(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) As all the appeals arise from the common judgement of the learned Special Judge (POTA), they are being considered by this common judgement.
As per the prosecution case, on 21.05.2002, when Shri Hasmukhbhai Lalwala, a practicing advocate, was going to the Court in his vehicle Maruti Fronti motorcar bearing registration No.GJ-4-FF-6812, at about 11.15 hrs., bullet was fired by the motorcyclists passing through and Shri Lalwala received serious injuries on the vital part of his body. However, he survived. The complaint was given on the very same day by the brother of Shri Lalwala, which was registered vide I-C.R.No.111/02 with Athwalines Police Station, Surat. After some investigation, police filed A-Summary on 27.02.2003. In the month of May 2003, a secret information was received by Crime Branch, Surat for the alleged involvement of accused No. 1, who is appellant of Criminal Appeal No.1803/05 (hereinafter referred to as A1 ) and accused No.4, who is appellant of Criminal Appeal No.1800/05 (hereinafter referred to as A4 ). In the attack on Shri Lalwala, further investigation was carried out and thereafter, it was realized in the investigation that a conspiracy was hatched by targeting Shri Hasmukhbhai Lalwala as Hindu leader so as to take revenge from Hindu community on account of certain attacks on Muslims after Godhra carnage and also with an intention to strike terror amongst people of Hindu community and thereby to cause threat to the community. The provisions of Prevention of Terrorism Act, 2002 (hereinafter referred to as POTA ) was found to have been attracted and section 3 of POTA was added on 16.06.2003 and the investigation was taken over by Shri H.L. Rathod, ACP, 'A' Division, Surat. The confessional statements of A1 and A4 were recorded and there was further investigation. Upon completion of the investigation, charge-sheet was filed against four accused for the offences under the Indian Penal Code as well as for the offences under POTA before the designated Court.
It may be recorded that accused No.3 Liversingh Tejsingh Chikhligar committed suicide and died prior to the framing of the charge and therefore, the case abated against him and accused No.2 Ishaq Noor Mohmed Makrani died during the trial. Therefore, the case qua him had been abated. One of the accused Salim Variava was absconding. Therefore, the trial was conducted against accused Nos. 1 and 4. After framing of the charge, as the accused did not plead guilty, they were tried for the offence under section 307 read with section 34 and section 120B of the IPC and for the offences under section 25(1)(c) of the Arms Act as well as for the offence under section 3(2) of the POTA before the Special Judge (POTA).
The prosecution in order to prove guilt of the accused for the alleged offences, examined 14 witnesses, details of which are as under:
PW-1 Mr.Ganeshchandra Lallubhai Lalwala (Complainant) Exh.
PW-2 Mr.Hasmukhbhai Lallubhai Lalwala (Victim) Exh.
PW-3 Mr.Mohmed Ismail Abdullamiya Gandhi (Panch of search of house of accused No.4 Panchnama Exh.78 (M.22/10) Exh.52 PW-4 Mr.Bhupendrakumar Natwarlal Golwala (Panch of scene of offence Panchnama Exh.45 (M.22/8) Exh.65 PW-5 Mr.Mukundbhai Ishwarlal Mahant (Panch for translation of literature Panchnama Exh.69 M.22/12) Exh.66 PW-6 Mr.
Mohmed Aarif Mohmed Hussain Gheewala (Witness selling motorbike to accused) Exh.
PW-7 Mr.
Naranbhai Narottamdas Patel (Investigating Officer) Exh.
PW-8 Mr.
Ajaykumar Vidhyanagar Gakhakhar (Investigating Officer, Crime Branch, Surat) Exh.
PW-9 Mr.
Manabhai Gemabhai Makwana (PSI-recording complaint) Exh.
PW-10 Mr.
Khurseed Ahmed Manzoor bhai Ahmed (DCP, Surat and an authorised officer for recording statement).
Exh.
PW-11 Mr.
Rajendrakumar Pratapray Mehta (The then Chief Judicial Magistrate, Surat) Exh.106 PW-12 Mr.
Kuldeepchandra Laksmandas Kapoor Secretary Department of Home Affair (Sanctioning Authority) Exh.110 PW-13 Mr.
Anandkumar Khusalbhai Pandya (DCP, Zone-III, Ahmedabad City and an authorised officer to record statement) Exh.
PW-14 Mr.
Hasmukhbhai Laljibhai Rathod (ACP-Surat-(Investigating Officer) Exh.
The prosecution also produced documentary evidence in support of its case, which are as under:
1. Exh.92 Report of registration of offence dated 21.05.2002.
2. Exh.91 Original conmplaint of the complaint Ganeshchandra, dated 21.05.2002.
3. Exh.40 Panchnama of scene of offence dated 21.05.2002.
4. Exh.41 Copy of yadi sent to the export of FSL to visit scene of offence and its preliminary report dated 21.05.2002.
5. Exh.42 Panchnama of production of bullet recovered from the body of the injured by Dr. Amar during operation dated 21.05.2002.
6. Exh.43 Panchnama of production of clothes worn by injured Hasmukhbhai at the time of incident dated 21.05.2002.
7. Exh.45 Panchnama of scene of offence shown by the accused Mohmed Asharaf Ismail Nagori, dated 12.05.2003.
8. Exh.44 Panchmana regarding search of the accused Mohmed Ashraf Ismail dated 12.05.2003.
9. Exh.78 Panchnama of search of house of the accused Mohmed Tahir, dated 13.05.2003.
10. Exh.46 Panchnama of search of house of the accused Mohmed Asharaf Ismail Nagori, dated 14.05.2003.
11. Exh.67 Panchnama of recovery of files from the computer seized from the house of the accused Mohmed Tahir and in his presence print outs of certain objectionable files were taken and translated.
12. Exh.47 Panchnama of production of motorcycle bearing registration No.GCG-6861 by Amul Maganlal Patel allegedly used in the offence dated 25.06.2003.
13. Exh.48 Yadi sent to the Medical Officer for collection of blood sample and certificate, dated 25.05.2002.
14. Exh.74 Copy of yadi sent to the Director of F.S.L. Dated 22.05.2002
15. Exh.75 Copy of dispatch note, dated 22.05.2002.
16. Exh.76 Receipt from F.S.L. Dated 23.05.2002.
17. Exh.128 Letter from Police Commissioner, Surat to ACP Mr.Rathod for handling the investigation dated 23.05.2002.
18. Exh.129 Yadi to the Director of FSL for issuance of Certificate after due examination of Muddamal dated 26.05.2002.
19. Exh.130 Copy of dispatch note dated 26.05.2002.
20. Exh.131 Receipt from FSL dated 28.05.2002.
21. Exh.132 Yadi sent by P.I. Mr. N.R. Patel, dated 29.05.2003.
22. Exh.49 Opinion of F.S.L. Dated 17.09.2002.
23. Exh.133 Letter to Police Commissioner from Addl. Police Commissioner, Surat for addition of section of POTA dated 09.06.2003.
24. Exh.71 Delivery Note of purchase of motor bike in the name of accused Mohmed Tahir, dated 26.06.2002.
25. Exh.72 Delivery Note in the name of purchaser of motor bike Dhirubhai Karpitiya Sarfarajali, date d 26.06.2002.
26. Exh.79 Copy of yadi sent to the Judicial Magistrate for addition of section 3 of the POTA in the case dated 16.06.2003.
27. Exh.134 Original letter from PSI, Surat to Assistant Police Commissioner, 'E' Division regarding statement of accused Mohmed Tahir, dated 19.06.2003.
28. Exh.135 Letter from ACP Mr.Rathod to Metropolitan Magistrate for permission of interrogation of the accused Mohmed Tahir dated 16.07.2009.
29. Exh.136 Letter from ACP Mr. Rathod to PSI Mr. Devdane regarding inquiry of Mohmed Tahir, dated 15.07.2003.
Exh.107 Yadi to the Chief Judicial Magistrate for examination of statement of accused Mohmed Tahir Aarif Bakhaswala under section 32 of the POTA, dated 24.06.2003.
31. Exh.50 Opinion of FSL dated 29.06.2003.
32. Exh.137 Copy of yadi written to the office of R.T.O. Dated 30.06.2003.
33. Exh.138 Copy of letter written to the Director, FSL for examination of muddamal dated 14.07.2003.
34. Exh.139 Copy of dispatch note dated 14.07.2003.
35. Exh.140 Receipt from FSL regarding muddamal, dated 15.07.2003.
36. Exh.117 Letter written to Police Commissioner, Surat for permission to file chargesheet against the accused of the aforesaid case dated 30.07.2003.
37. Exh.141 Reminder to FSL expert dated 13.10.2003.
38. Exh.142 Copy of reminder yadi sent to Director, FSL regarding examination of muddamal dated 22.10.2003.
39. Exh.143 Reminder Yadi sent to Director, FSL for opinion dated 07.11.2003.
40. Exh.144 Letter from Police Commissioner, Surat to ACP Mr.Rathod informing about chargesheet for the offence under Arms Act and section 3 of the POTA against the accused dated 06.11.2003.
41. Exh.111 Original letter regarding sanction given by competent authority to prosecute against the accused, dated 24.10.2003
42. Exh.146 Medical Certificate of injured Advocate Mr.Hasmukh Lalwala, dated 21.05.2002
43. Exh.145 Copy of notification of Police Commissioner of Surat city, dated 07.15.2002 to 05.06.2002.
44. Exh.86 'A' Summary report from ACP Mr.Rathod to J.M.F.C. (Surat) dated 27.02.2003.
45. Exh.87 Resolution u/s.165 of Cr.P.C. dated 13.05.2003.
The learned Special Judge (POTA) recorded further statement of accused under section 313 of the Cr.P.C., wherein A1 denied all materials against him claiming to be completely innocent and it was stated that he has been wrongly involved by the prosecution. Whereas, A4 while denying the incriminating evidence against him, stated that the signature reflected in the alleged confessional statements were taken on a blank sheet by DCP Khurseed and he also stated that he has been wrongly dragged into the complaint and he is a social worker and therefore, he should be acquitted.
The learned Special Judge (POTA) heard prosecution as well as the accused and found that A1 and A4 are guilty for the offences punishable under section 307 read with section 120B of the IPC and it was also found that both the accused are guilty for the offences under section 25(1)(c) of the Arms Act and for the offences under section 135(1) of the Bombay Police Act. The learned Special Judge (POTA) thereafter heard the matter for punishment and thereafter, the learned Special Judge (POTA) imposed sentence of RI for a period of 7 years with the fine of Rs.20,000/- and in default, SI of 1 year for the offence punishable under section 3(2) of the POTA. The learned Special Judge (POTA) also imposed sentence of RI for 6 years and fine of Rs.5,000/- and in default, SI of 6 months for the offence punishable under section 307 of the IPC. The learned Special Judge (POTA) imposed sentence of RI of 6 years and fine of Rs.5,000/- and in default SI of 6 months for the offence punishable under Section 120B of the IPC. The punishment of 3 years with the fine of Rs.1,000/- and in default SI of 3 months was imposed for the offence punishable under section 25(1)(c) of the Arms Act and the sentence of 3 months with the fine of Rs.5,000/- and in default SI of 1 year was imposed for the offence punishable under section 135(1) of the Bombay Police Act. All sentences were ordered to run concurrently and the time spent in judicial custody was set off. It is under these circumstances, the present appeals before this Court.
We have heard Mr.K.B. Anandjiwala for A1, appellant of Criminal Appeal No.1803/05 and Mr.S.V.Raju with Mr. Chetan Pandya for A4, appellant of Criminal Appeal No.1800/05 and Mr. Jayant M.Panchal, learned Special Public Prosecutor for the State in both the appeals.
Before we advert to the task of overall re-appreciation of the evidence, it would be just and proper to consider the legal position and simultaneously, also to consider the questions of law contended by the respective parties.
The first contention raised by the learned counsel appearing for the appellants was that once the A-Summary was filed, there was no lawful warrant to reopen the case on the basis of the alleged material of discovery or pointing out panchnama as sought to be contended and canvassed by the prosecution. It was submitted that the fact of the incident in question, scene of offence, the injury received, etc. were known to the prosecution and on the basis of such material available, A-Summary report was also filed and the chapter was closed. There was no reason or valid ground for reopening of the matter by alleged pointing out panchnama. It was submitted that the said pointing out panchnama cannot be considered in the evidence and therefore, if the said part of the evidence led by the prosecution is excluded, the basis of the investigation would be lost and the accused would be entitled to the benefit of the same.
The examination of the said contention shows that it is on account of the discovery of certain facts and the information received under section 27 of the Evidence Act, the matter has been further investigated. Section 27 of the Evidence Act for ready reference, reads as under:
27. How much of information received from accused may be proved - Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
The Apex Court in the case of State (NCT of Delhi) Vs. Navjot Sandhu, reported at 2005(11), SCC 600 had an occasion to consider the scope and ambit of section 27 of the Evidence Act. At para 121 of the said judgement, it was inter alia observed, relevant of which reads as under:
The first requisite condition for utilizing Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. It is explicitly clarified in the Section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the Section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused.
Further, at para 125, it was observed thus We are of the view that Kotayya's case is an authority for the proposition that 'discovery of fact' cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place.
At para 142, it was observed as under:
There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the Police Officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the Police Officer chooses not to take the informant-accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence.
If the facts of the present case are examined in light of the aforesaid legal position, it appears that after the incident, in spite of the attempt made in the investigation, as nothing fruitful result came out for tracing the accused, on 27.02.2003, A-Summary was reported. But thereafter, by panchnama, Exh.45, the accused had led the panchas with police to the scene of offence, about the manner and method in which the bullet was shot while sitting on the motorcycle and thereafter, the information about running away from the said place by a particular road was identified. There was further carrying out of the investigation. Not only that, but based on the same, there was further recovery of the personal computer of the accused as per the panchnama at Exh.46, recovery of the delivery note of the motorcycle, Exh.47. Therefore, it is not possible to accept the contention of the learned counsel for the appellants that the panchnama, Exh.45 could not be termed as discovery of the fact or the information to the police. On the perusal of the panchnama, keeping in view the subsequent investigation, it can be said that the same is within the scope and ambit of section 27 of the Act admissible in evidence and consequently could be a valid base for further investigation into the matter. Hence, the said contention deserves to be rejected.
It was next contended by the learned counsel appearing for the appellants that the seizure of computer and the extract of computer files and the translation thereof have been wrongly accepted in evidence by the Trial Court. It was submitted that after taking custody of the computer, it was not kept in sealed condition. Further, the mandatory procedure for proving a document from an electronic machine as per the Evidence Act has not been followed. The learned counsel in support of his submission attempted to rely upon the provisions of section 65B of the Evidence Act and it was submitted that until the evidence was led as required by the provisions of section 65B of the Evidence Act, the material in Urdu which is stated to be the extract from the computer could not have been admitted in evidence. It was also submitted that no translator from Urdu to Gujarati was examined by the prosecution in support of its case and therefore, in absence of the examination of the translator, the Trial Court could not have accepted the translation as evidence in considering the case of the prosecution.
If the contention is examined in light of the facts of the present case, it appears that the panchnama for search of the house of A1, Exh.46, the panchnama for recovery of the files from the computer, Exh.67 were exhibited in the deposition of PW5 Mukund Ishwarlal Mahant, Exh.66. Further, the extract of the files in Urdu and translation was produced in the evidence of P.W.8 Shri Ajaykumar Gakhakhar, Exh.77 and no objection was raised for accepting the same in evidence, but on the contrary, it was with the consent on behalf of the accused. Under these circumstances, if a consent has been given for admissibility of a document extracted from the electronic record, it could hardly be contended on behalf of the accused that mandatory procedure for extraction of file or translation thereof could not have been accepted in the evidence without following the procedure under section 65B of the Evidence Act. The decision upon which the reliance was placed by the learned counsel for the appellant, Mr.Anandjiwala, is of no help to the concerned accused since in none of the case, the document was accepted in evidence with the consent of the parties. A document which is accepted in evidence with the consent of the parties to the proceedings can be termed as acceptance of a document in evidence in support of the case of either side and once the same is accepted by the Trial Court in evidence, it would not lie in the mouth of such consenting party to contend that the document was not proved or that the mandatory procedure for proving the document was not followed and therefore, cannot be accepted in evidence. Under the circumstances, the said contention fails.
The learned counsel for the appellants-accused also contended that the sanction has been wrongly given for addition of the charge of POTA as it could at the most be termed as an offence under section 307 of the IPC. It was submitted that if the application of POTA was excluded, the confessional statement could not have been accepted in evidence nor could be used for tracing the guilt of the accused and therefore, it was submitted that this Court may consider the matter accordingly.
On the aspects of sanction, it appears to us that sufficient material has come on record. The prosecution has examined Shri Kuldeepchandra L. Kapoor, Secretary, Department of Home Affairs as P.W.12 at Exh.110. The pertinent aspect is that after the proposal was received, the file had routed upto the highest authority, i.e., Chief Minister of the State. Any of the authority, as per the business rules, from the lowest in the cadre of the State Government, until the final approval came to be granted by the highest authority, has not recorded dissented note nor any such record has come out for such purpose. The Apex Court had also an occasion to consider the aspects of application of mind while granting sanction by the competent authority. In its decision in the case of State (NCT of Delhi) Vs. Navjot Sandhu (supra), after considering the Privy Council decision in Jaswant Singh Vs. State of Punjab [AIR 1958 SC 124], it was inter alia observed as under -
The elaborate narration of facts culled out from the record placed before the sanctioning authority and the discussion as to the applicability of each and every Section of the penal provision quoted therein is not an imperative requirement. A pedantic repetition from what is stated in the FIR or the draft charge-sheet or other documents is not what is called for in order to judge whether there was due application of mind. It must be noted that the grant of sanction is an executive act and the validity thereof cannot be tested in the light of principles applied to the quasi-judicial orders.
The examination of the facts of the present case on the aspects of sanction shows that Shri KL Kapoor, Secretary of Home Department, P.W.12, in his deposition at Exh.110 has stated that the request was received from the Commissioner of Police, Surat containing 48 pages alongwith statements and panchnamas on 28.08.2003 and 04.09.2003. Thereafter, the further details were called for and the witness has stated that the details were verified by the Home Department and thereafter, the papers were studied and the same were sent to the Minister for State for Home Affair and then it was forwarded to the Chief Minister of the State and thereafter, the sanction was granted. The pertinent aspect is that not a single person who endorsed the file and made noting as per the business rules, has expressed dissenting opinion. The deposition of Shri Kapoor read with sanction granted at Exh. 111, another documentary evidence, do not lead us to record the finding that the sanction granted was without proper application of mind. The further pertinent aspect is that the present case was also examined by the Review Committee constituted for POTA cases pending the trial and it has not recommended for dropping of the case. There is elaborate discussion on the aspects of sanction by the learned Special Judge (POTA) in the impugned Judgement. Considering the facts and circumstances, we are not inclined to accept the contention of the learned counsel for the appellants that the sanction was not validly granted for application of POTA in the present case.
The aforesaid leads us to consider the contention raised by the learned counsel appearing for the appellants to assail the confessional statements recorded under section 32 of the POTA. It was contended by the learned counsel appearing for the appellants that the mandatory procedure as required to be followed has not been followed before recording of the confessional statements inasmuch as the written intimation has not been given to A4. It was also submitted that even if it is considered that the written intimation was not required to be given in view of the facts of the present case, then also no reasonable time was given to the accused concerned to decide as to whether he should give confessional statement, which may be used against him or not. It was therefore submitted that not giving of the reasonable time would vitiate the recording of the confessional statement. It was also further contended that there was no compliance to the provisions of section 52 of the POTA and under these circumstances, it cannot be said that the confessional statement was recorded after due compliance of the statutory requirement. It was also contended that both the accused had retracted from the confessional statement by raising the ground that the same was under duress and coercion and mental torture in the police custody and therefore, such confessional statement lacks voluntariness and is not a valid confessional statement in the eye of law as per the provisions under section 32 of the POTA. It was submitted that if such confessional statements are excluded from the evidence of the prosecution, not only the substratum of the case of the prosecution would be lost, but the case may turn to be a case based on circumstantial evidence for which there is no link proved by material evidence leading to the guilt of the accused and therefore, the Trial Court has committed error in not considering the aforesaid aspect while recording the conviction of the accused.
Whereas the learned counsel appearing for the State did contend that the requisite procedure has been followed while recording the confessional statement. It was submitted that when opportunity was given to the accused concerned by specifically informing that he is not to give the confessional statement which may be used against him, in spite of the same, he has voluntarily agreed to give the statement, the requirement of not intimating in writing would not invalidate the confessional statement which otherwise has come on record. It was also submitted that the requirement of giving time to think by the accused on the aspect that whether he should give the confessional statement or not may vary from facts to facts. If in a given case if the accused is not desirous to have any more time and thereafter, the confessional statement is recorded, it cannot be said that there was no voluntariness in giving the confessional statement by the accused. It was also submitted that the accused when they were produced before the concerned Magistrate or the Court, at any point of time, have not complained about any physical or mental torture or any coercion or duress by the police or the investigating agency. The statement of retraction is at a very belated stage. It was submitted that even if the retraction is to be considered, there is enough corroborative evidence brought on record by the prosecution, leading to the genuineness of the confessional statement and therefore, it was submitted that the confessional statements are rightly considered by the learned Trial Court while tracing the guilt of the accused. It was also submitted that the Court while proving the guilt of the accused can solely rely upon the confessional statement and in case if any doubt arise for voluntariness thereof, the Court may look at the corroborative piece of evidence for such purpose. The consideration of the corroborative material is by way of a reasonable prudence and not the requirement under law. In the submission of the learned Special Public Prosecutor, the confessional statement can itself be a valid base for convicting the accused for the allege offence.
In order to consider the contention, section 32 of the POTA would be required to be considered, which reads as under:
32. Certain confessions made to police officers to be taken into consideration.-
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.
A police officer shall, before recording any confession made by a person under sub-section (1), explain to such person in writing that he is not bound to make a confession and that if he does so, it may be used against him:
Provided that where such person prefers to remain silent, the police officer shall not compel or induce him to make any confession.
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.
The person from whom a confession has been recorded under sub-section (1), shall be produced before the Court of a Chief Metropolitan Magistrate or the Court of a Chief Judicial Magistrate along with the original statement of confession, written or recorded on mechanical or electronic device within forty-eight hours.
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.
The Apex Court in the case of State (NCT of Delhi) Vs. Navjot Sandhu (supra) had an occasion to elaborately consider the case law regarding confessions. The Apex Court after taking into consideration the provisions of POTA, at para 156, observed thus 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 sub-section (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 sub-section (3).
(c) The person from whom a confession has been recorded under sub-section (1) shall be produced before the Chief Metropolitan Magistrate or Chief Judicial Magistrate along with the original statement of confession, within forty-eight 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 sub-sections 2 & 3 is not something new. Almost similar prescriptions were there under TADA also. In fact, the fulfillment 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 & 5.
It is true that section 32 of POTA does require to the police officer to explain the person concerned in writing that he is not bound to make a confession and if such person does so, it may be used against him. Such intimation in writing in normal circumstances, is required to be followed, but the compliance of such provision orally is fully established in the oral evidence of the officer who recorded the confessional statement and non-contradiction thereof in the cross-examination, whether would not invalidate such confessional statement. Further, when the confessional statement is found with the corroborative evidence on record coupled with the oral evidence of the officer who recorded the confessional statement for explaining to the accused that he is not bound to make the confessions and that if any confession is made, such may be used against him, it is not possible to hold that the failure to explain in writing, though the confession by an unimpeachable evidence in the testimony of the Police Officer concerned, would be a sole base for discarding the confessional statement in toto. It appears that in such circumstances, when there is failure to communicate in writing while considering the evidentiary value of the confessional statement, the Court may consider the other oral evidence for such communication and whether such oral communication was made by an unimpeachable testimony of the witness in support thereof, would also be an aspect to be considered. If the prosecution has been able to show by an unimpeachable evidence that such procedure of explaining was followed by the concerned Police Officer, coupled with the circumstances of available corroborative piece of evidence for finding out the genuineness of the confessional statement, the principles of substantial compliance an be applied while considering the evidentiary value of such confessional statements.
At this stage, we may also consider the aspects of the alleged noncompliance to the provisions of the statute in recording of the confessional statement or the verification thereof by the learned Magistrate. By virtue of the provisions of section 463 of Cr.P.C., the alleged noncompliance, though as per the reasons recorded hereinabove, is not the noncompliance, but even if it is considered for the sake of examination, such alleged noncompliance if has not injured the accused in his defence on merits, such confessional statement is required to be admitted. Section 463 of the Cr.P.C. for ready reference reads as under:
Non-compliance with provisions of section 164 or section 281.- (1) If any court before which a confession or other statement of an accused person recorded, or purporting to be recorded under section 164 or section 281, is tendered, or has been received, in evidence finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in section 91 of the Indian Evidence Act, 1872 (1 of 1872), take evidence in regard to such non-compliance, and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement.
The provisions of this section apply to courts of appeal, reference and revision.
The Apex Court had an occasion to consider the question as to whether the provisions of section 463 of the Cr.P.C. could be applied to the provisions of section 15 of the TADA while considering the matter for confessional statement. In the case of Ahmed Hussein Vali Mohammed Saiyed and Anr. reported at 2009(3) SCC (Cr.) 368, it was observed at para 53 as under:
It is also clear that while recording confessional statement, if there is omission to obtain signature of the accused at the end of the confession, the same is admissible and the omission made by the competent officer is curable in view of the provision contained in Section 463 Cr.P.C. In the same manner, the Court has held even if there was any omission in respect of the certificate which the competent officer is required to append under sub-rule (3) at the foot of the confession, it can be cured as provided under Section 463 of the Cr.P.C. Such approach is permissible in view of Section 463 of the Cr.P.C. in regard to the omission in recording confession under Section 164 Cr.P.C., the Court has clarified that the same approach can be adopted in respect of confession recorded under Section 15 of the TADA Act.
Therefore, in light of the aforesaid, the confessional statement of the accused are required to be considered.
On the aspects of compliance to the provisions of section 52, the Apex Court in the case of State (NCT of Delhi) Vs. Navjot Sandhu (supra) observed at para 164 as under:
In our considered view, the violation of procedural safeguards under Section 52 does not stand on the same footing as the violation of the requirements of sub-Sections (2) to (5) of Section 32. As already observed, sub-Sections (2) to (5) of Section 32 have an integral and inseparable connection with the confession recorded under Section 32(1). They are designed to be checks against involuntary confessions and to provide an immediate remedy to the person making the confession to air his grievance before a judicial authority. These safeguards are, so to say, woven into the fabric of Section 32 itself and their observance is so vital that the breach thereof will normally result in eschewing the confession from consideration, subject to what we have said about the judicial custody. The prescriptions under Section 52, especially those affording an opportunity to have the presence of the legal practitioner, are no doubt supplemental safeguards as they will promote the guarantee against self-incrimination even at the stage of interrogation; but these requirements laid down in Section 52 cannot be projected into Section 32 so as to read all of them as constituting a code of safeguards of the same magnitude. To hold that the violation of each one of the safeguards envisaged by Section 52 would lead to automatic invalidation of confession would not be in consonance with the inherent nature and scheme of the respective provisions. However, we would like to make it clear that the denial of the safeguards under sub-Sections (2) to (4) of Section 52 will be one of the relevant factors that would weigh with the Court to act upon or discard the confession. To this extent they play a role vis-`-vis the confessions recorded under Section 32, but they are not as clinching as the provisions contained in sub-Sections (2) to (5) of Section 32.
The aforesaid goes to show that the requirement under section 32 is a must. In case of any breach, it may result into ensuing the confession from consideration subject to the observations made about the judicial custody. It was observed that if there is denial of safeguards in sub-section (2) to (4) of section 52, it will be one of the relevant factors to weigh with the Court to act upon the confession or to discard the confession. It was observed that to that extent, it plays role, viz. confession recorded under section 32, but they are not as clinching as the provisions contained in sub-section (2) to sub-section (5) of section 32. The examination of the contention by the learned counsel for one of the appellant, Mr. Raju that there was no compliance to the provisions of section 52 of the Act may deserve consideration only if there is denial of the safeguard under sub-section(2) to (4) of section 52. Nowhere, it is the case of the defence before the Trial Court that the right to consult a legal practitioner was denied to any of the accused or that the information was not communicated about the arrest of the accused to the family members or that the accused was not permitted to meet the legal practitioner. The contention that it is required for the prosecution to prove that the procedure as required under section 52 of the Act was followed is ill-founded inasmuch as it is only when the denial to the procedure of arrest under section 52 comes on record, it may be required for the Court to consider the same while considering the evidentiary value of the confessional statement. It may be recorded that as per the Evidence Act, in normal circumstances, all acts in official capacity are presumed to be done in accordance with law and as per the requirement of law to rebut such presumption or to negative such presumption, it is required for the defence to put forward the case for such denial, if any. Not a single incident is put to any of the witness and more particularly the investigating officers by the counsel for the accused in the cross-examination on such aspects. Therefore, it is not possible to accept the contention that there was any denial of the procedure as required under section 52 of the POTA. In absence of any denial, such consideration to the compliance of the provisions of section 52 would hardly have any role to play while considering the evidentiary value of the confessional statement under section 32 of the POTA.
The aforesaid is coupled with the circumstance that the declaration for retraction of the statement is drafted by the lawyer. That would go to show that he was permitted to engage a lawyer. Further, the statement made in such application of retraction that the accused was not permitted to have the food supplied from his residence would also go to show that his family members were aware about the arrest and the food was also tendered to the accused when he was in the custody. Therefore, it is not possible to accept the contention that there was any breach of the provisions of section 52 as sought to be canvassed.
The contention that sufficient time was not given to the concerned accused to think before recording of the confessional statement, if examined, it appears that so far as A4 is concerned, he was already intimated in writing at about 1 P.M. On 22.06.2003 and his confessional statement was recorded at 5.45 PM. Therefore, by no stretch of imagination, it can be said that such period was not sufficient for the accused to cool down his mind and think about the confessional statement. So far as second confessional statement of A4 is concerned, the same was recorded on 25.03.2003. As per the evidence of the officer who recorded the confessional statement, Shri A.K.Pandya, the concerned DCP, P.W.13, Exh.119, he has specifically deposed before the Court that when he had put to A4 about the time to think for giving a confessional statement, A4 had replied that, he is not desirous to think further and thereafter, the consent letter was prepared and it took about 8-10 minutes. Similarly, when A1 was informed about the time to think, he also declared that he is not desirous to think further and he is desirous to give confessional statement. Thereafter, the preparation of the recording of the statement took about 5-8 minutes. The said part of the evidence has remained uncontradicted in the cross-examination of the said witness. It is in that light of the fact situation, the contention deserves to be examined.
Section 32 of POTA itself does not provide for any specific time to be given by the concerned police officer to the accused concerned to think about. However, as the requirement of sub-section (3) is to record the confessional statement in the free atmosphere from threat or inducement, it is to be read that a reasonable time is required to be given by the concerned police officer to the concerned accused to think as to whether he should or he should not give the confessional statement which may be used against him. But such reasonable time may vary from facts to facts and it is not possible to read any express time limit by stipulating the hours or the minutes. The requirement is that time should be given to the accused so as to extract free atmosphere in a cool mind. But if the accused himself has already made up his mind to give the confessional statement and he declares before the concerned police officer that he is not desirous to further think about it and thereafter if the confessional statement has been recorded with the other circumstances came on record that such confession was not under threat or inducement or compulsion, it cannot be held that such a confessional statement would lose its evidentiary value while tracing the guilt of the accused concerned. Had the accused not declared before the concerned police officer that he is not desirous to think further and he has already made up his mind to give the confessional statement, it may be required for the police officer to give a reasonable time to the concerned accused to think about giving of confessional statement. Hence, in the fact situation of the present case, it is not possible for this Court to accept the contention of the learned counsel for the accused that the confessional statement would lose its evidentiary value as sufficient time was not given to the accused to think about giving of confessional statement, which may be used against him.
The contention that the accused as were not sent to judicial custody cannot be read in absolute as sought to be canvassed and contended by the learned counsel for the appellants-accused. Even as per the observations made by the Apex Court in the case of State (NCT of Delhi) Vs. Navjot Sandhu (supra), normally he may be sent to the judicial custody unless his custody was required to be entrusted, but such is not the requirement in all cases. The Apex Court in the case of State (NCT of Delhi) Vs. Navjot Sandhu (supra), while considering the similar contention, has observed thus, relevant of which reads as under:
Firstly, it was contended that on a proper construction of the entirety of sub-Section (5) of Section 32, the question of sending to judicial custody would arise only if there was any complaint of torture and the medical examination prima facie supporting such allegation. In other words, according to the learned counsel, the expression 'thereafter' shall be read only in conjunction with the latter part of sub-Section (5) beginning with 'and if there is any complaint' and not applicable to the earlier part. In our view, such a restrictive interpretation of sub-Section (5) is not at all warranted either on a plain or literal reading or by any other canon of construction including purposive construction. The other argument raised by the learned counsel is that the provision regarding judicial custody, cannot be read to be a mandatory requirement so as to apply to all situations. If the Magistrate is satisfied that the confession appears to have been made voluntarily and the person concerned was not subjected to any torture or intimidation, he need not direct judicial custody. Having regard to the circumstances of this case, there was nothing wrong in sending back Afzal to police custody. This contention cannot be sustained on deeper scrutiny.
(Emphasis supplied) At the bottom of the verification statement, the learned Magistrate has recorded on 24.06.2003 that the accused is not required to be sent for medical examination and as the remand has been given by the Court, the custody of the accused is entrusted to the police officer. In the cross-examination, of the said learned Magistrate, no such defence has been put forward to contend that that entrustment of the custody to the police was not required or otherwise. On the contrary, the defence is absolutely silent on the said aspects in the cross examination of the learned Magistrate. Under these circumstances, it is not possible for the us to hold that as the judicial custody has not been ordered by the learned Magistrate, the confessional statement can be said as vitiated and it would lose its evidentiary value.
So far as the case of A1 is concerned, when his confessional statement was verified by the learned Magistrate, or in the earlier confessional statement of A4, which also was verified by the learned Magistrate, no such case has been put forward by the defence to the concerned witness as to the police custody was not required or there was any non-application of mind by the learned learned Magistrate in entrusting the custody.
The aforesaid leads to examine the aspects of retraction of the confessional statement. So far as A4 is concerned, the learned counsel for A4 wanted to contend that the first retraction of the statement was on 15.06.2003 when the application for remand was opposed by A4. The copy of the said application is at Exh.85. The perusal of the same shows that in the said application, nowhere there is any reference to the recording of the confessional statement under coercion or duress or retraction of any such statement. However, he alternatively contended that there are references to the physical and mental torture while opposing the remand applied by the police and therefore, if the said aspect is considered, then also, it could be termed as retraction or in any case, the Court may consider that the confessional statement was recorded under coercion and duress or not under the free atmosphere and under compulsion.
Had A4 when produced before the learned Magistrate at the time of verification of the confessional statement complained to the learned Magistrate about any mental or physical torture, the matter would have been different and while considering the aspects of retraction, it could be one of the relevant circumstance of opposition to the remand of A4, but no such circumstance exist in the present case. It has come on record that none of the accused, i.e., either A4 or A1 have complained to the Magistrate about any physical or mental torture. Therefore, the interpretation as sought to be canvassed by the learned counsel for A4 to the applicant for opposing the remand on 15.06.2003 cannot be accepted to dilute the evidentiary value of the confessional statement by way of retraction, nor such may be termed as retraction as sought to be canvassed. The aforesaid is coupled with the circumstance that such opposition to the remand is prior to recording of the confessional statement of A4. Therefore also, the alleged retraction prior to the recording of the confessional statement cannot be termed as retraction as sought to be canvassed by the learned counsel for the appellant-A4. Apart from the above, the retraction of the confessional statement by A1 is after about 3 months and the retraction of the confessional statement by A4 is on 24.06.2003. Both if considered as it is, such are long period of more than 2-3 months. Therefore, such retraction can only be termed as afterthought or ingenuous device to nullify the evidentiary value of the confessional statement. Further, both the confessional statements are not only duly verified by the learned Magistrate, but one of the verification of A4 is in question answer form by the learned Magistrate. The evidence of the learned Magistrate, Exh.106, P.W.11, shows that the recording of the confessional statement is duly verified by the learned Magistrate. No complaint has been made for any physical or mental torture and as per the material disclosed in the cross-examination of the learned Magistrate Exh.106, P.W.11, no symptoms were found on the face of the accused for no sufficient sleep or no sufficient food. Therefore, such a belated retraction of the confessional statement can hardly be considered as a valid ground to dilute the evidentiary value of the confessional statement. Apart from the above, even if the aspects of retraction is to be considered, it would not nullify the whole evidentiary value of the confessional statement. In such circumstance, as per the settled legal position, the Court may verify about the other piece of evidence, which may corroborate the confessional statement and if the other piece of evidence corroborates, the confessional statement and the Court is satisfied about the genuineness of the confessional statement, the same can be used against the accused while tracing the guilt of the accused as per the case of the prosecution.
At this stage, we may refer to the decision of the Apex Court in the case of Ravinder Singh Vs. State of Maharashtra reported at AIR 2002 SC 2241 on the aspects of the evidentiary value of the voluntary confessional statement. While considering the case under Terrorist and Disruptive Activities (Prevention) Act (for short 'TADA'), the Apex Court at para 18, after considering its earlier decision, has observed as under:
18. There can be no doubt that a free and voluntary confession deserves the highest credit. It is presumed to flow from the highest sense of guilt. Having examined the record, we are satisfied that the confession made by the appellant is voluntary and truthful and was recorded, as already noticed, by due observance of all the safeguards provided under Section 15 and the appellant could be convicted solely on the basis of his confession.
(Emphasis supplied) On the aspects of use of confessional statement, in one case for the other crime, it would be worthwhile to refer to the decision of the Apex Court in the case of State of Gujarat Vs. Mohammed Atik reported at 1998 SCC (Cri) 936, it was observed as under:
We have, therefore, absolutely no doubt that a confession, if usable under Section 15 of the TADA, would not become unusable merely because the case is different or the crime is different. If the confession covers that different crime it would be a relevant item of evidence in the case in which that crime is under trial and it would then become admissible in the case.
(Emphasis supplied) The Apex Court in the case of Devender Pal Singh Vs. State of NCT of Delhi and Another reported at 2002 (5) SCC, 234, while considering the evidentiary value of the confessional statement and the requirement of the corroboration thereof, majority observed inter a lia at para 33, relevant of which reads as under:
Once this is done the prosecution discharges its burden and then it is for the accused to show and satisfy the Court that the confessional statement was not made voluntarily. The confessional statement of the accused can be relied upon for the purpose of conviction, and no further corroboration is necessary if it relates to the accused himself. It has to be noted that in Nalini case by majority it was held that as a matter of prudence the court may look for some corroboration if confession is to be used against a co-accused though that will be again within the sphere of appraisal of evidence.
It was next contended by the learned counsel appearing for the appellant-accused that there was no panchnama drawn for taking custody of the computer and the computer was kept by the police officer Shri Gakhakhar in his possession. As the mandatory procedure was not followed of drawing of panchnama for seizure of the computer, the material extracted there from the alleged file, etc., could not be used against the accused and therefore, the said part of evidence is required to be excluded while considering the case of the prosecution.
As per the deposition of Shri Gakhakhar, P.W.8, Exh.77, the computer was kept by him in the sealed cupboard after seizure thereof and necessary panchnama was drawn for extraction of the file and translation which has been admitted with the consent of the defence. Therefore, once such material which is having direct relevance to the facts of the present case has come on record, it would not be a case to discard such evidence on the alleged ground of no proper seizure of the computer or the alleged seizure or preservation thereof by the concerned police officer Shri Gakhakhar. At this stage, it would be worthwhile to refer to the decision of the Apex Court in the case of State represented by Inspector of Police & Ors. Vs. N.M.T Joy Immaculate reported at 2004 (5) SCC 729. While considering the material which has come on record, there was alleged illegality for search and seizure, wherein the Apex Court while considering the said aspects, observed at paras 15 and 15.1 as under:
15. The law of evidence in our country is modeled on the rules of evidence which prevailed in English Law. In Kuruma v. The Queen 1955 AC 197 an accused was found in unlawful possession of some ammunition in a search conducted by two police officers who were not authorised under the law to carry out the search. The question was whether the evidence with regard to the unlawful possession of ammunition could be excluded on the ground that the evidence had been obtained on an unlawful search. The Privy Council stated the principle as under :
"The test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how it was obtained".
15.1 This question has been examined threadbare by a Constitution Bench in Pooran Mal v. Director of Inspection 1974(1) SCC 345 and the principle enunciated therein is as under :
"If the Evidence Act, 1872 permits relevancy as the only test of admissibility of evidence, and, secondly, that Act or any other similar law in force does not exclude relevant evidence on the ground that it was obtained under an illegal search or seizure, it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence. Nor is it open to us to strain the language of the Constitution, because some American Judges of the American Supreme Court have spelt out certain constitutional protections from the provisions of the American Constitution. So, neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights cane we spell out the exclusion of evidence obtained on an illegal search.
So far as India is concerned its law of evidence is modeled on the rules of evidence which prevailed in English Law, and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. Where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out."
Thereafter, the Apex Court set aside the direction given by the High Court to exclude the evidentiary value of the material which had already come up on record. In view of the aforesaid, the said contention of the learned counsel for the appellants cannot be accepted.
It was next contended by the learned counsel for the appellants-accused that there is no sufficient material available on record on the aspects of conspiracy and more particularly, for involvement of A4 and therefore, the conviction to A4 is without sufficient material of conspiracy. The Apex Court in the case of State (NCT of Delhi) Vs. Navjot Sandhu (supra) had an occasion to consider the said aspects and at para 97 to 101, the Apex Court observed thus -
97. Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. (Per Wadhwa, J. in Nalini's case (supra) at page 516). The well known rule governing circumstantial evidence is that 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." G.N. Ray, J. in Tanibeert Pankaj Kumar [1997 (7) SCC 156], observed that this Court should not allow the suspicion to take the place of legal proof.
98. As pointed out by Fazal Ali, J, in V.C. Shukla vs. State [1980 (2) SCC 665], " in most cases it will be difficult to get direct evidence of the agreement, but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence." In this context, the observations in the case Noor Mohammad Yusuf Momin vs. State of Maharashtra (AIR 1971 SC 885) are worth nothing:
"[I]in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
99. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused. [vide Esher Singh vs. State of A.P., 2004 (11) SCC 585]. Lord Bridge in R. vs. Anderson [1985 (2) All E.R. 961] aptly said that the evidence from which a jury may infer a criminal conspiracy is almost invariably to be found in the conduct of the parties. In (AIR 1945 PC 140), the Privy Council warned that in a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against others. "A co-defendant in a conspiracy trial", observed Jackson, J, "occupies an uneasy seat" and "it is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together."
[vide Alvin Krumlewitch vs. United States of America, (93 L.Ed. 790).
In Nalini's case, Wadhwa, J pointed out, at page 517 of the SCC, the need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy". The pertinent observation of Judge Hand in U.S. vs. Falcone (109 F. 2d,579) was referred to:
"This distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders."
At paragraph 518, Wadhwa, J, pointed out that the criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. The learned Judge then set out the legal position regarding the criminal liability of the persons accused of the conspiracy as follows:
"One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."
101. One more principle which deserves notice is that cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. K.J. Shetty, J, pointed out in Kehar Singh's case that "the innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict."
Therefore, in light of the cumulative effect of the circumstances, before, during and after the occurrence of incident, is required to be considered while considering the aspects of the conspiracy and the involvement of A4 in such conspiracy and not on the sole ground as sought to be canvassed and contended by the learned counsel for A4 merely because there is no active role or participation in shooting of the bullet to Shri Lalwala and therefore, he cannot be considered as a part of the alleged conspiracy.
It was next contended by the learned counsel appearing for the accused that as per the FSL report, it has not come out that the bullet used for causing injury to the victim was fired from the same weapon which is recovered by the prosecution. It was therefore submitted that the link in the case of the prosecution is not proved beyond reasonable doubt and the accused would be entitled to the benefit thereof and it would not be a case for conviction of the accused.
Whereas, the learned counsel appearing for the prosecution did contend that the bullet is recovered from the body of the victim and therefore, recovery of the weapon is not must when the case is proved by the other material evidence of the witnesses who were examined, coupled with the confessional statement. Therefore, it was submitted that the accused would not be entitled to the benefit.
As such, the bullet was been found from the body of the victim and the evidence has come up on record to that extent beyond reasonable doubt and corroborated by the medical evidence of the Doctor.
The Apex Court had an occasion to consider the aspects of non-recovery of weapon, whether fatal to the case of the prosecution in the case of Munna Alias Surendra Kumar Vs. State of M.P. reported at 2004 SCC (Criminal) 179 and the observations made at para 7 are as under:
7. Before concluding, we must consider the argument of learned counsel for the appellant that in the course of judgment of the trial court, it is noticed that an argument was addressed on behalf of the appellant that a 12 bore gun was recovered from the appellant which when sent to the ballistic expert, was found to have a defective firing pin but the barrel of the gun showed signs of discharge. Having perused the entire prosecution evidence, we find though this fact was brought out in the course of arguments, the prosecution has nowhere based its case on this fact. It may or may not be true that such a gun was recovered but since the prosecution has not relied upon this piece of evidence, the fact that it was not properly recovered, would not make the prosecution case any weaker; at the most that piece of evidence would have to be rejected. Any argument that in the absence of the recovery of a gun from the appellant, there could be no conviction, will also have to be rejected. It may be possible that the learned counsel for the prosecution out of his over-zealousness might have pointed to the trial court this fact which certainly is neither a legal evidence nor the basis of the prosecution case.
(Emphasis supplied) Therefore, the contention that it would be fatal to the case of the prosecution or that the accused would be entitled to the benefit of acquittal cannot be accepted.
The last aspect deserves to be considered on the question of law is the approach of the Court in the matter under POTA. While considering the aspects of the case for TADA, the Apex Court in the case of Lal Singh v. State of Gujarat reported at AIR 2001 SC 746, observed at para 88, relevant of which reads as under:
It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land. In such type of terrorist activities if arms and ammunitions are recovered at the instance of or on disclosure by accused, it can be stated that presumption of innocence would not thereafter exist and it would be for the accused to explain its possession or discovery or recovery and would depend upon facts of each case which are to be appreciated on the scales of common sense of a prudent man possessing capacity to "separate the chaff from grain". In such cases, as stated by Lord Denning J., law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.
(Emphasis supplied) Further, in Devender Pal Singh Vs. State of NCT of Delhi (supra), while considering the case under TADA, the Apex Court observed at paras 53 and 54 as under:
53. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh) Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava)
54. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh v. State (Delhi Admn)] Vague hunches cannot take the place of judicial evaluation.
A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. ... Both are public duties ... (Per Viscount Simon in Stirland v. Director of Public Prosecution quoted in State of U.P. v. Anil Singh, SCC p. 692, para 17) (Emphasis supplied) It is in light of the aforesaid legal position and the fact situation, the evidence on record is required to be examined.
At this stage, two aspect would be worth referring. One would be the scope and ambit of the application of section 3 of POTA and the another would be to further examine about the culpability in the mind of the accused and also whether the consequence thereof by way of putting the target into action. Section 3 of the POTA for ready reference reads as under:
3. Punishment for terrorist acts.
Whoever,-
(a) With intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature or by any other means whatsoever, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community or causes damage or destruction of .any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act;
(b) Is or continues to be a member of an association declared unlawful under the Unlawful Activities (Prevention) Act, 1967, or voluntarily does an act aiding or promoting in any manner the objects of such association and in either case is in possession of any unlicensed firearms, ammunition, explosive or other instrument or substance capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property, commits a terrorist act.
Explanation.-For the purposes of this sub-section, "a terrorist act" shall include the act of raising funds intended for the purpose of terrorism.
Whoever commits a terrorist act, shall,-
(a) If such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to fine;
(b) In any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.
Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.
Whoever voluntarily harbours or conceals, or attempts to harbour or conceal any person knowing that such person is a terrorist shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine:
Provided that this sub-section shall not apply to any case in which the harbour or concealment is by the husband or wife of the offender.
Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist acts, shall be punishable with imprisonment for a term which may extend to imprisonment for life or with fine which may extend to rupees ten lakh or with both.
Explanation .- For the purposes of this sub-section, "terrorist organisation" means an organisation which is concerned with or involved in terrorism.
Whoever knowingly holds any property derived or obtained from commission of any terrorist act or has been acquired through the terrorist funds shall be punishable with imprisonment for a term which may extend to imprisonment for life or with fine which may extend to rupees ten lakh or with both.
Whoever threatens any person who is a witness or any other person in whom such witness may be interested, with violence, or wrongfully restrains or confines the witness, or any other person in whom the witness may be interested, or does any other unlawful act with the said intent, shall be punishable with imprisonment which may extend to three years and fine.
The Apex Court had an occasion to consider the aspects of similar provision in TADA in the case of Hitendra Vishnu Thakur v. State of Maharashtra reported at AIR 1994 SC 2623, at paras 11 & 15, reads as under:
11...... When the extent and reach of the crime committed with the intention as envisaged by S. 3(1), transcends the local barriers and the effect of the criminal act can be felt in other States or areas or has the potential of that result being felt there, the provisions of S. 3(1) would certainly be attracted. Likewise, if it is only as a consequence of the criminal act that fear, terror or/and panic is caused but the intention of committing the particular crime cannot be said to be the one strictly envisaged by S. 3(1), it would be impermissible to try or convict and punish an accused under TADA. The commission of the crime with the intention to achieve the result as envisaged by the section and not merely where the consequence of the crime committed by the accused create that result would attract the provisions of S.3(1) of TADA. Thus, if for example a person goes on a shooting spree and kills a number of persons, it is bound to create terror and panic in the locality but if it was not committed with the requisite intention as contemplated by the section, the offence would not attract S 3(1) of TADA. On the other hand, if a crime was committed with the intention to cause terror or panic or to alienate a section of the people or to disturb the harmony etc. it would be punishable under TADA, even if no one is killed and there has been only some person who has seen injured or some damage etc. has been caused to the property, the provisions of S. 3(1) of TADA would be squarely attracted. Where the crime is committed with a view to overawe the Government as by law established or is intended to alienate any section of the people or adversely affect the harmony amongst different sections of the people and is committed in the manner specified in S. 3(1) of TADA, no difficulty would arise to hold that such an offence falls within the ambit and scope of the said provision. Some difficulty, however, arises where the intended activity of the offender results in striking terror or creating fear and panic amongst the people in general or a section thereof. It is in this situation that the courts have to be cautious to draw a line between the crime punishable under the ordinary criminal law and the ones which are punishable under Section 3(1) of TADA. It is of course neither desirable nor possible to catalogue the activities which would strictly bring the case of an accused under S. 3(1) of TADA. Each case will have to be decided on its own facts and no rule of thumb can be applied.
15. Thus, the true ambit and scope of S. 3(1) is that no conviction under S. 3(1) of TADA can be recorded unless the evidence led by the prosecution establishes that the offence was committed with the intention as envisaged by S. 3(l) by means of the weapons etc. as enumerated in the Section and was committed with the motive as postulated by the said Section. Even at the cost of repetition, we may say that where it is only the consequence of the criminal act of an accused that terror, fear or panic is caused, but the crime was not committed with the intention as envisaged by S. 3(1) to achieve the objective as envisaged by the section an accused should not be convicted for an offence under S. 3(1) of TADA. To bring home a charge under S. 3(1) of the Act, the terror or panic etc. must be actually intended with a view to achieve the result as envisaged by the said section and not be merely an incidental fall out or a consequence of the criminal activity. Every crime, being a revolt against the society, involves some violent activity which results in some degree of panic or create some fear or terror in the people or a section thereof, but unless the panic, fear or terror was intended and was sought to achieve either of the objectives as envisaged in S. 3(1), the offence would not fall stricto sensu under TADA. Therefore, as was observed in Kartar Singh's case (1994 Cri LJ 3139 (SC) by the Constitution Bench :
"Section 3 operates when a person not only intends to overawe the Government or create terror in people etc, but he uses the arms and ammunitions which results in death or is likely to cause and damage to property etc. In other words, a person becomes a terrorist or is guilty of terrorist activity when intention, action and consequence all the three ingredients are found to exist."
It is in light of the aforesaid legal position, if the material of translated files at Exhibits 81, 82 & 83 are considered, it does appear that there was not only thinking process in the mind of the accused concerned about the sufferings of a Muslim community after Godhra carnage, but there was also consideration of relevant literature by the accused so as to consider the base camps of terrorist activity, availability of the space, the requirement of space in context to the political atmosphere prevailing at the relevant point of time by a particular political party having affinity with a particular section of the Society. The overall reading of the material would lead to show that it is to pamper and instigate the religious feeling of a particular community, viz. Muslim community to take revenge from Hindu community.
It is hardly required to be stated that our country has wadded to a secular State policy. The State or a nation as a whole cannot be branded with religion of a particular class or the community. If the citizens of the country start with mental strategy of division based on the religion followed by them, it may result into, if not division of the nation, but would certainly result into damaging the unity of nation and consequently would tinker with the integrity and also the security of the nation as a whole. Neither Hindu nor Muslim religion permits taking of revenge for an act or omission or misdeed of A from B merely because A and B are following same religion. The human psychology, if considered with the basic human tendency, may at the most reach to the taking of revenge to the person who has caused injury, but no religion professes that if one of the person of A religion has committed misdeed, the revenge should be taken from all those persons who are having the same religion. If the history of the nation is considered, the Hindu religion basically has accepted various persons who invaded or entered the nation following different religion. The Hinduism, as such, is based on the principles of live and let others live , which is popularly known as Sahanshita . It has been cited also so many times that it is on account of receptivity and adaptability of a Hindu culture, it has survived for a long period, possibly as per the historian more than 5000 years, though the number of persons following Hindu religion are less as compared to others in the world and more particularly, the Christians, Muslims and Buddhists. Therefore, if the feelings of Hindu community is pampered so as to take revenge for the misdeeds of other person belonging to other religion from the innocent persons belonging to the other religion, the same would also strike at the unity of the nation and consequently, may touch to the security of the nation. The aforesaid can be equally said if one is to profess and follow the basic principles of Islam being a real Muslim. At this stage, we may profitably extract certain observations of the author Maulana Wahiduddin Khan, who has worked as President of the Islamic Centre, New Delhi and in his book The True Jihad , he has, while describing the real principles of peace, tolerance and non-violence in Islam, based on the quotations of Quran, observed that Islam never permits to use violence for taking revenge or to use the power to offend somebody, but the same is to be used only as a protective measure and the war is to play the role only when it is unavoidable after all measures to bring peace have failed. Such are the principles known in Hinduism too. It is only by way of self defence, attack is permissible and not for causing injury to somebody. Such principles are interwoven even in the Indian Penal Code for invoking the right of self defence. The aforesaid glimpse observed by us would highlight the situation that in any secular State or nation, the unity and harmony amongst various sections of the society professing various religion would be of paramount consideration. It is like a family having different way of thinking and sometimes different way of praying to the God. Merely because the ways to get the blessings of the God are different, one cannot divide the family nor the unity and the security of the family should be put to jeopardy on account of such personal feeling of any member of the family or may be consequently a section of the society in any secular nation.
The material as extracted from the computer file whose translation are produced read with the confessional statement of the accused clearly goes to show that it is after the Godhra Carnage, the information was collected including the material by the accused concerned about certain alleged suffering of the Muslims in the State. Based on such material, a systematic momentum was created by meeting at the religious places, wherein not only there was meeting of mind for discussion, but a conspiracy was hatched for the manner and mode in which the revenge should be taken from a particular section of the society, viz. Hindus and ultimately, there was agreement of mind amongst the conspirators for the place from where the fund was to be collected, the place from where the weapon was to be collected and thereafter, to make use thereof with a view to see that a particular section of the society, viz. Hindus may get the message that if there is suffering to the people of Muslim community, Hindus will also have to suffer. It is with that conspiracy, one the leader of Hindu community in Surat city, as the accused believed as the leader, was targeted. It is hardly required to be stated that if a leader or the forefront of any section of the society is targeted for taking revenge, it would create a terror amongst that section of the society that if the person at the forefront is to suffer on account of the misdeeds of the other Hindus, others (who are not leaders or at the forefront)are bound to suffer. After agreement of mind and conspiracy, the weapons were procured, the vehicle was procured, the observance was made on the movement of Shri Lalwala and thereafter, with the use of the motorcycle, Shri Lalwala was targeted and there was shooting. The target is not only on the vital part of the body, but it appears that it is on account of the shot, did not reach to the target, the bullet hit on the cheekbone. Had it been just above, possibly the consequence would have been otherwise. Even if it is considered that the consequence is the injury caused on the cheekbone with the bullet, the culpability or the intention of the accused to create terror amongst a particular section of the society, viz. Hindu and more particularly in Surat city would not stand diluted.
The further pertinent aspect is that as per the evidence of the police officers, who were examined as witnesses, it has come on record that after the bullet injury was received by Shri Lalwala, there was tense situation in the nearby area. Therefore, it is not a matter where the targeted action was not brought about the result. It may be that the terror which was intended with higher degree might not have resulted, but if the said aspect is considered in light of the above referred decision of the Apex Court in the case of Hitendra Vishnu Thakur (supra), the offence can be said to have been committed since the culpability in the mind of the accused is proved with a view to create a terror amongst the particular class and section of the Society. It may be that in a given case, the creation of huge terror amongst the society on account of targeted action may be one of the relevant circumstance at the time when the punishment is to be imposed, but it is not possible to record the conclusion that no offence can be said to have been committed by the accused when the weapon was used for shooting Shri Lalwala out of a planned targeted action to take revenge by the accused, against a particular section of the society.
On the aspect of confessional statements, we have already observed earlier that retraction does not carry weightage to the extent as sought to be canvassed to frustrate the voluntariness of the statement. Further, even if the circumstance of retraction may be a belated, is to be considered, and if the Court is to trace the corroborative material by way of reasonable prudence, there are corroborative evidence available in support on record for strengthening the evidentiary value of the confessional statement. The pertinent asepct is that certain details and information so disclosed in the confessional statement are such, which was known to the accused and only accused or member of conspiracy and may not be known to anyone. The concerned police officer who have recorded the confessional statement of the respective accused had no personal animosity against any of the accused. If the said aspect is considered coupled with the circumstance that during the course of investigation, certain material which corroborates the contents of the confessional statement, have also been found and such material and evidence has come on record in the prosecution case. The same are not only considered with the pointing out panchnama recorded under section 27 of the Evidence Act, but further evidence of corroborative material is the recovery of the motorcycle, the delivery note, the cartridge which was fired, the testimony of person who handed over the vehicle, the register as was being maintained by the person who sold the vehicle and in any case, the evidence of having received the injury by Shri Lalwala, the medical evidence, and the bullet found from the body of Shri Lalwala. In our view, such corroborative pieces of evidence are sufficient to consider full evidentiary value of the confessional statements. Therefore, if the whole episode or the totality of the incident keeping in view the planned conspiracy to take revenge and the intended action and thereafter, the creation of tensed situation in the area leads us to record the conclusion that the ingredients of section 3(1)(a) were satisfied and the guilt recorded by the learned Special Judge (POTA) of both the accused cannot be said to be erroneous.
It was next contended by the learned counsel appearing for the accused that in any case, the charge of section 25(1)(c) under the Arms Act was wrong and such section did not exist in the statute book at the relevant point of time and does not exist even as on today. Therefore, it was submitted that the conviction of the accused for the alleged offence under the Arms act deserves to be set aside.
It is true that the charge was under section 25(1)(c) of the Arms Act and no such provision exist in the statute book since the said section was already deleted with effect from 25.05.1988. However, it is a proved fact as led by the prosecution that the firearm was used for commission of the alleged offence and the injury was also received by the firearm. Therefore, the offence under the Arms Act for possession of the firearm without holding a valid licence could be said as proved. It is in this fact situation, if the contention is examined, it can be said that such would attract the punishment as per section 25(1B)(a) as could be said as proved, wherein the punishment can extent upto 3 years. As per the evidence on record, the possession of the firearm without holding a valid licence is proved. Further, the use of the firearm is also proved. Under these circumstances, we find that it would not be a case of acquitting the accused from the offence under the Arms Act merely because the charge was framed under section 25(1)(c). And the pertinent aspect is that for the alleged offence under section 25(1)(c), the punishment was higher than that of the punishment for which the offence under section 25(1B)(a) and the opportunity to defend if given for a charge where the punishment is for higher period, the matter if considered for the charge under section 25(1B)(a), wherein the punishment provided is for a lesser period, no prejudice would be caused to the accused in their defence. Hence, we find that the punishment can be maintained under section 25(1B)(a) of the Arms Act. Since the learned Special Judge (POTA) has imposed punishment which is minimum of 3 years as per the charge of section 25(1)(c), both the accused can be held guilty for the offence under section 25(1B)(a) and the punishment deserves to be imposed would be 1 year imprisonment instead of 3 years imprisonment as ordered by the learned Special Judge (POTA). Therefore, the conviction imposed by the learned Special Judge (POTA) will have to be modified accordingly.
The learned counsel for the State in appeal for enhancement of the sentence being Criminal Appeal No.2254/05, emphatically submitted that if the offence under section 3(1) is proved or that the offences under section 307 is found proved with the other offences under section 120B of IPC, the imposition of punishment of 7 years will not have the deterrent effect in the society and it would be a fit case to enhance the punishment than as imposed by the learned Special Judge.
Whereas, the learned counsel appearing for the appellants in the appeal against the conviction contended inter alia that the imposition of punishment of 7 years for the offence under 3(1) of POTA is on a higher side and it is also on the higher side for the offence punishable under section 307 of IPC. It was submitted that one of the accused, viz. A4, had to undergo imprisonment in respect of other POTA Case No.12/03 for a period of 3 years pending the trial and ultimately acquitted at the end of the trial. It was submitted that the accused are in jail since about the period of more than 5 years. Therefore, keeping in view the aspects that one of the accused, i.e., A4 had undergone imprisonment as under trial prisoner for 3 years, this Court may reduce the punishment as 5 years for the period undergone and may release the accused who are languishing in jail for a long period.
The principles of imposition of sentence are by now well settled. Apart from the aspects of personal circumstances of the accused, Court cannot lose sight of the deterrent effect to be created while imposing sentence. But at the same time, the gravity of the offence and the consequential effect arising on account of the commission of offence would also be one of the relevant circumstance while imposing sentence. It does appear from the evidence of the case that the intention was not to cause injury, but was to kill the victim, but the fact remains that because of the injury received on the cheekbone, the victim survived. It is also true that the intention was to create great terror amongst the particular section of the society, but the fact remains that it ended with creation of tensed situation in the society. It has not come on record that any untoward incident or any rioting took place after the incident amongst two sections of the society. Under these circumstances, we find that if the learned Special Judge has exercised the discretion of imposing punishment of 7 years for the offence punishable under section 3(2) of the POTA or for the period of 6 years under section 307 of the IPC or for the period of 6 years for the offence under section 120B of the IPC, it can neither be said that there is improper exercise of the judicial discretion by the learned Special Judge (POTA) nor can be said as principles of deterrent effect was at not at all considered by the learned Special Judge (POTA).
Therefore, we find that the concerned appeal for enhancement of sentence preferred by the State can be said as lacking merit or in any case, does not deserve to be granted.
It is not possible to accept the contention that if any of the accused has undergone the period as undertrial prisoner in some other case, the same is required to be given set off for a different offence for which there is a separate trial and separate circumstance. Therefore the said contention in our view can be said as misconceived.
At the same time, the contention of the learned counsel appearing for the accused in the concerned appeals for reduction of the sentence for the offence punishable under section 3(2) of POTA, for the offence under section 307 of IPC and for the offence under section 120B of the IPC, keeping in view the facts and circumstances of the case and the discretion exercised by the learned Special Judge does not deserve to be accepted, save and except for the offence punishable under the Arms Act.
Hence, the Judgement and Order passed by the learned Special Judge (POTA) is modified only to the extent that there shall be conviction for the offence under section 25(1B)(a) of the Arms Act in place of conviction for the offence under section 25(1)(c) of the Arms Act and the punishment shall be 1 year imprisonment with the fine of Rs.1,000/- each, and in default, the simple imprisonment for a period of 1 month. The other part of the Judgement and Order for conviction of the learned Special Judge (POTA) is confirmed.
Hence, the appeals preferred by the appellants-accused shall stand allowed to the aforesaid extent only.
The appeal preferred by the State for enhancement shall stand dismissed.
In view of the order passed in the main concerned appeals, the interim applications being Criminal Misc. Application Nos.11093/09 and 11164/09 shall stand disposed of accordingly as the rights of the parties shall stand governed as per the final order passed in the appeals.
(JAYANT PATEL, J.) (Z.K.SAIYED, J.) *bjoy Top