Rajasthan High Court - Jaipur
Saifurrehman Ansari S/O Abdul Rehman ... vs State Of Rajasthan on 29 March, 2023
Author: Sameer Jain
Bench: Pankaj Bhandari, Sameer Jain
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal (DB) No. 208/2022
1. Saifurrehman Ansari S/o Abdul Rehman Ansari, R/o
House No. 246, Badarka Mohalla, Ps Azamgarh, District
Azamgarh, Uttar Pradesh (Presently Confined In Central
Jail, Jaipur)
2. Mohd. Sarvar Azmi, S/o Mohd. Haneef, R/o Post
Chandpatti, Tehsil Sagri, Ps Ronapar, District Azamgarh,
Uttar Pradesh (Presently Confined In Central Jail, Jaipur)
3. Mohd. Saif S/o Shadab Ahmed, R/o Gram Post
Sanjarpur, Tehsil Nizamabad, Ps Saraimeer, District
Azamgarh, Uttar Pradesh (Presently Confined In Central
Jail, Jaipur )
4. Mohd. Salman S/o Shakeel Ahmed, R/o Gram Post
Sanjarpur, Tehsil Nizamabad, Ps. Saraimeer, District
Azamgarh, Uttar Pradesh ( (Presently Confined In
Central Jail, Jaipur )
----Appellants
Versus
State Of Rajasthan, Through Its Public Prosecutor
----Respondent Connected With D.B. Criminal Appeal (DB) No. 250/2022 State Of Rajasthan, Through PP
----Appellant Versus
1. Shahbaz Hussain @ Shahbaz Ahmed @ Shanu S/o Shri Mumtaz Ahmad, Aged About 42 Years, R/o Mohalla Katra Bazar, Bahdohi (Up) At Present R/o House No. 155/117(2) Hata Sulema Kadar, Molviganj P.s. Naka Hindoli, Lucknow. U.p.
2. Shri Mohammad Saif @ Kairion S/o Shri Shadab Ahmad, Aged About 32 Years, R/o Village Sanjrpur, P.s. Saraimeer, Distt. Azamgarh (Up)
3. Shri Mohammad Sarver Azami @ Rajhans Yadav S/o Shri Mohammad Hanif, Aged About 34 Years, R/o Chand Patti Bazar, P.s. Ronapar Zila, Distt. Aazamgarh, (Up)
4. Shri Saifur @ Saifurrahman Ansari S/o Shri Abdul (Downloaded on 11/11/2023 at 04:43:31 PM) (2 of 64) [CRLA-208/2022] Rahman Ansari, Aged About 32 Years, R/o 246, Badrka, P.s. Kotwali, Distt. Aazamgarh (Up)
5. Shri Mohmmad Salman S/o Sakil Ahamad, R/o Sanjarpur, P.S. Saraimeer, Distt. Azamgarh (Up)
----Respondents For State(s) : Ms. Rekha Madnani, Addl.G.A. assisted by Ms. Savita Nathawat For Accused(s) : Ms. Nitya Rama Krishnan, Sr. Adv.
Assisted by Mr. Vibhor Jain, Mr. Shivam Sharma, Mr. Mayank Sapra, Mr. Syed Saddat Ali, Mr. Aswath Sitaraman, Mr. Raghav Tankha, Ms. Stuti Rai Mr. Shri Singh, Mr. Siddarth Satija, Mr. Rajat Kumar, Ms. Tusharika Mattoo, Ms. Ipsita Agarwal, Mr. Akash Sachan, Ms. Zehra Khan, Mr. Syed Saddat Ali Mr. Vishal Gosain, Ms. Seema Mishra, Ms. Deeksha Dwivedi, Mr. Harsh Bohra, Mr. Syed Saddat Ali Mr. Ashok Agarwal, Mr. Nishant Vyas, Mr. Mujahid Ahmed, Ms. Aditi Sarswat HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE SAMEER JAIN Judgment RESERVED ON :: 03/11/2022 PRONOUNCED ON :: 29/03/2023 (Per Hon'ble Pankaj Bhandari, J.) D.B. Criminal Appeal No.208/2022 & 250/2022:
1. Accused Mohammad Salman, Saifur @ Saifurrehman Ansari, Mohammad Saif @ Karain and Mohammad Sarvar Azmi @ Rajhans Yadav have preferred D.B. Criminal Appeal No.208/2022, aggrieved by the judgment of conviction dated 18.12.2019 and order of sentence dated 20.12.2019 passed by Special Judge, (Downloaded on 11/11/2023 at 04:43:31 PM) (3 of 64) [CRLA-208/2022] Jaipur Bomb Blast Cases, Jaipur in Sessions Case No.7/2010 -
State Versus Shahbaz Hussain @ Shahbaz Ahmed @ Shanu & Ors., FIR No.132/2008, Police Station, Manak Chowk, Jaipur City (North), whereby accused Shahbaz Hussain was acquitted from the charges levelled against him and other accused Mohammad Salman, Saifurrehman Ansari, Mohammad Saif and Mohammad Sarvar Azmi were convicted and State of Rajasthan has also preferred D.B. Criminal Appeal No.250/2022 against the acquittal of Shahbaz Hussain @ Shahbaz Ahmed @ Shanu and for enhancement of sentence of other accused. Accused Mohammad Salman, Saifurrehman Ansari, Mohammad Saif and Mohammad Sarvar Azmi were acquitted from the charges under Sections 302, 307, 326, 324, 427, 124-A, 153-A of IPC, Section 3 of Prevention of Damage to Public Property Act read with Section 120-B IPC, Sections 4 and 5 of Explosive Substances Act, 1908 read with Section 120-B IPC, Section 6 of Explosive Substances Act, 1908, Sections 3/10, 20, 38 of Unlawful Activities (Prevention) Act, 1967. Accused Mohammad Salman, Saifurrehman Ansari, Mohammad Saif and Mohammad Sarvar Azmi have been convicted by the Court for the following offences:
Mohammad Salman, Saifurrehman Ansari, Mohammad Saif and Mohammad Sarvar Azmi:-
Offence Sentence Fine Sentence in
default of fine
U/s 302/120-B, Life Rs.50,000/- 3 months
307/120-B, Imprisonment
121-A, 124-
A/120-B IPC,
Section 3 of
Explosive
Substances
Act, 1908 r/w
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Section 120-B
IPC
U/s 326/120-B 5 years R.I. Rs.10,000/- 3 months
IPC
U/s 324/120-B 3 years R.I. Rs.5,000/- 3 months
IPC
U/s 153-A/120- 3 years R.I. Rs.50,000/- 3 months
B IPC
U/s 13 of 7 years R.I. Rs.50,000/- 3 months
Unlawful
Activities
(Prevention)
Act, 1967
U/s 18 of Life Rs.50,000/- 3 months
Unlawful Imprisonment
Activities
(Prevention)
Act, 1967
All sentences were directed to run concurrently.
2. Succinctly stated the facts of the case are that a spate of explosions took place in the crowded market, places of the walled pink city of Jaipur on Tuesday, May 13, 2008 within a short span of 20 minutes, resulting into death of 71 persons and injuries to 185 persons. In each of the blast sites, the bombs were planted on brand new bicycles, which were placed at carefully selected crowded market places near temples and police stations. In total 8 FIRs were registered, 4 FIRs were registered at Police Station Kotwali and 4 FIRS were registered at Police Station Manak Chowk.
3. The present appeals pertain to FIR No. 132/2008, Police Station Manak Chowk, Jaipur. The author of the FIR was Mohan Lal. The place of incidence of blast in this FIR is Peetliyon Ka Rasta, Jauhari Bazar. The total number of persons injured were 20 and those who died in the blast were 7.
4. On next day of the incident i.e. 14.05.2008, an Email was received by TV Channels and News Agencies India TV and Aaj Tak (Downloaded on 11/11/2023 at 04:43:31 PM) (5 of 64) [CRLA-208/2022] by which Indian Mujaheedeen Organization took the responsibility of serial bomb blasts in Jaipur. Along with the Email, one video clip was also received, which pertained to bicycle and a bag on that bicycle. In the first part of the Email, there is a mention about the bicycle with frame No.129489, which was placed near Police Station Kotwali at Chhoti Chaupad. The bicycle with the same frame number was seized from the blast site near Police Station, Kotwali in a damaged condition in FIR No.117/2007. Exactly 4 months after the Jaipur blasts i.e. on 13.09.2008, there were serial bomb blasts at 5 places in Delhi. On 19.9.2008, a Team of Delhi Police Special Cell raided a Batla House Flat in Jamia Nagar in South Delhi following a tip-off that terrorists allegedly involved in the Delhi serial bomb blasts were holed up there. In the operation, two terrorists, Chhota Sajid and Aatif Ameen were killed and one Police Officer, Inspector - Mohan Chand Sharma expired. Accused Mohammad Saif was arrested from the flat. On 02.10.2008 accused Mohammad Saif made a disclosure statement which was recorded by the Delhi Police. Saif admitted his active role in the Jaipur bomb blast case and also named 9 other accused and their direct involvement in planting the bombs at various places in Jaipur. In the disclosure statement, it was mentioned that all these 10 accused had come in groups on 11 th May to do reconnaissance "Reki" of the places where they intended to plant bombs and returned on the same day by Ajmer Shatabdi Train. On 12th May, they made bombs at Batla House and on 13 th May, they all came to Bikaner House and boarded a Volvo Bus in different groups and returned back on the same day in the evening by Ajmer Shatabdi Train in fake Hindu names.(Downloaded on 11/11/2023 at 04:43:31 PM)
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5. The accused-appellants were identified by the persons who sold them the cycles which were used by them to plant bombs in different places in Jaipur, namely Prakash Sain (PW - 96) has identified Mohammad Saif, Laxman Jhajhani (PW -93) has identified Sarvar Azmi, Lalit Lakhwani (PW-103) has identified Mohammad Saifurrehman & Rajesh Lakhwani (PW-122) has identified Mohd. Salman. After due investigation, charge-sheet was filed. The trial Court framed charges under Sections 120-B, 302, 307, 326, 324, 427, 121A, 124A, 153A of IPC, Section 3 of the Prevention of Damage to Public Property Act, 1984 read with Section 120-B IPC, Sections 3, 4, 5, 6 of Explosive Substances Act, 1908, Sections 3/10, 13, 18, 20, 38 of the Unlawful Activities (Prevention) Act, 1967 and Section 16(1)A or Section 16(1)A of the Unlawful Activities (Prevention) Act, 1967 read with Section 120-B of IPC. The accused denied the charges and sought trial, upon which, 143 witnesses, PW-1 to PW-143 were examined;
documents Exhibit-P1 to Exhibit-P323A were exhibited and Articles 1 to 65 were also exhibited on behalf of the prosecution. Accused were examined under Section 313 Cr.P.C. In defence, Exhibit-D1 to Exhibit-D46 were exhibited and 3 witnesses, namely, Shahbaj Ahmed (DW-1), Mohammad Saif (DW-2) and Sarvar Azmi (DW-3) were examined. After hearing the parties, the learned trial Court has convicted the accused-appellants for the offences stated above, aggrieved by which, Mohammad Salman, Mohammad Sarvar Azmi, Saifur @ Saifurrehman and Mohammad Saif have preferred the present appeals. Against the acquittal of Sahbaz Hussain and for enhancement of sentence of other accused, State has preferred appeal.
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6. It is contended by the learned Additional Government Advocate that the case rests on circumstantial evidence. The first circumstance against accused-appellants is that their name was mentioned by co-accused Mohammad Saif in his disclosure statements dated 01.10.2008 and 02.10.2008. Accused Mohammad Saif was arrested on 19.09.2008 in Batla House Encounter case for Delhi bomb blasts. It is his arrest that gave a break through to the ATS in the investigation of Jaipur bomb blasts. In his disclosure statement, Saif named 9 other accused, who were involved in planting bombs at various places. It is argued that there was no pressure on accused Mohammad Saif to make an admission of the offence of planting bombs in Jaipur, after 4 months of the incident. The disclosure statement of Mohammad Saif was later on corroborated by the disclosure statement of accused-appellants Saifurrehman, Sarvar Azmi & Salman and is thus relevant under Section 10 of the Evidence Act.
7. It is contended that the next circumstance against accused- appellants is disclosure statement made by them about the places where they planted bombs and memo(s) of place of purchase of cycles. It is argued that the ATS knew that the bombs are planted at 10 places but no other persons could have known the place from where accused-appellants purchased the cycle and planted the bombs and this fact was only within their exclusive knowledge. By their own disclosure statements, accused-appellants have not only admitted their crime of planting bombs at different places, but they have also corroborated the disclosure statement of accused Mohammad Saif and admitted the offence of conspiracy in serial bomb blasts at Jaipur.
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8. It is contended by the learned Additional Government Advocate that the next circumstance against accused-appellants is the disclosure statement made by Saif before the Delhi Police that he had purchased steel balls to make bombs for blast in Jaipur from cycle market in Delhi. Mohammad Saif in his disclosure statement dated 01.10.2008 voluntarily deposed that he along with his friend Azmi purchased the steel balls from a cycle shop in Jama Masjid, Delhi for making bombs, which were used in bomb blasts in Jaipur. The steel balls were purchased in the name of Rahul Sharma for using in science project. Sanjeev Kumar has deposed that accused Saif took them to a Cycle Shop No.555 Prem and Company, Delhi where the owner of the Shop, Subash Chand informed them that Saif purchased the steel balls in the name of Rahul Sharma.
9. The next circumstance against accused-appellants is their identification by persons who sold them the cycles which were used by them to plant bombs in different places in Jaipur, namely Prakash Sain (PW-96) who has identified Mohammad Saif, Laxman Jhajhani (PW-93) who has identified Sarvar Azmi, Lalit Lakhwani (PW-103) who has identified Mohammad Saifurrehman & Rajesh Lakhwani (PW-122) who has identified Mohd. Salman.
10. The next circumstance against accused-appellants is that after planting and exploding bombs in Jaipur, they returned to Delhi in Ajmer Shatabdi Train under fake Hindu names of Harsh Yadava, Rajhans, Ajay Singh & Jitendra Singh which is established from Reservation Chart of Coach No.C-3.
11. It is argued by the learned Additional Government Advocate that the above circumstances cumulatively form a chain so complete and unerringly pointing towards active role of accused (Downloaded on 11/11/2023 at 04:43:31 PM) (9 of 64) [CRLA-208/2022]
-appellants in planting bombs on cycles at different places. The cumulative effect of the above circumstances further give rise to a conclusive and irresistible inference of involvement of accused- appellants in the conspiracy with other co-accused to commit serial bomb blasts in Jaipur at different places in walled cities in which 71 innocent persons died and 185 persons were injured.
12. It is argued that it cannot be a co-incidence that four persons came to Jaipur from Delhi along with four others under fake names; that these persons purchased cycles from Kishan Pole Bazar from different shops under the same fake names which they also used for their travel; that after planting bombs, these persons left for Delhi in the same Coach No.C-3 of Ajmer Shatabdi Train again under the same fake names Harsh Yadava, Rajhans, Ajay Singh & Jitendra Singh.
13. It is contended by the learned Additional Government Advocate that the fact that the bomb blasts took place within a short span, the fact that all the accused came by Volvo Bus in the morning and left by Shatabdi Train in the evening, the fact that some of the names in the chart of bus travel and in the chart of railway travel is matching with the name of the purchaser mentioned in the bill book, goes to show that the appellants travelled under fake Hindu names on 13th May, 2008 purchased the cycles under fake Hindu names and left for Delhi after planting bombs in Jaipur on the same day. It is contended that the trial Court has rightly convicted the accused appellants as they were involved in serial bomb blasts and their involvement in bomb blasts at different places is revealed from the evidence adduced before the Court.
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14. The State has also preferred an appeal against the acquittal of Shahbaz Ahmed in this case and in the appeal preferred by it, the State has prayed that Shahbaz be also convicted for the alleged bomb blasts and all the accused appellants and Shahbaz be awarded death penalty, as all of them were involved in the conspiracy of bomb blasts at Jaipur.
15. With regard to Shahbaz Hussain, it is argued that he was the one who sent mail to India TV and Aaj Tak on 14.05.2008 wherein bicycle frame number was mentioned, thus he was aware of the blasts and was one of the conspirators, hence, the order vide which he has been acquitted needs to be set aside and he should also be convicted and sentenced to death penalty.
16. It is contended by the counsel for the accused that prosecution has failed to establish as to who was the person, who planted the bomb near Peetliyon ka Rasta, Jauhari Bazaar. It is also contended that the prosecution has failed to establish any meeting of minds prior to the bomb blasts so as to establish criminal conspiracy. It is further contended that the prosecution has not established beyond reasonable doubt the planting of cycles by the present appellants at different sites in Jaipur. It is also contended that the prosecution has failed to establish that the appellants came to Jaipur on 11.05.2008 to do 'Reki' and returned on the same day, prepared the bombs at Delhi on 12.05.2008 and has also failed to establish beyond reasonable doubt the traveling of accused from Delhi to Jaipur by bus and returning on the same day i.e. 13.05.2008 by Ajmer Shatabdi. It is also contended that in the present Sessions Case, there was no charge against the accused with regard to the planting of the bombs at different sites. It is further contended that no effort whatsoever was made (Downloaded on 11/11/2023 at 04:43:31 PM) (11 of 64) [CRLA-208/2022] by the prosecution to ascertain the identity of the persons, who had planted the bomb near Peetliyon Ka Rasta, Jauhari Bazaar. Even the photographs of the persons who as per the prosecution were killed in Batla House Encounter were not shown to the sellers of cycles to establish that the cycles were purchased by the them.
17. It is contended by the counsel for the appellants that the main accused in this case, who had planted the bomb on a bicycle, was not apprehended by the police.
18. It is argued that the appellants have wrongly been convicted in this case. No evidence was adduced with regard to the person, who had placed the bomb on the cycle near Peetliyon Ka Rasta, Jauhari Bazaar. and there is no evidence to suggest that the person, who had placed the bomb, had any link with Saif, Saifoorrehman, Sarwar Azmi and Salman. It is contended that the case rests on circumstantial evidence. The circumstance against the accused appellants is the disclosure statements made by Saif, Saifoorrehman, Sarwar Azmi and Salman. It is also contended that all the above disclosure statements were made in the police custody. No statement was recorded under Section 164 of Cr.P.C. before the Magistrate and no fact was discovered from the disclosure statements made by the appellants. Thus, in fact, there was no discovery of fact under Section 27 of the Evidence Act. There was no discovery of fact in pursuance of the disclosure statements made by the accused and such disclosure statements are hit by Sections 25 & 26 of the Evidence Act and Section 162 of the Cr.P.C. In this regard, it is contended that the site of the bomb blasts and the shops from which cycles were purchased, were already in the knowledge of the police and therefore, there was no discovery of fact.
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19. It is contended that next circumstance, which is against the accused appellants, is their test identification parade. It is argued that the test identification parade was conducted after a lapse of many months and was not conducted in accordance with Rajasthan Police Rules. No specific features of the persons, who purchased the cycles, was given to the Police nor was it stated in the evidence before the Court. It is also contended that the test identification parade cannot be relied upon for the very reason that the Investigating Officer was present at the time of the test identification parade, which is evident from the entry and exit register kept in the jail. It is further contended that possibility of accused being shown to the witness cannot be ruled out. Hence, the test identification parade looses its credibility. It is further contended that the material evidence was not produced before the Court, which also casts doubt on the prosecution case.
20. It is contended that the police on the very date of the incident i.e. 13.05.2008 came to the conclusion that the bombs were placed on newly purchased cycles. It is argued that even the cycle shops from which cycles were purchased was known to the Police, but the Officer, who had inquired about the shops from which the cycles were sold, was not examined before the Court. It is also contended that in the bill book, some cycles are said to have been sold on 12th May, 2008, but as per the witness, they were actually sold on 13th May, 2008. It is further contended that in some of the bill books, the frame numbers found on the cycles at the blast site, are not matching with the frame numbers mentioned in the bill books. It is also contended that certain cycles which were found on the blast site were not having any frame number, still a particular shopkeeper was picked up by the (Downloaded on 11/11/2023 at 04:43:31 PM) (13 of 64) [CRLA-208/2022] police and from his version, the prosecution has tried to make out a case that the cycle, which was not having any frame number, was sold by that particular cycle shop. It is argued that the bill books, which was a relevant piece of evidence, were not seized by the police even when the case pertained to bomb blasts in Jaipur City. It is further contended that the Police has not been able to establish any link between the appellants so as to involve them in the alleged bomb blasts. It is further contended that Rajendra Singh Nain who had investigated the matter initially with regard to the shops from where cycles were sold has not been produced as a witness and therefore, an adverse inference should be drawn against the prosecution.
21. It is further contended that the material witnesses have not been produced by the prosecution such as Rajendra Sigh Nain, the person who had fixed the cycles, the Railway Traveling Ticket Examiner, owner or waiters of Kareem hotel where as per the prosecution version, accused had taken lunch before purchasing the cycle and planting the bombs. It is also contended that prosecution has failed to establish that the accused were knowing each other or were having any connection with the SIMI, a banned Organization.
22. It is contended that the employees of Aaj Tak and India TV were not examined and Mr. A.K. Jain, Police Official, who had received the email was also not examined by the prosecution. It is also contended that sketches, which were got prepared from the witnesses, were not produced before the Court and an adverse inference should also be drawn against the prosecution.
23. It is further contended that the sending of email from Sahibabad was also not established. The original CPU on which CD (Downloaded on 11/11/2023 at 04:43:31 PM) (14 of 64) [CRLA-208/2022] was written was not seized by the police. The register in which entry was made about the persons who had visited Naveen Cafe was also not seized by the police. Thus, the prosecution has failed to establish that the accused conspired with each other.
24. We have considered the contentions, for deciding the present set of appeals, we have to ponder upon the following points:-
1. Whether on 13.05.2008 at Peetliyon Ka Rasta, Jauhari Bazar, Jaipur a blast took place in which 7 persons died and 20 persons were injured?
2. Whether Shahbaz sent the mail from Sahibabad and is a co-conspirator?
3. Whether Mohammad Salman, Saifoorrehman, Sarvar Azmi & Mohammad Saif along with an unknown person conspired to plant bomb at Jauhari Bazar at the crossing of Peetliyon Ka Rasta?
POINT NO.1:- Whether on 13.05.2008 at Peetliyon Ka Rasta, Jauhari Bazar, Jaipur a blast took place in which 7 persons died and 20 persons were injured?
25. It is not disputed by the counsels appearing for the parties that a blast did take place at Peetliyon Ka Rasta, Jauhari Bazar, Jaipur. The fact that 7 persons died and 20 injured is established before the trial Court and no objection has been raised to the said finding drawn by the trial Court. We are, therefore, not inclined to take up this issue. It is thus established that a blast took place on 13.05.2008 near Peetliyon Ka Rasta, Jauhari Bazar, Jaipur wherein 7 persons died and 20 were injured.
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(15 of 64) [CRLA-208/2022] POINT NO.2:-Whether Shahbaz sent the mail from Sahibabad and is a co-conspirator?
26. The State has challenged the acquittal of accused Shahbaz. It is contended by learned Additional Government Advocate that the incident i.e. Jaipur Bomb Blasts took place on 13.05.2008. An email was received by two newspaper agencies on 14.05.2008 wherein the responsibility of causing the bomb blasts was taken up by Indian Mujaheedeen. With the attachments, which were made part of the email, a photograph of cycle bearing frame No.129489 was also received. The same cycle with the same frame number was found involved in one of the blast sites, which goes to show that the person, who had sent the mail was also a co-conspirator in the Jaipur Bomb Blasts case.
27. It is contended that from the IP Address, the police on the same day i.e. on 14th May, 2008 came to know that the email has been sent from Sahibabad and the IP Address belonged to Madhukar Mishra. The police immediately went to the Cyber Cafe belonging to Madhukar Mishra. The CPU was seized and after arrest of Shahbaz, he was subjected to test identification parade, in which Madhukar Mishra identified Shahbaz. Madhukar Mishra also identified Shahbaz in the court proceedings. Thus, the fact that the mail was sent by Shahbaz was proved before the Court. It is argued that the person, who has sent the mail, was part of the conspiracy as he was knowing about the Jaipur Bomb Blasts.
28. Learned counsel appearing for accused Shahbaz has opposed the appeal. It is contended that the learned trial Court has discussed the entire evidence and has come to the conclusion that Shahbaz was not involved in the Jaipur Bomb Blasts. He was not (Downloaded on 11/11/2023 at 04:43:31 PM) (16 of 64) [CRLA-208/2022] having any connection with the accused named in the Jaipur Bomb Blasts. It was not established that he was having any links with SIMI or Indian Mujaheedeen Organization and no incriminating material was seized from him. It is argued by the counsel that Shahbaz was picked from his house by ATS. He had a function at his house on account of birth of his child. It is also contended that the Police has falsely implicated him in this case. It is also argued that the test identification parade was not conducted properly as Shahbaz was shown to Madhukar Mishra prior to the test identification parade. In this regard, our attention has been drawn to various documents produced by the prosecution.
29. It is contended that an application for test identification parade was moved before the Magistrate on 02.09.2008 in which the Magistrate posted the matter on 03.09.2008 at 03:00 PM in the jail premises. It is also contended that Madhukar Mishra was residing at a distance of 400 kms and so it was not possible for him to come to Jaipur after the notices were served upon him. Our attention has also been drawn to the notices, which were sent to Madhukar Mishra. From the service report, it is evident that the notices were issued on 02.09.2008 and were served upon Madhukar Mishra on the same day i.e. 02.09.2008. He appeared in the jail on the very next day i.e. 03.09.2008, it is evident that Madhukar Mishra was in Jaipur itself during the period when Shahbaz was taken in the police custody. It is also evident that Shahbaz was in police custody and during the police custody, application was moved for test identification parade. Shahbaz was deposited in the jail on 03.09.2008 itself and on that day itself, test identification parade was conducted. It is the case of defence that Shahbaz has appeared as defence witness and he has stated (Downloaded on 11/11/2023 at 04:43:31 PM) (17 of 64) [CRLA-208/2022] that while he was in the custody of ATS/SOG, a boy wearing maroon coloured clothes and a cap came to the place where he was kept by the ATS. He has also stated that when the test identification parade was conducted, the same boy wearing the same maroon coloured clothes came to identify him. It is also contended that the test identification parade looses its value since there is a specific allegation that the accused Shahbaz was shown to the witness.
30. It is contended that Madhukar Mishra has not mentioned about any specific features of Shahbaz so as to identify him in jail. It is also contended that the email as per Madhukar Mishra was sent on 14.05.2008 and the identification parade took place on 03.09.2008 i.e. after 3 months and 20 days. It is further contended that Shahbaz was having a cut mark on his eyebrow and it was not concealed. Thus, the test identification parade looses its credibility. It is also contended that as per the prosecution case, some sketches were got prepared from Madhukar Mishra, but the same were not produced before the Court to establish that Shahbaz had any resemblance with the sketches, which goes to show that the sketches must not be matching with that of Madhukar Mishra and that is why they were not produced before the Court.
31. It is contended that the original CPU on which the CDs were written and then from which it was transferred to another computer from where it is said to have been sent to the newspaper agencies, was not seized by the Police. It is also contended that the register in which entry of persons coming to the Cyber Cafe was maintained, was also not seized by the Police to establish that Shahbaz visited the Cyber Cafe on 14.05.2008. It (Downloaded on 11/11/2023 at 04:43:31 PM) (18 of 64) [CRLA-208/2022] is further contended that there is no evidence to the effect that the CDs were sent to Shahbaz. It is also not proved as to who sent the CD to Shahbaz. It is further contended that from the evidence of Investigating Officers, it is clear that there is no material to connect Shahbaz with the other co-accused. No material whatsoever has been recovered to suggest that Shahbaz was having any connections with the banned Organizations. There is no record that he has ever sent any incriminating material to other persons to propagate hatred or wage war against the country.
32. It is contended that Shahbaz was having his exams in the month of May itself and he cleared his B.Tech. with first division. He was employed and a missing person report was also filed by his employer, when he was secretly picked up by the ATS and taken to Jaipur. It is also contended that accused Shahbaz moved an application to the Court to subject himself to lie detector test, which was opposed by the State for the reasons best known to the prosecuting agency. It is further contended that truth would have surfaced, if Shahbaz would have been subjected to lie detector test and State i.e. the prosecution agency purposely opposed the application as it was known to them that Shahbaz had no connection whatsoever with the email, which is said to have been sent from Cyber Cafe belonging to Madhukar Mishra. It is also contended that no information has been given by Shahbaz under Section 27 of the Evidence Act and no recovery has been made from him, which would connect Shahbaz with the Jaipur Bomb Blast cases. It is further contended that the Investigating Officers have admitted in their cross-examination that they could not find (Downloaded on 11/11/2023 at 04:43:31 PM) (19 of 64) [CRLA-208/2022] any material, which would link Shahbaz with the other co-accused in these cases.
33. We have considered the contentions and have carefully perused the evidence on record with regard to accused-Shahbaz. The main CPU on which the CDs were written and from which it was transferred to the other CPU from which it was mailed, has not been seized to establish that the same was sent from the Cyber Cafe belonging to Madhukar Mishra. The absence of Madhukar Mishra at the time when the CPU was seized also raises doubt for the very reason that the Officer, who went to seize the CPU, has stated that Madhukar Mishra was not present at that time and in his presence, father of Madhukar Mishra talked to Madhukar Mishra on mobile and after inquiring from him, handed- over a CPU to the Seizing Officer. The Seizing Officer did not even talked directly to Madhukar Mishra to inquire about the CPU, which was used to load the contents of the CD and from which it was transferred to another CPU. The absence of Madhukar Mishra and his going away to his parental home also appears to be a made up story. As the mail was the first link to the bomb blasts, the Police could have waited to question him about the person who had sent the mail and would have seized the original CPU in which the CDs were written. The prosecution has thus failed to establish that the CD was given to Madhukar Mishra, he loaded the CD and had transferred it to another computer from which it was mailed.
34. The possibility of accused Shahbaz being shown to Madhukar Mishra cannot be ruled out as Shahbaz was in the custody of SOG and during the police remand, an application was moved for test identification parade. The said application was moved on 02.09.2008 and the test identification parade was scheduled on (Downloaded on 11/11/2023 at 04:43:31 PM) (20 of 64) [CRLA-208/2022] 03.09.2008. The accused remained in custody of the police on 2 nd night and possibility that he was shown to Madhukar Mishra in police custody on 2nd & 3rd and in the jail on 3 rd morning cannot be ruled out. Madhukar Mishra whose residence in the notice is shown as Sahibabad, which is at a distance of around 400 kms, was served on the same day on which the summons were issued i.e. on 02.09.2008 and he appeared in the jail on 03.09.2008. This clearly goes to show that Madhukar Mishra was in Jaipur itself where the notices were served upon him. The chances of the accused being shown to Madhukar Mishra can thus be a possibility, more particularly when Shahbaz has appeared as a defence witness and he has stated that while he was in custody of ATS/SOG, he was shown to a boy, who was wearing maroon coloured clothes and was having a cap. He has stated that the same boy came to identify him in jail, which was told to the Magistrate but, the same was not recorded and he was only asked to sign the memo.
35. Non-seizure of the register in which entries were made of the persons, who had used the Cafe on 14.05.2008, also creates doubt about the involvement of Shahbaz, since from the register it could have revealed as to who visited the Cyber Cafe to send the mail. The non-production of the sketches also casts doubt on the prosecution case, thus, the possibility that the sketches were not produced as they must not be matching with accused Shahbaz cannot be ruled out. It is also evident that Madhukar Mishra has not even given any specific details or features of the person who came to the Cyber Cafe to send the mail, thus his test identification parade and identification in Court looses credibility. (Downloaded on 11/11/2023 at 04:43:31 PM)
(21 of 64) [CRLA-208/2022]
36. It has been held by Apex Court in various cases that if a witness does not give any specific details or features of the person, who he is identifying, his identification parade looses credibility, more particularly if the test identification parade is conducted after a lapse of time. In the present case in hand, the identification parade was conducted after 3 months and 20 days of the alleged date of sending the email i.e. 14.05.2008. Thus, the identification parade by a person, who had seen the sender of the email for a short duration and who has not given any specific features, looses its credibility. Further, the test identification parade is also not strictly in accordance with the Rajasthan Police Rules as there was a cut mark on the eyebrow of Shahbaz. No effort was made by the Magistrate to conceal the mark and put a tape on the same and on the other persons, who were placed along with the accused for test identification parade.
37. It is evident that the test identification parade is the only circumstance against Shahbaz on the basis of which he has been connected with the Jaipur Bomb Blasts cases and since the test identification parade was not conducted in a proper manner, since the same was conducted after 3 months and 20 days and since there is a possibility that accused was shown to the witness prior to the test identification parade, this circumstance cannot be made a ground to hold Shahbaz guilty.
38. The trial Court has discussed in detail each and every aspect of the matter and has rightly come to the conclusion that the prosecution has utterly failed to establish that Shahbaz was the person, who sent email from Cyber Cafe at Sahibabad. The trial Court has rightly come to the conclusion that there is no evidence whatsoever to connect Shahbaz with the alleged Jaipur Bomb (Downloaded on 11/11/2023 at 04:43:31 PM) (22 of 64) [CRLA-208/2022] Blasts. It has also rightly come to the conclusion that there is no evidence to the effect that Shahbaz was having any connection with any of the accused in this case or he was having any connection with the banned Organizations. Learned trial Court has thus committed no error in acquitting accused Shahbaz from the alleged offences. We would like to add that no certificate under Section 65-B of the Evidence Act was produced to establish the receipt of mail by India TV and Aaj Tak and material witnesses Mr. A.K. Jain and Officers of News Agency were not produced to establish receipt of E-mail. The point No.2 is therefore answered in negative.
POINT NO.3- Whether Mohammad Salman, Saifoorrehman, Sarvar Azmi & Mohammad Saif along with an unknown person conspired to plant bomb at Jauhari Bazar at the crossing of Peetliyon Ka Rasta?
39. The prosecution has not adduced any evidence to establish as to who was the person who had planted the bombs at Jauhari Bazar at the crossing of Peetliyon Ka Rasta. The prosecution has also not adduced any evidence as to from where the cycle was purchased and who was the seller of the cycle. A period of 15 years has lapsed since the blast took place and till date, the prosecution is groping in the dark as to the person who had planted the bombs.
40. As per the learned Additional Government Advocate, since one bomb each was planted by the accused Mohammad Saif, Saifurrehman, Mohammad Sarvar Azmi and Mohammad Salman, their involvement in the conspiracy is writ large. Before dealing with the role of each accused in this case, it is pertinent to quote (Downloaded on 11/11/2023 at 04:43:31 PM) (23 of 64) [CRLA-208/2022] the statement of Satyendra Singh Ranawat, who has stated before the Court that ";g lgh gS fd eksgEen lSQ us nkSjkus fgjklr ;g ugha crk;k fd fdlh Hkh vfHk;qDrx.k us dgka ls lkbZfdy [kjhnhA ;g dguk xyr gS fd eksgEen lSQ us viuh lwpuk esa ;g ugha crk;k gks fd veqd eqfYte us veqd txg ce IykUV fd;s gksaA ;g lgh gS fd eksgEen lSQ dh lwpuk ds vykok bl ekeys esa vU; dksbZ lk{; ugha gS] bl ekeys esa vHkh rQrh'k tkjh gSA"
Thus, as per the Investigating Officer except for the disclosure statement of Mohammad Saif, there was no material with regard to the present bomb blasts. The disclosure statement as made by Mohammad Saif mentioned the names of nine persons, who as per the statement, went with Mohammad Saif to Jaipur on 11.05.2008 to do 'Reki', returned on 11.05.2008 itself, made bombs at Batla House, Delhi on 12.05.2008, came to Jaipur on 13.05.2008, purchased cycles and after planting bombs returned by Shatabdi Express on the same day. In the disclosure statement, only names of the accused were mentioned. The names mentioned therein are common muslim names. The parentage of the persons, their residence, age or any other description was not mentioned. This disclosure statement at most can be considered to be a confession, which is recorded by the police and is thus hit by Sections 25 and 26 of the Evidence Act.
No fact as such was discovered in pursuance of this disclosure statement, hence, the same cannot be read in evidence. Since Satyendra Singh Ranawat had admitted that except for the disclosure statement, there is no evidence in the case and the matter is still pending investigation and since we have concluded (Downloaded on 11/11/2023 at 04:43:31 PM) (24 of 64) [CRLA-208/2022] that the disclosure statement at most can be considered to be a confession made to the police and is hit by Sections 25 and 26 of the Evidence Act, the same becomes inadmissible in evidence and the entire prosecution case falls. None of the accused was arrested in pursuance of the said disclosure statement of Mohammad Saif and as such the same cannot be used by the prosecution under Section 27 of the Evidence Act.
41. The entire case of the prosecution as per the charges levelled is that the present accused conspired with an unknown person and as per the learned Additional Government Advocate, since bomb blasts took place within a span of twenty minutes and one bomb each was planted by the accused, the conspiracy is established. We may make it clear that in the present Sessions Case, there was no charge with regard to planting of the bombs at different sites against the accused appellant(s), however, to establish that they conspired with an unknown person, evidence was recorded by the trial Court. The accused-appellants were represented by an Amicus Curiae and no objection was raised by them at the time of recording of the statement. Hence, we deem it appropriate to consider the evidence recorded for the purpose of disposal of the present appeal.
42. Sessions Case No.07/2010 pertains to the bomb blasts, which took place at Jauhari Bazar at the crossing of Pitaliyon Ka Rasta. Similar charges were read over to all the accused. It would be relevant to quote the charges, which were read over to the appellants, as under:
"¼01½ fd fnukad 13-05-2008] 12-05-2008 o blls dqN fnu iwoZ vki vfHk;qDr eksgEen lyeku] 'kgckt gqlSu] ekSgEen lSQ] vkfjt [kak] (Downloaded on 11/11/2023 at 04:43:31 PM) (25 of 64) [CRLA-208/2022] fetkZ 'kknkc csx] cM+k lkftn] NksVk 'kkftn] eksgEen ljoj vkteh] eksgEen [kkfyn] eksgEen vkfrQ vehu vkfn us feydj vkilh lgefr } kjk t;iqj 'kgj tkSgjh cktkj] ihrfy;ksa ds jkLrs ds uqDdM+ ij foLQksV dj ogka mifLFkr yksxksa dh gR;k djus] mUgsa migfr dkfjr djus vkSj mudh laifRr dks {kfr igqapkus] vkrad QSykus] Hkkjr ljdkj ds fo:) ;q) djus o ljdkj dks cyiqoZd vkrafdr djus vkfn tks voS/k dk;Z Fks] dk "kM~;a= jpk rFkk mDr dk;ksZa ds fy, vkilh lgefr ls ce cukus gsrq vkids ,d lkFkh us nsgyh ls ce esa iz;ksx djus ds fy, NjsZ [kjhns ,oa vU; lkfFk;ksa ls ce dk fuekZ.k dj fnukad 12-05-2008 dks t;iqj esa jSdh djus ds ckn fnukad 13-05-2008 dks mDr LFkku tkSgjh cktkj] ihrfy;ksa ds jkLrs ds uqDdM+ esa foLQksV Hkh fd;k rFkk fnukad 14-05-2008 dks vkids lkFkh 'kkgckt gqlSu us Vhoh pSuyksa dks bZ&esy rFkk ohfM;ks fDyfiax Hkst dj mDr ce foLQksV dh ftEesnkjh yhA ,rn~}kjk vkius Hkkjrh; n.M lafgrk dh /kkjk 120&ch ds rgr naMuh; vijk/k fd;kA ¼02½ fd fnukad 13-05-2008 dh 'kke dks 7-20 cts ;k mlds yxHkx mjksDr "kM~;a= ds vuqlj.k esa vkids ,d lkFkh vfHk;qDr us tkSgjh cktkj] ihrfy;ksa ds jkLrs ds uqDdM+ ij lkbfdy ij ce j[kdj mlesa foLQksV djokdj dqy 07 O;fDr Jhefr lugsjk] lqJh vLek ckuks] lqJh ,uh [kku] Hkxorh nsoh] jkeohj flga] Hkwous'ojh mQZ fMEiy] e/kqj vjksM+k dh e`R;q dkfjr dhA ,rn~)kjk vki vfHk;qDrx.k us Hkkjrh; n.M lafgrk dh /kkjk 302 ;k 302@120ch ds rgr naMuh; vijk/k fd;kA ¼03½ fd mi;qZDr fnukad] le; o LFkku ij mi;qZDr "kM~;= a ds vuqlj.k esa vkids ,d lkFkh vfHk;qDr us tkSgjh cktkj] ihrfy;ksa ds jkLrs ds uqDdM+ ij lkbfdy ij cSx esa ce j[kdj mlesa foLQksV djokdj ogka mifLFkr NqV~Vu [kku] eqUuk iq= ghjkyky] fd'ku iq= /keZnkl] fouksn flag iq= NksVw flag] 'kckuk iq= eqLrQk] ljQqn~nhu iq= 'keqn~nhu] jktw iq= xksfoan] Hkokuh 'kadj iq= jkedY;k.k 'kekZ] /khjt iq= dUgS;kyky] izgykn 'kekZ iq= gjlk;] j?kqohj iq= jkethyky] vkj-,u 'kekZ iq= ,e-ih 'kekZ] vk'kqrks"k 'kekZ] lat; iq= f'koizlkn] lquhy iq= ghjkpan] :ipan] xQ~Qkj iq= vCnqy lRrkj] jkeohj flag] ukjk;.k] gqDepan iq= nqxkZyky] 'kadjyky iq= Fkkojnkl vkfn ds foLQksV ls fudys NjksZa ls migfr;ka dkfjr dhA ;fn mDr O;fDr;ksa dh foLQksV esa vkbZ pksVksa ls e`R;q gks tkrh rks vki o vkids lkFkh mudh gR;k ds nks"kh gksrsA bl izdkj vkius gR;k dk iz;Ru djus dk vijk/k fd;kA ,rn~)kjk vki vfHk;qDrx.k us Hkkjrh; n.M lafgrk dh /kkjk 307 ;k 307@ch ds rgr naMuh; vijk/k fd;kA ¼04½ fd mi;ZqDr fnukad] le; o LFkku ij mi;qZDr "kM~;= a ds vuqlj.k esa vkids ,d lkFkh vfHk;qDr us lkbfdy ij cSx esa ce j[kdj mlesa foLQksV djokdj ogka mifLFkr eqUuk iq= ghjkyky] fd'ku iq= /keZnkl] 'kckuk iq= eqLrQk] ljQqn~nhu] jktw] Hkokuh'kadj] /khjt] izgykn 'kekZ] vk'kqrks"k 'kekZ] lat;] lquhy] :ipan] xQ~Qkj vkfn ds foLQksV ls fudys NjksZa ls xaHkhj migfr;ka dkfjr dhA ,rn~)kjk foLQksVd tSls ?kkrd inkFkZ ls mi;qZDr yksxksa ds xaHkhj migfr;ka LosPN;k dkfjr dj vki vfHk;qDrx.k us Hkkjrh; n.M lafgrk dh /kkjk 326 ;k 326@120ch ds rgr naMuh; vijk/k fd;kA ¼05½ fd mi;qZDr fnukad] le; o LFkku ij mi;qZDr "kM~;= a ds vuqlj.k esa vkids ,d lkFkh vfHk;qDr us lkbfdy ij cSx esa ce j[kdj foLQksV djds ogka mifLFkr NqV~Vu] fouksn flag] j?kqohj] vkj-,l-'kekZ] jkeohj] ukjk;.k] gqDepan] 'kadjyky vkfn ds foLQksV ls fudys NjksZa ls (Downloaded on 11/11/2023 at 04:43:31 PM) (26 of 64) [CRLA-208/2022] LosPN;kiwoZd lk/kkj.k pksVsa dkfjr dhA ,rn~)kjk foLQksVd tSls ?kkrd inkFkZ ls mi;qZDr yksxksa ds xaHkhj migfr;ka LosPN;k dkfjr dj vki vfHk;qDrx.k us Hkkjrh; n.M lafgrk dh /kkjk 324 ;k 324@120&ch ds rgr naMuh; vijk/k fd;kA ¼06½ fd mi;qZDr fnukad] le; o LFkku ij mi;qZDr "kM~;= a ds vuqlj.k esa vkids ,d lkFkh eqyfte us mi;qZDr LFkku ij lkbfdy ij ce cSx esa j[kdj foLQksV djk;k ,oa ,d ek:fr dkj] ekSds ij j[kh lkbfdysa rFkk nqdkuksa o Bsyksa ds lkeku vkfn dks {kfrxzLr dj 50@&#i;s ls vf/kd dk mUgsa uqdlku djrs gq, fj"Vh dkfjr dhA ,rn~)kjk vki vfHk;qDrx.k us Hkkjrh; n.M lafgrk dh /kkjk 427 ;k 427@120ch ds rgr naMuh; vijk/k fd;kA ¼07½ fd mi;qZDr fnukad] le; o LFkku ij mi;qZDr "kM~;= a ds vuqlj.k esa Hkkjr ljdkj ds fo:) djus ;k mldk iz;Ru djus] dsUnzh; ljdkj dks o jkT; ljdkj dks vkijkf/kd cy dk izn'kZu dj vkrafdr djus gsrq vkids ,d lkFkh vfHk;qDr us lkbfdy ij cSx esa ce j[kdj foLQksV djkdj Hkkjr ds fo:) ;q) djus dk o dsUnzh;@jkT; ljdkj dks vkijkf/kd cy ds fgald izn'kZu }kjk vkrafdr djus dk d`R; fd;kA ,rn~)kjk vki vfHk;qDrx.k us Hkk-n-la- dh /kkjk 121, ds rgr n.Muh; vijk/k fd;kA ¼08½ fd mi;qZDr fnukad] le; o LFkku ij mi;qZDr "kM~;= a ds vuqlj.k esa mi;qZDr lkfFk;ksa ds lkFk feydj vkilh lgefr ls Hkkjr esa fof/k }kjk LFkkfir ljdkj ds izfr ?k`.kk] voeku iSnk djus gsrq vkids ,d lkFkh eqyfte us lkbfdy ij ce cSx esa j[kdj foLQksV djds Hkkjr esa fof/k }kjk LFkkfir ljdkj ds izfr ?k`.kk ;k voeku dh fLFkfr mRiUu dh ,rn~)kjk vki vfHk;qDrx.k us Hkkjrh; n.M lafgrk dh /kkjk 124 ;k 124, lifBr /kkjk 120ch ds rgr naMuh; vijk/k fd;kA ¼09½ fd mi;qZDr fnukad] le; o LFkku ij mi;qZDr "kM~;= a ds vuqlj.k esa mi;qZDr lkfFk;ksa ds lax lger gksdj mDr LFkku ij fofHkUu leqnk;ksa ds chp 'k=qrk] ?k`.kk] vlkSgknZ ;k oSeuL; /keZ ds vk/kkj ij mRiUu djus gsrq vkids ,d lkFkh eqyfte us lkbfdy ij cSx esa ce j[kdj foLQksV djokdj fofHkUu /kkfeZd leqnk;ksa esa vkilh lkSgknZ fcxkM+k rFkk 'kkafr Hkax dh ftlds dkj.k d¶Z;w yxkuk iM+kA ,rn~)kjk vki vfHk;qDrx.k us Hkkjrh; n.M lafgrk dh /kkjk 153, ;k 153, lifBr /kkjk 120ch ds rgr naMuh; vijk/k fd;kA ¼10½ fd mi;qZDr fnukad] le; ij vius mi;qZDr lkfFk;ksa ds lax feydj mi;qZDr LFkku ij fLFkr lkoZtfud laifRr dks {kfr igqapkus ds vk'k; ls vkilh lgefr }kjk mi;qZDr vkijkf/kd "kM~;a= ds rgr rFkk mlds vuqlj.k esa vkids lkFkh eqyfte eksgEen lyeku us ogka lkbfdy ij cSx esa ce j[kdj foLQksV djk;k o mDr lkoZtfud laifRr dks uqdlku igqapkdj fjf"V dkfjr dhA ,rn~}kjk vki vfHk;qDrx.k us /kkjk 3 yksd laifRr uqdlku ¼fuokj.k½ vf/kfu;e 1984 lifBr /kkjk 120ch Hkkjrh; n.M lafgrk ds varxZr n.Muh; vijk/k fd;kA ¼11½ vkius mDr fnukad dks mDr le; mDr LFkku ij vius mDr lkfFk;ksa lax foLQksVd inkFkZ }kjk ogk¡ mifLFkr yksxksa ds thou o lEifRr dks tksf[ke esa Mkyus dk vkilh lgefr ls mi;qZDr vkijkf/kd "kM~;a= jpk vkSj ftlds vuqlj.k esa vkids ,d lkFkh eqyfte us mDr txg lkbfdy ij cSx esa ce yxkdj foLQksV djk;k o ogka mifLFkr ekuo thou ,oa laifRr dks xaHkhj {kfr dkfjr dhA ,rn~)kjk vki vfHk;qDrx.k us /kkjk 3 (Downloaded on 11/11/2023 at 04:43:31 PM) (27 of 64) [CRLA-208/2022] foLQksVd inkFkZ vf/kfu;e] 1908 lifBr /kkjk 120&ch Hkkjrh; n.M lafgrk ds rgr n.Muh; vijk/k fd;kA ¼12½ fd mi;qZDr fnukad] le; rFkk mi;qZDr LFkku ij vkius mDr lkfFk;ksa ds lax foLQksVd }kjk foLQksV dkfjr dj ogka ds ekuo thou ;k laifRr dks tksf[ke esa Mkyus dk mi;qZDr vkijkf/kd "kM~;a= jpk vkSj ftlds vuqlj.k esa vkids ,d lkFkh eqyfte us cSx esa ce j[kdj ml ij fu;a=.k j[krs gq, foLQksV djok;kA ,rn~)kjk vki vfHk;qDrx.k us /kkjk 4 foLQksVd inkFkZ vf/kfu;e 1908 lifBr /kkjk 120&ch Hkkjrh; n.M lafgrk esa n.Muh; vijk/k fd;kA ¼13½ vkius mDr fnukad dks mDr le; mDr LFkku ij vius mDr lkfFk;ksa lax ce foLQksV djus dk vkijkf/kd "kM~;a= jprs gq, mlds vuqlj.k esa vkids ,d lkFkh eqyfte us lafnX/k ifjfLFkfr;ksa esa foLQksVd inkFkZ vius ikl j[krs gq, lkbfdy ij cSx esa ce yxkdj foLQksV djk;kA ,rn~)kjk vki vfHk;qDrx.k us /kkjk 5 foLQksVd inkFkZ vf/kfu;e 1908 lifBr /kkjk 120ch Hkkjrh; n.M lafgrk esa n.Muh; vijk/k fd;kA ¼14½ fd mi;qZDr fnukad] le; rFkk mi;qZDr LFkku ij vkius mi;qZDr lkfFk;ksa ds lkFk ea=.kk dj foLQksVd }kjk foLQksV djus dh ;kstuk cukbZ rFkk vkidh vkSj vkids lkfFk;ksa dh ea=.kk ls nq"izsfjr gksdj mDr LFkku ij vkids ,d lkFkh eqyfte us cSx esa ce j[kdj foLQksV djok;kA vkius /kkjk 6 foLQksVd inkFkZ vf/kfu;e 1908 esa n.Muh; vijk/k fd;kA ¼15½ fd mi;ZqDr fnukad] le; rFkk mi;qZDr LFkku ij vius mi;qZDr lkfFk;ksa ds lax LVwMsUV bLykfed ewesUV vkWQ bf.M;k (SIMI) dk lnL; jgdj mldh fo/oaldkjh xfrfof/k;ksa esa fgLlk fy;k tcfd mi;qZDr laxBu dks dsUnzh; ljdkj us vf/klwpuk fnukad 27&12&2001 } kjk fof/k fo:) laxBu ?kksf"kr dj j[kk gSa fQj Hkh ,sls laxBu ds lfØ; lnL; jgdj vkius /kkjk 3@10 fof/k fo:) fØ;kdyki ¼fuokj.k½ vf/kfu;e] 1967 ls n.Muh; vijk/k fd;kA ¼16½ fd mi;qZDr fnukad] le; rFkk mi;qZDr LFkku ij vius mi;qZDr lkfFk;ksa ds lax dsUnzh; ljdkj ls izfrcaf/kr laxBu flfe dk lnL; jgdj ce foLQksV djds Hkkjr esa nzksg tSlh fof/k fo:) dk;Zokgh mDr LFkku ij djus ds fy;s lger gksdj mi;qZDr vkijkf/kd "kM~;a= jpk vkSj ,slh fof/k fo:) dk;Zokgh dk i{k leFkZu fd;k ,oa nq"izsj.k fd;kA ,slk djds vkius /kkjk 13 fof/k fo:) fØ;kdyki ¼fuokj.k½ vf/kfu;e] 1967 ls n.Muh; vijk/k fd;kA ¼17½ fd mi;qZDr fnukad] le; rFkk mi;qZDr LFkku ij vius mi;qZDr lkfFk;ksa ds lax flfe tSls vkardoknh laxBu dk lnL; jgdj mDr LFkku ij vkradoknh dk;Zokgh ce foLQksV djus dk vkilh lgefr ls "kM~;a= cuk;k vkSj ml "kM~;a= ds vuqlj.k esa vkids ,d lkFkh eqyfte us mDr LFkku ij lkbfdy esa cSx esa ce j[kdj foLQksV djk;k ftlls 07 O;fDr;ksa Jhefr lqesjk vkfn dh e`R;q gqbZA vkidk ;g d`R; /kkjk 16¼1½, fof/k fo:) fØ;kdyki ¼fuokj.k½ vf/kfu;e] 1967 ;k /kkjk 16¼1½, fof/k fo:) fØ;kdyki ¼fuokj.k½ vf/kfu;e] 1967 lifBr /kkjk 120&ch Hkkjrh; n.M lafgrk ls n.Muh; vijk/k gSA ¼18½ fd mi;qZDr fnukad] le; rFkk mi;qZDr LFkku ij vius mi;qZDr lkfFk;ksa ds lax ce foLQksV tSls vkraoknh dk;Z djus dk vkilh lgefr ls vkijkf/kd "kM~;a= fd;k o mldk i{kiks"k.k fd;k rFkk mlds vuqlj.k esa ce foLQksV djds /kkjk 18 fof/k fo:) fØ;kdyki ¼fuokj.k½ (Downloaded on 11/11/2023 at 04:43:31 PM) (28 of 64) [CRLA-208/2022] vf/kfu;e] 1967 ls n.Muh; vijk/k dkfjr fd;kA ¼19½ fd mi;qZDr fnukad] le; rFkk mi;qZDr LFkku ij vius mi;qZDr lkfFk;ksa ds lax vkradoknh ?kksf"kr laxBu flfe ds lnL; jgs vkSj ce foLQksV tSlh vkraoknh dk;Zokgh esa fyIr jgsA vkidk ;g d`R; /kkjk 20 fof/k fo:) fØ;kdyki ¼fuokj.k½ vf/kfu;e 1967 ls n.Muh; vijk/k gSA ¼20½ vki mi;qZDr fnukad dks mi;qZDr le; mi;qZDr LFkku ij vius mDr lkfFk;ksa lax bLykfed ewesUV vkWQ bf.M;k tks fd dsUnzh; ljdkj } kjk vkradoknh laxBu ?kksf"kr dj fof/k fo:) fØ;kdyki fuokj.k vf/kfu;e] 1967 dh vuqlwph esa vkradoknh laxBu n'kkZ j[kk gS] blds ckotwn ,sls vkradoknh laxBu n'kkZ j[kk gS] blds ckotwn ,sls vkradoknh laxBu ls vius mDr lkfFk;ksa lax lgc) jgs vkSj ce foLQksV tSlh dk;Zokgh dhA vkidk ;g d`R; /kkjk 38 fof/k fo:) fØ;k dyki ¼fuokj.k½ vf/kfu;e 1967 ls n.Muh; vijk/k gSA"
43. A perusal of the record reveals that similar charges were read over to all the accused appellants in this case as well as Shahbaz Ahmed. In the charges that has been read over to the accused, it is mentioned that at 7:20 pm on 13.05.2008, in pursuance of the conspiracy, one of the co-accused placed a bomb on the cycle at Jauhari Bazar at the crossing of Pitaliyon Ka Rasta. Name of the person, who had placed the bomb, is not mentioned in the charges and from the judgment also, it is not revealed as to who was the person, who in fact planted the bomb at Jauhari Bazar at the crossing of Pitaliyon Ka Rasta. From the judgment, it is also revealed that the investigation is still pending against unknown persons under Section 173(8) of Cr.P.C.
44. A bare reading of the charges reveals that Sessions Case No.07/2010 pertains only to the bomb blasts which took place at Jauhari Bazar crossing of Pitaliyon Ka Rasta and charges also pertained to that single bomb blasts. However, the learned trial Court extended the scope of the trial and without there being any specific charges with regard to the other bomb blasts, permitted recording of evidence with regard to the other bomb blasts for which there was no specific charge in the present sessions case. (Downloaded on 11/11/2023 at 04:43:31 PM)
(29 of 64) [CRLA-208/2022]
45. From the perusal of the judgment, it is revealed that the trial Court instead of dealing with the charges which were pertaining to a bomb blasts by a co-partner in crime, went beyond the scope of the charges and permitted adducing of evidence with regard to the other bomb blasts, which took place in Jaipur on that date, for which, separate charge-sheets were filed and on the basis of the evidence pertaining to other bomb blasts, came to the conclusion that the accused appellants are co-conspirators in the crime and are also responsible for the bomb blasts which took place at Jauhari Bazar.
46. We are of the considered view that the trial Court could not have travelled beyond the charges and has thus, committed grave illegality in deciding the sessions case. The purpose of reading over the charges to an accused in a criminal trial is to make him aware, as to what the charges are against him and what trial, he will be facing in the case. In the present case, the charges, which were read over, related only to the bomb blasts which took place at Jauhari Bazar crossing of Pitaliyon Ka Rasta and there was no charge with regard to the other bomb blasts, which took place at Jaipur.
47. The perusal of charge No.10, which was read over to all the accused appellants in this case, which is for the purpose of clarity being reproduced again hereunder:
"¼10½ fd mi;qZDr fnukad] le; ij vius mi;qZDr lkfFk;ksa ds lax feydj mi;qZDr LFkku ij fLFkr lkoZtfud laifRr dks {kfr igqapkus ds vk'k; ls vkilh lgefr }kjk mi;qZDr vkijkf/kd "kM~;a= ds rgr rFkk mlds vuqlj.k esa vkids lkFkh eqyfte eksgEen lyeku us ogka lkbfdy ij cSx esa ce j[kdj foLQksV djk;k o mDr lkoZtfud laifRr dks uqdlku igqapkdj fjf"V dkfjr dhA ,rn~}kjk vki vfHk;qDrx.k us /kkjk 3 yksd laifRr uqdlku ¼fuokj.k½ vf/kfu;e 1984 lifBr /kkjk 120ch Hkkjrh; n.M lafgrk ds varxZr n.Muh; vijk/k fd;kA"(Downloaded on 11/11/2023 at 04:43:31 PM)
(30 of 64) [CRLA-208/2022] The charge mentions about Mohammad Salman having placed the cycle on the disputed spot pertaining to this case, however, there is no evidence whatsoever on the part of the prosecution to establish that Mohammad Salman had placed the cycle with bomb at Jauhari Bazar Pitaliyon Ka Rasta. The charge that was read over was thus not proved before the Court. The perusal of the charges also reveal that the entire charges relate to some conspiracy having been hatched between the appellants and the unknown person, who had placed the bomb at Jauhari Bazar, but there is no evidence adduced in this case that the accused appellants had any connection with the person, who had placed the bomb at Jauhari Bazar. In fact, in the entire trial, even the name of the person, who had placed the bomb at Jauhari Bazar, was not revealed and there is no evidence adduced before the Court as to who placed the bomb at Jauhari Bazar Pitaliyon Ka Rasta Crossing. As per the judgment also, the matter is still under investigation under Section 173(8) of Cr.P.C.
48. The charges thus related to Salman, however, from the entire evidence on record, it is not revealed that there is any statement of any witness that Salman placed the bomb at Jauhari Bazar. Even the seller of the bicycle has not turned up to depose as to who had purchased the cycle from his shop. The prosecution has utterly failed to adduce any evidence with regard to the bomb blasts which took place at Jauhari Bazar, the person who had planted the bomb, the person who had sold the bicycle and the person who had purchased the bicycle. The trial Court has gone beyond the scope of the charges in dealing with the role of the (Downloaded on 11/11/2023 at 04:43:31 PM) (31 of 64) [CRLA-208/2022] present appellants in the bomb blasts which had taken place at different spots in Jaipur.
49. In the present case in hand, the charges against the appellants pertains to conspiring with an unknown person for causing bomb blasts at Peetliyon Ka Rasta, Jauhari Bazar. Since the present appeal pertains only to the conviction on account of criminal conspiracy, it would be appropriate to deal with the law cited by the counsel for the parties in this case:
I. Learned Additional Government Advocate has placed reliance on Firozudeen Basheerudin & Ors. Versus State of Kerala: (2001) 7 SCC 596 wherein it was held as under:
"23. Like most crimes, conspiracy requires an act (actus reus) and an accompanying mental state (mens rea).
The agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state. In the face of modern organised crime, complex business arrangements in restraint of trade, and subversive political activity, conspiracy law has witnessed expansion in many forms. Conspiracy criminalizes an agreement to commit a crime. All conspirators are liable for crimes committed in furtherance of the conspiracy by any member of the group, regardless of whether liability would be established by the law of complicity. To put it differently, the law punishes conduct that threatens to produce the harm, as well as conduct that has actually produced it. Contrary to the usual rule that an attempt to commit a crime merges with the completed offense, conspirators may be tried and punished for both the conspiracy and the completed crime. The rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interests of security, a person may carry out his part of a conspiracy without even being informed of the identify of his co- conspirators. Since an agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of co-operation between the (Downloaded on 11/11/2023 at 04:43:31 PM) (32 of 64) [CRLA-208/2022] accused. What people do is, of course, evidence of what lies in their minds. To convict a person of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy.
25. Conspiracy is not only a substantive crime. It also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a casual agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendant's liability than the fact that the crime was performed as a part of a larger division of labor to which the accused had also contributed his efforts.
26. Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions an declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co- conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Explaining this rule, Judge Hand said:
"Such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime. When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made 'a partnership in crime'. What one does pursuant to their common purpose, all do, and as declarations may be such acts, they are competent against all (Van Riper v. United States 13 F.2d 961, 967, (2d Cir. 1926). "
27. Thus conspirators are liable on an agency theory for statements of co-conspirators, just as they are for the overt acts and crimes committed by their confreres." (Downloaded on 11/11/2023 at 04:43:31 PM)
(33 of 64) [CRLA-208/2022] II. Reliance is also placed on State of Maharashtra Versus Somnath Thapa & Ors.: (1996) 4 SCC 659 wherein the Court has held as under:
"23. Our attention is pointedly invited by Shri Tulsi to what was stated in para 24 of Ajay Aggarwal's case wherein Ramaswamy, J. stated that the law has developed several or different models or technique to broach the scope of conspiracy. One such model is that of a chain, where each party performs even without knowledge of the other, a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. The illustration given was what is done in the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the globe. In such a case, smugglers, middlemen, retailers are privies to a single conspiracy to smuggle and distribute narcotics. The smugglers know that the middlemen must sell to retailers; and the retailers know that the middlemen must buy from importers. Thus the conspirators at one end at the chain know that the unlawful business would not, and could not, stop with their buyers, and those at the other end know that it had not begun with their settlers. The action of each has to be considered as a spoke in the hub - there being a rim to bind all the spokes together in a single conspiracy.
24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."(Downloaded on 11/11/2023 at 04:43:31 PM)
(34 of 64) [CRLA-208/2022] III. Reliance is also placed on Mohammad Usman Mohammad Hussain Maniyar & Ors. Versus State of Maharashtra: (1981) 2 SCC 443 wherein it has been held as under:
"17. Now to turn to the conviction under Section 120B of the Penal Code. Section 120B provides: 120B. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable.... 'Criminal conspiracy' has been defined under Section 120A of the Penal Code as follows:
120 A. When two or more persons agree to do, or cause to be done-(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some fact besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object, The contention of learned Counsel is that there is no evidence of agreement of the appellants to do an illegal act.
It is true that there is no evidence of any express agreement between the appellants to do or cause to be done the illegal act. For an offence under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication. In this case, the fact that the appellants were possessing and selling explosive substances without a valid licence for a pretty long time leads to the inference that they agreed to do and/or cause to be done the said illegal act, for, without such an agreement the act could not have been done for such a long time."
IV. Reliance is next placed on Chamanlal & Ors. Versus State of Punjab & Anr.: (2009) 11 SCC 721 wherein the elements of criminal conspiracy was explained as under:
"The elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or (Downloaded on 11/11/2023 at 04:43:31 PM) (35 of 64) [CRLA-208/2022] scheme embodying means to accomplish that object,
(c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act.
The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See American Jurisprudence, Vol. II, Section 23, p. 559.) For an offence punishable under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or caused to be done an illegal act; the agreement may be proved by necessary implication. The offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means." V. On the other hand, learned counsel appearing for the accused has placed reliance on Kehar Singh & Ors. Versus State (Delhi Administration): (1988) 3 SCC 609 wherein it was held as under:
(Downloaded on 11/11/2023 at 04:43:31 PM)
(36 of 64) [CRLA-208/2022] "274. It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to secs. 120-A and 120-BIPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy.
275. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same and or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter is. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.Gerald Orchard of University of Canterbury, New Zealand 1974 C L R 297 explains the limited nature of this proposition:
Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties "actually came together' and agreed in terms" to pursue the unlawful object; there need ever have been an express verbal agreement, it being sufficient that there was "a tacit understanding between conspirators as to what should be done.
276. I share this opinion, but hasten to add that the relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be (Downloaded on 11/11/2023 at 04:43:31 PM) (37 of 64) [CRLA-208/2022] inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. We must thus be strictly on our guard."
VI. Reliance is also placed on State of Kerela Versus P. Sugathan & Ors.: (2000) 8 SCC 203 wherein it has been held by the Court as under:
"12. We are aware of the fact that direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. The inferences are normally deduced from acts of parties in pursuance of purpose in common between the conspirators. This Court in V.C. Shukla v. State MANU/SC/0545/1980 : (1980)2SCC665 held that to prove criminal conspiracy there must be evidence direct or circumstantial to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances giving rise to a conclusive or irresistible inference of an agreement between the two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy."(Downloaded on 11/11/2023 at 04:43:31 PM)
(38 of 64) [CRLA-208/2022] VII. Reliance is also placed on P.K. Narayan Versus State of Kerela: (1995) 1 SCC 142 wherein it was held as under:
"10. The ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. Therefore the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. But if those circumstances are compatible also with the innocence of the accused persons then it can not be held that the prosecution has successfully established its case. Even if some acts are proved to have been committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it can not be said that those circumstances are incapable of any other reasonable interpretation."
VIII. Reliance is further placed on Central Bureau of Investigation, Hyderabad Versus K. Narayana Rao: (2012) 9 SCC 512 wherein it has been held as under:
20. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter (Downloaded on 11/11/2023 at 04:43:31 PM) (39 of 64) [CRLA-208/2022] of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence."
IX. Further, reliance is placed on State Versus Mohd. Afzal & Ors.: 2003 SCC Online Del 935 wherein it has been held as under:
211. A conspiracy is a march under a banner. The very agreement, concert or league is the ingredient, of the offence like most crimes, conspiracy requires an act (actus reus) and an accompanying mental State (mens rea). From the definition of conspiracy in Section 120-A, it is evident that the agreement constitutes the act and the intention to achieve unlawful object constitutes the mental State . All conspirators are liable for the crimes committed in furtherance of the conspiracy besides being liable for committing an offence of conspiracy itself. Pertaining to conspiracy, law punishes conduct that threats to produce the harm as well as the conduct that actually produces the harm. In this, lies the difference between the offence of conspiracy and general penal offences. In case of general offences, attempt to commit a crime merges when the crime is completed but in case of conspiracy, punishment is for both, the conspiracy and the completed crime. This distinctiveness of the offence of conspiracy makes all conspirators as agents of each other. Conspiracy, Therefore, criminalizes the agreement to commit a crime. Inherently, conspiracy is a clandestine activity.
Its covenants are not formed openly. It has to be inferred from circumstantial evidence of co-operation.
212. If conspiracies are hatched in the darkness of secrecy and direct evidence is seldom forthcoming and (Downloaded on 11/11/2023 at 04:43:31 PM) (40 of 64) [CRLA-208/2022] if the offence is to be proved in relation to the acts, deeds or things done by the co-conspirators, the question would arise as to what is the nature of these acts, deeds or things. Is merely moving around together or seen in each other's company sufficient? If not, what more should be there from which it could be inferred that the conspirators were acting to achieve the desired offence in furtherance of a crime.
213. A charge of conspiracy, inherently causes prejudice to an accused because it forces him into a joint trial and the entire mass of evidence against all the accused persons is presented for consideration of the court. This prejudice may get compounded when prosecutors seek to sweep within the dragnet of conspiracy all those, who have been associated in any degree whatsoever with the main offenders. But the prosecution also has a difficulty at hand. It is difficult for it to trace the exact contribution of each member of a conspiracy besides, direct evidence is seldom forthcoming. In the judgment MANU/SC/0451/1996: 1996CriLJ2448, State of Maharashtra and Ors. v. Som Nath Thapa and Ors., the Hon'ble Supreme Court illuminating on this grey area, observed that for a person to conspire with another, he must have knowledge of what the co-conspirators were wanting to achieve and thereafter having the intent to further the illegal act takes recourse to a course of conduct to achieve the illegal end or faciliState its accomplishment. Except for extreme cases, intent could be inferred from knowledge for example whether a person was found in possession of an offending article, no legitimate use of which could be done by the offender. To illustrate, a person is found in possession of 100 Kg. of RDX, is proved to be visiting or visited by "A" against whom there is a charge of conspiring to blow up a public place. Here, the recovery of the offending article would be enough to infer a charge of conspiracy. However, such instances apart, it was held that law would require something more. This something more would be a step from knowledge to intent. This was to be evidenced from informed and interested cooperation, simulation and instigation. The following passage from People v. Lauria 251, California APP 2 (d) 471 was cited.
"All articles of commerce may be put to illegal ends, but all do not have inherently the same susceptibility to harmful and illegal use....This different is important for two purposes. One is for making certain that the seller knows the buyer's intended illegal use. The other is to show that by the same he intends to further promote (Downloaded on 11/11/2023 at 04:43:31 PM) (41 of 64) [CRLA-208/2022] and cooperate in it. This intent, when given effect by overt act, is the gist of conspiracy. While it is not identical with mere knowledge that another proposes unlawful action, it is not unrelated to such knowledge.... The step from knowledge to intent and agreement may be taken. There is more than suspicion, more than knowledge, acquiescence, carelessness, indifferent, lack of concern. There is informed and interested cooperation, simulation, instigation."
214. Thus, the proof of offence of conspiracy would require in most cases some kind of physical manifestation of agreement. The physical manifestations may not be proved by overt acts but may be evidenced by conscience acts or conduct of parties and reasonably clear to mark their concurrence. Where evidence is clear, offence of conspiracy may be proved by necessary implications. Innocuous, innocent or inadvertent acts and events should not enter the judicial verdict. The court must be cautious not to infer agreement from a group of irrelevant facts carefully arranged so as to give an assurance of coherence. Since more often than not conspiracy would be proved on circumstantial evidence, four fundamental requirements as laid down as far back as in 1881 in the judgment reported 60 years later at the suggestion of Rt. Hon'ble Sir Tej Bahadur Sapru 1941 All ALJR 416, Queen Empress v. Hoshhak may be re-emphasised:-
1. that the circumstances from which the conclusion is drawn be fully established;
2. that all the facts should be consistent with the hypothesis;
3. that the circumstances should be of a conclusive nature and tendency;
4. that the circumstances should, by a moral certainty, actually exclude every hypothesis but the one proposed to be proved."
50. From the judgments referred to herein-above, it is evident that to bring home the offence of criminal conspiracy, there must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and when the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a (Downloaded on 11/11/2023 at 04:43:31 PM) (42 of 64) [CRLA-208/2022] conclusive or irresistible inference of an agreement between two or more persons to commit an offence. The prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances when taken together on their face value should indicate the meeting of the minds between conspirators for they intended object of committing an illegal act.
It can also be inferred from the judgments cited by the parties that a few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that the means adopted and illegal acts done were in furtherance of the object of the conspiracy hatched. The circumstances relied for the purpose of drawing an inference should be prior in time than the actual commission of offence in furtherance of the alleged conspiracy. It is also inferred from the perusal of the judgments cited at bar that conspiracy is a continuing offence, which continues to subsist till it is executed and during its subsistence whenever anyone of the conspirators does an act or series of act, he should be held guilty under Section 120B of the Indian Penal Code.
51. We now proceed to answer the aforesaid issue, whether Mohammad Salman, Saifoorrehman, Sarvar Azmi & Mohammad Saif along with an unknown person conspired to plant bomb at Jauhari Bazar at the crossing of Peetliyon Ka Rasta?
52. Learned Additional Government Advocate has set up a case that all the accused were knowing each other. They came to Jaipur on 11.05.2008 and after doing 'Reki' returned on the same day. They made bombs on 12.05.2008, came to Jaipur on 13.05.2008 (Downloaded on 11/11/2023 at 04:43:31 PM) (43 of 64) [CRLA-208/2022] afternoon and returned by Ajmer Shatabdi on 13.05.2008 itself. We deem it fit to reproduce Section 120-A of IPC as under:
"120-A. Definition of criminal conspiracy.--When two or more persons agree to do, or cause to be done,-- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
53. It would be proper to deal with the evidence led by the prosecution against the accused one by one.
53.1. Disclosure statements - Disclosure statements of Saif, Saifurrehman, Sarvar Azmi and Salman are hit by Sections 25 & 26 of the Evidence Act and Section 162 Cr.P.C. Disclosure statement pertaining to pointing out to the place of bomb blasts and shops from where cycles were purchased, have also been discarded by the Court, as these facts were already in the notice of the Investigating Agency and no new fact has been discovered under Section 27 of the Evidence Act. Learned trial Court has dealt with the role of each accused in Jaipur Bomb Blasts cases. The circumstance as pointed out by the trial Court against each accused is the disclosure statement made by Mohammad Saif. We have come to the conclusion that there is no discovery of fact and no arrest was made in consequence of the disclosure statement as such the disclosure statement at best can be treated as a confession made to the Police Officer under Sections 25 & 26 of the Evidence Act and thus, the same is inadmissible in evidence. (Downloaded on 11/11/2023 at 04:43:31 PM)
(44 of 64) [CRLA-208/2022] 53.2. Purchase of cycle & Planting of bombs - With regard to the role of each accused, suffice it to say that in the present case, there was no charge with regard to the purchase of cycle against the accused and planting bombs at particular places. This Court while deciding D.B. Criminal Death Reference No. 1/2020 has come to the conclusion that the prosecution has failed to establish beyond reasonable doubt that the cycle was purchased by Salman and bomb was planted by him. Similarly, while deciding D.B. Criminal Death Reference No. 2/2020, this Court has come to the conclusion that the prosecution has not been able to establish beyond reasonable doubt the involvement of Saifurrehman that Saifurrehman had purchased the cycle and had planted the bomb. In D.B. Criminal Death Reference No. 3/2020, this Court has come to the conclusion that the prosecution has failed to establish beyond reasonable doubt that Sarwar Azmi had purchased the cycle and had planted the bomb. Further, in D.B. Criminal Death Reference No. 4/2020, this Court has come to the conclusion that the prosecution has failed to establish beyond reasonable doubt that the cycle was purchased by Mohammad Saif and bomb was planted by him.
53.3. Test Identification Parade -This Court while deciding Death Reference Nos.1, 2,3 & 4 has discarded the evidence pertaining to test identification parade as the same was conducted after inordinate delay, the same was recorded in the presence of Police Official, the possibility that accused was shown to the witness cannot be ruled out. The witnesses deposed that they cannot identify purchasers, who had purchased cycles few days back, in those circumstances, seeing a purchaser for few minutes and then identifying him after many months and due to (Downloaded on 11/11/2023 at 04:43:31 PM) (45 of 64) [CRLA-208/2022] non-production of sketches, their evidence was disbelieved by the Court.
53.4. Conspiracy - It is to be noted that no evidence has been adduced to establish that Mohammad Saif, Saifurrehman, Salman and Sarvar Azmi were known to each other or there was any meeting of mind prior to the date of bomb blasts. The prosecution has been unable to establish either agreement to do an illegal act or a concert of action to cause an illegal act. Thus, the prosecution has utterly failed to establish the requisites of Section 120-A of IPC which defines criminal conspiracy. Further, anything said by a co-conspirator is relevant under Section 10 of the Indian Evidence Act and in this regard, State has relied on the disclosure statement of Mohammad Saif. While dealing with this argument, we have already held that any disclosure statement made by a co-accused is admissible against co-conspirator only if disclosure is made during the subsistence of the conspiracy. The disclosure statement of Mohammad Saif in this case was made many months after the bomb blasts and no conspiracy was subsisting as on the date of disclosure. Otherwise also, in the disclosure statement, generic muslim names were used and they do not disclose the identify of the co-conspirators.
54. Admittedly, the case rests on circumstantial evidence and till arrest of Mohammad Saif, the prosecution had no link or clue with regard to the bomb blasts. The cases of all the accused as per the prosecution version is so interlinked that each chain is required to be established. In the deliberations made above, we have come to the conclusion that none of the link in the chain is established so as to bring home conviction of the accused, rather not a single link has been established before the Court. The links which should (Downloaded on 11/11/2023 at 04:43:31 PM) (46 of 64) [CRLA-208/2022] have been established and have not been established are: journey on 11.05.2008 from Delhi to Jaipur; making bombs at Delhi on 12.05.2008; coming to Jaipur by bus on 13.05.2008, having lunch at Hotel Kareem; purchasing cycles, planting bombs on them and; returning by Ajmer Shatabdi Train on 13.05.2008 itself.
55. In the present case in hand, since the prosecution has failed to establish as to who was the person, who had purchased the cycle and who was person who had planted the bomb. The prosecution has further failed to establish any link of the present accused-appellants with the persons who had planted the bomb. The prosecution has also failed to establish that the accused herein were members of SIMI Organization and while deciding D.B. Criminal Death Reference Nos. 1, 2, 3 and 4 of 2020, we have acquitted the accused after elaborately pointing out the flaws in the prosecution case and which deciding D.B. Criminal Death Reference Nos. 1, 2, 3 and 4 of 2020, we have upheld the judgment of the trial Court vide which the trial Court has acquitted Shahbaz Ahmed. In the present case in hand also acquittal of Shahbaz Ahmed has been challenged by the State. Non- production of the material evidence by the prosecution i.e. beginning from email, non-recovery of the relevant CPU, non- seizure of the cafe register, possibility of Mohammad Shahbaz being shown to Madhukar Mishra before the test identification parade was conducted and also the fact that Mohammad Shahbaz had moved an application before the Court for subjecting himself to narco analysis test and was opposed by the State, leads to the innocence of the accused Shahbaz. We do not find any illegality or error in the judgment passed by the trial Court by which they have acquitted accused Shahbaz.
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56. It is to be noted that the bomb blasts took place on 13.08.2008. After a lapse of almost 15 years till date, the prosecution is not knowing as to who is the person, who planted the bomb and the matter is still kept pending investigation under Section 173(8) of Cr.P.C.
57. By a detailed discussion in Death Reference Nos.1, 2, 3 & 4, we have held accused appellants not guilty and we have upheld the acquittal of Mohammad Shahbaz as the prosecution has not been able to establish the chain of the circumstances to establish the guilt of the appellants. Though in the present case, the charges pertain to the bomb being planted by an unknown person, however, the Court has permitted the prosecution to lead their evidence with regard to the different blast sites. Hence, we deem it proper to succinctly state the anomalies that we have observed in the present case:-
a) Disclosure statement is disbelieved by the Court as there was no fact discovered in pursuance of the disclosure statement made by Mohammad Saif, Salman, Sarvar Azmi and Saifurrehman and the same is hit by Sections 25, 26 of the Evidence Act and Section 162 Cr.P.C.
b) Disclosure statement pertaining to pointing out the bomb blast site and pointing out the cycle shops is disbelieved by the Court as the facts which were discovered i.e. place of bomb blasts and the cycle shops were already known to the police and such statement is hit by Section 25, 26 of the Evidence Act and Section 162 Cr.P.C.
c) Prosecution has utterly failed to establish the travel of the appellants - Mohammad Saif, Salman, Sarvar Azmi and Saifurrehman from Delhi to Jaipur and Jaipur to Delhi on (Downloaded on 11/11/2023 at 04:43:31 PM) (48 of 64) [CRLA-208/2022] 11.08.2008 and 13.08.2008.The travel details dated 13.08.2008 which have been submitted pertains to some Hindu names and does not establish beyond reasonable doubt that the present accused travelled in fake Hindu names.
d) The prosecution has also not adduced any evidence with regard to involvement of accused in making of bombs at Delhi on 12.05.2008.
e) Prosecution has failed to establish the receipt of email from Sahibabad. No Certificate under Section 65-B of the Indian Evidence Act was produced. Original CPU on which the document was written was not seized. Entry register of persons, who had come to the Cafe was also not produced.
f) Admittedly, as per the prosecution case, the cycles were sold on 13.08.2008 whereas in two of the bills, date mentioned was 12.05.2008. The cycles which were recovered from the blast site were having different frame numbers than that which was available on the bill books. The bill books were not even seized by the police and in some cases were produced after a lapse of almost 4 years before the Court. There were manipulations in the bill books, pertaining to dates, bill numbers etc and it is also not clear why the bill books were not seized by the Investigating team. In one of the bill books, this Court has also found evidence of fabrication and in another case there is insertion of the disputed bill in the bill book.
g) Test identification parade was conducted after an inordinate delay and the relevant Rules with regard to the test identification parade were not followed. The presence of the Investigating Officer was there at the time of conducting of test identification parade.
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(49 of 64) [CRLA-208/2022] h) The testimony of the identification parade witnesses is not
believed by this Court for the very reason that they had not given any specific details and attributes in particular of the appellants.
i) The sketches, which were admittedly prepared by the witnesses, were not produced before the Court for the reasons best known to the prosecution.
j) The ball bearings seized at the instance of Mohammad Saif from a shop at Delhi did not match with the ball bearings used in the bomb blasts at Jaipur.
k) Non-production of material witnesses by the Prosecution is also a major infirmity such as Mr. Rajendra Singh Nain, who had conducted the preliminary investigation with regard to the shops from where cycles were sold;Mr. A.K Jain,Mr. Prakash Tandon and other media persons who received the email; the Mistri/employee of the cycle shops, who had dictated the frame numbers; the owner/employee of Kareem Hotel at Jaipur where, as per the prosecution, all the accused had lunch.
58. Considering the fact that none of the link of chain was established, prosecution has failed to established linking of the chain in light of the law laid down by the Apex Court in Sharad Birdhi Chand Sarda vs State Of Maharashtra: 1984 AIR 1622, wherein it was held that:
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of (Downloaded on 11/11/2023 at 04:43:31 PM) (50 of 64) [CRLA-208/2022] Maharashtra where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. They should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
59. We therefore hold that prosecution has not been able to establish beyond reasonable doubt that the cycle was purchased by the accused. They came from Delhi to Jaipur on 11.05.2008, that they prepared the bomb on 12.05.2008 at the rented premises in Batla House, that they came on 13.05.2008 in the morning and they returned on the same day after planting bombs. The steel balls which were recovered are said to have been purchased from Delhi, however, the size of steel balls did not match with the steel balls, thus the link of purchaser of steel balls and then using them for Jaipur Bomb Blasts was not established. It is true that the prosecution is not required to examine each and every witness, but equally the prosecution is duty bound to produce the relevant witnesses. In the present case in hand, the (Downloaded on 11/11/2023 at 04:43:31 PM) (51 of 64) [CRLA-208/2022] relevant witnesses were not produced by the prosecution. The sketches were got prepared from the shop-keepers, then why they have been retained by the prosecution is a mystery and presumption has to be drawn against the prosecution under Section 114(g) of the Evidence Act. We can draw presumption that if the sketches were produced, they could have supported the prosecution case and that is the only reason why they were not placed before the Court.
60. The non-production of material witnesses more particularly Rajendra Singh Nain, who had done initial investigation in this case with regard to the involvement of the shops from where the cycles were purchased also casts doubt with regard to the shops from where actually the blast cycles were sold. Thus, we can say with certainty that all the shops which had sold cycles on 13.05.2008 were not investigated, the bill books of all the shops which had sold cycles on 13.05.2008 were not seized by the police and even when the frame number mentioned in the bill was not matching, no step was made by the police to investigate the shop from where the cycle was actually sold without frame number.
61. Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular by the fact that a heinous crime like this goes unpunished but, then law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. It is always the burden of the prosecution to prove their case beyond reasonable doubt on the basis of acceptable evidence. The Apex Court in Sarwan Singh Versus State of Punjab: AIR 1957 SC 637 observed as under:
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(52 of 64) [CRLA-208/2022] "It is no doubt a matter of regret that a foul cold- blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence before an accused can be convicted." It is also a settled principle of criminal jurisprudence that more serious the offence, the stricter the degree of proof, since higher degree of assurance is required to convict the accused.
62. From what we have discussed herein-above, it is evident that the prosecution has failed to establish that the appellants with an unknown person came to Jaipur under fake hindu names. The unknown person planted the cycle near Peetliyon Ka Rasta, Jauhari Bazar, and left by Ajmer Shatbadi Train on the same day. We, thus in the present case also hold the accused not guilty for any conspiracy as involvement in the main case was not found to be made out. Consequently, the appeal filed by the appellants is allowed. The impugned judgment of conviction dated 18.12.2019 and order of sentence dated 20.12.2019 are quashed and set aside. The appeal filed by the State is accordingly, dismissed. The record of the Court below be returned forthwith.
63. The accused, who are in custody, be set at liberty forthwith, if not required in any other case or for any other purpose.
64. Accused Appellants-Mohammad Saif, Mohammad Saifurrehman, Mohammad Sarvar Azmi and Mohammad Salman are directed to furnish personal bond in the sum of Rs.5,00,000/- and a surety bond in the like amount in accordance with Section (Downloaded on 11/11/2023 at 04:43:31 PM) (53 of 64) [CRLA-208/2022] 437-A of Cr.P.C. before the Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, Accused Appellants-Mohammad Saif, Mohammad Saifurrehman, Mohammad Sarvar Azmi and Mohammad Salman on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months.
65. It is apparent that the investigation was not fair and it appears that nefarious means were employed by the Investigating Agencies, material witnesses required to unfold the events were withheld and apparent manipulations and fabrications have been done during the investigation. We therefore deem it proper, in interest of society, justice and morality, to direct the Director General of Police, Rajasthan, to initiate appropriate enquiry/disciplinary proceedings against the erring officers of the investigating team.
(Per Hon'ble Sameer Jain, J.) CONCURRING VIEW WITH ADDITIONAL OBSERVATIONS AND DIRECTIONS:
1. I have had the pleasure of reading the academic and erudite judgment authored by my brother judge and I am in complete and respectful agreement with him on every point involved. However, having regard to the importance of the issue involved, I deem it appropriate to pen down a few of my own views, in addition to the opinion of my brother judge. The following observations and directions are common to all the death references and appeals adjudicated, irrespective of fact that the said death references and appeals were adjudicated individually and independently on their (Downloaded on 11/11/2023 at 04:43:31 PM) (54 of 64) [CRLA-208/2022] own facts and arguments in great details in the above part of the judgment.
2. At the outset, the well established rule of criminal jurisprudence of "fouler the crime, higher the proof" is required to be noted. In the instant case, the life and liberty of convicts, who are young individuals, is at stake. As the accused were given death sentence, a very careful, conscious and meticulous approach was necessarily required to be made. It is well settled that the prosecution must stand or fall on its own legs and that it cannot derive any strength from the weakness of the defence. It is also a settled law that wherever there are two possibilities, one reasonably indicating commission of crime and the other reasonably indicating innocence of accused(s), the accused(s) must be given the benefit of doubt. When any fact asserted by the prosecution runs doubtful, the benefit should go to the accused and not to the prosecution; that is the settled position of law. In this regard, reliance is invited upon judgment of the Hon'ble Apex Court rendered in Digamber Vaishnav & Anr. Vs. State of Chhattisgarh: (2019) 4 SCC 522 wherein it was held as under:-
"14. One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the Accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be (Downloaded on 11/11/2023 at 04:43:31 PM) (55 of 64) [CRLA-208/2022] considered as an additional circumstance, if other circumstances unfailingly point to the guilt.
16. In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied:
i.) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
ii.) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; and iii.) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the Accused.
18. In Sujit Biswas v. State of Assam (2013) 12 SCC 406, this Court, while examining the distinction between 'proof beyond reasonable doubt' and 'suspicion' has held as under:
13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be"
proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be"
true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an Accused is condemned as a convict, and the basic and golden Rule must be applied."
Bearing these principles in mind, this Court, after careful considerations, has consciously decided the appeals in favour of the convicts. This Court has observed that the learned trial court has erroneously relied upon inadmissible evidence, ignored material contradictions, and has also not properly considered the (Downloaded on 11/11/2023 at 04:43:31 PM) (56 of 64) [CRLA-208/2022] legal provisions enumerated in The Indian Evidence Act, 1872 (for short "Evidence Act"); Information and Technology Act, 2000 (for short "I&T Act") and the Code of Criminal Procedure, 1973 (for short "CrPC"), which has led to passing of the erroneous impugned order(s) which is against the settled position of law.
3. In the instant matters, the following instances are note- worthy:
i. The blasts occurred on 13th May 2008 in the city of Jaipur (Rajasthan). Subsequently, after four months, similar blasts took place in the capital city of New Delhi on 13 th September 2008. For these four months, little to nothing was done by the investigation agencies in the State of Rajasthan.
ii. The Special Cell of Delhi Police, on a tip off, raided the Batla House in Jamia Nagar of South Delhi on 19.09.2008, where the alleged perpetrators of the crime were holed up. Only one of the accused, Mohd. Saif, was apprehended and his statements were recorded under police custody, did the investigation actually begin.
iii. The prosecution has attempted to disguise the alleged statements made by the accused under police custody as disclosure statements. However, the said statements were not confessions or admission of guilt, as the same were recorded in police custody and are hit by the provisions of Section 162 Cr.P.C read with Sections 25, 26 and 27 of the Evidence Act. Further, the same has not been corroborated by the recovered evidence and material and is, therefore, unreliable and inadmissible. The statements so recorded were extra judicial statements made under police custody.(Downloaded on 11/11/2023 at 04:43:31 PM)
(57 of 64) [CRLA-208/2022] The prosecution ought to have recorded the statement under Section 164 Cr.P.C before the learned Magistrate and for the lack thereof, along with absence of any supporting corroborating evidences, the alleged statements are hit by provisions of Section 162 Cr.P.C. read with Sections 25, 26 and 27 of the Evidence Act and are therefore inadmissible.
Reliance in this regard is placed on the judgment of Apex Court in Indra Dalal vs. State of Haryana: (2015) 11 SCC
31.
iv. The alleged travel made by the accused/convicts between Delhi and Jaipur has also not been conclusively proved. No CCTV footage and no call details were produced from the seized mobile from the accused in order to support the alleged travel made on 11.05.2008 or 13.05.2008. v. The email allegedly sent by the accused assuming responsibility for the blasts to the media houses, including India TV and Aaj Tak, and to Mr. A.K. Jain, then ADG, Rajasthan Police on 14.05.2008, was neither supported by the mandatory certificate as required under Section 65B of Evidence Act nor was it corroborated by the statements of Mr. A.K. Jain, Mr. Prakash Tandon or other people from the media houses who received such email. In the absence of mandatory certificate as required under Section 65B of the Evidence Act, as held by the Apex Court in Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Ors.: (2020) 7 SCC 1, and in the absence of corroborative statements of Mr. A.K. Jain, Mr. Prakash Tandon or other people from the media houses, the email relied upon by the prosecution is (Downloaded on 11/11/2023 at 04:43:31 PM) (58 of 64) [CRLA-208/2022] also an inadmissible piece of evidence. Further, even the header and tail of the email are not proper. In a nutshell, qua email, requisites of Section 88A of the Evidence Act read with Section 65B of the Evidence Act and Section 2 of the I&T Act are not followed and therefore, adverse inference under Section 114(g) of the Evidence Act has to be drawn. vi. It is the case of the prosecution that the accused/convicts allegedly sent the email from 'Naveen Café', operated by Mr. Madhukar Mishra. However, the relevant CPUs and the relevant register/record were never seized and examined. The site plan prepared is also not reflecting the existence of the relevant CPU system. All this added with the fact Mr. Madhukar Mishra was not present on the spot at the relevant time casts a shadow of a doubt.
vii. The Investigation Agency have also failed to impound/seize, at the initial stage of the investigation, the relevant bill books from the bicycle vendors who allegedly sold the bicycles, which were used in the explosions, to the accused/convicts. The bill books were a substantial piece of evidence and could have been relied upon under Section 34 of the Evidence Act. Further, Mr. Dinesh Mahawar, the mistri at the Anju Cycle Shop, who assembled/fixed the bicycles was also not examined. Also, the invoices and the bill books that were produced before this Court appeared to be tampered with, which makes the same a weak evidence. viii. There was no scientific evidence examining or comparing the ball bearings seized from the site of blasts to that seized from the shop of Mr. Subhash Chandra. There (Downloaded on 11/11/2023 at 04:43:31 PM) (59 of 64) [CRLA-208/2022] was a mismatch in the size of ball bearings which were produced and which were recovered from the site, which has created a doubt and there is no further investigation by the prosecution on the same.
ix. The Test Identification Parade (in short "TIP") is also vitiated for non-compliance of the Rajasthan Police Manual and Rules. There was a clear violation of Clause 7.31 as the TIP was conducted in the presence of the Investigating Officer, which is apparent from the statements made in the cross examination by Mr. Bhanwar Singh and Satyendra Singh Ranawat as also by the prosecution witness Laxman Jajhani, Prakash Sain and Lalit Lakhwani. The Jail Registrar has also given testimony that the Investigating Officer was present along-with the witnesses in Jail. The non-compliance of necessary provisions for conducting TIP were overlooked which has vitiated the entire procedure. Further, the TIP was also conducted after a lapse of substantial period of time and it is likely that the witness may have forgotten the features of the accused and thus it was very likely that mistakes might have been committed. Reliance in this regard is placed on Apex Court judgment of Wakil Singh and Ors. vs. State of Bihar: 1981 (Supp) SCC 28.
x. The prosecution has also failed to produce/examine some of the key witnesses. The most crucial example of this is the absence of examination of Mr. Rajendra Singh Nain, who allegedly conducted the entire investigation with cycle shop vendors. Other important witnesses who were not examined includes Mr. A.K. Jain, Mr. Prakash Tandon or other people (Downloaded on 11/11/2023 at 04:43:31 PM) (60 of 64) [CRLA-208/2022] from the media houses who allegedly received the email, Mr. Dinesh Mahawar, the mistri who allegedly assembled/fixed the bicycle, and the handwriting expert on whose opinion reliance was placed upon by the prosecution.
4. Having regard to the totality of circumstances and the evidence on record, it is difficult to hold that the prosecution had proved the guilt of the accused by adducing cogent and clinching evidence. As per the settled legal position, in order to sustain conviction, the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused only and no one else. The circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. As held by the Apex Court in Rahul vs. State of Delhi, Ministry of Home Affairs and Ors.:
(2023) 1 SCC 83, the prosecution has to bring home the charges levelled against the accused beyond reasonable doubt. In the present case(s), the prosecution has failed to do so, resultantly, the Court is left with no alternative but to acquit the accused. It may be true that if accused(s) in a heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victims in particular, however the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. No conviction should be based merely on the apprehension of indictment or condemnation over the decision rendered. Every (Downloaded on 11/11/2023 at 04:43:31 PM) (61 of 64) [CRLA-208/2022] case has to be decided by the Courts strictly on merits and in accordance with law without being influenced by any kind of outside moral pressures or otherwise.
5. The Court is constrained to make these observations as the Court has noticed, as mentioned above, many glaring lapses having occurred during the course of the investigation. It is noted by this Court that the Investigation Agency has miserably failed in the discharge of their duties; they have performed poorly, the investigation was not only flawed but was also shoddy and the provisions of law as well as their own rules were overlooked. It is also observed by this Court that the Investigating Agency lacked the required legal skills as they were not aware about the statutory pre-requisites and mandatory requirements. They have approached this case in a callous manner i.e. unbecoming of the members of uniformed posts. The approach of the Investigation Agency was plagued by insufficient legal knowledge, lack of proper training and insufficient expertise of investigation procedure, especially on issues like cyber crimes and even basic issues like admissibility of evidence. The failure on the part of the Investigation Agency has frustrated the case of the prosecution and the evidence so recorded is not fulfilling the chain of evidence.
6. Though the efforts of the arguing counsel, Ms. Rekha Madnani, Addl. Govt. Advocate, have to be appreciated, but it is also glaringly obvious that, in the present case, no integrated approach was adopted by the State. It was also admitted in written submission that since blast matter was first of its kind, certain technical errors were there on the part of the State to (Downloaded on 11/11/2023 at 04:43:31 PM) (62 of 64) [CRLA-208/2022] carry out the investigation and therefore, the seizures, non- production of evidences, non-production of material witnesses etc. have taken place.
7. Under Schedule-7 of List-II of the Constitution of India, the police is a subject governed by the State whose primary role is to provide security for the people, to investigate the crime, and to maintain law and order. It is indeed true that they have to be given operational freedom to carry out their role and responsibility but while discharging this important public duty, the police/investigation agency may be held publicly accountable for their poor performance. The police/investigation agency is expected to perform their duty in a very cautious, sincere, devoted, diligent manner in accordance with law as per the statutory mandate and in accordance with settled position of law. It is duty of the police/investigation agency to secure and record the complete evidence, to investigate in a sincere manner, to identify the culprits/accused, frame charges and assist the prosecution. However, in the instant case, the investigation agency has utterly failed to do so. This Court has no hesitation to hold that the investigation was flawed, shoddy and there were lapses on the part of the investigation team. The Apex Court has time and again, more particularly in Gajoo Versus State of Uttarakhand: (2012) 9 SCC 532 and Dayal Singh and Ors. Versus State of Uttaranchal: (2012) 8 SCC 263, held that in criminal case of heinous nature, if the investigation is shoddy/flawed which resulted from a callous, lethargic and negligent approach adopted by investigation agencies, then it will (Downloaded on 11/11/2023 at 04:43:31 PM) (63 of 64) [CRLA-208/2022] be the duty of the Court to pass appropriate strictures and/or to give appropriate directions as the occurrence of crime is a breach of public right which affects the whole community and is harmful for the society in general.
8. For the reasons stated above, we hold that the Investigation Agency in the given case should be made responsible/accountable for their negligent, cursory and inefficient actions. In the given case, for the reasons stated above, in spite of the case being of heinous nature, 71 persons losing their lives and 185 persons sustaining injuries, causing unrest in the lives of every citizen, not just in the city of Jaipur, but all across the country, we deem it appropriate to direct the Director General of Rajasthan Police to initiate appropriate Enquiry/Disciplinary Proceedings against the erring officers of the Investigating Team.
9. Before parting, it must be added that the Apex Court, in the celebrated judgment of Prakash Singh and Ors. vs. Union of India (UOI) and Ors.: (2006) 8 SCC 1, had contemplated formation of a 'Police Complaints Authority' which is still not adequately constituted in the State of Rajasthan. This case is a classic example of institutional failure resulting in botched/flawed/shoddy investigation. We fear this isn't the first case to suffer due to failure of investigation agencies and if things are allowed to continue the way they are, this certainly won't be the last case in which administration of justice is affected due to shoddy investigation. Therefore, we direct the State, the Chief Secretary (Downloaded on 11/11/2023 at 04:43:31 PM) (64 of 64) [CRLA-208/2022] in particular, to look into the matter, which is in the larger public interest.
(SAMEER JAIN),J (PANKAJ BHANDARI),J
SUNIL SOLANKI /PS
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