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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE/ ORIGINAL JURISDICTION

CRIMINAL APPEAL NOS.140­151 OF 2012

CENTRAL BUREAU OF INVESTIGATION & ANR. … APPELLANTS

VERSUS

MOHD. PARVEZ ABDUL KAYUUM ETC. … RESPONDENTS

WITH

CRIMINAL APPEAL NOS. 981­982  OF 2019 (Arising out of Special Leave Petition Nos.9028­9029 of 2016)

CRIMINAL APPEAL NOS.83­94 OF 2012

CRIMINAL APPEAL NO.  983 OF 2019 (Arising out of Special Leave Petition No.5530 of 2017)

AND

WRIT PETITION (CRIMINAL) NO.26 OF 2019

J U D G M E N T

ARUN MISHRA, J.

1. The facts, in  short, envisage that initially two  separate  cases

were registered by  local  Police relating to the murder of  Mr.  Haren

Pandya, ex­Home Minister for the State of Gujarat on 26.3.2003 and

an attempt on the life of Mr. Jagdish Tiwari, a Viswa Hindu Parishad

(VHP)  leader of  Ahmedabad on 11.3.2003. The case of  murder was

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initially registered on the basis of a complaint brought by Mr. Janak

Singh Parmar, vide  FIR  bearing I­C.R.  No.272/2003  at  Ellisbridge

Police Station, Ahmedabad, on 26.3.2003. After two days, the

Government of Gujarat appointed the CBI to investigate the matter on

28.3.2003.  Later  on  the case of  attempt to  murder of  Mr.  Jagdish

Tiwari was also handed over to CBI and it was registered on 2.6.2003.  

2. The evidence collected during the investigation in the cases

revealed that both the incidents were part of the same transaction and

in pursuance of a well­designed common conspiracy, they were

committed. The motive was to spread terror amongst the Hindus. It

was a part of an international conspiracy. Mr. Haren Pandya was a

BJP leader who earlier held the post of Home Minister. He had played

an active role in post­Godhra riots at Ahmedabad. It was alleged that

he had led a mob which demolished a Masjid at Paldi  locality and

resisted its reconstruction. One Mufti Sufiyan, absconding accused, a

preacher at Lal Masjid at Ahmedabad used his oratory skills, doctored

video  CDs. depicting atrocities committed on  Muslims and spread

radical Islamic literature to instigate and inculcate a strong feeling of

hatred and retribution amongst the members of the Muslim

community against  members of the  Hindu community after post­

Godhara riots.  Said  Mufti  Sufiyan in  association  with  Rasul  Khan

Party, a defamed absconding accused of Ahmedabad allegedly, at

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present residing at  Karachi (Pakistan), and other close associates,

Suhail Khan Pathan, also absconding accused and Anas Machiswala

(A­5) conspired to avenge the atrocities and implemented the same in

the form of a series of violent incidents. There was an incident of tiffin

bombs being planted in AMTS buses of Ahmedabad city on 29.5.2002

by a number of Muslim youths which prompted Mufti Sufiyan, Sohail

Khan Pathan and others. They  planned for larger conspiracy and

contemplated incumbents to be sent for terrorist activities. In

furtherance, thereof several youths from Ahmedabad and Hyderabad

had been sent to Pakistan in groups for arms training with a view to

indulge them in terrorist activities of larger magnitude on their return.

Some of them had passports and others allegedly crossed the Indo­

Bangla Border illegally and went to Pakistan where they obtained the

training in the use of pistols, rifles, LMG, SLR, hand grenades,

explosive devices, recce, deceptions, etc. They were sent for the

purpose  of training  and after  obtaining the  same  they returned  to

Ahmedabad in January 2003 and March 2003.           

3. Rasul  Khan  @  Suleman  before shifting to  Karachi (Pakistan)

resided at Hyderabad. He motivated Mohmed Abdul Rauf (A­2), a local

politician to participate in the conspiracy to avenge the alleged

atrocities committed on the Muslims in Gujarat and create terror in

the minds of members of Hindu community. On Suleman's instance,

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Mohmed Abdul Rauf selected, motivated and sent 14 boys from

Andhra Pradesh for arms training to Pakistan which included Asghar

Ali (A1) a known criminal of Hyderabad. They were trained in Pakistan

and were motivated to work in Gujarat and create terror. Asghar Ali

wanted to  commit  big terror  act  and wanted to  shift  ultimately to

Pakistan. He acted as per the advice of Rasul Khan and Mufti Sufiyan

and went to Udaipur from where he reached Ahmedabad. Asghar Ali

(A1) motivated his friend Mohmed Shafiuddin, a resident of Nalgonda,

Andhra Pradesh to join him at Ahmedabad. Conspirators decided to

finish Mr. Jagdish Tiwari in the first instance who allegedly played a

leading role during the post­Godhra riots. It was decided that Asghar

Ali and  his friend  Mohmed  Shafiuddin  with the necessary logistic

support given by other conspirators, shall attack Mr. Jagdish Tiwari

on 11.3.2003.

4. A few days after the incident on 11.3.2003 a  meeting was

arranged which was attended by Mufti Sufiyan and others to eliminate

Mr. Haren Pandya and it was conveyed to other conspirators by Sohail

Khan on 17/18.3.2003 the minute aspects of the execution of the plan

were finalised resulting into execution of the same by Asghar Ali (A1)

on 26.3.2003 with the support of other accused persons at 7.30 a.m.

opposite Law Garden. During the investigation as the conspiracy was

revealed, provisions of the Prevention of Terrorism Act, 2002 (in short

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‘POTA') had been invoked and accordingly, information was sent to the

concerned Magistrate. The cases were made over to the Special Court

under the  POTA.  A joint charge sheet  was filed in the  matter on

8.9.2003.  

5. Four accused persons were absconding that is A­13, A­14, A­18

and A­19 hence no charges could be framed against them whereas

other accused persons were charged for commission of offence

punishable  under sections  120B,  302,  307,  201 read  with  section

120B of the Indian Penal Code, 1860 (for short, “the IPC”) and sections

25(1)(B)(a), 27(1) and section 5 of the Arms Act, 1959 (for short, “the

Arms Act”) and under sections 3(1), 3(2), 3(3), 3(4) and section 4 of

POTA. The accused persons abjured their guilt. The trial court

proceeded with the trial of 12 accused persons. The prosecution

examined in all  122 witnesses. A plethora of documentary evidence

has been filed. Statements of accused persons  under section  313

Cr.P.C. have been recorded. They denied the charges and urged that

the confessional statements have been recorded against each of them

forcibly and there is no element of voluntariness in the same. The case

has been manufactured against them to shield the real culprits.  In

defence 8 witnesses have been examined. The conviction and sentence

imposed by  the  trial  court  as  modified by the High Court  and the

period have undergone is as under:

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Name of  the  Accused

Conviction and sentence imposed  by the Ld. Trial Court

Conviction and  sentence by the  High Court

Sentence undergone

Mohmed  Asgar Ali  [A­1]

Convicted u/s 3(1) r/w 3(3), S.4 r/w  S.3(3) of POTA as well as u/s 120­B of IPC and u/s.120­B r/w 302 IPC and  u/s 120­B r/w 307 of IPC. Also convicted u/s 25(1­b)(a) and  27(1) of Arms Act. The sentence for the offence: u/s 120­B r/w 302, life imprisonment for twenty years. U/s 120­B r/w 307 – imprisonment of 10 years. U/s 4 of POTA – Rigorous  imprisonment of seven years. U/s 25 (1­b)(a) of Arms Act – five years u/s 27(1) of Arms Act – rigorous  imprisonment for seven years

Sentence awarded by Trial Court u/s 307  r/w 120­B of IPC,  u/s 4 r/w 3(2)(b) of  POTA and section  25[1­b](A) and  section 27(1) upheld.

Acquitted for offence  u/s 120­B r/w 302  IPC and u/s 3(1)  punishable u/s 3(2) (a) of POTA.

8 years

Mohmed  Abdul Rauf  [A­2]

Convicted u/s 3(3) of POTA. Sentence of rigorous imprisonment of  7 years.

Conviction confirmed and maintained, fine upheld, rigorous  imprisonment of  modifies and  reduced to the period already undergone  by him in jail.

5 years

Mohmed  Shafiuddin  [A­3]

Convicted u/s 120­B r/w 307 of IPC. Sentence of rigorous imprisonment of  seven years.

Conviction u/s 120­ B r/w 307 of IPC  confirmed.

Completed  the  sentence  period

Kalim  Ahmed @  KamiMulla  [A­4]

Convicted u/s 3(1) r/w 3(3) of POTA  as well as u/s 120­B of IPC and u/s  120­B r/w 302 IPC and u/s 120­B  r/w 307 of IPC. Sentence of life imprisonment.

Acquitted for  punishment u/s  120­B r/w 302 of  IPC and u/s 3(1)  punishable u/s 3(2) (a) of POTA.

Conviction u/s 3(3)  of POTA confirmed  and maintained and  the imprisonment is  modified and  reduced to the period

Undergoing  life  imprisonme nt in  another  case  (Tiffinbox  blast case)

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undergone by him in jail.

Anas  Machiswala [A­5]

Convicted u/s 3(1) read with 3(3) of  POTA as well as u/s 120­B of IPC and  u/s 120­B r/w 302 IPC and u/s 120­ B r/w 307 of IPC. Also convicted u/s 4 r/w s.3(3) of  POTA and u/s 25(1­b)(a) of Arms Act. Sentence of life imprisonment. U/s 4 of POTA rigorous imprisonment  for five years. U/s 25(1­b)(a) of Arms Act five years.

Acquitted for  punishment u/s  120­B r/w 302 of  IPC and u/s 3(1)  punishable u/s 3(2) (a) of POTA on the  same grounds that  the same was not  proved beyond a  reasonable doubt.

Mohmed  Yunus  Sareshwala

Convicted u/s 3(1) read with 3(2) of  POTA as well as u/s 120­B of IPC and  u/s 120­B r/w 302 IPC and u/s 120­ B r/w 307 of IPC. Also convicted u/s 4 r/w s.3(3) of  POTA and u/s 25(1­b) (a) of Arms Act. Sentence of life imprisonment. u.s 4 of POTA rigorous imprisonment  for five years. U/s 25(1­b)(a) of Arms Act five years.

Acquitted for  punishment u/s  120­B r/w 302 of  IPC and u/s 3(1)  punishable u/s 3(2) (a) of POTA.

Conviction recorded  by Trial Court for the offences punishable  under section 4 of  the POTA and  section 25[1­b](a) of  the Arms Act and  sentence awarded to  him is confirmed and maintained.

8 years  without  parole

Rehan  Puthawala  [A­7]

Convicted u/s 3(1) read with 3(3) of  POTA as well as u/s 120­B of IPC and  u/s 120­B r/w 302 IPC and u/s 120­ B r/w 307 of IPC. Sentence of Life imprisonment.

Acquitted for  punishment u/s  120­B r/w 302 of  IPC and u/s 3(1)  punishable.  Conviction u/s 3(3)  of POTA confirmed  and maintained and  the imprisonment is  modified and  reduced to the period already undergone in jail.

8 years  without  parole

Mohmed  Riyaz [A­8]

Convicted u/s 3(1) read with 3(3) of  POTA as well as u/s 120­B of IPC and  u/s 120­B r/w 302 IPC and u/s 120­ B r/w 307 of IPC.

Acquitted for  punishment u/s  120­B r/w 302 of  IPC and u/s 3(1)  

8 years  without  parole

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Sentence of life imprisonment punishable u/s 3(2) (a) of POTA on the  grounds that the  same was not proved beyond a reasonable  ground. Conviction u/s 3(3)  of POTA confirmed  and maintained and  the imprisonment is  modified and  reduced to the period already undergone in jail.

Mohmed  Parvez  Shaikh [A­ 9]

Convicted u/s 3(1) read with 3(3) of  POTA as well as u/s 120­B of IPC and  u/s 120­B r/w 302 IPC and u/s 120­ B r/w 307 of IPC.  Sentence of life imprisonment

Acquitted for  punishment u/s  120­B r/w 302 of  IPC and u/s 3(1)  punishable u/s 3(2) (a) of POTA.

Conviction u/s 3(3)  of POTA confirmed  and maintained and  the imprisonment is  modified and  reduced to the period already undergone in jail.

8 years  without  parole

Parvez  Khan  Pathan [A­ 10]

Convicted u/s 3(1) read with 3(3) of  POTA as well as u/s 120­B of IPC and  u/s 120­B r/w 302 IPC and u/s 120­ B r/w 307 of IPC.  Sentence of life imprisonment

Acquitted for  punishment u/s  120­B r/w 302 of  IPC and u/s 3(1)  punishable u/s 3(2) (a) of POTA.

Conviction u/s 3(3)  of POTA confirmed  and maintained and  the imprisonment is  modified and  reduced to the period already undergone in jail.

8 years  without  parole

Mohmed  Convicted u/s 3(1) read with 3(3) of  Acquitted for  8 years

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Faruq [A­ 11]

POTA as well as u/s 120­B of IPC and  u/s 120­B r/w 302 IPC and u/s 120­ B r/w 307 of IPC. Sentence of life imprisonment

punishment u/s  120­B r/w 302 of  IPC and u/s 3(1)  punishable u/s 3(2) (a) of POTA. Conviction u/s 3(3)  of POTA confirmed  and maintained and  the imprisonment is  modified and  reduced to the period already undergone in jail.

without  parole

Shahnavaz  Gandhi [A­ 12]

Convicted u/s 3(1)  3(3) of POTA. Sentence of Rigorous imprisonment  for five years.

Conviction and  sentence u/s 3(3) of  POTA is confirmed  and maintained.

Completed  the  sentence  period.

6. The High Court on appeal has dismissed the appeal with respect

to conviction  under section 307  read  with  section  120­B, IPC and

section 4 read with section 3(2)(b), section 3(3) of POTA and section

25(1)(B)(a), section  27(1) of  Arms  Act.  However, it  has  allowed the

appeals in part and set aside the judgment of conviction with respect

to the murder of Haren Pandya for the offence registered under section

302 read with section 120­B of  IPC and section 3(1) of POTA against

all the accused persons. The CBI has come up in appeals with respect

to the murder of Mr. Haren Pandya.  

7. It is pertinent to mention that as against accused A­2, Mohmed

Abdul Rauf son of  Mohmed Abdul Kadar and A­12, Shah  Navaz

Gandhi son of Mohmed Gandhi, the trial court held them guilty for

offence under section 3(3) of POTA and has given the benefit of doubt

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of all other offences under the POTA as well as under the IPC. A­3,

Mohmed Shafiuddin  son  of  Late  Yusuf  Ali  was  held  guilty for the

offence punishable under section 120B read with section 307 IPC, and

was given the benefit of doubt for all the offences he has been charged

with under the POTA as well as under the IPC. Against the acquittal of

aforesaid 3 persons under various sections, admittedly, no appeal was

preferred by the CBI before the High Court. Against the conviction of

A­2­Mohmed Abdul Rauf son of Mohmed Abdul Kadar under section

3(3) of POTA, the question for consideration before this Court is

whether the sentence imposed by the trial  court under section 3(3)

was proper or the sentence reduced by the High Court on appeal by

accused.

8.  As per the prosecution case, as reflected in the common charge

sheet, the two cases are the outcome of deep­rooted criminal

conspiracy to cause communal disharmony and to create fear in the

Hindu community. The prosecution has alleged as under:

(i) A meeting was held in April/ May 2002 at Lal Masjid which

was  attended  by  Mufti  Sufiyan (A­13  absconding  accused), a

Muslim Cleric (Kaleem Ahmed, A­4) and Anas Machiswala (A­5).

During the said meeting, A­13 urged the persons present there

to avenge the killing of Muslims during the riots and strike terror

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in the  minds  of the  Hindu community  by  committing  violent

acts. It is to  be  noted that  A­13 exploited the  sentiments of

Muslims by showing them doctored videos and CDs. and

literature showing dead bodies of victims of Naroda Patia, burnt

houses, dead bodies, plundered  mosques, etc. and the said

material has been duly recovered during the investigation.

(ii) In furtherance of criminal conspiracy on 29.5.2002, tiffin

box bombs were planted in crowded buses destined for Hindu

localities by A­4, A­5 with the assistance of Mohd. Yunus, Abdul

Rahim  Sarshewala (A­5), Rehan  Abdul  Maji Puthawala (A­7),

Mohd. Riaz (A­8), Mohd. Parvel Abdul Qayum Sheikh (A­9),

Shahnawaj Gandhi (A­12) and others. Accordingly, POTA Case

No.7 & 9 were registered and pertinently, A­4 and A­5 have been

convicted by the High Court in the aforesaid case and they are

undergoing life imprisonment in the aforesaid matter.

(iii) In  September­October,  2002  accused  Rasool  Khan Party

(A­18­absconding), a wanted criminal of Ahmedabad while living

in Hyderabad  from 1994 till  2002 came  in  touch with Mohd.

Abdul  Rauf (A­2)  and  instigated  him  to  send Muslim boys  to

Pakistan for training in arms. A­2 accordingly selected 14 boys

which include Asghar Ali (A­1), a notorious criminal in about 10

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cases  in Hyderabad and  they were  sent to  Pakistan  for  arms

training.  

(iv) In November 2002, A­5, A­14, and A­12 were sent to

Pakistan via Mumbai and Dubai.

(v) After returning from Pakistan, A­1 reached  Udaipur on

31.12.2002 and stayed at Muslim Musafarkhana. After staying

for some time, he returned to Hyderabad due to paucity of fund

where he again received a message from A­18 through emails

directing him to reach Udaipur and contact PW­29. He

accordingly returned to Udaipur on 20.1.2003.

(vi) On 24.1.2003, PW­49, along with A­11 and A­13 went to

Udaipur in a silver­colored Tata Indica car of PW­38 and brought

A­1 to Ahmedabad. Later, towards the end of January/beginning

of  February,  A­1 and A­3 were shifted to Flat No.  401,  Royal

Apartment, Rakhial by A­10 and A­11. Sometime before

5/6.3.2003, a meeting was held at Lal Masjid and it was decided

to kill Jagdish Tiwari (PW­39). A­14 took A­1 and A­3 to the shop

of A­4 where they were introduced with A­4 and A­5. A­4 handed

over two pistols each to A­1 and A­3 with live cartridges. Around

9.3.2003, A­10 pointed out Jagdish Tiwari at his shop to A­1,

and on 9.3.2003, a meeting was held at Jaliwali Masjid where A­

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14 disclosed that Jagdish Tiwari would be their next target. A­1

and A­3 waited for the arrival of Jagdish Tiwari to kill him, but

he did not pass through the scheduled route.

(vii) Thereafter, on 11.3.2003, at around 9.15 PM, A­1 and A­3

went to the shop of PW­39 (Jagdish Tiwari) and asked for a strip

of the sorbitrate tablet. When PW­39 bent down to take out the

said strip, A­1 fired his pistol at him, which hit the metal buckle

of his belt, and after ricocheting, entered his body near his navel.

(viii) Sometime later, on  15/16.3.2003,  A­13, in consultation

with A­14 disclosed to A­5 that the next target would be Haren

Pandya, who used to come to Law  Garden for a walk. On

17/18.3.2003, at a meeting at Juni Jama Masjid, it was

disclosed that Haren Pandya was the next target. On 22.3.2003,

another  meeting  was  held at Juni  Masjid.  On 23.3.2003, at

around 7 a.m., A­9 and A­6 then visited the Law Garden where

A­1 also joined them, but they could not see Haren Pandya.   

(ix) On 24.3.2003, A­9 visited Law Garden in the morning on his

motorcycle and saw Haren Pandya. He noted down the number

of the vehicle that Haren Pandya was in, as GJ­1AP­4606. Later,

a meeting was held near Juni Jama Masjid.

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(x) An unsuccessful attempt was made to kill Haren Pandya

on 25.3.2003. Again, the next day on 26.3.2003, Haren Pandya

was killed.  

9. On receiving information, an FIR was registered by PW­101 at

Ellisbridge Police Station. Police patrol jeep came around 10.40 a.m.

followed by the arrival  of  PW­101 from Navrangpura Police Station.

The deceased Haren Pandya was immediately taken to the nearby V.S.

Hospital. Simultaneously, PW­1 lodged a complaint with PW­101

regarding the murder of Haren Pandya. At 11.30 a.m. the same was

registered  at  Ellisbridge  PS.  The inquest  was  prepared  by  PW­101

followed by post  mortem of  deceased by a  panel  of  4  doctors  held

between 2.15 p.m. and 4.50 p.m. on the same day. Inquest of  the

crime scene was prepared by PW­101 and statement of eye­witness

PW­55 was also recorded the same day.

10. After transfer of investigation to the CBI on 28.3.2003, the

accused persons were arrested and their confessional statements were

recorded under section 32 of POTA from which as per the prosecution

are the modus operandi and criminal conspiracy is amply proved.

11. On  2/3.9.2003, a letter  was  written to the  Commissioner of

Police,  Ahmedabad  for  according  sanction under  Section  39 of the

Arms Act in respect of A­1 (Mohmed Asghar Ali), A­3 (Mohmed

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Shafiuddin), A­5 (Anas Machiswala) and A­6 (Mohmed Yunus

Sareshwala) (Exhibit 684).   On 5.9.2003, the sanction of the

Commission of Police, Ahmedabad, under Section 39 of the Arms Act

was accorded (Exhibit 685). On 6.9.2003,  Government of Gujarat

accorded sanction under Section 50 of the POTA for prosecuting

accused persons (Exhibit 697). On 8.9.2003, combined charge­sheet

was filed against A­1 to A­19 in the Court of  Special  Judge, POTA

Cases, Ahmedabad. On 29.8.2005, A­15, A­16 and A­17 were

exonerated by the Central POTA Review Committee and their trial was

separated.   As many as 122 witnesses were examined by the

prosecution in order to substantiate the charges against the accused

persons.  On 25.6.2007, two court  witnesses were  examined by the

Court and defence had examined eight witnesses. The learned Special

Judge (POTA) vide judgment  dated  29.8.2011 convicted  all the  12

accused persons.   Nine of them were awarded life imprisonment and

the remaining three were awarded sentences ranging from 5 to 7 years

rigorous imprisonment. The High Court has acquitted all the accused

persons from the charge under Section 302 IPC.

SUBMISSIONS ON BEHALF OF CENTRAL BUREAU OF INVESTIGATION (C.B.I.)

12. The prosecution submitted that confessional statements are

corroborated in material particulars by the other evidence. On behalf

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of the CBI,  Mr.  Tushar Mehta  learned Solicitor  General  urged that

prosecution has proved the offences. The trial court had the advantage

of looking at the demeanour of the witnesses.   He has urged

arguments on the following aspects:

A: Larger Conspiracy:

(i) The prosecution by leading cogent evidence proved to hatch of

larger criminal conspiracy between all the accused persons along

with the absconding accused persons to kill Shri Haren Pandya

(deceased) who was a Hindu leader in the aftermath of Godhra

riots to strike terror in a section of people viz. Hindus, thereby

committing an offence under section 3(1) of POTA and section

120­B of IPC.

(ii) Confessions of the accused persons recorded under section

32 of POTA amply prove the role of every accused person in a

criminal conspiracy.  

(iii) Confessions of all the accused persons recorded under

section 32 of  POTA are  voluntary  and thus the same can be

relied upon.

(iv) All the safeguards as provided under section 32 of POTA

have been duly complied with at the time of recording of

confessions and thus the same is admissible in evidence.

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(v) Subsequent retraction  of confessional statements  by the

accused persons is of no consequence.

(vi) Tiffin box blast in POTA Case Nos.7 & 9 of 2003 and the

conviction of A­4 & A­5 in the said POTA case, not only proves

their criminal antecedents but it is also a material event in the

chain  of events  with respect to criminal conspiracy to create

terror among Hindus by violent means.  

(vii) Attack on Sh. Jagdish Tiwari (PW­39) by A­1 using a firearm

along with A­3 in conspiracy with the other accused persons,

whose conviction under section 307 read with 120­B have also

been upheld by the High Court forms part of the same chain of

criminal conspiracy to create terror in the community of Hindus.

(viii) Call records of the accused persons during the entire period

of conspiracy and the tower location of the phones of the

accused persons near the Law Garden on the day of the murder

of the deceased is a piece of strong circumstantial evidence

against the accused persons.   

(B) It  was further urged that the prosecution by leading cogent

evidence proved that in pursuance of the said criminal conspiracy, A­1

(Asghar  Ali) committed  murder of the deceased on  26.3.2003 and

therefore all the accused persons committed offences under section

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302 IPC to read with section 120B IPC and offences under section 3(1)

and 3(3) of POTA. In this regard the following points have been urged:

(a) PW­55 who is an eye witness stated to have seen A­1 shooting

the deceased is a reliable and truthful witness.  

(b) Post mortem report which was conducted by a panel of 4

doctors, which was duly proved by Dr. Pratik Patel (PW­8) proved

7 gunshot injuries on the body of deceased caused by 5 bullets.

(c) The forensic and biological report proves the presence of

blood of the deceased inside the car.

(d) The weapon used by A­1 in the murder of the deceased and

the clothes worn by A­1 at the time of the commission of the

offence was duly recovered at the instance of A­1 from Kamar

Flats.

(e) PW­75 ballistic expert duly proved that the bullets

recovered from  the  body  of the  deceased  were fired from  the

same revolver which was recovered at the instance of A­1.  

(f) The  motorbike used by A­1 and A­6 at the time of the

commission of murder of the deceased was duly recovered.  

(g) PW­55 who is an eye witness to the murder of the deceased

and PW­39, who is an injured witness of the attempt to murder

of his own life, duly identified A­1 as the assailant in the test

identification parade before the Executive Magistrate (PW­14).

19

(h) The commission of the offence of attempt to  murder on

Jagdish Tiwari (PW­39) by A­1 along with A­3 by using a firearm

on  6.3.2003,  which offence is duly proved and  has attained

finality, proves the presence of A­1 and A­3 at Ahmedabad

during the relevant period.

(i) PW­95 proves the presence of A­1 in Ahmedabad on

27.3.2003 as well as the fact that the phone No. 9825491421

was being used by A­1 on 27.3.2003 i.e. next day of the murder

of the deceased.  

(C) It was submitted that the aforesaid witness Yusufbhai (PW­95) is

an independent witness who stayed in the same “Royal Apartments”

as A­1.  He  in his  testimony proved that  A­1 was using the mobile

No.9825491421 on 27.3.2003 i.e. next day to the  murder of the

deceased as he made a phone call from the aforesaid number to his

brother on 27.3.2003, which has appeared in the call records of the

said number. This witness identified A­1 in his deposition before the

court. The relevant portion of his deposition is reproduced

hereinbelow:

"3. On the next day of the murder of Mr. Haren Pandya, Vishwa  Hindu Parishad has called for band, I and  my brother as per the direction of  my parents were doing scooter coloring work at Chandlodiya. I was going to call my brother that does not go on work at that time Afdan met me on the stairs, he asked me that where are you going? I told him reason at that time he has stated that you make calls from his mobile. Therefore, I made a call from his mobile to Babubhai Dhobi  who is  staying near my brother and we

20

have a good relationship with him and informed him about Salimbhai. Phone Number of Babubhai Dhobi is 7525518. I do not know the mobile No. of Afdan. Due to so many time has been passed perhaps I cannot identify Afdan and his friends.  Although  I  will try. I can  identify  Afdan.  At this stage, the  witness  has identified the accused  no. 1  Mr. Asgar Ali Afdan.”  

  Learned Solicitor General submitted that there is gross

perversity in the impugned judgment of the  High  Court  which is

against the evidence adduced as well as the settled principles of law.

SUBMISSIONS ON BEHALF OF ACCUSED

13. On behalf of the accused persons, it has been submitted by the

galaxy of  learned senior counsel that the scene of murder does not

inspire confidence. The murder of Mr. Haren Pandya has not taken

place in Maruti 800 car, no gunshot residue has been found, neither

any bullet has been recovered from the car. The post mortem report

does not tally with the ocular evidence. First information report has

not been lodged by the so­called witness PW­55 Anil Yadram Patel. He

cannot be said to be a reliable witness. His testimony stands

discredited by the timing and conduct is inconsistent with that of an

eye­witness.  There  are  contradictions on  the position  in which Mr.

Pandya’s body was lying in the car. Identification of A­1 and

identifying sketch of Ex. 620, inferences arrived at from the sketch

clearly prove that it was someone else and A­1 has not committed the

21

offence.  CBI  site  map dated 29.3.2003 has been manipulated.  The

adverse inference  has to  be  drawn against the  prosecution  for  not

producing the material witnesses.

14. The testimony of PW­55 is negatived by the forensic evidence.

The  murder  was  not possible in the  Maruti car  with the  window

opening, as stated by PW­55. The CBI has conjectured on lack of blood

and  GSR  inside  and  on the  car.  The  count  of bullets fired is  not

matching either  with the ocular or  medical evidence.  The  ballistic

evidence indicates that there  was  bullets  mismatch. The scientific

tests for jacketed/unjacketed bullets were not done. There was

deformation  of bullets, and the  weapon  of offence is  doubtful.  No

convincing ballistic matching of the alleged revolver with bullets was

done. Recovery of revolver and pistol is doubtful. It was also submitted

on that reason the case  under POTA is  different from TADA.  The

learned Magistrate while confirming the proceedings as to the

confessional statement has committed illegality. Recording of

confessions is not as per legal requirement under Section 32. There

are other factors discrediting PW­21. There are several contradictions

within the confessional statement and there is no corroboration. As

such it would not be safe to act upon so­called confessions which were

not voluntary in nature and rendered inadmissible due to non­

compliance with provisions of section 32 of POTA. The arrest of A­1 is

22

doubtful. No confession under POTA of any other accused is

admissible against A­1. Call records are not reliable. The prosecution

has withheld evidence. There is tampering with the same, and

interpolation has been made in spot map, rendering the prosecution

case  unreliable  and improbable.  The  vital flaws in the  prosecution

should lead to the  benefit  of the  doubt to the  accused.  There  are

irreconcilable inconsistencies in the  prosecution case.  Several vital

objects  have  not  been produced by  the  CBI.  The forensic  evidence

belies the ocular evidence. The course followed by the High Court is

legally sound and cannot be disturbed in the case of acquittal. Even if

two views are possible, the one adopted by the High Court cannot be

interfered with in an appeal against acquittal.

IN RE: FACTS AS TO INVESTIGATION AND LARGER CONSPIRACY TO CREATE TERROR

15. The evidence has been adduced in the case as to the conspiracy

which leads to the attempt to murder of Mr. Jagdish Tiwari, PW­39

and thereafter fatal attack on Haren Pandya, accused are associated

with it up to the murder and finally to the escape of the assailants

after the  murder. The evidence evinces training in Pakistan, the

various meetings at Masjids, etc. of various accused persons from time

23

to time. There is evidence of confessional statements of convicts,

communication over e­mail, seizure of documentary literature at the

time of arrest, there is also evidence of providing logistical support and

other various types of facilitation, providing money by cash or cheque

in respect of accommodation, rent, transportation at Ahmedabad as

well as at other  places.  Evidence is also  available  with respect to

providing mobile phones, transportation, and providing of motorcycles,

etc. On the basis of the confessional statement, recoveries and

seizures had been made as per the disclosure statements including

the seizure of  computer hard discs  from Cyber Cafes.  There  is the

recovery of  documentary  evidence  also,  passenger  books proved by

hotel caterers, PC owners and opinion of handwriting experts. There is

direct and circumstantial evidence as to the involvement of other

accused with A­1 in the commission of attempt to murder of PW­39

and murder of the deceased Haren Pandya. There is evidence of doing

a recce of the Law  Garden  which used to be frequented by the

deceased for taking morning walks, mobile calls bear the time of the

fatal attack  by the  accused  persons  on the  deceased.  Besides the

mobile tower location of the mobile phone and data of telephone use

even shortly before and after the attack on  PW­39  as  well as on

deceased Haren Pandya. In the light of the aforesaid evidence which

has been referred to in detail, to be discussed hereinafter.

24

16. We  first  consider whether  the criminal  conspiracy  in order  to

commit the murder of Mr. Haren Pandya, to strike terror in a section

of people has been proved, as such the accused has committed the

offence under section 3 of POTA.

17. It has been  urged that section 3(1), 3(2), 3(3) and 3(4) and

section  4 of POTA  have rightly  been invoked in the  present case.

Accused  persons  have  been  charged for criminal  conspiracy  under

section  120B, IPC  and for conspiracy to commit acts of terrorism

under section 3(1) and 3(3) and section 4 of the POTA. It is urged that

there is reasonable ground to believe that when two or more persons

have conspired together to commit any offence, anything said, done or

written by any one of them in reference to their common intention, is a

relevant fact as  against each conspirator. It is submitted that the

accused  persons  with  an intention to strike terror in  a section  of

people, used fire­arms, caused  murder of  Mr. Haren Pandya and

attempted  to murder Jagdish Tiwari,  PW­39. Thus, they committed

offence under section 3(1) of POTA. The Central Pota Review

Committee has upheld the invocation of the provisions of POTA. The

High Court  has also upheld  the conviction of the accused persons

under section 3(3) and section 4 of POTA and has erred in acquitting

the accused persons under section 3(1) and 3(2)(a) of POTA.  Mr.

25

Tushar Mehta  learned Solicitor  General  has submitted  that  section

120­B of IPC defines a criminal conspiracy as a distinct offence. He

has relied on as to criminal conspiracy by Dr. Sri Hari Singh Gour in

his well­known ‘Commentary on Penal Law of India’, (Vol. 2, 11th Edn.

Page 1138) summed up the legal position in the following words:

“In order to constitute a single general conspiracy, there must be a common design. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished. The evil scheme may be promoted by a few, some may drop out and some may join at a later stage, but the conspiracy continues  until it is  broken  up.  The conspiracy may develop in successive stages. There may be a general plan to accomplish the common design by such means as may from time to time be found expedient.  

. In  Yashpal Mittal vs. State of Punjab reported in [1977 (4) SCC 540], Goswami, J, speaking for a three­judge Bench analysed the legal  position relating to criminal conspiracy.  At pages 610­611, observed as under:

"the very agreement, the concert or league is the ingredient of the offence."  and that "it is  not  necessary that  all the conspirators must know each and every detail of the conspiracy." It was then observed that "there must be unity of object or purpose but there may be a plurality of means sometimes even unknown to one another, amongst the conspirators."

(emphasis supplied)

18. He has also referred to the case of State v. Nalini, 1999 (5) SCC

253, Hon.  S.S.M.  Quadri,  J.,  after a survey of  case  law, made the

following pertinent observations:

"662….It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as

26

conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences."  

19. In the matter of Yakub Abdul Razak Memon vs. State of

Maharashtra reported in (2013) 13 SCC 1, where a large number of

accused were involved in a criminal conspiracy having played a

distinct role, this Court held that where an accused allegedly

transported  weapons to the training centre, carried trainees, the

question arises; whether this amounted to overt acts contributing to

common object of the conspiracy. What is to be seen is that such an

act formed  a crucial part of the chain leading to creating terror,

engaging in violence, or waging a war against State. The knowledge of

the murder or attack on the victim in particular therefore was not a

sine qua non. This Court in the aforesaid  matter further while

upholding the order of the designated Court observed as under:

“2485. As the Respondent has been awarded sufficient punishment under different heads of Sections 3(3) and 6 TADA, and the said offences themselves are a part of the conspiracy, and the learned Designated Court has divided the conspiracy into various components, considering the present case,  where the accused were either involved in participating in the various conspiratorial  meetings, receiving training in the handling of arms, their active participation in the throwing of bombs or parking of vehicles fitted with explosives, or where the accused persons participated only in the  landing and transportation of contraband, but  were not aware of the contents of the said contraband,  and  further,  another  category,  where  the accused had knowledge of the contents of the contraband, but did not participate either in the conspiratorial meetings held, or in any actual incident of any terrorist activity, and has awarded different punishments accordingly,  we do not  see any cogent reason to allow the said appeal. The appeal is hence, dismissed.”

27

(emphasis supplied) Relying upon the aforesaid principles of law in the present case,

it is submitted that all the accused persons were in constant touch

with each other, wherein different roles were designated to every

accused person in providing support to A­1 for commission of offence

such as providing money, arranging weapons, arranging phones and

fake SIM cards, logistics and accommodation, the identification of

targets, etc.

20. In September/October 2002, A­1 (Mohmed Asgar Ali) along with

other 13 boys of Andhra Pradesh was sent to Karachi, Pakistan by A­2

(Mohmed Abdul Rauf) for obtaining arms training on the instigation of

A­18.  At Karachi, he was directed to reach Ahmedabad via Udaipur to

take revenge of  the alleged atrocities committed on Muslims during

riots by killing Hindu leaders.  The same had been proved by Exhibit

253 i.e., confessional statement of A­1 (Mohmed Asgar Ali) and Exhibit

247 i.e., confessional statement of A­2 (Mohmed Abdul Rauf).

21. After return from Pakistan,  A­1  (Mohmed Asgar Ali)  stayed at

Muslim Musafirkhana at  Udaipur  from 31.12.2002 to  5.1.2003.  It

had been proved by Exhibit 298 i.e., the visitor register reflecting entry

no.5846 made in respect of his stay; Exhibit 297 i.e.,  deposition of

Mohd. Jamil IS, Manager, Muslim Musafirkhana, regarding his stay at

Muslim Musafirkhana; positive opinion given by Dr. Mohmed Aizaz Ali,

28

CFSL, Delhi (PW­88) with respect to the handwriting of A­1 (Mohmed

Asgar Ali) at entry no.5846 Exhibit 298.   Facts regarding stay of A­1

(Mohmed Asgar Ali) had also been corroborated by Mohammed Jamil

Nasir  Mohammed (PW­30)  and  Dr.  Mohmed  Aizaz  Ali (PW­88)  and

Exhibit 253,  which is the confessional statement of  A­1 (Mohmed

Asgar Ali).   Thereafter, he returned to Hyderabad from Udaipur and

took Rs.2,000­3,000/­ from A­2 (Mohmed Abdul Rauf).   He was

directed by A­18 through email to reach  Udaipur and to contact

Usman Khan Nawab Khan (PW­29).

22. A­1 (Mohmed Asgar Ali) reached  Udaipur on 20.1.2003 and

stayed at Muslim Musafirkhana for a day.  The same had been proved

by  Exhibit  No.299 i.e., the visitor register showing  entry  No.8682;

Exhibit 297 i.e., deposition of Mohmed Jamil Nasir Mohammed (PW­

30), Manager of Muslim Musafirkhana regarding his stay at Muslim

Musafirkhana; positive opinion given by Dr. Mohmed Aizaz Ali, CFSL,

Delhi (PW­88) with respect to handwriting of A­1 (Mohmed Asgar Ali)

at entry no.8682 Exhibit 299.   Facts regarding stay of A­1 (Mohmed

Asgar Ali) had also been corroborated  by  Mohammed  Jamil  Nasir

Mohammed (PW­30) and Dr. Mohmed Aizaz Ali (PW­88) and Exhibit

253, which is the confessional statement of A­1 (Mohmed Asgar Ali).

29

23. For 2­3 days, he stayed at the residence of Usman Khan Nawab

Khan (PW­29), which had been corroborated by Usman Khan Nawab

Khan (PW­29) in Court also.   During the stay of A­1 (Mohmed Asgar

Ali) at Udaipur, he used to visit Netsavy Cyber Café situated at Chetak

Circle, Udaipur for operating emails.  While in Udaipur, A­1 (Mohmed

Asgar Ali) telephonically contacted A­3 (Mohmed Shafiuddin) and

provided him the Landline Number of Usman Khan Nawab Khan (PW­

29)  and mobile  number 9426039937 of  A­14  (Sohail  Khan Pathan)

and asked him to come to Ahmedabad.  The same had been proved by

Exhibit 250 i.e., confessional statement of A­3 (Mohmed Shafiuddin).

24. On 23.1.2003, A­3 (Mohmed Shafiuddin) reached Udaipur and

stayed at  Muslim Musafirkhana  for  a day.   It  had been proved by

Exhibit 300 i.e., visitor register showing entry no.8699  made in

respect of stay of A­3 (Mohmed Shafiuddin); Exhibit 297  i.e.,

deposition of Mohammed Jamil Nasir Mohammed (PW­30), Manager of

Muslim Musafirkhana regarding stay of A­3 (Mohmed Shafiuddin; and

positive opinion of Dr. Mohmed Aizaz Ali, CFSL, Delhi, PW­88

regarding handwriting of A­3 (Mohmed Shafiuddin) at entry no.8699

Exhibit 300.   Mohammed Sharif Amir Mohammed (PW­31), owner of

PCO situated in the basement of  Muslim  Musafirkhana had also

proved  stay  of  A­3 (Mohmed Shafiuddin)  at  Muslim Musafirkhana,

Udaipur.

30

25. On 24.1.2003, Turk Salim Pasa Majarirule Islam (PW­49) along

with A­11 (Mohmed Faruq) and A­13 (Mufti Sufiyan) went to Udaipur

in Tata Indica Car (silver color) of Mohmed Muslim Mohmed Shabbir

Ansari (PW­38) and brought A­1 (Mohmed Asgar Ali) to Ahmedabad.

This fact had been proved by Exhibit 365 i.e., the deposition of Turk

Salim  Pasa  Majarirule Islam (PW­49)  who admitted that they  had

brought A­1 (Mohmed Asgar Ali) to Ahmedabad.   At Ahmedabad, A­1

(Mohmed Asgar Ali) stayed in a room at Lokhandwalichali, Bapunagar

owned by Mushtaq Ahmed Munir Ahmed Ansari (PW­63).  It had also

been proved by Exhibit 652 though Mushtaq Ahmed Munir Ahmed

Ansari (PW­63) has turned hostile, who admitted that A­1 (Mohmed

Asgar Ali) had stayed at his house on the request of A­14 (Sohail Khan

Pathan).

25(a). On 25.1.2003, A­3 (Mohmed Saifuddin) reached

Ahmedabad from Udaipur and stayed at Hotel Garden.   Stay of A­3

(Mohmed Saifuddin) at Hotel Garden had been proved by Exhibit 220

i.e., the visitor register showing entry no.2137 made in respect of his

stay at Hotel Garden, which was signed by him and Rajendrasingh

Vajesinh Rathod, Manager, Hotel Garden (PW­18) had also proved the

aforesaid  entry in his  deposition  in  Court.  Exhibit  486  i.e.,  CFSL

Report of Subhash Mittal, Principal, Scientific Officer (PW­79) had also

31

proved the handwriting of A­3 (Mohmed Saifuddin) at entry no.2137.

A­3 (Mohmed Shafiuddin) was then taken to Lokhandwalichali of

Mushtaq Ahmed Munir Ahmed Ansari (PW­63) by A­1 (Mohmed Asgar

Ali)  and A­10 (Parvez Khan Pathan).   This fact had been proved by

Exhibits 250,  253 and 244  i.e., the confessional  statements of  A­3

(Mohmed Shafiuddin), A­1 (Mohmed Asgar Ali) and A­10 (Parvez Khan

Pathan) respectively.

25(b). At the end of January 2003, A­1 (Mohmed Asgar Ali) and

A­3 (Mohmed Shafiuddin) were shifted to Flat No.902 in M.B. Complex

by A­11 (Mohmed Faruq).  The said flat was arranged by A­10 (Parvez

Khan Pathan) through Tawabhai Yusufbhai Shaikh (PW­66) and

Mohmed Jalis Ahmed Rajput (PW­68).   This fact had been proved by

Tawabhai Yusufbhai Shaikh (PW­66) and Mohmed Jalis Ahmed Rajput

(PW­68) in their deposition made in the Court.

25(c). Between January and February 2003, A­1 (Mohmed Asgar

Ali) and  A­3 (Mohmed Shafiuddin) were moved to Flat No.401, Royal

Apartment, Rakhial by A­10 (Parvez Khan Pathan) and A­11 (Mohmed

Farooq).   The said flat was owned by Abdul Banki Abdul Bari Ansari

(PW­44 ­ hostile witness) and an advance of Rs.5,000/­ was paid to

him by A­10 (Parvez Khan Pathan).   When the said flat was vacated,

Rs.3,500/­ was refunded by Abdul Banki Abdul Bari Ansari (PW­44) to

32

A­10 (Parvez Khan Pathan) through cheque no.17296 drawn on

Gujarat Industrial Coop. Bank, which was encashed by A­10 (Parvez

Khan Pathan).  The stay of A­1 (Mohmed Asgar Ali) and A­3 (Mohmed

Shafiuddin) had been proved by Yusufbhai Idubhai Pathan, (PW­95 ­

occupant of neighbouring flat).  Exhibit 209 i.e.,  a notebook of the

Royal Apartment had also proved that an entry had been made by

Mushtaq Yusufbhai Mansoori (PW­59) regarding the stay of A­1

(Mohmed Asgar Ali) at Royal Apartment.

25(d). On 31.1.2003, a mobile no.9825491421 was procured by

using Voter ID of Shivabhai Virabhai Rathod (PW­53) and was

provided to A­1  (Mohmed Asgar Ali)  by A­14 (Sohail  Khan Pathan).

This fact had been corroborated by Shivabhai Virabhai Rathod (PW­

53)  and V.  Srinivasan,  Official  of  Hutch Company  (PW­77) in  their

deposition and  the  print  out  of  mobile  no.  9825491421  is  also on

record as Exhibit 467.

25(e). On 1.2.2003, a Suzuki Samurai Motorcycle (Black Colour)

bearing registration no.GJ­1S­S­5934 was purchased by A­10 (Parvez

Khan Pathan) from Abdul Samad Abbasali (PW­54) and the delivery

note was signed by A­10 (Parvez Khan Pathan) while taking possession

of the same.  The deposition of Abdul Samad Abbasali (PW­54) as well

as the Exhibits 383 and 384 i.e., a delivery note of the motorcycle had

33

clearly  proved that the  motorcycle  was  purchased  by  A­10 (Parvez

Khan Pathan).  On the instructions of A­14 (Sohail Khan Pathan), the

motorcycle was provided to A­1 (Mohmed Asgar Ali) by A­10 (Parvez

Khan Pathan).   After the arrival of A­1 (Mohmed Asgar Ali) and A­3

(Mohmed  Shafiuddin) at Ahmedabad, A­4 (Kalim  Ahmed) and  A­5

(Anas  Machiswala) visited  Surat  on  the instructions  of  A­13  (Mufti

Sufiyan) and collected two pistols from one Maulana Tahir.

25(f). Before 5/6.3.2003, a  meeting was held at Lal Masjid,

which was attended by A­4 (Kalim Ahmed), A­5 (Anas Machiswala), A­

13 (Mufti  Sufiyan) and A­14 (Sohail Khan Pathan),  in which it was

decided to kill Jagdish Tiwari.

25(g). On 5/6.3.2003, A­14 (Sohail Khan Pathan) introduced A­1

(Mohd. Asgar Ali) and A­3 (Mohmed Shafiuddin) to A­4 (Kalim Ahmed)

and A­5 (Anas Machiswala).    A­4  (Kalim Ahmed) handed over two

pistols each to   A­1 (Mohd. Asgar Ali) and A­3 (Mohmed Shafiuddin)

with live cartridges.  Before 9.3.2003, A­10 (Parvez Khan Pathan)

pointed out Jagdish Tiwari (PW­39) at his shop to A­1 (Mohd. Asgar

Ali). On 9.3.2003, a meeting was held at Jaliwali Masjid, which was

attended by A­5 (Anas Machiswala), A­6 (Mohmed Yunus Sareshwala),

A­7 (Rehan  Puthawala),  A­8 (Mohmed  Riyaz),  A­9 (Mohmed  Parvez

Sheikh),     A­12 (Shanavaz Gandhi) and A­14 (Sohail Khan Pathan)

34

and in the said meeting, it was disclosed by A­14 (Sohail Khan Pathan)

that Jagdish Tiwari would be their target.  In the night of 9.3.2003, A­

1  (Mohmed Asgar Ali)  and A­3 (Mohmed Shafiuddin) waited for the

arrival  of  Jagdish Tiwari (PW­39) in  order to  kill  him,  but  on  that

night, Jagdish Tiwari did not pass through the scheduled route. On

10.3.2003,  A­1 (Mohmed  Asgar  Ali) and  A­3 (Mohmed  Shafiuddin)

followed Jagdish Tiwari (PW­39), who was on his motorcycle and when

he took U­turn for his flat, A­1 (Mohmed Asgar Ali) tried to fire a shot

from his pistol, but the bullet did not come out.  

25(h). On the very next day i.e., 11.3.2003 at about 9.15 pm, A­1

(Mohmed Asgar Ali) and A­3 (Mohmed Shafiuddin) went to the shop of

Jagdish Tiwari (PW­39) and A­3 (Mohd. Shafiuddin) asked for a strip

of the sorbitrate tablet.   While he was taking out the medicine, A­1

(Mohmed Asgar Ali) fired a shot from his pistol at Jagdish Tiwari (PW­

39), but the bullet hit on his metal buckle of belt and after ricocheting

entered in his body near navel portion.  The weapon of A­1 (Mohmed

Asgar Ali) got jammed and in the process of clearing the blockage, two

live cartridges fell at the shop.  Two more bullets were fired on Jagdish

Tiwari (PW­39), but he hid behind a pillar and fridge.  The identity of

A­1 (Mohmed Asgar Ali) and A­3 (Mohmed Shafiuddin) had been

proved by Exhibit 329 i.e., the deposition of Jagdish Tiwari (PW­39) ­

injured eye­witness.  At 9.16 pm, A­1 (Mohmed Asgar Ali) informed A­

35

10 (Parvez Khan Pathan) on his mobile about the attack on Jagdish

Tiwari (PW­39).   At that moment his location was under the tower of

Jay Chemicals, Odhav, GIDC.   At 9.20 pm, A­1 (Mohmed Asgar Ali)

again called A­10 (Parvez Khan Pathan) and at that point of time, his

location  was Vohra  Marriage  Hall, Char Rasta, Rakhial.   Jagdish

Tiwari (PW­39) was rushed to Shardaben Hospital and was treated by

Dr. Hasuben Kalubhai Patel (PW­9) in casualty.   Thereafter, he was

shifted to the emergency of Surgery Department.   A wardi regarding

the  incident  was  received at  PS Bapunagar on the basis  of  which,

Nagindas  Kalidas  Barot (PW­96)  visited the  shop of  Jagdish Tiwari

(PW­39) and from there he went to Hospital.  At the Hospital, Nagindas

Kalidas Barot (PW­96)  wrote  down the complaint  of  Jagdish Tiwari

(PW­39) and sent the same to PS Bapunagar where I­CR No.101/03

was registered at 11.35 pm.

25(i). On 12.3.2003, clothes of Jagdish Tiwari (PW­39) were

taken into possession by Nagindas Kalidas Barot (PW­96) vide Exhibit

491 (panchnama) in the presence of Sureshbhai Chelwalya Patel (PW­

81).  Panchnama of the crime scene was prepared by Nagindas Kalidas

Barot (PW­96) in the presence of  Popatbhai  Virchandbhai  Padhiyar

(PW­78).   Two live cartridges, three cartridge cases, and  one fired

bullet were recovered and taken into police possession vide Exhibit

36

474.   Jagdish Tiwari (PW­39) was operated by Dr. Pranjal Desai and

his senior and a bullet was removed.

25(j). On 14.3.2003, Dr. Virendra Kanaiyalal Shah (PW­10)

handed over the recovered bullet to Himmatsinh Ratansinh Chauhan

(Rathod) (PW­15),  who produced  the same before  Nagindas  Kalidas

Barot (PW­96) in the presence of  Chandrakishan Bageshwar Tiwari

(PW­80) (Panch).   Exhibit 489 is the memo of handing over of

recovered bullet.  On the same day,  A­3  (Mohmed Shafiuddin)  was

dropped at Gita Mandir Bus Stand by A­10 (Parvez Khan Pathan) and

was provided bus ticket for Jaipur.   The ticket was sold by

Maqsoodbhai Ismailbhai Mansoori (PW­22).

25(k). On 15/16.3.2003, A­13 (Mufti Sufiyan) in consultation

with A­14 (Sohail Khan Pathan) disclosed to A­5 (Anas Machiswala)

that their next target would be Haren Pandya, who used to come to

Law Garden for a walk.  

25(l). On 17/18.3.2003, a meeting was attended by A­4 (Kalim

Ahmed), A­5 (Anas Machiswala), A­7 (Rehan Puthawala), A­8 (Mohmed

Riyaz), A­12 (Shahnavaz Gandhi) and A­14 (Sohail Khan Pathan) at

Juni Jama Masjid, where A­14 (Sohail Khan Pathan) disclosed their

next target i.e., Haren Pandya.  A­12 (Shahnavaz Gandhi) was directed

37

by A­14 (Sohail Khan Pathan) to carry out a recce of Law Garden in

order to ascertain movements of Haren Pandya and his car number.  

25(m). In a  meeting held on 22.3.2003 at Juni Jama  Masjid

attended by A­4 (Kalim Ahmed), A­5 (Anas Machiswala), A­7 (Rehan

Puthawala), A­8 (Mohmed Riyaz), A­12 (Shahnavaz Gandhi) and A­14

(Sohail Khan Pathan), A­9 (Mohmed Parvez Sheikh) was assigned the

task to carry out the recce of Law Garden as A­12 (Shahnavaz Gandhi)

had failed to do so.

25(n). On 23.3.2003 at  7.00 am,  A­9 (Mohmed Parvez  Sheikh)

called A­1 (Mohmed Asgar Ali) from the mobile phone of A­7 (Rehan

Puthawala) and asked him to come to Law Garden in order to

familiarize with the topography.   It had been proved by Exhibit 467

i.e., CDR of mobile no.9825491421 used by A­1 (Mohmed Asgar Ali)

during the commission of the crime.  A­6 (Mohmed Yunus Sareshwala)

and A­9 (Mohmed Parvez Sheikh) visited the Law Garden where A­1

(Mohmed Asgar Ali) also came but they could not locate Haren

Pandya.

25(o). On 24.3.2003, A­9 (Mohmed Parvez Sheikh) visited the Law

Garden again in the  morning on the  motorcycle and saw  Haren

Pandya.  He noted down his car number as GJ­1AP­4606.  In the

night of 24.3.2003, a meeting was again held in Juni Jama Masjid,

38

which was attended by A­4 (Kalim Ahmed), A­5 (Anas Machiswala), A­

7 (Rehan Puthawala), A­8 (Mohmed Riyaz) and A­9 (Mohmed Parvez

Sheikh),  where  A­9 (Mohmed Parvez  Sheikh)  was  directed  by  A­4

(Kalim Ahmed) to point out the spot at Law Garden to A­1 (Mohmed

Asgar Ali).  A­1 (Mohmed Asgar Ali) was telephonically called there and

taken to Law Garden by A­9 (Mohmed Parvez Sheikh), where the spot

was pointed out to him where Haren Pandya parked his car.

Meticulous planning was done to execute the murder of Haren Pandya

on the next morning, where A­8 (Mohmed Riyaz) was assigned the role

of driver of A­1 (Mohmed Asgar Ali) and A­9 (Mohmed Parvez Sheikh)

was assigned the task to keep watch to safeguard A­1 (Mohmed Asgar

Ali) and A­8 (Mohmed Riyaz).   A­7 (Rehan Puthawala) was given the

task  to  escort  A­1  (Mohmed Asgar  Ali)  and A­8  (Mohmed Riyaz) to

Shahpur Mill  Compound,  where  A­4  (Kalim Ahmed)  and A­5  (Anas

Machiswala) were to wait in an autorickshaw.

25(p). On 25.3.2003, an attempt was made to kill Haren Pandya

at Law Garden, but A­1 (Mohmed Asgar Ali) could not open fire due to

the presence of many persons.  In the afternoon, it was decided to kill

Haren Pandya next morning.  

25(q). On 26.3.2003 at around 7.30 am, Haren Pandya was killed

by A­1 (Mohmed Asgar Ali) by firing from close range at Law Garden.

39

Entire incident was witnessed by Anilram Yadram Patel (PW­55), who

identified A­1 (Mohmed Asgar Ali), whom he saw firing at Haren

Pandya from firearm and he had narrated the entire incident in his

deposition  and fully supported the version  of the  prosecution vide

Exhibit 175 i.e., identification memo of A­1 (Mohmed Asgar Ali).  After

the incident, A­1 (Mohmed Asgar Ali) called A­14 (Sohail Khan Pathan)

on mobile no.9426039937 from his mobile no.9825494421 at 7.33 am

and 8.17 am.   The location of these mobile numbers had confirmed

the presence of A­1 (Mohmed Asgar Ali) at Law Garden.   These facts

had been proved by Exhibit 467 i.e., CDR of mobile no.9825494421.

Hemantkumar Ratilal Patel, Assistant Divisional Engineer, Vastrapur

Telephone Exchange (PW­33) had also proved the location of mobile

number used by the accused persons on the basis of tower location

chart. At 10.40 am, a message was sent to PS Navrangpura and PS

Ellis Bridge by  City Control Room to reach Law  Garden.  Haren

Pandya  was evacuated to B.S. Hospital by police officials of P.S.

Navrangpura.  A complaint  was lodged  by  Janaksingh  Khusalsinh

Parmar (PW­1) with Yusuf Miya Ahmed Miyan Shaikh, P.I., PS Ellis

Bridge (PW­101) regarding the murder of Haren Pandya.  At 11.30 am,

I­CR No.272/02 was registered at PS Ellis Bridge regarding the killing

of Haren Pandya.   Inquest panchnama was prepared by Yusuf Miya

Ahmed Miyan Shaikh, P.I.,  P.S. Ellis Bridge (PW­101) between 1.00

40

pm  to 2.00 pm.   Post­mortem examination of  Haren Pandya  was

conducted between 2.15 pm to 4.50 pm.   Panchnama of the crime

scene was prepared by Yusuf Miya Ahmed Miyan Shaikh, P.I., PS Ellis

Bridge  (PW­101)  between 2.30 pm to 3.30 pm.   A notification was

issued under Section 6 of the DSPE Act for investigation by CBI in the

murder of Haren Pandya.  Statement of Anilram Yadram Patel (PW­55)

was recorded. On 28.3.2003, the investigation was taken up by CBI

and records of FIR No.272/03 were seized from PS Ellis Bridge.

26. Further investigation also unearthed and supported the

conspiracy.   On 3.4.2003, A­6 (Mohmed Yunus Sareshwala), A­7

(Rehan Puthawala), A­8 (Mohmed  Riyaz) and  A­9 (Mohmed  Parvez

Sheikh) were arrested by Tarunkumar Amrutlal  Barot,  P.I.  of  DCB,

Ahmedabad (PW­114) on suspicion of obtaining arms training at

Pakistan. I­CR No.6/03 was registered against the aforesaid accused

of  waging  war  against the  State  and taken  into  police  custody  for

remand.  A mobile phone was recovered from A­7 (Rehan Puthawala).

26(a). On 6/7.4.2003, when A­7 (Rehan Puthawala) was

confronted  with the contact  details of  his  mobile  phone, in  which

numbers were stored against the names of  Mehman and Uncle,  he

disclosed that Mehman is killer  of  Haren Pandya and Uncle  is  A­5

(Anas  Machiswala),  who played a  key  role in the  murder  of  Haren

41

Pandya.  The same had been proved vide Exhibit 728 i.e., the evidence

of Sushilkumar S. Gupta (PW­120).  The location of phones was traced

to be at Ahmedabad.  

26(b). On 17.4.2003, A­1 (Mohmed Asgar Ali), A­2 (Mohmed

Abdul Rauf), A­15 and A­16 were arrested from Medchal Bus Stand,

Hyderabad.  On 18.4.2003,  A­3  (Mohmed Shafiuddin)  was arrested

from J.D. Math Bus Depot, RR District, Andra Pradesh by V.

Prabhanjan Kumar (PW­118).

26(c). On 22.4.2003, bullets recovered  from the body of  Haren

Pandya along with his clothes were handed over to CFSL, New Delhi

for opinion (Exhibit 441).

26(d). On 23.4.2003, A­1 (Mohmed Asgar Ali) had confessed

about his stay at House No.206, Block 61, Gujarat Housing Board,

Old Bapu Nagar,  Ahmedabad in the presence of  Harikishan Harpal

Meena (PW­23).   He had also mentioned this fact in his confessional

statement and it had also been mentioned in the statement of Mustaq

Ahmed Munir Ahmed Ansari (PW­63 – hostile witness).   He had also

mentioned about M.B. Complex, Rakhial, in the presence of Harkishan

Harpal  Meena  (PW­23)  and House No.522,  Gujarat  Housing Board,

Babunagar  owned by A­10/A­14.  At the pointing  of  A­1  (Mohmed

Asgar Ali), Bajaj Boxer Motorcycle No.GJ­1BG­3849 was seized from

42

the house of A­10/A­14 along with registration papers.   These facts

had been proved by Exhibits 268, 269, 270 and 272.

26(e). On 25.4.2003, Suzuki Samurai Motorcycle No.GJ­1SS­

5934 and Hero Honda Motorcycle No. GJ­1CD­8973 were seized from

the parking of Kalupur Railway Station and PS Kagdapeeth

respectively.  A­4  (Kalim Ahmed),  A­5  (Anas Machiswala)  and A­12

(Shahnavaz  Gandhi) were arrested from Sadashiv Pet Bus Stand,

Sangareddy, Andhra Pradesh by Udham Sinh Ramkaran Sinh Solanki

(PW­108) and was remanded to transit custody till 29.4.2003 by the

Judicial Magistrate.   These facts had been proved by Exhibits 274,

356, 645, 646, 647 and 648.

26(f). On 26.4.2003, a revolver No.B­40350 Webley & Scott and

one pistol No. EE­0330 was discovered at the instance of A­1 (Mohmed

Asgar Ali) in the presence of Srinathsinh Shambhausinh (PW­13) from

Flat No.4­B, Kamar Flats, Shahapur, Ahmedabad.  This fact had been

proved by Exhibit 196.   RC  Book of Suzuki Samurai  Motorcycle

No.GJ­1SS­5934 was recovered during a search of the said flat.  It had

been proved by Exhibits 197 and 198.

26(g). On 28.4.2003, A­1 (Mohmed Asgar Ali) disclosed of having

used various cyber cafes at Ahmedabad and Udaipur.  Two hard disks

from Modern Cyber Café, Ahmedabad and one hard disk each from

43

Mittal Cyber Café and Net Savy Cyber Café, Udaipur were seized.  The

same had been proved to vide Exhibits 601, 336, 410 and 576.   On

29.4.2003,  a  hard disk of  Cyber Space Café,  Ahmedabad was also

seized (Exhibit 762).

26(h). On 30.4.2003, A­1 (Mohmed Asgar Ali) and A­2 (Mohmed

Abdul Rauf) had disclosed about their email IDs, passwords and print

out of emails was taken in the presence of Prakashbhai Babulal Modh

(PW­16) (Exhibits 213 & 215).

26(i). On  5.5.2003,  A­1 (Mohmed  Asgar  Ali)  was identified  by

Anilram Yadram Patel (PW­55) during a test identification parade.  

26(j) On 8.5.2003, a pistol was discovered at the instance of A­5 (Anas

Machiswala) from his house.  It had been proved by Exhibit 423.

26(k). On 22.5.2003, A­7 (Rehan Puthawala) and A­8 (Mohmed

Riyaz) made a disclosure about the shop of Star Number from where

they got prepared fake number plates bearing no.GJ­1CF­5189.

Babarbhai Maljibhai Rabari (PW­34) was the punch witness of the said

disclosure and had fully supported the same during his deposition.

Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW­52) owner of Star

Number Plate had also deposed regarding the  making of number

44

plates. These facts had been proved by Exhibits 312, 313, 314 and

315.  

26(l). On 1.6.2003, POTA was invoked in FIR No. RC.2(S)/2003 SCUI

and an intimation were sent to Principal Sessions Judge, Ahmedabad,

and Chief Metropolitan Magistrate, Ahmedabad (Exhibit 744).

26(m). On 2.6.2003, I­CR No.101/03 of PS Bapunagar was

registered in CBI as FIR No.RC.5 (S) 2003 – SCU. I and investigation

were taken up (Exhibit 746).  Police custody remand of A­6 (Mohmed

Yunus Sareshwala), A­7 (Rehan Puthawala), A­8 (Mohmed Riyas) and

A­9 (Mohmed Parvez Sheikh) was extended till 9.6.2003 (Exhibit 745).

26(n). On 3.6.2003, records of I­CR  No.101/03  were collected

from DCB by CBI (Exhibit 747).

26(o). On 4.6.2003, A­10 (Parvez Khan Pathan) and A­11

(Mohmed Faruq) were arrested on the basis of transfer warrant.

Statement of Jagdish Tiwari (PW­39) was recorded, who claimed that

he can identify the assailants.  A­6 (Mohmed Yunus Sareshwala), A­7

(Rehan  Puthawala), A­8 (Mohmed  Riyas) and  A­9 (Mohmed  Parvez

Sheikh) expressed their desire to make a confessional statement

before Sushilkumar S. Gupta, Investigating  Officer (PW­120), who

45

produced them  before  Vinayak Prabhakar  Apte, Superintendent of

Police (PW­21).

26(p). On 5.6.2003, A­10 (Parvez Khan Pathan) and A­11

(Mohmed Faruq) were produced before Chief Metropolitan Magistrate,

Ahmedabad and were remanded to police custody till 19.6.2003.

26(q). On 6.6.2003, Jagdish Tiwari (PW­39) identified A­1

(Mohmed Asgar Ali) and A­3 (Mohmed Shafiuddin) during a test

identification parade.   Statements of  Jagdish Tiwari (PW­39),  Javed

Abdul Rashidkhan Pathan (PW­45) and Faridkhan Majidkhan (PW­74)

were recorded.   A­7 (Rehan Puthawala) also  made a confessional

statement, which was recorded by Vinayak Prabhakar Apte (PW­21).

The same had been proved by Exhibits 203, 366, 557, 558 and 229.

26(r). On 7.6.2003, confessional statements of A­6 (Mohmed

Yunus Sareshwala) and A­9 (Mohmed Parvez Sheikh) were recorded by

Vinayak  Prabhakar  Apte (PW­21).   The same  had  been  proved  by

Exhibits 232 and 235.

26(s). On  8.6.2003,  Vinayak  Prabhakar  Apte (PW­21) recorded

the confessional statement of A­8 (Mohmed Riyaz) (Exhibit 238).

26(t). On 11.6.2003, POTA was invoked in RC.5(S)/2003­SCU. I

i.e., case of Jagdish Tiwari and an intimation was sent to Principal

46

Sessions Judge, Ahmedabad, and Chief Metropolitan Magistrate,

Ahmedabad (Exhibits 750 and 751).

26(u). On 12.6.2003, A­1 (Mohmed Asgar Ali), A­2 (Mohmed

Abdul Rauf) and A­3 (Mohmed Shafiuddin) were arrested on the basis

of transfer warrant in case no. RC.5(S)/2003­SCU.I and remanded to

police custody till 21.6.2003.  Hero Honda Motorcycle was seized from

PS Koth.  A­10  (Parvez Khan Pathan) made a disclosure statement

regarding number plates and video  CDs.   The  number plate  was

discovered from roadside bushes of Tarapur Highway at the instance

of A­10 (Parvez Khan Pathan) and six video CDs and other literature

were discovered from the house of A­10 (Parvez Khan Pathan).   A­10

(Parvez  Khan  Pathan) and  A­11 (Mohmed  Faruq) also expressed  a

desire to make a confessional statement before Sushilkumar S. Gupta

(PW­120).   These facts have been proved by Exhibits 754, 755, 513,

514 and 515.

26(v). On 15.6.2003 and 16.6.2003, confessional  statements of

A­11 and A­10 respectively were recorded by Vinayak Prabhakar Apte

(PW­21). (Exhibits 241 and 244)

26(w). On 17.6.2003, A­4 (Kalim Ahmed), A­5 (Anas Machiswala)

and A­12 (Shahnavaz Gandhi) were arrested on transfer warrant and

on 18.6.2003, they were remanded to police custody till 27.6.2003.  A­

47

1 (Mohmed Asgar Ali), A­2 (Mohmed Abdul Rauf) and A­3 (Mohmed

Shafiuddin) expressed their desire to make a confessional statement

before Sushilkumar S. Gupta (PW­120).   On 20.6.2003, confessional

statements of A­2 (Mohmed Abdul Rauf) and A­3 (Mohmed Shafiuddin)

were recorded by Vinayak Prabhakar Apte (PW­21).  A­12 (Shahnavaz

Gandhi) also expressed a desire to make confession to Sushilkumar S.

Gupta (PW­120).   These facts had been proved by Exhibits 759, 595,

247 and 250.

26(x). On 21.6.2003, confessional statement of A­1 (Mohd. Asgar

Ali) was recorded by Vinayak Prabhakar Apte (PW­21) and on

22.6.2003, confessional  statement of  A­12  (Shahnavaz Gandhi)  was

recorded by Vinayak Prabhakar Apte (PW­21).  The same had been

proved vide Exhibits 253 and 256.  Thereafter, A­4 (Kalim Ahmed) and

A­5  (Anas Machiswala)  also  expressed a  desire to  make confession

before Vinayak Prabhakar Apte (PW­21).

IN RE: ANIL YADRAM (PW­55)

27. It was urged on behalf of the prosecution that PW­55, Anil

Yadram is a reliable eye­witness. His presence at the scene of

occurrence at 7.30 a.m. and that of deceased is natural and stands

proved. It was pointed out that the presence of the eye­witness on the

48

crime spot was natural as he used to keep his push handcart inside

the compound of Chitty Bang in Thakorbhai Desai Hall, as the drive

was on to remove such carts by  Municipal Corporation. He was

present in early morning hours and his presence has been

corroborated and proved by PW­55, owner of Chitty Bang CW­1 who

has confirmed that PW­55 used to keep his hand cart in the Chitty

Bang compound with his permission and used to sleep there at night.

The version of PW­55 has also been corroborated by medical evidence

and by other independent evidence. His disposition has been

corroborated by medical as well as ballistic expert, PWs.­8, 15, 55, 101

and 120 with respect to the position of the accused and the bullet

injury suffered by the deceased. The Post Mortem examination was

conducted by 4 doctors. Dr. Pratik Patel (PW­8) has proved 7 gunshots

caused by 5 bullets. Forensic and biological reports prove the death of

the deceased inside the car. The weapon used by A­1 at the time of the

commission of the offence was duly recovered from same flat. Ballistic

expert PW­75 has deposed that the bullets recovered from the body of

the deceased were fired from the same revolver which was recovered at

the instance of A­1. Commission of offence vis­à­vis PW­39, Jagdish

Tiwari has attained finality as that has not been questioned by

accused persons by filing appeals, which also proves the presence of

A­1 and A­3 at Ahmedabad during the relevant period. PW­95 proves

49

that A­1 was present in Ahmedabad on 27.3.2003 and used phone

No.98254 91421 even up to the next day of the  murder of the

deceased. The High Court has committed gross perversity in setting

aside the findings recorded by the trial court without coming to close

quarters of the reasoning employed by the trial court as  well as

marshalling of evidence in detail, as done by the trial court.

28. On the other hand, learned counsel appearing on behalf of the

accused sought to discredit  the testimony and deposition of  PW­55

Anil Yadram by raising various grounds to be dealt with in extenso

hereinafter. Anil Yadram, PW­55  has stated that he stationed  his

handcart near Law Garden outside the gate of Chitty Bang,

Thakorbhai Desai Hall, and Nanubhai is the owner of the Chitty Bang.

He used to leave his  handcart in the compound of  Chitty  Bang of

Nanubhai (CW­1) during the night. If the handcart is kept outside, the

corporation might tow away the cart. Therefore, he used to keep the

handcart in the said Chitty Bang during the night. He used to sleep in

the Chitty  Bang, the place of  Nanubhai.  On 26.3.2003 he went to

nature’s call, and after brushing he washed his face and came near

the front gate and then he saw that Kanhaiya Lal was standing nearby

the gate. He told him that the Corporation was towing the handcarts.

Kanhayalal told him that he would be there at 10’O clock. He was

inside the gate of Chitty Bang when he saw a Maruti Fronti came from

50

Gajjar  Hall Cross  Roadside and stopped  where he kept his larry.

Haren Pandya was inside the car. He parked the car and was rolling

the  window glass  up. In the  meantime,  a  boy came  from the  side

where the car had come and he fired 4 to 5 rounds. The feet of Haren

Pandya was raised up and he fell on the back side. Witness shouted

what are you  doing?  The assaulter ran away. Thereafter  Ramesh,

Sweeper came and asked what had happened.   The boy was neither

here nor there. He has specified some features of the accused. He was

scared and sat so for some time and then went towards B Desai Hall

and saw Shukla Chacha in a rickshaw. He informed Shukla Chacha

that Haren Pandya has been killed. Shukla Chacha and he both went

in a rickshaw. Since goods were loaded and as there was traffic police

on Panchvati Circle, he dropped him off from rickshaw at Panchvati

Circle and again asked him to board the rickshaw at Ambawadi Circle.

Then they reached  Nanubhai’s place. He informed  Nanubhai that

Haren Bhai Pandya has been killed by 4 to 5 rounds of firing at the

place where he used to keep his larry. Nanubhai told that after having

tea he will  reach Law Garden. They went back to Law Garden, the

police had arrived, Haren Pandya was taken in a jeep to V.N. Hospital.

The police officer came in civil dress and asked him features of the

assaulter. The witness explained him in the same manner as he has

51

deposed in the court. The CBI had prepared the map. He has affixed

his thumb impression and Kanhaiya has signed it.

29. It was submitted on behalf of the accused persons that the case

of gun firing set up by the witness PW­55 is not correct as in Maruti

800 car, no gunshot residue (GSR) has been found and no bullet has

been recovered from the car. It is not in dispute that the bullets were

recovered from  the  body  as such they  were  not found in the  car.

Learned counsel for A­1 submitted that from the seat no blood was

found though on Kurta and Pyjama and underwear there were blood

stains. The High Court has observed that there was profuse bleeding,

as such from the driver’s seat cover blood ought to have been found.

On the other hand, it was pointed out on behalf of the CBI that blood

has been recovered from the Maruti car and it was of Group B of the

deceased. Thus, merely on the cover of the seat blood was not found,

would not discredit the incident. As a matter of fact, it would depend

upon the nature of the wound and whether the bleeding is internal

and the position of the body as to how much blood would go down.

Whether  it  will  go to the seat cover or to the bottom of the car, it

cannot be said to be a universal formula that whenever an incident

has happened in a car, blood should be found on a particular place.

Thus,  an attempt  to  discredit the deposition of the witness on  the

aforesaid ground that some blood has not been recovered from the

52

seat cover of the car by  itself,  cannot be said to  be circumstances

leading to doubting of  the incident  in the car.  It  was submitted on

behalf of the prosecution that PW­55 is an independent witness who is

neither related to the deceased nor having any enmity with A­1. He

has  duly identified  A­1 in  a test identification parade  on  5.5.1981

before PW­7 who has given Panchnama. The trial  court has rightly

found him to be a reliable witness.  

30. It was urged on behalf of the accused that there was no GSR

inside or outside the vehicle which according to the accused makes it

highly doubtful that the car was the site of the shooting. The

prosecution submitted that since the bullets were  found  inside the

body, GSR could not be found inside or outside the vehicle. Thus, the

incident cannot be said to be doubtful due to the fact that the

presence of GSR has not been found inside or outside the vehicle.

31. It was submitted by the learned counsel appearing on behalf of

the accused that the car had dark window glasses. Driver’s right side

was slightly open.  PW­55 has also stated that the car window was

open as shown in the photograph. Thus, it was submitted that by the

opening of roughly 3 inches, gunshot injuries are rendered impossible,

to be caused especially injury No.7, which renders it doubtful that the

car was the site of the shooting. PW­55 has stated that Haren Pandya

53

after stopping the car, drank water from the bottle and thereafter he

was fired at when he was rolling up the window glass.

32. In our opinion, precise rolling of the glass when he was fired at,

cannot be stated by any person with precision. It is too much to expect

a person to state how much rolling of the glass of windows had been

done at the  time of firing.  Even  if the witness had stated so, that

would be merely his guesswork. When a person is rolling the glass up,

it is possible that he might have been fired the shot when the window

was quite wide open and when he was in the process of rolling it up.

The person in order to save himself from the firing would also try to

roll up the glass with speed then also gunshot firing can be made in

the process. Thus the argument raised that there was a tiny opening

of 3 inches when the shots were fired, is against the normal course of

human conduct to make such statement and the way in which the

incident has taken place it cannot be said with precision how much

rolling of the glass of windows was done before firing took place and

how  much rolling  was done after suffering some shots or in the

process of  firing. It  can only be said that he was in the process of

rolling the glass up when the firing took place.

33. PW­55 has demonstrated the position of the deceased inside the

car in his deposition. With respect to shooting from the driver’s side

54

glass is corroborated medically by the direction of injuries 1 to 4 which

are from upward to downward and right to left.  PW­55 has further

stated that the legs of deceased came up and he fell on the co­driver’s

seat  which  explains injury  No.  7  also  which is from downward to

upward and left to right. This is further corroborated by the entry hole

in Pyjama which is  in the rear hole of Pyjama. The position of  the

deceased has been confirmed by PW­85,  a constable  who  took  the

body of the deceased out of the car. PW­85 has stated that legs were

slightly up  from knee  level.  The right  leg was slightly  more on the

upward direction.

34. To discredit version of PW­55, it was submitted that there were 7

injuries  and 5 bullet injuries  were found.  Total  5 fire­arms bullets

were recovered from the body of the deceased during post mortem as

proved by PW­8. That falsifies the prosecution case. This aspect

requires  a close  examination of the  evidence. It  was  submitted  on

behalf of  A­1 that in the  post  mortem conducted  by  4  doctors, 5

bullets described as white metal bullets were found from the body as

against 7 gunshot wounds. All of them had blackening around. Injury

No.6 also had blackening as found by PW­19, the treating doctor. The

holes in the clothes corresponding to the blood wounds including the

right bone show  blackening. The emergence  of all 7  holes on the

clothes including those on the right GSR and later examined by CFSL.

55

It  was  further  submitted  that  autopsy surgeon PW­8 has stated  in

answer to question Nos.64 to 66 that all the bullets inside the body

are mentioned for 5 wounds namely injury Nos.1 to 4, 5 to 7. Injury

Nos. 5 and 6 in the post mortem report is their communicating injury.

The track of injuries 5 and 6 is not noted. It was submitted that in

case of injury Nos.5 and 6, there should have been wrist fracture and

the injury should have been on the palm region. Thus the eye witness

account of firing 5 shots is not reliable. For causing injury No.7 the

weapon would have to be at the level of the scrotum and to its left and

the autopsy surgeon has stated that assailant to cause injury No.7 will

have to be in front and beneath. Thus injury No.7 could not have been

caused in Maruti car. So that is not the place of the incident. Due to

this aspect, the ocular evidence of PW 55 stands contradicted.

35. It was submitted on behalf of the prosecution that while

countering that coherent and succinct nature of the  medical and

forensic evidence with ballistics bolsters the case of the prosecution

and unambiguously establishes that murder was committed by A­1.

Injury Nos.2 to 4 were direct shots to the chest; injury Nos.1, 5 and 6

were caused by the same bullet, injury No.1 was on the neck, injury

No.5 on the right­hand metallic bone and injury No.6 at back of the

hand, injury Nos.5 and 6 are communicating injuries and thereafter

injury No.1 has been caused in the neck by the same bullet.

56

Statement of PW­8, Dr. Pratik Patel has been relied upon who has

stated that the same bullet has caused gunshot injuries 5 and 6. The

doctor has opined that if the hand is reflexly kept in front of face or

neck region on the right side that back of hand if facing the opposite

side of the victim, the bullet may re­enter from external injury No.1.

36. Now we advert to whether medical evidence belies the version of

PW­55.   In the post mortem report D­160 dated 26.3.2003 of Haren

Pandya following injuries have been noted:                              

"1.  About  0.8  cm diameter,  punch  red  contused lacerated  entry wound with inverted edges is present on the lower part of front of neck on right side, about 1 cm above and 2 cm right to medial end of right clavicle. Blackening is seen on skin surrounding the wound. 2. About 0.8 cm  diameter, punch red contused lacerated entry wound with inverted edges is present in front of right chest, about 1.2 cm right to midplane over right 2nd intercostal space. 3. About 0.8 cm  diameter, punch red contused lacerated entry wound with inverted edges is present on front of right chest, 5 cm below and 1 cm left to right nipple. 4. About 0.8 cm  diameter, punch red contused lacerated entry wound with inverted edges is present front of right chest, 0.5 cm below and 3 cm right to abovementioned external injury no. 3. 5.  About  0.8  cm diameter,  punch red  contused  lacerated  entry wound with inverted edges is present on back of right hand, 2 cm proximal to junction of index and middle fingers. Blackening of skin is seen surrounding the wound. 6. Lacerated wound with everted margin is present on front of right forearm at junction  of  upper  2/3  to lower  1/3rd,  g___  obliquely downward to medially, 2 cm. 7. 0.5 cm diameter, circular punch lacerated wound with inverted margins present on lower part of  left  scrotum 1 cm __ midplane (scrotal raphe) covered with clot. 8. 0.4 cm x 0.4 cm, red­colored, abrasion present on mid of lateral aspect of phalanx of the right middle finger."

When we consider  the aforesaid report, injury  No.1  is  on  the

lower part of the front of the neck on the right side, that is on the right

57

clavicle. The doctor has clearly expressed that injury Nos.5 and 6 are

communicating ones. As a matter of fact, in communicating injuries it

is not necessary that the bullet to have entered the proximal to

junction of the index and middle finger. It could have passed touching

the area and then caused injury on the right forearm in the process of

reaching right up to the front on a lower part of the front to cause

injury No.1. The medical evidence clearly establishes that injury No.5

was caused first, 6 thereafter and No.7 was ultimately caused by the

same  bullet and  doctor  has clearly explained it.  While replying to

question No.14, the doctor said that if the hand is reflexly kept in front

of neck region on the right side and that back of the hand is facing the

opposite side of the victim, bullet injury No.1 may be caused after

causing injury Nos.5 and 6.

37. The conclusion of the High Court is only right to the extent that

injury Nos.5 and 6 could not be said to be entry and exit wounds.

They were  rather communicating wounds caused  in  the process of

causing  injury No.1. The conclusion to the contrary averred by the

High Court as to independent injuries is absolutely incorrect.

Testimony of  PW­55 cannot  be  said to  be falsified  on  the  basis  of

aforesaid medical evidence. There is no inconsistency with respect to

the aforesaid aspect in the medical version and the ocular version of

PW55.

58

38. PW­8, Dr. Pratik Patel,  Autopsy Surgeon has further stated in

answer to question No.73.  

“Question no. 73: what would be the exception and what is the authority of considering the exception? Answer: If first entry and exit are through the small part of the body and soft tissue and side of the re­entry are in the close proximity of the exit wound of the first entry wound then there may be features of the entry wound on the re­ entry wound. I can also show some statements in support of my reply. There is a book on Medico legal statements in support of my reply. There is a book on Medicolegal investigation of  Gun Shot by Abdulla Fateh, J.B. Lipping Company."  

It is apparent from the aforesaid answer that wound has been

referred by doctor PW­8 as a small part of the body and soft tissue.

Thus, it is a communicating injury of soft tissue not piercing through

or entering the wrist. It is clear that injuries 5 and 6 are

communicating injuries and injury No.1 has been caused by the same

bullet. The entry and exit wounds have been seen and explained by

the doctor in the aforesaid manner which has to be communicating

one only caused by the same bullet.  

39. It was also urged that the account of a number of injuries of the

bullet is not matching with the number of injuries found. There were 7

gunshot wounds whereas 5 bullets were recovered from the body of

the deceased. As already explained 5 bullet injuries were caused as

suggested by ocular evidence of PW­55 and also by medical evidence

that 5 bullets were found as injury Nos.5 and 6 were communicating

59

injuries leading ultimately to injury No.1 as discussed above. Thus,

there is  no inconsistency  rather  ocular  evidence is fortified  by the

medical evidence.

40. The accused person has relied upon "Gray's Anatomy" and "A

Colour Atlas of Human Anatomy" to contend that there are 32 tightly

packed bones in the palm. The tightest packed are wrist bones and the

carpal tunnel is just about 8.3 mm in depth (as per medical journals).

A 0.32 caliber bullet has a diameter of  7.65 mm. Therefore, in the

absence of any credible competent forensic explanation of the track of

injuries 5 and 6, this theory set up by CBI at the stage of arguments,

is liable to be dismissed.  

41.  There is no dispute that the palm has tightly packed bones. In

the instant case, as the bullet has not entered inside and only touched

the soft tissue in injury No.5, the injury was caused on the soft tissue

and then it has superficially touched the wrist.

42. The doctor has stated in para 8 that external injuries 5 and 6

were found communicating  with each other. Fracture of 2nd  right

metacarpal bone was present. He has further stated that bullets were

made of white metal, they were sealed, labelled and handed over to the

police officer on duty. When the treating doctor was asked how there

were 5 bullets and 6 entry wounds, he has opined that one injury will

60

be of the entry of the bullet and that was precisely the communicating

injuries 5 and 6 leading to injury No.1 that was the re­entry wound.

Whether injury No.1 was original or re­entry, he has referred to post

mortem report to opine that injury Nos.5 and 6 are communicating

injuries.

43. The High Court as well confused as to the number of injuries on

the basis of 7 wounds and 5 number of bullets fired. In case of such

communicating injuries, it is  not  necessary that the  bullet should

enter any part of the body while reaching to the last injury, it may

cause scratch or touched the small part of the body or soft tissue as

has been done in the  instant case.  It  has happened in the  instant

case. With respect to the significance of such a medical version, this

Court in  Rachhpal Singh and Anr. vs. State of Punjab,  AIR 2002 SC

2710, has observed thus:

“8.  A perusal of the evidence of the doctor shows that there is some discrepancy in his evidence in regard to the nature of the injury on the deceased as to whether the edges of the wound were averted or inverted. But this, in our opinion, is not fatal to the case of the prosecution. The doctor while admitting that there was some such confusion in his evidence as well as the post mortem report, in our opinion, has clarified the said position during the course of his examination, though belatedly. From the very nature of the wounds found on the body of the deceased, it is clear that they died of gunshot injuries which is not seriously disputed. What is being disputed by the learned counsel is the points of  entry and exit  which on  facts  of this  case, would make a very little difference since the other evidence adduced by the prosecution clearly shows that the deceased died out of gunshot  injuries. Some discrepancy as to the nature of  entry  and exit  on  facts  of this  case  would not

61

make the prosecution case any weaker. It is more so because of the facts that the casings of the bullets which were recovered by the Investigating Officer were positively proved by the ballistic expert as of those bullets which were discharged from the weapons recovered from the appellants and these casings having been found near the bodies of the deceased on the roof of their house would establish that the deceased died of bullets discharged from the weapons seized from the appellants.  In such circumstances, the question of entry or exit of the  wounds would lose its significance if the  presence  of the  accused  persons  with these weapons at the place and time is otherwise established by the prosecution.”

(emphasis supplied)  

44. Reference  has  also  been made on Modi's jurisprudence.  With

respect to the path of the bullet inside the body in which the following

observations have been made:  

“while searching for a bullet, it must be borne in mind that it could take a very erratic and unusual course while passing through the body. With respect to the determination of the direction from which the weapon was fired, it further states as under :    "The question regarding the direction of fire, whether from right to left or from front to back is of medico­legal importance. To ascertain this, it is necessary to know the position of  the victim at the time of the discharge of  the bullet, when a straight line is drawn between the entrance and exit wounds and prolonged in front generally indicates the line of direction. In some cases, it is difficult to determine the direction as the bullet is so often deflected by the tissues that its course is very irregular, also when the bullet wobbles.”  

(emphasis supplied)  

Though it has been observed that in some cases it is difficult to

determine a direction but in the instant case considering the fact that

the  injuries are  only on  the right  side  which  is  on driver's  side,  3

wounds were caused on the chest and  injury Nos.1, 5 and 6 were

62

caused by the same bullet obviously fired from the driver's side

window only as is apparent from the direction of communicating

injuries also. There is no inconsistency in ocular and medical evidence

in the instant case.

45.  It was submitted on behalf of the learned counsel appearing for

the accused that PW­55 has contradicted himself on the position of

Haren Pandya’s  body inside the car. In his examination­in­chief  he

makes an improvement “pug upar thayi gay ahata” and that he had

fallen on his back “vasa na taraf “. This is an improvement to counter

PW­8’s forensic opinion that the weapon would have to be below the

scrotum. On this count of improvement alone, PW­55 should be

discredited. He has not said that in his CBI statement or to the police

that "Pug upar thayi gay ahata".  

46. This Court in Sukhdeep Singh v. State of Uttar Pradesh and Anr.,

2010 (2) SCC 177, this Court has observed thus:

“17. We find, therefore, that the very basis of the argument raised by the learned counsel on the basis of the statement of Dr. C.P. Srivastava that the injuries could not have been caused while the deceased was in a standing posture is not borne out from the cross­examination.  Even otherwise, we believe that it would be impossible for any witness to give a categorical statement as to the posture that the deceased or the assailants were holding at the time when the firing incident happened. The trial court was not justified in coming to a contrary conclusion as it appears to be a case of misreading of the evidence.”

(emphasis supplied)

63

47. It was further submitted that in the police statement PW­55 has

stated that Haren Pandya collapsed on the front seat then speaks of

Shri Pandya having fallen on the driver’s seat. Later speaks about his

falling on the adjacent seat. CW­1 has stated that “car mein ulte hoke

pade hue hain”. It was submitted that he first says on the question

whether  he  could  see  knees  below steering in the  car,  PW­55 has

replied that he could see a part of the chest and knee. It was

submitted that when injury No.7 has been caused, the weapon could

be below the level of his scrotum to his left. Weapon pointing upwards

when PW­55 has stated that the shooting happened from outside from

the small opening, he stands discredited by the medical evidence. It

was further urged on behalf of the accused that the submission of CBI

that left  leg of  the deceased came up the  injury No.7  is impossible

version, cannot be believed.  

48. In our opinion, from the statement of PW­55 it is clear that when

Haren Pandya fell in the car, his leg came up. Obviously, the left leg

would come  up towards the  driver's side and  where the injury is

caused to him, obviously it would be in the same direction and travel

the same way it has travelled. The same is the statement of witness

PW­55  made in the examination­in­chief cannot be said to be an

improvement. He has stated what he has seen. It is not necessary to

state every minute details in the statement under section 161 Cr.P.C.

64

It is not for the autopsy doctor to give a vivid description as to how the

deceased reacted at the time when gunshots were fired upon him as

he was not  an eye witness. In view of the evidence on record, the

statement made by PW­55, the direction of causing of injury No. 7 is

fully explained and an eye witness cannot be said to state all these

details with mathematical precision. Question is whether he is

otherwise reliable and whether other evidence corroborates him.

Corroborating evidence is available in abundance.

49. As to the precise distance inch­wise position at the time of firing,

there is no witness who can give an exact description as suggested in

a lengthy cross­examination. Lengthy cross­examination on this line

was wholly uncalled for and wholly unnecessary and witness is not

supposed to furnish all such details with precision. Though the

witness has withstood the test of cross­examination also.  

50. The deposition of PW­55 was sought to be further discredited on

the ground that when feet came up, he could not refer to the position

of knees with reference to the steering. The witness is not supposed to

give all these minute details. It is not a case where medical evidence

completely improbabilises the ocular evidence only on that case the

ocular evidence has to be discarded not otherwise.  Reliance has been

65

placed  on  behalf of accused  on  Abdul  Sayeed  v.  State of  Madhya

Pradesh, 2010 (10) SCC 259 thus:

"39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis­à­vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.”

(emphasis supplied)

51. In Nallapati Sivaiah v. Sub­Divisional Officer, Guntur, A.P., 2007

(15) SCC 465 the court observed:

“52. The dying declaration must inspire confidence so as to make it safe to act upon.  Whether it is safe to act upon a dying declaration depends upon not only the testimony of the person recording the dying declaration—be it even a Magistrate but also all the material available on record and the circumstances including the medical evidence.  The evidence and the material available  on record must be properly weighed  in each case to arrive at a proper conclusion. The court must satisfy itself that the person making the dying declaration was conscious and fit to make statement for  which  purposes  not only the evidence of persons recording the dying declaration but also cumulative effect of the other evidence including the medical evidence and the circumstances must be taken into consideration.”

(emphasis supplied)

52. In State of Rajasthan v. Bhanwar Singh, 2004 (13) SCC 147 the

Court observed:

“6. We find that the High Court has carefully analysed the factual position.  Though, individually  some of the circumstances  may not have affected veracity of the prosecution version, the combined effect of the infirmities noticed by the High Court is sufficient to show that the prosecution case has not been established. The presence of PWs 3, 4 and 8 at the alleged spot of incident has been rightly considered doubtful in view of the categorical statement of PW 5, the widow that she sent for these

66

persons to go and find the body of  her  husband. It is quite unnatural that PWs 3, 4 and 8 remained silent after witnessing the assaults.  They have not  given any explanation as to  what they did after witnessing the assault on the deceased. Additionally, the  unexplained delay of  more than one day in lodging the FIR casts serious doubt on the truthfulness of the prosecution version. The mere delay in lodging the FIR may not prove fatal in all cases. But on the circumstances of the present case, certainly, it is one of the factors which corrodes credibility of the prosecution version.  Finally, the medical evidence was at total variance with the ocular evidence. Though ocular evidence has to  be given importance  over  medical evidence,  where the medical  evidence totally  improbabilises  the ocular version  that can be taken to be a factor to affect credibility of the prosecution version. The view taken by the High Court is a possible view. The appeal being one against acquittal, we do not consider this to be a fit case where any interference is called for. The appeal fails and is dismissed.”

(emphasis supplied)

53. In this case, it cannot be said that ocular evidence is belied by

the medical evidence. It was also submitted on behalf of the accused

that  when the eye  witness  made an improvement to suit  medical

evidence which has come on record by itself, it is sufficient to discredit

him. Reliance has been placed on Shingara Singh v. State of Haryana

& Anr., 2003 (12) SCC 758 in which this Court has observed:

“22. In our view, the  High  Court has completely  missed the significance of the finding recorded by the trial court. The trial court found that in the  FIR  as also the statements recorded under  Section  161  CrPC  the  witnesses  had clearly  mentioned that both the appellants had climbed on top of the wall and from there Shingara Singh, A­2 fired at Surinder Singh. If this version were to be accepted, the injury caused would not have been of the nature found by the  Medical Officer who was clearly of the opinion, having regard to the trajectory of injuries, that the person firing the  firearm was at a  lower level  than the victim. Therefore, with a view to bring their case in consonance with the medical evidence on record, all the three witnesses made significant changes while deposing in court and all of them thereafter consistently stated that while A­1 had climbed on top of the wall A­2 stood on the ladder in such a manner that only his face was visible from across the wall and while standing in that  position,  keeping the  barrel of the gun  on the  wall and

67

without resting the butt of the gun against his shoulder, he fired at the deceased. There was no dispute that their deposition in court was consistent, but what was observed by the trial court was that their version as to the manner of occurrence as deposed to by  them was at  variance with what was stated  in  the  first information report by PW 5, and in the statements of PWs 6 and 7 recorded under Section 161 CrPC. When confronted with their earlier statements, they could not give a satisfactory explanation, with the result that their credibility was sufficiently impeached. The change of  version by each one of them, and to the same effect, was deliberate and not merely accidental or on account of lapse  of  memory. It cannot  be  disputed that this  was  a very significant change.  It  cannot also be disputed that the change was deliberately made by all the witnesses so that the prosecution case became consistent with the medical evidence on record. We, therefore, do not find any error committed by the trial court in coming to this conclusion.”

(emphasis supplied)

54. Reliance has also been placed by learned counsel for the accused

on Ram Narain Singh v. State of Punjab, 1975 (4) SCC 497 in which

this Court has observed:

“2. ……..We might also mention here that the definite case of the prosecution before the Sessions Judge was that while the shot was fired at the deceased Teja Singh by Ram Narain Singh he had kept the right hand flexed on his chest. It was thus stated by the eyewitnesses that at the time of firing, the deceased had put his right hand on his chest. These two additions or embellishments appear to us to have been necessitated in order to bring the evidence of the eyewitnesses in consonance with the evidence of the doctor as also that of the ballistic expert, and we shall deal with this aspect of the matter a little later….  

xxx xxx xxx

6. ……..  This particular posture was undoubtedly a most conspicuous fact which could not have been  missed by the witness if it was really there. In these circumstances, therefore, we should have expected this fact to be mentioned in the FIR but it is conspicuously absent from the FIR, nor was this fact mentioned by either Surjit Singh or his brother Joginder Singh in their statements before the police or before the committing Magistrate. It seems to us that the theory of the deceased having placed his arm on the right side of his chest has been introduced only after the doctor who was examined as the second witness in the Sessions Court stated in his examination­in­chief that if the elbow of right arm  is flexed lying in front  of the chest,  then

68

injuries Nos. 1 to 4 could be caused with a single firearm discharge. It would appear that this witness was examined before the Sessions Court on May 14, 1973, and PW Surjit Singh was examined on the same day after the evidence of the doctor was recorded. PWs Surjit Singh and Joginder Singh had to introduce the theory of the deceased having put his right arm on his chest to  bring the occurrence in tune  and in consonance  with the evidence of the doctor. This  was  undoubtedly a belated idea because if it had been a fact there is no reason why the eyewitnesses should not have deposed to it in their statements before the police or even before the committing court. Till  that time the witnesses were not aware of the injuries said to have been caused to the deceased Ram Narain Singh by a single fire unless the deceased was in a particular posture. This fact came to light for the first time when the doctor was examined in the Sessions Court and the witnesses in order to corroborate their testimony with the evidence of the doctor introduced this embellishment in the story of the assault on the deceased. Considered against this background, the argument of the learned counsel for the appellants that the evidence of the eyewitnesses was inconsistent with the medical  evidence appears to be well founded. In other words, the position is that if we discard this part of the evidence of the eyewitnesses which has come to light for the first time in the Sessions Court, then according to medical evidence, the deceased would have got two gunshots whereas it was never the prosecution case that Ram Narain Singh or any other accused fired a second shot at the deceased at any time. The medical evidence, therefore, clearly falsifies the prosecution case regarding the manner in which the deceased was hit.”

(emphasis supplied)

55. Counsel for the accused further submitted that there is an

inconsistency  between the ocular and  medical evidence  which  will

destroy the prosecution case, the benefit of which must go to defence.

Reliance has been placed on Ram Narain Singh  (supra) in which this

Court has observed:                                    

“14. Where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the  ballistic expert, this is a  most fundamental  defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. In Mohinder Singh v. State, AIR 1953 SC 415, this Court observed in similar circumstances as follows:

“In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the

69

duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle.”

It is obvious that where the direct evidence is not supported by the expert  evidence, then the evidence  is wanting  in  the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. While appreciating the evidence of the witnesses, the High Court does not appear to have considered this important aspect, but readily accepted the prosecution case without noticing that the evidence of the eyewitnesses in the Court was a belated attempt to improve their testimony  and  bring the same in line  with the doctor’s evidence with a view to support an incorrect case.”

56. Reliance has been placed as to inconsistency between medical

and ocular evidence by Counsel for accused on  State of Haryana v.

Ram Singh, 2002 (2) SCC 426 in which this Court has observed:        

“1.  While it is true that the post­mortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the post­mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis­à­vis the injuries appearing on the body of the deceased person and likely use of the weapon therefor and it would then be the prosecutor’s  duty and obligation  to  have  the corroborative evidence available on record from the other prosecution witnesses.

xxx xxx xxx

8. The principal contention raised in support of the appeal filed on behalf of the accused persons has been that medical evidence as is available on record, completely demolished the prosecution case……”

57. In  Ram Narain Singh  (supra) the Court observed that the

prosecution has to prove that injury was caused by the weapon in the

manner as alleged. There is no dispute with the aforesaid proposition.

However, the applicability  of ratio  has  to  be seen  in  the  facts  and

70

circumstances of each case. In the instant case, the ocular evidence of

PW­55 is not discredited by the medical evidence.

58. Even otherwise as submitted on behalf of the prosecution that in

case of any discrepancy between the ocular or medical evidence, the

ocular evidence shall prevail, as observed in Yogesh Singh v. Mahabeer

Singh & Ors., (2017) 11 SCC 195:

“43. The learned counsel appearing for the respondents has then tried to create a dent in the prosecution story by pointing out inconsistencies between the ocular evidence and the  medical evidence. However, we are not persuaded with this submission since  both the courts  below  have categorically ruled that the medical evidence was consistent with the ocular evidence and we can safely say that to that extent, it corroborated the direct evidence proffered by the eyewitnesses. We hold that there is no material discrepancy in the  medical and  ocular evidence and there is no reason to interfere with the judgments of the courts below on this ground. In any event, it has been consistently held by this Court that the evidentiary value of medical evidence is only corroborative and not conclusive and, hence, in case of a conflict between oral evidence and medical evidence, the former is to be preferred unless the medical evidence completely rules out the oral evidence. [See Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174, Mani Ram v. State of Rajasthan, (1993) Supp. 3 SCC 18, State of U.P. v. Krishna Gopal, (1988) 4 SCC 302, State of Haryana v. Bhagirath, (1999) 5 SCC 96, Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, (2003) 9 SCC 322, Thaman Kumar v. State (UT of Chandigarh), (2003) 6 SCC 380, Krishnan v. State, (2003) 7 SCC 56, Khambam Raja Reddy v. Public Prosecutor, (2006) 11 SCC 239, State of U.P. v. Dinesh, (2009) 11 SCC 566, State of U.P. v. Hari Chand, (2009) 13 SCC 542,  Abdul  Sayeed v.  State of  M.P., (2010) 10  SCC 259  and Bhajan Singh v. State of Haryana, (2011) 7 SCC 421.]”

59. The ocular evidence to prevail has also been observed in  Sunil

Kundu & Anr. v. State of Jharkhand, (2013) 4 SCC 422 thus:  

“24. In Kapildeo Mandal v. State of Bihar, (2008) 16 SCC 99, all the eyewitnesses had categorically stated that the deceased was injured by the use of firearm,  whereas the  medical evidence

71

specifically indicated  that  no firearm  injury  was  found on the deceased.  This Court held that while appreciating variance between medical evidence and ocular evidence, oral evidence of eyewitnesses has to get priority as medical evidence is basically opinionative.  But, when the evidence of the eyewitnesses is totally inconsistent with the evidence given by the medical experts then evidence is appreciated in a different perspective by the courts. It was observed that when medical evidence specifically rules out the injury claimed to have been inflicted as per the eyewitnesses' version, then the court can draw adverse inference that the prosecution version is not trustworthy.  This judgment is clearly attracted to the present case.”  

(emphasis supplied)

60. Similarly, in Bastiram v. State of Rajasthan, (2014) 5 SCC 398, it

was observed:  

“33. The question before us, therefore, is whether the “medical evidence” should  be  believed  or  whether the testimony  of the eyewitnesses should be preferred? There is no doubt that ocular evidence should be accepted unless it is completely negated by the  medical evidence. This principle has  more recently been accepted in     Gangabhavani    v.     Rayapati Venkat Reddy,     (2013) 15 SCC 298.

xxx xxx xxx

36. Similarly, a fact stated by a doctor in a post­mortem report could  be rejected  by  a  court relying  on  eyewitness testimony, though this would be quite infrequent. In Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263, the post­mortem report and the oral testimony of the doctor who conducted that examination was that no internal or external injuries were found on the body of the deceased. This  Court rejected the "medical evidence" and upheld the view of the trial court (and the High Court) that the testimony of the eyewitnesses supported by other evidence would prevail over the post­mortem report and testimony of the doctor. It was held: (SCC p. 286, para 41)

“41. … [T]he trial court has rightly ignored the deliberate lapses of the investigating officer as well as the post­mortem report prepared by Dr. C.N. Tewari. The consistent statement of the eyewitnesses  which were fully supported and corroborated by other witnesses, and the investigation of the crime, including recovery of lathis, inquest report, recovery of the pagri of  one of the accused  from the place of  occurrence, immediate lodging of FIR and the deceased succumbing to his  injuries within a very short time, establish the case of the prosecution beyond

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reasonable doubt. These lapses on the part of PW 3 [doctor] and PW 6 [investigating officer] are a deliberate attempt on their part to prepare reports and documents in a designedly defective  manner  which would have prejudiced the case of the prosecution and resulted  in the acquittal  of  the accused, but  for  the correct approach of  the trial  court  to do  justice and ensure that the guilty did not go scot­free. The evidence of the eyewitness which was reliable and worthy of credence has justifiably been relied upon by the court.””

(emphasis supplied)

61. With respect to track of bullet for injury No. 7 much was argued.

As already stated  in Modi’s  Jurisprudence, the track of  bullet  may

take a different course once the injury has been caused. Bullet may

ricochet inside the  body  after causing the injury. In view of entry

wound as explained in Modi’s jurisprudence too much cannot be made

out of the direction when the injury could have been caused in the

method and  manner suggested by PW­55. The High Court while

appreciating injury No.7 has not considered the fact that Haren

Pandya fell down inside on adjoining seat and his left leg came up as

stated by the witness. The High Court has simply proceeded on the

basis that the victim was sitting on the driver’s seat or was sliding on

to the adjoining seat. The aforesaid material part of the statement of

witness makes it clear how the injury was caused.

62. It was also urged that the mobile phone of Mr. Pandya was not

investigated.  In our opinion, it was not necessary at all in the facts of

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the case.  It is not disputed that he had left the house in the morning

to walk.

63. It was urged that no fingerprints were lifted from the car or from

the weapon recovered afterward and shoes were not recovered. In our

opinion, it was not a case of a cold­blooded murder where there was

no eye witness.  Thus,  when the accused has not touched the car,

taking fingerprints from  the car  was  not  at  all  necessary  and the

weapon of offence has also been recovered from the accused. It was

not necessary after quite some time when its recovery was made to lift

the fingerprints from it. Merely non­recovery of shoes of deceased from

the hospital where a large number of persons had gathered by itself is

not enough to discredit prosecution case.  

64. The High Court in para 16 has observed that negligible blood

was found near the driver’s seat. The clothes of the deceased bore tell­

tale signs of profuse bleeding from injuries on his neck and fore­arm

and mobile phone and keys lying under the seat had stains of blood.

Thus, it is apparent that there was blood on the seat as well as on the

mobile phone and keys which were lying on the floor.  

65. As eye witness has clearly stated the position where he was. He

has been cross­examined at length, blood on cloth was found, how

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much, where it was found is not going to discredit the ocular version

and an entire incident.  

66. When questioned about the blood, PW­8 has answered, it would

depend  whether haemorrhage  was internal or external. If there is

internal  haemorrhage  there  would not be much blood outside.  The

volume of the blood on the spot  would depend  upon the type of

injuries. Out of 7 bullet injuries, 6 were internal wounds, and on the

fore­arm where minimum or less blood is possible, it was external. In

answer to question No.111, the doctor has stated.

67. The High Court has mostly proceeded on the basis that there

should have  been more blood  found  in  the Maruti car.  As already

discussed, it would depend upon the injury whether it was internal

bleeding and how a person is lying, it can also spill on the clothes and

fact remains blood has also been recovered from the Maruti car. It is

not necessary for how much quantity it should have been recovered. It

was found on mobile phone also and keys as observed by the High

Court. Following facts supports that the incident has taken place as

suggested by PW­55.  

(a) Ex. 160: Panchnama of the place of offence would show that blood

was found.

75

(b) Ex. 774: report of the mobile FSL would show that blood was found

on the spot.

(c) Ex. 547: opinion of serology goes to indicate that human blood was

found.

(d)  Ex.  458:  CFSL­biological  division report:  biological report  would

show that  cotton swabs had B group blood which belonged to the

deceased.

(e) Ex. 451: 5 cotton swabs all indicating B group blood.

(f)  The evidence of  Y.A. Shaikh (PW 101) who deposed that he has

lifted the blood sample by a cotton swab.

(g) The evidence of Satyam Patel, PW­4 (Panch Witness) who deposed

that blood was seen on the seat at the relevant time which was rubbed

with a small pellet of cotton which was sent to the laboratory.

(h) The PM report would indicate that there was a lot of blood in the

thoracic cavity to the tune of 2.2 litres.

(i) Ex. 457, 458 and 169: Panchnama of the clothes would indicate

that the clothes had B group blood.

68. Besides PW­85, R Sharma, Constable has also stated that at the

time when deceased was taken to the hospital, there was no bleeding

from his body.

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69. The post mortem was conducted on 26.3.2003. Time, therefore,

is stated to be 5 to 6 hours before post mortem which comes around 8

a.m. and tallies with the version of PW­55.  

70. It  was submitted that the FIR was not  lodged by PW­55. The

police control room  was informed by IGP  Mr. Suman. Thus, the

conduct  of  PW­55 does  not inspire  confidence,  he  was  not  an  eye

witness. In our opinion, Anil Yadram, PW­55 had gone to inform the

factum of the incident to the owner of Chitty Bang, Mr. Nanubhai S

Wala (CW­1) at Desai Hall. It is not uncommon for a person to react in

the manner PW­55 has done. He first wanted to inform the owner of

the place as to the murder of Haren Pandya. He was not a literate

person.

71

. CW­1 has also supported the version of PW­55, the narration of

incident to CW­1 by PW­55 is quite natural and inspire confidence and

there is due corroboration of the version by CW­1   Nanubhai. In the

circumstances, non­production of Shukla  Chacha  who  had simply

given the lift in a rickshaw to Anil Yadram, PW­55 and has taken him

to the  house  of  CW­1,  Nanubhai  does  not cause  any  dent in the

prosecution version. Merely on the ground of non­examination of the

witness Kanhaiya, the deposition of PW­55 cannot be discarded. By

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the time PW­55 came back to the spot police had already arrived and

the body of the deceased was taken in another vehicle to the hospital.

Anil  Yadram has stated to Nanubhai CW­1 that Haren Pandya had

been shot dead and “woh gadi mein ulte hokar ke pade hain” and he

had seen the accused taking to their heels. It could not be said from

the deposition of PW­55 that he had received the information of the

incident, in fact, he has given a vivid description as eye witness noted

PW­55 or CW­1 had no ill­will or malice against the accused. It does

not make any difference whether Nanubhai CW­1 was examined as a

court witness or as a prosecution witness. Once a witness has been

examined, his evidentiary value has to be considered in accordance

with the law. Once he has been examined no question to draw any

adverse inference against the prosecution arises.

72. It was submitted that CW­1 had attempted to shrink the timeline

by stating that PW­55 came at around 9.15 a.m. instead of 9.45 a.m.

On a rough estimate of time, no adverse inference can be drawn as to

the correctness of the version by the aforesaid witness. Estimation of

time may differ by some margin when a statement is made in court

after years together. Merely by the fact that CW­1 asked PW­55 twice

whether  he  had seen the incident, he said ‘yes' he  had seen the

incident twice. That does not cause any dent in the prosecution case

and does not render the statement of PW­55 doubtful in any manner.

78

We  find  no embellishment or  material improvement in the court's

statement as compared to the one recorded under section 161 Cr.P.C.

The  question of  whether  CW­1  had asked  PW­55  whether  he  was

speaking the truth and omission of that in the statement under

section 161 cannot be said to be a material omission.   Material facts

have been stated in the statement and there is no contradiction with

respect  to  the material facts with the statement under section 161

Cr.P.C. as to the approximation of time also nothing can be made out

by the accused.  

73. The argument was raised on behalf of A­1 that PW­55 did not

mention in the examination­in­chief the time of the incident at around

7.30 a.m. He admitted that he does not have a watch. No one can tell

the correct time. How by the aforesaid statement any benefit can be

derived by the accused, passes comprehension as it is not uncommon

that various persons  do  not keep a  watch and they go  by rough

estimation of the time. It was not necessary to speak about the time of

occurrence in the examination­in­chief nonetheless it has been

brought about in the cross­examination. There is nothing to disbelieve

the estimation of time made in the cross­examination. Time

assessment may differ in some duration. It was urged that as far as

the time consumed by PW­55 is concerned, the incident had not taken

place at 7.30 a.m., the submission is futile. As urged, in which

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condition the  deceased  was taken to the  hospital, is not  material

whether sitting or lying. He was taken to the hospital when he was

already dead.

74. It was urged that the conduct of PW­55 is inconsistent with that

of an eye witness. The witness should have contacted to the regular

walkers in the Law Garden. He did not go to the Law Garden. It is not

likely that he had witnessed the incident. He has stated that he was

too scared to go to the police and stated to Shukla Chacha that he

wanted to tell the police. In our opinion, overall conduct of the witness

is not unnatural considering the person belongs to poor strata of the

society and decided to inform the owner of the Chitty Bang where his

cart  was parked, is  not  common and  is  very usual conduct  in the

course of normal human conduct.            

75. It was submitted that on the basis of the statement of PW 55

sketch  Ex. 620  was prepared. There is crucial variance  with the

description recorded under section 161 Cr.PC. The descriptive features

mentioned by him are not even reflected in the sketch. PW­55’s

deposition cannot be discredited or tainted in any manner by faulty

preparation of sketch.  Even otherwise the evidence of sketch is not of

much significance. Sometime the sketch may not tally with the version

given by a witness.

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76. The High Court is moved by sketch Ex. 620 which was drawn.

PW­55 denied any knowledge of such a sketch. The sketch was not

put to PW­55 in the cross­examination and to obtain his explanation

whether it tallied with the assailant.   In the absence of cross­

examination of  PW­55 on this aspect, the defence cannot take any

advantage of a discrepancy, if any.   I.O. PW­120 has stated that Ex.

620 was prepared in the absence of PW­55, Anil Yadram Patel.  It was

drawn only on the basis of his statement recorded under section 161

Cr.PC the way in which sketch was drawn it cannot be considered

reliable and trustworthy sketch. In the circumstances, sketch in the

reference of the accused ought  not to  have weighed with  the High

Court because it was prepared in the absence of PW­55. PW­101 has

stated that he got the sketch  map prepared on the basis of the

description and handed over it to Mr. A.A. Chauhan, Police Inspector,

Crime Branch.

77. In  view of the identification  made  by the  witness in the test

identification parade, no dent is caused by the so­called sketch in the

ocular evidence of PW­55.  Considering the intricate nature of the

investigation, we find that there was no undue delay in holding the

T.I.P. It  was  held on 5.5.2003  after 20 days of the arrest of the

accused. The accused had been identified in the same.  Jagdish Tiwari

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(PW­39) also, later on, had rightly identified A­1 (Mohmed Asgar Ali) as

the assailant.  The decision relied upon in Subash and Shiv Shankar v.

State of U.P. 1987 (3) SCC 331 wherein the test identification parade

was done after 3 weeks. In the facts of the said case, the identification

was disbelieved. The decision is distinguishable and turns on its own

facts and circumstances.

78. It  is the duty of the High Court to examine the details of the

intrinsic merit of the evidence of eye­witnesses. As observed by this

Court in State of U.P. v. Sahai & Ors., AIR 1981 SC 1442, PW­55 has

been cross­examined repeatedly on the same question as to Maruti

Fronti came from Gajjar Hall Cross Road side which he withstood. The

reason employed by the High Court  that the presence of PW­55 at the

gate at 7.30 a.m. (sharp) is doubtful, is also wrong as he was there

because he had parked his hand cart in the Chitty Bang and the fact

is corroborated by CW­1, Nanubhai who was known to him for the last

15 years. The time­frame employed by the High Court with respect to

the witness travelling time that he should have come back at 10.30

a.m. and not at 11 a.m. is based on estimation as if PW55 was not a

witness but was an accused. The version of the witness is not shaken

by the aforesaid aspect. The timing stated by the witness is by

estimation as he did not carry the watch. The High Court has adopted

hyper­technical approach in assessing the evidence and  has been

82

moved by minor discrepancies which do not go to heart of the matter

and shake the basic version of  the prosecution witness,  as held  in

Vijay @ Chinee v. State of M.P. 2010 (8) SCC 191, and Bhajan Singh @

Harbhajan Singh & Ors. v. State of Haryana (2011) 7 SCR 1.

79. The High Court is also moved by the fact that PW­55 claims to

have seen the kurta of Mr. Pandya and stated the colour of stripes of

kurta as brown whereas stripes of kurta were red in colour. There can

be confusion in identification of the colour of the kurta and memory

may also  fade after several  years and there  is  not much difference

between red and brown. It is a minor discrepancy which has weighed

with the High Court whereas it ought to have been ignored.  

IN RE: WHETHER BULLETS ARE THE SAME AS RECOVERED IN POST MORTEM

80. It was also submitted on behalf of A­1 that bullet recovered was

not sent for ballistic examination and bullets produced in court differ

in colour and the state of deformation recorded during post mortem.

However, it is clear that it was not put to the doctor that the bullets

which were produced in the court, were not the same which he has

recovered.  

81. It was further submitted on behalf of the accused that the colour

depends on whether it is a pure lead bullet or a bullet with a lead core

83

covered by a jacket of zinc.  A pure lead bullet is used in a revolver, a

jacketed bullet with a lead core is used in a pistol. A pure lead bullet

will never look white. Its colour will always be greyish black. If pure

lead bullets caused the wounds on Haren Pandya's body, they would

have been greyish black even  when removed at the time of post

mortem. The bullet sent to CFSL and later produced in court were

pure lead  bullets  which  could  never  have looked  white. Therefore,

these bullets could not be the ones recovered from the body at post

mortem which  were  white  metal  bullets, seen  by the four  doctors

conducting the post mortem. As a matter of fact, the doctor has clearly

opined that white bullets were seized and they were sent for ballistic

examination  and they  have  been  produced from  the  CFSL. In  our

opinion, it was necessary to put in the cross­examination of PW­8 the

fact that the bullets which were produced in court were not the same

which were recovered at the time of post mortem, which has not been

done.   Thus his testimony cannot be discredited on this aspect.

82.  PW­75, Forensic Expert, Mr. Ashok Raj Arora, Senior Scientific

Officer (Ballistics), Asstt. Chemical Examiner to Government of India

has stated that 5 shots were fired from a single standard weapon. He

compared the seals. The bullets were fired from a .32 revolver.

IN RE: FORENSIC EVIDENCE

84

83. As per the doctor, the bullets were made of white metal.   The

Autopsy doctor (PW­8) Mr. Pratik Ravjibhai Patel however, on seeing

the bullets Exhs. 18/1, 18/2, 18/3, 18/4 and 18/5, has clearly stated

that the color of the bullets is grayish and they were slightly deformed.

It is not the cross­examination made that these bullets were not found

in the body.   It was the duty of the cross­examiner to obtain

explanation that whether these bullets which were shown and stated

by the doctor to have been recovered from the body of Haren Pandya

were not the same. When the doctor has seen the bullets and had

identified them that they were recovered from the body, no dent  is

caused by the statement of the doctor that they were made of white

metal.   It is the perception of  the doctor of which metal  they were

made.  Proper identification of the bullets recovered was established in

the court by the witness.   

84. The prosecution has successfully established the chain of

seizure of five very bullets  up to production in court  which  were

recovered from the body of the deceased.  PW­8 has stated that during

autopsy five bullets were recovered from the body of  Haren Pandya

which was  handed over to the  (PW­170)  police  constable in  sealed

condition.  (PW­170) Bipin Bhai, a constable on duty has stated that

he received five bullets in the sealed condition and has handed over

the sealed five bullets to police inspector Y.A. Sheikh (PW­101) in the

85

presence of panch­witness, Falgun Pandya (PW­2).  Further, evidence

of (PW­101), Y.A. Sheikh indicates that he has handed over five bullets

recovered from the body of Haren Pandya to PW­107 who during the

course of the investigation had handed over the same to PW120 on

28.3.2003. The evidence further discloses that PW­120, Dy. S.P., Mr.

Gupta forwarded the said five bullets vide letter dated 4.4.2001 in the

sealed condition to V.S.G.H./EBAB/Forensic Medicine through

Director, CFSL, New Delhi vide letter dated 25.4.2004. Exh.442 is the

document of receipts by which five bullets were sent to Central

Forensic Science Laboratory, New Delhi with seal intact and specimen.

Exh.458 points out that blood found on the five bullets, kurta pyjama

and lifted from the car was of ‘B’ Group.  Thus, it is apparent that the

seals  have  been  found intact  and there is  positive  evidence  of the

custody of the appellants.   Thus, it is far­fetched and intentional for

the defence to contend that bullets have been changed. There is no

room to entertain the said submission.

 85. PW­75, Mr. Ashok Raj Arora, Senior Scientific Officer,

(Ballistics), Assistant Chemical Examiner, Government of India in his

deposition has clearly stated that all the bullets are received in sealed

condition from CFSL, New Delhi. He has also identified articles 18/1

to 18/5 in the seal applied on the backside of Khakhi cover which is

stated to be muddamal article 18/5 which is the seal he had applied.

86

He has stated that he has examined articles 18/1 to 18/5 of which he

has given the details. He has further stated in his examination that

the bullets  were  of  blackish grey colour  but  the one with a jacket

would have copper or aluminum colour.  If the bullet is of white metal

then the metal would be made of steel or aluminium but he has not

seen nor examined the white coloured jacket bullet.   Thus, it is clear

that what has been produced in the court are the same articles which

were examined by the forensic expert – (PW­75).

86. On behalf of the accused, it was submitted that the chemical test

on the clothes has not been done to ascertain the nature of bullets

used in the offence. The test, as well as breach face mark, have to be

performed which is prescribed in the CBI Forensic Manual. The test is

must to eliminate by proper evidence before concluding that un­

jacketed bullets had been used and therefore the revolver was used.

Metal  will  be present  in both unjacketed and  jacketed bullets.  No

copper test was done in the case, therefore, it is not known whether

the actual weapon was a pistol or revolver. In our opinion, even in the

absence  of the  aforesaid test, the  evidence  conclusively  establishes

that the revolver  was  used in the offence for firing the  bullets in

question and that has been proved to be a weapon of the offence and

recovered too.

87

87. The evidence discloses that during the course of police custody

Mohmed Asgar Ali (A­1) on 26.1.2003 gave a disclosure statement and

indicated the  place for recovery of the  weapon in the  presence of

Additional S.P. Chikara and Police Inspector PW­3 Shri Rathi.

Mohmed Asgar Ali (A­1)  has mentioned in his disclosure statement

(Exh.656) information pursuant to which two weapons – i.e. one

revolver and one pistol and the cartridges were recovered vide inquest

memo Exh.196 along with the clothes Exh.1 which A­1 worn at the

time of occurrence.   PW­13, Shrinathsingh, panch witness and Mr.

Chikara have proved the aforesaid aspects.   The weapons were

recovered hidden in the tank of  Battiwla Stove at  Kamar Flat in

Shahpur.   The aforesaid articles seized vide memo Exhibit 196 were

sealed on the same day i.e. on 27.4.2003 and sent to CFSL, New Delhi

along with the clothes of Mohmed Asgar Ali (A­1).   PW­75 received a

list of the material objects along with forwarding letter (Exh.443) along

with .32 bore revolver bearing serial No.B 40350, six .32 bore ‘Scot &

Webley‘ cartridges  and  7.65  mm pistol  bearing  serial  No.EE 0330,

seven 7.65 mm pistol cartridges and one 7.65 mm empty magazine

bearing serial no.3497 and clothes of the accused A­1.

88. On the basis of the examination carried out by forensic

examiner, it was opined that five .32 bore fired bullets received by him

on 25.4.2003 had been fired from .32 bore revolver bearing serial No.B

88

40350 and not from any other firearm, even of the same make, caliber

or bore on the ground that every firearm has its own individual

characteristics marks.  

89. Mr.  Gupta (PW­120) in  his  deposition  has  stated that  Mohd.

Yousuf Maniyari, accused, who has been detained has made a

statement that five empty cartridge cases were given to him by

absconding accused Mufti Sufiyan on 3.4.2003.  They were recovered

from  his shop tied in a cloth vide seizure  memo (Exh.628 dated

10.7.2003). Information memo (Exh.639) was drawn pursuant to

disclosure dated 10.07.2003.  Mr.Arora (PW­75) received the parcel on

16.7.2003.  In all, they recovered four .32 bore S & WL fired cartridge

cases. As they were required to be compared with .32 bore revolver

bearing Serial No.B 40350, the same had been received by him once

again and he opined that these four .32 bore fired cartridges contained

in parcel No.22 had been fired from .32 bore revolver bearing Serial

No.B 40350.   He also found that though the revolver was in working

condition the firing pin of the revolver was found tampered.

 90. The prosecution urged that it is not the requirement of law that

pellets recovered from the body be sent to the ballistic expert to

determine whether they were fired from the given article or not.   On

the contrary, the recovery of pellets from the body clearly establishes

89

the prosecution’s case that the deceased died of the gunshot injuries.

PW­8, surgeon is unaware of the difference between white  metal

bullets/ jacketed bullet, as white metal is a cupro­nickel or zinc but,

lead bullet is grayish black and thus, the cupro zinc or cupro­nickel

jacketed bullet in relation to lead bullet is said to be white coloured

metal whereas, grayish would indicate lead bullet.  

91. It was argued that PW­75 did not find the firing pin damaged

when the weapon was  first  examined by him on 05.05.2003.  The

witness was not able to explain the reason for examining the weapon

once again and for the examination of the damaged firing pin.   The

defence submitted that in the circumstances the identification would

not be possible.  The prosecution has submitted that the breach face

mark, if available and sufficient, can lead to provide identification in

case of tampering of a pin. Reliance has been placed on behalf of the

accused on the deposition of Dr. Jitendra Kumar Sinha (DW­8). He

has admitted not to have seen any of the exhibits pertaining to the

case in question namely the firearms, crime cartridges, test cartridges,

empty cartridges, etc. nor had any occasion to examine those exhibits

under a stereomicroscope.   (DW­8) in the cross­examination was

questioned whether striation marks of the land and grooves imprinted

on the surface of the bullet would be individual characteristics marks.

It  was stated that there may be striation due to extraneous marks

90

which cannot be called individual characteristic explaining the same.

It was the wrong non­committal reply.   The trial court in the

circumstances has referred to individual characteristics on the point

and relied on “An Introduction of  Tool  Marks”,  Firearms under the

heading of “Individual Characteristics” by John E. Davis, the Author

observed as to the striation marks thus:  

"The  "Individual  Characteristics"  on a  fired bullet  are those features  which  distinguish it from bullets fired through all other  bores.  Practically  speaking, the term applies to those minute striae along the land and groove impressions which are produced by, and are characteristic of irregularities within a given bore. Bullets are finally identified with a specific weapon on the basis of these striae."

92. It is apparent that every fired bullet has individual

characteristics in the form of minute striae along with the land and

groove impression.   The bullets are finally identified with the specific

weapons on the basis of these striae.  DW­8 has also stated that in 95

% of the cases, filing in  marks alone permit identification of the

firearm, but  in the event of  any tampering of firing pin, the expert

would examine breach face mark which shall  have to be compared

with test fired cartridges to confirm the opinion that the cartridges are

fired from the said firearm.

93. The  act  of  disclosure  of the  weapon and  its  discovery  at the

instance of A­1 and the bullets found in the body of Haren Pandya was

sent to CFSL, New Delhi wherein it has been opined that they have

91

been fired with the standard weapon (revolver of .32 bore), which had

been recovered.

94. It was submitted by the prosecution that the same very

cartridges  were seized  and sent to  Forensic  Science  Laboratory  as

stated by Dr. Kuldeep Jayantilal Joshi (PW­20), CMO, V.S. Hospital,

Dr.  Anil  Sharma  (PW­19)  and Bipinchandra  Mehta (PW­70),  panch

witness PW­10, Y.A. Shaik (PW­101), etc.  These were received by PW­

75, Mr. Arora after the Department of Biology tested it.   The weapon

was seized on 27.04.2003 and sent on 2nd/ 3rd May 2003 to CFSL.  It

is a fact that initially when the expert first examined the revolver he

did not realise the fact that the firing pin of the said weapon tampered.

When once again after the cartridge cases discovered at the instance

of the accused (A­17) were sent for the laboratory testing, he realised

that the firing pin had tampered.   Be that as it may, the tale­telling

marks of striae makes the position clear.

95. A correspondence between major striae,  general  gross counter

and a reasonable number of finer striae will prove identity.   No two

bullets encounter precisely the same conditions in passing through a

bore, nor do the corresponding striae always appear at the same

lengthwise position on “identical‘‘ specimen.

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96. Dr. Arora emphasised that while giving his testimony before the

court  that degree of  similarities which are  found was never perfect

identity considering the striking area covered by the tampered fire pin

and comparison of the same with the untampered firing pin.  

97. Thus, the evidence of DW­8 also makes it clear that breach face

alone is sufficient to confirm the opinion if they are found to be

repetitive and also of repetitive character of the striations which are

due to an individual firearm can be related to a particular firearm.  In

this case,  while ignoring the difference caused by tampering of  the

firing pin found the second time, the basic striation marks remain the

same which is individual for every revolver and is not to be found in

any other such weapon.  Thus, the evidence is conclusive to prove that

the revolver in question was used in firing the bullets recovered from

the body of the deceased Haren Pandya.  The medical evidence, thus,

supports the version of PW­55.

98.  PW­8 who prepared the post mortem report has been discarded

while relying upon the version of defence witness DW­6 who stated

injuries 5 and 6 as communicating injuries. This Court in  Tanviben

Pankajkumar Divetia v. State of Gujarat, (1997) 7 SCC 156 has

observed that the autopsy doctor’s report cannot be discarded lightly

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as he had seen the injuries. In Tanviben Pankajkumar Divetia (supra)

at para 35, this Court held as:

“35…..We may also indicate here that the doctor who had held the post mortem examination had occasion to see the injuries of the deceased quite closely.  In the absence of any convincing evidence that the doctor holding post mortem examination had deliberately given a wrong report, his evidence is not liable to be discarded and in our view, in the facts of the case, the opinion of the doctor holding post mortem examination is to be preferred to the expert opinion of Dr. Shariff.”

(emphasis supplied)

99. In Eshwaraiah & Anr. v. State of Karnataka, (1994) 2 SCC  677,

this Court has observed in this regard thus:

“9…..In our view, the High Court has lightly held that  the said doctor had no occasion to see the dead body and the injuries on the person of the deceased and only from the report of the post mortem the said doctor gave an expert opinion.  On  the  contrary, two doctors  who had held the post  mortem on the  deceased  had occasion to look  and examine the injuries on the person of the deceased and they had given a clear opinion that the death was due to asphyxia and it was a case of homicidal death…..”

(emphasis supplied)

INTERPOLATION OF SPOT MAP

100. The site map was sought to be discredited on the basis that PW­

120, I.O. of CBI gave a contradictory reply. He said that the original

spot  map was  drawn by pencil and  later  on drawn  in ink. It  was

clearly stated that at the time of re­drawing the same, later on, the

name of accused Asghar Ali was mentioned as it was known by that

time. No dent is caused by the said mentioning of the name of the

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accused and from the explanation given by PW­120, it is apparent that

the name has been added later on.   

101. The  High Court has also doubted by prosecution case  with

respect to interpolation and site map with respect to the name of A­1.

Dr. Gupta, I.O. of CBI, PW­120 has explained the said aspect in the

following manner:

"Question:  You are  being  shown Exh­387.  At the  bottom, the word  Asagarali is  written,  and has  it  been checked  in  Note­3 thereafter?

Answer: Looking at it through the magnifying glass, I say that I am unable to say. The witness states clarifying that the site plan of Exh­ 387 was drawn at the time on 29/3/03 with pencil, and at each place, the noting was made with pencil. At the time of attaching it to the charge sheet, it was very dim and therefore, it was made clearer with the help of sketch pen and the drawing and the writing made with the pencil has been stroked out and the note written at the bottom was written at the time of filing the charge sheet.  Therefore, there  are some  pencil  marks  on this paper. At the place of ‘A', ‘D' and Law­Garden, NCC Ground and HP Car, etc. is written, it seems. The writing done on the entire sketch is made by my colleague PI Mr. Vijayvirsinh in his handwriting.  The noting point  –  3 and 4 written after  erasing would have been falsely written by Vijayvirsinh. So it was removed/erased, but I do not agree with the view that Asagarali has written it. Question: After writing the name of Asagarali in Note­3 and Exh­ 387, you have erased it?

Answer: I do not agree with that view. It is not true and I do not agree with this view that on 29/3/03, we knew that we would book Asagarali in this case. He is to be implicated,  and  his  name was  written  and later  when it  was realized that it was the document dated 29/3/03, his name was spoken out.”  

The High Court ought to have taken note of the aforesaid

statement in what circumstances name came to be added later on.  It

was clearly a mistake as admitted by the witness.

95

NON­EXAMINATION OF JAGRUTIBEN, W/O. HAREN PANDYA

102. It was submitted on behalf of the accused that Ms. Jagrutiben,

wife of Haren Pandya should have been examined so as to prove that

the offence took place at about 7.30 a.m. as she has stated in the

statement under Section 161  Cr.P.C. that deceased left house at

around 7.00 a.m.  Some of the friends of deceased and P.A. etc. later

on reached the spot they have not been examined. In our opinion, no

dent  is  caused as Jagrutiben and other persons were  not the eye­

witnesses. In case of any doubt, they could have been examined as

defence witnesses. Jagrutiben, even if examined, would have proved

the fact that deceased left for Law Garden at around 7 a.m. and he

would have reached there around 7.10 a.m. No benefit can be drawn

from the aforesaid aspect. No adverse inference can be drawn against

prosecution due to non­examination of Jagrutiben.   As estimation of

time may differ and as per Jagrutiben, deceased left for Law Garden

only where he used to go for a morning walk.  

IN RE: CALL RECORDS  

103. Learned Addl. Solicitor General on behalf of the prosecution has

submitted that all call records  of the  accused  persons  during the

entire period of conspiracy and the tower location of the phones of the

accused persons near the Law Garden on the day of the murder of

Haren Pandya are the strong circumstantial evidence against the

96

accused persons. The accused persons were in possession of mobile

phones and were in constant touch with each other before, during and

after  the commission of the crime through their  mobile  or  landline

phones, as depicted in the call details records, in order to execute the

conspiracy.  As mobile  phone No.9825491421 was used by A­1, his

location at 7.33 a.m. on 26.3.2003 in the area near Law Garden and

A­14 providing three new BSNL SIMs. to A­7, A­8 and A­9 on

25.3.2003 and their location on 25.3.2003 and 26.3.2003 near Law

Garden were strong corroborative evidence of the presence of some of

the accused in the Law Garden area. The printouts of email sent by A­

1, A­2 and A­18 revealed that they were operating in furtherance of a

common object as also the presence of some of them in Udaipur and

Ahmedabad, even as the text of email  messages did not reveal any

specific  plan  of committing  any  particular  crime. It is  pertinent to

mention that the trial court  has extensively  dealt  with the  mobile

phone, sim card details and the evidence adduced to prove the usage

of the said phone handsets and sim cards by the accused persons.  

IN RE: MOTORBIKE USED BY A­1 AND A­6 :

104. The motorbike used by A­1 and A­6 at the time of the

commission of  the offence was duly recovered. The entire gamut of

facts relating to the motorbike is as under:

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(i) A­10 purchased motorcycle No.GJ­ISS­5934 from PW­54 and

gave it to A­1 in the first week of February 2003 for his

movements in Ahmedabad.

(ii) After the commission of a crime, the motorcycle was handed

over by A­10 to PW­45 while fleeing from Ahmedabad on

4.4.2003 and thereafter PW­45 parked the same in the parking

of Kalupur Railway Station from where the same was recovered

by CBI in presence of PW­24 on the night intervening

24/25.4.2003.

(iii) In December 2002, on the directions of A­13, PW­57 (hostile

witness but statement under section 164 Cr.PC arranged 3

stolen motor Hero Honda motorcycles and handed over the same

to A­4. Thereafter, A4 retained one with him and handed over

one each to A­14 and A­5. Later on, these motorcycles were used

in the commission of a crime on 11.3.2003, 25.3.2003 and

26.3.2003.

(iv) One of the stolen motorcycles was handed over by A­10 to

PW­45 on 3/4.4.2003  while fleeing from  Ahmedabad. PW­45

parked the same in Apsara Aradhna Theatre and later on

brought by PS Kagdapeeth from where it was seized by CBI on

the pointing of PW­45 on 25.4.2003.

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(v) A fake number plate bearing No.GJ­ICH­5189 was got

prepared by A­7 and A­8 from PW­52. This number plate was

put on the second Hero Honda motorcycle after the commission

of a crime.  

(vi) The said motorcycle was abandoned by A­10 and A­11 while

fleeing from Ahmedabad at Tarapur Highway. The fake number

plate was removed from the motorcycle and thrown into roadside

bushes which were recovered under section 27 Evidence Act at

the pointing out of A­10 in presence of PW­86 on 12.6.2003. the

said  motorcycle was taken into possession by PS Koth and

thereafter seized by CBI on 12.6.2003 from PS Koth.    

 Presence of A­1 at Ahmedabad is proved by the use of phone

number and by PW­95.  

105.  With respect to the disappearance of the mobile phone of

accused A­1, no such question was put to I.O., PW­120 that mobile of

A­1 had disappeared from Muddamal. Neither any mobile phone nor

any  sim card  was  seized from A­1  on  his  arrest  by  one  DIG Shri

Behra. It is, in fact, Yusufbhai, PW­95 who is an independent witness

who stayed in the same Royal Apartments as A­1 has proved that A­1

was using mobile No.9825491421 during the relevant time.  

PLACE OF EYE WITNESS NOT DEPICTED IN SPOT MAP

99

106. With respect to not showing the presence at a particular spot of

an eye­witness in the spot  map, reliance  has  been  placed  by the

prosecution on a decision of this Court in Tori Singh & Anr. v. State of

U.P.,  AIR 1962 SC 399. With respect to the spot map,  it  has been

observed that it  would  be  based  on hearsay  of  witness.  Spot  map

would be admissible so far as it indicates all that the Inspector saw

himself at the spot. Any mark put on the spot map on the basis of

statements made by the witness to the Inspector would be

inadmissible in view of the clear provisions of section 162 Cr.P.C. This

Court has observed thus:

“7. We are of opinion that neither of these arguments has any force. Let  us  first take  the contention  that it  was most unlikely that the deceased would be hit on that part of the body where the injury was actually received by him if he was at the spot marked in Ex. Ka­9. The validity of this argument depends mainly on the spot which has been marked on the sketch­map Ex. Ka­9 as the place where the deceased received his injuries. In the first place, the map itself is not to scale but is merely a rough sketch and therefore one cannot postulate that the spot marked on the map is in exact relation to the platform. In the second place, the  mark on the sketch­map  was put by the  Sub­ Inspector who was obviously  not  an eyewitness to  the  incident.  He could only have put it there after taking the statements of the eyewitnesses.  The marking  of the  spot  on  the  sketch­map  is  really bringing on record the conclusion of the Sub­Inspector on the basis of the statements made by the witnesses to him.   This in our opinion would not be admissible in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub­Inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit. The sketch­map would be admissible so far as it indicates all that the Sub­ Inspector saw himself at the spot; but any mark put on the sketch­ map based  on the statements  made  by the  witnesses to the  Sub­ Inspector  would  be inadmissible in view  of the clear  provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation. We may in this connection refer to  Bhagirathi  Chowdhury  v.  King­Emperor,  AIR 1926 Cal. 550, where it was observed that placing of maps before the jury containing statements of witnesses or of information received by the  investigating officer  preparing  the map from other  persons was

100

improper  and that the investigating  officer  who  made  a  map in  a criminal case ought not to put anything more than what he had seen himself.  The  same view was  expressed  by the Calcutta  High Court again in Ibra Akanda v. Emperor, AIR 1944 Cal. 339, where it was held that any information derived from witnesses during police investigation, and recorded in the index to a map, must be proved by the witnesses concerned and not by the investigating officer, and that if such information is sought to  be  proved  by the evidence  of the investigating officer, it would manifestly offend against Section 162 of the Code of Criminal Procedure.”

107. In Pratap Singh & Anr. v. State of M.P., 2005 (13) SCC 624, it was

held that even if the witnesses are not reflected in the site plan, that

does not bar the prosecution to produce such witnesses during the

trial. Since PW­55 has not been confronted with the site plan and no

question  had  been  asked to the  witness, thus  his  ocular evidence

cannot be discredited on the basis of the aforesaid omission.

I.O. NOT ON SPOT

108.  The High Court has also employed the reason that Police

Inspector PW­101  was supposed to be investigating at 2 p.m. on

26.3.2003 at the scene of the offence. He was shown present at post

mortem at 2.15 p.m. PW­101 in this regard he has explained that he

handed over the papers to Head Constable. Post Mortem might have

been made at 2.15 p.m. but he was not present in the post mortem

room at that time.  The statement of the  witnesses ought to  have

prevailed as to his presence on the spot.

RECOVERY OF REVOLVER AND PISTOL FROM A­1:

101

109.  In spite of the tampering of the firing pin, the material striations

are telling the tale and overall  evidence  inspires confidence and no

dent is caused in the prosecution case. In our considered opinion the

bullets and cartridges seized from A­1 match with the revolver and

bullet recovered from Haren Pandya's body. We reject the submission

raised by A­1. The recovery was from the rented flat of A­1 at

Ahmedabad. No one had access to the place and knowledge. Thus, the

recovery at the instance of A­1 is not doubtful.  

110. Statement of  PW­76, Akhtar is not at all  with respect to the

disclosure and discovery attributed to A­1 on the intervening night of

26.4.2003 and 27.4.2003 of a revolver, pistol, and cartridges. PW­76

has deposed as to the motorcycle.   In our opinion, it was not for the

police to explain as to who had put two locks on the flat as submitted

by the accused. That no adverse inference can be drawn for failure to

explain putting of 2 locks. In no case, locks can be attributed to CBI.

111. The  High  Court  has  observed that in view  of the concession

granted by the counsel for  the appellants,  voluminous records and

number of controversies about each piece of evidence, it  was not

necessary to be dealt with and each and every argument of learned

counsel for  both the sides. It could  not  be said to  be the  proper

approach of the High Court. The High Court ought to have examined

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the entire background as to what facts and circumstances prevailed

and whether the chain was complete to make out the case of

conspiracy. It was absolutely necessary so as to find out the

conspiracy. The acquittal recorded by the  High  Court  was  wholly

uncalled for and is based on basically a  wrong approach. It  was

incumbent upon the High Court to come a close quarter of reasoning

employed by the trial  Court and assessment of  the evidence of  the

witnesses  done  by the trial court  with  great care, in  an  elaborate

manner. The High Court has failed to consider the reasons and has

jumped to the conclusion.         

    IN RE: SECTION 32 OF POTA:

112. We now take the question for consideration whether confessional

statements have been recorded after due compliance of provisions of

section 32 of POTA. The confession of the accused persons recorded

under section 32 of POTA proves the involvement of each and every

accused person  in  the criminal  conspiracy.  The  question has  been

raised that whether the safeguards provided under section 32 have

not been observed.  

113. Section 32 of the POTA contains a non­obstante clause like

notwithstanding anything in the Criminal Procedure Code or in the

Indian Evidence Act and makes admissible certain confessions made

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to the Police Officers. However, the same is subject to the provisions of

section 32 which is extracted hereunder:

“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 sub­section (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 sub­section  (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 the mechanical or electronic device within forty­eight 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 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.”

114. Following safeguards are provided in the provisions contained in

section 32 of the Act :

(i). Confession to be made by the person before a Police Officer not

lower in rank than a Superintendent of Police.

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(ii). It has to be recorded either in writing or on any mechanical or

electronic device like cassettes, tapes or soundtracks.  

(iii). The Police Officer before recording confession has to appraise the

accused in writing that he is not bound to make a confession and in

case he makes it, the same may be used against him.  

(iv). That accused shall not be compelled to make any confession.

(v). The  confession shall  be recorded  in  an atmosphere free from

threat or inducement.

(vi). Confession to recorded in the same language in which it is made.

(vii). The  person  who  has confessed shall be produced before the

court of Chief Metropolitan Magistrate or CJM along with the recorded

confession within 48 hours.

(viii). The CMM/CJM shall record the statement, if any, made by the

person so produced and get his signature or thumb impression on it.

If there is  any complaint  of torture  by such a  person,  he shall  be

referred for medical examination to an Assistant Civil Surgeon or any

officer higher in rank.

(ix). The person shall be sent to judicial custody and not to police

custody.

105

115. It was urged on behalf of the CBI that all the aforestated

safeguards have been observed.  The submission has been refuted by

Ms.  Nitya  Ramakrishnan and other learned counsel appearing on

behalf of the accused persons.  

116. First,  we examine whether the basic safeguards of  section 32

have been observed or not. Dy. SP, CBI on 18.6.2003 wrote a letter to

the SP, ACB, Gandhi Nagar to the effect that accused Asghar Ali has

expressed his willingness to make confessional statement voluntarily.

The Superintendent of Police was requested to record his statement

under section 32 of POTA. After receiving the said communication, the

SP, ACB, CBI has recorded that he directed the Dy. S.P. to produce

the accused person before him on 18.6.2003 at 7 p.m. after handing

over custody of the accused to some other officer. Following

proceedings had been recorded by the S.P. :

“Today on 18.6.2003, I received a  requisition  from Dr. S.K.Gupta, Dy. S.P., CBI, SIC I, New Delhi, (Camp Gandhi Nagar), in CBI RC.5(S)/2003­ SIU.I/SIC.I/CBI/New Delhi requesting me to record the confessional statement of accused Asghar Ali under Section 32 of the Prevention of Terrorism Act, 2002 (POTA). Accordingly, I directed Dr. S.K. Gupta to produce accused before me on 18.6.2003 at 7.00 p.m. after handing over the custody to some other officer.”   

117. On the accused Asghar Ali being produced before the S.P., he

has recorded the following proceedings:

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“ Proceedings under s. 32 of Prevention of Terrorism Act, 2002.

Accused  Asghar Ali, S/o  Mohd.  Wazir Ali, aged 27 years, R/o House No.8/3/113, Darusafa Colony, Nalgonda, Hyderabad, was today produced before me on 18th  day of June, 2003 at around 7.00 p.m. in the Chamber  of  S.P.,  CBI/ACB by  ASI  Shri Ishwar  Chand Sharma, for recording his statement under Section 32 of the Prevention of Terrorism Act, 2002 (POTA) in connection with Case No. CBI RC.5(S)/2003­ SIU.I/SIC.I/CBI/New Delhi (Jagdish Tiwari case).”     

118. After the ASI who produced him was asked to go out of the room

when he went away, only the S.P. and accused remained inside the

room. The S.P. had again put certain questions and apprised him all

the  details of the  case  and  also  ascertained from him whether  he

wanted to make a confessional statement. Accused was told that he

was not legally bound to make such a statement. In case any such

statement was made, the same may be used as evidence against him.

He was also asked whether he was under any fear, pressure or greed

or was beaten, tortured physically and mentally by anyone. He agreed

to give a statement and denied to be under any fear, pressure or greed

or beaten up or tortured in any manner. He was told that he was not

legally bound to give the confessional  statement. The S.P. had also

recorded a finding that there was no physical injury, mark of violence

on his person. The S.P. ordered in writing for keeping the accused

Mohd. Asghar Ali for the purpose of his reflection in order to make up

his mind whether he actually wanted to make a confessional

107

statement or not and no one is allowed to meet him during the period

of reflection. On 18.6.2003 following questions were put :

“I asked ASI Ishwar Chand Sharma to go out of the room, and he went  away.  Thereafter,  only  myself  and the accused remained inside the room. I asked the following questions from the accused and the answers to the questions were given by the accused.

Q. Tell me your name, your father's name, your age, and  

address?

A. My name is Asghar Ali, s/o Mohd. Wazir Ali, aged 28 years,  

R/o House No. 8/3/113, Darusafa Colony, Nalgonda, Hyderabad.

Q.What are your educational qualifications?

A. I am 10th fail.

Q. What is your occupation?

A. I was doing business of grocery and general stores.

Q. When you were arrested and for which crime?

A. I was arrested by the CBI in connection with the Jagdish  

Tiwari case on 12.6.2003.

Q. Do you know that I am a Superintendent of Police?

A. Yes, I know that.

Q. Do you know why you have been produced before me?

A. Yes I know I have been produced before you for recording of  

my confessional statement.

Q. Do you wish to confess to your crime?

A. Yes Sir.

Q. Do you know that you are not legally bound to five the  

confessional statement, and if you give any such statement, it  

would be used as evidence against you?

A. I do not know anything about this. But you have explained me  

and therefore I have understood it now.

Q. Are you giving this confessional statement under any fear,  

pressure or greed?

A.  No. I am giving this statement voluntarily on my own.

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Q. Have you been beaten or tortured physically and mentally  

anyone?

A. No.

. The answers to the above questions were given by accused on

his own volition and the questions and answers were read over

and explained to accused and he admitted them to be correct and

signed the same.

Sd/­ Illegible

Mohd. Asghar Ali

Sd/­ Illegible  Vinayak P. Apte

 Superintendent of Police  CBI/ACB, Gandhi Nagar”

119. On 21.6.2003 the accused was again told that he was not bound

to give a confessional statement as mentioned above. The proceedings

recorded on 21.6.2003 by the S.P. are extracted hereunder :

“At this time, I warned the accused that he is not legally bound to give the confessional statement and if he gives any such statement, it would be used as evidence against him. I examined the  person  of accused  and found  no  apparent  or visible injury on his person or any mark of violence. I ordered for keeping the accused Mohd. Asghar Ali alone for the purpose of reflection in order to further  make up his  mind whether he actually wants to make his confessional statement or not. I further instructed that  no  one  be  allowed  to  meet  him during the period of reflection.

Sd/­ Illegible Mohd. Asghar Ali

 Sd/­ Illegible    Vinayak P. Apte

Superintendent of Police CBI/ACB, Gandhi Nagar”

120. After 65 hours lapsed, after the accused was given warning, he

was directed to be produced before the S.P. who has recorded that

during his period of reflection, no person was allowed to meet him.

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Once again warning was given. He was asked why he wanted to give a

confessional statement. He was told the consequence of confessional

statement once again that it could be used against him to which he

answered that he knew it very well. Following is the note prepared by

the S.P.:

“Now  more than 65  hours  have  passed since  accused  was given warning and accused was directed to produced in the Chamber of SP/CBI/ACB, Gandhinagar. During the period of reflection, no person was allowed to meet or talk to him. There is no other person in the Chamber of SP, CBI, ACB, Gandhi Nagar, except  myself  and  the accused Mohd.  Asghar  Ali.  Following questions are again put to him.

Q. What  is the decision you have taken for giving the confessional statement during long duration of time since 18.6.2003? A. I have decided to give my confessional statement.

Q. Why are you willing to give confessional statement? A. Because  I  want  to lessen my burden and I  want to  confess my

crime.

Q. I am once again warning you that you are not legally bound to give the confessional statement  and if you give  any such statement, it would be used as evidence against you? A. Yes, I know very well.

Sd/­Illegible Mohd. Rauf. Sd/­ Illegible 21.6.2003”

121. Thereafter his confessional statement had been recorded by the

S.P. After recording the confessional statement, Asghar Ali has signed

it. It has been mentioned that the confessional statement has been

read over  and explained  to the  accused.  He  has  admitted it to  be

correct. The S.P. has appended a bottom note to the statement that he

has informed the accused that he was not bound to give his

confessional statement. If he gives it, it could be used against him. He

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has given it voluntarily, without any fear or pressure and it has been

recorded by him, read over to the accused. It has been heard,

understood and admitted to be correct by the accused and confession

has been recorded whatever has been given by the accused. Following

is the relevant portion of the aforesaid proceedings:

“The above statement has been read over and explained to the  accused which has been admitted by him as correct. Sd/­ Asgar Ali.

Sd/­ Vinayak. P. Apte Supt. of Police CBI/ACB

Gandhinagar

At this stage I informed the accused that he is not bound to give his confessional statement. I also informed the accused that if he gives his confession statement the same would be used in evidence against him. I have confidence that the accused gave his confession statement voluntarily and without any pressure, fear and voracity. The confession statement has been recorded by me personally and has been read over and over and explained to the accused and the  entire  confession  statement  has  been  heard, understood and admitted to be correct by the accused. The same confession statement has been recorded whatever has been given by the accused.

Sd/­ 21.6.03

Vinayak P. Apte                       Supt. Of

Police CBI/ACB         Gandhinagar

Accused Asghar Ali has been handed over to Dr. S.K. Gupta, Dy.  S.P, SIC­I, CBI, New Delhi Camp Gandhi Nagar today on  21.6.2003 at 3.00 PM.

     Sd/­ 21.6.03

   Vinayak P. Apte

                                                            Supt. Of Police CBI/ACB

Gandhinagar”

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 In view of the aforesaid,  it is apparent that the provisions of

section 32(1), (2) and (3) of POTA have been complied with.  

122. On 21.6.2003 the accused  was produced before the Special

Magistrate for CBI, Ahmedabad. An application was also filed under

section 32(4) of the POTA for producing accused. It  was mentioned

that the confessional statement has been made by the accused

voluntarily without fear, threat or inducement while recorded by the

SP, CBI, ACP. The Magistrate has asked the accused whether he was

ill­treated or tortured by the CBI while in custody recording

confessional statement to which he replied in the negative. He further

stated that he has voluntarily made the confessional statement. On

that, he was sent to judicial custody till 4.7.2003.   

123. It is pertinent to mention here that a similar process has been

followed while recording the confessional statement of accused

persons by PW­21 under section 32 of POTA.   

124. It is submitted that on the strength of a decision of this Court in

State (NCT of Delhi) v. Navjot Sandhu etc., (2005) 11 SCC 600

(hereinafter referred to  as ‘the  Parliament  attack  case"),  POTA has

absorbed into it the guidelines spelled out in  Kartar Singh's case

(1994) 3 SCC 569, and there  is  a conscious  improvement over  the

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TADA Act.  Therefore,  TADA is no guide to understanding the same

with respect to confirmation proceedings before the Magistrate.

Following is the relevant portion:

“156. As already noticed, POTA has absorbed into it the guidelines spelt out in  Kartar Singh v. State of Punjab, (1994) 3 SCC 569 and  D.K. Basu v. State of W.B.,  (1997) 1 SCC 416, in order to impart an element of fairness and reasonableness into the stringent provisions of POTA in tune with the philosophy of Article 21  and allied constitutional provisions. These salutary safeguards are contained in Sections 32 and 52 of POTA. The peremptory prescriptions embodied in Section 32 of POTA are:

(a) The police officer shall warn the accused that he is not bound to make the confession and if he does so, it may be used against him [vide sub­section (2)]. (b) 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 [vide sub­section (3)]. (c) The person from whom a confession has been recorded under sub­section (1) shall be produced before the Chief Metropolitan Magistrate or Chief Judicial Magistrate along with the original statement of confession, within forty­eight hours [vide sub­ section (4)]. (d) The CMM/CJM shall record the statement if any, made by the person so produced and get his signature and if there is any complaint of torture, such person shall be directed to be produced for medical examination. After recording the statement and after medical examination,  if necessary,  he shall  be sent to  judicial  custody  [vide sub­ section (5)].

The mandate of sub­sections (2) and (3) is not something new. Almost similar prescriptions were there under TADA also. In fact, the fulfilment of such  mandate is inherent in the process of recording a confession by a statutory authority. What is necessarily  implicit is,  perhaps, made explicit. But the notable safeguards which were lacking in TADA are to be found in sub­ sections (4) and (5).

157. The lofty purpose behind the mandate that the maker of the confession shall be sent to judicial custody by the CJM before whom he is produced is to provide an atmosphere in which he would feel free to make a complaint against the police if he so wishes. The feeling that he will be free from the shackles of police custody after production in court will  minimise,  if  not remove, the fear  psychosis  by  which  he  may  be  gripped. The various safeguards enshrined in Section 32 are  meant to be strictly observed as they relate to personal liberty of an individual. However,  we add a caveat  here.  The strict  enforcement of the provision as to judicial remand and the invalidation of the

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confession  merely on the ground of its non­compliance  may present some practical difficulties at times. Situations may arise that even after the confession is made by a person in custody, police custody may still  be required for the purpose of  further investigation. Sending a person to judicial custody at that stage may retard the investigation. Sometimes, the further steps to be taken by the investigator with the help of the accused may brook no delay. An attempt shall however be made to harmonise this provision in Section 32(5) with the powers of investigation available to the police. At the same time, it needs to be emphasised that the obligation to send the confession maker to judicial custody cannot be lightly disregarded. Police custody cannot be given on the mere asking by the police. It  shall  be remembered that sending a person who has made the confession to judicial  custody after he is produced before the CJM is the normal rule and this procedural safeguard should be given its due primacy. The CJM should be satisfied that it  is absolutely necessary that the confession maker shall be restored to police custody for any special  reason. Such a course of sending him back to police custody could only be done in exceptional cases after due application of mind. Most often, sending such person to judicial custody in compliance with Section 32(5) soon after the proceedings are recorded by the CJM subject to the consideration of the application by the police after a few days may not make material difference to the further investigation. The CJM has a duty to consider whether the application  is only a ruse to get back the person concerned to police custody in case he disputes the confession or it is an application made bona fide in view of the need and urgency involved. We are therefore of the view that the non­compliance with the judicial custody requirement does not  per se  vitiate the confession, though its non­compliance should be one of the important factors that must be borne in mind in testing the confession.”

125. This Court has observed that safeguards have been provided in

various provisions made in section 32. Exclusive provisions have been

made  in section 32.  The notable  safeguards which were lacking  in

TADA are to be found in sub­sections (4) and (5). While interpreting

the provisions of section 32(5), this Court has observed that ordinarily

the person should be sent to judicial custody. In exceptional cases,

police custody can be granted and not otherwise. Non­compliance with

usual custody requirement does not per se vitiate the confession. In

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the instant case, the accused persons have been sent to judicial

custody and the provisions of section 32 have been complied with in

pith and substance.   

126. It was also submitted on behalf of accused persons the strength

of the Parliament attack case that the Magistrate should have read out

the confession or at least gist of the same for compliance of provisions

of section 32(5). The  magistrate should also assure the accused

beforehand that he can be sent to judicial custody and thereafter it is

not  enough  that  he  ends  up  sending  him  to judicial custody.  The

statement of the accused is read over by the S.P. and if the same is

admitted to be correct, thereafter he had put his signatures. Section

32(4) requires that the person whose confession has been recorded to

be produced before the Magistrate along with an ordinary statement of

confession within 48 hours. The Magistrate shall record the statement,

if  any,  made by the person so produced and get  his signatures or

thumb impression. If there is any complaint of torture then medical

examination  has to  be ordered  and thereafter  he shall be sent to

judicial custody.  

127. When we read order sheets, it is apparent that the Magistrate

has recorded the statement made by the accused and has obtained

the signatures. The Magistrate has clearly enquired whether he was

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ill­treated or tortured by the CBI while in  custody, for  recording a

confessional statement to which he replied in the negative. The

accused was asked what he wanted to say to which he responded that

he made a voluntary confessional statement. Then he was remanded

to judicial custody. In view of the fact that the officer of the rank of

S.P. has duly recorded that he has read over the statement and the

accused has admitted it to be correct, as in due compliance with the

provisions of section 32, so it was not necessary for the Magistrate to

read over the same again to the accused, in view of clear language

employed in section 32(4) and (5) the duties enjoined upon the

Magistrate have been duly observed.

128. Learned counsel  on behalf  of the accused submitted that the

Magistrate did not care to open the sealed envelope containing

confessions and did not read it out to the accused. In  State of

Maharashtra v. Bharat Chaganlal Raghani & Ors., (2001) 9 SCC 1, this

Court has observed that there is no requirement of the opening of the

sealed envelope by the Magistrate containing the confession and to

read it out to the accused. Following observations have been made by

this Court:

 “36. Sub­rule (5) of Rule 15 of the TADA Rules provides that the confession recorded under Section 15 of the TADA Act shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in  which such confession  has been recorded and such Magistrate shall forward the record

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of confession  so received to the  Designated  Court  which may take cognizance of the offence. Rule 15 does not oblige such Magistrate either to open the envelope containing the confessional statement recorded by the police officer or to satisfy himself regarding the voluntary nature of the confession. The  Magistrate, at the  most, can record the statement of the accused if made regarding alleged harassment, torture or the like. If the Magistrate, referred to in sub­rule  (5)  of  Rule 15 has to ascertain the voluntary nature of the confessional statement, the purpose of Section 15 authorising a  police  officer to record  the  confessional statement shall stand frustrated. It was, therefore, not correct on the part of the Designated Judge to hold,

“it was obligatory on the part of the Magistrate to question the accused as to whether they had made the said statements voluntarily or otherwise and that ought to have been formed  as  a  part of the record  of the confessional statements which were sent to her”.

The Designated Judge has also erred in holding that the Magistrate had not discharged the duties which were cast on her properly. The observations:

“Had she recorded a memorandum below the confessional statements that she had questioned the accused about the averments in the said statements and she considered the said confessional statements to be voluntary and correct, then in that event, the confessional statements would have inspired the confidence of the court to believe that they are free from any of the influences. The Magistrate is not expected to take the position of a superior postman in the sense, receive the confessional statements and forward the same to the TADA Court by putting them in another envelope. The moment she receives the confessional statements, it should occur to her as to why they are sent to her? What is she required to do with them? Had the Magistrate been meticulous, it would have occurred to her that she is required to question the accused as to whether they have really confessed in the manner recorded in the statement and in that event, in normal course, she would not have forgotten to make a memorandum below the confessional statements. Her writing to this effect below the confessional statements would have been of great assistance to the cause of justice”

are, therefore, uncalled for."

129. The application which was filed by the prosecution before

Magistrate was not for police remand but for sending him to judicial

custody. Thus, when the accused had been sent to judicial custody, it

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cannot be said that he was not aware that he was to be sent to judicial

custody. Since there was no complaint of any torture and S.P. had

also recorded the fact that there was no complaint of torture or any

mark of injury or violence on his body, he was sent to judicial custody.

130. The decision in Adambhai Sulemanbhai Ajmeri & Ors. v. State of

Gujarat, (2014) 7 SCC 716 in which confessional statement was made

after 11 months and the accused was given only 15 minutes’ time to

reflect­  whether they  wanted to  make confessional statement and

thereafter it was recorded, and it appears that the record of the case

also did not reflect that it was read over. It does not appear that in the

said case it was read over by the Superintendent of Police. Be that as

it may. The requirement has been fulfilled in the instant case as the

S.P. has read over and is so recorded, that he has read over and it was

admitted to be correct and thereafter the accused has signed it. The

original statements were recorded in the Hindi language which was

known to the accused persons in their own words.

131. Relying upon Nathu v. State of Uttar Pradesh, AIR 1956 SC 56,

learned counsel on behalf of accused persons submitted that prolong

police custody is sufficient to cast doubt out on the veracity of the

confession. In the instant case, the confessions have been recorded

from 4.6.2003 to  22.6.2003. In the instant  case the  accused  were

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arrested on different dates in May and June and some were taken into

custody from one case to another and then taken on police remand,

and in the facts and circumstances of the present case there was no

such prolonged custody so as to render the confessional  statement

doubtful in any manner only due to the fact of police custody. The

impact of police custody would depend upon the facts of each case.

What is the impact of police custody on the confessional statement

has to be considered also in view of the fact whether the accused were

given sufficient time to think over which was given in the instant case.

They had legal assistance also as they had communicated with

advocates also after they were arrested and then the S.P. explained in

writing to them the consequences of making such a statement. S.P.

ensured that they were not under any fear or greed etc. and that they

were not tortured. Thereafter confessional statement had been made.

Sufficient time for reflection had also been given. Thus, no benefit can

be derived from the aforesaid decision.  

132. Learned counsel appearing on behalf of A­1 has pointed out that

he remained in police custody from 17.4.2003 to 23.5.2003. Thereafter

he was sent for judicial remand and again taken on police remand on

12.6.2003. After his confession in another POTA case, A­1 was

remanded back to police custody from 16.5.2003 to 23.5.2003. Thus,

A­1  had lost the confidence to speak out during  his 10  minutes'

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production before the Magistrate and was not sure that he may be

sent to police remand again. In our opinion the submission is

baseless. It cannot  be said to  be  prolonged police  custody.  When

several accused persons are involved in various cases and an accused

is found involved in a series of cases, obviously, his police remand has

to be taken in a particular case. That does not mean that he has been

sent to police remand in some other cases would adversely affect the

confession. What is envisaged is that with respect to the same crime,

he should not normally be subjected to police remand once he makes

a  statement in the  court  with  respect to  his  confession as  we  see

under section 32(4) and (5), he has to be sent to judicial custody. That

has been precisely followed. In the case, it cannot be said that he was

subjected to prolonged police custody or he had lost the confidence

that he would not be sent to judicial custody.

133. Learned counsel on behalf of accused further submitted that in

view of the decision of this Court in  Shivappa v. State of Karnataka,

(1995) 2 SCC 76, searching inquiry should be made by the Magistrate

before recording confessional statements. In the instant case, under

section 32 of POTA, since there is a departure and confession is made

to  a senior  police officer  has  been  made  admissible, the  aforesaid

decision based on section 164 Cr.P.C. is not attracted, even otherwise

when we apply the aforesaid test laid down with respect to section 164

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Cr.P.C. as in Shivappa  (supra), in our opinion the S.P. under section

32(1), (2) and (3) and the concerned Magistrate under subsections 4

and 5 of section 32 have performed their duties effectively as per the

law laid down by this Court in the aforesaid decision in which this

Court observed:  

“6. From the plain language of Section 164 CrPC and the rules and guidelines  framed by the High Court  regarding the recording of confessional statements of an accused under Section 164 CrPC, it is manifest that the said provisions emphasise an inquiry by the Magistrate to ascertain the  voluntary  nature of the confession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the confessional statement of an accused under Section 164 CrPC. The failure of the Magistrate to put such questions from which he could ascertain the voluntary nature of the confession detracts so  materially from the evidentiary value of the confession of an accused that it would not be safe to act upon the same. Full and adequate compliance not merely in form but in essence with the provisions of Section 164 CrPC and the rules framed by the High Court is imperative and its non­compliance goes to the root of the  Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence. Before proceeding to record the confessional statement, a searching enquiry must  be  made  from the accused as  to the custody from which  he  was  produced  and  the treatment  he  had  been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of an accused. In case the Magistrate discovers on such enquiry that there  is  ground  for  such supposition he should give the accused sufficient time for reflection before  he is  asked to  make  his  statement  and should assure himself that during the time of reflection, he is completely  out  of  police influence.  An accused should particularly be asked the reason why he wants to make a statement which would surely go against his self­interest in course of the trial, even if he contrives subsequently to retract the confession. Besides administering the caution, warning specifically  provided  for in  the  first  part  of  sub­ section (2) of Section 164 namely, that the accused is not

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bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complicity in the offence at the trial, that is to follow, he should also, in plain language, be assured of protection from any sort of apprehended torture or pressure from such extraneous agents as the police or the like in case he declines to make a statement  and be  given  the  assurance that  even  if  he declined to make the confession, he shall not be remanded to police custody.”

134. The decision in Aloke Nath Dutta & Ors. v. State of West Bengal

(2007) 12 SCC 230, relied on behalf  of the accused  is  based upon

section 164 Cr.P.C. which is quite different in which the confession is

recorded by the Magistrate. Section 32 is a departure from the same.

S.P. is authorised to remand and he has observed all the safeguards.

Thus, the decision for the aforesaid reasons has no application.

135. On the strength of the  Parliament  attack  case  (supra), it  was

submitted that  on  the  twin  test  of  confession and voluntariness of

truth. The confession must be corroborated in material particulars. It

is inextricably linked with the truth of confession. This Court

observed:

“36. Then we have the case of  Shankaria  v.  State of Rajasthan, (1978) 3 SCC 435, decided by a three­Judge Bench. Sarkaria, J., noted the twin tests to be applied to evaluate a confession: (1) whether the  confession  was  perfectly  voluntary,  and  (2) if so, whether  it  is true and trustworthy. The learned Judge pointed out that if the first test is not satisfied the question of applying the  second  test  does  not  arise.  Then  the Court indicated  one broad method by which a confession can be evaluated.  It  was said: (SCC p. 443, para 23)

“The  Court should carefully examine the confession  and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession

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appears to be a probable catalogue of events and naturally fits  in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test.”

37. In  Parmananda Pegu  v.  State of Assam,  (2004) 7 SCC 779, this  Court  while  adverting to the expression “corroboration  of material particulars” used in  Pyare Lal Bhargava v. State of Rajasthan,  1963 Supp. (1) SCR 689, clarified the position thus: (SCC p. 790, para 20)

“By the  use of the expression ‘corroboration of  material particulars’, the Court has not  laid down any proposition contrary to what has been clarified in Subramania Goundan v. State of Madras, 1958 SCR 428, as regards the extent of corroboration required. The above expression does not imply that there should be meticulous examination of the entire material particulars. It is enough that there is broad corroboration  in conformity with the general  trend of the confession, as pointed out in Subramania Goundan case.”

The analysis of the legal position in paras 18 and 19 is also worth  noting: (SCC p. 788)

“18.  Having thus reached a finding as to the voluntary nature of a confession, the truth of the confession should then be tested by the court. The fact that the confession has been made voluntarily, free from threat  and  inducement, can be regarded as presumptive evidence of its truth. Still, there may be circumstances to indicate that the confession cannot be true wholly or partly in which case it loses much of its evidentiary value.

19. In order to be assured of the truth of confession, this Court, in a series of decisions, has evolved a rule of prudence that the court should look to corroboration from other evidence. However, there need not be corroboration in respect of each and every material particular. Broadly, there should be corroboration so that the confession taken as a whole fits into the facts proved by other evidence. In substance, the court should have assurance from all angles that the retracted confession was, in fact, voluntary and it must have been true.””

136. There is no dispute with the aforesaid proposition. However, it

would depend upon the nature of the case and the facts and

circumstances  and evidence in  each case  whether the  confessional

statement is truthful and is corroborated. That has to be seen in each

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case. In Parliament attack case (supra) certain observations have been

made  with respect to section  52(2) of POTA Act  which specifically

provided that  the person arrested shall  be  informed of  his right  to

consult  a  legal  practitioner as  soon as he  is  brought to the Police

Station. Section 52(3) provides that information of his arrest shall be

given immediately to a family member or a relative. Section 52(4) says

that the person arrested shall be permitted to meet the legal

practitioner representing him during the course of interrogation of the

accused person. In this context the observations have been made by

this Court in Parliament attack case:

“182. Parliament advisedly introduced a Miranda v. Arizona, 384 US 436, ordained safeguard which was substantially reiterated in Nandini  Satpathy  v. P.L. Dani,  (1978) 2 SCC 424, by expressly enacting in sub­sections (2) and (4) of Section 52 the obligation to inform the arrestee of his right to consult a lawyer and to permit him to meet the lawyer. The avowed object of such prescription was to introduce an element of a fair and humane approach to the prisoner in an otherwise stringent law with drastic consequences to the accused. These  provisions are  not to  be treated as empty formalities. It cannot be said that the violation of these obligations under sub­sections (2) and (4) have no relation and impact on the confession. It is too much to expect that a person in custody in connection with the POTA offences is supposed to know the fasciculus of the provisions of POTA regarding the confessions and the procedural safeguards available to him. The presumption should be otherwise. The lawyer's presence and advice, apart from providing psychological support to the arrestee, would help him understand the implications of making a confessional statement before the police officer and also enable him to become aware of other rights such as the right to remain in judicial custody after being produced before the Magistrate. The very fact that he will not be under the fetters  of  police  custody  after  he is  produced before the  CJM pursuant to Section 32(4) would make him feel free to represent to the CJM about the police conduct or the treatment meted out to him. The haunting  fear of again  landing himself into police custody soon after appearance before the CJM  would be an inhibiting factor against speaking anything adverse to the police. That is the reason why the judicial custody provision has been

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introduced in sub­section (5) of Section 32. The same objective seems to be at the back of sub­section (3) of Section 164 CrPC, though the situation contemplated therein is somewhat different.  

183. The breach of the obligation of another provision, namely, sub­section  (3)  of  Section 52 which  is modelled on  D.K.  Basu (supra) guidelines has compounded the difficulty in acting on the confession. Section 52(3) enjoins that the information of 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.  PW 80  the IO under  POTA merely  stated that “near relatives  of the accused were  informed about  their  arrest  as I learnt from the record”. He was not aware whether any record was prepared by the police officer arresting the accused as regards the information given to the relatives. It is the prosecution case that Afzal’s relative by the name of  Mohd. Ghulam Bohra  of  Baramula  was informed through phone.  No witness had spoken to this effect. A perusal of the arrest memo indicates that the name of Ghulam Bohra and his phone number are noted as against the column “relatives to be informed”. Afzal’s arrest memo seems to have been attested by Gilani’s brother who according to the prosecution, was present at the police cell. But, that does not amount to compliance with sub­section (3) because he is neither family member nor relation, nor even known to be a close friend. We are pointing out this lapse for the reason that if the relations had been informed, there was every possibility of those persons arranging a meeting with the lawyer or otherwise seeking legal advice.”

137. It is not the case of the accused that they were not given the

right to consult  legal practitioner when they were interrogated after

arrest by the police under section 52 of  the Act.  Section 52 of  the

POTA Act is extracted hereunder:  

“52. Arrest.—(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.

(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

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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 subsection shall entitle the legal practitioner to remain present throughout the period of interrogation."

The observations made by this Court in Parliament attack case

carry the case no further as the accused were having the legal

assistance after their arrest and they were never deprived of the same,

and it is not their case they had asked for lawyer’s assistance during

the period of reflection before confessing and they were denied the

same.

138. In the Parliament Attack case, the observation has been made by

this Court in the light of the submission that the confession cannot be

truly judged from the standpoint of probabilities and natural course of

human conduct, though this Court has commented that  they were

plausible and persuasive.   

139. The learned counsel appearing on behalf of accused has

submitted that confession of a co­accused made under Section 32 of

POTA is not admissible against anyone other than the maker.

Reliance has been placed on the Parliament Attack case, wherein this

Court has observed thus:

“49. Now, let us examine the question whether Section 32(1) of POTA takes within its sweep the confession of a co­accused.

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Section 32(1) of POTA which makes the confession made to a high­ranking police officer admissible in the trial does not say anything explicitly about the use of confession made by a co­ accused. The words in the concluding portion of Section 32(1) are:

“shall  be admissible in  the trial  of  such person for  an offence under this Act or the rules made thereunder.”

It is, however, the contention of the learned Senior Counsel Shri Gopal Subramanium that Section 32(1) can be so construed as to include the admissibility of confessions of the co­accused as well. The omission of the words in POTA "or co­ accused, abettor or conspirator" following the expression "in the trial  of  such person" which are  the words contained in Section 15(1) of TADA does not make a material  difference, according to  him. It is  his submission  that the  words  "co­ accused", etc. were included by the 1993 Amendment of TADA by way of abundant caution and not because the unamended section of TADA did not cover the confession of the co­ accused. According to the learned Senior Counsel, the phrase "shall be admissible in the trial of such  person" does  not restrict the admissibility only against the maker of the confession. It extends to all those who are being tried jointly along with the maker of the confession provided they are also affected by the confession. The learned Senior Counsel highlights the crucial words "in the trial of such person" and argues  that the confession would not  merely  be admissible against the maker but would be admissible in the trial of the maker which may be a  trial jointly  with the other  accused persons. Our attention has been drawn to the provisions of CrPC and POTA providing for a joint trial in which the accused could be tried not only for the offences under POTA but also for the offences under IPC. We find no difficulty in accepting the proposition that there could be a joint trial and the expression “the trial of such person” may encompass a trial in which the accused who made the confession is tried  jointly with the  other  accused.  From  that,  does it follow  that the confession made by one accused is equally admissible against others, in the absence of specific words? The answer, in our view, should be in the negative. On a plain reading of Section 32(1), the confession  made by an accused before a police officer shall be admissible against the maker of the confession in the course of his trial.  It may be a joint trial along with some other accused; but, we cannot stretch the language of the section so as to bring the confession of  the co­accused within the fold of admissibility. Such stretching of the language of law is not at all warranted especially in the case of a law which visits a person with serious penal consequences

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[vide the observations of Ahmadi, J. (as he then  was) in Niranjan Singh  Karam Singh Punjabi v.  Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76, SCC at p. 86, which were cited with approval in  Kartar Singh case. We would expect a more explicit and transparent wording to be employed in the section to rope in the confession of the co­accused within the net of admissibility on a par with the confession of the maker. An evidentiary rule of such importance and grave consequence to the accused could not have been conveyed in a deficient language. It seems to us that a conscious departure was made by the framers of POTA on a consideration of the pros and cons, by dropping the words "co­accused", etc. These specific words consciously added to Section 15(1) by the 1993 Amendment of TADA so as to cover the confessions of the co­ accused  would not have escaped the notice of Parliament when POTA was enacted. Apparently, Parliament in its wisdom would have thought that the law relating to confession of the co­accused under the ordinary law of evidence, should be allowed to have its sway, taking a cue from the observations in Kartar Singh case at para 255. The confession recorded  by the  police  officer  was, therefore,  allowed  to  be used against the maker of the confession without going further and transposing the legal position that was obtained under TADA. We cannot countenance the contention that the words “co­accused”, etc. were added in Section 15(1) of TADA, ex majore cautela.

50.  We are, therefore,  of the view that  having regard to all these weighty considerations, the confession of a co­accused ought not to be brought within the sweep of Section 32(1). As a corollary, it follows that the confessions  of the first and second  accused in this case recorded  by the  police officer under Section 32(1), are of no avail against the co­accused or against each other. We also agree with the High Court that such confessions cannot be taken into consideration by the Court under Section 30 of the Evidence Act. The reason is that the confession made to a police officer or the confession made while a person is in police custody, cannot be proved against such person, not to speak of the co­accused, in view of the mandate of Sections 25 and 26 of the Evidence Act. If there is a confession which qualifies for proof in accordance with the provisions of the Evidence Act, then, of course, the said confession could be considered against the co­accused facing trial under POTA. But, that is not the case here.”

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This Court has merely laid down that confession of accused is

not admissible as against co­accused person and when TADA makes

the confession against co­accused admissible, it could not be said that

the words co­accused were added in Section 15(1) of TADA, ex majore

cautela.  Through the expression, they were admissible against the

accused has not been used in Section 32 of POTA.  It is relevant and

admissible against the maker of it.

140. On the other hand, learned Solicitor General has relied upon the

decision in  Kehar Singh v. State (Delhi Administration), (1988) 3 SCC

609, wherein this Court observed as under:

"278. From an analysis of the section, it will be seen that Section 10  will come into play only when the court is satisfied that there is reasonable ground to believe that two or  more persons have conspired together to commit an offence. There should be, in other  words, a prima facie evidence that the  person  was a party to the conspiracy before his acts can be used against his co­conspirator. Once such prima  facie  evidence  exists,  anything  said,  done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy but also for proving that the other person was a party to it. It is true that the observations of Subba Rao, J., in Sardar Sardul Singh Caveeshar v. State of Maharashtra,  (1964) 2 SCR 378 lend support to the contention that the admissibility of evidence as between co­conspirators would be (sic more) liberal than in English law. The learned Judge said: (SCR p. 390)

“The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them. The expression ‘in reference to their common intention’ is very comprehensive and it appears to have

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been designedly used to give it a wider scope than the words ‘in furtherance of’ in the English law; with the result, anything said, done or written by a co­ conspirator, after the conspiracy was formed, will  be evidence against the other before he entered the field of conspiracy or after he left it.””

141. In our opinion, there  was  no violation of  safeguards provided

under the provisions of section 32(5) vis a vis any accused person. The

confessions cannot be said to be inadmissible. The provisions of

section 32 have been duly complied with.  

142.  It was also submitted on behalf of accused persons that

recording of confessions  was flawed. The accused  were placed in

seclusion and they were not informed of the time at which they would

be summoned. PW­21 has admitted that none of them called him in­

between. In our opinion, the time of reflection was granted which was

adequate in this case and after giving an opportunity to accused

whether they wanted to make a confession after being told that it may

be used against them, it was the case of observance of the aforesaid

principle and it is not the case that the accused had asked for legal

assistance during that period and were deprived of it. The legal aspect

of the effect  of confession had been  duly informed  to the  accused

persons beforehand in writing so many words, and adequate time was

given  for reflection so as  to  consider  the consequence of  making a

confession. Nothing more could have been advised by a lawyer. Thus,

by not volunteering to provide aid of lawyer in view of the fact that the

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case, where it was not asked for during the time of reflection, even on

the assumption that  it  was necessary,  no prejudice can be said to

have been caused to any of the accused persons as they were given

enough time for reflection, whether they wanted to make confession as

it could be used against them. Thus, there was no breach of any of the

constitutional rights flowing from Articles 21, 22(3) and 20(3) of the

Constitution of India. As already mentioned that they were assisted by

lawyers  also in the  main case  when remand etc.  was  sought.  The

submission that PW­21 has stated that police custody has no

relevance upon the voluntary nature of  confession, which is as per

counsel is against the settled jurisprudence, is also untenable for the

reason that section 32 makes a voluntary confession to a police officer

admissible.  

143. It was also submitted on behalf of accused persons that the use

of words like “suraksha”, “prabandh”, “poorva” ‘netritva’ ‘anusar’

‘hatya’ “sampark", etc.,  which are  highly  Sanskritised  words would

never occur spontaneously to a Muslim of A­1's background from the

Deccan/Hyderabad region. "Spontaneously to a Muslim like the

background of A­1 who hails from Hyderabad", and to other accused

persons, the submission is not tenable. It would depend on several

factors. Firstly, the aforesaid words cannot be said to be Sanskritised.

Secondly, it  would  depend  upon the educational background of a

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Muslim in which he has been brought up. Merely by the fact that A­1

happens to be a Muslim, it cannot be said that he would not know

these words, particularly when it would depend upon his own

education and the family background in which he has been brought

up. There are highly cultured and literary families found in Muslims

also who know several languages not only Urdu and are known for

their Tehzeeb. Thus the criticism made of the confessional statement

due to  use of the  aforesaid  words that they could  not  have  been

employed by A­1 or by other accused persons is not only unwarranted

but  also  unacceptable  and the  same  is liable to  be  and is  hereby

rejected.  

144. In the confessional statement accused have referred to mobile

numbers cannot be said to be rendering it unreliable. It is not

uncommon to remember mobile numbers and to narrate them.  

145. It was also submitted to discredit recording of the confessions by

PW­21 that it was not humanly possible to record confessions

continuously for 37  hours.  Considering the chart  which  has  been

indicated is not for 39 hours as submitted. It was submitted on behalf

of the prosecution that the time taken by PW­21 is not precise and the

same has been calculated on the basis of the reflection time given to

the accused. PW­21 in this regard has stated thus:

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“227. Exh. 228 and Ex. 229 had concluded just 4 hours before. A. It is true on seeing a record that accused Rehan statement was completed at 11.25 PM on 6.6.2003 whereas what I can see from the record (E. 232) that more than 16 hours have passed and therefore it cannot be said that recording of the  confessional  statement  of  accused Parvez had commenced exactly at 4 a.m.”   

The submission is based upon incorrect calculation and stands

explained by the deposition of PW­21. The period of total recording is

20 to 22 hours and not 39 hours as attributed.

146. The argument was raised that when accused asked for a glass of

water, this renders the confessional statement unworthy of credence.

A police officer is not supposed to remember all these aspects and tell

about them for several years and statements cannot be discredited on

the ground whether the accused had asked for water or not.

147. It was also urged that Mohmed Parvez was produced at the Civil

Hospital at the time when the statement was recorded, renders the

confessional statement unreliable. No such question during his cross­

examination  has  been  put to  PW­21  as to the  presence  of Parvez

Sheikh, A­9, in hospital at 10 a.m. A­9 was required produced before

the Magistrate  on 9.6.2003  i.e.  within 48 hours as  required under

section 32 of POTA. Neither he stated so in the written retraction of

confessional statement that he was at the time in the hospital when

the confessional statement is said to have been recorded. It was

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necessary to discredit the recording of confession by PW­21 to put it in

the cross­examination and to seek his explanation. Cross­examination

is not a matter of  procedure but a matter of  substance as held  in

Maroti Bansi Teli v. Badhabai w/o Tukaram Kunbi, AIR 1945 Nagpur

60, Karnidan Sarda v. Sailaja Kanta Mitra, AIR 1940 Patna 683, A.E.G.

Carapiet v. A.Y. Derderian,   AIR 61 Cal. 359, and Jai Shankar Prasad

vs. State of Bihar, AIR 1963 SC 1906.

148. With respect to retraction of the confessions by all the accused

persons on the same day after a  month, it is apparent from the

reasons recorded by the court that they have given different reasons

for retraction. The court has individually heard each and every

accused. A­1 has stated that his signatures had been obtained on the

blank papers. A­2 has stated that  was a fact that under fear of

encounter, he has given the statement. A­2 says that confession has

been forcibly obtained. A­4 says that he  was forced to  make the

confession. Similar is the statement of A­5. A­6 says that he has not

given any confessional statement, his signatures have been obtained.

A­7 says that by hook or crook, he was asked to make this confession

and was forced to make it.  A­8 says that he was forced to make a

confession. When he refused to sign, blinds were applied for 2 days. A­

9 says that confession is forcible, he was compelled to sign. He signed

the written confession. A­12 says that his confession was forcible and

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was obtained under threat. A­13 also made a similar statement. Thus,

it is apparent that the accused persons have not retracted their

confession  at first opportunity  when they  were  produced.  Reasons

behind retraction also do not inspire confidence. The  details  with

which the confessional statements have been recorded after the

observance  of due safeguards  and  other corroborative evidence  on

record are indicative of the fact that reasons for retraction, as stated,

are not correct. There is no allegation that they were tortured by the

police. In the absence of the same, it does not inspire confidence that

they have signed on blank papers, etc. There was a general statement

that they were under fear made by some of the accused persons. The

fact remains that the statements have been recorded by the S.P., a

high ranking officer as envisaged under section 32 which cannot be

lightly discredited in the facts and circumstances of the case.

149. In Mohmed Amin & Anr. v. Central Bureau of Investigation, 2008

(15) SCC 49 this Court observed:

“69. If  the confessions of the appellants are scrutinised in the light of the above­enumerated factors, it becomes clear that the allegations made by them regarding coercion, threat, torture, etc. after  more than one year of recording of confessions are an afterthought  and products  of the  ingenuity  of their  advocates. The statements made by them under Section 313 CrPC were also the result of afterthought because no tangible reason has been put forward by the defence as to why Appellants A­4 to A­8 did not retract from their confessions when they were produced before the Magistrate at Ahmedabad and thereafter despite the fact that they had access to legal assistance in more than one way. Therefore, we hold that the trial court did not commit any error by relying upon the confessions of Appellants A­4 to A­8

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and A­10 and we do not find any valid ground to discard the confessions of Appellants A­4 to A­8 and A­10."

Since there  was  no  mal­treatment, no  manifest complaint of

torture, confession appears to be voluntary and all the accused

persons were sent to judicial custody. Subsequent retraction of

confession is of no consequence, the same is an afterthought.  

150. It was urged by learned Additional Solicitor General appearing

on behalf of CBI that A­4 and A­5 stand convicted in tiffin bomb case

dated 29.5.2002 in which tiffin bombs were planted in buses going

towards Hindu  localities and the trial  court has also convicted A­1

along with A­3 in conspiracy with other accused persons under

section 307 read with section 120B IPC and section 3(3) of POTA Act.

Same forms part of the chain of criminal conspiracy to create terror in

the community of  Hindus  which  has led to the  murder of  Haren

Pandya.  The associated case  also provides  a link  and  part of the

conspiracy to finish the Hindu leaders and to take revenge of post­

Godhra incidents. PW­39 has also identified accused A­1 and A­3 in

the TIP proceeding before the Executive Magistrate, PW­14 on

6.6.2003. We have to examine the submissions in light of the evidence

that has been adduced with respect to the murder of Haren Pandya.

CONFESSION AND CORROBORATION

151. Since the decision was based on TADA, Section 120A of Indian

Penal  Code and  Section  10 of Evidence  Act, it is the decision in

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Parliament Attack case which has to provide a guide as it was on the

provision of Section 32 of POTA.   It is contended by C.B.I. that

confession of all the accused recorded under Section 32 of POTA are

voluntary and thus can be relied upon.   The confessions have been

proved by Vinayak Prabhakar Apte, SP CBI (PW­21).   

IN RE: CONFESSION OF A­1 (MOHMED ASGAR ALI)

152. It was confessed by A­1 (Mohmed Asgar Ali) that he was asked

by co­accused Abdul Rauf to get prepared for training at Pakistan with

other boys.  He was given Rs.20,000/­ by Abdul Rauf and they went to

Calcutta from Hyderabad.  One Parvez from Calcutta promised to take

them to Bangladesh.  For about 1 ½ month, they were in Bangladesh

and he was in constant touch with A­2  (Mohmed Abdul Raouf).   He

was given the name of Afdan during his stay at Dhaka, Bangladesh.

In the camp, they were trained in firearms like a pistol, gun, LMG,

grenades, etc. for about a month.  He also confessed that he spoke to

Suleman before proceeding to Karachi for training, who was aggrieved

by the atrocities committed on  Muslim.   He  was asked to go to

Udaipur by Rasul party where he would be picked up for Ahmedabad

to avenge atrocity and as being native of Hyderabad, nobody would be

able to recognize him at Ahmedabad and the terror could be created

amongst the Hindus.

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153. It  was further confessed that in  December  2002,  he reached

Udaipur and stayed at Musafirkhana in the name of Afdan Yusuf from

31.12.2002 to 5.1.2003.   It was confessed by A­1 (Mohmed Asgar Ali)

that he had received an email from Rasul Khan Party in which he was

given the address and phone number of Usman who lived in Udaipur.

After his return from  Udaipur to  Hyderabad, he took  Rs.2,000 –

Rs.3,000/­ from A­2 (Mohmed  Abdul  Rauf).  He  also received  one

message on his email that one Sohail Khan would come to Udaipur to

take him to Ahmedabad.   On 22.1.2003, Sohail Khan, Salim Pasha

and Haji Faruk went to Udaipur in Tata Indica Car and they left for

Ahmedabad in the morning.   He first went to the residence of  Haji

Faruk and thereafter to Sohail Khan’s place from where he was taken

to Lokhandwali Chawl, Bapunagar.   He contacted A­3 (Mohmed

Shafiuddin) and gave the address of Musafirkhana and also called him

to Ahmedabad.   He was provided with the mobile number of Sohail

Khan  i.e.,  9426034937 and also intimated  Sohail  Khan about this

friend.  He went along with Sohail Khan and Parvez and brought Shafi

to Hotel Garden near Ahmedabad Railway Station.  Thereafter,  A­1

and Shafi were taken to M.B. Flats and from there to Royal Apartment

to  Sundaramnagar.  He  was  given  a  mobile  phone  with  SIM card

no.9825498421 and also one Suzuki Samurai motorcycle.  He was in

touch with Suleman (Rasul Party) through Modern Cyber Café.   In

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March 2003, A­10 and A­11 went to meet him.   Sohail Khan name

BJP Leader Jagdish Tiwari to be their first target as he led the mob

during the riots.  Parvez showed him the shop of Jagdish Tiwari.

153(a). On 9.3.2003, A­1  (Mohmed Asgar Ali)  and A­3  (Mohmed

Shafiuddin)  went  to the place of  Jagdish Tiwari to target  him,  but

Jagdish Tiwari did not pass through the said route.   On 10.3.2003,

they followed Jagdish Tiwari, but they could not kill Jagdish Tiwari.

They accordingly informed  Sohail  Khan  and it  was  decided to  kill

Jagdish Tiwari at his medical store.  On 11.3.2003, Shafiuddin asked

for medicine and while Jagdish Tiwari bent for taking out the

medicine, A­1 (Mohmed Asgar Ali) fired on him and the bullet went

straight into his stomach.  He also fired a second shot, but the bullet

could not come out.  Jagdish Tiwari hides behind the refrigerator.  He

immediately called up Sohail Khan on his mobile no.9426739927, but

he could not be contacted, so he informed Parvez on his  mobile

no.9426227349 about the incident and asked him to inform Sohail

Khan also.  Thereafter, they  changed  their  shirts  at  Sohail  Khan's

home and were unhappy with the weapon and wanted to return him.

A­11 and A­10 left them at Royal Apartment.  

153(b). On 17/18.3.2003, Sohail  Khan named Haren Pandya as

their next target.  Mufti Sufiyan gave the order for his killing.  Sohail

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Khan told him that Haren Pandya used to go for a morning walk at

Law Garden and he could be killed there.

153(c). On 23.3.2003, Sohail Khan took him to Law Garden and

Yunus and Parvez met them.   On that day,  Haren Pandya did not

come to Law Garden.   On 24.3.2003, he went to Jumma Masjid and

where he met Anas, Rehan, and Goru.   On 25.3.2003, he was given

black colored loaded revolver with six bullets by Anas in the toilet of

Jaliwali Masjid.  Goru took him to Law Garden.  He walked with Haren

Pandya,  but upon seeing a man in uniform, he decided  not  to  kill

Haren Pandya inside the garden and dropped the plan of killing him

and came back to Shahpur with Goru.   The weapon was returned to

Anas Machiswala and Shahnavaz asked him to accomplish the task

the next day.  

153(d). Next day inside the Jaliwali Masjid, he was given loaded

revolver by Anas Machinswala.   It was confessed that Haren Pandya

came  in Maruti  Fronti car  at the place and parked  the car  at  his

regular place.   He also confessed that he fired five bullets on Haren

Pandya from the window of the driver seat and fled away on Yunus’

motorbike.   They went to Shahpur Mill Compound and he called up

Sohail Khan and informed him that work is accomplished.   He was

piloted by Rehan and Sohail Khan and Anas Machiswala were waiting

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in the auto rickshaw.  Five empty cartridges were handed over to Anas

Machiswala and kept the pistol of Yunus with him to guard himself.

He then went to the Royal Apartment and stayed there for three days.

Due to safety purpose, Sohail Khan asked him to vacate Royal

Apartment.  His task  was  appreciated by Anas Machiswala,  Sohail

Khan, and Mufti Sufiyan.  He was asked to stay at Sikandar's place at

Kanodar village,  but he refused to keep him and he had stayed at

Kanodar Masjid.  Later, he was moved to Flat No.4­B, behind Shahpur

Police Station.

153(e). Next day Sohail Khan called A­1 (Mohmed Asgar Ali) near

Juhapura, Afzal Masjid. He received a call from Mohd. Ayub who was

called at the hotel. His stay arrangement was made at Silver Flat No.2,

where Dr. Harun used to stay and A­1 (Mohmed Asgar Ali) also stayed

there for about a week. He continued to chat with his friends at Cyber

Space Café at Afzal Mosque. It is stated that he was extremely

annoyed with the maltreatment meted out to him after killing Haren

Pandya,  on writing to  Rauf,  he urged him that  he should  intimate

Suleman at Pakistan that fact but the next day he did not receive any

message and therefore, the next day he chose to go to Hyderabad. On

7.4.2003 when Ayub brought food for him, he requested him to drop

him at  Railway  Station, got the ticket for  himself for  Mumbai.  He

himself  was  very  perplexed  and perspiring  and told  Ayub  the true

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story and Ayub  was extremely scared. At  Hyderabad, he  went to

Iftikhar's place and met Rauf there and requested him to take him to

Pakistan after talking to Suleman. They were asked to wait, but since

he was scared, he was planning to go to Bangladesh on his own. Rauf

also told  him  that  Haji  Faruk  and  Parvez  had reached  Hyderabad

hiding from  Police.  On  his  way to  Calcutta and  Bangladesh from

Hyderabad, the police caught him. The confession was signed by him.

154. It  was urged that confession of  A­1  (Mohmed Asgar Ali) lacks

corroboration in material particulars. A­1 (Mohmed Asgar Ali) in his

confession stated that he was standing at the spot from before. Similar

is the  statement  of  PW­55.  A­1's confession  does  not  mention the

presence of an eye­witness. PW­55 claims to have shouted out at him.

Confession of accused A­1 (Mohmed Asgar Ali) does not refer to rolling

up of the window but speaks of Haren Pandya drinking water at the

time of shooting. "Jaise use Gadi khadi karke pani peene ke liye botal

ka dhakkan khola main gadi ki taraf ghooma aur driver ki taraf se

thoda khule sheeshe se Haren Pandya par panch fire kiye."  In our

opinion, the non­recovery of a water bottle from the car is not at all

material as it had nothing to do with the offence in question. Every

material found in the car was not required to be seized. The witness

PW­55 has also said that Haren Pandya drank water from the bottle.

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There is no contradiction as sought to be made out on behalf of the

learned counsel appearing for A­1.

155. Confession of  A­1  (Mohmed Asgar Ali)  has been supported by

various other evidence on the record like phone calls, recovery of the

weapon, vehicle, hiring of rooms, etc. It was submitted that conduct of

A­1 (Mohmed Asgar Ali) as stated in the confession does not inspire

confidence.  There is  no  conceivable reason for  preserving  cartridge

case and weapons and spending time which must be precious to a

murderer  for escaping from the spot. It  was not reasonable  for the

accused to preserve empty cartridges. There was the possibility of their

recovery from the place of occurrence. In case he had thrown them at

the place of occurrence, as such, in our opinion, it was not unusual

for accused A­1 to carry them and he wanted to run away from the

spot also as such he did not waste time in throwing them on spot and

leave the evidence.  

156. On behalf of accused A­1 (Mohmed Asgar Ali), it was submitted

that CBI case is that A­9 had called A­7 at 7.18 a.m. on 26.3.2003 to

say that A­1 has not arrived at Law Garden. At 7.33 a.m., A­1 had

called A­14 from some kilometers away  from Law Garden after the

murder.  At 8.17 a.m.,  A­1 again called A­14 from some 15­17 km.

away.  It was further submitted that there is no evidence to show that

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these were phones used by A­7 and A­9 or A­1 or to show the nature

of the conversation save the confessions. Even the cell location of one

of those numbers is missing.   It was also submitted that taking this

theory at face value it means that A­1 did not reach the spot before

7.19 a.m. Also, he must necessarily have left the spot before 7.29 a.m.

because it would take 4­5 minutes to reach the spot from which the

call  at 7.33 a.m. was made. The time band for the murder is thus

between 7.19 a.m. and 7.28 a.m. at the outer limit going by CBI case,

it is even less if the confession is taken into account for that says that

A­1 wanted a few minutes before Mr. Pandya arrived.    

157. After the incident, A­1 (Mohmed Asghar Ali) called A­14 Sohail's

Mobile  No.9426039937  from His  Mobile  No.9825494421 at  7.33.27

a.m. and at 8.17 a.m., the location of these mobile phone confirms the

presence of A­1 Asghar Ali at Law Garden area. These facts have been

proved by Exh. 467 (CDR of 9825494421) and also by Ex. 775. PW 33

Hemant  Kumar  Ratilal Patel,  Asstt.  Divisional  Engineer,  Vastrapur

Telephone Exchange, proved the location of mobile number used by

the accused persons on the basis of tower location. Trial Court has

dealt with this aspect elaborately.

158. On 25.3.2003 there was an abandoned/aborted attempt to

murder Haren Pandya. CDR and call records indicate the presence of

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A­1 (Mohmed Asgar Ali) in the area of Law Garden on the said date.

On 26.3.2003 after the incident, the call was made to mobile of Sohail

and it was said that the work was done. CBI call records support the

same.     

159. In  our  opinion, it  makes  hardly  any difference  of  one  or two

minutes when it is possible to travel the distance from where the calls

were made by A­1 to A­14 in a few minutes and from distance of 15 to

17 km. calls in  45 minutes.  Cell  phone  location also supports the

ocular version and lends credence to the fact that murder had taken

at the place near Law Garden. In addition, for tracking A­1 (Mohmed

Asgar Ali), a landline at Nalgonda was used. It was proved that A­1

used phone No.9825494251. In the confession also, the number has

been stated. Even on the next date of  the  incident,  the phone was

used by A­1, stands established by the prosecution.  

160. There is corroborative evidence of confession with respect to A­1

(Mohmed Asgar Ali), Shooter.   He fired at Jagdish Tiwari and

murdered Haren Pandya as stated in his confession in December 2002

after return from Pakistan.  He reached Udaipur and stayed at Muslim

Musafirkhana, which is corroborated by the deposition of Mohammed

Jamil Nasir Mohammed, Manager, Muslim  Musafirkhana (PW­30)

(Exhibit 297) and has also produced guest register (Exhibit 298).

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Entry  no.  5846 (Exhibit 298)  was  made in respect of stay of  A­1

(Mohmed Asgar Ali) from 31.12.2002 to 5.1.2003, which was signed by

A­1 (Mohmed Asgar Ali).

161. He also received a message from A­18 through email to reach

Udaipur and contact Usman Khan Nawab Khan (PW­29).   The same

had been corroborated by Usman Khan Nawab Khan (PW­29) in his

deposition.   A­1 (Mohmed Asgar Ali)  reached Udaipur on 20.1.2003

and stayed at Muslim Musafirkhana for a day.  Entry no.8682 (Exhibit

299) was made in the visitor register regarding his stay.  Thereafter, he

stayed with Usman Khan Nawab Khan (PW­29) at his house for 2­3

days and went to Chetak Circle and used a computer in the computer

centre.   It had been corroborated by Usman Khan Nawab Khan (PW­

29) in his deposition.  He also procured a stolen bike of Hero Honda,

this fact  had  been  corroborated  by  PW­57  (hostile  witness) in this

deposition.  He  met  Salim Pasha and on 23.1.2003,  A­3  (Mohmed

Shafiuddin) reached Udaipur and stayed at Muslim Musafirkhana for

a day.  This fact  had been corroborated by Dr.  Mohmed Aizaz Ali,

Principal  Scientific  Officer (Document)  CFSL,  New Delhi  vide report

(Exhibit 524) and he had also given a positive opinion with respect to

Entry No.8699 (Exhibit 300) made in the visitor register for a stay of

A­3 (Mohmed Shafiuddin). After reaching Ahmedabad, A­1 (Mohmed

Asgar Ali) was accommodated in a room at Lokhandwalichali,

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Bapunagar owned by Mushtaq Ahmad Munir (PW­63), which had been

proved by Mushtaq Ahmad Munir (PW­63) in his deposition (Exhibit

652).   He had also confessed that after firing on Jagdish Tiwari (PW­

39), he called A­14 (Sohail Khan Pathan) on mobile no.9426039937.

A­1 (Mohmed Asgar Ali) further confessed that on 25.3.2003, there

was an abandoned attempt to kill Haren Pandya.  CDR call record had

indicated his presence in the area of Law Garden.  He confessed that

on 26.3.2003, after the incident, he made a call to A­14 (Sohail Khan

Pathan) and said: "work done".  He further confessed that he wrapped

the pistol in a polythene bag and kept it in kerosene oil tanker of the

stove in  Royal  Apartment.  The  said  weapon was recovered  at the

instance of A­1 (Mohmed Asgar Ali) vide seizure memo Exhibit 196.

162. In view of overall evidence against him, we are of the view that

his acquittal by High Court for murder of Haren Pandya and POTA

offence deserves to be set aside and conviction and sentence as

ordered by Trial Court is restored.

In Re: A­4 (Kalim Ahmad Karimi)

163. It  was submitted by Shri Raju Ramachandran,  learned senior

counsel on behalf of A­4  (Kalim Ahmad Karimi) that it  is a case of

conspiracy which is based entirely on confessions under POTA which

were obtained after  an unduly  long period of  police  custody.   It is

contended that colour of conspiracy is sought to be given solely by the

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use of confessions.  Reliance has been placed on Kehar Singh (supra),

which has already been considered.   Further, reliance was placed on

the decision of K.R. Purushothaman v. State of Kerala, (2005) 12 SCC

631, wherein this Court observed 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 an 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 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  well­known 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 an 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.”

164. Learned Senior Counsel has further relied upon the decision of

Central Bureau of Investigation, Hyderabad v. K. Narayana Rao, (2012)

9 SCC 512, in which this Court opined thus:

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“24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by  both and in a  matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even  if  some acts are proved  to  have been committed, it  must  be clear  that  they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.”

165. It  is contended that CBI seeks to reverse the acquittal,  where

High Court has rejected the confessions on the basis of law laid down

by this Court.  It is further submitted that reversal of an acquittal

should  not  be  done  when the view taken  by the  High  Court is  a

possible view and as such, no interference should be made as per the

parameter laid down in  State of Rajasthan v. Islam & Ors.,  (2011) 6

SCC 343, in which this Court observed:  

“16.  The principle to be followed by the appellate court considering an appeal against an order of acquittal is to interfere only when there are  compelling and substantial reasons  to do so. Thus, in such cases, this Court  would usually not interfere unless:

(i) The finding is vitiated by some glaring infirmity in the appraisal  of  evidence. (State of  U.P.  v.  Sahai, (1982)  1 SCC 352 at SCC paras 20­22: AIR paras 19­21.) (ii) The finding is perverse. (State of M.P.  v.  Bacchudas, (2007) 9 SCC 135 at SCC para 10 and State of Punjab v. Parveen Kumar, (2005) 9 SCC 769 at SCC para 9.)

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(iii) The order suffers from substantial errors of law and fact. (Rajesh Kumar  v.  Dharamvir, (1997) 4 SCC 496 at SCC para 5.) (iv) The order is based on misconception of law or erroneous appreciation of evidence. (State of U.P.  v. Abdul, (1997) 10 SCC 135; State of U.P. v. Premi, (2003) 9 SCC 12 at SCC para 15.) (v) The High Court has adopted an erroneous approach resulting in miscarriage of justice. (State of T.N.  v. Suresh,  (1998) 2 SCC 372 at SCC   paras 31 and 32; State of M.P. v. Paltan Mallah, (2005) 3 SCC 169 at SCC para 8.) (vi) Acquittal is based on irrelevant grounds. (Arunachalam v. P.S.R. Sadhanantham, (1979) 2 SCC 297 at SCC para 4.) (vii) The High Court has completely misdirected itself in reversing the order of conviction by the trial court. (Gauri Shanker Sharma v. State of U.P., (1990) Supp. SCC 656) (viii) The judgment is tainted with serious legal infirmities. (State of Maharashtra  v.  Narsingrao Gangaram Pimple, (1984) 1 SCC 446 at SCC para 45: AIR para 45.)

17.  In reversing an acquittal, this Court keeps in mind that presumption of innocence in favour of the accused is fortified by an order of acquittal and if the view of the High Court is reasonable  and  founded on materials on record, this Court should not interfere. However, if this Court is of the opinion that the acquittal is not based on a reasonable view, then it may review the entire material and there will be no limitation on this Court’s jurisdiction under Article 136 to come to a just decision quashing  the acquittal. [See  State (Delhi  Admn.)  v. Laxman Kumar, (1985) 4 SCC 476 at SCC para 45 and Dharma v. Nirmal Singh, (1996) 7 SCC 471 at SCC para 4.]”

This Court has cautioned that if the view of the High Court is not

reasonable, this Court may review entire material and there will be no

limitation on the jurisdiction of this Court under Article 136 to render

justice quashing the acquittal.    

166. A­4 (Kalim Ahmad Karimi) was part of the conspiracy to murder

Haren Pandya.   On 7.12.2002, he went to Udaipur along with A­13

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(Mufti Sufiyan) and two others and visited the house of Usman Khan

Nawab Khan (PW­29).  He also spoke to A­18 from a PCO at Udaipur.

He received three stolen Hero Honda motorcycles from Hussainmiyan

Amirmiyan Shaikh (PW­57) on the directions of A­13 (Mufti Sufiyan).

He kept one motorcycle with him and handed over the other two to A­5

(Anas Machiswala) and A­14 (Sohail Khan Pathan).  On 24.4.2003, he

called A­1 (Mohmed Asgar Ali) to Juni Jama Masjid and handed over

three  weapons in the same  night to  A­5 (Anas  Machiswala).   The

weapon was recovered at the instance of A­5 (Anas Machiswala).  A­4

(Kalim Ahmad Karimi) and A­5 (Anas Machiswala) visited Surat and

procured two weapons from one Maulana Tahir.   As per the

prosecution, A­4 (Kalim Ahmad Karimi) had kept the weapons at his

shop and had given the same to A­5 (Anas Machiswala) on the night of

25.3.2003 for killing Haren Pandya.

167. The prosecution has relied upon the confessional statement

under Section 32 of POTA, though the A­4 (Kalim Ahmad Karimi) was

in police custody from 25.4.2003 till 5.6.2003.  He was sent to judicial

custody  up to 17.6.2003.   Thereafter on 24.6.2003, he  made the

confession after  he was given  time  for reflection.  He admitted his

signature on his confessional statement on the day on which he was

produced before the Magistrate.  Later on, he said that while retracting

confession that his signature had been obtained forcibly.

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168. It was submitted on behalf of accused that mere knowledge of

plan would not constitute conspiracy as observed in  K.R.

Purushothaman v. State of Kerala  (supra).   As already observed, the

conspiracy  shall  not  be  deemed  to  have  been established  on mere

suspicion  and surmises or inferences  which  are  not supported  by

cogent and acceptable evidence.

169. Reliance has further been placed on  CBI v. V.K. Naryana Rao,

(2012) 9 SCC 512 and Kehar Singh (supra).  It was further submitted

that Hussainmiyan Amirmiyan Shaikh (PW­57) on the instructions of

A­4  (Kalim Ahmad Karimi),  has stolen three motorcycles and given

them to A­4 (Kalim Ahmad Karimi).  Hussainmiyan Amirmiyan Shaikh

(PW­57) has turned hostile and has stated that he had not made any

statement on 11.4.2003 regarding stealing of motorcycles.  He further

stated that he had not given any statement in the crime branch and

only his signatures were taken on written paper before the Magistrate.

He has denied his statement under Section 164 Cr.PC also.   He has

submitted that signatures were given under coercion.  The statement

under Section 164 Cr.PC is not a substantive piece of evidence and

needs corroboration as held in the State of Delhi v. Shri Ram Lohia, AIR

1960 SC 490.

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170. It  was also submitted on behalf  of  A­4  (Kalim Ahmad Karimi)

that prosecution has relied on the deposition of Javed Abdul Rashid

Khan Pathan (PW­45) who had purportedly disposed of two

motorcycles after the incident.  He had also stated that he was forced

to give the statement.  He has denied that motorcycle recovered from

Apsara Cinema was seized in his presence and he has also denied that

motorcycle was shown to him at PS Kagdapith.   He has denied the

recovery of  Suzuki  Samurai  motorcycle recovered from  the railway

station.  In view of the witness not supporting the same, the recovery

of motorcycles become doubtful and cannot be believed.   Further, it

was submitted that there is no evidence to show that the motorcycles

were used in the commission of the offence of  murder of Haren

Pandya.  The date of alleged theft of motorcycles is 2002, long before

the  conspiracy  of  murder  of  Haren Pandya,  which was  hatched  in

March 2003.  The procurement  could  not imply  any conspiracy  to

murder Haren Pandya.

171. It was further submitted on behalf of A­4 (Kalim Ahmad Karimi)

that regarding the allegation of procuring the weapons from Surat is

based  on  his confessional statement,  which is vitiated in law  and

hence inadmissible.   The confession under Section 32 regarding this

allegation cannot be used against A­4 (Kalim Ahmad Karimi) as held

by this Court in Parliament Attack case.  No weapon was found in his

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possession nor did he lead to any discovery.   The confession is

uncorroborated.   A­4 (Kalim Ahmad Karimi) had been convicted and

sentenced in POTA 12/2003 and in the present case for the charge

under Section 3(3) of POTA, for the generic charge of conspiracy as

also the Arms Act, these sentences he has already undergone.  He has

undergone the punishment for all the charges that relate to the time

period prior to an alleged conspiracy to murder Haren Pandya.   The

High  Court has rightly acquitted him from the commission of an

offence under Section 120­B and 302 IPC.  

172. It is apparent that though  Hussainmiyan  Amirmiyan  Shaikh

(PW­57) has turned hostile, his statement had been recorded under

Section 164, Cr.PC (Exhibit 546).  The confessional statement of A­14

(Sohail Khan Pathan) is supported by the recovery of motorcycles from

PS Kagdapith  in the presence of  Bhaveshbhai  Nagindas Shah (PW­

103) vide seizure memo Exhibit  628.  Bhaveshbhai Nagindas Shah

(PW­103) corroborates the recovery of the motorcycle from PS

Kagdapith.  Bhagwan  Singh  Samantsinh  Rathod (PW­50)  has also

corroborated the recovery of the motorcycle from PS Koth area vide

seizure memo Exhibit  356.   The weapon was also recovered at  the

instance of A­5 (Anas Machiswala).   Hence, there is corroboration of

confession of A­4 (Kalim Ahmad Karimi) by the recovery of the weapon

which was procured by him.   It is apparent that A­4 (Kalim Ahmad

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Karimi) was a close associate of A­13 (Mufti Sufiyan) and has worked

as a link between A­13 (Mufti Sufiyan) and the rest of accomplices.  He

received three motorcycles which were stolen in 2002 and kept on the

directions of A­13 (Mufti Sufiyan) one motorcycle with him and

handed over the other two to A­5 (Anas Machiswala) and A­14 (Sohail

Khan Pathan).  It is also apparent that he has procured two weapons

from Surat in  February  2002.   After shooting incident of Jagdish

Tiwari on 11.3.2003, he had attended meetings dated 17/18.3.2003,

22.3.2003, 24.3.2003 and 25.3.2003, where  modalities to  murder

Haren Pandya were  chalked out.  He kept  the weapon received on

17/18.3.2003 from A­5 (Anas Machiswala) and A­13 (Mufti Sufiyan) in

his shop.   On 24.3.2003, he handed over three weapons which were

kept at his shop to A­5 (Anas Machiswala).  On 25.3.2003, he received

back those weapons from A­5 (Anas Machiswala) after a failed attempt

on Haren Pandya.  Later in the night, he again handed over weapons

to A­5 (Anas Machiswala) as Haren Pandya was to be killed on the

next day.

173. It is  also apparent  that  he was  instrumental in changing  the

number of plates of the stolen motorcycles at the bungalow of Junaid

on the night of 25.3.2003.  It is also apparent that he received empty

cartridges of bullets from A­5 (Anas Machiswala), which were allegedly

shot at Haren Pandya and handed them over to A­13 (Mufti Sufiyan),

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which were ultimately recovered.  Few days after the incident, he took

A­1 (Mohmed Asgar Ali) on the instructions of A­13 (Mufti Sufiyan) to

Sikander Bhai at Kanoder for providing shelter, who refused to keep

A­1 (Mohmed Asgar Ali) and then he dropped A­1 (Mohmed Asgar Ali)

at Shahpur flat.   Thus, the conspiracy is supported by the

confessional statement.  A­4 (Kalim Ahmad Karimi) had conspired and

he was clearly part of the conspiracy of killing Haren Pandya.   A­4

(Kalim  Ahmad  Karimi)  was  held guilty by the Trial  Court for the

offences punishable under Section 3(2) read with Section 3(3) of POTA.

For the offences punishable under Section 120­B read with Section

302  of IPC,  he  was sentenced to life imprisonment  with  a fine of

Rs.5,000/­ with default clause.   However, the High Court has

maintained and confirmed the conviction for the offence punishable

under Section 3(3)  of  POTA and sentence has been reduced to the

period already undergone by him in jail with fine of Rs.5,000/­ each,

and in default of payment of fine, he shall undergo RI for 6 months.

The High Court has acquitted A­4 (Kalim Ahmad Karimi) of charges

under Section 120­B read with Section 302 of IPC and the charge for

the  offence  under  Section  3(1) punishable  under  Section  3(2)(a) of

POTA.  He procured vehicles and weapons and due to his active role in

the conspiracy, he is liable to be convicted for commission of offence

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under Section 3(1) read with Section 3(3) of POTA and Section 120B

read with 302 IPC as ordered by the Trial Court.

IN RE: A­5 (ANAS MACHISWALA)     

174. It is urged on behalf of accused that emails allegedly recovered at

the instance of A­5 (Anas Machiswala) are fabricated.   The relevant

exhibits were not signed by the accused as is evident from the

testimony of Sanjay Rameshbhai Brahmane (PW­65) the panch

witness.   It is further contended that call records of accused are

inadmissible in view of Section 65B of Indian Evidence Act, 1872.   It

proves nothing against  accused as they knew each other and thus

their presence in the same vicinity or having talked with each other

should not arouse any suspicion.   The BSNL call records are clearly

not computer­generated owing to the random order of dates and

missing  pieces of information  and in terms  of  Section  65B of the

Indian Evidence Act, 1872, the records cannot be said to be

reproduced from the original computer.  Thus, the requirements under

Sections 65A and 65B of the Indian Evidence Act, 1872 are not met.

174(a). As far as the confessional statement of Anas Maschiswala

(A5) is concerned, the procedural safeguard of giving 24 hour

reflection time was duly adhered to. All cautions were given to him.

Voluntariness was ascertained. No signs of any physical injuries were

found upon examination, neither was he threatened in any manner.

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174(b). It comes forth in A5's confession that it was Mufti Sufiyan

(A13) who had instigated one and all to take revenge of the 2002 riots.

He (A5) describes his role of instigating other boys for the Tiffin Box

Bombs. A5 describes the arms training that he underwent in Pakistan.

He also names others  who had also obtained training at  Pakistan.

After the training, he stayed at Karachi, where he was constantly in

touch  with Sohail Khan (A14­­absconding),  who in turn  was very

friendly with Rasool Party (A18­­absconding). A5 further states that

after his return to Ahmedabad, he was informed by Kaleem (A4) that

three Hero Honda Motorcycles were arranged at the instance of A13,

through Hussainbaba (PW­57).  One of these motorcycles was given to

Anas (A5), which bore Registration No. GJ­1­BD­5739.

174(c). A5 also speaks about the weapons that were brought from

Surat by A5 & A4. Three SIM Cards were given to A5 by A14, one each

to be inserted in the phones of A5, A7 (Rehan), and A8 (Goru). The

code words "P", "G" and "R" for the names Parvez, Goru, and Rehan

were also fed by A5 in his phone. This was done at A14's instance.  In

relation to the attack on Jagdish Tiwari, A5 states that while he was

sitting one day with A13, A14, and A4, it was A14 who had said that

Tiwari of Medical store had played a major role in Communal Riots.

Tiwari should be done away by "Mehman". Jagdish Tiwari was shot on

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11.03.2003. A5 states that he came to know of this the next day. After

this incident, A4 took back both the firearms.

174(d). It is further stated that on 15th and 16th of March, A13 told

him (A5) that Haren Pandya would be killed next. A5 was in

attendance at the meetings that took place on 17th and 18th of March,

2003 at Juni Jama Masjid. A14, A8, A7, and A4 also attended those

meetings. A14 named  Haren Pandya as the next target because,

according to A14, Haren Pandya had perpetrated atrocities on

Muslims during the communal riots apart from taking a major lead in

the demolition of  Paldi  Masjid.  A5 describes as  to  how the task of

doing a  recce of  Law Garden was  first  assigned  to  A12 and,  upon

A12's failure, the same came to be entrusted to Parvez. The events of

23.03.03 and of 24.03.03 are also described.  On 23.03.03  Haren

Pandya had not turned up at Law Garden. On 24.03.03, registration

No. of the Maruti Fronti Car used by Haren Pandya came to be noted

at Law Garden. It is stated that after the first attempt to kill Haren

Pandya was aborted, on the night of 25.03.03, number plates of the

motorcycles were changed by A4 and A14.  

174(e). On the morning of 26.03.2003, A5 handed over a loaded

pistol to A6 and a loaded revolver to A1. After A1 undertook the task

assigned to him of killing Haren Pandya, A1 along with A6 and

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Rehman came to Shahpur Mill Compound, where A5 was present at

the autorickshaw.  A6 kept the pistol and helmet in the autorickshaw,

but  A1 refused  to  give  either  of the firearms but  handed over five

empty cartridges.

175. Evidence of PW­21, PW­120, PW­122, and PW­91 show due

compliance of all procedures, including confirmation proceedings. PW­

108 arrested A5 from Andhra Pradesh. He was arrested along with A4

and A12.  Disclosure, discovery, and seizure of both the pistol and the

e­mail printouts are supported by PW­65 (panch witness). The pistol

was discovered at the instance of A5 in the presence of this witness.

Email­id and password were given by A5. Printouts of the emails were

taken out in the presence of this witness.  This witness supported all

documentary evidence in relation to the  above.  Exhibit  685 is the

sanction accorded by PW­115 to prosecute several accused including

A5  under the  Arms  Act.  Other accused  are  A1,  A3, and  A6.  This

sanction under Section 39, Arms Act was accorded by PW­115, being

the In­Charge Police Commissioner of Ahmedabad City at the relevant

time. Vide notification dated 28.02.02, State of  Gujarat had been

declared to be a notified area under the POTA. Mere possession of a

firearm in a notified area is an offence as per Section 4 of the POTA.

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176. PW­87 opined as to matters connected with weapon discovered

at the instance of A5. This witness was a Senior Scientific Officer at

CFSL, New Delhi. PW­87 opined that bullet recovered from the body

was Jadish Tiwari was fired from the 7.65 mm pistol discovered at

A5's instance. Three empty cartridges recovered from the shop of

Jagdish Tiwari had also been fired from the same weapon, which is a

firearm as per the Arms Act, 1959.  The evidence of PWs 87, 65, 108

and 120 has no inter se anomalies.

177. For inter se cellular mobile communication of accused persons,

testimonies of PW­11, PW­17, PW­33 PW­36, and PW­46 are

specifically relevant. Besides them,  PWs 25, 26, 35, 40 also provide

corroborative evidence. In the face of this evidence, non­recovery of the

mobile handset from A5 would, in fact, be an incriminating

circumstance against him.   

178. It is thus apparent that A­5 played a vital role at all stages of

conspiracy, right from the very inception, extending to the murder of

Haren Pandya and the subsequent abscondment of various accused,

including himself. He  was present in several  meetings at various

Masjids where different aspects of the conspiracy were hatched and

put into operation. He played a crucial role in the procurement,

handling, and storage of the illegally procured arms. 7.65 mm pistol

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was in fact discovered and recovered at his instance.   No great

significance can be attached to PW­69 not supporting the prosecution.

First of all, this witness was A5's first cousin. Secondly, his Section

164 CrPC statement is on record. No complaint to any authority was

ever made that this statement was forcibly extracted.

179. He was, thus, rightly convicted and sentenced by the Trial Court

for commission of offence under section 3(1) r/w 3(3) of POTA as well

as 120B and 120B read with 302 IPC for commission of offence of

murder of Haren Pandya. The same is restored.  

IN RE: A­6 (MOHMED YUNUS SARESHWALA)

180. It was submitted by Shri Raju Ramachandran, learned Senior

Counsel on behalf of A­6 (Mohmed Yunus Sareshwala) that his

presence at the Law Garden area at the time of the incident has not

been established.  It was submitted on behalf of A­6 (Mohmed Yunus

Sareshwala) that as per prosecution he was present in the meeting

dated 25.3.2003 in the Masjid.  A­5 (Anas Machiswala) told him that

A­6 (Mohmed Yunus Sareshwala) would take A­1 (Mohmed Asgar Ali)

to Law Garden on a motorcycle for killing Haren Pandya.   A­5 (Anas

Machiswala) also provided him black coloured Hero Honda motorcycle

for the purpose and mobile instrument of A­8 (Mohmed Riyaz) having

SIM card.  Discovery has been made on the basis of disclosure memo

under Section 27 of the Evidence Act furnished by A­1 (Mohmed Asgar

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Ali) regarding pistol and it is recovered in the presence of SrinathSinh

ShambhauSinh (PW­13).   CDR call records of mobile no.9426325774

has been placed on record.

181. Disclosure memo Exhibit 196 of the pistol and its seizure vide

Exhibit 195 have been proved on record.  The confessional statement

of A­6 (Mohmed Yunus Sareshwala) disclosed that he was given 72

hours to reflect upon the aspect of his confession.   He stated of his

having taken the training at Pakistan with Parvez and Goru.   After

giving details of his role in AMTS  blasts on 29.5.2002, they also

purchased country­made revolver from  money given by A­5 (Anas

Machiswala).  Masak told them to create terror amongst the people by

killing the leaders.  He was informed that 15­20 guests were to come

to Ahmedabad and A­4 (Kalim Ahmad Karimi) had to make

arrangement  for all  of them.   On 9.3.2003, A­5  (Anas Machiswala)

called up on mobile of A­7 (Rehan Puthawala) and told that they were

required to meet at Sidi Saiyed Jaliwali Masjid.   They also met A­5

(Anas  Machiswala) and  A­14 (Sohail Khan  Pathan) asked them  to

create terror since extensive training was imparted to them.  The first

target was Jagdish Tiwari (PW­39).   On 18.3.2003, A­7 (Rehan

Puthawala) called  upon  his residence and said that it  was  Haren

Pandya who is enlisted next for killing and with his killing, a terror

shall be created in Gujarat. A­10 (Parvez Khan Pathan) was doing a

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recce to kill  Haren Pandya.  On 25.3.2003, A­7  (Rehan Puthawala)

called up A­10 (Parvez Khan Pathan) and asked him to come at Pan

Galla near Al Fazal Masjid.   On 25.3.2003, an unsuccessful attempt

was made to kill Haren Pandya.   On 26.3.2003, he was required to

take accused A­1 (Mohmed Asgar Ali) on a motorcycle at Law Garden

so as to kill Haren Pandya.   A­5 (Anas Machiswala) told him that he

would be given Hero Honda motorcycle at Law Garden.   A­4 (Kalim

Ahmad Karimi) also told him that he would be given a pistol and if

anybody is following them, he could do firing in the air.   A­5 (Anas

Machiswala) got a new SIM card for A­6 (Mohmed Yunus Sareshwala)

which was used in the mobile phone of A­8 (Mohmed Riyaz @ Goru).

At 7 O'clock in the morning, he was required to take Mehman to Law

Garden.  In Sunrise Bungalow Society, A­5 (Anas Machiswala) and A­4

(Kalim Ahmad Karimi) changed the number plates of both the Hero

Honda motorcycles and A­5 (Anas Machiswala) gave him the

motorcycle bearing registration no.1110.  He went on that motorcycle

at 6.30 am to Lucky Restaurant.   He purchased Sandesh newspaper

at Juhapura and at 6.56 am reached to Lucky restaurant and by that

time A­5 (Anas Machiswala) reached there and called him at Jaliwali

Masjid and in the bathroom, he was given pistol by A­5 (Anas

Machiswala) and said that it was locked and loaded.   Thereafter, he

went along with A­1 (Mohmed Asgar Ali) to Nehru Bridge.   He had

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worn a helmet and near the gate of Thakardas Hall, he pretended to

read a newspaper.   He saw A­10 (Parvez Khan Pathan) passing from

the opposite side and nodded at him.  He heard firing of 4 to 5 bullets.

He started the motorcycle and wore the helmet.  After about 1 to 1½

minutes, Mehman approached him and set as a pillion rider.  He went

towards  Gujarat  College to  Gandhidham Railway  Station to  Nehru

Bridge.   From there they went to Shahabuddin Dargah to Shahpur

Mill Compound, where they met A­14 (Sohail Khan Pathan) and A­7

(Rehan Puthawala), who was waiting in an autorickshaw.   A­6

(Mohmed Yunus Sareshwala) went with A­7 (Rehan Puthawala) on his

motorcycle after changing two autorickshaws.   He went to his

residence at Juhapura.  He was very happy to know about the death

of Haren Pandya.

182. His confessional statement has been corroborated by Alpesh

Ranchhodbhai Patel (PW­11), SrinathSinh  ShambhauSinh (PW­13),

Manojkumar Baldevbhai (PW­17), Hemantkumar Ratilal Patel (PW­33)

and Rajendra Singh S. Chhikara (PW­110).  They are the witnesses to

the recoveries of SIM cards.  Alpesh Ranchhodbhai Patel (PW­11) and

Manojkumar Baldevbhai (PW­17) are the witnesses relating to BSNL

SIM cards, which were used by the accused persons during the

conspiracy of murder of Haren Pandya, to remain in touch with each

other.   At the instance of  A­1 (Mohmed  Asgar  Ali) 7.5  mm pistol

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bearing no.EE330 was discovered from Flat No.4/B, Kamar Flats from

Batiwala Stove and Srinathsinh Shambhausinh (PW­13) was the

witness to the said discovery.  Jayantibhai Vitthaldas Suthar (PW­27)

has proved the landline of the house of Mohmed Yunus Sareshwala

(A­6) at  A/12,  Sunrise  Apartment,  Juhapura,  Ahmedabad  and the

same has been admitted by A­6 (Mohmed Yunus Sareshwala) in his

further statement recorded under Section 313, Cr.PC.   The

incriminating circumstances are proved by the said evidence.

Rajendra  Singh  S.  Chhikara (PW­110)  was  present at the time of

discovery at Kamar Flat.  The motorbike used during the commission

of an offence was driven by A­6 (Mohmed Yunus Sareshwala) and was

handed over to Javed  Abdul  Rashid  Khan  Pathan (PW­45).   It is

apparent that A­6 (Mohmed  Yunus  Sareshwala) has also provided

logistic support throughout the  conspiracy  and on the  date  of the

killing of Haren Pandya.  He had not only driven A­1 (Mohmed Asgar

Ali) to Law Garden but also waited near Thakarbhai Desai Hall under

the pretext of reading a newspaper till A­1 (Mohmed Asgar Ali)

accomplished the task assigned to him and drove him back to

Shahpur Mill  Compound.   He was also provided one pistol  bearing

no.EE330 by A­5 (Anas Machiswala) for his own protection and also

for the protection of A­1 (Mohmed Asgar Ali).   Proximity of A­6

(Mohmed Yunus Sareshwala) with rest of the group, his explicit act in

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taking A­1 (Mohmed Asgar Ali) to Law Garden and waiting till killing of

Haren Pandya under the pretext of reading newspaper and thereafter,

taking A­1 (Mohmed Asgar Ali) to Shahpur Mill Compound and

handing over the weapon and vehicle and completing everything with

meticulous detail are all reflected in the confessional statements.   

183. It is submitted on behalf of accused that sole eyewitness Anilram

Yadavram Patel (PW­55) has not made any reference with regard to A­

6 (Mohmed Yunus Sareshwala) presence at the place of incident.  It is

further alleged that prosecution has relied on the evidence of

Hemantkumar  Ratilal  Patel,  BSNL  Officer (PW­33) to  ascertain the

location of A­6 (Mohmed Yunus Sareshwala) based on the call details

record of mobile no.9426325774.   It is alleged that A­5 (Anas

Machiswala) had given three SIM cards to A­7 (Rehan Puthawala) of

mobile no.9426325765, A­8 (Mohmed Riyaz) having mobile

no.9426325774 and A­9 (Mohmed Parvez Sheikh) of mobile

no.9426325768.   It is submitted that  Hemantkumar  Raitlal Patel,

BSNL Officer (PW­33) has given the call details and location based on

it of aforesaid three mobile numbers on the morning of 26.3.2003 in

his deposition.   As per him, the following calls were made on

26.3.2003:

i. A­9 (Mohmed Parvez Sheikh) contacted A­7 (Rehan

Puthawala) twice at 7:18:35 and 7:18:43. As per him, the

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location of A­9 was Law Garden and that of A­7 was Nehru

Bridge.

ii. At 7:34:43 another call was made by A­9 (Mohmed Parvez

Sheikh) to A­7 (Rehan Puthawala), but their location could

not be traced due to technical lag.

It is further submitted  that there  was no call  either  made or

received by A­6 (Mohmed Yunus Sareswala) on that date between 7.00

am to 8.30 am.  Hence, A­6 (Mohmed Yunus Sareswala) presence has

not been conclusively established at the place of incident.

184. It  is also submitted that the CDR produced by Hemantkumar

Raitlal Patel, BSNL Officer (PW­33) is in typed format and in any case,

it is inadmissible under Section 65B of the Evidence Act.  It is further

submitted that there is no evidence to show that A­6 (Mohmed Yunus

Sareswala) had taken A­1 (Mohmed Asgar Ali) to Shahpur Mill

Compound after the murder of Haren Pandya.  With regard to recovery

of pistol carried by A­6 (Mohmed Yunus Sareswala), it is contended

that it  was  not recovered at the instance of  A­6 (Mohmed  Yunus

Sareswala), but from the purported disclosure made by A­1 (Mohmed

Asgar Ali), which only binds the maker of the statement and cannot be

used against A­6 (Mohmed Yunus Sareswala).   It is inadmissible

under Section 27 of the Evidence Act  against  A­6  (Mohmed Yunus

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Sareswala) as it only binds the maker of the disclosure.  Thus, there is

no evidence to hold him guilty for the involvement in the conspiracy of

murder of Haren Pandya.

185. In our view, the submissions on behalf of the accused are

baseless.   Alpesh Ranchhodbhai Patel (PW­11), SrinathSinh

ShambhauSinh (PW­13), Manojkumar Baldevbhai (PW­17),

Hemantkumar Ratilal Patel (PW­33) and Rajendra Singh S. Chhikara

(PW­110) are the witnesses to corroborate the confessional statement.

They are also witnesses to the recoveries of SIM cards.   Alpesh

Ranchhodbhai Patel (PW­11) and Manojkumar Baldevbhai (PW­17) are

the witnesses of BSNL SIM cards, which were used during an incident

to  remain  in contact  with each other.  Discovery of  7.5 mm pistol

bearing no.EE330 at the instance of A­1 (Mohmed Asgar Ali) from Flat

No.4/B, Kamar Flats was from Batiwala stove and Srinathsinh

Shambhausinh (PW­13)  was the  witness  of that  discovery.   In  his

testimony, he had discussed at length A­1 (Mohmed Asgar Ali)  had

hidden two weapons given to him by the accused.   Jayantibhai

Vitthaldas  Suthar (PW­27)  had  proved the landline  number  at the

house of A­6 (Mohmed Yunus Sareshwala) at A/12, Sunrise

Apartment, Juhapura, and the said fact had also been admitted by A­

6 (Mohmed Yunus Sareswala).   Record of mobile phone location also

revealed the incriminating circumstances as proved by the evidence.

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Rajendra  Singh  S.  Chhikara (PW­110)  was  present at  Kamar Flat

when the discovery was effected.   Motorbike used during the

commission of  the offence was handed over to Javed Abdul Rashid

Khan Pathan (PW­45),  who turned hostile to the case of the

prosecution. He had taken A­1 (Mohmed Asgar Ali) to spot and

brought him back also and carried a weapon too. Keeping in view his

proximity with rest of the group and his involvement in the conspiracy

to  kill  Haren Pandya, the  conviction and sentence  awarded  to  A­6

(Mohmed Yunus Sareswala) by the Trial  Court under Section 120B

read with  Section 302  IPC and under  section 3(1)  and 3(3)  of the

POTA, is found to be appropriate.

IN RE: A­7 (REHAN PUTHAWALA)

186. Evidence against A­7 (Rehan Puthawala) is that on 9.3.2003 he

was present at Jaliwali Masjid along with A­5 (Anas Machiswala), A­8

(Mohmed Riyaz), A­9 (Mohmed Parvez Sheikh), A­12 (Shahnawaz

Gandhi) and  A­14  (Sohail  Khan Pathan),  where  A­14  (Sohail  Khan

Pathan) disclosed that Jagdish Tiwari (PW­39) would be their target

due to his role in riots and task will be accomplished by Mehman (A­1

– Mohmed Asgar Ali) who has come from Hyderabad.   On

17/18.3.2003, he attended meeting at Juni Jama Masjid where A­14

(Sohail Khan Pathan) disclosed that Haren Pandya would be their next

target and A­1 (Mohmed Asgar Ali) would execute the killing.  He also

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attended the meeting held on 22.3.2003 at Juni Jama Masjid where A­

14 (Sohail Khan Pathan) assigned the task of a recce of Haren Pandya

at Law Garden to A­12 (Shahnawaz Gandhi).  On 23.3.2003 at about

7.00 am, A­9 (Mohmed Parvez Sheikh) called A­1 (Mohmed Asgar Ali)

using his  mobile in  which  A­5 (Anas  Machiswala) had stored the

numbers of  A­1  (Mohmed Asgar Ali)  and A­5 (Anas Machiswala)  as

Mama and Uncle respectively.   On 24.3.2003, he was present in the

meeting at Juni Jama  Masjid  where  A­1 (Mohmed  Asgar  Ali)  was

called by A­4 (Kalim Ahmed) by  making a phone call.   On the

directions of A­14 (Sohail Khan Pathan), A­9 (Mohmed Parvez Sheikh)

took A­1 (Mohmed Asgar Ali) to Law Garden for familiarisation with

topography.  In the said meeting, he was assigned the task to remain

present at Nehru Bridge in order to escort A­1 (Mohmed Asgar Ali) and

A­8 (Mohmed Riyaz) after killing Haren Pandya.   A­5 (Anas

Machiswala) handed over to him one SIM Card of BSNL for using next

morning.  The CDR of mobile no.9825398516 and print out of mobile

no.9426325775 vide  Exhibits 469 and  310 respectively  have  been

cited.

187. It is apparent from the record that he could not go for training to

Pakistan as during the month of Ramzan his parents were to come

from the USA and he decided to opt out.   However, he has provided

complete logistic support to all those who went for training.   He was

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also contacted by Anas Machiswala (A­5) from Dubai and the others

from  Calcutta.  He  was in regular touch  with  A­4 (Kalim  Ahmad

Karimi) and has helped his friends who were in difficulty in Calcutta.

On his asking, he was informed by A­14 (Sohail Khan Pathan) that A­1

(Mohmed Asgar Ali) @ Mehman, who is coming from Hyderabad, would

perform the task of  killing Haren Pandya and rest of the members

have to provide logistic support only.   He has also attended the

meeting on 22.3.2003 called by Sohail Khan Pathan (A­14) and Anas

Machiswala (A­5) at Old Jumma Masjid, where A­9 (Mohmed Parvez

Sheikh) was directed by A­14 (Sohail Khan Pathan) to carry out recce

of Law Garden as A­12 (Shahnavaz Gandhi) could not do so.  He had

his own mobile no.9825398516, where he fed mobile no.9825498241

of A­1 (Mohmed Asgar Ali)  and mobile no.9825311510 of A­5 (Anas

Machiswala) as Mehman and Uncle respectively.   It is also apparent

that he had waited at the corner of Nehru Bridge for A­1 (Mohmed

Asgar Ali) and A­6 (Mohmed Yunus Sareshwala) to come.  He escorted

them to Shahpur Mills Compound where A­5 (Anas Machiswala) and

A­14 (Sohail Khan Pathan) were waiting for them in an autorickshaw.

He also accompanied A­6 (Mohmed Yunus Sareshwala) for handing

over the helmet and  weapons to A­5 (Anas  Machiswala) and A­6

(Mohmed Yunus Sareshwala) gave him brief detail about the killing of

Haren Pandya.  He also accompanied A­8 (Mohmed Riyaz @ Goru) for

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getting the  fake number plate.  His  mobile  phone directory  gave a

major lead in the investigation and his active role at every stage and

overt act are visible from the evidence adduced by the prosecution.

188. It is also apparent that A­7 (Rehan Puthawala) is a close friend of

A­10 (Parvez Khan Pathan), A­12 (Shahnavaz Gandhi) and A­8

(Mohmed Riyaz).  He has given his confessional statement to Vinayak

Prabhakar Apte (PW­21) and the same had been confirmed by

Dahyabhai Mathurbhai Patel (PW­91).   Though Hussainmiyan

Amirmiyan Shaikh (PW­57) has not supported his own statement, yet

he has stated that he was known to A­4 (Kalim Ahmed Karimi)

through A­13 (Mufti Sufiyan) and also knowing all the accused

including A­7 (Rehan Puthawala).   Shaikh Mohmed Riyaz

Hussainmiyan  Pirmiyan (PW­52) the  owner  of “Star  Number  Plate”

shop has categorically stated about A­8 (Mohmed Riyaz @ Goru) and

A­7 (Rehan Puthawala) having approached for number plate and also

taken the delivery and at the end of May 2003, they had shown his

shop to CBI Officer from where the number plate was got prepared.

The motorcycle  having  fake registration no.GJ­1­CH­5189 originally

belonged to  Gaurang Gandhi.  This  motorcycle  was stolen and the

original owner Gaurang Gandhi had made a request not to transfer

the stolen vehicle in the name of any other person.  As stated earlier,

the fake number plate was discovered from the bushes near Tarapur

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Highway and it was A­10 (Parvez Khan Pathan) who left the motorcycle

at Tarapur Highway while he and A­11 (Mohmed Faruq) were running

away to Bharuch to Surat to Pune and to Hyderabad and this

motorcycle was found by PS Koth.  The discovery of motorcycle is duly

proved by Bhagwan Singh Samantsinh Rathod (PW­50), PSI posted at

PS Koth.  After killing Haren Pandya, the fake number plate was put

by the accused so as to save themselves  from the clutches of law.

Sirajbhai  Mustufabhai (PW­60) has stated about the visit of A­7

(Rehan Puthawala) along with other accused to his Pan Parlour.

189. The sanction granted by Kuldeep Chand Kapoor (PW­117) to A­7

(Rehan Puthawala) under Section 50 of POTA; the deposition of Dr.

Sushilkumar S. Gupta (PW­120), Investigating Officer relating to

pointing out of Star Number Plate shop; and the deposition of

Babarbhai Maljibhai Rabari (PW­34), a panch witness to the

disclosure of  making of fake number plate and pointing out and

seizure of rough bill book of Star Number Book are strong

corroborative evidence to corroborate the  confession  of  A­7 (Rehan

Puthawala) recorded by Vinayak Prabhakar Apte (PW­21).

190. It is apparent that he was provided with BSNL SIM card mobile

no.9426325765. and he was present at Nehru Bridge in the morning

of 25.3.2003 and escorted A­1 (Mohmed Asgar Ali) and A­8 (Mohmed

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Riyaz) to Shahpur Mills Compound where A­5 (Anas Machiswala) and

A­14 (Sohail Khan Pathan), were waiting for them with an

autorickshaw.  On  26.3.2003, he reached  Nehru  Bridge corner at

about 7.15 am and he received a phone call from A­9 (Mohmed Parvez

Sheikh) while he was on his way.  On seeing A­1 (Mohmed Asgar Ali)

and A­6 (Mohmed Yunus Sareshwala) on a motorcycle,  he escorted

them to Shahpur Mill Compound where A­5 (Anas Machiswala) and A­

14 (Sohail Khan Pathan) were  waiting  with an autorickshaw and

returned the  SIM card to  A­5 (Anas  Machiswala).  He  parked the

motorcycle used by A­6 (Mohmed Yunus Sareshwala) in the parking of

Anam Flats, Daryapur on 28.3.2003.  After 2­3 days of the murder of

Haren Pandya, on the direction of A­5 (Anas Machiswala),  he along

with A­8 (Mohmed Riyaz) went to Shaikh Mohmed Riyaz

Hussainmiyan Pirmiyan (PW­52) and got prepared false number plates

bearing no.5189.  This fact has been proved by Shaikh Mohmed Riyaz

Hussainmiyan Pirmiyan (PW­52) by his deposition vide document

Exhibit 379 and Babarbhai Maljibhai Rabari (PW­34) vide document

Exhibit 311.

191. It was submitted on behalf of accused by Shri Raju

Ramachandran, learned Senior Counsel that there was no necessity to

escort  A­6  (Mohmed Yunus Sareshwala),  who  is  a  local  resident of

Ahmedabad.  The CDR (Exhibit 310) has failed to show the location of

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the number  which  was being  used by  A­7 (Rehan Puthawala) on

26.3.2003 and the CDR was inadmissible in evidence.  The allegation

against the accused was far from the truth and also baseless.   The

evidence of Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW­52) is

fraught with infirmities.   There is a doubt as to whether A­7 (Rehan

Puthawala) approached him for a false number plate of the

motorcycle.   The receipt produced contains no  name and  he has

erased  Splendor  and  written  Yamaha  against the  entry  of  number

5189, whereas it is his original case that he was asked to prepare a

number plate for Yamaha which was later changed to Splendor.  The

job book is recovered on 22.5.2003 whereas he has not stated that

CBI has come to his shop before 23.5.2003.   The statement is typed

on a computer, but there is no computer at the shop of Shaikh

Mohmed Riyaz Hussainmiyan Pirmiyan (PW­52) and he has not been

confronted  with  number  plate in the  court  as  a  material  object to

identify as the one made at the behest of A­7 (Rehan Puthawala).

192. In our opinion submissions are baseless.  There is no reason for

Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW­52) to speak lie

and it is  apparent that  he is  a reliable  witness  and that the fake

number plate of motorcycles had been got prepared by the accused

was recovered and it was used at the time of the commission of the

offence.  Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan  (PW­52) is

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categorical about  A­7 (Rehan  Puthawala) and  A­8 (Mohmed  Riyaz)

having approached him for a number plate.  It was at the instance of

A­7 (Rehan Puthawala) and A­8 (Mohmed Riyaz) CBI officers came to

know of the  place  where  number  plates  have been prepared.  The

motorcycle was stolen one and fake number plates have been

discovered from the bushes near Tarapur  Highway.   It was A­10

(Parvez Khan Pathan) who left the motorcycle at Tarapur Highway in

the bush.  The recovery of the motorcycle is proved by Bhagwan Singh

Rathod (PW­50) corroborated by Alpesh Ranchhodbhai Rathod (PW­86

­ the panch witness) and by deposition of Investigating Officer, CBI

and Dr. Sushilkumar S. Gupta (PW­120).   The vehicle was used in

killing  Haren Pandya and the fake  number plate  was  put by the

accused so as to save themselves from the clutches of law and prevent

identification.   The guilt stand proved against the A­7 (Rehan

Puthawala) as found established by the Trial Court.

193. The conviction and sentence imposed by the Trial  Court on

Rehan Puthawala is found to be proper under section 3(1) and 3(3) of

POTA as well as section 120B r/w section 302 IPC for commission of

murder of Haren Pandya.

IN RE: A­8 (MOHMED RIYAZ @ GORU)

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194. It is the contention of the learned counsel that there is no record

or written evidence against A­8 (Mohmed Riyaz) that he has given the

order for the number plate.   It is also averred that alterations were

made in the job workbook of Star Number Plate.   There is no

independent evidence linking the number plate to the offence.   It is

further submitted that prosecution has picked up abandoned bikes

already in the local police custody and foisted the same on the

accused.  Each motorcycle recovered is the planted recovery and has

been falsely connected to this case.  It is further submitted that there

is no independent evidence to establish the connection of motorcycle

recovered by PS Koth, which CBI claimed to be connected with

number plate  5189,  with  the offence.  The discrepancies  as to  the

presence or absence of a number plate on the  motorcycle in the

panchnama and in the testimony of Sushilkumar S. Gupta (PW­120)

creates suspicion.  It is further urged that on account of broadcast in

May 2003, the CBI came to know about the motorcycle being at PS

Koth.  This broadcast indicates that CBI was aware of the motorcycle

in the month of May itself and the recovery of the motorcycle from PS

Koth on 12.6.2003 was choreographed to suit the case of the

prosecution.  Despite Court’s directions, no broadcast documents have

been produced.  It is stated that motorcycle having number plate 8973

was recovered from the parking of Apsara Cinema by Kagdapeeth PS

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on 9/10.4.2003 and it was seized by CBI on 25.4.2003.   However,

Javed Abdul Rashidkhan  Pathan (PW­45) denies being shown the

motorcycle at Kagdapeeth PS and also states that CBI did not seize it

in his presence.   It is also contended that original owner Ashokbhai

Ambalal Shah (PW­36) of the above motorcycle has deposed that from

24.12.2002 i.e., the day he filed a complaint of theft of motorcycle till

4.5.2003, he regularly visited (every 15­30 days) the Kagdapeeth PS to

inquire about his stolen motorcycle.   It is, thus, completely

incomprehensible  as to  why  Amduji  Pabji  Chavda  (PW­46)  did  not

inform him immediately when the bike was recovered.

195. It is further  alleged that  Bhagwan Singh  Samantsinh Rathod

(PW­50)  has categorically  stated that  broadcast  made  in May 2003

about the recovered motorcycle indicates that CBI was aware of the

motorcycle at the time of recovery of the number plate and fabricated

a connection between the two later.

196. A­8 was given 78 hours of reflection time. All necessary cautions

and explanations were given to him. His confessional statement was

recorded on 08.06.03. Custody was handed over to PW120 at 4.00 am

on 08.06.03.  He had not complained of anything  when produced

before PW91 at 10.40 am. His oral retraction was made on 29.07.03;

written retraction on 11.08.03.

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197. A­8 stated that he undertook arms training in Pakistan. He went

there via  Dhaka,  along  with  Yunus (A6),  Parvez (A9), and  another

person named Munaver Beg @ Captain. Fake passports were used for

this, where A8’s name was Abdul Karim. Besides this, he also spoke of

his close association with other persons, namely, Kaleem (A4), Anas

(A5), Yunus (A6), Parvez (A9) Shahnawaz (A12), and Rasul Khan Party

(A18­­absconding). One specific instance of his association with Rehan

(A7) came after the murder of Haren Pandya. This was in relation to

changing the number plate of Hero Honda Motorcycle, which was done

at the  Shop  of  Star  Number  Plate.  A8  had  gone  with  A7 for this

purpose. Number plate registration No. GJ­1­CA­5189 was suggested

for this task by Anas (A5). Prior to changing the number plate, he was

instrumental in taking  Asgar  Ali (A1) to  Law Garden on 25.03.03.

Black coloured  Hero  Honda  motorcycle was used for this; it was

provided by Anas (A5). The plan to murder Haren Pandya was aborted

on that  day (i.e. on  25.03.03) as the  place  was found to  be very

crowded. Next day, i.e. on 26.03.03, it was Yunus (A6) to whom the

task of taking A1 to Law Garden for the murder of Haren Pandya came

to be handed over.

198. By and large, A8’s confessional statement is on the same lines as

that of A6. Although he had complained of forcible extraction of his

confessional statement  by  making  him sign  on  blank  papers, trial

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court  did  not attach  much importance to this in view of his late

retraction which was held to be on  legal  advice, with no prior

complaint having been made to any judicial officer and all safeguards

of Section 32, POTA had been duly observed by the S.P.   

199. PW­21, PW­120, and PW­91 prove contemporaneous record of

the requisition, the preliminary questioning, the caution which was

administered and the confirmation procedure under Section 32 (4) of

the POTA, in regard to the confessional statement of A­8. Additionally,

all witnesses examined to prove A­7’s guilt are examined to prove A­9’s

complicity as well. Corroborative evidence also comes forth from PW­

11, PW­17, PW­21, PW­45, PW­52, PW­60, PW­77, PW­91, PW­114,

PW­117, and PW­120. Depositions of PW­119 and PW­33 (working as

Sub­Divisional Engineer and Divisional Engineer, respectively at

BSNL, Ahmedabad) are in relation to cell phone records.  

200. On 25.03.03 A8 drove A1 to Law Garden. Haren Pandya was to

be murdered on that day as per the conspired planning. This mission

had to be aborted on 25.03.03. For 26.03.03 (i.e. the day  Haren

Pandya was actually murdered) A­8’s task of taking A­1 to Law Garden

was assigned to A­6. This was done at A­14’s instance, lest repeated

visits should blow away A­8's cover. Further, after Haren Pandya was

murdered, a fake number plate  was obtained for the stolen  Hero

Honda motorbike. Fake number plate bore registration No. GJ­1­CH­

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5189, whereas the motorbike earlier had a plate bearing registration

No. GJ­2164. The  fake number plate was changed at Star Number

Place, shop of PW­52. A­8 had prior acquaintance with PW­52.   The

stolen motorbike had been procured through PW­57 at the instance of

A­13 (absconding accused). The number plate was discovered at the

instance of A­10, who had left the motorcycle at Tarapur Highway.    

201. A­8 was arrested on 03.04.03 from Parimal Garden. Depositions

of PW­114 and DW­3 bear on this aspect. DW­3 lived in A­8’s

neighborhood. This witness stated that A8 was taken away by police at

night; time around 2.30; the date was 2nd or 3rd of April, 2003.  DW­3

deposed nearly three years after the happening. There are no

supporting documents. It is very incredulous that prior to receiving of

Court summons, this witness had no knowledge of what it was that

occurred, neither did he make any inquiries in relation to A­8 (the son

of DW3’s neighbour). Equally, he is himself unsure of the exact date.

Therefore, even if, arguendo, his version was to be believed, it would

still not dent the prosecution. Thus, there is nothing to suspect arrest

of A­8.   

202. As for the discrepancies alleged in the format of the call records,

these would not go to the falsify the prosecution’s case.  At the time of

his arrest, SIM Card was found from his pocket. Mobile Nos.

9426007240 and  9825384241 (Hutch) belonged to A8, along  with

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mobile phone bearing IMEI No. 448478527477630).  In view of the

evidence  on record,  A­8 (Mohmed  Riyaz  @  Goru)  had rightly  been

convicted and sentenced by the Trial Court for commission of offence

under section 3(1) read with section 3(3) of POTA as well as under

section 120B and 120B read with section 302 IPC for commission of

murder of Haren Pandya. The same is restored.

IN RE: A­9 (   MOHMED PARVEZ SHEIKH)

203. In a nutshell, details of his training at Pakistan and return from

there, together with his knowledge and role in AMTS Blasts, attack on

Jagdish Tiwari (PW­39), and murder of Haren Pandya are all

mentioned in the statement. A9 also provides details of the role played

by others in the entire sequence of conspiracy.  60 hours of reflection

time was given to him. The requisition was given on 04.06.03. The

statement was recorded on 07.06.03. Willingness was again verified

after recording the statement. A9 put his signatures to it. His custody

was handed over to PW­120 at 4.50 pm. The next day being Sunday,

he was produced before PW­91 at 10.35 am on 09.06.03. No grievance

was raised against police. No complaint was made of any physical or

mental ill­treatment at the hands of police. His subsequent warrant of

judicial remand is Ex. 324.  

183

204. He went for training at Pakistan via Indo­Bangla Border. A4 had

told him that even those who did not have passports were also to go

there. A9 states that although Rehan (A­7) could not make it, for his

(A­7's) parents were visiting from the USA, Anas (A­5), Shahnawaz (A­

12), Sohail Khan (A­14), and Yunus (A­6) had all gone for training at

Pakistan. Two coded messages are also mentioned to have been sent,

one each on behalf of A­18 and A­18’s wife; the former was sent for

A4, the latter in the form of a letter for A­8 and A6.  

205. A­9 was present in the meeting at Jaliwalli Masjid on 09.03.03.

He states that attendees included A­4 and A­14. There, A14 disclosed

two things. Firstly, that Jagdish  Tiwari  would  be their target and

secondly that two ‘guests’ from Hyderabad had also been called; both

of  whom trained at  Pakistan. It is  stated that firing  upon Jagdish

Tiwari came to A­9's knowledge via a newspaper. Next, he met A­7 and

A­12.  Along with  them, A­9 met A­4,  A­5,  A­12,  and A­14 at  Juni

Jama Masjid.  This time, Haren Pandya came to be named as their

target. Haren Pandya was stated to have worked very actively during

the riots, as also in the demolition of the Paldi Masjid. A­14 disclosed

that a sharpshooter had come from outside for accomplishing this.  

206. A­9 states that the first task assigned to him was for

undertaking the recce of Law Garden. This fell to him since earlier A­

12 had failed to undertake the same task. Therefore, in the meeting at

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Juni Jama Masjid on 22.03.03, it was to A9 that this task came to be

assigned by A­14. A­14 is so stated to have disclosed certain aspects

of  Haren  Pandya's  movements in/around  Law  Garden: that  Haren

Pandya would go for a morning walk at Law Garden every day, and

entering from towards the Thakarbhai Desai Hall, Haren Pandya

would park his White Maruti Fronti Car near Children's Park. Upon

not sighting their target on the morning following the meeting dated

22.03.03,  A9  once  again  went to  Law Garden  on  24.03.03  on  his

motorbike. On this occasion, he found Haren Pandya. He also found

his Maruti  Fronti  Car bearing registration No.  GJ­1­AP­4606. What

thereafter followed on 25.03.03 and on 26.03.03 is also mentioned by

A9, including as to why it was that on 25.03.03 the plan to murder

Haren  Pandya came to be aborted.  On both these  days,  A­9  was

present in the vicinity of Law Garden, opposite H.A. College. Finally,

he saw Haren Pandya being killed by A­1. A­9 saw to it that nobody

followed A­1. Besides the aforesaid, A­9 also provides details of the

mobile numbers used by various co­conspirators. A­7’s number was

9825398156, that of A­1 was 9825498421 and A­5 had 9825311510.

It was through A­7’s mobile phone that A1 was asked to reach Law

Garden at 7 am on 23.03.03.   

207. Defence mounted an attack on the entire procedure of recording

confessions. Specifically, voluntary recording of A­9's confession was

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stated to be improbable. To this end, certain aspects of PW21's

deposition were pressed into service.  Accused had been sent for a

medical check­up  as part of compliance of the guidelines in  D.K.

Basu’s  Case. PW­21  had  mentioned that about 12  hours and 50

minutes were taken to record A­9’s confessional statement. There was

no interruption of any kind while recording the confession. Recording

started at around 4 am; ended at 4.30 pm. A­9 was produced at the

Civil Hospital for medical check­up on 07.06.03. Medical papers (Ex.

773) show his presence along with other accused. Mr. I.C. Sharma of

CBI had taken A­7, A­8, A­9, A­10, and A­11 for medical examination

around 10 am. With aforesaid as the position, defence contention was

that there could have been no uninterrupted recording of the

statement. Thus, PW­21 perjured himself. A confessional statement is

hence rendered, suspect.

208. There is no substance in the aforesaid defence arguments. The

defence did not ask for a recall of PW­21 to cross­examine him as to

aforesaid aspects. Even if medical papers were produced late, nothing

prevented the defence from asking for his recall. It  cannot thus be

concluded that PW­21  perjured  himself. In fact, PW­21  was  duty­

bound to refer the accused persons  for medical  check­up every 48

hours. The outer time­limit  for medical  examination  is  provided for

under  D.K.  Basu Guidelines.  Bonafide  compliance  of this  mandate

186

cannot be held to be against prosecution’s case. It is to be also kept in

mind that during the reflection time of 60 hours given to A­9, he was

not sent for medical examination. A perusal of Ex. 772 shows that A­9

was last sent to Civil Hospital on 03.06.03 at 9.35 am. This aspect

also throws light on the necessity for sending A­9 for medical check­

up on 07.06.03.     

209. Lastly, the defence contention of forcible extraction of confession

is also to be noted, if  only to be rejected.  There  is no proof  of  the

alleged torture. There is no medical evidence substantiating the same.

On the other, sufficient corroboration is available for A­9’s confession.

Considering the overall evidence, the Trial Court convicted and

sentenced  him rightly  under section  3(1) read  with  section  3(3) of

POTA  as  well as  120B  IPC  and  120B  read  with  302 IPC  also for

commission of murder of Haren Pandya. The same is restored.   

IN RE: A­10 (PARVEZ KHAN PATHAN)

210. On  behalf of A­10 (Parvez  Khan  Pathan) and  A­11 (Mohmed

Faruq), it was contended that they were not part of the conspiracy of

killing Haren Pandya.  A­10 (Parvez Khan Pathan) got the knowledge of

killing after a few hours.   Their participation with the other accused

will not amount to conspiracy.  They have been punished for a general

conspiracy to take revenge for atrocities against Muslims.  They have

been tried and punished not once but twice and spent over 8 years in

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custody.   They were accused in the case of  Jagdish Tiwari  (PW­39)

also.  The confession attributing ex post facto knowledge of the murder

of Haren Pandya is inadmissible in evidence.  Their statements are not

admissible under Section 32 of POTA safeguards were not observed,

which aspect we have already discussed and negated.

211. On behalf of A­10 (Parvez Khan Pathan), it was submitted that

he has no specific role in the murder of Haren Pandya.   He made a

disclosure under Section 27 of Evidence Act which lead to the recovery

of some literature from his house and that he has disclosed that a

motorbike was left by him on Tarapur Highway after removing number

plates and rendering the bike unfit by taking out air on 4/5.4.2003.

The Investigating Officer, CBI (PW­120) recovered number plate

bearing no.5189 from the bushes, though, he discovered no bike, he

went into nearby Koth Police Station, whereupon he learned that in

May 2003, the Koth Police Station had found an abandoned bike on

the Tarapur Highway.

212. On behalf of the accused, it was submitted that the bike could

not have been driven by Bhagwan Singh Samantsinh Rathod (PW­50),

PSI Koth Police Station stated that on 5.4.2003.   It was further

submitted that tires were deflated and flung down.  It could not have

been brought to the police station.   The  Koth Police Station  had

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broadcast this news in May 2003 and that is how CBI came to know

about it.   The statement of Bhagwan Singh Samantsinh Rathod (PW­

50) has also been adversely commented upon that looking at the front

of the motorcycle there  was  one white  color  number  plate,  but  no

number was written on it.  On 3.5.2003, when the motorcycle was

seized, it was in standing position, hence he brought it to the police

station and broadcast as to the motorcycle in every police station as it

was found unclaimed.  The disclosure statement refers to the number

of the plate being removed and thrown away.    

213. As per prosecution case, A­10 (Parvez Khan Pathan) is the real

brother of A­14 (Sohail Khan Pathan) and during the entire period of

the conspiracy, he had the  main role of providing lodging, arms,

ammunition, mobile phones, and SIM cards.   In January 2003, A­14

(Sohail Khan Pathan) disclosed to him that as per directions of A­13

(Mufti Sufiyan), one Mehman (A­1 Mohmed Asgar Ali) is to be brought

from Udaipur for taking revenge in Ahmedabad.   A­14 (Sohail Khan

Pathan) along with A­11 (Mohmed Faruq) and Turk Salim Pasa

Majarirule Islam  (PW­49)  went to  Udaipur in Tata Indica car and

brought  Mehman  (A­1  Mohmed Asgar  Ali) to  Ahmedabad  and  was

introduced to him.  He also went to Railway Station, Ahmedabad and

brought A­3 (Mohmed Shafiuddin) to Lokhandwali Chali.  He and A­11

(Mohmed  Faruq) had  made arrangement for stay of A­1 (Mohmed

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Asgar Ali) and A­3 (Mohmed Shafiuddin) at M.B. Complex and later on

at Flat No.401, Royal Apartment.  He also made an advance payment

of Rs.5,000/­ for the flat to Abdul Banki Abdul Bari Ansari (PW­44).

This fact had been corroborated by Abdul Banki Abdul Bari Ansari

(PW­44 – hostile witness) in his deposition.  He also purchased Suzuki

Samurai  motorcycle bearing no. GJ­1SS­5934 from Abdul Samad

Abbasali (PW­54) from the  money provided by A­14 (Sohail Khan

Pathan)  in February 2003 for A­1  (Mohmed Asgar Ali),  the shooter.

This fact had been corroborated by Abdul Samad Abbasali (PW­54) in

his deposition.   He acted as an intermediary between A­1 (Mohmed

Asgar Ali) and A­13 (Mufti Sufiyan).  About 5­6 days before the attack

on Jagdish Tiwari, he was called by A­14 (Sohail Khan Pathan) at the

shop of A­4 (Kalim Ahmed) where A­14 (Sohail Khan Pathan) disclosed

that as per the directions of A­13 (Mufti Sufiyan), Jagdish Tiwari was

their target.  He pointed out Jagdish Tiwari (PW­39) and his shop to A­

1 (Mohmed Asgar Ali) on the directions of A­14 (Sohail Khan Pathan).

On 7.3.2003, he collected two weapons from A­1 (Mohmed Asgar Ali)

and gave them to A­14 (Sohail Khan Pathan).

214. It is further the stand of prosecution that on 9.3.2003,  A­1

(Mohmed Asgar Ali) and A­3 (Mohmed Shafiuddin) made an abortive

attempt on Jagdish Tiwari (PW­39) where he along with A­11 (Mohmed

Faruq) waited for them at Afzal Cold Drink in order to exchange the

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motorcycles with A­1 (Mohmed Asgar Ali) and A­3 (Mohd. Shafiuddin).

After the attack on 11.3.2003 on Jagdish Tiwari (PW­39), A­1

(Mohmed Asgar Ali) called him twice on his mobile.   After attacking

Jagdish Tiwari (PW­39), they visited his house and changed clothes.

He along with A­11 (Mohmed Faruq) dropped them at Royal

Apartments.

215. It is further the case of the prosecution against  A­10  (Parvez

Khan Pathan) that after 3­4 days of the attack on Jagdish Tiwari (PW­

39), on the directions of A­14 (Sohail Khan Pathan), he dropped A­3

(Mohmed Shafiuddin) at ST Bus Stand for going to Jaipur.   On

1.4.2003, he was  informed by A­14  (Sohail  Khan Pathan) that Flat

No.401 at Royal Apartment has been vacated.  On 3.4.2003, he went

to Abdul Banki Abdul Bari Ansari (PW­44) and collected a cheque for

Rs.3,500/­ out of the advance amount paid.   Thereafter, on the

instructions of  A­14  (Sohail  Khan Pathan),  he handed over  Suzuki

Samurai  and  Hero  Honda motorcycles to  Javed Abdul  Rashidkhan

Pathan (PW­45) and asked him to keep them in some parking place.

This fact had been corroborated by Javed Abdul Rashidkhan Pathan

(PW­45) in his deposition (Exhibit 558). After 4.4.2003, he along with

A­11 (Mohmed Faruq) fled from Ahmedabad on Hero Honda

motorcycle which they abandoned at Tarapore highway after removing

its number plate.  Thereafter, he went to Bharuch and stayed in false

191

names of Akhtar Ali and Usman Ali.   On 5.4.2003, he went to Surat

and stayed in Bismillah Hotel in a false name and from Surat he went

to Hyderabad via Pune and stayed in Hotel Bluestar.   The confession

about  his stay  at  Bharuch  and  Hyderabad  had  been corroborated

proved by Exhibits 757 and 527 i.e., the visitor registers of both the

Hotels.  He  met  A­4 (Kalim  Ahmed),  A­5 (Anas  Machiswala),  A­12

(Shahnawaz  Gandhi), A­13 (Mufti Sufiyan) and  A­14 (Sohail Khan

Pathan) in  Hyderabad.  Upon seeing the  news in  a  newspaper  on

26.4.2003 about the arrest of other accused persons, he along with A­

11 (Mohmed Faruq) decided to return to Ahmedabad.  The allegations

against A­10 (Parvez Khan Pathan) had been proved by Harikishan

Harpal Meena (PW­23) as panch witness.  Rajendra Singh S. Chhikara

(PW­110)  had  called  Harikishan  Harpal  Meena (PW­23)  working in

Central Excise and Customs Department posted at Gandhinagar as

Superintendent to be panch witness in pointing out memo prepared at

the instance of A­1 (Mohmed Asgar Ali).   A­10 (Parvez Khan Pathan)

has closely worked in association with absconding brother A­14

(Sohail Khan Pathan).   He has provided all the logistic supports for

executing the conspiracy and made arrangement for stay of those who

came from outside and provided for their transportation, motorcycles,

arms, and ammunition.

192

216. There is evidence that he has provided all the logistic support

from the beginning in executing the conspiracy and had been

supported  by  A­11 (Mohmed Faruq).  On  23.4.2003, they  went in

TATA  Sumo jeep from CBI  Office,  Gandhinagar and  A­1 (Mohmed

Asgar Ali) led them to House No.206, Block No.61, Old Bapunagar,

Ahmedabad at Gujarat Housing Board flats where he stayed for three

days and from there to Flat No.902, A­3 Block near Dhobi ki Chawl,

Rakhial where also stayed for three days and then to House No.522,

Block No.105, Bapunagar near Momin Masjid, which is a house of A­

14  (Sohail  Khan Pathan)  and A­10  (Parvez Khan Pathan)  and  from

there one Bajaj Kawasaki Boxer Motorcycle bearing registration

no.GJ1BG3849 had been seized along with its  RC book, for  which

memo Exhibit 270 was prepared and was signed by Harikishan Harpal

Meena (PW­23) as well as by A­1 (Mohmed Asgar Ali).

217. Abdul Banki Abdul Bari Ansari (PW­44) had corroborated that he

had rented the flat at Royal Apartment on a fixed rent of Rs.1,400/­

and Rs.5,000/­ had been deposited.  In April 2003 it was vacated and

after deducting the amount of rent, he had refunded Rs.3,400/­ to A­

10 (Parvez Khan Pathan) through cheque issued favouring A­10

(Parvez Khan Pathan) drawn on Gujarat Industrial Cooperative Bank

from Saving Bank Account No.2244 and the same had been encashed

by A­10 (Parvez Khan Pathan).   This fact had been proved by

193

Satyendra Sriramayan Pandey (PW­105), Sub­Inspector, CBI who had

seized the said cheque book and also obtained the bank details  of

aforesaid  account  no.2244  from the  Shantikumar  Narmadashankar

Pandya  (PW­37),  Branch Manager of  Gujarat Industrial  Cooperative

Bank, was also categorical about A­10 (Parvez Khan Pathan) having

withdrawn the amount giving the details of denomination of the

currency notes given to him on 3.4.2003.   The handwriting on the

cheque  was  also  proved to  be that  of  A­10 (Parvez  Khan  Pathan).

Suzuki Samurai black coloured motorcycle bearing no.GJ­1­SS­5934

was found at the instance of Javed Abdul Rasidkhan Pathan (PW­45).

Abdul Samad Abbasali (PW­54), owner of Silver Auto Consultant,

dealing in sale and purchase of second­hand two­wheelers, on

28.1.2003 purchased the aforementioned motorcycle from Sanjab

Akhtar Maheboob Akhtar (PW­76) of India Auto Consultant and signed

the  delivery  notebook  and  he  subsequently sold the  same  to  A­10

(Parvez Khan Pathan).  An entry was accordingly made in the delivery

notebook.  The original  owner of the aforesaid motorcycle was Anil

Mehta, who sold it to Sanjab Akhtar Maheboob Akhtar (PW­76).  After

killing Haren Pandya,  the aforesaid motorcycle was handed over to

Javed Abdul Rashidkhan Pathan (PW­45) by A­10 (Parvez Khan

Pathan) on 3.4.2003 and this fact had been proved by Javed Abdul

Rashidkhan  Pathan (PW­45).   The  aforesaid  motorcycle  was found

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from Magnet System Car Parking, Kalupur Railway Station on

17.4.2003 in an abandoned condition.  

218. Another  motorcycle  bearing fake registration  no.GJ­1CD­8973

was found at Apsara­Aradhana Theatre.   The original registration

number of  this motorcycle was GJ­1CH­6692 and  it was owned by

Rutul Ashok Shah and his father Ashokbhai Ambalal Shah (PW­36)

had stated that this motorcycle was stolen from New Cloth Market.

On intimation by Kamlesh Bamanrao Marathe  (PW­40),  Manager of

Apsara­Aradhana Cinema, the aforesaid motorcycle was fetched by the

officers of Kagdapith Police Station.  It is also apparent that Janakrai

Ravishankar Pandya (PW­25) in response to a letter of CBI had

produced registration papers in respect of Hero Honda Splendor

bearing registration no.GJ­1CJ­6692 and Suzuki Samurai owned by

Anil Mehta as well as Bajaj Kawasaki Boxer having registration no.GJ­

1BG­3849 vide exhibits 278, 279 and  282.   Another  Hero  Honda

motorcycle  having  registration no.GJ7Q2164 was found at  Tarapur

Highway which originally belonged to Gaurang Kirit Gandhi and the

fake number plate was got prepared from Star Number Plate as GJ­

1CF­5189.   The aforesaid motorcycle was found without any number

near Tarapur­Bagodara Highway at the instance of A­10 (Parvez Khan

Pathan) in the presence of Sushil Kumar  S.  Gupta (PW­120) and

Arpesh Ranchhodbhai  Rathod  (PW­86).   It  was  seized by Bhagwan

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Singh Samantsinh Rathod (PW­50), In­charge, PSI, Koth Police

Station.   Thereafter, the six CDs and written  material were also

discovered  from the residential  place of  A­10  (Parvez Khan Pathan)

which depicted the  plight  of  Muslims  after the  Godhra incident in

Gujarat.  

The aforesaid evidence clearly  proves  the role  of  A­10  (Parvez

Khan Pathan) in the conspiracy to murder Haren Pandya and he has

been rightly convicted by the Trial Court under POTA and for murder

of Haren Pandya.

IN RE: A­11 (MOHMED FARUQ)

219. It is contended by  Shri Shadan  Farasat, learned counsel on

behalf of A­11 (Mohmed Faruq) that there is no evidence against A­11

(Mohmed  Faruq) other than confession.   It is alleged that  he  has

accompanied A­10 (Parvez Khan Pathan) when the bike was

abandoned at Tarapur Highway.   There is no evidence to support it.

The other allegation against him is that he accompanied a group of

people who drove A­1 (Mohmed Asgar Ali) to Ahmedabad from Udaipur

in  February  2003 and  that  by itself is  not  an  offence  as it is the

prosecution case that the plan to murder Haren Pandya was hatched

only on 18.5.2003.   He has undergone the sentence for general

conspiracy including the conspiracy of the attack on Jagdish Tiwari

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(PW­39).   It is contended that there is no evidence to link him to the

murder of Haren Pandya and hence, his acquittal must be upheld.

220. It  is the case of  prosecution and evidence discloses that A­11

(Mohmed Faruq) was a close associate of A­14 (Sohail Khan Pathan)

and a friend of A­10 (Parvez Khan Pathan).   He was under the

influence of Mutfi Sufiyan and through him, he came in contact with

A­14 (Sohail  Khan  Pathan).  On  their instructions,  A­11 (Mohmed

Faruq) agreed to accompany A­14 (Sohail Khan Pathan) to fetch A­1

(Mohmed Asgar Ali) from Udaipur.  He was also accompanied by Turk

Salim Pasa Majarirule Islam (PW­49) and he drove the Tata Indica car.

A­1 (Mohmed Asgar Ali) was brought to Ahmedabad on 23.1.2003.  On

the very first day, A­1 (Mohmed Asgar Ali) stayed at the place of A­11

(Mohmed Faruq) and thereafter, he made arrangement of his stay at

M.B. Complex for being in touch in Mohmed Jalis Ahmed Rajput (PW­

68) through Tawabhai Yusufbhai  Shaikh  (PW­66).  Thereafter, they

stayed at the Royal Apartment.   It is proved by Sajid Ibrahim Patel

(PW­47) that SIM card no.9825677207 was sold from his shop which

was used while fleeing away to Hyderabad after killing Haren Pandya.

Turk  Salim Pasa  Majarirule Islam  (PW­49)  had  also confirmed the

same by naming A­11 (Mohmed Faruq).   Sajid Ibrahim Patel (PW­47)

also corroborated that Turk Salim Pasa Majarirule Islam (PW­49) had

requested for SIM card, but later he agreed that by way of proof of

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residence with the application of A­11 (Mohmed Faruq), he had sent

the driving license, which was forwarded to the company.   He stated

that sometimes company, in order to achieve the targets, request the

dealers to activate the SIM in the name of any his employees and it

was done in name of Sarvarmiyan Anvarmiyan Saiyed, however before

4.4.2003, not even a single call was made from the aforesaid SIM card

and the same was sold to A­11 (Mohmed Faruq).   He further

maintained that if the company requests for activation of SIM card for

achieving  its target, the  proof  sent  with the  application suffice the

need  of the company.  Mubinuddin  Pirsaabmiya  Shaikh (PW­116),

Manager, Bismillah Hotel has deposed that two persons in the name of

Akhtarali Sabirali and Fazalbhai Ganibhai had stayed at Surat in fake

names.  As per the prosecution, they were A­10 (Parvez Khan Pathan)

and  A­11 (Mohmed  Faruq).   After purchasing the  SIM card,  A­10

(Parvez Khan Pathan) and A­11 (Mohmed Faruq) left the motorcycle at

Tarapur  Highway and fled away to  Bharuch to Surat to Pune to

Hyderabad.  Their stay at Hotel Bluestar at Hyderabad was also duly

proved by the prosecution.  A­11 (Mohmed Faruq) has provided all

sorts of logistic support in executing the conspiracy and he has played

a very crucial role in the conspiracy and prosecution has also proved

his alleged involvement in the crime.

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221. There is supporting evidence of Usman Khan Nawab Khan (PW­

29) (Exhibit 295), Turk Salim Pasa Majarirule Islam (PW­49) (Exhibit

365), Tawabhai Yusufbhai Shaikh (PW­66) (Exhibit 429) and Mohmed

Jalis Ahmed Rajput (PW­68) (Exhibit 431).

222. It  was  urged  on  behalf of accused  persons that  FIR  of such

incident registered  belatedly is  doubtful.  The  submissions though

attractive have no legs to stand.  It is apparent that car was parked at

Chitty Bang near Law Garden and the glasses of the car of  Haren

Pandya were dark and rolled up considerably and in the process of

firing he fell down on the side seat. Obviously, in order to save himself,

he tried to lie down and bullets were fired at him constantly one after

the other by A­1 (Mohmed Asgar Ali).   In the process, his legs came

up. As the glasses were dark, obviously it was not possible for others

to take note  of the  fact that  Haren Pandya was  lying killed  in  the

vehicle.  The eye witness ­  Anil  Yadram Patel (PW­55) has gone to

inform the owner of Chitty Bang and by the time he could come back,

police had arrived at the spot and  were taking  Haren Pandya to

Hospital.  This explains the so­called delay and explains the situation

of the spot and due to dark glasses, it may not have been possible for

the passer­by immediately to take note of the fact that as to what had

happened inside the car, which was parked on the side of Chitty Bang.

Thus, the submission on behalf of accused persons cannot be

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accepted and the evidence discloses  that family  members of  Haren

Pandya, his P.A., and other political leaders had also arrived in the

meantime at the spot on coming to know of the incident.  

223. In view of overall evidence available against the accused he was

rightly held guilty by Trial Court for offence under section 3(1) and

section 3(3) of POTA as well as under section 120B and section 120B

read with section 302 IPC for murder of Haren Pandya. The conviction

and sentence imposed by Trial Court is restored.  

IN RE: ACCUSED NO.2 (MOHMED ABDUL RAOUF)

224. Mohmed Abdul Raouf,  son of  Mohmed Abdul Kadar was held

guilty by the Trial Court for the offence punishable under Section 3(3)

of POTA and was given benefit of doubt of all the other offences under

the POTA as well  as  under  the  IPC.  There is  no appeal  preferred

against his acquittal by the State/CBI in the High Court.   Now, the

question remains that of the sentence to be imposed under Section

3(3)  of  POTA.  The  Trial  Court  has convicted A­2  (Mohmed Raouf)

under Section 3(3) of POTA and sentenced him to 7 years rigorous

imprisonment and the High Court has also confirmed and maintained

the conviction as well as the amount of fine i.e., Rs.10,000/­.   The

sentence of  rigorous imprisonment has been modified to the period

already undergone in jail i.e., 5 years.  Against the decision of the High

Court, the CBI is in appeal.  The minimum sentence is 5 years under

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Section 3(3) of POTA and by now 8 years have passed and the accused

has already undergone little more than 5 years.   No case for further

interference is called for as CBI did not prefer an appeal against the

judgment and order of the Trial Court.  The decision of the High Court

as to conviction and sentence under POTA is affirmed.

IN RE: A­3 (MOHMED SHAFIUDDIN)

225. With respect to A­3 (Mohmed Shafiudding), the Trial Court has

recorded conviction under Section 120B read with Section 307 of IPC

and has  sentenced him  to  undergo 7 years rigorous  imprisonment

with fine of Rs.3,000.   He was also given benefit of doubt for all the

other offences he had been charged with under the POTA as well as

under the IPC.   The  High  Court  has  also  maintained  and  upheld

conviction and sentence awarded to him by the Trial Court.   As no

appeal was preferred by CBI against the decision of the Trial Court

against A­3 (Mohmed Shafiuddin), no case for further interference is

made out.

IN RE: A­12 (SHAHNAVAZ GANDHI)

226. With respect to A­12 (Shahnavaz Gandhi), he was convicted only

under Section 3(3) of POTA and was sentenced by the Trial Court to

undergo 5 years rigorous imprisonment.   The High Court has

confirmed and maintained the conviction and sentence awarded under

Section 3(3) of POTA.

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227. No appeal was preferred by CBI against the acquittal A­2

(Mohmed Abdul Raouf), A­3 (Mohmed Shafiuddin) and A­12

(Shahnavaz Gandhi) and since they have completed the sentence fully

awarded to them by the Trial Court as modified by the High Court in

the case of  A­2 (Mohmed  Abdul  Raouf),  no further interference is

required to be made as against them in the judgment of conviction

and sentence imposed and it need not be discussed elaborately as no

appeal was preferred against the decision of the Trial Court by CBI.

IN RE: CRIMINAL APPEAL NO……./2019 @ SPECIAL LEAVE  PETITION (CRL.) NO.5530 OF 2017  AND CRIMINAL APPEAL NO……./2019 @SPECIAL LEAVE  PETITION (CRL.) NOS.9028­9029 OF 2016

228. Leave granted.

229. As accused absconded, separate trial was held with respect to

Mohd. Junaid Sheikh.  

230. In  addition  to the  aforesaid charges  for the murder of  Haren

Pandya and attempt to kill Jagdish Tiwari under POTA the accused –

Mohd. Junaid Sheikh was also prosecuted under Section 174 A of

Indian Penal Code (for short, “the IPC”) as he had absconded. A

separate trial  was held wherein he had been acquitted by the trial

court for  commission of the  offence with respect to the  attempt  of

murder of Jagdish Tiwari and murder of Haren Pandya but has been

convicted for commission of the offence under section 174A of the IPC.

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The trial court has convicted the accused for the said offence under

section 174A IPC in Case No.10 of 2003 vide separate judgment and

order dated 28.02.2008.  

231. On appeal filed by the accused,  the High Court acquitted the

accused and modified the sentence by imposing fine of Rs. 21 lakhs

and in breach of default of payment of fine the sentence imposed by

the trial court shall stand. The amount of fine has been deposited. On

being aggrieved, the CBI has filed the appeals.

232. Though, in the instant case, the trial court has found that

attempt on the life of Jagdish Tiwari and the murder of Haren Pandya

has been committed in the method and manner as per prosecution

case.   However, with regard to present accused M.J. Sheikh, it has

been held that the prosecution has not been able to prove his guilt

beyond the periphery of doubt.  

233. As per prosecution case, he is stated to have stayed in Mumbai

in the place of Mufti Sufian, the trial court has found that though his

visit to Mumbai with Mufti Sufian stands proved, any conspiracy was

formed at Mumbai had not been established.   His statement under

section 164 (1) Cr.P.C. initially was recorded as a witness that has not

been taken into consideration.   The polygraph test conducted on the

accused was not as per the laid down safeguards to be observed by the

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National Human Rights Commission and was without any permission

of the court.  Even the statement had been held to be not good enough

to fasten the guilt to enter into the conspiracy for either an attempt of

murder of Mr. Jagdish Tiwari or killing of Haren Pandya.  He was not

with the main accused – Mohmed Asgar Ali on the date of the incident

and while he was running from place to place after committing murder

of  Haren  Pandya,  he is said to  have  stayed for three  days in the

accommodation which was taken from the accused M.J. Sheikh at the

instance of the Mufti Sufian.  No role has been shown of the accused

in the conspiracy  leading  to  the attempt of  murder of  Mr.  Jagdish

Tiwari  and killing of  Haren Pandya.  Maybe subsequent stay at the

house that too when the house has been obtained by Mufti Sufian and

since the accused M.J. Sheikh was close to Mufti Sufian he has taken

his car to  bring the  A­1 to the  accommodation cannot  make  him

conspirator in the murder of Haren Pandya since it was a subsequent

event.  The phone calls made to Mufti Sufian by the accused are not

significant since the witness was known to  Mufti Sufian and he

handed him Rs.15,000 to Rs.20,000 for visit to Haj which amount was

paid back, as such it  has been inferred by the trial  court that  the

same is not the case for funding for creating terror. Apart from that,

after tiffin bomb accident the conspiracy was hatched to kill Jagdish

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Tiwari and Haren Pandya to which the accused was not a part.   The

High Court had not disturbed the aforesaid finding.

234. We have gone through the judgment of the trial court and the

evidence on record adduced  in this case.  We are satisfied  that the

benefit of the doubt has been rightly extended by the Trial Court.  In

the peculiar facts and circumstances of the case, as the petitioner has

already served the sentence of 17 months and has also paid the fine of

Rs.21 lakhs, thus, no case for  interference  is made out  vis­à­vis  to

him.  The appeals are accordingly, disposed of.

WRIT PETITION (CRL.) NO.26 OF 2019

235. The  petition  has  been filed  by the  Centre for  Public Interest

Litigation to direct further investigation into the murder of Shri Haren

Pandya which took place on 26.3.2013. Other ancillary reliefs have

also been sought.  

236. The writ petition had been filed on 21.1.2019 on the ground that

the High Court has acquitted the accused persons and has doubted

the correctness of investigation  while passing the judgment dated

29.8.2011. It  was submitted that earlier a criminal  miscellaneous

application No.15506/2007 was filed by father of the deceased,

Vithalbhai Pandya v. CBI  and two others for further investigation in

the case. However, the petition was dismissed by the High Court of

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Gujarat on 16.6.2008. Thereafter, wife of deceased Haren Pandya filed

a petition, being Special Crl. Application No.2327/2011, in the High

Court of Gujarat at Ahmedabad, which was dismissed. Vide judgment

and order  dated  6.2.2012 passed by  the  High Court  of  Gujarat  at

Ahmedabad on  the ground  that  petition  filed  by  Mr.  Vithalbhai  D.

Pandya, father of the deceased, had been dismissed and due to the

pendency of the criminal appeals in this Court, the High Court

observed that it would not be proper to reappreciate and re­evaluate

the material on record. Judicial propriety and discipline oust the court

from entering  into  the merits  of the case.  Since  this  Court  was  in

seisin of the subject­matter to settle the issue authoritatively under

plenary jurisdiction under Chapter IV of the Constitution of India.

237. The present writ petition has been filed when criminal appeals

filed in this Court were already being heard for the last two months.  It

was not  mentioned that  criminal  appeals were already being heard

w.e.f.  1.11.2018  by  this  Court in  which hearing was concluded on

31.1.2019. The present writ petition was listed before a Bench

consisting  of  Hon.  Sikri and  Abdul  Nazeer,  JJ. on  8.2.2019.   The

Bench directed the listing of the case before the same Bench which

had heard the criminal appeals on merits, after obtaining orders from

Hon. the Chief Justice of India. Thereafter, this matter had been listed

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before this Court and has been heard and is being decided with the

criminal appeal.

238. The writ  petition has been  filed on  the ground that the High

Court has held that investigation done is botched up and misdirected.

Statement of Mohd. Azam Khan had been recorded on 3.11.2018 in a

criminal trial who was produced as a prosecution witness in the trial

of fake encounter of Sohrabuddin Sheikh, his wife Kausarbi and his

associate Tulsiram Prajapati. In the case, accused persons were

acquitted. Azam Khan has stated that Sohrabudin had told him that

the contract to kill Haren Pandya had been given to him by IPS Officer

G.D.  Vanzara  and that  Sohrabuddin’s  associate  Tulsiram Prajapati

along with one Naeem Khan and Shahid Rampuri  murdered Haren

Pandya. Azam Khan’s statement has been placed on record as

Annexure P­1 on the basis whereof a news report had been carried out

by the Indian Express on 5.11.2018 filed as Annexure P­2. Ajam Khan

has revealed that he had given the information to the CBI in 2010. The

CBI did not pay any heed to this information.

239. It is submitted that a book called ‘Gujarat Files – Anatomy of a

cover­up" was published by a journalist Ms. Rana Ayyub wherein she

had given certain details of operation conducted by her on the

investigating officer from Gujarat Police, Y.A. Shaikh who had started

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the investigation in the case of murder of Haren Pandya before the

same was handed over to the CBI, the shooter accused Mohmed Asgar

Ali was already in the police custody and the site map dated

29.3.2003 had the name of Asghar Ali, main article published on the

website on 7.11.2018, has also been relied upon.  D.G. Vanzara’s

statement was published in the Times of India who told the CBI that

Sohrabuddin was involved in Haren Pandya’s murder. The news was

published in Times of India dated 21.9.2013. A photo sketch which

was drawn did not match with the appearance of Mohmed Asghar Ali,

A­1 but with Tulsiram Prajapati. The newspaper report dated

5.11.2007 published in countercurrents.org regarding Mr. Vithalbhai

Pandya and  Ms.  Jagrutiben Pandya’s  allegations  has  been  filed  as

Annexure P­8. Mr. Pandya had given an interview published in the

Outlook dated 7.11.2007 saying that he was likely to be murdered.

240. The prosecution case has been doubted by the petitioners on the

various counts which have been raised in the criminal appeals. Such

as he was rolling up the glass of the window of his car, there were 5

bullets found with 7 injuries. PW­55 is not a reliable witness. Family

of  Mufti  Sufiyan  was  permitted to  move to  Pakistan  despite  being

under the surveillance of the Gujarat Police and relocated there. The

High Court  has  made observations  that  ballistic  evidence does not

support the ocular version. There  was a difference in the bullets

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recovered and examined. The direction of the wound has also been

adversely commented upon so as to cast doubt on ocular version. The

offence has not  taken place  in the car.  Confessions of  the accused

were not reliable. The investigation was tainted. Thus, prayer has been

made to direct further investigation in the matter. Reliance has been

placed on Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762 in which this

Court observed that a fair and proper investigation has two

imperatives, the investigation  must be  unbiased,  honest, and just

which is in accordance with law and secondly, the entire emphasis

has  to  be  to  bring out the  truth of the case before the competent

jurisdiction. In Manohar  Lal  Sharma v.  Principal  Secretary  & Ors.,

(2014) 2 SCC 532, the Court observed that the aim of the investigation

is ultimately to search for the truth and bring the offender to book.

The CBI has not acted as per the provisions contained in the Manual

at para 6.11.5, Chapter VI. The CBI is required to take into

consideration as per para 8.22 of Chapter VIII of the Manual the press

reports regarding allegations relating to the significant matter in the

media. In spite of acquittal by the High Court, the CBI has not taken

the steps as envisaged in para 23.20 of CBI Manual. It is likely that

G.D. Vanzara was involved in the conspiracy to kill Haren Pandya and

there is the possibility of the complicity of political figures.  Azam

Khan’s  testimony reveals  that he had provided  information 8 years

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before to  the CBI.  The CBI has not acted upon it.  Haren Pandya’s

father and wife were not having the benefit of the information available

now. The conduct of the investigating agency in the instant case forms

a fit ground for ordering a re­investigation as observed in Zahira

Habibullah Sheikh & Anr. v. State of Gujarat & Ors. (2004) 4 SCC

158. If deficiency in the investigation or the prosecution is visible or

can be perceived by lifting the veil trying to hide the realities of

covering the obvious deficiencies, courts have to deal with the same

with an iron hand appropriately within the framework of the law. In

Pooja Pal v. Union of India (2016) 3 SCC 135, this Court has again

relied upon the observations made in Zahira Habibullah Sheikh

(supra).

241. Mr. Shanti Bhushan, learned senior counsel and Mr. Prashant

Bhushan,  learned counsel  have urged that  in view of the aforesaid

facts and circumstances and the statement of Azam Khan and other

materials placed on record, it is a fit case where the further

investigation should be ordered. They have relied upon the statement

of the father of deceased and the wife of the deceased Haren Pandya.

As is reflected in the newspaper reports, the orders passed in their

cases have also been placed on record.

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242. Mr. Tushar  Mehta, Solicitor  General has submitted that the

petition filed by the father of the deceased seeking investigation had

been dismissed by  the  Gujarat  High Court  way back  in  2008, the

special leave petition against the same was also dismissed. Thereafter

wife of deceased also filed a petition in the year 2012 in the Gujarat

High  Court  which  was also dismissed inter alia on the aforesaid

grounds  that judicial  propriety  and discipline  oust the  High Court

from entering into merits as this Court has to reassess the evidence

and the findings recorded by the Gujarat High Court in the criminal

appeals.  Which have been heard finally  by  this  Court  and hearing

concluded on  31.1.2019.  The  petition  is  not  maintainable  and has

been filed with an oblique motive. The statement of Azam Khan is an

afterthought and did not relate to the matter in question in the case in

which he has deposed. The Forum of PIL is being misused. It cannot

be based on newspaper reports or reports in the magazines. For this

purpose, he has relied upon Kusum Lata v. Union of India, (2006) 6

SCC 180, Rohit  Pandey v.  Union of India  (2005) 13 SCC 702; and

Holicow Pictures (Private)  Ltd. v.  Prem Chandra  Mishra,  2007  (14)

SCC 281.

243. Mr. Mehta, with respect to the evidentiary value of the report,

has further submitted that the facts contained in the newspaper

reports are merely hearsay and therefore not admissible in evidence.

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He has relied upon Laxmi Raj Shetty v. State of Tamil Nadu (1988) 3

SCC 319. He has further relied upon Rajiv Ranjan Singh ‘Lalan’ (VIII)

v. Union of India (2006) 6 SCC 613 to contend that such PILs. would

hamper the course of justice in a criminal case and are not

maintainable. A PIL cannot be filed for personal gains or private profit

or political motives or any oblique consideration. A person must act

bona fide and should have sufficient interest in the proceeding alone

has locus standi to file a PIL. Unnecessary interference given in a case

may sometime damage the prosecution case and at times may cause

prejudice to the accused also.  Reliance has been placed on Gulzar

Ahmed Azmi v. Union of India (2012) 10 SCC 731, and Ashok Kumar

Pandey v. State of West Bengal, (2004) 3 SCC 349. Mr. Mehta has also

relied upon a recent decision of this Court in Tehseen Poonawasla v.

Union of India, (2018) 6 SCC 72, to submit that the instant case is

nothing but misuse of PIL by the petitioners.  

244. As the writ petition has been filed on 22.1.2014 when this Court

was finally hearing the criminal  appeals with effect  from December

2018 and most of documents and grounds taken are similar as such,

during the course of hearing we asked Mr. Prashant Bhushan, learned

counsel appearing on behalf of the petitioner that when criminal

appeals were being heard by this Court at that time on the basis of

almost the same grounds why PIL has been filed. In case it was felt

212

necessary that  further  investigation is required, why an application

was not filed seeking further investigation or re­investigation in the

matter by the concerned persons or by CPIL and how the very same

documents have been obtained and filed in the petition which forms

part of the criminal appeal.  Mr. Prashant  Bhushan  admitted that

certain  documents  have been supplied by learned counsel  who is

appearing on behalf of the accused persons/ respondents in criminal

appeals.  He had consultations with said counsel to file the petition.  It

was considered appropriate to file a separate petition.        

245. We are not happy the way in which the writ petition has been

filed. It has been filed acting obviously in conjunction with the

accused persons in the case as the counsel for accused has admittedly

supplied the documents to  the petitioner and had consultations. It

was also pointed out by  Mr. Tushar  Mehta that presence of the

counsel appearing on behalf of CPIL and one of them appearing for the

accused, has also been recorded in the writ petition in the order dated

8.2.2019. A perusal  of the order dated 8.2.2019  indicates  that the

presence of the counsel for an accused in criminal appeals has been

recorded  on  behalf  of the  petitioner  CPIL  along  with  Mr.  Prashant

Bhushan and Mr. Rohit K Singh, advocates. Mr. Prashant Bhushan

tried to explain the aforesaid position on the ground that his clerk has

wrongly given the appearance of said learned counsel who is

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appearing on behalf of an accused person in criminal appeals.

However, as admitted by Mr. Prashant Bhushan, the said counsel was

associated with him in furnishing the information, documents, etc.  Be

that as it may. The fact is apparent that accused persons were

instrumental in getting filed this writ petition for further investigation

in the case.   If the accused so  wanted then they ought to have

approached this Court by way of filing an appropriate application in

the  criminal  appeals  only  and not  by  way of filing a  PIL, that too

through the CPIL. It cannot be said to be an appropriate way of filing a

writ petition for further investigation, the motive is oblique, improper

and against discipline, especially  when the criminal appeals  were

being heard finally and this Court was in seisin of  the matter and

judgment has been reserved ultimately on 31.1.2019.  At the relevant

time when the petition was filed, obviously the petitioner CPIL was

well aware of the hearing of criminal appeals and that fact has not

been stated in the writ petition that criminal appeals were being heard

on merits for the last several months w.e.f.  1.11.2018. It is shocking

and surprising that the accused have resorted to the aforesaid method

of getting filed the petition in guise of the PIL by supplying the

documents to  CPIL  in their  self­interest and virtually attacking the

case of the prosecution on the same grounds and  whatever new

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material has been filed, we will discuss the value of the same

hereafter.

246. Statement of Mohd. Azam Khan who was examined as a witness

in Sessions Case No.177/2013 etc. has been relied on, it was stated

by him that Sohrabuddin told him that Shahid Rampuri, Naeem Khan

and he got a contract to kill Haren Pandya and they had killed him. He

felt sad and told Sohrabuddin that they have killed a good person.

Thereafter Sohrabuddin told him that this contract of killing was given

by  Mr.  Vanzara. In our opinion, the  aforesaid statement  made  by

Azam Khan was totally out of the context of a criminal case in which

he had deposed. It was clearly an attempt as an afterthought to make

the statement as to some other matter irrelevant to controversy. In the

cross­examination of the witness in para 3, he has made the following

statement:

“3. The CBI officer recorded my statement twice in the year 2010.  I told before the CBI officer  the entire story of  my leaving  Udaipur for Pratapgarh and from there to come back to Udaipur and then to visit Hyderabad to  meet Shahid Rampuri in jail and Naeem Khan at Hyderabad and to assured Naeem Khan to supply AK 56 weapons to him and then come to  Indore and again Udaipur and to stay with Sohrabuddin at Udaipur as said by me in my examination  in chief.  The reason for  the omission of  this story by CBI might be when I told before them the story of the  killing of the  Home  Minister  Hariyan  Pandya. I told before the CBI officer about my discussion with Sohrabuddin at his house at Udaipur and the killing of the Home Minister Shri Hariyan Pandya by Tulsiram and one boy at the  instance of  Sohrabuddin and killing of Hamid Lala by Tulsiram and Mudassar at the instance of Sohrabuddin.  There is no reason for this omission in my

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statement recorded by CBI. I told before the CBI officer that in order to recover the money of Rajasthan Tools Company Jodhpur from Mariam Marble, I was falsely booked in an extortion case. There is no reason for the above omission in my statement before CBI……."

(emphasis supplied)

247. Azam Khan has stated that CBI recorded his statement twice in

the year 2010, but he was unable to give any reason for omission in

his statement recorded  by the  CBI.  Even otherwise the statement

made after more than 15 years is wholly unreliable and an

afterthought and was not connected with the matter in question in

which it was made. Thus, it appears to be clearly a motivated one and

bundle of falsehood as he could not give any reason for omission in

the previous statement in which also this issue was not involved.

248. A book by Ms. Rana Ayyub has also been relied upon in which it

has been observed that Haren Pandya’s case is like a volcano. “Once

the truth is out, (xxx) will go home. He will be jailed.” The counsel has

further relied upon an article in the Outlook based upon the statement

of Mr. Vithal Pandya, father of Haren Pandya. It appears from that he

entertained a doubt as to the actual killer, but  with no  material

against anybody.  The Book by Rana Ayyub is of no utility. It is based

upon surmises, conjectures, and suppositions and has no evidentiary

value. The opinion of a person is not  in the realm of the evidence.

There is a likelihood of the same being politically motivated, cannot be

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ruled out. The way in which the things have moved in Gujarat post­

Godhra incident, such allegations and counter­allegations are not

uncommon and had been raised a number of times and have been

found to be untenable and afterthought.

249. Coming to the allegations made by the family of the deceased, by

father of Haren Pandya, Mr. Vithal Pandya and Ms. Jagruti Ben, wife

of the deceased, the matter has been dealt with on merits by Gujarat

High Court in the petition which was filed on behalf of Mr. Vithal Bhai

Pandya. A Division Bench of the High Court of Gujarat has considered

the  matter in extensive details. It  was  urged that  Ms. Jagrutiben

Pandya, wife of deceased Haren Pandya was cited as a witness in the

charge sheet. On 16.11.2006, the prosecution submitted closing

pursis and pursis for dropping of the witnesses including Jagrutiben

Pandya. It  was taken  note of the fact that the applicant did not

challenge the order passed declining further investigation. A similar

application was submitted on 18.12.2006 on the basis of newspaper

reports which was also dismissed on 25.6.2007 by the POTA Judge. A

copy of the order  was also supplied to the applicant,  wife of the

deceased.  Thereafter, father  of  deceased has filed  a  petition  in the

High Court assailing the order which was decided vide judgment and

order dated 20.6.2008. A Division Bench of the High Court of Gujarat

has observed thus:

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“24. At  the outset, it is  required to be noted that in the respective appeals, the applicant who is neither a witness nor  a  complainant,  has  challenged three  different  orders namely [1] order dtd.18/12/2006 passed below application Ex.855 [2] order dtd.26/3/2007 passed below application Ex.898 [3] final judgement and order of conviction dtd.25/6/2007 passed by the learned Special Court in Special Case [POTA] No.10 of 2003. Vide order dtd.18/12/2006 passed below application Ex.855 and order dtd.26/3/2007 passed below application Ex.898, the learned Special Court [POTA] has dismissed the said applications submitted by the applicant for reinvestigation/further investigation of  the case related to the murder of the son of the applicant namely Mr. Haren Pandya. It is also required to be noted at this stage that at the time when the first application Ex.855 was submitted by the applicant for further investigation/reinvestigation, the same was after 122 prosecution witnesses and 7 defence  witnesses  were already examined  by the  Special Court [POTA] and further statements of the accused running into 202 pages had already been recorded and the trial was at the fag end. Even when the application Ex.898 came to be dismissed by the learned Special Court [POTA] on 26/3/2007 it was specifically observed by the learned trial court that the applicant be supplied copy of the said order urgently to enable him to approach the higher forum if he so chooses, as there is still some time before the Court shall deliver the judgment after completing the submissions of both the sides on 28/3/2007 and 4/4/2007. It is borne out from the record that the order passed below application Ex.855 dtd.18/12/2006 was sent to the applicant on 22/12/2006 and the copy of the order passed blow application Ex.898 dtd.26/3/2007 was received by the applicant on the very day i.e. on 26/3/2007. In the order dtd.26/3/2007, it was specifically observed by the learned Special Jude that the applicant shall also be provided legal aid  service to  approach the  Hon'ble  High  Court if  he  so desires. Still, the applicant did not challenge the aforesaid two orders immediately. It appears that the submissions/arguments  of  both  the  sides  were  heard on 28/3/2007 and 4/4/2007. Thereafter, final judgment and order of conviction convicting the accused persons is passed by the learned Special Court [POTA] on 25/6/2007 and all the aforesaid orders came to be challenged by the applicant in the month of November 2007. Thus, it appears that the applicant has either not taken the matter very seriously in challenging the aforesaid orders passed below application Ex.855 and 898  immediately  and/or  within a  reasonable

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time and allowed the trial to be proceeded and concluded. It is also required to be noted at this stage that the applicant has specifically averred in the Appeal Memo challenging the final judgment and order dtd.25/6/2007 that he is not challenging the final judgment and order of conviction dtd.25/6/2007 convicting  the accused persons. If that is so, in that case, as such, the appeal against the final judgment and order dtd.25/6/2007 under Section 34 of the POTA would not be maintainable, an order of conviction is not challenged.  

26. In support of his prayer for further investigation and/or reinvestigation of the  murder of  Mr.  Haren  Pandya it is alleged that the same was a political murder. It is submitted by the applicant that the applicant  was not cited as a witness in the charge sheet and that the Jagrutiben widow of deceased Haren Pandya though was cited as a witness, but was dropped. As stated above, the charge sheet  was filed  on 8/9/2003 and  the  applicant  was not  cited  as a witness.  Still, the applicant  did  not  do anything.  Closing pursis and the pursis for dropping of the witness was submitted by the learned Special Public Prosecutor on 16/11/2006 and the certified copy of the said pursis was applied by the applicant on 16/4/2007 which was actually delivered to the applicant on 25/4/2007. Still, the applicant did not challenge the orders passed below applications Ex.855 and 898 and allowed the trial to be concluded. It also appears that even the averments made in the applications explaining the delay are too vague and/or general in nature. Even the applicant has not stated correct facts  with respect to the receipt of copies of the orders passed below applications Ex.855 and 898 and the certified copy of the closing pursis for dropping of the witnesses.

27. Still construing the ‘sufficient cause’ liberally, so as to advance substantial justice and with a view to see that the meritorious case is not defeated on the technical ground of delay, we have considered prima facie case on merits also. The learned senior advocate appearing on behalf of the applicant as well as learned Special Public Prosecutor appearing on behalf of the CBI have addressed the court on merits also and we have heard the learned advocates appearing on behalf of the respective parties on merits at length to appreciate the prima facie case on merits with a view to advance substantial justice and to see that the meritorious case is not defeated on the technical ground of delay.

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29. It is further submitted that Jagrutiben widow of Haren Pandya was already cited as a witness in the charge sheet, still, she  was not examined as a  witness and she  was dropped as a witness. It is submitted that if she would have been examined as a witness, the  truth might have come out. It is submitted that even Jagrutiben in her interview published in ‘Tahelka’ on 19/8/2006 apprehended that she would not be examined as a witness and it has come true.”

250. The High Court has further observed that non­examination of

Jagrutiben is no ground for further investigation. The High Court has

also observed that in the interview published in ‘Tehelka’ on

19.8.2006, it is clearly admitted by Ms. Jagrutiben that she has no

proof/material with respect to political rivalry. Only on allegation of

political rivalry, further investigation or re­investigation cannot be

ordered. The I.O. has stated that during the investigation he did not

get any material with respect to political rivalry on the basis of the

vague statement of Mr. Vithalbhai Pandya, father of deceased, further

investigation was not possible to be ordered against political figures.

The applicant has no material to substantiate the material of political

rivalry. In the absence of material, there cannot be an order for further

investigation or re­investigation. On merit, the applicant has failed to

make out a case for further investigation or re­investigation.

251. Coming back to Jagrutiben, she was not an eye­witness,

admittedly, and has no personal knowledge and it is apparent from

the report she has stated that the deceased left the house for a

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morning walk at  around 0645 hours/0700 hours.  Thus, the doubt

raised in the newspaper report was that it would not have taken half

an hour to reach the Law Garden. It would have taken 10 minutes to

reach Law Garden. The submission of dropping of Jagrutiben is too

tenuous to be accepted. She has not unfolded any story regarding the

real assailants to be someone else and in case she would have been

examined, her statement would have supported the case of the

prosecution that deceased had left the house in the morning only for a

walk. The assessment of the time may differ by 15 to 20 minutes also

or even half an hour. On the basis of approximation of the time by

Jagrutiben  in the newspaper reports and on the basis whereof the

happening  at  Law  Garden  at  7.30  a.m. cannot  be  doubted  at all.

Deceased Haren Pandya had as per her version left for Law Garden.

She  was  not  an  eye­witness to  be examined in the  case.  Thus, it

cannot be said that the prosecution has withheld her and she would

have unfolded any part story which was material to the case.

252. The SLP against the aforesaid decision in the case of Vithal Bhai

of the  Gujarat  High Court has been dismissed by this Court on

15.7.2009.  This  Court  condoned the delay  and dismissed  the  SLP.

Thus, the order passed by the High Court that no investigation was

warranted, has attained finality.

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253. Thereafter, yet another attempt had been made by the wife of the

deceased though she was not entitled to file any petition after it was

filed by the father of the deceased in view of prayer made before the

Trial Court as father had questioned the orders passed on applications

filed  by  her before Trial  Court.  Nonetheless, she filed  Special  Crl.

Application No.2327/2011 which was decided vide order dated

6.2.2012. The High Court of Gujarat has dismissed the petition filed

by the wife and observed:

“4.  Mr. J.M. Panchal, learned Special Public Prosecutor appearing  for the State  of  Gujarat  has, relying upon  the affidavit dated 4.2.2012 filed on behalf of the State of Gujarat, virtually reiterated,  apart from  reappreciation  of evidence, the factum about pendency of SLPs arising out of the judgment and order dated 29.8.2011 rendered by this Hon’ble  Court in  Crl. Appeal  No.975 of 2007  and  allied appeals. It is further  submitted that  similar  petition and prayer made earlier by the father­in­law of the petitioner for further investigation/re­investigation below Exh.855 and Exh.898 in Special Case [POTA] No.10 of 2003 came to be rejected by the Designated Trial Court and further Criminal Appeal Nos.17 of 2008, 18 of 2008 and 1324 of 2007 preferred along with delay condonation application before this Court  also came to be rejected by a Division Bench after condoning the  delay  as  per  C.A.V.  Judgment  dated 16.6.2008 and, therefore, in such a scenario,  when the subject matter is pending before the Apex Court in Petition(s) for Special Leave to Appeal (Crl) No(s) 9785­ 9796/2011 and Petition(s) for Special Leave to Appeal (Crl) No(s) 9797­9808/2011, in all propriety and judicial discipline, it is desirable that this Court may not exercise extraordinary power under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973.

5. Admittedly, the above factual aspects remain uncontroverted as submitted by the State Counsel.

6. Prima­facie, the subject matter, and prayer of this petition are emanating from the proceedings pending before

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the Apex Court in Petition(s) for  Special  Leave  to  Appeal (Crl) No(s) 9785­9796/2011 [filed by the State of Gujarat] and Petition(s) for Special Leave to Appeal (Crl) No(s) 9797­ 9708/2011 [filed by the CBI].  Under the circumstances, at this stage, entertaining this petition for seeking a direction to re­investigate/for further investigation of the offences would be in the arena of re­appreciating and re­evaluating the evidence and  material on record and, therefore, the propriety and judicial discipline dissuades this Court from entering into the merits of the case  in exercise of powers under Article 226 of the Constitution of India as well  as under Section 482 of the Code of Criminal Procedure, 1973, since the Apex Court is in seisin of the subject matter to settle the issue  authoritatively in its  plenary jurisdiction under Chapter IV of the Constitution of India.”  

(emphasis supplied)

254. Thus, it is apparent that the matter has attained finality. Again,

in criminal appeals, we have examined the case on merits as the case

relates to Haren Pandya, former Home Minister of  Gujarat.  In our

opinion on merits in  view of the material that  has been placed on

record including that of Azam Khan’s statement and Book by Rana

Ayyub, no case is made out on the basis of material placed on record

so as to direct further investigation or re­investigation. There is

absolutely no  material for that purpose.   The  matter has already

attained finality  due to the  dismissal of  SLP.  Even  otherwise the

petition has been based upon reports in the newspapers/magazines. It

has been observed by this Court in Kusum Lata v. Union of  India,

(2006) 6 SCC 180 that newspaper reports do not constitute evidence.

This Court also observed that the writ petition should be dismissed

with costs so that the  message goes in the right  direction that a

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petition filed  by the  oblique  motive  does  not  have the  approval of

courts.

255. As we are deciding the criminal appeals along with the order, we

have dealt with veracity of prosecution case and fairness of

investigation in our opinion the observations made by the High Court

were  not only  uncalled for  but based on incorrect appreciation  of

medical/forensic evidence and ignoring material evidence on record.

256. In  Rohit Pandey v. Union of India, (2005) 13 SCC 702, the writ

petition was filed on the basis of newspaper reports by a young lawyer.

The petition was filed on 12.2.2004. This Court observed that

ordinarily we would have dismissed such a misconceived petition with

exemplary costs but considering that the petitioner is a young

advocate, costs of Rs.1,000 was imposed.

257. In Holicow Pictures (Pvt.) Ltd. v. Prem Chandra Mishra, (2007) 14

SCC 281, it was noticed that the petitions are based on newspaper

reports without any attempt to verify their authenticity.

258. In  Laxmi Raj Shetty v. State of Tamil Nadu, (1988) 3 SCC 319,

this Court has observed that it is well settled that a statement of fact

contained in a newspaper is merely hearsay and therefore

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inadmissible in evidence in   absence of the maker of the statement

appearing in court and deposing to have perceived the fact reported.

259. In Rajiv Ranjan Singh ‘Lalan’ (viii) v. Union of India, (2006) 6 SCC

613, this Court has observed that public interest litigation cannot be

filed for personal gain or political motive or any oblique consideration.

Unnecessary reference in the criminal case made against the

prosecution case at times may cause serious prejudice to the accused

also.  

260. In  Gulzar Ahmed Azmi v. Union of India, (2012) 10 SCC 731, it

was observed that it is for the affected party to seek redress.

261. Reliance has also been placed on Simranjit Singh Mann v. Union

of India & Anr., (1992) 4 SCC 653 in which this Court observed:

“7. Ordinarily, the aggrieved party which is affected by any order has the right to seek redress by questioning the legality, validity or correctness of the order,  unless such party is  a  minor,  an insane person or is suffering from any other disability which the law recognises as sufficient to permit another person, e.g. next friend, to move the Court on his behalf. If a guardian or a next friend initiates proceedings for and on behalf of such a disabled aggrieved party, it is in effect proceedings initiated by the party aggrieved and not by a total stranger who has no direct personal stake in the outcome thereof. In the present case no fundamental right  of the  petitioner  before  us is violated; if at  all the case sought to be made out is that the fundamental rights of the two convicts have been violated. The two convicts could, if so minded, have raised the contention in the earlier proceedings but a third party, a total stranger to the trial  commenced against the two convicts, cannot be permitted to question the correctness of the conviction recorded against them. If that were permitted any and every person could challenge convictions recorded day in and day

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out by courts even if the persons convicted do not desire to do so and are  inclined to  acquiesce  in  the decision. If the aggrieved party invokes the jurisdiction of this Court under Article 32 of the Constitution, that may stand on a different footing as in the case of  A.R. Antulay  v.  R.S. Nayak,  (1988) 2 SCC 602. However, we should  not be understood to say that in all such cases the aggrieved party has a remedy under Article 32 of the Constitution. Unless an aggrieved party is under some disability recognised by law, it would be unsafe and hazardous to allow any third party to question the decision against him. Take for example a case where a person accused under Section 302, IPC is convicted for  a lesser  offence  under  Section  324, IPC.  The accused is  quite satisfied  with the  decision  but  a third  party questions it under Article 32 and succeeds. The conviction is set aside and a fresh trial commenced ends up in the conviction of the accused under Section 302, IPC. The person to suffer for the unilateral act of the third party would be the accused! Many such situations can be pointed out to emphasise the hazard involved if such third party's unsolicited action is entertained. Cases which have ended in conviction by the apex court after a full gamut of litigation are not comparable with preventive detention cases where a friend or next of kin is permitted to seek a writ of habeas corpus. We are, therefore, satisfied that neither under the provisions of the Code nor  under any other statute  is  a third party stranger permitted to question the correctness of the conviction and sentence  imposed by  the Court  after  a regular trial. On first principles, we find it difficult to accept Mr. Sodhi's contention that such a public interest litigation commenced by a leader of a recognised political party who has a genuine interest in the future of the convicts should be entertained. In S.P. Gupta v.  Union of India, (1981) Supp. SCC 87 Bhagwati, J. observed : (SCC p. 219, para 24)

“But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others ….”

These observations were made while discussing the question of ‘locus standi’ in public interest litigation. These words of caution were uttered while expanding the scope of the ‘locus standi’ rule. These words should deter us from entertaining this petition. This accords with the view expressed by this Court in Krishna Swami v. Union of India, (1992) 4 SCC 605.

8. More apposite is the view expressed by a Division Bench of this Court in Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305. That was a public interest litigation for quashing an FIR lodged by the CBI on January 22, 1990 based on the core allegation that certain named and unnamed persons had entered into a criminal conspiracy in pursuance whereof they had secured illegal gratification of crores of rupees from Bofors, a Swiss Company,

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through their agents as a motive or reward. The CBI had moved an application before the learned Judge, Delhi, for the issuance of a letter rogatory to the  Swiss  authorities for assistance in conducting  an investigation,  which request  was  conceded.  An advocate, Shri Harinder Singh Chowdhary, filed a criminal revision application before the High Court of Delhi for quashing the FIR and the letter rogatory on certain grounds. Several questions of law and fact were raised in support of the challenge. The High Court came to the conclusion that the said third party litigant had no ‘locus standi’ to maintain the action and so also the interveners had no right to seek impleadment/intervention in the said proceeding. However, the learned Judge took suo motu cognizance  of the  matter and for reasons stated in  his order directed issue of show cause notice to the CBI and the State why the FIR should not be quashed. On appeal, this Court came to the conclusion that the  learned Judge  in the High Court  was right in holding that the advocate litigant, as well as the interveners, had no ‘locus standi'. The relevant observations found in paragraph 45 of the judgment read as under: (SCC p. 329, para 45)  

“Even if there are million questions of law to be deeply gone into and examined in a criminal case of this nature registered against specified accused persons, it is for them and them alone  to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum  and not  for third parties under  the garb of public interest litigants.”

(emphasis supplied)

In that case, besides the advocate litigant, certain political parties like the Janata Dal, the CPI (Marxist), the Indian Congress (Socialist) and one Dr. P. Nalla Thampy Thera also approached this Court questioning the High Court’s rejection of their request for impleadment/intervention. It  was in this context that this Court was required to examine the question whether third parties had any ‘locus standi' in criminal proceedings and answered the same as stated above. This decision clearly negatives the submission made by Mr. Sodhi in support of the maintainability of this petition. We are, however, in respectful agreement with the view expressed in the observations extracted hereinbefore.”

262. Reliance has been placed on  Ashok Kumar Pandey v.  State of

W.B., (2004) 3 SCC 349, in  which it has been observed that an

aggrieved party which is affected by any order, has the right to seek

redress by questioning the legality, validity or correctness of the order,

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unless aggrieved party is a minor or insane person or is suffering from

any other disability, etc. to question the decision again.

263. On behalf of the petitioner, reliance has been placed on  A. R.

Antulay v. Ramdas Sriniwas Nayak & Anr., (1984) 2 SCC 500 in which

private complaint lodged by Shri R.S. Nayak was held to be

maintainable  against  A.R.  Antulay, the then Chief  Minister. It  was

urged that any person can bring to the notice of the court the fact

which constitutes the offence and a Special Judge can take cognizance

on such complaint or even on information received from any person

other than a police officer or upon his own knowledge of the fact that

the offence has been committed. The decision has no application in

the instant case as Forum of PIL has been misused, we have examined

the case and found the same to be meritless. Apart from that, it is not

a case where a private complaint has been lodged with respect to an

offence. The CBI has investigated the case thoroughly and minutely

and the conspiracy between accused persons has been found

established. There is voluminous evidence discussed in criminal

appeals decided today vide separate judgment  with respect to the

complicity of the accused persons in the offence. It cannot be said that

investigation was unfair, lopsided, botched up or misdirected in any

manner whatsoever, as had been observed by the High Court in the

judgment which we have set aside. It is surprising that the

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observations of the High Court have been heavily relied upon in spite

of mentioning the fact that the appeal was pending. In all  fairness,

such petition ought not to have been filed by CPIL at the instance of

accused, it  is clearly misused of Forum of PIL. Only an application

could have been preferred by the accused persons or by the petitioner

or any other interested person in the criminal appeals. Even

otherwise, we have not found on merits any material or ground worthy

to direct further investigation or re­investigation in the case. The

observations made by the High Court in the judgment which we have

set aside were based on lopsided approach without consideration of

the entire evidence on record and on the wholly incorrect appreciation

of the evidence which was clearly perverse.

264. Reliance has also been placed on  Bandhua  Mukti  Morcha v.

Union of India  &  Ors., AIR 1984  SC  802  wherein this  Court has

observed that where a person or class of persons whose fundamental

right is violated but who cannot approach the Court on account of

poverty or disability or socially or economically disadvantaged

position, and in such a case, any member of the public acting bona

fide, can move the court for relief under Article 32 and a fortiorari,

also under Article 226 so that the fundamental rights may become

meaningful not only for the rich and the well to do but also for the

large masses of   people who are living a life of want and destitution

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and  who are by reason of lack of awareness, assertiveness, and

resources unable to seek judicial redress. Court can and must allow

any member of the public acting bona fide to espouse the cause of

such person or class of persons for judicial enforcement of the

fundamental rights. This Court has further observed that the

provisions of Article 32 do not specifically indicate who can move the

court. In the absence of such a provision in that respect, it is plain

that  the petitioner may be anyone  in whom the  law has conferred

power to maintain an action of such nature. It is open to anybody who

is interested in the petition under Article 32 of the Constitution for

relief.  The  aforesaid  proposition  cannot  be  doubted. In the instant

case, the petition cannot be said to have been filed bona fide as in the

facts and circumstances as narrated above. In case it is at the

instance of family members, their rights have been adjudicated by the

High  Court  and  concluded  up to this  Court.  Accused  persons  are

represented by able lawyers throughout and in criminal appeals. But

unfortunate part is that they had a hand in filing of the petition by

supplying the materials to the petitioner CPIL and CPIL in all fairness,

ought not to have filed the petition in the form of PIL but an

application should have been filed on behalf of the accused persons or

any other person interested in criminal appeals. When all concerned

were aware that appeal was being heard in this Court for the last 2

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months before the filing of the petition, publications being made in

reports when the appeal has been taken up for hearing is also not a

proper scenario and may tantamount to undue interference in course

of justice.

265. We have dealt with on merits the various submissions raised by

the  petitioner  as to the falsity  of the case  of the  prosecution  and

investigation in criminal appeals and have found that on merits the

submissions raised  to  cast  doubt on prosecution case by CPIL are

baseless vide detailed discussion which we have made while dealing

with the criminal appeals decided today by separate judgment in

which we have reiterated the judgment of conviction recorded by the

Trial Court.

266. During the  course  of  arguments,  we  had put  a  query to  Mr.

Prashant Bhushan, learned counsel appearing on behalf of CPIL, how

he can appear as counsel in the case filed by CPIL as he admittedly is

a member of the executive committee of CPIL. In view of the rule of

professional ethics framed by the Bar Council of India contained in

section I of Chapter II of Part VI, Rule 8 is extracted hereunder:

"8. An advocate shall not appear in or before any court or tribunal or any other authority for or against an organisation or an institution, society or corporation if he is a member of the Executive Committee of such organisation or institution or society or corporation. "Executive Committee", by whatever name it may be called, shall include any Committee or body of persons which, for

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the time being, is vested  with the general  management of the affairs of the organisation or institution, society or corporation: Provided that this rule shall not apply to such a member

appearing as amicus curiae or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association.”

267. Rule 8 makes an exception only if such a member is appearing

as  an amicus  curiae  or  without  a fee  on behalf  of  a  Bar  Council,

Incorporated Law Society or a Bar Association. There is no exception

to a body like CPIL. Mr. Prashant Bhushan learned counsel has stated

that he had questioned the vires  of  Rule  8 by way of filing a writ

petition in the High Court. In order to save vires of aforesaid Rule 8,

the statement was made in the Court by the Bar Council that they are

going to amend the rules, however, he submitted that the Bar Council

has not amended the rules in spite of making the statement. The rule

is arbitrary and ultra vires as such he can appear.

268. We are not happy with the entire scenario. There cannot be any

justification to appear in violation of Rule 8, on the ground that the

rule is arbitrary or ultra vires.   The rule is not so far declared to be

illegal or ultra vires by the  Court. The  Rule 8 is binding on the

members of the Bar unless and until the rule in question is amended

or declared to be arbitrary or ultra vires for any reason, it is to be

observed scrupulously by members of the Bar. Rules of professional

ethics are  meant to be observed by all concerned. In case their

observance is done in a breach that too before this Court and that too

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knowing its implication on the aforesaid canvassed untenable ground,

no one can prevent breach of rules of ethics.  If the Bar Council after

making a statement has not amended the rule, the rule ought to have

been questioned afresh in an appropriate petition.  The appearance on

behalf of the CPIL by a lawyer who is in the Executive Committee of

the said Centre, cannot be said to be proper as it is defined

misconduct under the rules. This is in breach of Rule 8 of the

aforesaid Rules. We need not say any further on this.  However, until

it is  declared ultra vires,  we hold  that the advocates are bound to

observe the same.

269. Resultantly,  we find that the  petition cannot  be  said to  have

been filed bona fide. Even otherwise, the petition is bereft of merit. It

raises the mainly same questions which have been dealt with in the

appeal. There is no such further  material so as to direct further

investigation or re­investigation in the case. The matter should have

rested finally as the petition filed by the family members also stands

dismissed by this Court raking up of the matter, again and again, is

not permissible and was wholly unwarranted in the facts and

circumstances of the case. The same amounts to political vendetta.   

The petition is thus liable to be dismissed.

CONCLUSION

CRIMINAL APPEAL NOS.140, 142­146 AND 149­151 OF 2012

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270. In view of the aforesaid discussion, we restore the conviction and

sentence imposed by the Trial Court on A­1 (Mohmed Asgar Ali)

(Criminal Appeal No.149 of 2012), A­4 (Kalim Ahmed) (Criminal Appeal

No.142 of 2012), A­5 (Anas Machiswala) (Criminal Appeal No.145 of

2012), A­6 (Mohmed Yunus Sareshwala) (Criminal Appeal No.146 of

2012), A­7 (Rehan Puthawala) (Criminal Appeal No.143 of 2012), A­8

(Mohmed Riyaz @ Goru) (Criminal Appeal No.144 of 2012), A­9

(Mohmed  Parvez  Sheikh) (Criminal  Appeal  No. 140 of 2012), A­10

(Parvez  Khan  Pathan) (Criminal  Appeal  No.150  of  2012) and  A­11

(Mohmed Faruq) (Criminal Appeal No.151 of 2012) under Section 3(1)

and 3(3) of POTA and 120­B and Section 302 read with Section 120­B

IPC as ordered by the Trial Court. The appeals are accordingly

disposed of.

CRIMINAL APPEAL NOS.141, 147 AND 148 OF 2012

271. However, with respect to A­2 (Mohmed Abdul Raouf)  (Criminal

Appeal  No.147 of 2012), A­3 (Mohd. Shafiuddin) (Criminal Appeal

No.148 of 2012) and A­12 (Shahnawaz Gandhi) (Criminal Appeal

No.141 of 2012), the CBI did not prefer any appeal in the High Court

against them and since A­3 (Mohd. Shafiuddin) and A­12 (Shahnawaz

Gandhi) have completed the sentence fully awarded to them by the

Trial Court and in the case of A­2 (Mohd. Abdul Raouf) as modified by

the High Court, no further interference is made and the appeal against

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them is dismissed. (The names of accused have been used as per the

Trial Court judgment).

CRIMINAL APPEAL NOS.83­94 OF 2012

272. The appeals filed by State of Gujarat stand disposed of in terms

of decision rendered in Criminal Appeal Nos.140­151 of 2012.

CRIMINAL  APPEAL  NO……./2019  @  SPECIAL LEAVE  PETITION (CRL.) NO.5530 OF 2017 AND CRIMINAL APPEAL NO……./2019 @ SPECIAL LEAVE PETITION (CRL.) NOS.9028­9029 OF 2016

273. With respect to accused Mohd. Sheikh, a separate trial was held.

In his conviction and sentence under section 174A IPC as ordered by

the High Court, no interference is made. He has been acquitted except

under section 174A IPC by the trial court as well as by the High Court.

The appeal against him filed by the CBI is dismissed. Appeal by the

accused is also dismissed.

WRIT PETITION (CRIMINAL) NO.26 OF 2019

274. No ground for further re­investigation or investigation is made

out in the matter.   The writ petition is dismissed with cost of

Rs.50,000/­ to  be deposited by petitioner with Supreme Court  Bar

Association Advocates Welfare Fund within a month.                    

……………………..J. (Arun Mishra)

New Delhi; …………………….J. July 05, 2019. (Vineet Saran)