It was contended by the learned senior counsel  

that PW-126 stated that his senior officer D.G  

Vanzara, had orally told him that PW-50 was aware of                      

32 (2002) 1 SCC 351   33 (2002) 2 SCC 426  34 (2000) 4 SCC 515

Crl.A.Nos.2295-2296 of 2010         -86-  

the details of the conspiracy, but D.G. Vanzara was  

never produced as a prosecution witness. The case is  

the same with Brig. Raj Sitapati, who was also a  

witness to the recovery of the two Urdu letters, and  

this material witness had also been conveniently  

brushed aside both by the police and the prosecution.  

Reliance was placed by the learned senior counsel in  

this regard on Tulsiram Kanu v. The State35, Ram  

Prasad & Ors. v. State of U.P.36 and State of U.P. v.  

Punni & Ors.37  

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) &  

35 AIR 1954 SC 1  36 (1974) 3 SCC 388  37 (2008) 11 SCC 153

Crl.A.Nos.2295-2296 of 2010         -87-  

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.  

Crl.A.Nos.2295-2296 of 2010         -88-  

Contentions on behalf of A-6.  

67. The contentions urged by learned counsel Ms.Kamini  

Jaiswal on behalf of A-6 will now be adverted to as he  

was arrested later and his situation is different from  

that of the other accused persons.   

Arrest of A-6 in an offence investigated by Jammu and  

Kashmir police.  

68. It is contented that as per the case of the  

prosecution, A-6 was under arrest at the Navgam police  

station Kashmir, in relation to offence in FIR no. 130  

of 2003 under Sections 120-B and 153-A of Ranbir Penal  

Code(RPC) and Sections 7 and 27 of the Arms Act. It  

was also the case of the prosecution that a fax  

message was sent by the IGP Kashmir to ATS, Gujarat on  

31.08.2003, and that pursuant to the receipt of the  

fax, the Transfer Warrant was sought from the Special  

Designated Court (POTA), Ahmedabad and on that basis,  

the Application for Remand was made to the Chief

Crl.A.Nos.2295-2296 of 2010         -89-  

Judicial Magistrate, Badgaum. A-6 was brought to  

Ahmedabad on 12.09.2003 and was arrested by the  

Gujarat police in CR No. 314 of 2002 at 9:30 P.M.  

Confessional statement of A-6 is not admissible  

against him.  

69. It was further submitted that the entire case of  

the prosecution rested solely on the alleged  

confession of A-6 which was recorded on 05.10.2003  

(Exs.461-462), while he was in police custody. It had  

been submitted that there were several violations of  

the mandatory requirements of Section 32 of POTA while  

recording his confessional statement. Learned senior  

counsel Mr. K.T.S Tulsi, appearing on behalf of A-2  

and A-4 and Mr. A. Sharan learned senior counsel  

appearing on behalf of A-3 and A-5 had also advanced  

arguments in detail as to how the confessional  

statements of the accused persons were not recorded in  

accordance with the mandatory procedural safeguards

Crl.A.Nos.2295-2296 of 2010         -90-  

under Section 32 of POTA and the learned counsel for  

A-6, Ms.Kamini Jaiswal had alluded to them with  

respect to A-6 also. Hence, we will not reiterate the  

same in this portion of the judgment.  

That the other evidence produced by the prosecution  

also does not point to the guilt of A-6.  

70. The learned counsel submitted that during the  

remand of A-6, the investigation was carried on by V.D  

Vanar (PW-112), at Bareilly and Ahmedabad. He had  

drawn panchnama of a PCO from where the accused had  

allegedly made telephone calls, but though he stated  

that a panchnama was drawn at Bareilly, no such  

panchnama had been brought on 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

Crl.A.Nos.2295-2296 of 2010         -91-  

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.

Crl.A.Nos.2295-2296 of 2010         -92-  

It was further submitted that with regard to the  

ownership of the ambassador car, the report of the RTO  

(Ex.672), showed that it was registered in the name of  

Abdul Majid Rathor. The prosecution had also not been  

able to bring anything on record to connect A-6 with  

the said owner or with the car, or of the case with  

the attack at Akshardham temple.  

That there had also been a violation of Section 51 of  

POTA.  

71. It was contended by the learned counsel that  

Section 51 of POTA, which starts with the non-obstante  

clause, makes it mandatory that the investigation  

under POTA be carried out only by the officer of the  

rank of Deputy Superintendent of Police or a police  

officer of an equivalent rank. It was argued that the  

investigation in the present case was mostly carried  

out by the officer of the rank of a Police Inspector.  

The POTA, unlike CrPC does not contain any provision

Crl.A.Nos.2295-2296 of 2010         -93-  

where the powers of the I.O could be delegated to any  

other person. Thus, it was contented that any  

investigation, if carried out by any officer below the  

rank of ACP is illegal and evidence, if any, collected  

during such investigation could not be looked at.  

Findings of this Court:  

72. We have heard the rival factual and legal  

contentions raised at length for a number of days and  

perused in detail the written submissions on record  

produced by the learned counsel representing both the  

parties. We have also perused the material objects and  

evidence on record available with this Court in  

connection with this case. The following points that  

would arise in these appeals for the purpose of  

adjudication of the appeals by this Court are:  

1. Whether sanction given by the Gujarat State  

Government dated 21.11.2003 in this case is  

in compliance with Section 50 of POTA?

Crl.A.Nos.2295-2296 of 2010         -94-  

2. Whether the confessional statements of the  

accused persons were recorded as per the  

procedure laid down in Section 32 of POTA,  

CrPC and the principles laid down by this  

Court?  

3. Whether the statements of the accomplices  

disclosing evidence of the offences, and the  

connection of the accused persons to the  

offence, can be relied upon to corroborate  

their confessional statements?  

4. Whether the two letters in Urdu presented as  

Ex.658 which have been translated in English  

vide Ex.775, were found from the pockets of  

the trousers of the fidayeens who were  

killed in the attack?  

5. Whether the letters allegedly found from the  

pockets of the trousers of the fidayeens  

were written by A-4?

Crl.A.Nos.2295-2296 of 2010         -95-  

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 120-B  

IPC?  

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?  

Crl.A.Nos.2295-2296 of 2010         -96-  

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 Sarkar38, 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. They are not just dull, lifeless words  static and hide-bound as in some mummi-fied  manuscript, but, living flames intended to  give life to a great nation and order its  being, tongues of dynamic fire, potent to  mould the future as well as guide the  present. The Constitution must, in my  judgment, be left elastic enough to meet from  time to time the altering conditions of a  changing world with its shifting emphasis and  differing needs. I feel therefore that in  each case judges must look straight into the  heart of things and regard the facts of each  case concretely much as a jury would do; and  yet, not quite as a jury, for we are  considering here a matter of law and not just  

38  AIR 1952 SC 75

Crl.A.Nos.2295-2296 of 2010         -97-  

one of fact: Do these “laws” which have been  called in question offend a still greater law  before which even they must bow? ”  

(emphasis laid by this Court)    

POTA was repealed in 2004. Yet, the trials, its  

implementation has entailed, are continuing till date.  

POTA was repealed for the gross violation of human  

rights it caused to the accused persons due to abuse  

of power by the police. This is an important aspect to  

be kept in mind while deciding this case and hence, it  

was pertinent to mention this in the beginning to say  

that we are wary of the abuse the provisions of this  

Act might bring. And we are conscious of it.   

Answer to point no.1  

74. It was contended by Ms. Kamini Jaiswal, the  

learned counsel for A-6 that a perusal of the  

statement of PW-88 would show that not all documents  

pertaining to the investigation were placed before the  

sanctioning authority and that it was only on the

Crl.A.Nos.2295-2296 of 2010         -98-  

approval of the Home Minister of the State of Gujarat  

to prosecute the accused, that sanction as required  

under Section 50 of POTA was granted in this case.    

PW-88 Kuldeep Chand Kapoor IAS, Principal Secretary,  

Home Department, had stated in his statement (Ex.497)  

recorded before the Special Court (POTA) as under:  

“I agree that the last paragraph of the  letter of ACP (Ex. 502) contains the details  of papers submitted to the Home Department  and these are the only papers that had been  received by me.   

I am producing Patrak- A and B details of  arrests of all the six accused. Patrak- A,  Patrak – B and details of the accused  arrested are being given respectively Ex.  503, Ex. 505 and Ex. 506.  

It is true that while granting the sanctions  against all the six accused to be prosecuted,  I had perused Patrak- 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.  

Crl.A.Nos.2295-2296 of 2010         -99-  

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 have no idea whether the accused Adam  Ajmeri and Adbul Qayum a Mufti had been taken  to Jammu and Kashmir for investigation by  Crime Branch, Ahmedabad. Witness volunteers  that as Crime Branch would not need to take  my permission for taking accused for  Investigation of State of Jammu and Kashmir,  I am not aware.  

Crl.A.Nos.2295-2296 of 2010         -100-  

I had verified the case papers and satisfied  that section 52 of POTA had been complied  with completely.  

There were no papers suggesting compliance of  section 52 of POTA in the bunch of papers  sent to me. According to me, those papers  were not relevant for my purpose as  compliance was to be observed by the I.O. and  I was not investigating the case.   

I do not agree that the entire Investigation  had not been done by the competent officer of  the level of ACP.  

I do not agree to the suggestion that neither  Minister nor I applied mind while granting  sanction nor officer below also applied mind  for such a grant.”  

(emphasis laid by this Court)     

(translation extracted from the Additional documents  submitted on behalf of State of Gujarat)  

PW-88, in his deposition had stated that PW-126 had  

forwarded to him the relevant documents as  

aforementioned for the purpose of deciding whether it  

was a fit case for granting sanction under Section 50  

of POTA. He had reiterated in his deposition that he  

had perused all these documents, especially Patrak-A,  

which contained the details of the two Urdu letters

Crl.A.Nos.2295-2296 of 2010         -101-  

and the opinion of the handwriting expert from the FSL  

and Patrak B, the contents of which were not mentioned  

in his statement, and also the details of the arrest  

of the accused persons. But glaringly, PW-88 had  

stated in his deposition that he had not enquired  

about whether there were any investigation papers  

regarding the involvement of A-6 in the crime by the  

Crime Branch, Ahmedabad, at Jammu and Kashmir. This  

aspect is important as he had stated that he had no  

knowledge of whether the custody of A-6 was taken in  

accordance with due process of law. He further stated  

that he had verified the case papers and had satisfied  

himself that Section 52 of POTA had been complied with  

completely but in the very next sentence, he stated:   

“There were no papers suggesting compliance  of Section 52 of POTA in the bunch of papers  sent to me. According to me, those papers  were not relevant for my purpose as  compliance was to be observed by the I.O and  I was not investigating the case.”  

Crl.A.Nos.2295-2296 of 2010         -102-  

(translation extracted from the Additional  documents submitted on behalf of State of  

Gujarat)    

Thus, it is clear from the statement of PW-88 that he  

was an important part of 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 & Ors.

Crl.A.Nos.2295-2296 of 2010         -103-  

v. State of Gujarat39, 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 for the offence  or offences under TADA. We must bear in mind  that sanction is not granted to the Designated  Court to take cognizance of the offence, but it  is granted to the prosecuting agency to  approach the court concerned for enabling it to  take cognizance of the offence and to proceed  to trial against the persons arraigned in the  report. Thus a valid sanction is sine qua non  for enabling the prosecuting agency to approach  the court in order to enable the court to take  cognizance of the offence under TADA as  disclosed in the report. The corollary is that,  if there was no valid sanction the Designated  Court gets no jurisdiction to try a case  against any person mentioned in the report as  the court is forbidden from taking cognizance  of the offence without such sanction. If the  Designated Court has taken cognizance of the  offence without a valid sanction, such action  is without jurisdiction and any proceedings  

39 (1997) 7 SCC 744

Crl.A.Nos.2295-2296 of 2010         -104-  

adopted thereunder will also be without  jurisdiction.  9. In this case the prosecution relies on Ext.  63, an order issued by the Director General of  Police, Ahmedabad, on 3-9-1993, as the sanction  under Section 20-A(2) of TADA. We are  reproducing Ext. 63 below:  

“Sr. No. J-1/1909/1/Khambalia 55/93  Director General of Police, Dated 3-9-1993  Gujarat State,  Ahmedabad.  Perused: (1) FIR in respect of offence  

Registered No. 55/93 at Khambalia Police  Station 25(1)(b)(a)(b) of Arms Act and Sections  3, 4 and 5 of the TADA.  

(2) Application sent by DSP Jamnagar vide  his letter No. RB/D/122/1993/1820 dated 9-8- 1993.  

Having considered the FIR in respect of  offence Registered No. 55/93 at Khambalia  Police Station District Jamnagar under Section  25(1)(b)(a)(b) of Arms Act and Sections 3, 4  and 5 of TADA and letter No. RB/D/122/1993/1820  of DSP dated 9-8-1993 seeking permission to  apply the provisions of TADA carefully, I A.K.  Tandon, Director General of Police, Gujarat  State, Ahmedabad under the powers conferred  under the amended provisions of TADA (1993)  Section 20-A(2) give permission to add Sections  3, 4 and 5 of TADA.  

A.K. Tandon  Director General of Police  Ahmedabad  Gujarat”  

10. Apparently Ext. 63 makes reference only to  two documents which alone were available for

Crl.A.Nos.2295-2296 of 2010         -105-  

the Director General of Police to consider  whether sanction should be accorded or not. One  is the FIR in this case and the other is the  letter sent by the Superintendent 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  

Gujarat40, 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  

40 (1995) 5 SCC 302

Crl.A.Nos.2295-2296 of 2010         -106-  

safeguard whereunder the DSP was required to  obtain the sanction/consent of the State  Government, we are of the view that in the  present case the same was given by the State  Government without proper application of mind.  We have taken this view because the  sanction/consent was given by the Government  merely on the basis of the fax message dated  17-3-1995 of the DSP. The reason for our saying  so is that though there is no record a fax  message of Deputy Director General of Police  also, which is dated 18-3-1995, the  sanction/consent order has mentioned above the  fax message of the DSP only. Now, no doubt the  message of the DSP is quite exhaustive, as  would appear from that message which has been  quoted above in full, we are inclined to think  that before agreeing to the use of harsh  provisions of TADA against the appellants, the  Government ought to have taken some steps to  satisfy itself whether what had been stated by  the DSP was borne out by the records, which  apparently had not been called for in the  present case, as the sanction/consent was given  post-haste on 18-3-1995, i.e., the very next  day of the message of the DSP. It seems the DSP  emphasised the political angle in the first two  paragraphs of his message. The dispute or  motive stated was that the Darbars were annoyed  because they were refused loan and not because  of any political rivalry. In the third  paragraph there is reference to statements of  accused after arrest which would ordinarily be  inadmissible in evidence. Reference to avoid  incident of the past does not provide any  nexus. The State Government gave the sanction  without even discussing the matter with the  investigating officer and without assessing the

Crl.A.Nos.2295-2296 of 2010         -107-  

situation independently. All these show lack of  proper and due application of mind by the State  Government while giving sanction/consent.”  

    (emphasis laid by this Court)  

It was the Deputy Secretary, Law and Order, Mr. J.R  

Rajput who had signed the document of sanction issued  

in the name of the Governor (Ex.498). However, he was  

not examined by the Court. On the other hand, PW-88,  

the Principal Secretary was examined. Therefore, we  

intend to examine the statement of PW-88, since he  

formed the only link in the Home Ministry of State of  

Gujarat and could enlighten us with the facts and  

information which were taken into consideration by him  

while granting sanction.  

While deposing before the Special Court (POTA), PW-88  

stated that he had not discussed anything with the  

Home Minister regarding the 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

Crl.A.Nos.2295-2296 of 2010         -108-  

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 Gujarat41, 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  

41 (1997) 7 SCC 622

Crl.A.Nos.2295-2296 of 2010         -109-  

upon it to take a decision one way or the  other. Since the discretion to grant or not to  grant sanction vests absolutely in the  sanctioning authority, its discretion should be  shown to have not been affected by any  extraneous consideration. If it is shown that  the sanctioning authority was unable to apply  its independent mind for any reason whatsoever  or was under an obligation or compulsion or  constraint to grant the sanction, the order  will be bad for the reason that the discretion  of the authority “not to sanction” was taken  away and it was compelled to act mechanically  to sanction the prosecution.”  

 (emphasis laid by this Court)  

77. However, the present case does not show that the  

sanctioning authority had applied its mind to the  

satisfaction as to whether the present case required  

granting of sanction. The prosecution had failed to  

prove that the sanction was granted by the government  

either on the basis of an informed decision or on the  

basis of an independent analysis of fact on  

consultation with the Investigating Officer. This  

would go to show clear non-application of mind by the  

Home Minister in granting sanction. Therefore, the

Crl.A.Nos.2295-2296 of 2010         -110-  

sanction is void on the ground of non- application of  

mind and is not a legal and valid sanction under  

Section 50 of POTA.  

Answer to Point no. 2   

78. To begin with, the provisions for recording  

confessional statements can be found in CrPC under  

Section 164 which reads as:  

“164. Recording of confessions and statements.   (1) Any Metropolitan Magistrate or Judicial  Magistrate may, whether or not he has  jurisdiction in the case, record any confession  or statement made to him in the course of an  investigation under this Chapter or under any  other law for the time being in force, or at  any time afterwards before the commencement of  the inquiry or trial:   Provided that any confession or statement made  under this sub-section may also be recorded by  audio-video electronic means in the presence of  the advocate of the person accused of an  offence:  

Provided further that no confession shall  be recorded by a police officer on whom any  power of a Magistrate has been conferred under  any law for the time being in force.

Crl.A.Nos.2295-2296 of 2010         -111-  

(2)The Magistrate shall, before recording any  such confession, explain to the person making  it that he is not bound to make a confession  and that, if he does so, it may be used as  evidence against him ; and the Magistrate shall  not record any such 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 hereinafter provided for the  recording of evidence as is, in the opinion of  the Magistrate, best fitted to the  circumstances of the case ; and the Magistrate

Crl.A.Nos.2295-2296 of 2010         -112-  

shall have power to administer oath to the  person whose statement is so recorded.   (6) The Magistrate recording a confession or  statement under this section shall forward it  to the Magistrate by whom the case is to be  inquired into or tried.”   

However, caution against the use of confession  

statements made by accused persons before the police,  

is specifically provided in Section 162 of the CrPC,  

which reads as:  

“162. Statements to police not to be signed:  Use of statements in evidence. (1) No statement  made by any person to a police officer in the  course of an investigation under this Chapter,  shall, if reduced to writing, be signed by the  person making it; nor shall any such statement  or any record thereof, whether in a police  diary or otherwise, or any part of such  statement or record, be used for any purpose,  save as hereinafter provided, at any inquiry or  trial in respect of any offence under  investigation at the time when such statement  was made:   Provided that when any witness is called for  the prosecution in such inquiry or trial whose  statement has been reduced into writing as  aforesaid, any part of his statement, if duly  proved, may be used by the accused, and with  the permission of the Court, by the  prosecution, to contradict such witness in the

Crl.A.Nos.2295-2296 of 2010         -113-  

manner provided by section 145 of the Indian  Evidence Act, 1872 (1 of 1872); and when any  part of such statement is so used, any part  thereof may also be used in the re- examination  of such witness, but for the purpose only of  explaining any matter referred to in his cross- examination.   (2) Nothing in this section shall be deemed to  apply to any statement falling within the  provisions of clause (1) of section 32 of the  Indian Evidence Act, 1872 (1 of 1872), or to  affect the provisions of section 27 of that  Act.   Explanation.-An omission to state a fact or  circumstance in the statement referred to in  sub-section (1) may amount to contradiction if  the same appears to be significant and  otherwise relevant having regard to the context  in which such omission occurs and whether any  omission amounts to a contradiction in the  particular context shall be a question of  fact.”   

The caution against the use of confessional  

statements 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:

Crl.A.Nos.2295-2296 of 2010         -114-  

“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 police officer shall not  compel or induce him to make any confession.   (3) The confession shall be recorded in an  atmosphere free from threat or inducement and  shall be in the same language in which the  person makes it.   (4) The person from whom a confession has been  recorded under sub-section (1), shall be  produced before the Court of a Chief  Metropolitan Magistrate or the Court of a Chief  Judicial Magistrate along with the original  statement of confession, written or recorded on  mechanical or electronic device within forty- eight hours.   (5) The Chief Metropolitan Magistrate or the  Chief Judicial Magistrate, shall, record the  statement, if any, made by the person so  produced and get his signature or thumb

Crl.A.Nos.2295-2296 of 2010         -115-  

impression and if there is any complaint of  torture, such person shall be directed to be  produced for medical examination before a  Medical Officer not lower in rank than an  Assistant Civil Surgeon and thereafter, he  shall be sent to judicial custody.”   

Since this Act makes a departure from the established  

criminal jurisprudence as well as the provisions of  

the Constitution, the constitutionality of the Act  

came to be challenged before this Court in the case of  

Peoples Union of Civil Liberties v. Union of India42.  

The Court upheld the constitutionality of the Act  

after taking into account all the provisions which  

seemingly violate the fundamental rights guaranteed  

under the Constitution. For the purpose of this case,  

we intend to record the finding of this court with  

respect to the provisions of Section 32. The relevant  

paragraphs of the case read as under:  

42 (2004) 9 SCC 580

Crl.A.Nos.2295-2296 of 2010         -116-  

“63. Concerning the validity and procedural  difficulties that could arise during the  process of recording confessions, the  Petitioners submitted that there is no need to  empower the police to record confession since  the accused has to be produced before the  Magistrate within forty-eight hours, in that  case the magistrate himself could record the  confession; that there is no justification for  extended the time limit of forty eight hours  for producing the person before the Magistrate;  that it is not clear in the Section whether the  confession recorded by the police officer will  have validity after Magistrate has recorded the  fact of torture and has sent the accused for  medical examination; that it is not clear as to  whether both the confession before the police  officer as well as 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

Crl.A.Nos.2295-2296 of 2010         -117-  

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 similar to this  Section was upheld in Kartar Singh case (pp.  664-83 of SCC). While enacting this Section  Parliament has taken into account all the  guidelines, which were suggested by this Court  in Kartar Singh case. Main allegation of the  Petitioners is that there is no need to empower  the police to record confession since the  accused has to be produced before the  Magistrate within forty-eight hours in which  case the Magistrate himself could record the  statement or confession. In the context of  terrorism the need for making such a provision  so as to enable Police officers to record the  confession was explained and upheld by this  Court in Kartar Singh case (p. 680 para 253 of  SCC). We need not go into that question at this  stage. If the recording of confession by police  is found to be necessary by Parliament and if  it is in tune with the scheme of law, then an  additional safeguard under Sections 32(4) and  (5) is a fortiori legal. In our considered  opinion the provision that requires producing  such a person before the Magistrate is an  additional safeguard. It gives that person an  opportunity to rethink over his confession.  Moreover, the Magistrate’s responsibility to  record the statement and the enquiry about the  torture and provision for subsequent medical  treatment makes the provision safer. It will

Crl.A.Nos.2295-2296 of 2010         -118-  

deter the police officers from obtaining a  confession from an accused by subjecting him to  torture. It is also worthwhile to note that an  officer who is below the rank of a  Superintendent of Police cannot record the  confessional statement. It is a settled  position that if a confession was forcibly  extracted, it is a nullity in law. Non- inclusion of this obvious and settled principle  does not make the Section invalid. (See: Kartar  Singh case, p. 678, para 248 –49 of SCC).  Ultimately, it is for the Court concerned to  decide the admissibility of the confession  statement. (See: Kartar Singh case p. 683, para  264 of SCC). Judicial wisdom will surely  prevail over irregularity, if any, in the  process of recording confessional statement.  Therefore we are satisfied that the safeguards  provided by the Act and under the law are  adequate in the given circumstances and we  don’t think it is necessary to look more into  this matter. Consequently we uphold the  validity of Section 32.”  

(emphasis laid by this Court)    

79. The provisions of a Special Act prevail over the  

provisions of General Act. Since the constitutionality  

of the POTA was declared as valid by this Court, its  

provisions would prevail over CrPC. However,  

considering the stringency of the provisions of POTA

Crl.A.Nos.2295-2296 of 2010         -119-  

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

Crl.A.Nos.2295-2296 of 2010         -120-  

learned senior counsel on behalf of the prosecution,  

on the other hand contended that the statutory  

mandates had been complied with by the police.   

We have perused the evidence on record in this  

aspect. We have found stark discrepancies in the  

manner in which the statements of the accomplices and  

those of the accused persons were recorded. While the  

statements of the accomplices in the present case,  

namely- PW-50, PW-51 and PW-52 were preceded by  

written records of cautions in the same document, the  

confessional statements of the accused persons do not  

show such caution. On the other hand, the intimation  

by the DCP Sanjaykumar Gadhvi (PW-78) appeared on a  

separate documents marked as separate Exhibits from  

the confessions. The same are as follows:  

For A-2- Adambhai Sulaimanbhai Ajmeri  

Intimation letter given by DCP prior to  confession- Ex.457  

Confessional Statement- Ex. 458  

For A-3-Mohammad Salim Mohammad Hanif Sheikh

Crl.A.Nos.2295-2296 of 2010         -121-  

Intimation letter given by DCP prior to  confession- Ex.453  

Confessional Statement- Ex. 454  

For A-4- Abdul Kayum  

Intimation letter given by DCP prior to  confession- Ex. 459  

Confessional Statement- Ex. 460  

For A- 6- Shanmiya@ Chandkhan Sajjadkhan Pathan  

Intimation letter given by DCP prior to  confession- Ex. 461  

Confessional Statement- Ex. 462  

On this aspect of the matter, the CJM, PW-99 made the  

following statement during cross examination by the  

learned counsel for the accused persons vide Ex.568:  

“....It is true that the explanation given to  the accused and statement made by him, the said  both were separate papers. I agree to the fact  that generally the explanation and the  statement should be in same paper. As both of  this were in same papers, I did not suspect  that the said explanation which was given, has  been brought later on”    

(translation extracted from the Additional  documents submitted on behalf of the  

Appellants)

Crl.A.Nos.2295-2296 of 2010         -122-  

It is also pertinent to extract one of the intimation  

letters given by the DCP prior to the confession of  

one of the accused persons. The intimation letter  

given by DCP to A-2 reads thus:  

“....... your statement under section 32 of the  POTA before the Superintendent of Police is to  be taken. But you are not bound to make this  statement or confession and the confession that  you will make could be used against you as  evidence. So it is informed to you that you  give this statement willingly and free from any  kind of pressure or threat or allurement.”  

 (translation extracted from the Additional  

documents submitted on behalf of the  Appellants)  

81. It was held by this Court in the case of Hardeep  

Singh Sohal & Ors. v. State of Punjab through CBI43  

that the police officer recording the confessional  

43 (2004)11 SCC 612  

Crl.A.Nos.2295-2296 of 2010         -123-  

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 and signed  by the person who makes the confession. The  police officer shall also certify under his own  hand that such confession was taken in his  presence and recorded by him and that the  record contains a full and true account of the  confession made by the person and such police

Crl.A.Nos.2295-2296 of 2010         -124-  

officer shall make a memorandum at the end of  the confession and the pro forma of such  certificate also is appended to Rule 15.  17. Ext. PAA does not contain such a  certificate having been given by PW 34. It is  true that PW 34 had put certain questions to  the accused as to whether he was aware that the  statement which he wants to make could be used  against him and on the basis of the same he  will be sentenced. The officer also asked him  whether there is any pressure, fear on him and  he answered in the negative. However, PW 34 did  not give the certificate at the end of the  confession. The certificate should have  specifically stated that he had explained to  the person making the confession that he was  not bound to make the confession and, if he  does so, the confession he may make may be used  against him and that he believed that this  confession was voluntarily made and it was  taken in his presence and recorded by him and  was read over to the person making it and  admitted by him to be correct, and it contained  a full and true account of the statement made  by him.  18. This Court has in a series of decisions  deprecated the practice of non-observance of  this provision and held that such violation  would be inadmissible. In Bharatbhai v. State  of Gujarat this Court held that Rule 15(3)(b)  of the TADA Rules was not complied with and no  memorandum as required was made. There was also  no contemporaneous record to show the  satisfaction of the recording officer after  writing of confession that the confession was  voluntarily made or read over to the accused.  Thus, the confessional statement was

Crl.A.Nos.2295-2296 of 2010         -125-  

inadmissible and cannot be made the basis for  upholding the conviction.  19. In S.N. Dube v. N.B. Bhoir this Court held  that writing the certificate and making the  memorandum under Rule 15(3)(b) to prove that  the accused was explained that he was not bound  to make a confession and that if he made it, it  could be used against him as evidence; that the  confession was voluntary and that it was taken  down by the police officer fully and correctly  are all matters not left to be proved by oral  evidence.”  

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

Crl.A.Nos.2295-2296 of 2010         -126-  

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  custody again”.  

In the case of Mohammad Ajmal Mohammad Amir Kasab  

Alias Abu Mujahid v. State of Maharashtra44, the  

accused was willing to make confessional statement  

44 (2012) 9 SCC 1

Crl.A.Nos.2295-2296 of 2010         -127-  

while he was in police custody. Yet, his confession  

was deferred on the ground that he shall be sent to  

judicial custody after the confession was made before  

the CJM and this would hinder the investigation  

procedure. However, in the present case, presenting  

the accused persons before the CJM for half an hour  

was a mere formality to show compliance with the  

provisions of Sections 32(4) and 32(5) of POTA since  

they were sent back to police custody immediately  

after being presented before the CJM.   

83. In the present case, the CJM (PW-99 : Ex.568),  

during cross examination went on to record that:  

“..... I did not make inquiry with any police  officers with regard to the said confessions. I  had not asked the two accused produced before  me as to whether they need any lawyer or not. I  had not taken the said accused persons in my  custody. It is true that I did not issue any  warrant for them to be sent to judicial  custody. It is true that I did not inquire with  the accused about where and at what time and  who recorded their statements. It is true that  I have not kept any rojkam or record in my  court about the accused persons produced before

Crl.A.Nos.2295-2296 of 2010         -128-  

me on date 25th. There is entry in the postal  book with regards to the covers along with the  statements having been sent by me to the POTA  court.”  

 (translation extracted from the Additional  

documents submitted on behalf of the  appellants)  

The statements made by the CJM show how casually the  

mandates under Sections 32(4) and 32(5) were followed,  

rendering the said requirement a hollow and empty  

exercise.   

84. Now, we proceed to examine the statement of PW-78,  

DCP Mr. Sanjaykumar Gadhvi(Ex.452), who recorded the  

confessional statements of the accused persons. On  

being cross examined by the learned counsel for A-1,  

A-3 and A-5, he stated as under:  

“..I have not asked the accused about since how  many days they were in custody. I had asked to  the officer who had brought the accused about  since how many days the accused was in police  custody. I had asked him but I don’t remember  presently what reply was given by him. Before  taking the statement of the accused persons, I  did not examine their physical condition by

Crl.A.Nos.2295-2296 of 2010         -129-  

removing their clothes. I knew that the fact  that the accused persons were brought from the  custody of Crime Branch. I had not asked 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 he was not crying. I have not  made any note at any place with regards to the  fact stated by me to the accused persons that  their case is with Crime Branch and I am not  associated with Crime Branch in any way. I have  also not made note about having stated to the  accused that I am Deputy Superintendent of  different area. It is true that I have not  noted the fact separately regarding which I

Crl.A.Nos.2295-2296 of 2010         -130-  

have stated in my deposition that for the  purpose that he can re-think about giving  statement voluntarily, I had called my office  boy and had got him seated in adjacent office  of my PA and had asked to have water and think  over with peaceful mind for 10-15 minutes and  then come back to my office.   It is true that I have not made any note with  regards to the fact that “After 15 minutes, he  had again come to my office and had stated that  he had thought with peaceful mind about his  good and bad, thereby on the basis of feeling  regret felt by him, and that he in fact desires  to make his statement”. It is true that there  is no note regarding the fact that I had read  over the statement to the accused. I have also  not made note about the fact that I had stated  to the accused that “this statement is still  with me and since it is in the form of  confession, he is free to give or not give  statements, and he can also deny the same”.     

(translation extracted from the Additional  documents submitted on behalf of the State of  

Gujarat)    

Further, during cross examination by the learned  

counsel for A-2 and A-4, he stated that:  

“It is true that with regards to the fact  stated by me during cross examination regarding  non- presence of written notes, the said  written notes are not present in case of every

Crl.A.Nos.2295-2296 of 2010         -131-  

accused. ...It is true that the two documents  which have been shown to me today in court,  except for the said documents, there are no  other written records with regards to  confessional statement. It is true that there  is no note with regards to time at any place in  the statement under s. 32 or in the document of  understanding. It is true that there is no  mention of any specific place of Ahmedabad city  in the column for place therein. “    

(translation extracted from the Additional  documents submitted on behalf of the State of  

Gujarat)    

On being asked about what kind of understanding was  

given by him to the accused persons before the  

recording of the confessional statement, he stated:  

“I had given understanding to the accused  during oral understanding that the type of his  statement 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

Crl.A.Nos.2295-2296 of 2010         -132-  

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

Crl.A.Nos.2295-2296 of 2010         -133-  

given them 15 minutes as reflection period. We will  

examine this aspect of the matter herein.  

It is pertinent to mention here that the two  

exhibits referred to supra, namely, the letter of  

intimation and the statements of confession, in the  

case of each of the accused persons, are of the same  

day. It has been contended by the learned senior  

counsel of the accused persons that not enough time  

was given to them to reflect on the incident before  

making confessional statements. They were given a  

token amount of time i.e., 15 minutes to think and  

reflect and thereafter the recording of confessional  

statements began, which fact is on record as per the  

statement of PW-78, who recorded their confessional  

statements. While it has been laid down by this Court  

that the amount of time to be given for reflection  

before confession depends on the facts and  

circumstances of the case, it is imperative to bear in  

mind that in the present case, the accused persons

Crl.A.Nos.2295-2296 of 2010         -134-  

were making confessions after a period almost 11  

months after the incident. Hence, a mere period of 15  

minutes does not appear to be reasonable time for  

reflection on the incident of the attack and their  

involvement in the same. In this regard, we wish to  

mention the observation made by this Court on this  

issue. In the case of State of Rajasthan v. Ajit Singh  

& Ors.45, this Court observed as follows:  

 “12. We have perused the confession of the  seven accused and the prefatory proceedings  relating thereto. We first examine the  confession made by Noordeen. From Ext. P-18,  the note recorded by Shri Ranjit Basot as a  prelude to the recording of the confession, it  transpires that he had been produced before him  at 12.30 p.m. on 21-9-1991 and after the  completion of the formalities the recording of  the confession had started at 12.45 p.m.  Likewise Ajit Singh alias Guru Lal Singh had  been produced before the officer at 10.50 a.m.  and the recording of the confession had started  half an hour later. We have seen the record of  confessions of the other accused as well and it  shows that 15 to 30 minutes’ time was given to  the accused for reflection before the actual  

45 (2008) 1 SCC 601

Crl.A.Nos.2295-2296 of 2010         -135-  

confessions were recorded. We accordingly find  that sufficient cooling-off time had not been  given to the accused, in the background that  they had been in police custody over a long  period of time. It has been held in Ranjit  Singh case: (SCC pp. 76-77, paras 10-12)     “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

Crl.A.Nos.2295-2296 of 2010         -136-  

matter, it becomes 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  straight away 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.  

12. In Sarwan Singh Rattan Singh v. State  of Punjab where a Magistrate granted about  half an hour to the accused to think over  and soon thereafter recorded the  confessional statement, this Court  reiterated that when an accused 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.”

Crl.A.Nos.2295-2296 of 2010         -137-  

13. Applying the aforesaid principles to the  facts of the present case, we are of the  opinion 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.    

(emphasis laid by this Court)  

Further, in the case of Ranjit Singh v. State of  

Punjab46,which case is relied upon in the case of Ajit  

Singh(supra)  this Court observed as under:  

“11. Before adverting to the facts 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  him to grant reasonable time for the purpose to  the accused. In other words, the cooling time  

46 (2002) 8 SCC 73

Crl.A.Nos.2295-2296 of 2010         -138-  

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 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.  It may also be noticed that although PW6  Chander Bhan, Armourer, was examined by the  prosecution to prove that the weapons were in  working conditions, no effort was made to prove

Crl.A.Nos.2295-2296 of 2010         -139-  

that the ammunition or the empties matched the  weapons.”   

(emphasis laid by this Court)  

Therefore, in the given facts and circumstances on  

record and based on the legal principles laid down by  

this Court, we are of the opinion that 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.   

86. It is also pertinent to take note of the callous  

manner in which PW-99 had discharged his duty in the  

present case. Since A-2 and A-4 made confessional  

statements on the same day, they were produced before  

the CJM PW-99 the very next day. It is pertinent  

therefore, to note the observation made by him with  

respect to A-2 and A-4. The statement of PW-99 with  

respect to A-2 is recorded as under:  

“The accused has signed in this above statement  in my presence at 16-30 hrs, today on

Crl.A.Nos.2295-2296 of 2010         -140-  

25.9.2013. And therefore, his statement by read  over and conveying him noted and he has signed  by admitting.   

Sd/-  Chief Judicial Magistrate Rural”  

(emphasis laid by this Court)  

(translation extracted from the Additional  documents submitted on behalf of the  

appellants)    

The statement of CJM with respect to the A-4 is as  

under:  

“The accused has made his signature in the  above statement made by him today on dated  25.9.2003 at 5 p.m. before me. The statement is  read over and explained to accused and as he  admits the same, he has made his signature in  his confession.     

Sd/- illegible  Chief Judicial Magistrate  

Ahmedabad (Rural)  Old High Court, Ahmedabad”  

 (emphasis laid by this Court)  

(translation extracted from the Additional  documents submitted on behalf of the  

appellants)

Crl.A.Nos.2295-2296 of 2010         -141-  

From the above statements of the CJM PW-99, it can be  

inferred that he was able to record the statement of  

the accused persons, read it over to them and enquire  

about any coercion and torture, all in a period of  

half an hour. It is highly improbable that a  

confessional statement running 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 CrPC in that it makes confessional  

statements made before a police officer admissible,

Crl.A.Nos.2295-2296 of 2010         -142-  

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. Therefore,  

it is incumbent upon the CJM to strictly and  

scrupulously follow all the statutory procedural  

safeguards provided for under Section 32 of POTA.    

88. Further, the other statutory mandate under Section  

32 of POTA is that the person making the confessional  

statement shall be produced for medical examination  

and thereafter, be sent to judicial custody after the  

CJM records the statement of the accused person. The  

question which then arises for our consideration is

Crl.A.Nos.2295-2296 of 2010         -143-  

whether this mandate is operative only if the accused  

makes a complaint of torture before the CJM or whether  

the CJM is duty bound to send the accused persons to  

judicial custody as a statutory requirement after  

recording the statement. It had been contended by the  

learned senior counsel on behalf of the accused  

persons that they were subjected to physical torture  

by the police before the confessional statements were  

recorded and that they were also kept in police  

custody in the intervening night between being  

produced before the CJM and being sent to Judicial  

Custody.  Therefore, though they were subjected to  

torture, they could not make a complaint before the  

CJM due to fear and apprehension, since they were  

taken back to police custody after their statements  

were recorded. The learned senior counsel for the  

accused persons, argued that Section 32(5)  

unambiguously declares that the accused shall be sent  

to judicial custody after the recording of the

Crl.A.Nos.2295-2296 of 2010         -144-  

confessional statements, whereas the learned senior  

counsel for the prosecution contended that the accused  

must be sent for medical examination only if there is  

a complaint of torture and only in that case, must he  

be sent to judicial custody. We are unable to agree  

with the argument of the learned senior counsel for  

the prosecution.   

Firstly, the use of the phrase, ‘shall be sent to  

judicial custody’ after confession is a mandatory  

requirement in comparison to the use of an alternative  

term ‘may’ which gives discretionary power to the CJM.  

Further, this court in the case of State (NCT of  

Delhi) v. Navjot Sandhu47, has unambiguously observed  

as under:  

“177. Now we look to the confession from  other angles, especially from the point of  view of in-built procedural safeguards in  Section 32 and the other safeguards contained  in Section 52. It is contended by the learned  

47 (2005) 11 SCC 600

Crl.A.Nos.2295-2296 of 2010         -145-  

senior counsel Mr. Gopal Subramanium that the  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-PW63 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 PW80-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. It is pointed out that the accused,  having had the opportunity to protest or  complain against the behavior of police in  extracting the confession, did not say a  single word denying the factum of making the  confession or any other relevant  circumstances impinging on the correctness of  the confession. It is further pointed out  that Afzal and the other accused were also

Crl.A.Nos.2295-2296 of 2010         -146-  

got medically examined by the police and the  Doctor found no traces of physical violence.  It is therefore submitted that the steps  required to be taken under sub-Sections  (4)&(5) were taken. However, the learned  counsel for the State could not dispute the  fact that the accused Afzal was not sent to  judicial custody thereafter, but, on the  request of the I.O PW80, the ACMM sent back  Afzal to police custody. Such remand was  ordered by the ACMM pursuant to an  application made by PW80 that the presence of  Afzal in police custody was required for the  purpose of further investigation. Thus, the  last and latter part of sub-Section (5) of  Section 32 was undoubtedly breached. To get  over this difficulty, the learned counsel for  the State made two alternative submissions,  both of which, in our view, cannot be  sustained.    178. Firstly, it was contended that on a  proper construction of the entirety of sub- Section (5) of Section 32, the question of  sending to judicial custody would arise only  if there was any complaint of torture and the  medical examination prima facie supporting  such allegation. In other words, according to  the learned counsel, the expression  'thereafter' shall be read only in  conjunction with the latter part of sub- Section (5) beginning with 'and if there is  any complaint' and not applicable to the  earlier part. In our view, such a restrictive  interpretation of sub-Section (5) is not at  all warranted either on a plain or literal  reading or by any other canon of construction  including purposive construction. The other

Crl.A.Nos.2295-2296 of 2010         -147-  

argument raised by the learned counsel is  that the provision regarding judicial  custody, cannot be read to be a mandatory  requirement so as to apply to all situations.  If the Magistrate is satisfied that the  confession appears to have been made  voluntarily and the person concerned was not  subjected to any torture or intimidation, he  need not direct judicial custody. Having  regard to the circumstances of this case,  there was nothing wrong in sending back Afzal  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.”

Crl.A.Nos.2295-2296 of 2010         -148-  

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 person under Section 32. On this issue,  

it was held in Navjot Sandhu case (supra) as under:  

 “158. These provisions of Section 32, which are  conceived in the interest of the accused, will  go a long way to screen and exclude  confessions, which appear to be involuntary.  The requirements and safeguards laid down in  sub-sections (2) to (5) are an integral part of  the scheme providing for admissibility of  confession made to the police officer. The  breach of any one of these requirements would  have a vital bearing on the admissibility and  evidentiary value of the confession recorded  under Section 32(1) and may even inflict a  fatal blow on such confession. We have another  set of procedural safeguards laid down in  Section 52 of POTA which are modelled on the  guidelines envisaged by D.K. Basu8 Section 52  runs as under:  

“52. (1) Where a police officer arrests  a person, he shall prepare a custody memo  of the person arrested.  

(2) The person arrested shall be  informed of his right to consult a legal  practitioner as soon as he is brought to  the police station.

Crl.A.Nos.2295-2296 of 2010         -149-  

(3) Whenever any person is arrested,  information of his arrest shall be  immediately communicated by the police  officer to a family member or in his  absence to a relative of such person by  telegram, telephone or by any other means  and this fact shall be recorded by the  police officer under the signature of the  person arrested.  

(4) The person arrested shall be  permitted to meet the legal practitioner  representing him during the course of  interrogation of the accused person:  

Provided that nothing in this sub- section shall entitle the legal  practitioner to remain present throughout  the period of interrogation.”  

 Sub-sections (2) and (4) as well as sub-section  (3) stem from the guarantees enshrined in  Articles 21 and 22(1) of the Constitution.  Article 22(1) enjoins that no person who is  arrested shall be detained in custody without  being informed, as soon as may be, of the  grounds for such arrest nor shall he be denied  the right to consult, and to be defended by, a  legal practitioner of his choice. They are also  meant to effectuate the commandment of Article  20(3) that no person accused of any offence  shall be compelled to be a witness against  himself.  159. The breadth and depth of the principle  against self-incrimination embedded in Article  20(3) was unravelled by a three-Judge Bench  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

Crl.A.Nos.2295-2296 of 2010         -150-  

Article 20(3) and Section 161(2) CrPC is  substantially the same. “Section 161(2) of the  Criminal Procedure Code 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 right against  self-incrimination, to police examination  and custodial interrogation and takes in  suspects as much as regular accused  persons” (SCC p. 435, para 22).  

The observations in M.P. Sharma v. Satish  Chandra (SCR p. 1088) to the effect that:  

“the protection afforded to an accused  insofar as it is related to the phrase ‘to  be a witness’ is not merely in respect of  testimonial compulsion in the court room  but may well extend to compelled testimony  previously obtained from him”

Crl.A.Nos.2295-2296 of 2010         -151-  

were cited with approval in Nandini Satpathy  case (SCC p. 448, para 43).”  

90. Therefore, we are of the opinion that 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, A-

3, A-4 and A-6 under Section 32 of POTA are not  

admissible in law in the present case. Therefore, we  

answer this point in favour of the appellants. We have  

to observe next therefore, whether the statements of  

the accomplices can be relied upon to determine the  

involvement of the accused persons in this case.  

Answer to point no.3:  

91. Section 133 of the Indian Evidence Act 1872 states  

that:

Crl.A.Nos.2295-2296 of 2010         -152-  

“an accomplice shall be a competent witness  against an accused person; and a conviction is  not illegal merely  because it proceeds upon  the uncorroborated testimony of an accomplice.”  

Both the courts below have placed extensive reliance  

upon the evidence of accomplices, PW-50, PW-51 and PW-

52 to establish the culpability of the accused.  

However, one needs to understand the extent of  

admissibility of such evidence. But prior to that, we  

also need to emphasize upon the reliability of the  

evidence given by an accomplice. It has been held by  

this court in the case of Haroom Haji Abdulla v. State  

of Maharashtra48 as under:  

“8. ...... The Evidence Act in Section 133  provides that an accomplice is a competent  witness against an accused person and that a  conviction is not illegal merely because it  proceeds upon the uncorroborated testimony of  an accomplice. The effect of this provision is  that the court trying an accused may legally  convict him on the single evidence, of an  accomplice. To this there is a rider in  

48 AIR 1968 SC 832

Crl.A.Nos.2295-2296 of 2010         -153-  

Illustration (b) to Section 114 of the Act  which provides that the 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-accused  cannot be placed higher than an accomplice.  Therefore, unless there is some evidence  besides these implicating the accused in some  material respect, conviction cannot stand.  Reliance is placed in this connection upon the  observations of the Judicial Committee in  Bhuboni Sahu v. Emperor a case in which a  conviction was founded upon the evidence of an  accomplice supported only by the confession of

Crl.A.Nos.2295-2296 of 2010         -154-  

a co-accused. The Judicial Committee acquitting  the accused observed:  

 "...... Their Lordships whilst not  doubting that such a conviction is  justified in law under s. 133, Evidence  Act, and whilst appreciating that the  coincidence of a number of confessions of  co-accused all implicating the particular  accused given independently, and without  an opportunity of previous concert, might  be entitled to great weight, would  nevertheless observe that Courts should be  slow to depart from the rule of prudence,  based on long experience, which requires  some independent evidence implicating the  particular accused. The danger of acting  upon accomplice evidence is not merely  that the accomplice is on his own  admission a man of bad character who took  part in the offence and afterwards to save  himself betrayed his former associates,  and how has placed himself in a position  in which he can hardly fail to have a  strong bias in favour of the prosecution;  the real danger is that he is telling a  story which in its general outline is  true, and it is easy for him to work into  the story matter which is untrue....."   

 (emphasis laid by this Court)  

However, in the present case, the Courts below have  

placed strong reliance upon the statements of

Crl.A.Nos.2295-2296 of 2010         -155-  

accomplices PW-50 Ashfaq Bhavnagri, PW-51 Abdul Rehman  

Gulamhussain Panara and PW-52 Mohammad Munaf Sheikh to  

establish the culpability of the accused persons.  

Though the confessional statement of PW-51 was  

followed by a retraction, the same as per the courts  

below, did not vitiate the admissibility of the  

evidence against the accused persons.   

92. We will therefore, examine the relevant excerpts  

from the statements of the three accomplices namely,  

PW-50, PW- 51 and PW-52 to ascertain what each of them  

had to say about the incident of the attack, on the  

premise that Section 133 of the Evidence Act states  

that an accomplice is a competent witness. PW-50 in  

his deposition (Ex.312) before the Special Court  

(POTA) stated as under:  

“.....We used to arrange 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

Crl.A.Nos.2295-2296 of 2010         -156-  

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 because we did not know those  people. Those people were new for us. Similar  program was also organized after riots in  Gujarat. At that time at least 400 people had  gathered and all were from Gujarat. Good  amount of donation was gathered in it also.   …And thus by doing such small meetings, they  used to gather money. After some time, people  got fed up and used to say that you are not  doing anything and are just utilizing the  money. We used to give money to Salimbhai  Sheikh who was with us, and he used to give  this money to Faradullah Ghauri, and he used  to send this money to India through charge  responsibility (Hawala). He used to send this

Crl.A.Nos.2295-2296 of 2010         -157-  

money through Majid Vora Patel and Iqbal Vora  Patel who are basically from Bharuch.  Thereafter, during about three months of  riots post- Godhra in 2002, Faradullah Ghauri  and Shaukatullah Maulana came to India, these  people had visited the relief camps in  Ahmedabad, and they had met with a person  named Jahid in camp, and they had gathered  persons whose family members were killed or  who had suffered great losses.  ........   When Abu Talah and Faridullah Ghauri had come  to India, they had called Adam Ajmeri brother  of Rashid Ajmeri to Hyderabad for meeting.  Thereafter we came to know about Akshardham  tragedy on Saudi TV. Initially nobody spoke  about it, an thereafter one meeting was  organized after 8 days, and had said that  this is work of Jaish-e-Mohammed. And Abu  Talah had said to them, we came to know about  this from Salimbhai and Rashidbhai. These  people had also said that the persons who had  gone to Akshardham, their intention was to  spread terror and not to kill, their fight  was with the police, and had also said that  they gave fight for about 10 to 12 hours and  got martyred.“    

(translation extracted from the Additional  documents submitted on behalf of the  

appellants)   

Crl.A.Nos.2295-2296 of 2010         -158-  

He further stated during cross examination by learned  

counsel Mr. H. N. Jhala for A-1, A-3 and A-5:  

“Question: Was Salimbhai your leader?  Answer: Salimbhai had more responsibilities. He  had more worries about Islam. When I met with  Salimbhai on first Thursday after Godhra  carnage, he had no cassette at that time. I had  not kept any note for Salimbhai coming and  going to India. At the time of Godhra carnage,  Salimbhai was present at Saudi Arabia, and I  met him on Thursday thereafter.     Question: Incidence of Godhra happened on date  27/02/2002, what do you want to say about  Salimbhai was in India from January- 2002, and  not in Saudi Arabia?    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?

Crl.A.Nos.2295-2296 of 2010         -159-  

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 Rs. 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 don’t know if this  money was utilized for running relief camps.  …..The meetings which held during nights, the  said meetings held in big halls and party plots  of Riyadh. Salimbhai used to take us in these  meetings, and therefore, we used to go, he had  said you will have to come and therefore we had  attended two or three meetings. It was not like  that I have to go wherever Salimbhai asked to,  because he was doing his business and I was  doing job.”    

(translation extracted from the Additional  documents submitted on behalf of the  

appellants)    

Further, on cross examination by learned counsel of  

A-2 and A-4 before the Special Court (POTA), PW-50  

deposed as under:

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“I know Rashid Ajmeri since two years of  incidence. Rashid Ajmeri was at Saudi Arabia in  year 2002. Name of the brother of Rashid Ajmeri  is Adam. It is Adam Ajmeri. The fact that Adam  Ajmeri was called at Hyderabad was stated to me  by Salimbhai and Rashidbhai. I don’t know about  why he was called at Hyderabad. It is not true  that I know that the fact I have stated about  Adam Ajmeri having gone to Hyderabad is false.  It is not true that the fact I am stating about  I having been called to Hyderabad by Salimbhai  and Adambhai is also stated false by me.”    

(translation extracted from the Additional  documents submitted on behalf of the  

appellants)    

PW-51, in his deposition (Ex.314), particularly  

indicated the active involvement of A-2 and also about  

the involvement of A-4 and A-5. The relevant excerpt  

from the deposition reads as under:  

“Nashir Doman, (the cable operator) in our area  had brought one person to me during afternoon  time at Bawahir Hall. Nasir had introduced him  to me as his friend Adambhai from Shahpur.  Nashir had said that Adambhai has come with  regards to taking revenge about what has been  suffered by Muslims during riots. During talks,  another of our friend named Munaf Radiator had  also arrived. And I had asked Adam to inform  about the matter.  

Crl.A.Nos.2295-2296 of 2010         -161-  

Adam had said to us that his brother Rashid  resides at Riyadh Saudi Arabia. And Salim of  Dariapur, Kankodi Pol is with him. And under  leadership of Altaf Sheikh of Shahpur Adda,  there is big group of Muslim youths from  Gujarat especially from Ahmedabad. And they  have support of Jaish-E-Mohammad organization.  Those people will send weapons to us, will send  men, and are also ready to send funds. We will  have to remain helpful in doing survey work of  Hindu areas. On listening to such serious talk,  I had said that I will have to talk to my  leaders…..  At that time, I had met with Mufti Qaiyum and  Maulvi Abdullah near 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

Crl.A.Nos.2295-2296 of 2010         -162-  

work. By saying this, Adam handed over the  receiver to me……. I was asked from the other  side in Gujarati, ‘brother, what you need,’.  Prior to this, Adam had asked me to demand for  Rs. 20 Lac for the work. Therefore, on my say  that it would take Rs. 20 lac for the work, I  was asked from the other side to give the phone  to Adambhai. And Adam had done some talk in  Arabic language. We could not understand the  said language. …  In the last week of May 2002, Nashir had called  me to his house by sending message through  someone. And when I went, Nashir, Adam and  Adam’s brother Ahmed was present. Adam had  given me Rs. 5000/- and had said to me that  guests are going to come and you have to  arrange for their lodging. And he had also  given Rs.5000/- to Nashir and he said to buy  two mobile phones from it and give it to  Rehman, and had said that the numbers for the  same will be given to the guests and had said  that thereby they will remain in contact. At  that time, I had said to Adam that another Rs.  15,000/- will be required for deposit of house  and for mattresses. So Adam said that it will  also be arranged, and when it was informed to  Mufti Qaiyum and Maulvi Abdullah at Bawahir  Hall about all this, at that time Mufti Qaiyum  had said to me that arrangement for lodging of  guests should be done, money is arranged or  not. At that time, Maulvi Abdullah had said  that if there is much problem then he should be  informed. After, one week, Nashir had given two  mobile phones to me….. After taking the said  phone, I had given it to Mehmood Wadhwani, and  I had said to him that you should only switch  it on  when you want to use it, or keep it  continuously switched off. This Mehmood

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Wadhwani is from Madhno Mohallo, Charwat,  Dariapur, and is my friend. …..  One day at 9 or 10 o’ clock in the night, Adam  had called me on my mobile phone …… We had cold  drinks over there and he had given me Rs.  5000/-. At that time, I had asked for another  Rs. 10,000/- for house and arrangement as the  earlier Rs. 5000/- had got spent in rickshaw  fare and SIM card. Therefore, Adam had agreed  for arranging another Rs. 10,000/- and thereby  we had departed. Thereafter, Nashir Doman had  come to call me at Hall and had said to me that  Adam is presently sitting at his brother,  Ahmed’s house and is calling you. Thereafter, I  and Nashir both went to Ahmed’s house by  walking and Adam had given me Rs. 10,000/- and  had informed me that guests will come from  Hyderabad to do carnage in Gujarat, and 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

Crl.A.Nos.2295-2296 of 2010         -164-  

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 having said this, he  has asked us to return both the mobile phones,  and therefore I had replied that there is my  card inserted in the mobile phone with me and I  will return it to you after I get another  instrument for me, and I will return the other  one by getting it back from my friend, so Adam  had said to give both the mobile phones to  Nashir and thereby he had left…..  During this time, Liyakat of Juhapura who had  gone outstation for marriage ceremony had  returned, and he met me at the corner of Madhno  Mohallo at Dariapur. He had said to me that now  the guests are not going to come. Possession of  the said house is to be handed back to  Sohrabkhan after returning mattresses, barrels  and table fans. The rent for it is to be paid  by me. After informing this, three or four days  later, Liyakat had said to me at Madhno Mohallo  that everything has been returned and Sohrab  had said about Rs. 500/- with regard to the  rent. Therefore, I had  given Rs. 500/- to  Liyakat. …  Adam used to come every week for collecting the  money because he had given me Rs. 20,000/- and  two mobile phones for making arrangements for  the person to coming from Hyderabad to do  carnage, and from among them, one mobile phone  was taken back through Nashir and one was with  me and therefore, he used to ask for it. I used  to give him Rs. 300/- to Rs. 500/-. At last,  during end of September, once Adam had come to

Crl.A.Nos.2295-2296 of 2010         -165-  

my shop during noon time and had said that the  guest who were to come from  Hyderabad for  doing carnage have arrived. He said, “I have to  take them around the city and therefore, I am  in need of more money”. At that time, Adam had  asked for Rs. 2000/- from me, but since the  said was not with me, I was asked to meet at  night, because I had to pay the due amount.  Adam had come in the night and since I had  arrangement for Rs. 900/-, I had given Rs.  900/- to him. At that time Adam had also said  to me that I had received the guests coming  from Hyderabad at Railway station, who have  come to do carnage and have taken them around  the city and thereafter have dropped them at  the railway station. During those days, while I  was passing from opposite of Dariapur Bawahir  Hall, at that time Mufti Abdul Qaiyum and  Maulvi Abdullah had met and exchanged  greetings. He had asked for well being and at  that time Mufti Abdul Qaiyum had informed me  that “the persons who were to come 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.”  

Crl.A.Nos.2295-2296 of 2010         -166-  

(emphasis laid by this Court)  

(translation extracted from the Additional  documents submitted on behalf of the  

appellants)    

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 administrators of the camp were  Mufti Abdul Qaiyum and Maulvi Abdullah.  Nasirbhai Doman who used to visit camp is cable  operator of our area, and I know him. I know  Adambhai since last election of Municipality  because he used to take interest in politics by  Congress Party. I knew brother of Adambhai  named Ahmedbhai of Dariapur, and therefore, I  started knowing Adambhai.   In the beginning of April 2002, once Adam had  called me on my mobile phone during noon time.  I had gone to Chaarwad Bawahir Hall and Nasir,  Adam and Abdul Rehman were present over there.  At that time, Adam Bhai had said that Muslims  have been oppressed here. And therefore,  carnage for taking its revenge is to be done.  He said that “my brother  Rashid is in Saudi.  And Salim is with him. They have support of

Crl.A.Nos.2295-2296 of 2010         -167-  

Jaish-e-mohammad organization. We will seek  money from there. Those people will send men  and provide weapon. Salim has contact with  Jaish-e-Mohammad and Tanzeem. He had said that  these people are being sent for committing  carnage (kand). On listening to this, I got up  and felt afraid. When I got up, Adambhai had  made me to sit by holding my hand and had  stated that we will also have to take advice  from big persons in this regard. Thereafter, we  had met with Mufti Aiyub Qaiyum and Maulvi  Abdullah at the office outside hall.   Both of them had informed that guests will  arrive for carnage. The work of arranging for  their house has been assigned to Abdul Rehman.   Adam had asked for a local phone number.   Therefore, Doman Bhai had given his house  telephone number. …  On second time, I, Abdul Rehman, Nasir Doman,  Adam had met in presence of Mufti Qaiyum and  Abdullah at Bawahir Hall. At that time, Adam  had informed that talk has been done at Saudi,  and number of Doman’s house has been given.  Therefore, phone will come over there.  Thereafter, Mufti Qaiyum and Maulvi Abdullah  had asked to four of us to go and discuss at  Nasir’s house, so that the phone call at  Nasir’s can be attended to …. But since no call  came, we had departed. Therefore, Rehman and  Adam had gone on Rehman’s scooter to talk from  PCO/ STD at railway station. And after  returning from Bawahir Hall, they had stated  that after trying to Saudi, nobody was found  present.   After some days of it, when I had gone to  Dariapur from Kalupur, Abdullahmiya and Mufti  Qayuim was stopped me and said that the guests  who were going to arrive have arrived , and you

Crl.A.Nos.2295-2296 of 2010         -168-  

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 had not talked with any one  of them.   …..  It is true that there was no activity in the  relief camp at Bawahir Hall. It is true that I  don’t know anything about if there was any  daily note in register for entry/ exit in  Bawahir Hall. It is true that I have stated in  examination in chief that no work was assigned  to me. It is true that when I was informed  during cross examination about my statement

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having been recorded on 7.9.2003, at that time  I got idea about the date, month and year.   …….  Question: Had you understood at the respective  time that confession of the offences is being  written?  Answer: No, I have not committed any offence at  any time, then how such confession can be  written.    I don’t remember if Magistrate Sir had asked  me that the statement that will be given by  you, can be used against you.   Question: If the Magistrate sir had asked you  that if police has done any misbehavior with  you?  Answer: No misbehavior was done. Although I was  asked as such.   It is not true whole of my reply (statement)  was got written before Magistrate from my  statement and I didn’t say anything. I had  placed only one signature in my statement,  which was recorded before the Magistrate. It is  true that I had placed the signature on the  last page. It is not true that I am giving  false deposition on oath. It is not true that  the police had written my statement by  threatening me to make me accused. It is not  true that I am giving false deposition even  today under the threat of police.   

(emphasis laid by this Court)  

(translation extracted from the Additional  documents submitted the appellants)  

Crl.A.Nos.2295-2296 of 2010         -170-  

93. Before examining the evidence of the accomplices  

on merit, we need to satisfy ourselves that the  

evidence of the accomplices is acceptable. The twin  

test on this point has been laid down by this Court in  

the three judge bench decision of this Court in  

Ravinder Singh v. State of Haryana49 which was  

reiterated in the case of Mrinal Das & Ors. v. State  

of Tripura50, wherein this Court in the Ravinder Singh  

case (supra) held as under:  

“12. An approver is a most unworthy friend, if  at all, and he, having bargained for his  immunity, must prove his worthiness for  credibility in court. This test is fulfilled,  firstly, if the story he relates involves him  in the crime and appears intrinsically to be a  natural and probable catalogue of events that  had taken place. The story if given, of minute  details according 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  

49 (1975) 3 SCC 742   50 (2011) 9 SCC 479

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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 attack on Akshardham, going as far  

to mention that they were not involved in the incident  

and only the accused persons knew about the intricate  

details of the chain of events that ultimately led to  

the execution of their plan of ‘carnage’. Even then,  

if, we were to presume that the accomplices have

Crl.A.Nos.2295-2296 of 2010         -172-  

implicated themselves by mentioning that they were  

aware about some incident which was about to happen  

and thus, were part of the criminal conspiracy, the  

evidence of the accomplices fail the second test, in  

that it fails to prove the guilt of the accused  

persons beyond reasonable doubt. All the three  

accomplices mentioned about the plan of ‘carnage’  

which the accused persons had planned together.  

However, no link can be established between the  

accused persons and the attack on Akshardham since the  

evidence of the accomplices is far too vague and they  

fail to provide any form of substantive evidence  

against the accused persons. Therefore, we need to  

examine the statements of the accomplices in the light  

of the legal principle laid down by this Court in the  

case of Mohd. Husain Umar Kochra Etc. v. K.S.  

Dalipsinghji & Anr. Etc.51 which held as under:  

51 (1969) 3 SCC 429

Crl.A.Nos.2295-2296 of 2010         -173-  

 “21. On the merits, we find that the two courts  have recorded concurrent findings of fact.  Normally this Court does not re-appraise the  evidence unless the findings are perverse or  are vitiated by any error of law or there is a  grave miscarriage of justice. The courts below  accepted the testimony of the accomplice Yusuf  Merchant. Section 133 of the Evidence Act says:  

“An accomplice shall be a competent  witness against an accused person; and a  conviction is not illegal merely because  it proceeds upon the uncorroborated  testimony of an accomplice.”  

Illustration (b) to Section 114 says that the  Court may presume that an accomplice is  unworthy of credit unless he is corroborated in  material particulars. The combined effect of  Sections 133 and 114, Illustration (b) is that  though a conviction based upon accomplice  evidence is legal the Court will not accept  such evidence unless it is corroborated in  material particulars. The corroboration must  connect the accused with the crime. It may be  direct or circumstantial. It is not necessary  that the corroboration should confirm all the  circumstances of the crime. It is sufficient if  the corroboration is in material particulars.  The corroboration 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.”  

Crl.A.Nos.2295-2296 of 2010         -174-  

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.  

Crl.A.Nos.2295-2296 of 2010         -175-  

94. Next, with respect to PW-51, the evidence is not  

reliable because of two reasons. Firstly, according to  

his evidence, it was reported to him by A-2 that the  

fidayeens had arrived from Hyderabad which contradicts  

the claim of the prosecution. Secondly, A-2 did not  

state anything beyond the alleged arrival of the  

fidayeens which cannot be connected to the event of  

attack on Akshardham beyond reasonable doubt. It  

again, merely arouses suspicion about the involvement  

of A-2 and the passive approval of A-4 and A-5 in the  

incident.   

Even with respect to PW-52, other than the fact that  

he mentioned about A-2 telling him that they are  

planning a ‘carnage’ and that some ‘guests’ have  

arrived, no other detail was provided by PW-52 in his  

evidence.   It is also pertinent to mention here that  

A-6 had not been mentioned at all in the evidence of  

any of the accomplices. Therefore, the twin test to  

establish the credibility of the guilt of the accused

Crl.A.Nos.2295-2296 of 2010         -176-  

persons based on the evidence of the accomplices,  

fails miserably in the present case.   

Further, on the aspect of guilt to be proved  

beyond reasonable doubt, it is pertinent to mention  

the case of Vijay Kumar Arora v. State(Govt. of NCT of  

Delhi) 52, wherein the Court held as under:  

“16.Essential ingredients to prove the guilt of  an accused by circumstantial evidence  are:  16.1. The law relating to circumstantial  evidence is well settled. In dealing with  circumstantial evidence, there is always a  danger that conjecture or suspicion lingering  on mind may take place of proof. Suspicion,  however, strong cannot be allowed to take place  of proof and, therefore, the Court has to be  watchful and ensure that conjectures and  suspicion do not take place of legal proof.  However, it is no derogation of evidence to say  that it is circumstantial. Human agency may be  faulty in expressing picturisation of actual  incident, but the circumstances cannot fail.  Therefore, many a times it is aptly said that  "men may tell lies, but circumstances do not".   16.2. In cases where evidence is of a  circumstantial nature, the circumstances from  which the conclusion of guilt is to be drawn  should, in the first instance, be fully  

52 (2010) 2 SCC 353

Crl.A.Nos.2295-2296 of 2010         -177-  

established. Each fact sought to be relied upon  must be proved individually. However, in  applying this principle, a distinction must be  made between facts called primary or basic on  the one hand and inference of facts to be drawn  from 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

Crl.A.Nos.2295-2296 of 2010         -178-  

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 accused. In this  

regard, we intend to rely upon the three Judge bench  

decision of this court as early as 1952 which still  

holds its field. In the case of Kashmira Singh v.  

State of Madhya Pradesh53, this court held as under:  

“8. Gurubachan's confession has played an  important part in implicating the appellant,  and the question at once arises, how far and in  what way the confession of an accused person  can be used against a co-accused? It is evident  that it is not evidence in the ordinary sense  of the term because, as the Privy Council say  in Bhuboni Sahu v. The King, 76 Ind App 147 at  p.155 :-  

"It does not indeed come within the  definition of 'evidence' contained in S.3,  the Evidence Act. It is not required to be  given on oath, nor in the presence of the  

53 AIR 1952 SC 159

Crl.A.Nos.2295-2296 of 2010         -179-  

accused and it cannot be tested by cross  examination."  

Their Lordships also point out that it is  "obviously evidence of a very weak  type...... It is a much weaker type of  evidence than the evidence of an approver,  which is not subject to any of those  infirmities."  

   ....  10. Translating these observations into  concrete terms they come to this. The proper  way to approach a case of this kind is, first,  to marshal the evidence against the accused  excluding the confession altogether from  consideration and see whether, if it is  believed, a conviction could safely be based on  it. If it is capable of belief independently of  the confession, then of course it is not  necessary to call the confession in aid. But  cases may arise where the judge is not prepared  to act on the other evidence as it stands even  though, if believed, it would be sufficient to  sustain a conviction. In such an event the  judge may call in aid the confession and use it  to lend assurance to the other evidence and  thus fortify himself in believing what without  the aid of the confession he would not be  prepared to accept.  11. Then, as regards its use in the  corroboration of accomplices and approvers. A  co-accused who confesses is naturally an  accomplice and the danger of using the  testimony of one accomplice to corroborate  another has repeatedly been pointed out. The  danger is in no way lessened when the  "evidence" is not on oath and cannot be tested  by cross-examination. Prudence will dictate the  same rule of caution in the case of a witness

Crl.A.Nos.2295-2296 of 2010         -180-  

who though not an accomplice is regarded by the  judge as having no greater probative 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  1951 : (AIR 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 long before anybody had suggested that a  rickshaw had been used. But we find it  difficult to resist the inference that this  witness was an accomplice so far as the  disposal of the body was concerned.  Consequently, he is in much the same category  so far as credibility is concerned. That brings  us at once to the rule that save in exceptional

Crl.A.Nos.2295-2296 of 2010         -181-  

circumstances one accomplice cannot be used to  corroborate another; nor can he be used to  corroborate a person who though not an  accomplice is no more reliable than one. We  have therefore either to seek corroboration of  a kind which will implicate the appellant apart  from the confession or find strong reasons for  using Gurubachan's confession for that purpose.  Of course against Gurubachan there is no  difficulty, but against the appellant the  position is not as easy.   We will therefore examine the reliability of  Gurubachan's confession against the appellant.  Now there are some glaring irregularities  regarding this confession and though it was  safe for the Sessions Judge and the High Court  to act on it as against Gurubachan because he  adhered to it throughout the sessions trial  despite his pleader's efforts to show the  contrary, a very different position emerges  when we come to the appellant.  The first point which emerges regarding this is  that the confession was not made till the 25-2- 1950, that is to say, not until two months  after the murder…”  

(emphasis laid by this Court)    

In the present case, the prosecution did not make any  

effort to substantiate the evidence of the accomplices  

with independent material evidence. Rather, the  

confessional statements of the accomplices have been  

used to corroborate the confessional statements of the

Crl.A.Nos.2295-2296 of 2010         -182-  

accused persons, in the absence of any independent  

evidence.   

96. But, apart from all these aspects on the  

statements of the accomplices, we fear that the story  

against the accused persons and its corroboration  

through the statements of accomplices is an act of  

concoction to make up a case against them. It was  

recorded in the statement of PW-126 that the  

information regarding PW-50 was given to him by D.G.  

Vanzara. However, D.G. Vanzara had not even been  

examined in this case and there is no information as  

to how he came to know about PW-50 after almost a year  

of the attack on Akshardham. This very important  

aspect of the lapse in investigation had been ignored  

by the courts 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.

Crl.A.Nos.2295-2296 of 2010         -183-  

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 & Ors.54 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 this Court held:    

“47. All the infirmities and flaws pointed  out by the trial court assumed importance, when  

54 (2009) 8 SCC 383   

Crl.A.Nos.2295-2296 of 2010         -184-  

considered in the light of the all-pervading  circumstance that there was inordinate delay in  recording Ravji’s statement (on the basis of  which the ‘FIR’ was registered) and further  delay in recording the statements of Welji,  Pramila and Kuvarbai. This circumstance,  looming large in the background, inevitably  leads to the conclusion, that the prosecution  story was conceived and constructed after a  good deal of deliberation and delay in a shady  setting, highly redolent of doubt and  suspicion.”  

 (emphasis laid by this Court)  

Further, PW-51 on being cross examined by the counsel  

for A-1, A-3 and A-5, Shri H.N. Jhala before the  

Special Court (POTA), stated that:  

“It is true that I was taken to the Crime  Branch 60 days earlier when my statement was  taken. I was severely beaten up and therefore  even my thumb had got broken. I was told that I  as well as my family will be taken as accused.  I have not done anything wrong in my life. I  was beaten up at the Crime Branch for 15 to 20  days. I am coming just now from the Crime  Branch. I was called today at 9:30 in the  morning and was also called yesterday at 6:00  p.m. It is true that I was told at Crime Branch  that you have to depose as we say or else you  will get in trouble. It is true that whatever I  have stated in the examination in chief, the

Crl.A.Nos.2295-2296 of 2010         -185-  

said has been stated by me at the instance of  the Crime Branch. The fact as stated by me in  examination in chief that Mufti Abdullah and  Maulvi Abdullahmiya met me after Godhra  carnage, the said has been false stated by me.  Prior to the time when I was deposing, I was  said that I have to state before the Court that  guests are going to come and they are  terrorists ans they were still reading over the  said facts to me. It is true that Maulana  Abdullahmiya leads in prayer in Haji Saki  Mosque. It is true that the facts stated by me  to have sought Rs. 20 lakhs from Saudi Arabia  on phone, the said facts are false. It is true  that I have stated in the chief- examination  that when I was asked who are guests, at that  time I have said that the guests will survey  the Hindu areas and will do the killings which  are to be done, the said facts have been stated  falsely. It is true that I stated in  examination in chief that while I was passing  from the near the Bawahir 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……”  

 (translation extracted from the Additional  

documents submitted on behalf of the appellants)    

Also on cross examination by Adv. Shri R.K. Shah for  

A-2 and A-4, PW-51 said:

Crl.A.Nos.2295-2296 of 2010         -186-  

“…….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…..It is true that the statement written  by the Magistrate Sir was written from the  statement at Crime Branch.”   

 (translation extracted from the Additional   

documents submitted on behalf of the  appellants)  

During cross examination by the Special Public  

Prosecutor, Shri H.M. Dhruva, he stated thus:  

“……I was taken to Crime Branch in seventh or  Eighth month of the year 2003. I was confined  continuously for two months and was not

Crl.A.Nos.2295-2296 of 2010         -187-  

allowed to go anywhere. Application was not  submitted by any of my relative in this  regards. My relative had not filed any case  with regards to my wrongful confinement nor  was any application filed. After I got  released 2 months later, I have not submitted  any application anywhere. I was questioned  with regard to the case. The witness himself  states that questioning was done just with  regards to the camp. With regards to all the  other facts, only written statements were  given. It is true that I was taken to the  Magistrate Sir regarding what I know about  this statement. It is not true that the  Magistrate had asked any question to me and I  had replied to the Sir. It is true that I did  state the fact to the magistrate that I was  confined for two months and was beaten up.  The witness himself states that I was told  not to say it. It is true that from the time  I was released from Crime Branch and till the  time when I came to give this deposition, I  have not submitted any application in this  regards, nor have I made any complaint. ……  ….It is true that I did not give any written  or oral complaint on the last court date with  regards to having been confined for 60 days  and having been threatened by the Crime  Branch. It is true that I am stating these  facts for the first time after my deposition  on the last date 15.7.2005. It is true that I  went to Crime Branch after I had deposed on  the last occasion, and thereafter I had gone  to my house. …..The witness himself states  that I made daily phone calls to Crime  Branch…..Crime Branch officer used to  investigate if I am threatened by anybody. It

Crl.A.Nos.2295-2296 of 2010         -188-  

is not true that when I went even today, I  was questioned if anybody has threatened me.  

   ……  It is not true that I am giving such  deposition since I have received threats from  the accused persons. It is not true that I  received such threats after I deposed on the  last court date.”   

 (emphasis laid by this Court)  

 (translation extracted from the Additional  

documents submitted on behalf of the  appellants)  

The statement made by PW-51 during the cross  

examination along with the legal principle laid down  

by this Court leads us to the conclusion that 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

Crl.A.Nos.2295-2296 of 2010         -189-  

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  Rs. 0.00”   

Further, the receipt voucher of articles recovered  

from the body of the fidayeens and handed over to the  

I.O. by PW-91 (Ex.524) merely makes a mention of  

‘handwritten letters in Urdu’.  

Crl.A.Nos.2295-2296 of 2010         -190-  

PW-91, in his deposition before the Special Court  

(POTA) (Ex.522), had made the following statement:  

“Thereafter, we had carried out search of  entire area of Akshardham and all explosives  those were not exploded, we had destroyed all  of them at the same place. Thereafter, I handed  over two dead bodies, two AK 47/56 Rifles,  chocolates, one live hand grenade, two chits  found from dead body, and other articles by  preparing its separate list to D.S.P. Shri G.L.  Singhal.   …… I am shown the articles of list Exhibit 524.  I am shown both the letters written in Urdu  language Mark-P. After seeing that I say that  the same were found from pocket of cloth on  body of those persons.  One letter was found  from each both of them, and at backside part of  the letter signature has been made by Force  Command Brigadier Rajsitapati, and I identify  his signature. I was knowing him for one year  of incident and I was serving with him,  therefore I identify his signature. I was  commander of task force and Brigadier Sitapati  was as Force Commander. One maulvi was called  in presence of us both and other persons, who  was conversant with the Urdu language. The  letters which were obtained by me from pocket  of cloth put on by terrorists, he had done  translation of its writing, wherein as per my  memory such fact was written that, this attack  was by way of reply to the communal riots took  place in Gujarat state, wherein both terrorists  were of “Atok” region of Pakistan. I am shown  muddamal. After seeing that, I say that, this  is the same muddamal, as had been handed over

Crl.A.Nos.2295-2296 of 2010         -191-  

to Gujarat police by me after preparing list  thereof.”  

 (emphasis laid by this Court)  

(translation extracted from the Additional  documents submitted on behalf of the  

appellants)    

Further, during cross examination by the counsel on  

behalf of the accused persons, PW-91 deposed that:  

“At the time of seizing the articles whichever  were found as articles which ever found from  the bodies of both the terrorists, from their  pockets and Rucksack I was continuously  present there. I don’t remember that by which  of my army man these articles had been  obtained. It is not true that I cannot say as  to which of the army man had taken out which  of the articles and from where taken out. I  don’t remember name of Jawan who had prepared  list of Exhibit 524, but list was prepared in  my presence. It is true that no signature of  concerned Jawan 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.  

Crl.A.Nos.2295-2296 of 2010         -192-  

…… 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 know the Urdu  language. It is true that for showing that  both these chits were seized by us, there is  no other evidence with me to show except the  signature of Brigadier Sitapati. It is true  that there is no date therein. It is not the  same as were  seized at the relevant time.  Witness willingly states that, these are these  chits, which had been seized from the dead  body by me. It is not true that, Brigadier  Sitapati has not made any signature in my  presence.  

(emphasis laid by this Court)  

(translation extracted from the Additional  documents submitted on behalf of the  

appellants)  

Crl.A.Nos.2295-2296 of 2010         -193-  

The learned senior counsel on behalf of the accused  

persons had expressed strong suspicion as to whether  

the letters produced before the court as Ex.658 were  

the same letters which were found from the pocket of  

the trousers of the fidayeens. While making the above  

contention, the learned senior counsel on behalf of  

the accused persons placed reliance upon the FIR  

registered under Section 154 CrPC by PW-126 on  

25.09.2002 (Ex.680). The FIR mentioned about the  

seizure of some articles from the body of the  

fidayeens which were mentioned in the list handed over  

by PW-91 to PW-126. It was imperative therefore, on  

the part of the prosecution to ensure that Brigadier  

Sitapati was required to be examined before the Court  

so as to prove that he signed on the letters marked as  

Ex.658 and they were the same letters recovered by  

Maj. Jaydeep Lamba (PW-91) from the bodies of the  

fidayeens. Otherwise, the absence of such evidence  

adversely affects the case of the prosecution.

Crl.A.Nos.2295-2296 of 2010         -194-  

However, the statement of PW-91 under Section 161 CrPC  

was not recorded. The necessary implication of this is  

that he could not have been presented as a chargesheet  

witness, as his evidence is recorded for the first  

time before the Special Court (POTA). and his  

statement under Section 161 CrPC was not taken by the  

I.O. However, Brigadier Sitapati, who is the most  

important witness for proving the recovery of the  

alleged letters from the pockets of the trousers of  

the fidayeens, was not examined either under Section  

161 or before the Court.   

99. It is a settled position of law in the criminal  

jurisprudence that a witness, whose evidence is placed  

reliance upon by the Court, has to be examined and  

questioned during the course of investigation by the  

police and his name has to appear in the chargesheet  

so that the accused gets a fair chance to cross  

examine such witness. It was held in the case of Ram

Crl.A.Nos.2295-2296 of 2010         -195-  

Lakhan Singh & Ors. v. State of Uttar Pradesh55 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 chargesheet. 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 chargesheet. 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 bodies of the fidayeens,                      

55 (1977) 3 SCC 268

Crl.A.Nos.2295-2296 of 2010         -196-  

fatal. We however, intend to further examine the  

contents of the letters (Ex.658) to determine if they  

are the same letters which were alleged to be  

recovered from the pockets of the trousers of the  

fidayeens. It is pertinent here to examine the  

deposition of PW-121(Ex.657), the translator of the  

Urdu letters before the Special Court (POTA). The  

translation of his statement from Gujarati to English,  

as per the documents submitted on behalf of the  

accused persons, reads as under:  

“I know Urdu, Arabic and Persian languages. I  have studied all these languages by living at  Bihar, U.P and Ahmedabad. The said degree is  called Aalim.  After three days of Akshardham incidence, DSP  Shri B.D Waghela had given news to me at  Petlad, and I had received news at my village  Bisnoli from Petlad, I had come to the office  of L.C.B at Gandhinagar as I had received the  news. I was said that, “sir (bapu), translate  the two papers which we take out from the  cover. I had read both the papers which were  written in Arabic language, and thereafter had  translated the same to Gujrati from Urdu. That  was written by writer of Tolia Sir. I was  speaking and he was writing. Police had taken  my statement on the same day on which I had

Crl.A.Nos.2295-2296 of 2010         -197-  

translated. On showing me letters of Mark-P and  Mark-F/1 written in Gujarati script, I state  that the said is not same which was read by me  on the relevant day and it is not the same  which was given to me to read. He was writing  whatever was spoken by me, and at present on  reading the same, I state that this writing is  same which has been written as spoken by me.  

(emphasis laid by this Court)  

(translation extracted from the Additional  documents submitted on behalf of the  

appellants)    

During the cross examination before the Special Court  

(POTA) by the learned counsel for A-2 and A-4, it was  

stated by him as under:  

“No certificate was taken from me for the  translation done by me, so that there is  writing that the said translation was done by  me.  There is no other written base that the said  translation was done by me. I don’t know the  name of the person who had written the  translation. Translation was not written by  Tolia sir. It is not true that Tolia sir had  written the translation of both the letters. It  is true that the letters which were translated  by me on that day were not seen by me  thereafter till today. It is not true that the  said letters were not there at the respective  time.

Crl.A.Nos.2295-2296 of 2010         -198-  

It is not true that 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.”    

(translation extracted from the Additional  documents submitted on behalf of the  

appellants)    

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”.       

(translation extracted from the Additional  documents submitted on behalf of State of  

Gujarat)     

Crl.A.Nos.2295-2296 of 2010         -199-  

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 before us, we intend to closely  

consider the other relevant evidence on this aspect  

which is brought to our notice. The excerpts of the  

translation of letter marked as Ex. 775 read as under:  

“Tehrik-e-Kassas, Gujarat Hind.  ……..  Now each young boy of Tehreek-e-kassas will  take revenge of the Muslims.  ………  Muslims of Gujarat come and by joining steps  with young boys of Tehrik-e-Kassas, we should  rebuild our mosques and take revenge of  killings of Muslims.   …….  Allah may give us guidance to point true path  for Muslims and may keep alive Tehrik-e-Kassas

Crl.A.Nos.2295-2296 of 2010         -200-  

till the time revenge of each one killed is not  taken.   ……  From: Real Representatives of Group of Muslims  of Gujarat  Tehrik-e-Kassas, Gujarat.  

Sd/- V.S.M.  PMG Raj Seethapathi”  

(translation extracted from the Additional  documents submitted on behalf of the  

appellants)    

The contents of the letter nowhere mention the name of  

the place ‘Atok’ in Pakistan from where the fidayeens  

had allegedly come, as had been mentioned by PW-91 in  

his deposition before the Special Court (POTA).  

101. Further, the statement of PW- 105, Prakash  

Chandra Mehra (Ex.592), Police Inspector of Gandhi  

Nagar only raises our doubts further. PW-105 stated as  

under:  

“….During this time, NSG Major Joydeep Lamba  had produced a list before me and before  divisional officer Shri Singhal, by which he  had handed over the articles recovered from the  dead bodies, like weapons, ammunitions, cash as

Crl.A.Nos.2295-2296 of 2010         -201-  

well as papers written in Urdu and edible items  etc, and the said were seized by me by calling  panchas and in presence of panchas as per  instruction of Mr. Singhal. During questioning,  Major Lamba Sir had stated that the Urdu papers  were recovered from the right pocket of pant of  deceased persons. The said panchnama is by  exhibit- 440, and it being shown to me, and on  seeing the same, I state that the panchas have  signed therein before me, and it has my  signature as before me, and facts written  therein are true. I am being shown list of Exh-  524, the said is the list given by Major Lamba  and it has my signature.  

 (translation extracted from the Additional  

documents submitted on behalf of the  appellants)  

 During the cross examination, he further stated that:  

“I was the very first officer to reach  Akshardham. At present I cannot say whether S.P  Brahmbhatt and Dy Shri Singhal were present  there before I had reached over there or not,  but I had seen them at that place. After I had  reached at the site, I immediately came to know  that cognizable offence has been committed. It  is true 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

Crl.A.Nos.2295-2296 of 2010         -202-  

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.”  

 (translation extracted from the Additional  

documents submitted on behalf of the  appellants)  

He further stated during the examination by the Judge  

of the Special Court (POTA):  

“I am being shown signature of Brig. Raj  Sitapati from the time when both the papers  of Mark-P were produced before me, I don’t  remember about the same presently and I  cannot identify the said signature. It has  not happened that any Maulvi (Muslim priest)  was called before me, and the said papers  were got translated.”

Crl.A.Nos.2295-2296 of 2010         -203-  

 (translation extracted from the Additional  

documents submitted on behalf of the appellants)    

He also stated during the cross examination by the  

learned counsel for A-2 and A-4:  

“I have not recorded any statement of Brig. Raj  Sitapati during my investigation, nor have I  met with him.”  

 (translation extracted from the Additional  

documents submitted on behalf of the  appellants)  

 If the statement of PW-105 is taken into  

consideration, it would mean that no signature was  

made on the back of the letters, and that the letters  

seized were not kept in sealed covers which increased  

the chance of letters being replaced subsequently. It  

is also on record that the photographer and the  

videographer who had recorded the scene of offence as  

per the instruction of PW-126 had not been examined.   

102. Further, the post mortem report of the fidayeens  

(Ex.492) stated that all their clothes were stained

Crl.A.Nos.2295-2296 of 2010         -204-  

with blood and mud  and all clothes bore multiple  

tears and holes due to perforation by bullets.  In  

such a case, the fact that the letters remained clean,  

without any tear, soiling or stains of blood and soil  

is highly unnatural and improbable.   

103. Therefore, we cannot accept the recording of the  

High Court that the secret behind the crease-free  

unsoiled and unstained letter lies in the divine  

philosophy of “Truth is stranger than fiction” for  

this renowned epithet by the author Mark Twain comes  

with a caveat that says, “Truth is stranger than  

fiction. Fiction must make sense”. We accordingly  

accept the contentions of the learned senior counsel  

on behalf of the accused persons and hold that the two  

letters marked as Ex. 658 cannot be taken as evidence  

in order to implicate the accused persons in this  

crime. Hence, we answer this point in favour of the  

appellants.   

Crl.A.Nos.2295-2296 of 2010         -205-  

Answer to point no. 5  

104. The learned senior counsel on behalf of the  

prosecution, Mr. Ranjit Kumar contended that the two  

Urdu letters allegedly recovered from the pockets of  

the trousers of the fidayeens had been written by A-4,  

as he had admitted the same in his confessional  

statement as under:  

“…..On the next day night Aiyub came at my  office and he stated that persons come by  taking goods (arms). Tomorrow they three will  come here at the time of noon’s prayer here, at  that time I and both fidayins will have to go  to Akshardham separately, therfore 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

Crl.A.Nos.2295-2296 of 2010         -206-  

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 prayer for success of massacre,  their safety and if they are died then they are  going to heaven, doctor-2 stated his real name  as Hafiz Yasir res. Lahore, Pakistan and  Doctor-3 (Ashraf) stated his real name as  Mohammed Faruk residence Ravalpindi, Pakistan  and for their prayer we all five persons  performed two rakat nafal namaz and gave hug to  each other. At that time Maulvi Abdullah had  given one chit each to the fidayin written by  me in Urdu yesterday as per my instruction and  if in future chits are caught to show that  chits are written by fidayins he had also given  them pen.  During this in the encounter with armed forces,  they both terrorists are also killed and one  chit each having one kind of urdu writing have  been found from pockets of both. I had seen  photographs of those chits and photographs of  both the terrorists killed afterwards in T.V  and newspapers. I identified that those chits  are same which I and Maulvi Abdullah made  discussion and both terrorists who died were  doctor-1 and doctor-2.”    

(emphasis laid by this Court)

Crl.A.Nos.2295-2296 of 2010         -207-  

 (translation extracted from the Additional  

documents submitted on behalf of the State of  Gujarat)  

Therefore, by placing reliance upon the confessional  

statement of A-4, read with the contents of the  

letters mentioned above and the opinion of the hand  

writing expert,Jagdish Bhai(PW-89) the learned counsel  

on behalf of the prosecution contended that the  

alleged letters had been written by A-4.   

105. The learned counsel for the accused persons have  

contended that the statement under Section 161 of the   

CrPC, of the key witness PW-91, Maj.Jaydeep Lamba was  

not recorded. We have to accept this contention as the  

investigating officers have conveniently omitted to  

record the statements of witnesses which could have  

established beyond reasonable doubt that the letters  

were the same ones as discovered from the site of  

offence. They tied A-4 to the letters merely based on

Crl.A.Nos.2295-2296 of 2010         -208-  

his confessional statement whereas the opinions of the  

hand writing experts are merely indicative and not  

conclusive beyond reasonable doubt. We begin with the  

comment made by the translator of the Urdu letters  

(PW-121: Ex.657) who had categorically stated that:  

“The matter in both the letters was same but  the persons who wrote it are not the same as  per my opinion”.    

(translation extracted from the Additional  documents submitted on behalf of the  

appellants)    

But considering the fact that he was not a hand  

writing 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:  

Crl.A.Nos.2295-2296 of 2010         -209-  

“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 as well as the  fact that the complete word is written in  combination that initial, medial and final.  Also, wherever there is double pronunciation  like in bachcha, kachcha then letter like  little ‘W’ like English is made. I have studied  ‘Kaaf’, ‘Gaaf’, ‘Nukta’, ‘Hamja’, ‘Tasdid’,  ‘full- stop, ‘comma’, small S, big SW, vowels

Crl.A.Nos.2295-2296 of 2010         -210-  

and Sh thereby all words. ...I cannot write  Urdu. I cannot read Urdu language, But by  taking reliance of book, I can read it.   ....  It is true reason that there is no mention  about the discussion of the reasons given by me  with the Expert of Hyderabad. It is true that  in the reasons given by me, there is no  signature of any examiner except for me. It is  true that in my reasons, general  characteristics, which are given, in the said,  details like measurements have not been  mentioned. It is true that the sample documents  were compared mutually has not been mentioned  in my reasons. It is true that the specimen and  natural hand writings were compared with each  other, but it is not written in my reasons. It  is true that I have written natural variations  in my reasons, but I have not mentioned details  about what these variations are.”  

 (translation extracted from the Additional  

documents submitted on behalf of the  appellants)  

On cross examination by the Judge of the Special Court  

(POTA) however, he was asked whether the hand writing  

expert can also give opinion on the language which is  

not known to him. To this, he answered that:  

“It is necessary to have basic knowledge of the  concerned language. Even many signatures are

Crl.A.Nos.2295-2296 of 2010         -211-  

written illegibly in monogramatic formation,  even then also by examining different  characteristics of hand writing, one can come  to the conclusion from the same.”     

(translation extracted from the Additional  documents submitted on behalf of the  

appellants)    

Further, he was asked, if the person who analyses such  

a document can read or write the language of the  

document and whether the opinion given by such a  

person can be called more reliable than the opinion  

given by the person who does not know to read or write  

the language, he answered:  

“I don’t agree that the opinion can be called  more reliable, but I can just say that the  knower of the language can give reasons in more  details. The witness states on his own that  apart from me, two other experts of Hyderabad  were taken, and they knew Urdu language better  than me.”      

(translation extracted from the Additional  documents submitted on behalf of the  

appellants)   

Crl.A.Nos.2295-2296 of 2010         -212-  

The hand writing expert had stated that he cannot read  

or write the Urdu language. He can read Urdu language  

only 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

Crl.A.Nos.2295-2296 of 2010         -213-  

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, since this document of certificate was  

never given to the defence in the chargesheet papers,  

or at any time thereafter. Moreover, the prosecution  

had also submitted that even they were unaware of the  

existence of this document, and this knowledge had  

come before them only during the course of recording  

of the deposition of PW-89 before the Special Court  

(POTA). Therefore, the certificate was taken on record  

with the objection of the defence.  

107. After perusing the above mentioned evidence on  

record, we decipher that the prosecution had contended  

that the Urdu letters (Ex.658) were written by A-4 by  

only placing reliance upon the opinion of the

Crl.A.Nos.2295-2296 of 2010         -214-  

handwriting expert, PW-89. However, the certificate of  

the seniormost official of FSL, Hyderabad was not  

admitted on record till a much later stage, after the  

charge sheet was prepared and PW-89 gave his statement  

before the court. It was at this stage that his  

evidence was admitted with protest from the defence.  

PW-89 in his evidence had stated that he has basic  

knowledge of Urdu and cannot differentiate between  

Urdu, Arabic and Persian. He further stated that the  

opinion of handwriting experts is not conclusive.  

Therefore, we hold that the prosecution had failed to  

establish beyond reasonable doubt that the Urdu  

letters (Ex.658) were written by A-4. Accordingly, we  

answer this point in favour of the appellants.  

Answer to point no.6  

108. As per the Order of the CJM of Budgam, Jammu and  

Kashmir (Ex.674) dated 11.10.2003, A-6 was arrested  

from Bareilly during investigation in the case FIR no.  

130 of 2003 for offences under Sections 120-B, 153-A

Crl.A.Nos.2295-2296 of 2010         -215-  

RPC, Section 10 of one ‘C.B.A. Act’ and Sections 7 and  

27 of Arms Act registered at the police station at  

Nowgam, Jammu and Kashmir. A car bearing Registration  

no. CHOIX- 3486 was seized as the vehicle was  

subjected to checking, and arms and ammunitions were  

recovered from the vehicle. The driver disclosed his  

name as Chand Khan, resident of Barsia Tehsil  

Nawabgunj, Dist. Bareilly, U.P. The seizure memo was  

drawn up immediately and A-6 was taken into custody.  

He thereafter, allegedly confessed that he was  

affiliated to militant outfits in the style of  

Lashkar-e-Toiba and was involved in subversive  

activities outside Jammu and Kashmir as well. A-6 had  

further allegedly confessed that he was using one  

ambassador car bearing Registration no. KMT 413 for  

subversive 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

Crl.A.Nos.2295-2296 of 2010         -216-  

Jammu and Kashmir CrPC. 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 saw papers of seizure. The  witness himself states that the papers would  have been given to Gujarat Police, but I am not  sure in this regard, but our case papers are  those papers. It is true that we seized the car

Crl.A.Nos.2295-2296 of 2010         -217-  

on the basis of suspect for investigation. I do  not know the condition of the car when we  seized it for our police station case. Whether  it was as written in existing panchnama. My  Investigation Officer must be knowing it. It is  true that I saw seizure papers including  panchnama before Gujarat police seized it. ….  When the car was seized, it was in our custody,  but kept in S.O.G. camp. Then the car was  handed over to Ahmedabad police. Thereafter, I  had an occasion to see the car. It was true  that when the car was given to Gujarat police,  it was not in working condition.   

……  

Question: Are you prepared to produce panchnama  and other papers in court when you seized the  car in suspected condition?  

Reply: Our file has been submitted to the  government for sanction. I am prepared to  produce when it comes. I am prepared to produce  when court orders after getting sanction.   

After getting reply from R.T.O., we came to  know that its owner’s name is Abdul Majid  Rathor. We enquired in this regard but no such  person exists. The car was registered in  pseudonym. It is true that panchnama was made  to handover the car to the police. There is  record in my police record in this regard….  There were engine number and chasis number in  the inner part of the car. No photographs were  taken of the car in my presence then. It was  seized in our police station. Then also no  photographs were taken. It is true that there  are no photographs of the car in our record.   

Crl.A.Nos.2295-2296 of 2010         -218-  

(basically they talk about the seizure of the  car by Gujarat Police and not the police of  J&K).”  

(emphasis laid by this Court)  

(translation extracted from the Additional  documents submitted on behalf of State of  

Gujarat)  

110. Therefore, it is clear from the deposition of PW-

123 that firstly, A-6 is not the owner of the car  

since it was registered in the name of some other  

person as per the report of R.T.O (Ex.672). Secondly,  

as per the Order of the CJM of Budgam, Jammu and  

Kashmir (Ex.674) dated 11.10.2003, A-6 was not in  

physical possession of the car which was allegedly  

used for carrying weapons for the attack on Akshardham  

whereas he was actually found in possession of another  

car bearing Registration no. CHOIX-3486. Finally,  

though a panchnama was drawn up of the alleged car, by  

the police of Jammu and Kashmir, it was for them to  

hand over the car from their custody to the Gujarat

Crl.A.Nos.2295-2296 of 2010         -219-  

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:

Crl.A.Nos.2295-2296 of 2010         -220-  

“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 regarding seizure of car no. KMT- 413  existed earlier to panchnama of Exhibit 671. I  have not seen panchnama.”    

(emphasis laid by this Court)    

(translation extracted from the Additional  documents submitted on behalf of the State of  

Gujarat)  

He again went on record to state that:   

“I do not believe that if any car is seized in  one crime, seizure, panchnama and other papers  should be possessed before seizing car in  another crime. It is true that when the car is  confiscated, its panchnama is made, that  panchnama should be obtained while seizing car  in another crime. As I was engaged in other  work, I did not get panchnama. It is not true  that panchnama of Cr. No. 130/ 2003 was not  produced because its details were not in  consonance with Panchnama Exhibit 671…….”  

(emphasis laid by this Court)    

(translation extracted from the Additional  documents submitted on behalf of State of  

Gujarat)  

Crl.A.Nos.2295-2296 of 2010         -221-  

It is clear from the statement of PW-125 that neither  

the panchnama nor seizure memo of the car no. KMT 413,  

made during its alleged seizure in case no. 130 of  

2003 was seen by PW-125 since, “he was engaged in  

other work”. However, without verifying the contents  

of the panchnama and the seizure memo of the car in  

Case No.130 of 2003, the involvement of the car had  

been admitted in evidence on record by the courts  

below, merely on the basis of the subsequent panchnama  

drawn by the Gujarat police, which was only for the  

transfer of possession of the car from the police of  

Jammu and Kashmir to the Gujarat police.  

In light of the evidence mentioned above, we are  

not inclined to give any weightage to the panchnama  

drawn by the Gujarat police at Jammu and Kashmir for  

the seizure of car already in the possession of the  

Jammu and Kashmir police at SOG Camp, in the absence  

of the original panchnama and seizure memo drawn by  

the police of Jammu and Kashmir. In view of the

Crl.A.Nos.2295-2296 of 2010         -222-  

evidence on record, and the reasons recorded by us, we  

answer this point in favour of the appellants and hold  

that the prosecution had failed to prove that the car  

was used by A-6 to carry weapons from Jammu and  

Kashmir to Bareilly for carrying out the attack on  

Akshardham.    

Answer to point no.7  

112. The independent documentary evidence produced  

before us against the accused persons are the two  

letters in Urdu allegedly recovered from the pockets  

of the trousers of the fidayeens, upon which the  

prosecution had placed strong reliance to establish  

the involvement of A-4 in the offence. The other  

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

Crl.A.Nos.2295-2296 of 2010         -223-  

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

Crl.A.Nos.2295-2296 of 2010         -224-  

the appeals and reference order, is liable to be set  

aside.   

113. We cannot lose sight of the fact that the  

confessional statements of the accused persons were  

recorded by the DCP, PW-78 in extremely suspicious  

circumstances. We have already held that the procedure  

of presenting them before the CJM and subsequently  

sending them to judicial custody mandatorily had been  

reduced to a mere, empty formality. This above said  

procedural lapse coupled with the fact that the  

letters of caution to be given to them, before the  

making of such statements, mandated under Section  

32(2) of POTA, and the process of recording their  

confessional statements were done in an extremely  

casual manner which is not the conduct expected from  

such high ranking police officers of the state  

government. Since we have already recorded our  

findings and reasons in this regard, while answering

Crl.A.Nos.2295-2296 of 2010         -225-  

the point no.2 on confessional statements, we  

therefore do not intend to reiterate the same here.   

114. Even if the confessional statements of the  

accused persons are made admissible, that alone could  

not have been made the only ground for convicting  

them, as it would amount to a violation of the legal  

principle laid down in the five judge bench decision  

of this court in the case of Hari Charan Kurmi and  

Jogia Hajam v. State of Bihar56 , wherein this Court  

held as under:   

“12. As we have already indicated, this  question has been considered on several  occasions by judicial decisions and it has been  consistently held that a confession cannot be  treated as evidence which is substantive  evidence against a co-accused person. In  dealing with a criminal case where the  prosecution relies upon the confession of one  accused person against another accused person,  the proper approach to adopt is to consider the  other evidence against such an accused person,  and if the said evidence appears to be  satisfactory and the court is inclined to hold  that the said evidence may sustain the charge  

56 AIR 1964 SC 1184

Crl.A.Nos.2295-2296 of 2010         -226-  

framed against the said accused person, the  court turns to the confession with a view to  assure itself that the conclusion which it is  inclined to draw from the other evidence is  right. As was observed by Sir Lawrence Jenkins  in Emperor v. Lalit Mohan Chuckerburty, I.L.R.  38 Cal. 559 at p.588 a confession can only be  used to "lend assurance to other evidence  against a co-accused". In Peryaswami Moopan  v.Emperor,I.L.R. 54 Mad. 75 at p.77: (AIR 1931   Mad. 177 at p.178) Reilly, J., observed that  the provision of S. 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 S. 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 S. 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. S. 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

Crl.A.Nos.2295-2296 of 2010         -227-  

the consideration of all the facts proved in  the case; it can be put into the scale and  weighed with the other evidence."   It would be noticed that as a result of the  provisions contained in S. 30, the confession  has no doubt to be regarded as amounting to  evidence in a general way. because whatever is  considered by the court is evidence;  circumstances which are considered by the court  as well as probabilities do amount to evidence  in that generic sense. Thus, though confession  may be regarded as evidence in that generic  sense because of the provisions of S. 30, the  fact remains that it is not evidence as defined  by S.3 of the Act. The result, therefore, is  that in dealing with a case against an accused  person, the court cannot start with the  confession of a co-accused person; it must  begin with other evidence adduced by the  prosecution and after it has formed its opinion  with regard to the quality and effect of the  said evidence, then it is permissible to turn  to the confession in order to receive assurance  to the conclusion of guilt which the judicial  mind is about to reach on the said other  evidence. That, briefly stated, is the effect  of the provisions contained in S. 30. The same  view has been expressed by this Court in  Kashmira Singh v. State of Madhya Pradesh 1952  SCR 526 :(AIR 1952 SC 159) where the decision  of the Privy Council in Bhuboni Sahu's case, 76  Ind App 147 (AIR 1949 PC 257) has been cited  with approval.  ..  14. The statements contained in the confessions  of the co-accused persons stand on a different  footing. In cases where such confessions are  relied upon by the prosecution against an

Crl.A.Nos.2295-2296 of 2010         -228-  

accused person, the Court cannot begin with the  examination of the said statements. The stage  to consider the said confessional statements  arrives only after the other evidence is  considered and found to be satisfactory. The  difference in the approach which the Court has  to adopt in dealing with these two types of  evidence is thus clear, well-understood and  well-established. It, however, appears that in  Ram Prakash's case, 1959 SCR 1219: (AIR 1959 SC  1), some observations have been made which do  not seem to recognize the distinction between  the evidence of an accomplice and the  statements contained in the confession made by  an accused person.”  

(emphasis 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, A-

3, A-4 and A-6 and that of PW-51 revealed that they

Crl.A.Nos.2295-2296 of 2010         -229-  

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 ‘autorickshaw 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 and his family members with the  

motive of eliciting a confession out of him which he  

stated to be ‘false’ as he is not guilty of the same  

and had been falsely charged. Relevant portions of the  

retraction statement(Ex.779) are extracted hereunder  

in order to examine the import of his statement of  

retraction:

Crl.A.Nos.2295-2296 of 2010         -230-  

“I, Ajmeri Suleman Adam, state in writing that  five to six officers of Ahmedabad City Crime  Branch from Gaekwad haveli came in maruti car  at the corner of my mohalla at about 1.30-2.00  in the night and they called me. They asked my  name and occupation. I told the officers that I  am rickshaw driver. They told me to sit in our  maruti car. We have to take you for enquiry.  They told me that the rickshaw which them that  the rickshaw that I drive is not be theft.He  has owner. Then the officer abused me, beat me  and seated me in the car by coercion. I was  taken into the crime branch office at night  they tied a strip on eyes and placed me at such  a place that I do not know. Then I could not  sleep for whole night. I was thinking that I  have not done any wrong. Then why I was brought  here, then on 10-8-2003, on next day at 1.00  noon a constable came and told me to come with  him as higher officer call you. At that time a  strip tied on my eyes. The constable caught me  and put in an office and opened the strip from  my eyes. I saw four officer sitting there. Shri  Vanzara, DCP Shri Singhal, ACP Shri Vanar PI  and Shri patel PI, I came to know afterwards  that these officers are from crime branch. Shri  DCP Vanzara asked me whether I know after works  that these officers are from crime branch. Shri  DCP Vanzara asked me whether I know why I was  brought here. I replied that you other officers  told me that the rickshaw that I drive is by  thefts and I am to be asked about it.   He told  me that I was not brought here for that crime  but for other crime. I told that I not have  made such crime that I should be brought here.  Then Singhal Sahib abused me and told that  should agree to what they say. I should agree  that I am the criminal of Akshardham carnage. I

Crl.A.Nos.2295-2296 of 2010         -231-  

told them that I have never gone to Akshardgam  nor have I seen it. Kindly do not involve me.  He immediately called five or six persons and  told me to have handcuffs and fetters. Vanar  Saheb beat me on soles. Shri Singhal Saheb told  me that I agree with the crime of Askhardham ,  they shall not beat me and have some benefits.  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:  

Crl.A.Nos.2295-2296 of 2010         -232-  

“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 godhra  episode were distributed among Muslims and poor  persons as said by congress leader you  contested as an independent candidate in 1998.  We know that congress candidate was defeated  and BJP candidate won the election. You made a  case against BJP in the High Court. The case  was extended to Supreme Court but you could not  do anything.  What shall you able to do now.  ...  ...I was harshly beaten from 9-8-2003 to 28-8- 2003 without my fault and behaved rudely.  ...Singhal Saheb came to my office at night  (29-8-2003) and told me, “ We have declared you  as criminal. We shall take you to court and  present before Judge. You should not speak  anything against us, otherwise we shall get you  down on the way and encounter you. You shall  not come alive. Then I requested Vanzara Saheb,  Singhal Saheb, Vanar Saheb and Patel Saheb that  you have beaten the truth and placed lying in a  higher position......They told me to sign where  they say...  ...They threatened me and presented to the  court . Hon.Court gave remand. During court, I  was in crime branch. Shri Vanzara Saheb,  Singhal Saheb, Vanar Saheb and Patel Saheb  behaved with me as if I am an animal. During  that time, I was taken to VS Hospital. They  told me one thing that I should not narrate my  difficulties to the Doctor, otherwise I shall  be harassed like anything. I should say to the  doctor I am healthy and I shall get treatment  from the private doctor who comes in crime  branch for any trouble. ...

Crl.A.Nos.2295-2296 of 2010         -233-  

....Singhal Saheb seated me in his office on 4- 9-03 at night and told me to write in my  handwritings as he says, otherwise I shall be  finished. I went to writing as he stated. I  have not written this willingly but as per wish  of Singhal Saheb. If I would not have written  so, I would have been encountered on that very  day or night. I was frightened and I wrote on  account of fear. I was taken to Ahmedabad  airport on 5-9-03.  Vanzara Saheb, Patel Saheb,  AA Chauhan Saheb and other three PSI s were  with me....IG Shrinagar called me on 7-9-03. At  that time three officers of Shrinagar were  present. He told me to tell the truth. Then I  told on oath of kuran-sharif true facts. I was  arrested on 9-8-03. Till them I am beaten. I do  not know anything about Akshardham. They have  threatened my family members and threatened me  to encounter. I have been forced to agree to  the crime. I told officers of Shrinagar to help  me, otherwise these officers shall kill me.  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

Crl.A.Nos.2295-2296 of 2010         -234-  

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, polics is ours and judge sahib  is also ours. I was taken to judge sahib room.  There were some written papers. I do not know  what was written in it. Without allowing me to  read anything judge sahib and crime branch  officers took my signatures  thereon.....Singhal,Vanar and other officers at  in judge  hamber. They took snacks and tea.  After one hour all officers came out smiling  saying our work is over. We shall present him  in Pota court and send them to Central Jail....  ...I request you that since last two months I  remained in crime branch as helpless and  humble....  ...I f you want the truth in this case to be  revealed, hand over the case to CBI officers.  It is my humble request to you to hand over the  investigation to the CBI and truth shall be  revealed to you. Sir, when I was sent to  central jail I told the jail authorities that I  required treatment...  ...I am hopeful that you shall prevent me and  my family from ruin and do justice. I am  hopeful that you shall do justice to me and my  family after considering my request.”     

(emphasis laid by this Court)   

Crl.A.Nos.2295-2296 of 2010         -235-  

(translation extracted from the Additional  documents submitted on behalf of the State of  

Gujarat)  

116. Excerpts from the statement of retraction of A-4  

(Ex. 780), reads as under:   

“I state with request that I am (Mufti) Abdul  Kayyam Ahmedhussain Mansuri...I taught namaz at  Haji Sakhi Masjid charvat and teach Koran to  children....  ...On 17/8/2003, Sunday, in the evening, I was  at Haji Sakhi Masjid, Dariyapur when four  people came in the Masjid in civil dress and  asked me if I was Mufti A.Kayyam. I replied  that I am and they told me that I had to come  to crime branch office as senior officer was  calling me. ...  One of them told me that some enquiry has to be  made and I would be left after enquiry in 3-4  days. ..they took me to Haveli crime Branch  office. They blindfolded me and made me sit  down later. At about 10.00 to 11.00 pm in the  night they took me to some officer. They  removed the blindfold and released my hands.  Later I learnt that the name of the Saheb was  ACP GL Singhal.Shri Singhal asked me as to why  I was brought here. I told him that I did not  know....Then Singhal asked me questions about  my family, friends etc...and I satisfactorily  answered them. Suddenly, Singhal started  beating me on my backside and told me to go and  you would know as to why I was brought there on

Crl.A.Nos.2295-2296 of 2010         -236-  

next day. Then I was blindfolded again and my  hands were tied up and taken back again. ..  ...Then everyday from 18/8/03 to 29/8/03, 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 Akshsardham  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 Saheb  called me and told me that I was arrested in  Akshardham case. He told me that I would be  presented in the court the next day. ...I was  presented in court the next day. Judge asked me  whether I had any complain but due to fear I  could not say anything...  ...Later on the day I got remand on 30-8-03 at  night I was called to Singhals office by Shri

Crl.A.Nos.2295-2296 of 2010         -237-  

Singhal and VD Vanar. They told me that letters  were found from both the dead terrorists at  Akshardham complex. They asked me if I had  written those letters. I replied that I had not  written them and I do not know anything about  it.  On this they started torturing me mentally  and physically. Then Singhal said it was ok,  they knew I had not written those letters. He  asked me read and rewrite the copy of the two  letters. Saying so he gave me a copy of those  two letters. I trusted them and copied those  two letters.  Due to innocence I could not  understand their conspiracy and I was  repeatedly asked to copy those letters by Vanar  and RI Patel for three four days every night  Patel and those urdu letters and asked me to  copy them till three four o clock late night.  They used bad words and said those letters were  found from terrorists. They asked me to match  the handwritings of these letters and exactly  write in those many lines and paragraphs also  must be at the same place. ...They threatened  and forced me to write 40-50 copies of those  letters.   Later on 5.9.03 they took me to Srinagar  (Kashmir). Out of the officers present with me  RI Patel repeatedly told me that there I would  be presented before officer. He would ask me  about Akshardham and I must repeat the false  story which they had told me earlier. They  threatened me if I revealed the truth, they  would kill me and throw my body somewhere. They  would inform my family that i would be killed  in an encounter with the terrorists. They told  me that I would be shown a person, they told me  to identify him and then they presented me  before those officers. I learnt the names of  officers later as DIG K Rajendra, ACP Sandip

Crl.A.Nos.2295-2296 of 2010         -238-  

vazir and ACP Saheb of these officers showed me  a person and asked me if I knew him.  I did not  know that person at all. So I dared to say that  I did not know him....  ...So those officers made the officers  of  Crime Branch, Ahmedabad sit in another room.  They asked me to speak the truth. I replied  that if I did so these officers would kill me  and trouble my family too. 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 remind me....He also made the camera close  and abused me and reminded me the untrue story

Crl.A.Nos.2295-2296 of 2010         -239-  

in this way by beating and threatening me they  made me reveal an absolutely untrue story. ..  ...I swear I have been wrongly trapped by Crime  branch Officers in Akshardham case. I am  absolutely innocent and do not know anything  about Akshardham case...”  

(emphasis laid by this Court)    

(translation extracted from the Additional  documents submitted on behalf of State of  

Gujarat)    

This Court in the case of Navjot Sandhu (supra) while  

deciding whether the same rule of prudence for  

confessions under the general law would apply for  

confessions under the POTA as well, held as under:  

“46. …. The better view would be to follow the  same rule of prudence as is being followed in  the case of confessions under the general law.  The confessional statement recorded by the  police officer can be the basis of conviction  of the maker, but it is desirable to look to  corroboration in a broad sense, when it is  retracted. The non obstante provision adverted  to by the learned Judges should not, in our  considered view, affect the operation of the  general rule of corroboration broadly.”   

Crl.A.Nos.2295-2296 of 2010         -240-  

Further, in the case of Parmanada Pegu v. State of  

Assam57, this Court relied upon many judgments, most  

important of which is Subramania Goundan v. State of  

Madras58 which was relied upon in the case of Navjot  

Sandhu (supra), in order to hold that the confessional  

statement of the accused which is retracted, cannot be  

relied upon to convict him in the absence of  

corroborating evidence. In the Subramania Goundan case  

(supra), this Court held thus:  

“14. The next question is whether there is  corroboration of the confession since it has  been retracted. A confession of a crime by a  person, who has perpetrated it, is usually the  outcome of penitence and remorse and in normal  circumstances is the best evidence against the  maker. The question has very often arisen  whether a retracted confession may form the  basis of conviction if believed to be true and  voluntarily made. For the purpose of arriving  at this conclusion the court has to take into  consideration not only the reasons given for  making the confession or retracting it but the  attending facts and circumstances surrounding  

57  (2004) 7 SCC 779  58 AIR 1958 SC 66

Crl.A.Nos.2295-2296 of 2010         -241-  

the same. It may be remarked that there can be  no absolute rule that a retracted confession  cannot be acted upon unless the same is  corroborated materially. It was laid down in  certain cases one such being In re. Kesava  Pillai ILR 53 Mad 160: (AIR 1929 Mad 837) (B)  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 (S) 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. Though under S. 133 of the Evidence  Act a conviction is not illegal merely because  it proceeds on the uncorroborated testimony of  witnesses, illustration (b) to S. 114 lays down  that a court may presume that an accomplice is  unworthy of credit unless he is corroborated in  material particulars. In the case of such a

Crl.A.Nos.2295-2296 of 2010         -242-  

person on his own showing he is a depraved and  debased individual who having taken part in the  crime tries to exculpate himself and wants to  fasten the liability on another. In such  circumstances it is absolutely necessary that  what he has deposed must be corroborated in  material particulars. In contrasting this with  the statement of a person making a confession  who stands on a better footing, one need only  find out when there is a retraction whether the  earlier statement, which was the result of  remorse, repentance and contrition, was  voluntary and true or not and it is with that  object that corroboration is sought for. Not  infrequently one is apt to fall in error in  equating a retracted confession with the  evidence of an accomplice and therefore, it is  advisable to clearly understand the distinction  between the two. The standards of corroboration  in the two are quite different. In the case of  the person confessing who has resiled from his  statement, general corroboration is sufficient  while an accomplice's evidence should be  corroborated in material particulars. In  addition the court must feel that the reasons  given for the retraction in the case of a  confession are untrue.”  

(emphasis laid by this Court)  

This above said view of this Court has been endorsed  

in various judgments subsequently and we find it  

necessary to reiterate the same herein. The rule of

Crl.A.Nos.2295-2296 of 2010         -243-  

prudence as applying to confessions of the accused  

under the general law, being that the confessional  

statements which were retracted must be corroborated  

by independent evidence, must be followed to convict  

the accused for the charges framed against them. The  

findings and reasons for conviction and sentencing of  

the accused persons in this case were the confessional  

statements of A-2, A-3, A-4 and A-6 and the two Urdu  

letters which are purportedly written by A-4. A-2, A-

3, A-4 and A-6 had retracted their confessional  

statements as per the exhibits aforementioned and all  

of them had alleged that they were tortured and  

threatened with dire consequences of death through  

‘encounter’ 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

Crl.A.Nos.2295-2296 of 2010         -244-  

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 unflinching reliance in

Crl.A.Nos.2295-2296 of 2010         -245-  

order to establish a link between the fidayeens and  

the accused persons, has already been answered by us  

in point nos. 4 and 5 to be completely unreliable for  

the reasons stated by us in this judgment.   

120.  The story of the prosecution crumbles down at  

every juncture. Most importantly, the case laws relied  

upon above show that the statements of confession of  

the accused persons cannot be relied upon if they are  

retracted, unless corroborated by independent  

evidence. In this case, as already elucidated, the  

case of the prosecution rests on the confessional  

statements on the accused persons, the confessional  

statements of the accomplices and their evidence and  

the two Urdu letters purportedly found in the pockets  

of the trousers of the fidayeens and written by A-4,  

and apart from this, it is very clear that there is  

absolutely no independent evidence to implicate the  

accused persons for the crime. The evidence of the  

accomplices, PW-50, PW-51 and PW-52 are also rejected

Crl.A.Nos.2295-2296 of 2010         -246-  

for the reasons given in the answer to point no.3.  

Therefore, there is no independent evidence on record  

which corroborates the confessions of the accused  

persons which were subsequently retracted.  

Further, a retracted confessional statement of an  

accused person cannot be used to corroborate the  

retracted confessional statement of a co-accused. In  

the case of Aloke Nath Dutta & Ors. V. State of West  

Bengal59, this Court held as under:  

“110. A retracted confession of a co-accused  cannot be relied upon for the purpose of  finding corroboration for the retracted  confession of an accused....  116. Whatever be the terminology used, one rule  is almost certain that no judgment of  conviction shall be passed on an uncorroborated  retracted confession. The court shall consider  the materials on record objectively in regard  to the reasons for retraction. It must arrive  at a finding that the confession was truthful  and voluntary. Merit of the confession being  the voluntariness and truthfulness, the same,  in no circumstances, should be compromised. We  are not oblivious of some of the decisions of  

59 (2007) 12 SCC 230

Crl.A.Nos.2295-2296 of 2010         -247-  

this Court which proceeded on the basis that  conviction of an accused on the basis of a  retracted confession is permissible but only if  it is found that retraction made by the accused  was wholly on a false premise.......   117. There cannot, however, be any doubt or  dispute 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.  

Crl.A.Nos.2295-2296 of 2010         -248-  

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-A of IPC. On the other hand, it was  

contended by the learned senior counsel for the  

accused persons that neither the common intention nor  

the common object of the accused, i.e attack on  

Akshardham temple in the intervening night between  

24.09.2002 and 25.09.2002, has been established by the  

prosecution.  

To begin with, we intend to reiterate the provisions  

of the relevant section of the IPC.  

Crl.A.Nos.2295-2296 of 2010         -249-  

"120-A- 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."    

Explaining what constitutes the offence of criminal  

conspiracy, it was held by this Court in the case of  

K.R Purushothaman v. State of Kerala60 as under:  

“13. To constitute a conspiracy, meeting of  minds of two or more persons for doing an  illegal act or an act by illegal means is the  first and primary condition and it is not  necessary that all the conspirators must know  each and every detail of the conspiracy.  Neither is it necessary that every one of the  conspirators takes active part in the  commission of each and every conspiratorial  acts. The agreement amongst the conspirators  can be inferred by necessary implication. In  most of the cases, the conspiracies are proved  by the circumstantial evidence, as the  conspiracy is seldom an open affair. The  

60  (2005) 12 SCC 631

Crl.A.Nos.2295-2296 of 2010         -250-  

existence of conspiracy and its objects are  usually deduced from the circumstances of the  case and the conduct of the accused involved in  the conspiracy. While appreciating the evidence  of the conspiracy, it is incumbent on the court  to keep in mind the well-known rule governing  circumstantial evidence viz. each and every  incriminating circumstance must be clearly  established by reliable evidence and the  circumstances proved must form a chain of  events from which the only irresistible  conclusion about the guilt of the accused can  be safely drawn, and no other hypothesis  against the guilt is possible. Criminal  conspiracy is an independent offence in the  Penal Code. The unlawful agreement is sine qua  non for constituting offence under the Penal  Code and not 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 & Ors. & Ors v. Central Bureau of

Crl.A.Nos.2295-2296 of 2010         -251-  

Investigation61 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 offence is complete when the  combination is framed. From this, it  necessarily follows that unless the statute so  requires, no overt act needs be done in  furtherance of the conspiracy, and that the  object of the combination need not be  accomplished, in order to constitute an  indictable offence….”    

As far as the role of each individual accused is  

concerned, it has been established by this Court that  

each individual conspirator need not know the contents  

of the entire conspiracy, or each and every step. It                      

61  (2003) 3 SCC 641

Crl.A.Nos.2295-2296 of 2010         -252-  

is possible that the co-conspirator’s knowledge of the  

conspiracy is limited to his role in the conspiracy,  

and he may have no knowledge about the actions of the  

other co-conspirators. In the case of Yash Pal Mittal  

v. State of Punjab62 it was held by this Court as  

under:  

“9. The offence of criminal conspiracy under  Section 120-A is a distinct offence introduced  for the first time in 1913 in Chapter V-A of  the Penal Code. The very agreement, concert or  league is the ingredient of the offence. It is  not necessary that all the conspirators must  know each and every detail of the conspiracy as  long as they are co-participators in the main  object of the conspiracy. There may be so many  devices and techniques adopted to achieve the  common goal of the conspiracy and there may be  division of performances in the chain of  actions with one object to achieve the real end  of which every collaborator must be aware and  in which each one of them must be interested.  There must be unity of object or purpose but  there may be plurality of means sometimes even  unknown to one another, amongst the  conspirators. In achieving the goal, several  offences may be committed by some of the  conspirators even unknown to the others. The  only relevant factor is that all means adopted  

62 (1977) 4 SCC 540

Crl.A.Nos.2295-2296 of 2010         -253-  

and illegal acts done must be and purported to  be in furtherance of the object of the  conspiracy even though there may be sometimes  misfire or over-shooting by some of the  conspirators. Even if some steps are resorted  to by one or two of the conspirators without  the knowledge of the others it will not affect  the culpability of those others when they are  associated with the object of the conspiracy….”  

It was also observed in the case of Ajay Aggarwal v.  

Union of India & Ors.63 that:  

“8….It is not necessary that each conspirator  must know all the details of the scheme nor 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  

63 1993 (3) SCC 609

Crl.A.Nos.2295-2296 of 2010         -254-  

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 120-B of the  

IPC, 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 object, according to the case of the  

prosecution was to take revenge for the Godhra Riots  

of 2002. But this object is vague, and is not very  

specific and the charge of criminal conspiracy against  

the accused persons cannot be proved on its basis.

Crl.A.Nos.2295-2296 of 2010         -255-  

Further, even the confessional statements of the  

accused persons did not help the prosecution to  

establish the chain of events in pursuance of the  

alleged conspiracy. In fact, they are highly  

contradictory and improbable in nature.  

126. According to the prosecution, as disclosed in the  

confessional statements of A-1, A-2, A-3, A-4 and A-6,  

the conspiracy was hatched in Saudi Arabia, and money  

was delivered to India through havala; the two  

fidayeens were apparently escorted to Ahmedabad by one  

Aiyub Khan and they also brought the arms and  

ammunition with them. It was stated that A-2 then took  

the fidayeens in his auto rickshaw and helped them  

reccie places in Ahmedabad and Gandhinagar, and  

finally helped them in choosing the Akshardham temple  

at Gandhinagar as a suitable place to carry out the  

attack and hence take the revenge against Hindus for  

the Godhra riots. According to the prosecution, A-2

Crl.A.Nos.2295-2296 of 2010         -256-  

also stated that the accommodation of the fidayeens  

was set up at Bavahir Hall.    

Per contra, as per the confessional statement of  

A-6, he was the one who brought the two fidayeens from  

Kashmir, and drove the car with ammunitions from  

Kashmir to Bareilly, and then came to Ahmedabad in a  

train, and carried the ammunitions in bedding. A-6,  

according to the prosecution, was also the one who  

recceied Gandhinagar and Ahmedabad with the two  

fidayeens, before finally settling on Akshardham as  

the site of the attack. A-6 also stated, according to  

the prosecution, that the fidayeens stayed at the  

Gulshan Guest House. Interestingly though, neither A-2  

nor A-6 speak of each other or each other’s role in  

the planning and conspiracy, even though they were  

both seemingly doing the same task, i.e, of arranging  

for the accommodation of the fidayeens, and making  

them reccie the cities of Gandhinagar and Ahmedabad

Crl.A.Nos.2295-2296 of 2010         -257-  

and we wonder how there can be two versions of the  

same event.  

127. It is true that in order to establish criminal  

conspiracy, it is not required of every co-conspirator  

to know the entire sequence of the chain and events,  

and that they can still be said to be conspirators  

even if they are only aware of their limited 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

Crl.A.Nos.2295-2296 of 2010         -258-  

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.   

128. 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 120-B of the IPC. We,  

therefore answer this point in favour of the  

appellants.  

Answer to point no. 9

Crl.A.Nos.2295-2296 of 2010         -259-  

129. Article 136 of the Constitution confers appellate  

jurisdiction on this court, the scope and powers of  

which has been discussed by this court in a catena of  

decisions.  

In the case of Arunachalam v. P.S.R. Sadhanantham &  

Anr.64, Chinappa Reddy, J. observed:  

“4…. Article 136 of the Constitution of India  invests the Supreme Court with a plenitude of  plenary, appellate power over all Courts and  Tribunals in India. The power is plenary in the  sense that there are no words in Article 136  itself qualifying that power. But, the very  nature of the power has led the Court to set  limits to itself within which to exercise such  power. It is now the well established practice  of this Court to permit the invocation of the  power under Article 136 only in very  exceptional circumstances, as when a question  of law of general public importance arises or a  decision shocks the conscience of the Court.  But within the restrictions imposed by itself,  this Court has the undoubted power to interfere  even with findings of fact making no  distinction between judgment of acquittal and  conviction, if the High Court, in arriving at  those findings, has acted "perversely or  otherwise improperly”….”  

64  (1979)2 SCC 297

Crl.A.Nos.2295-2296 of 2010         -260-  

(emphasis laid by this Court)  

While examining as to whether this Court has the power  

to interfere with the concurrent findings of fact  

recorded by the courts below, it was held in the case  

of Indira Kaur & Ors. v. Sheo Lal Kapoor65 as under:  

“7.… Article 136 of the Constitution of India  does not forge any such fetters expressly. It  does not oblige this Court to fold its hands  and become a helpless spectator even when this  Court perceives that a manifest injustice has  been occasioned. If and when the Court is  satisfied that great injustice has been done it  is not only the “right” but also the “duty” of  this Court to reverse the error and the  injustice and to upset the finding  notwithstanding the fact that it has been  affirmed thrice………… It is not the number of  times that a finding has been reiterated that  matters. What really matters is whether the  finding is manifestly an unreasonable, and  unjust one in the context of evidence on  record. It is no doubt true that this Court  will unlock the door opening into the area of  facts only sparingly 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...”  

65 (1988) 2 SCC 488

Crl.A.Nos.2295-2296 of 2010         -261-  

 (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 Gujarat66, 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….”    

66 (1983)3 SCC 217

Crl.A.Nos.2295-2296 of 2010         -262-  

More recently, in the case of Ganga Kumar Shrivastav  

v. State of Bihar67 it was stated while discussing  

previous cases on the subject that, the following  

principles could guide the courts in determining the  

scope of the criminal appellate jurisdiction exercised  

by the Supreme Court, especially on the issue of  

reversing findings of fact by the lower courts:  

“10.  ……  i) The powers of this Court under Article 136  of the Constitution are very wide but in  criminal appeals this Court does not interfere  with the concurrent findings of the fact save  in exceptional circumstances.    ii) It is open to this Court to interfere with  the findings of fact given by the High Court if  the High Court has acted perversely or  otherwise improperly.    iii) It is open to this Court to invoke the  power under Article 136 only in very  exceptional circumstances as and when a  question of law of general public importance  arises or a decision shocks the conscience of  the Court.    

67 (2005)6 SCC 211

Crl.A.Nos.2295-2296 of 2010         -263-  

iv)When the evidence adduced by the prosecution  fell short of the test of reliability and  acceptability and as such it is highly unsafe  to act upon it.      v) Where the appreciation of evidence and  finding is vitiated by any error of law of  procedure or found contrary to the principles  of natural justice, errors of record and  misreading of the evidence, or where the  conclusions of the High Court are manifestly  perverse and unsupportable from the evidence on  record  

130. From the aforementioned two cases, the legal  

principles laid down regarding the scope and ambit of  

exercise of this Court’s power, it is clear that even  

though the powers under Article 136 must be exercised  

sparingly, yet, there is absolutely nothing in the  

Article which prohibits this Court from reversing the  

concurrent findings of fact by the courts below, if it  

is of the opinion on the basis of the evidence on  

record, that affirming the findings of the courts  

below will result in a grave miscarriage of justice.  

Moreover, it has been held by this Court in the case

Crl.A.Nos.2295-2296 of 2010         -264-  

of Mohammad Ajmal Mohammad Amir Kasab v. State of  

Maharashtra68 that if the case is of death sentence,  

this Court can exercise its power to examine material  

on record first hand and come to its own conclusion on  

facts and law, unbound by the findings of the Trial  

Court and the High Court.  

131. Here, we intend to take note of the perversity in  

conducting this case at various stages, right from the  

investigation 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  

68 (2012) 9 SCC 1

Crl.A.Nos.2295-2296 of 2010         -265-  

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.  

• A-1 to A-5 were arrested on 29.08.2003.   

• POTA was invoked on 30.08.2003.  

• The I.G.P. Kashmir sends a fax message to  I.G.P. operations ATS Gujarat state on  31.08.2003 regarding A-6 being in the custody  of Kashmir Police and that he has stated that  he was involved in the Akshardham attack.   

• A-6 was brought to Ahmedabad on 12.09.2003 and  was arrested at 9:30 p.m.  

Crl.A.Nos.2295-2296 of 2010         -266-  

• A-1 and A-3 confessed on 17.09.2003.  

• A-2 and A-4 confessed on 24.09.2003.  

• A-6 confessed on 05.10.2003.   

• A-6 was brought to Ahmedabad on 12.09.2003 and  was arrested at 9:30 p.m.   

A careful observation of the above said dates would  

show that the ATS was shooting in the dark for about a  

year without any result. No trace of the people  

associated with this heinous attack on the Akshardham  

temple could be found by the police. Then on the  

morning of 28.03.2003, the case is transferred to  

Crime Branch, Ahmedabad. This was followed by D.G.  

Vanzara giving instructions to the then-ACP G.S.  

Singhal (PW-126) about one Ashfaq Bhavnagri (PW-50).  

PW-126 was thereafter made in charge of the case on  

the same evening at 6:30 p.m. and the statement of PW-

50 was recorded at 8 p.m., i.e within one and a half  

hours. This shrouds our minds with suspicion as to why  

such a vital witness- D.G. Vanzara, who discovered the

Crl.A.Nos.2295-2296 of 2010         -267-  

link to the accused persons, was not examined by the  

Special Court (POTA). The courts below accepted the  

facts and evidence produced by the police without  

being suspicious about the extreme coincidences with  

which the chain of events unfolded itself immediately  

that is, within 24 hours of the case being transferred  

to the Crime Branch, Ahmedabad.   

132. We are reminded of the legendary lines of Justice  

Vivian Bose in the case of Kashmira Singh’s case  

(supra) wherein he cautioned that:  

“2. The murder was a particularly cruel and  revolting one and for that reason it will be  necessary to examine the evidence with more  than ordinary care lest the shocking nature of  the crime induce an instinctive reaction  against the dispassionate judicial scrutiny of  the facts and law.”  

(emphasis laid by this court)  

The courts below have not examined the evidence with  

‘more than ordinary care’. Firstly, the Special Court

Crl.A.Nos.2295-2296 of 2010         -268-  

(POTA) accepted the justification made by the  

prosecution in sending the accused persons to police  

custody after being produced before the CJM on the  

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.  

Crl.A.Nos.2295-2296 of 2010         -269-  

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 Court (POTA) however, did not find it  

imperative to examine why the letters recovered from  

the pockets of the trousers of the fidayeens were  

spotless. It admitted the letters as evidence merely  

on the basis of the confessional statement of A-4 who  

had, in his statement recorded that he had written the  

letters and had also kept the pen to prove that the  

letters were written with the same pen. The Special  

Court (POTA) also admitted the letters as evidence on  

the ground that signatures of Brigadier Raj Sitapati

Crl.A.Nos.2295-2296 of 2010         -270-  

as per the statement of PW-91 Major Lamba, were  

present on those letters. The High Court admitted the  

letters as evidence on the ground that “truth is  

stranger than fiction” by overlooking not only the  

most impossible fact that the letters marked by the  

police were spotless, but also ignoring the evidence  

of PW-105 who in his deposition recorded that there  

were no signatures of Brigadier Sitapati or anyone  

else on the letters when they were handed over to PW-

126.   

133. Another error of the courts below is reflected in  

the fact that they have not given the same weightage  

to the defence witnesses as they have to the  

prosecution witnesses. The learned senior counsel for  

the accused persons contended that the courts below  

should have given same weigthage to the evidence of  

the defence witnesses as that of the prosecution  

witnesses. However, the evidence of DW-3 was not only

Crl.A.Nos.2295-2296 of 2010         -271-  

discarded but also not mentioned in the decision of  

the Special Court (POTA). DW-3 stated as under:  

“Nazneen Bastawala was a Municipal Corporator  in Dariyapur area in the year 2003. All those  were arrested on 25.8.2003 under POTA.  Therefore, a rally was organized for going from  Dariyapur Lake to Kalupur. 200-300 women  gathered near Dariyapur Talawadi at ten o clock  in the morning. While we were going for rally,  police made lathi charges and Nazneen was  forced to sit in vehicle.  ….  Thereafter, we were taken to the Office of the  Commissioner at Shahibag in vehicle. Police  personnel said that you have to engage advocate  for obtaining bail. We were taken to Court no.  10 from there at Meghaninagar. Nazneen Ben  called an advocate by making a phone and  thereafter we were released on bail at about 5  o’ clock in the evening on the relevant day.   ….  The persons who were taken from Dariyapur  Kalupur under POTA were- Maulvi Ahmed, Maulvi  Abdulla, Mufti Kayum and many such people. 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

Crl.A.Nos.2295-2296 of 2010         -272-  

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 to one caste. Mufti  Kayum is my neighbour. There is distance of two  or three minutes between our houses. …..Mother  of Mufti Kayum met me and she told that they  have been taken and no one is released and  therefore, a rally is required to be arranged.  There were two vehicles of police. Fifty or  sixty women went in them and the rest of them  had left.”    

(emphasis laid by this Court)     

(translation extracted from the Additional  documents submitted on behalf of the  

appellants)   

Crl.A.Nos.2295-2296 of 2010         -273-  

It has been held by this Court in a catena of  

cases that while examining the witnesses on record,  

equal weightage shall be given to the defence  

witnesses as that of the prosecution witnesses.  In  

the case of Munshi Prasad & Ors. v. State of Bihar69,  

this Court held as under:  

“3..…Before drawing the curtain on this score  however, we wish to clarify that the evidence  tendered by the defence witnesses cannot always  be termed to be a tainted one by reason of the  factum of the witnesses being examined by the  defence. The defence witnesses are entitled to  equal respect and treatment as that of the  prosecution. The issue of credibility and the  trustworthiness ought also to be attributed to  the defence witnesses on a par with that of the  prosecution - a lapse on the part of the  defence witness cannot be differentiated and be  treated differently than that of the  prosecutors' witnesses.”     

(emphasis laid by this Court)    

69 (2002) 1 SCC 351

Crl.A.Nos.2295-2296 of 2010         -274-  

Further, it has been held in the case of State of  

Haryana v. Ram Singh70 as under:  

“19. …………Incidentally, be it noted that the  evidence tendered by defence witnesses cannot  always be termed to be a tainted one — the  defence witnesses are entitled to equal  treatment and equal respect as that of the  prosecution. The issue of credibility and the  trustworthiness ought also to be attributed to  the defence witnesses on a par with that of the  prosecution. Rejection of the defence case on  the basis of the evidence tendered by the  defence witness has been effected rather  casually by the High Court. Suggestion was  there to the prosecution witnesses, in  particular PW 10 Dholu Ram that his father  Manphool was missing for about 2/3 days prior  to the day of the occurrence itself — what more  is expected of the defence case: a doubt or a  certainty — jurisprudentially a doubt would be  enough: when such a suggestion has been made  the prosecution has to bring on record the  availability of the deceased during those 2/3  days with some independent 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.”    

70 (2002) 2 SCC 426

Crl.A.Nos.2295-2296 of 2010         -275-  

 (emphasis laid by this Court)  

Also, in the case of State of U.P. v. Babu Ram71, 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, instinctive disbelief in  defence witnesses.”  

22. We may quote the succeeding sentence also  from the said decision for the sake of  completion of the observations of their  Lordships on that score. It is this: “Quite  often they tell lies but so do the prosecution  witnesses.”  23. Depositions of witnesses, whether they are  examined on the prosecution side or defence  

71 (2000) 4 SCC 515

Crl.A.Nos.2295-2296 of 2010         -276-  

side or as court witnesses, are oral evidence  in the case and hence the scrutiny thereof  shall be without any predilection or bias. No  witness is entitled to get better treatment  merely because he was examined as a prosecution  witness or even as a court witness. It is  judicial scrutiny which is warranted in respect  of the depositions of all witnesses for which  different yardsticks cannot be prescribed as  for those different categories of witnesses. ”  

 (emphasis laid by this Court)  

134. The courts below had ignored these basic legal  

principles while admitting the statement of witnesses  

while weighing the case against the accused persons.  

While the decision of the Special Court (POTA) found  

mention of DW-1, DW-2, DW-4, DW-5 and DW-6, the  

evidence of DW-3 which indicated that some of the  

accused persons might have actually been detained in  

police custody much before the official date of  

arrest, had been completely overlooked.   

Crl.A.Nos.2295-2296 of 2010         -277-  

However, FIR-ICR No. 3090 of 2003 (Ex.733) in the  

present case shows that DW-3 was arrested along with  

some other women under Section 188 IPC for protesting  

against detention of some persons from their area.  

This, read with the notification G.P.K./V.S./774/2003  

by the Police Commissioner Ahmedabad City holding that  

from date 16.08.2003 00/00 hrs. to 31.08.2003 at 24.00  

hrs., not more than four persons shall gather for  

holding or calling any meeting or shall take out any  

procession, indicates a story under the layers of  

truth which the police has managed to suppress and the  

courts below overlooked.    

Therefore, according to us, this is a fit case  

for interference by this Court under Article 136 of  

the Constitution, as we are of the firm view that the  

concurrent findings of fact of the Special Court

Crl.A.Nos.2295-2296 of 2010         -278-  

(POTA) and the High Court are not only erroneous in  

fact but also suffers from error in law.  

Answer to point no. 10  

135. On the basis of the issues we have already  

answered above based on the facts and evidence on  

record and on the basis of the legal principles 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.

Crl.A.Nos.2295-2296 of 2010         -279-  

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. However, we  

intend to absolve him of the stigma he is carrying of  

that of a convict, wrongly held guilty of offences of  

terror so that he is able to return to his family and  

society, free from any suspicion.  

Crl.A.Nos.2295-2296 of 2010         -280-  

136. Before parting with the judgment, we intend to  

express our anguish about the incompetence with which  

the investigating agencies conducted the investigation  

of the case of such a grievous nature, involving the  

integrity and security of the Nation. 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.  

137. We allow the appeals accordingly by setting aside  

the judgment and order of Special Court (POTA) in POTA  

case No. 16 of 2003 dated 01.07.2006 and the impugned  

common judgment and orders 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.

Crl.A.Nos.2295-2296 of 2010         -281-  

Accordingly, we acquit all the appellants in the  

present appeals, of all the charges framed against  

them. The appellants who are in custody shall be set  

at liberty forthwith, if they are not required in any  

other criminal case. We also set aside the conviction  

and sentence awarded to A-1, though he has already  

undergone the sentence served on him. All the  

applications filed in these appeals are accordingly  

disposed of.  

………………………………………………………J.                                [A.K. PATNAIK]          

  …………………………………………………………J.                        [V. GOPALA GOWDA]  

        May 16, 2014  NEW DELHI